Doe D. Harrison v Hampson
| Jurisdiction | England & Wales |
| Judgment Date | 12 June 1847 |
| Date | 12 June 1847 |
| Court | Court of Common Pleas |
English Reports Citation: 136 E.R. 701
IN THE COURT OF COMMON PLEAS
[745] doe d. harbison v. sampson. June 12, 1847. The undertakings contained in the common consent rule are personal, and binding only to the extent of creating a liability to attachment.-They cannot be enforced by the representatives of a deceased party.-In cases in which a rule of court for the payment of money, has the effect of a judgment, under 1 & 2 Viet. c. 110, s. 18, a rule nisi-calling upon the parties to shew cause why the amount should not be paid,- is unnecessary. This was an action of ejectment, tried at the spring assizes for Somerset, in 1846, when a verdict was found for the defendant. A rule nisi was obtained in the following term, for a new trial, which was afterwards, on the 1st of February, 1847, discharged (ante, 267). The defendant died, intestate, on the 25th of November, 1846; and, on the 18th of March last, administration of his estate and effects, was granted to his son, Crispin Hampson. By an order of Erie, J., made on the 23rd of March last, it was directed that judgment should be entered as of the 21st of April then last, and that it should be referred to the master to tax the defendant's costs of the suit. Judgment was accordingly signed, and costs were taxed and allowed upon the consent rule, at 681. 12s. Montague Smith, in Easter term last, on behalf of Crispin Hampson, obtained a rule calling upon the lessor of the plaintiff to shew cause, why he should not pay the amount of such costs,-with a view to an execution under the 1 & 2 Viet. c. 110, s. 18. He referred to 2 Wms. Saund. 72 o., Goodright v. Holton (Barnes, 119), and Thrustout v. Bedwell (2 Wils. 7). Butt, on a former day in this term, shewed cause. The undertaking in the consent rule, is personal only. The case of G-oodright v. Holton is of no authority : it is directly at variance with the subsequent case of Thrustout v. Bedwell, which all the text books cite with approba-[746]-tion. In Adams on Ejectment (4th edit. p. 280), it is said: "If the plaintiff be nonsuited from the refusal of the defendant to appear at the trial, the executor of the lessor will not be entitled to his costs, for, the consent rule is merely personal:" for which is cited Thrustout v. Bedwell. So, in 2 Wms. Saund. 72 o., note (n), it is said: "If the lessor of the plaintiff in ejectment dies after issue joined and before trial, or even after trial and before payment of costs, the defendant...
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