1799. Cook บ. LOVELAND. is his castle" (a). Besides the plea states, that the defendant exposed the bread to sale at his house; the Defendants therefore might have overlooked it without entering the house. Secondly, it appears, that the persons incorporated by the charter were all the freemen of the city of London, using the mystery of baking within the city and its suburbs; they were the only persons to whom the charter was directed, and by them only therefore can it have been accepted. Rex v. Amery, 1 Term Rep. 584. per Ashurst J. But the authority given by the charter is not only to be exercised within the city and the suburbs, but in all other places within two miles every where round the city. To the persons without the city the charter was not directed, by them therefore it was not accepted, and consequently they cannot be bound by it (b). Bagge's case, 1 Roll. Rep. 226. 2 Brownlow 100. and Rex v. Dr. Askew, 4 Bur. 2200. It is clear from the pleadings, that the Plaintiff's house is not within the city or the suburbs, the venue being laid at Christ Church, in Surrey, and the plea averring the house to be "within two miles of the suburbs of the city." Thirdly, the authority has not been strictly pursued. The charter created one master and four wardens, and the authority is to be executed by the master and wardens for the time being "by themselves or their sufficient deputy or deputies;" admitting therefore, that a majority of five might have exercised the authority, yet the trespass in this case being only justified as the act of the master, one of the wardens and a third person in their aid, the justification is insufficient. Nor can these persons be considered as deputies of the five, since if there was a deputation, it should have appeared to have been made by the concurrent appointment of the five, or at least of the majority. In 1 Bulst. 105. where a writ was directed to eight nominatim, and seven only certified, it was held to be bad (c). Shepherd, Serjt. contrà, was desired by the Court to argue the last objection, as they should not feel themselves called upon to decide upon the others, if that was well grounded. He admitted (a) In 1 Lev. 15. it is said by the Court that the customs of London are of such force that they will stand good against negative acts of parliament. (b) But a corporation enabled by charter to make bye-laws for the regulation of a particular trade in a particular place, may make bye-laws binding on persons exercising that trade in that place, though not members of the corporation. The Butchers' Company v. Morey, 1 H. Bl. 870. (c) In Norris v. Staps, Hob. 210. a declaration in the name of A. and B. guardians, and the fellowship of, &c. on a bye-law made by two guardians, and the majority of the fellowship, was held bad among other reasons, because it did not state how many guardians were appointed by the charter, and there might have been more than two. that where a power is granted to a definite number of persons, it must be exercised by the majority, but contended, that the Defendants in this case acted ministerially as the agents and servants of the master and wardens, that they entered the Plaintiff's house with a view to overlook only, and that their act was afterwards to be submitted to the judgment of the majority of persons to whom the power was granted; that it might be collected from the plea that they were only acting as deputies of the others, and that although no deputation was averred, such omission could only be taken advantage of on special demurrer. But the Court were of opinion, that the omission was a subject of general demurrer, for the authority was void if the deputies were not well appointed. Lord ELDON, Ch. J. This declaration calls upon the Defendants to shew by what authority they entered the Plaintiff's premises. The plea refers to the letters-patent of incorporation, and asserts that the Defendants had authority in manner and form therein described; that is, a right of overlooking and correcting the trade. Now, it is obvious, that on a question, whether bread be wholesome and sound, persons may differ in opinion, and a tradesman is not to be subject to the judgment of a single person, where the authority is vested in several. With respect to the right of exercising that authority by deputy, the same joint discretion must be employed in appointing the deputy which is necessary to the execution of the authority itself. Judgment for the Plaintiff (a). Per curiam, (a) Vid. et. Grinley v. Barker and Others, ante, vol. 1. p. 229. 1799. Cook v. LOVELAND. PARIENTE v. PLUMBTREE. THIS Nov. 18th. The sheriff having arrested a party, permit ted him to go at large without taking a bailbond, returned cepi corpus, and before the expiration of the rule to bring in the body put in bail; held that he was not liable either to an action for an escape, or false return(a). (a) Vide Turner v. Cary, 7 East, 607. Allingham v. Flower, post. 246. Defendant 1799. PARIENTE V. PLUMBTREE. Defendant had actually arrested W. J. Stephens in obedience to the writ, but had afterwards suffered him to be at large without having taken a bail-bond; that the Plaintiff on the return-day ruled the Defendant to return the writ, who accordingly returned cepi corpus; that the Plaintiff having afterwards served the Defendant with a rule to bring in the body, he put in bail, and W. J. Stephens before the expiration of the latter rule surrendered himself in discharge of those bail. A verdict was found for the Plaintiff, with liberty to the Defendant to move to set it aside. Accordingly a rule nisi for a new trial having been obtained, Shepherd and Bayley, Serjts. now shewed cause. Before the 23 H. 6. c. 9. the sheriff was bound to have the body at the return of the writ; and since that statute the only sufficient excuse which he can offer for not having the body is, that he has taken a bail-bond. In this case he neither had the body at the return of the writ, nor had taken a bail-bond. Though the Plaintiff may proceed against the sheriff in such a manner as to make him liable to an attachment, yet his right of action commences at the time when the writ is returnable, and nothing will wave that right. Indeed, it is necessary to rule the sheriff