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Requests pleaded his privilege as an attorney, and forced the party to this more expensive proceeding.
Williams Serjt. contrà contended, that notices of this kind were construed strictly, and that a notice of a writ of inquiry to be executed between eleven and two had been held bad (a). He urged also that as writs of inquiry are occafionally executed between four and fix this notice of continuance was not sufficiently certain.
Sed per Eyre Ch. J. (after a reference to the officers, who said that the point had never been ruled, but that all the printed forms of continuances as well as of original notices express both the hour and place) — A more ungracious application never came before the Court. The justice of this verdict is not impeached, and the only question to be considered arises on the fimple ground of a supposed irregularity in not mentioning the hour and place in the notice of continuance. Ungracious as it is, if this supposed irregularity is established on authority or on principle the Defendant must succeed. I am not satisfied however that it is supported by either. Though the printed forms do express the hour and place in the notice of continuance as well as in the original notice, yet the question is how far they are necessary, and what would be the effect of omitting them? Does the omission enable the Plaintiff to chuse his own time and place? If so, the objection would be well founded. I think that if an original notice be given specifying the hour and place as well as the day, and that notice be afterwards continued with an alteration of the day only, the latter will refer to the former and incorporate the hour and place: and that it would be an irregularity in the Plaintiff to execute his writ of inquiry at any other hour or place than those mentioned in the original notice.
Rooke J. I am of the same opinion. Had this application been made on the ground of the writ of inquiry having been executed at a different time and place from those mentioned in the original notice I should have thought it well founded.
Rule discharged with costs
(a) Robinson v. Pbilips, Prae. Reg. 445. Barnes, 296. S.C. Vide etiam Fofer v. Smales, Barnes, 295. Hannaford v. Holman, ibid. Laf v. Denny, Barnes, 302. Pras. Reg. 446. S.C. Le Mark v. New
man, Com. 551. Barnes, 299. S. C. Prac. Reg. 447. S. C. Squire v. Almond, Barnes 297. Arnold v. Squire, Sayer, 181. ljon v. Fowen, 2 Stra. 1142.
1799. STEVENTON, One, &c. v. Watson and Others.
Jan. 26th. THE
He Plaintiff, who was an attorney, having delivered a bill of This Court will
cofts to the Defendants, the latter obtained Lord Kenyon's ings in an action order for referring it to be taxed: before any taxation had taken on an attorney's place the Plaintiff commenced an action upon the bill in this sequent to the court. Le Blanc Serjt. now moved for a rule nisi to stay pro- order of the ceedings in this action, and that the Plaintiff should pay the court for its taxcosts incurred subsequent to Lord Kenyon's order.
ation, but pre
vious to that taxSed per Curiam. If the order for taxation had been made in ation having this Court an attachment might have been granted; but where taken place. an order is made by one of the Judges of the Court of King's Bench, and pending that order the party fues in another court, it is for the Court of King's Bench to enforce the order. We cannot prevent a party from pursuing a remedy to which he is entitled by law unless in so doing he incurs a contempt of this Court.
Le Blanc took nothing by his motion.
hold to bail ftat,
< costs and ex
JENKINS v. Law.
10 Eas, 358. VEPHERD Serjt. obtained a rule to fhew cause why the De- An affidavit to
fendant should not be discharged out of custody on entering ing the Defena common appearance, on the ground of a defect in the affidavit Jant to be into hold to bail, which stated, that the Defendant was indebted debted “ for da
mages awardto the Plaintiff in a certain fum “for damages awarded, and for “ed and for cofts and expences taxed and allowed,” contending, that it did
" pences taxed not appear that the award or taxation were made by competent “ and allowed," authority.
certain; for it Cockell Serjt. this day in thewing cause, urged that if the ori- will be inferred ginal affidavit should be deemed defective, still the Court would that the award
and taxation are allow the Defendant to file a supplemental affidavit.
such as will supEyre Ch. J. I am not satisfied that the original affidavit does port the action. not sufficiently alledge a cause of action. If a Plaintiff swear that a Defendant is indebted to him, " for goods fold and delivered” it is enough, and he need not set out so much of the transaction as will shew that it amounted to a legal fale, for he takes upon himself to say, that such a fale and delivery took place as constitute a cause of action. In the present case I think the word “ awarded” is to be construed in its legal sense, and that the Plaintiff takes upon
himself to say, that an award and taxation have been made upon which a right of action may accrue.
If indeed the Court were not satisfied with the original affidavit, this would be precisely the case in which a supplemental affidavit should be allowed, because it would not in any degree vary the original affidavit, but only explain an ambiguity. Per Curiam,
Dobson v. Sir WM. HERNE Knight and Another She
riff of Middlesex.
