Abley v Dale
| Jurisdiction | England & Wales |
| Judgment Date | 31 January 1852 |
| Date | 31 January 1852 |
| Court | Court of Common Pleas |
English Reports Citation: 138 E.R. 26
IN THE COURT OF COMMON PLEAS
For subsequent proceedings see 11 C. B. 378.
[62] abley v. dale. Nov. 11, 1850. [For subsequent proceedings see 11 C. B. 378.] Held, that a party ordered to pay a sum recovered against him in the county-court, who has made default, and, upon being examined upon a judgment-summons, shews no sufficient excuse for such default, may be committed to prison forthwith; but that, if judge orders him to pay the money at a future day, or, in default, to be committed, and the" party again makes default, he cannot be committed without being examined as to the cause of such second default.-Plea, to an action by A. against B. for false imprisonment,-that a judgment was recovered by B. against A. in the county-court, for a sum ordered to be paid by instalments; that A. was summoned, under s. 98 of the 9 & 10 Viet. c. 95, to shew cause why he had not paid the instalments; that he appeared to the summons, and that the judge ordered him to pay the debt and costs on a given day, or, in default, that he should be committed for twenty days; and that he made default, and was thereupon arrested, and carried to gaol, &c.:-Held, bad. Trespass and false imprisonment. The declaration stated that the defendant, on the 20th of August, 1849, with force and arms, assaulted the plaintiff, and seized him, and caused him to be arrested and apprehended, and unlawfully committed to a certain common gaol or prison, called the house of correction for the county of Middlesex, and also there imprisoned the plaintiff, and kept and detained him in prison there, without any reasonable or probable cause, for a long space of time, to wit, &c. &c. Plea,-that, before the time when, &c., to wit, on, &c., the now defendant and one George Cornelius Dale levied their plaint in the Whitechapel county-court of Middlesex, against the now plaintiff, for the recovery of a certain debt, to wit, 131. 3s., then, and within the jurisdiction of the said court, justly due and owing from the now plaintiff to the now defendant and the said George Cornelius Dale; which said court then, and thence continually during the times hereinafter in this plea mentioned, was holden within the district of the said court, before James Manning, one of Her Majesty's serjeants-at-law, then, and during all that time, being the judge of the said court; which said court then, and [63] during all that time, had jurisdiction to hear and determine the said plaint; and the now plaintiff, who then was liable to be sued in the said court for the said debt, was then, to wit, on the day and year last aforesaid, duly summoned to answer the said plaint: That the now plaintiff, afterwards, and before the said time when, &c., to wit, on the 10th of June, in the year last aforesaid, appeared in the said court so holden as aforesaid, to answer the said plaint; and such proceedings were thereupon had in the said plaint, that afterwards, and before the said time when, &c., to wit, on the day and year last aforesaid, the now defendant and the said George Cornelius Dale, by the consideration and judgment of the said court, recovered against the now plaintiff, as well the said debt, amounting to the said sum of 131. 3s., as also the sum of 21. 7s. for the costs and charges of the now defendant and the said George Cornelius Dale, by them about their suit in that behalf expended, by the said court then adjudged to them in that behalf,-which said two several sums of 131. 3s. and 21. 7s., amounting in the whole to a large sum, to wit, the sum of 151. 10s., were then ordered by the said court, in due manner, according to the 10 C. B. 64. ABLEY V. DALE 27 statute in that behalf, to be paid by the now plaintiff to the now defendant and the said George Cornelius Dale, by certain monthly instalments, that is to say, by instalments of 15s. every month, the first of such instalments to be paid on the 10th of July then next; such payments to be made at the office of the clerk of the said court; as by the record of the proceedings in the said plaint, still remaining in the said court, more fully appears: That the now plaintiff, on divers days afterwards, and before the issuing of the summons thereinafter mentioned, paid divers small sums of money, amounting in the whole to the sum of 21. 7s. 4d., and no more, for and towards payment of the said instalments; but that the [64] now plaintiff made default in payment of the residue of the faid instalments, although, at the time of the issuing of the said summons thereinafter mentioned, the whole of the said instalments had become due and payable; and that 121. 12s. 8d., parcel of the said sum of 151. 10s., at the time of the issuing of the said summons thereinafter mentioned, and of the making of the order, and of the committal thereinafter also mentioned, remained and was wholly due and unpaid and unsatisfied to the now defendant and the said George Cornelius Dale: That, the said sum of 121. 