Buckmasters v Cox

• Jurisdiction: Ireland
• Judgment Date: 25 November 1839
• Date: 25 November 1839
• Court: Exchequer of Pleas (Ireland)

EXCHEQUER OF PLEAS.

BUCKMASTERS

and

COX.

Hawhshaw V. Sutter Batty 319.

Magrath V. HardyENR 4 Bing. N. C. 798.

Trevivan V. LawrenceENR 2 Lord Raym. 1048, S. C. 1 Salk, 276.

Vooght V. WinchENR 2 B. & Ald. 662.

Outram V. MorewoodENR 3 East, 346.

Vooght V. WinchENR 2 B. & Ald. 671.

Aslin V. Parkin 1 Vol. p. 268.

Phillips on Evidence 8th ed. pp. 512, 616, 840.

Doe d. Strode V. SeatonENR 2 Cr. M. & R. 728, 731, 732.

Joliffe V. MondayENR 4 Mees. & Wels. 502.

Lessee Stuart V. Smith Batty 317.

Aslin V. ParkinENR 2 Burr. 668.

Doe V. HuddartENR 2 Cr. M. & R. 316.

Goddart's CaseUNK 2 Rep. 4. b.

PRACTICE — PRISONER — PRIVILEGE FROM ARREST — PERMISSION TO LODGE DETAINER.

MICHAELMAS TERM, THIRD VICTORIA. 101 " Court,' is is said, 'took this difference, that where the plaintiff's title " is))y estoppel, and the defendant pleads the general issue, the jury " are bound by the estoppel, for here is a title in the plaintiff, that is a "' good title in law, and a good title if the matter had been disclosed and "'relied on in pleading; but, if the defendant pleads the special matter, " and the plaintiff will not rely on the estoppel when he may, but takes "'issue on the fact, the jury shall not be bound by the estoppel, for "'then they are to find the truth of the fact which is against him. " Thus in debt for rent on an indenture of lease, if the defendant plead " nil debet, he cannot give in evidence. that plaintiff had nothing in the "'tenements; because, if he had pleaded that specially, the plaintiff might " 4 have replied the indenture and estopped him : but if the defendant " plead nihil habuit, &c., and the plaintiff will not rely on the estoppel, " but reply habuit, &c., he waives the estoppel and leaves it at large, " and the jury shall find the truth notwithstanding the indenture.' " These observations are directly applicable to the action of trespass for mesne rates in Ireland, in which it has been always customary to plead the general issue only ; it is, therefore, satisfactory to think that the course of practice which has been so long pursued in this country in relation to this action, may be upheld upon the established principles of pleading, without at all trenching upon the decision of the Court of Exchequer in England in the case of Doe v. Huddart. 1839. ARMSTRONG V. NORTON. Monday, November 25th. PRACTICE-PRISONER-PRIVILEGE FROM ARREST- PERMISSION TO LODGE DETAINER. BUCKMASTERS V. Cox. IN this case, a conditional order had been obtained, that the defendant Where aparty s wa custd should be discharged out of custody of the sheriffs of the county of the on ain crimionay l ch arge, which city of Dublin, under the capias ad satisfaciendum at the plaintiffs' suit, was abandon- and from all subsequent detainers, if any. ed, but ous previ- ly to is The defendant was arrested at his house in Cheshire on the 2d of discharge fro his October last, on a charge preferred against him by a person of the name such custody, a detainer in a of Dawson, resident in Dublin, of having uttered and passed a forged civil action was lodged promissory note, knowing the same to be a forgery, to the said Dawson, with the she riff Held, that under such circumstances he was not privileged from detainer and arrest. Where a person is in custody of the slieriS on a criminal charge, it is not necessary to obtain an order of the Court for the sheriff to detain him in a civil suit. 102 CASES IN THE EXCHEQUER OF PLEAS. in payment of a carriage purchased from him by the defendant. The defendant was brought over from his residence in England in custody of a police constable, and committed to the gaol of Newgate, where he was kept in confinement until the opening of the Commission of Oyer and Terminer, on the 26th of October. The prosecution having been abandoned, the defendant was brought up from the gaol on the first day of the Commission, and ordered by the Court to be discharged in the usual manner by proclamation ; but imÂmediately on being liberated from the dock, lie was taken in execution by the under-sheriff upon the writ of ca. sa. which had issued at the suit of the plaintiff in this case. The sheriff, accompanied by the keeper of the prison, conducted the defendant back to gaol, where he had been since detained under a warrant on the said execution. The conditional order was obtained upon an affidavit of the defendÂant, stating the above facts, and alleging that no order had been obtained by the plaintiffs for liberty to lodge a detainer against the defendant, while in such criminal custody. The plaintiffs' attorney made an affidavit in reply, in which he adÂmitted that no order had been obtained for liberty to detain the defendÂant, inasmuch as the execution had been...