Vernon v Turley

• Jurisdiction: Ireland
• Judgment Date: 01 January 1836
• Date: 01 January 1836
• Court: Exchequer of Pleas (Ireland)

English Reports Citation: 150 E.R. 454

EXCH. OF PLEAS.

Vernon

and

Turley. 1

S. C. 1 Tyr. & G. 421; 4 Dowl. P. C. 660; 2 Gale, 81; 5 L. J. Ex. 145.

4'54 VERNON V. TURLEY 1M. &W. 317. vernon v. turley.() Exoh. of Pleas. 1836.-Declaring de bene esse in the original action is no waiver of previous proceedings in an action on the bail-bond. -The plaintiff signed an agreement with an agent of the defendant, on the 29th of (September, that on the defendant's entering into an agreement to pay the debt, part in iron within a month, and the remainder by bill at two months, the action should be discontinued ; and the defendant was to call on the plaintiff on the following day, to enter into the agreement, fie never did so call. On the 8th of October the plaintiff gave notice to the defendant that he held himself disengaged from the agreement, and should proceed with the action forthwith. On the 20th of October, the defendant delivered to the plaintiff', and the latter received, two bills of exchange for the greater portion of the debt Ho did not deliver any iron, and became bankrupt on the 6th of November: -Held, that there was riot a giving of time to the defendant, so as to discharge the bail.- Bail applying to be discharged from liability on the ground of an agreement for giving time to the principal, must come in the term next after they know of the agreement. [S. C. 1 Tyr. & U. 421; 4 Dowl. P. C. (iGO; 2 Gale, 81 ; 5 L. J. Ex. 145.] Archhold had obtained a rule nisi for setting aside the proceedings on the bail-bond given in this cause, on [317] two grounds:-first, that time had been given to the defendant, without the concurrence of or communication to the bail; and secondly, that the proceedings were irregular by reason of the plaintiff having declared cle beno esse in the original action against the defendant after suing out process against the bail, and having subsequently declared in the action against the bail without issuing a fresh writ The defendant was arrested on the 24th of September; the assignment of the bail-bond was taken on the llth of November; on the 14th a writ of summons issued against the defendant and the bail jointly; on the 18th the plaintiff declared de bene esse in the original action ; on the 29th he declared, as assignee of the bail-bond, against one of the bail, Hodgins, alone. The affidavit of Hodgins, in support of the present rule, stated that several days before the time for putting in special bail had expired, he inquired...