Fowell and Another against Petre
| Jurisdiction | England & Wales |
| Judgment Date | 25 November 1836 |
| Date | 25 November 1836 |
| Court | Court of the King's Bench |
English Reports Citation: 111 E.R. 1376
IN THE COURT OF KING'S BENCH.
[818] fowell and another against petre. wright against elliot. Friday, November 25th, 1836. An affidavit to hold to bail in an action against the drawer of a bill of exchange, is bad if it omit to state the amount for which the bill is drawn, and allege merely that defendant is indebted to plaintiff, in a sum named for principal monies due on a bill of exchange, drawn by, &c. (additig the parties). Per Lord Denman C.J. Per Curiam. This objection comes too late, where the party was detained on a capias issued on October 26th, and does not move to be discharged out of custody till November 14th, although no step has been taken by either party in the meantime. Delay in taking such an objection is not excused by the fact that the party has been in custody ever since. Semble, per Lord Denman C.J., that, if a Judge is applied to at chambers to discharge on account of irregularity in the affidavit of debt, and refuses to interfere, and an application is afterwards made to the Court for the same purpose, the motion, in point of form, should be, to discharge the Judge's order. In the first of these cases, the defendant was detained on a writ of capias issued' October 26th, 1836. The affidavit of debt stated that the defendant was indebted to the plaintiffs in the sum of 5001. "for principal monies due upon a certain bill of exchange," drawn by defendant upon, &c., payable to the order of one of the plaintiffs, and by him indorsed to both plaintiffs, which bill had been refused acceptance and payment. Bagley, on the 14th of November, obtained a rule to shew cause why the defendant should not be discharged out of custody as to this action, on the ground (a) May 8th, before Lord Denman C.J., Littledale, Patteson, and Coleridge, Js. (b) See Farley v. Briant, 3 A. & E. 839, 861. 5AD.fcE.819. FOWELL V. PETRE 1377 that the affidavit of debt was irregular in not stating the sum for which the bill was drawn. On a subsequent day of the term (a)1. W. H. Watson shewed cause. First, the application comes too late. The rule of Court, Hil. 2 W. 4, I. 33, is, that " no application to set aside process or proceedings for irregularity shall be allowed, unless made within a reasonable time, nor if the party applying has taken a fresh step after knowledge of the irregularity." In Sharpe v. Johnson (4 Dowl. P. C. 324), an application [819] like this was granted more than...
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