The omission of “ and thereupon
CTION on the case by the landlord of certain premises against
A a the said I. S.
the theriff for removing the goods of his tenant under a fi. " complains” in fa. without having previously paid to the Plaintiff three quarters the beginning of a declaration of
of a year's rent then in arrear, according to the provisions of trespass on the 8 Ann. c. 14.8.1. The declaration began thus: “Sir W. H. cafe is no cause of ipecial de
Knight and R. IV. Efq. were attached to answer unto John “ Dobson in a plea of trespass on the case for that whereas the “ said J. D. heretofore to wit on &c. at &c. did demise and let “ to one J. P. Gashiot a certain mefluage" &c. ftating entry and poffeffion by him and the faid J. D. further faith that after“ wards and during the continuance of the faid demise" &c. proceeding to the end in the usual form.
To this there was a special demurrer, assigning for cause “ that it does not appear in or by the said declaration that the “ said John complains by attorney (a) or otherwise against the 66 said Sir W. H. and R. W. of or for the premises therein men“ tioned : and also for that the faid declaration is merely by “ way of recital, and does not contain any positive allegation “ that the faid Sir W. H. and R. W.-committed the faid several
supposed grievances therein mentioned: and also for that “ the said declaration is in other respects uncertain, insufficient, " and informal.”
Joinder in demurrer:
Shepherd Serjt. in support of the demurrer. The whole of this record is a mere recital of a writ having been sued out without any averment that the Plaintiff complains of or alleges any thing against the Defendant. The declaration should have been in this
(a) The omission of the attorney's christian name was held to be error in Hewson's use. Roli. 336.
form. " The Defendant was attached to answer the Plaintiff " in a plea of trespass on the case, and thereupon the plaintiff
complains, &c." I do not mean to contend that it is necessary to state that the Plaintiff complains by attorney, though that is one of the objections ftated in the special demurrer. Before the rule of Court 1654, f. 16. the writ was recited at length in all declarations as is now done in declarations in trespass only; and thereupon the Plaintiff made his allegations. By that rule the Plaintiff is allowed in all cases except trespass to itate the writ shortly: but when he has so done he must make his complaint and allegations in the same manner as was neceffary before the rule referred to. When pleadings were ore tenus the writ being returned and the pasties having appeared, the Counter read the writ to the Court, and then mentioned the time, place, and circumstances contained in it, &c. and the particular damage accrued.
Gilb. C. P.47. Ed. 2. The present cafe stands as if the writ had been read but no count had followed.
Marshall Serjt. contrà was stopped by the Court.
EYRE Ch. J. The Defendant's objection feems to be that there is no declaration : but I do not perceive that cause among the special causes of demurrer; the complaint is that the declaration fails in certain particulars, but the existence of a declaration is admitted. The first objection, viz. that the complaint is not made by attorney has been abandoned. The second objection is, that the declaration is merely by way of recital, and does not contain any allegation of the Defendant having committed the offences there mentioned. As to this I am of opinion that the allegation is positive enough. The Defendant's objections are not sufficient to entitle him to judgment; but as the declaration is drawn in a slovenly manner, and ought not to stand on the records of the Court, I think that the Plaintiff should have leave to amend without costs. ROOKEJ. Of the fame opinion.
Leave given to amend without cofts.
DE GAILLON v. VICTOIRE HAREL L'AIGLE.
petent to the
amount of the
At the execution JUDGMENT having been given against the Defendant in this
case on demurrer (a), the Plaintiff at the execution of a writ quiry after judgment on demur- of inquiry proved that the Defendant had acknowledged the rer it is not com- debt to a certain amount: the Defendant on the other hand Defendant to adduced evidence to thew that she had only acted as agent for
her husband. The under-sheriff directed the jury, that if they thing but the
should be of opinion that the Defendant really acted in the fum in demand. transaction as agent for her husband, they ought to find a ver
diet for the Plaintiff' with only is. damages. This they accordingly did.
Marshall Serjt. having obtained a rule to shew cause why the execution of this writ of inquiry should not be set aside on the ground of improper evidence having been admitted on the part of the Defendant,
Shepherd Serjt. thewed cause and contended that although the Defendant by demurring had admitted fomething to be due, yet that it was competent to her to shew that the particular debt proved by the Plaintiff was contracted by her as agent only, and was not the debt admitted by the demurrer.
But the Court were clearly of opinion that this evidence ought not to have been admitted; that the only question to be decided by the jury was the amount of the debt; and that the question whether the debt were contracted by the Defendant as agent for her husband, or in her separate capacity, must be taken to be determined by the record.
Eyre Ch. J. added: I am not aware that I have ever cone curred in any decision in which it has been held that if a person describing himself as agent for another residing abroad, enter into a contract here, he is not personally liable on the contract. Per Curiam,
Rule abfolute. (6)
(a) Vid. ante 357.
Green v. Hearne, 3 T. R. 301. and Sbepherd (6) Vid. Bevis v. Lindsell, 2 Str. 1149. v. Cherter, 4 T. R.275. Thellufon v. Fletcher, Doug. 315. Ed. 3.