Hopkins v Salembier
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1839 |
| Date | 01 January 1839 |
| Court | Exchequer |
English Reports Citation: 151 E.R. 179
EXCH. OF PLEAS.
S. C. 7 Dowl. P. C. 493; 3 Jur. 872.
hopkins v. salembler. Exch. of Fleas. 183'J.-Where a defendant has been arrested by a Judge's order, under 1 & '2 Viet. c. 110, s. 3, obtained upon insufficient affidavits, the application for his discharge should be by motion to set aside the Judge's order, not the capias. [S. C. 7 Dowl. P. C. 493; 3 Jur. 872.] This waa an action by the indorsee against the drawer of a bill of exchange, and in which the defendant was arrested by a capias issued under a Judge's order, made in pursuance of the 1 & 2 Viet. c. 110, s. 3. One of the affidavits on which the order was obtained stated that "the defendant was justly and truly indebted to the deponent in the principal sum of 4891. 13s., as indorsee of a bill of exchange bearing date &c., and drawn by the defendant upon and accepted by F. S., for the payment 180 PUTNEY V. TRING SM. &W. 424. of 4891. 13s. four months after the date thereof, and by the defendant indorsed to the plaintiff, and which said bill is still due and unpaid." There was another affidavit, to the effect that the defendant had said that he would not pay the bill, and that, rather than, do so, he would go and travel in Scotland or Ireland. The defendant having given bail, Theobald, on a former day, obtained a rule to shew cause why the capias should 110$ be set aside, arid the bail-bond delivered up to be cancelled, on the ground that the affidavits [were insufficient, and also upon affidavits denying that the defendant was about to leave the country. iPlatt shewed cause, and urged that the affidavits were sufficient. [Lord Abinger, C. B. They are clearly insuffi-[424]-cient. The first does not aver any presentment to, or dishonour by, the acceptor; and it is quite consistent with it that the bill was never presented at all. The other affidavit...
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