12s. 8d. so remaining due and unpaid, and the said judgment being and remaining unsatisfied, afterwards, and before the said time when, &c., to wit, on the 20th of May, 1849, the now defendant and the said George Cornelius Dale, according to the course and practice and rules of the said court, and the form of the said statute, caused the now plaintiff to be summoned, and the now plaintiff then was summoned, to appear at the said county-court, to wit, at the courthouse in Osborn Street, Whitechapel, on the 31st of May, 1849, to answer such questions as should be put to him touching his, the plaintiff's estate and effects, and the manner and circumstances under which he, the now plaintiff, contracted the said debt which was the subject of the suit in which the said judgment was so obtained as aforesaid, and as to the means and expectations which the now plaintiff had at the time he contracted the said debt, and as to the property and means he then still had of discharging the said debt, and as to the disposal he might have made of any property: That the said several things touching which the now plaintiff was so summoned to answer such questions as should be put to him, were named in the said summons; and that the said summons, to wit, on the said 20th of May, in the year last aforesaid, was in due manner served upon the now plaintiff personally, he, [65] the now plaintiff, then dwelling within the limits of the said court: That afterwards, and before the said time when, &c., to wit, on the said 31st of May, 1849, at the said county-court, before the said judge, the now plaintiff appeared in answer to the said summons, pursuant to the exigency thereof, and was then examined touching his estate and effects, and the manner and circumstances under which he contracted the said debt, and as to the means and expectations which he had at the time of the contracting of the said debt, and as to the property and means he then still had of defraying the said debt, and as to the disposal he might have made of any property; and that thereupon it then appeared, to the satisfaction of the said judge of the said court, and it was then adjudged by the said court, upon the said examination, that the now plaintiff had sufficient means and ability of discharging the said sum of 121. 12s. 8d. when the same became due under the said order, and that he still had sufficient means and' ability of discharging the same : That it was thereupon then, at the said court, adjudged and ordered by the said court, that the now plaintiff should pay the said sum of 121. 12s. 8d., together with 11. 13s. 8d. for the costs of the last-mentioned summons and the proceedings thereon, according to the statute in that behalf, amounting in the whole to the sum of 141. 6s. 4d., by instalments of 10s. in every month, the first instalment to be paid on the 2nd of July then next,-or that the now plaintiff be committed, for the term of twenty days, to the house of correction for the county of Middlesex, in Cold Bath Fields, in the said county, according to the form of the statute in such case made and provided, or until he should be discharged by due course of law; as by the last-mentioned order, remaining in the said court, reference being thereto had, would fully appear: That afterwards, and before the said time when, &c. in [66] the declaration mentioned, to wit, on the 2nd of August, in the year last aforesaid, two of the last-mentioned instalments became due and in arrear, but the now plaintiff wholly neglected and refused to pay the same, or any part thereof; and that thereupon the said sum of 141. 6s. 4d., and every part thereof, still remained wholly due and unpaid : That afterwards, and before the said time when, &c., to wit, on the 17th of August, in the year aforesaid, the now 28 ABLEY V. DALE 10 C. B. 67, defendant and the said George Cornelius Dale caused to be sued and prosecuted out of the said county-court, then holden before the said judge, within the district for the said court, and there was then in due form of law issued by the said court, according to the form of the statute in such case made and provided, a certain warrant in writing, under the seal of the said court, and bearing date the day and year last aforesaid, and directed to the high-bailiffs and other bailiffs of the said court, and all constables and peace-officers within the jurisdiction of the said court, and to the governor of the house of correction aforesaid, whereby, after reciting the premises thereinbefore mentioned, the said high bailiffs, bailiffs, and constables, and peace-officers, were required to take the now plaintiff, and to deliver him to the governor of the said house of correction, and the said governor was thereby required to receive the now plaintiff, and him safely keep in the said house of correction for the term of twenty days from the arrest under that warrant, or until he should be sooner discharged by due course of law; which said warrant...
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