A Recognizance made to HM, by John Chaplin and Adam Steele, as Sureties for Murdo Young and Jones v Young
| Jurisdiction | England & Wales |
| Judgment Date | 10 June 1863 |
| Date | 10 June 1863 |
| Court | Exchequer |
English Reports Citation: 159 E.R. 113
IN THE COURT OF EXCHEQUER AND EXCHEQUER CHAMBER
S C. 32 L J Ex 254; 9 Jur. (N. S) 726; 11 W. R 1079, 8 L T. 672
[270] in the matter of a recognizance made to her majesty, by john chaplin and adam steele, as sureties for murdo young and tn the matter of jones i young. June 10, 1863.-Upon an application for leave to proceed against sureties upon their recognizance or bond to the Crown under the 11 Geo 4 & 1 Win. 4, c 73, the Court of Exchequer acts judicially, not ministerially, and may refuse the application if, upon the facts before them, they are of opinion that the plaintiff is not entitled to ptoceed against the sureties. Therefore where the plaintiff brought an action for libel against the editor of a newspaper, and a verdict was taken by consent for 20001, subject to the award of an arbitrator, who ordered the verdict to be reduced to 2501. provided the defeadant published an apology in his newspaper within a certain time, and the award was not taken up until long after that time by the plaintiff, who after wards agreed to accept 11001. in satisfaction of damages and costs, of which 6501 was paid by the defendant, who gave his acceptances for the remainder, the Court refuaed to order proceedings to be taken against the sureties upon their recognizance. [S C. 32 L J Ex 254; 9 Jur. (N. S ) 726; 11 W. R 1079, 8 L T. 672 ] D. D Keane had obtained a rule calling upon the Attorney General, John Chaplin, and Adam Steele, to shew cause why a writ or writs of scire facias should not issue out of this Court against the said John Chaplin and Adam Steele for the recovery of the arqount of the above mentioned recogmzaace and costs. The affidavit of the plaintiff, in support of the application, stated he brought an action in the Court of Common Pleas against Murdo Young, the editor, proprietor, and publisher of a newspaper called the Sun, for a libel; which came on for trial at the Surrey Spring Assizes, 1857, when a verdict was entered for the plaintiff for 20001, and costs 40s., subject to the award of an arbitrator, who by his award, dated the 29th June, 1857, ordered that the verdict so entered should stand, but that the amount of damages should be reduced to 2501 ; that the costs of the reference and award should be paid by the defendant on or before the 1st of August then next, and that the defendant should in every copy of his newspaper which should be published on a day therein named, insert an apology; and that if the [271] apology in the award set forth should not be inserted, the verdict so found should stand, and that the damage should not be reduced as by the award was directed. The apology was not and had not been inserted as directed, and the plaintiff caused final judgment to be signed against the defendant for 20001, the amount of the damages, and 40s. costs The defendant afterwards paid the plaintiff 6931, leaving a balance of 13071., or thereabouts, which still remained due, and afterwards the plaintiff caused a writ of fieri facias to be issued, and lodged with the sheriff of the county of Middlesex, against the goods of the defendant, indorsed to levy 13071, and costs of execution and interest, to which the sheriff returned " nulla bona " Pursuant to a memorial the Attorney General, on the 30th of April, 1863, granted his fiat to the plaintiff to enable him to make the present application to the Court. 114 JONES V. YOUNG 2 H ft C 272 The affidavits in answer to the rule stated, that the plaintiff's attorney neglected to take up the award until the 3rd of August, 1858, when for the first time the defendant and his sureties ascertained that the arbitrator had directed that the apology should be inserted in the newspaper published on the 8th of July, 1857, or any other day between that day and the...
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