1866. BARTLETT V. STINTON. Friday, April 20. Where a summons to set aside an irregular execution asks for the costs of Practice. the application, the Defendant submits himself to the discretion of the Setting aside judge and, in granting the application, the judge may impose as a condition, which the Court will not rescind, that the Defendant shall bring no action. THIS HIS was an application on behalf of the Defendant to rescind part of an order made by Willes, J., directing that he should bring no action. On the 28th February the Defendant had been served with a writ of summons issued on that day, which was specially indorsed in the form contained in Sched. A., No. 4, of the Common Law Procedure Act, 1852 (15 & 16 Vict. c. 76). The last day for appearance according to the exigency of the writ was the 7th March; but the Defendant did not appear, and on the 9th March the Plaintiff duly signed final judgment for non-appearance. Stat. 15 & 16 Vict. c. 76, s. 27, enacts that "the Plaintiff may upon such judgment issue execution at the expiration of eight days from the last day for appearance, and not before.". The Plaintiff, however, issued a fi. fa. on the 10th March, and on the same day the sheriff levied for the amount of debt and costs, and left a man in possession. On the same day the Defendant took out a summons calling on the Plaintiff to show cause why "the writ of fi. fa. and all subsequent proceedings thereon should not be set aside with costs of and incident to this application on the ground of irregularity, the point being that the Plaintiff's execution was premature, inasmuch as he was not authorized to issue execution until eight days after the last day for appearance." The summons was heard at Chambers by Willes, J., on the 12th March, who granted the application with costs; irregular execution on terms of bringing no 1866. BARTLETT v. STINTON. but, notwithstanding that the Defendant's counsel protested against the term being imposed, made it a part of the order that the Defendant should bring no action, and indorsed upon the summons "Order-No action." It did not appear, however, that the Defendant's counsel had offered to waive that part of the summons which asked for costs. The order of the learned judge was not drawn up; but the debt and costs were paid on the 16th March, and the sheriff went out of possession. Kenealy in support of the application.-The Defendant's counsel protested against the Defendant being restrained from bringing an action, and the learned judge had no authority to impose the term against his consent. The order has not been drawn up or acted upon, and though the sheriff has withdrawn, it was only upon being paid the debt and costs, for his own security. Cash v. Wells (a) shows that an application for setting aside a judgment, as against good faith, is ex debito justitia, and the Court will not impose on the Defendant as a condition for setting it aside, that he bring no action. The execution here was grossly irregular, and it was only ex debito justitiæ and no favour to the Defendant to set it aside. The Defendant may have suffered serious damage and, though the learned judge could not have known the circumstances, this order precluding the Defendant from his remedy was made without inquiry into them. ERLE, C. J. The ground upon which you ask us to rescind the part of the order in question is that the application to the learned judge was a demand for that which was due ex debito justitiæ, and therefore that he had no discretion in the matter; but we are all of opinion that this rule ought not to be granted, upon the principle that the summons having asked for costs, which were in the dis(a) 1 B. & Ad. 375. cretion of the judge, and he having made the order with costs, it is not competent to the Defendant, after submitting himself to the discretion of the judge, to object to the way in which he has exercised it. BYLES, KEATING and SMITH, JJ., concurred. Rule refused. 1866. BARTLETT บ. STINTON. HARRISON V. SEYMOUR, Alteration of contract with out surety's Monday, April 23. The Plaintiff entered into an agreement with one S. for the purchase from Principal and him of a new and incomplete ship called the Devonport, for which the surety. Plaintiff was to pay a sum of money and transfer to S. an old ship Bond condicalled the Lord Dalhousie, and it was agreed that S. should repair, re- tioned for the class the latter ship, and mortgage her to the Plaintiff for a sum of money, which the Plaintiff agreed to advance on the Devonport being distinct matters. performance of delivered over to him completed. The Defendant thereupon gave the Plaintiff his bond, which, after reciting the agreement, was conditioned to be void if S. should forthwith, at his own expense, repair the Lord Dalhousie, so that she should be entitled according to the rules of Lloyd's Registry, to be classed eight years A 1, and if she should within three calendar months be classed eight years A 1 at Lloyd's, and if S. should at his own expense, within two