to return the writ, in order to procure evidence to support this action, for without so doing the Plaintiff could not ascertain what return the sheriff would make; and the same thing is done in cases where the sheriff is proceeded against for extortion or any other misconduct. If the sheriff omit to take a bail-bond before the return of the writ, he cannot afterwards retake the party; for the writ is functus officio, and he will be guilty of a trespass if he attempt it. Atkinson v. Matteson, 2 T. R. 172. Where a bail-bond has been taken, and the sheriff is afterwards irregular, the Court never allows the Defendant to try the cause, without directing the bail-bond to stand as a security. Now in this case the Defendant will be permitted to try, and yet there is no bail-bond to stand as a security. Merely putting in bail at a time subsequent to the return, cannot be deemed having the body at the return of the writ: and as it appeared by the bailpiece, when produced in evidence, at what time the bail was put in, the Court cannot presume the proceedings of the sheriff to have been regular when the contrary has been shewn. In Jones v. Eamer, Anstr. 675, it was expressly decided in the Exchequer, that putting in bail after the return of the writ, and before the rule to bring in the body had expired, was no defence to an action against the sheriff for returning cepi corpus where he had had permitted the Defendant in the original action to go at large without taking a bail-bond, and had him not at the return of the writ. That case proceeded on the authority of Ellis v. Yarborough, 1 Mod. 227. Cockell and Runnington, Serjts. contrà, were stopped by the Court. Lord ELDON, Ch. J. In Fuller v. Prest, 7 T. R. 109, it was decided by the Court of King's Bench, that where the sheriff permits the party to go at large, and does not take a bail-bond, it is a breach of his duty for which he is answerable, if bail are not put in within due time. The result of this case is, that putting in bail in due time is an answer to the action, and that he is only liable where he has not done so. I cannot conceive on what grounds the case in the Exchequer was decided. BULLER, J. I never knew a more groundless application : the whole of the argument proceeds on a fallacy. The foundation of it is, that the party did not appear at the return of the writ. But the record does not shew at what period bail were put in. When once put in they are to be considered as bail of the term generally. In the report of Jones v. Eamer, the Court are said to have proceeded on the authority of Ellis v. Yarborough, as directly in point. But that case was determined upon another ground. The object of ruling the sheriff to return the writ is to ascertain whether he has taken the party or not; and if he return cepi corpus he must put in bail. Now if this action could be maintained, it would in fact be going to a jury to ascertain whether the Court has done right in giving the sheriff the usual time to put in bail. It is a sufficient answer to the action that an appearance was entered. As to the production of the bail-piece at the trial; that was evidence which ought not to have been admitted, and yet it is upon that evidence that the action is attempted to be supported. There is a case in Saunders where it is said by the Court, that if the sheriff take a prisoner and detain him in his custody, and at the return of the writ return cepi corpus, and have not the body in court, he shall be amerced to the King, but the party shall not have an action against him (a). (a) Posterne v. Hanson and Another, 2 Saund. 60. The above observation was made by the Court with a view to shew, that where a sheriff takes a bail-bond, and has not the body at the return of the writ, he is not liable to an action. They reason thus. Before the stat. 23 H. 6. c. 9. if the sheriff had actually detained the party, but had him not in Court at the return of HEATH, 1799. PARIENTE v. PLUMBTREE. 1799. PARIENTE v. PLUMETREE. HEATH, J. There is a case of Murray v. Durand in Espi nasse's Cases at Nisi Prius (a), which shews that this action cannot be maintained: for Lord Kenyon there ruled that an allowance of bail above, subsequent to the commencement of an action against the sheriff for an escape, and for not assigning the bail-bond, was a sufficient answer to such action; saying, that though the bail were put in and justified after the proper time, still that when once put in and justified, they were subsisting bail, and must be taken nunc pro tunc. ROOKE, J. of the same opinion. (a) Page 87. Rule absolute. Nov. 18th. Copy of a writ mistake held fa- THE JONES V. ARMYTAGE. HE Defendant in this case having been served with a copy of the process, and notice to appear at the foot thereof, as required by 5 Geo. 2. c. 27. s. 4., the latter varied from the former, thus; in the copy of the writ the name of the Defendant William Armytage was properly inserted, but the notice was "Catherine Waller you are served, &c." On this ground, Shepherd, Serjt. on a former day obtained a rule nisi to set aside the proceedings, and Runnington, Serjt. now shewed cause. The Court were of opinion, that the mistake was fatal. Rule absolute. Nov. 18th. If bail be brought up on the same day on which an attach ment has been obtained against the sheriff, the Court will per. mit them to justify, and set aside the attachment, on pay ment of costs. TURNER V. BRISTOW. THE Rule to bring in the body having expired on the 16th, (Saturday) Shepherd, Serjt. obtained an attachment this morning (Monday). Heywood, Serjt. now mentioned that he was instructed to justify bail this day, and urged, that the Court would therefore set aside the attachment, as it had been often said, they would not allow any advantage to be obtained by mere priority of motion. He cited Thorold v. Fisher, 1 H. Bl. 9. to shew, that had he justified before the motion for the attachment, the latter would not have been granted. The Court said, that on payment of costs (a), the attachment must be set aside. (a) Note: the rule for the attachment had not been drawn up, and it was intimated that it ought not to be drawn up; so that the costs given were only those of preparing for the rule for the attachment. JORY |