Sugars v Concanen
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1839 |
| Date | 01 January 1839 |
| Court | Exchequer |
English Reports Citation: 151 E.R. 14
EXCH. OF PLEAS.
S. C. 2 H. & H. 5; 8 L. J. Ex. 159.
[30] sugaes . concanen. Exch. of Pleas. 1839.-An application to set aside an arrest made on a Judge's order, under the 1 & 2 Viet. c. 110, s. 3, must be made promptly; and as it seems, within the time for putting in bail.- In order to excuse the delay, on the ground of a previous application at chambers, the rule must be drawn up on reading the summons, or it must be shewn by affidavit. [S. C. 2 H. & H. 5; 8 L. J. Ex. 159.] J. W. Smith had obtained a rule to shew cause why the bail-bond executed by the defendant in this case should not be delivered up to be cancelled, on entering a common appearance. It appeared that an order of Coltman, J., had been obtained, for issuing a capias against the defendant, under the 1 & 2 Viet. c. 110, s. 3 ; upon which he was arrested an the 28th of March. The present application was made on the 17th of April, on the ground of an irregularity in the copy of the capias served, which (following the old form) stated the writ to be returnable within four calendar months instead of one. The debt and costs had since been paid. W. H. Watson shewed cause, and objected that the application was too late. The rule that applications of this nature must be made promptly, had not yet been applied in practice to the case of an arrest under the I & 2 Viet. c. II0, s. 3, but there coulcl be no doubt that it equally applied to it in principle. He cited Braslimir v. Russell (4 Bing. N". C. 31 ; 5 Scott, 268), where it was held, that an application to discharge a defendant out of custody for a defect in process, must be made within the ordinary time for putting in bail. The Court...
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