weeks after the arrival of the Devonport in the port of London, do and supply such things as according to the contract remained to be done upon the settlement for that ship. Afterwards the Plaintiff and S., and another, without the consent of the Defendant, entered into a second agreement, containing, amongst other provisions affecting the Devonport, one by which the time, within which the ship under the original agreement was to be completed, was shortened, and she was to be finished in a more expensive manner. Held: 1. That the stipulations contained in the condition of the bond in THIS HIS was an action brought against the Defendant as surety. The Plaintiff having demurred to one of the pleas, and the issues of fact raised by that and the other pleas having been tried, the demurrer was ordered to be argued at the same time that cause was shown against a rule to enter a verdict for the Defendant. Declaration :-That the Defendant by his bond, bearing consent. 1866. HARRISON บ. SEYMOUR. date the 29th of March, A.D. 1865, became bound to the Plaintiff in the sum of 6,000l., to be paid by the Defendant to the Plaintiff, subject to a condition thereunder written whereby, after reciting that by agreement between the Plaintiff of the one part and J. Smurthwaite of the other part, the Plaintiff agreed to purchase a ship, called the Devonport, from J. Smurthwaite, and the price for such ship was the transfer by the Plaintiff to J. Smurthwaite of a ship of the Plaintiff's called the Lord Dalhousie, and the payment to J. Smurthwaite of a sum of money, and that by the agreement the Plaintiff agreed, upon the delivery to him of the ship Devonport, to lend to J. Smurthwaite 6,000l. on mortgage of the ship Lord Dalhousie, and J. Smurthwaite agreed that he would, at his own expense, repair and restore the ship Lord Dalhousie so as to class, and to class, her eight years A 1 at Lloyd's, and also agreed, as an additional security that he would forthwith so repair and restore the ship, to give a satisfactory security to the Plaintiff by the Defendant; and that it was thereby further agreed that the Plaintiff should have the option of settling for the ship Devonport, whether complete or not, at any time after a week from the date of the agreement, and that anything then remaining to be done and supplied to the ship, according to the contract and the specification therein mentioned, should be done and supplied in London, by and at the expense of J. Smurthwaite, within two weeks after the ship's arrival in London, and that J. Smurthwaite thereby agreed to give the Plaintiff a satisfactory guarantee by the Defendant to that effect; and after further reciting that the Defendant had agreed to enter into the bond with such defeasance as thereinafter contained, it was conditioned and provided that if J. Smurthwaite should forthwith, at his own expense, restore and repair the ship Lord Dalhousie, so that she should be entitled, according to the rules of Lloyd's Registry, to be classed eight years A 1, and if the ship should, within three calendar months from the date of the bond, be classed eight years A 1 at Lloyd's, and if J. Smurthwaite should, at his own expense, within two weeks after the arrival of the ship Devonport in the port of London, do and supply all such matters and things as, according to the contract, and the specification therein mentioned, should remain to be done and supplied upon the settlement for the ship Devonport as above mentioned, then the bond should be void, but otherwise should be and remain in full force and virtue. The breaches assigned were, 1st, that J. Smurthwaite did not forthwith, at his own expense, restore and repair the ship Lord Dalhousie, so that she should be or was entitled, according to the rules of Lloyd's Registry, to be classed eight years A 1, but therein made default, contrary to the terms of the condition. 2ndly, that the ship Lord Dalhousie was not, within three calendar months from the date of the said bond (which period had elapsed before action brought), classed eight years A 1 at Lloyd's. And, 3rdly, that although the ship Devonport arrived in the port of London, and although, upon the settlement for the ship as aforesaid there remained, according to the contract, and the specification therein mentioned, divers matters and articles to be done and supplied by J. Smurthwaite, yet he did not, at his own expense, within two weeks after the arrival of the ship Devonport in the port of London (which period had elapsed before action brought), do and supply all such matters and things, or any of them, but therein failed and made default, contrary to the terms of the condition. The Defendant, by his first plea, traversed the breaches alleged, and, for a fourth plea, pleaded for defence on equitable grounds, that he entered into the bond and condition in the declaration mentioned as surety only for J. Smurthwaite, and that afterwards, and before the arrival of the ship Devonport in the port of London, and 1866. HARRISON v. SEYMOUR. |