Kinning v Buchanan
| Jurisdiction | England & Wales |
| Judgment Date | 25 June 1849 |
| Date | 25 June 1849 |
| Court | Court of Common Pleas |
English Reports Citation: 137 E.R. 513
IN THE COURT OF COMMON PLEAS
S. C. 7 D. & L. 169.
[271] kinning v. buchanan. June 25, 1849. [S. C. 7 D. & L. 169.] The judge of an inferior court of record who has made an order simpliciter for the payment of a debt by instalments, cannot, upon non-payment, issue his warrant for the imprisonment of the debtor, without giving him an opportunity of being heard as to the cause of such non-payment.-Where, therefore, in trespass by A. against B. for false imprisonment, B. pleaded that J. S. recovered a judgment against A., (a) No rules or regulations have ever been framed under this act. C. P. xv.-17 514 KINKING V. BTJCHANAN 8 C. B. 272. in the sheriffs' court, London,-that A. was summoned, and appeared before the judge of that court, who ordered the sum recovered to be paid by instalments,-that the first instalment was demanded and not paid,-that the judge duly, by warrant under his hand and seal, according to 8 & 9 Viet. c. 127, ordered the officer of the court to take A., and convey him to prison for 40 days,-and that B., as the attorney of J. S., delivered the warrant to the officer, who took A. Replication, that, by this order, it was not directed that A. should be committed, modo et forma:-Held, that the warrant issued did not support the-plea, which must be taken to aver the existence of a legal warrant. Held also, that the defendant, having acknowledged actual participation in the act of trespass, by pleading in confession and avoidance, could not protect himself, upon this issue, by shewing that he had acted merely as the attorney of J. "S. Trespass. The declaration stated, that the defendant, on the 27th of April, 1847, with force and arms, assaulted the plaintiff, and then seized, &c., and also then imprisoned the plaintiff, and kept and detained him in prison for a long time, to wit, thirty-nine days then following, contrary to law; and that thereby the plaintiff not only suffered great anguish and pain of mind, and was prevented from attending to "his lawful affairs, but was also thereby then greatly exposed and injured in his credit, reputation, and circumstances, and was necessarily subjected and put to divers expenses, amounting, to wit, to 401., in and about endeavouring to obtain, and in obtaining, his liberation from the said imprisonment, &c. The defendant pleaded,-first, not guilty; whereupon issue was joined. Secondly, that, before the said time when, &c., to wit, on the 5th of October, 1846, William Townley levied his certain plaint against the now plaintiff, in the [272] court of our lady the Queen, before Thomas Ghallis, Esq., then being one of the sheriffs of the city of London, in his compter, situate in the parish of St. Giles-without-Cripple-gate, in the:ward of Cripplegate-without, in the same city, and within the jurisdiction of the same court, according to the custom of the said city, for a cause of action personal arising within the jurisdiction of the said court; that such proceedings were thereupon had, thatj afterwards, to wit, on the 5th of December, 1846, at the said court then held before the said sheriff, at the G-uildhall of the said city of London, and within the said city, and within the jurisdiction of the said court, the said William Townley, by the consideration and judgment of the said court, recovered against the now plaintiff, as well a certain debt of 191. 19s. as also 31. 12s. 6d. for his costs of suit, as by the record and proceedings thereof, still remaining in the said court,, appears ; that afterwards, and after the passing of an act of parliament passed in the ninth year of the reign of our lady the now Queen, intituled "An act for the better securing the payment of small debts," and before the said time when, &c., to wit, on the 5th of December, in the year last aforesaid, the (now) plaintiff then being indebted to the said William Townley in a sum not exceeding 201., besides costs of suit, by force of the said judgment, to wit, the sum of 191. 19s., the said William Townley made application, by petition and note in writing according to the form in schedule B. to the said act of parliament annexed, to the said court,-the same being an inferior court of record for the recovery of debts in and for the city of London, and then being held at the Guildhall aforesaid, in the said city, and within the jurisdiction of the said court, and the plaintiff then residing within the jurisdiction of the said court, to wit, within the city of London, and the said court then having a judge who was a barrister-at-law, that is to say, Edward Bullock, Esq., [273] barrister-at-law, then being the judge of the said court,-by which petition and note in writing the said William Townley requested the said court to summon the plaintiff to answer touching the debt due to the said William Townley by the judgment of the 'said court on his the said William Townley's behalf; that thereupon the said court, afterwards, to wit, on the 7th of December, 1846, upon the said application of the said William Townley, granted to the said William Townley a summons according to the form in schedule A. unto the said act of parliament annexed, by which summons the (now) plaintiff was required to appear at the sheriffs court, London,-being the said court,-to be holden at the Guildhall, of the city of London, in the said city, on Saturday, the 12th of December, 1846, at a quarter to ten of the clock in the forenoon of the same day, precisely, to answer such questions as might be put to him touching the not having paid to the said William Townley the sum of 231.11s. 6d., being the amount of the said debt and costs 80. B. 274. KINNING V. BUCHANAN 515 recovered'by the said judgment; that the said William Townley then obtained the Said summons from the said court; that the (now) plaintiff was, afterwards, and before the return of the said summons, to wit, on the said 7th of December, in the year last aforesaid, and within the jurisdiction of the said court, to wit, at London, duly served with the said summons, and summoned thereby; that thereupon, afterwards, and before the said time when, &c., to wit, on the 12th of December, in the year aforesaid, at the time and place appointed by the said summons,-such place being within the jurisdiction of the said court,-the (now) plaintiff appeared before the said court, the same court being then, and there holden before the said Edward Bullock, then being the judge of the said court, and a barrister-at-law as aforesaid, in obedience to the said summons: that the said [274] William Townley also then and there appeared before the said court so holden as aforesaid; that the (now) plaintiff was then and there duly examined by and before the said court so holden as aforesaid, as required by the statute in such case made; and the said court so holden as aforesaid, upon hearing the (now) ? laintiff and the said William Townley, and it appearing to the said court that the iow) plaintiff had the means of paying the said debt and costs by the instalments hereinafter mentioned, did, in pursuance of the statute in such case made, order that the (now) plaintiff should pay the said debt and costs to the said William Townley, in manner following, that is to say, the sum of 21., part thereof, on the 12th of January then next, and the residue thereof by instalments of 21. on the 12th of every subsequent month, until the debt and costs aforesaid should be fully paid, -of which order the (now) plaintiff then and there had notice, and was then and there duly served with a copy thereof, and the original order was at the same time shewn to him; that the (now) plaintiff did not pay the said instalments at such times as the said court ordered, but afterwards, and before the said time when, &c., to wit, on the 12th of January, 1847, the (now) plaintiff made default in the payment of the said instalment of 21. which then became due and payable, although payment of the same was then demanded of him; that, afterwards, and before the said time when, &c., to wit, on the 4th of February, 1847, the said instalment then remaining wholly in arrear and unpaid, it was duly made to appear, and was proved, and did then and there duly appear, to the said court, so being holden as last aforesaid, that the plaintiff had had notice of the said order, and that he had been served with a copy thereof, and the original shewn to him, and that he had not paid the said instalment, and that the same had been duly demanded of him, and was [275] in arrear and unpaid; that thereupon, the said court, so holden as aforesaid, before the said...
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