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1799.

JONES

V.

CHUNE.

Requefts pleaded his privilege as an attorney, and forced the party to this more expenfive proceeding.

Williams Serjt. contrà contended, that notices of this kind were conftrued ftrictly, 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 fufficiently certain.

Sed per EYRE Ch. J. (after a reference to the officers, who faid 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 juftice of this verdict is not impeached, and the only queftion to be confidered arifes on the fimple ground of a fuppofed irregularity in not mentioning the hour and place in the notice of continuance. Ungracious as it is, if this fuppofed irregularity is established on authority or on principle the Defendant muft fucceed. I am not fatisfied however that it is fupported by either. Though the printed forms do exprefs the hour and place in the notice of continuance as well as in the original notice, yet the question is how far they are neceffary, and what would be the effect of omitting them? Does the omiffion enable the Plaintiff to chufe his own time and place? If fo, 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 thofe mentioned in the original notice.

ROOKE J. I am of the fame opinion. Had this application been made on the ground of the writ of inquiry having been executed at a different time and place from thofe mentioned in the original notice I fhould have thought it well founded.

(a) Robinfon v. Philips, Prat. Reg. 445. Barnes, 296. S. C. Vide etiam Fofler v. Smales, Barnes, 295. Hannaford v. Holman, ibid. Laft v. Denny, Barnes, 302. Prae. Reg. 446. S. C. Le Mark v. New

Rule difcharged with cofts

man, Com. 551. Barnes, 299. S. C. Prat. Reg.447. S. C. Squire v. Almond, Barnes 297. Arnold v. Squire, Sayer, 181. Joma v. Fowen, 2 Stra. 1142.

THE

STEVENTON, One, &c. v. WATSON and Others.

HE Plaintiff, who was an attorney, having delivered a bill of cofts to the Defendants, the latter obtained Lord Kenyon's order for referring it to be taxed: before any taxation had taken place the Plaintiff commenced an action upon the bill in this court. Le Blanc Serjt. now moved for a rule nifi to ftay proceedings in this action, and that the Plaintiff fhould pay the cofts incurred fubfequent to Lord Kenyon's order.

Sed per Curiam. If the order for taxation had been made in this Court an attachment might have been granted; but where 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 fo doing he incurs a contempt of this Court.

Le Blanc took nothing by his motion.

1799.

Jan. 26th. This Court will ings in an action not stay proceedon an attorney's bill, brought fubfequent to the dge of another court for its tax

order of the

ation, but previous to that tax

ation having

taken place.

JENKINS v. Law.

Jan. 29th.

10 Eaft, 358. An affidavit to

hold to bail ftating the Defendant to be indebted " for da"mages award"ed and for

SHE
HEPHERD Serjt. obtained a rule to fhew caufe why the De-
fendant fhould not be discharged out of cuftody on entering
a common appearance, on the ground of a defect in the affidavit
to hold to bail, which ftated, that the Defendant was indebted
to the Plaintiff in a certain fum "for damages awarded, and for
cofts and expences taxed and allowed," contending, that it did
not appear that the award or taxation were made by competent"
authority.

Cockell Serjt. this day in fhewing cause, urged that if the original affidavit fhould be deemed defective, ftill the Court would allow the Defendant to file a fupplemental affidavit.

EYRE Ch. J. I am not fatisfied that the original affidavit does not fufficiently alledge a caufe of action. If a Plaintiff fwear that a Defendant is indebted to him, "for goods fold and delivered" it is enough, and he need not fet out fo much of the tranfaction as will fhew that it amounted to a legal fale, for he takes upon himself to say, that fuch a fale and delivery took place as conftitute a cause of action. In the present case I think the word "awarded” is to be conftrued in its legal fenfe, and that the Plaintiff takes upon

himself

"cofts and ex

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pences taxed

and allowed," is fufficiently certain; for it

will be inferred that the award

and taxation are fuch as will fupport the action.

1799.

JENKINS

V.

LAW.

Jan. 29th.

The omiffion of "and thereupon "the faid I. S.

himself to fay, that an award and taxation have been made upon
which a right of action may accrue. If indeed the Court were
not fatisfied with the original affidavit, this would be precisely
the cafe in which a fupplemental affidavit fhould be allowed,
because it would not in any degree vary the original affidavit,
but only explain an ambiguity.
Rule difcharged.

Per Curiam,

DOBSON v. Sir WM. HERNE Knight and Another Sheriff of Middlefex.

A

CTION on the cafe by the landlord of certain premises against the sheriff for removing the goods of his tenant under a fi "complains" in fa. without having previously paid to the Plaintiff three quarters a declaration of of a year's rent then in arrear, according to the provifions of 8 Ann. c. 14.1. The declaration began thus: "Sir W. H.

the beginning of

trefpafs on the cafe is no caufe of special de

murrer.

66

Knight and R. W. Efq. were attached to answer unto John "Dobfon in a plea of trefpafs on the cafe for that whereas the "faid J. D. heretofore to wit on &c. at &c. did demife and let "to one J. P. Gafhiot a certain meffuage" &c. ftating entry and poffeffion by him " and the faid J. D. further faith that after"wards and during the continuance of the faid demife" &c. proceeding to the end in the ufual form.

To this there was a special demurrer, affigning for cause "that it does not appear in or by the faid declaration that the "faid John complains by attorney (a) or otherwife against the "faid Sir W. H. and R. W. of or for the premises therein men❝tioned and alfo for that the faid declaration is merely by "way of recital, and does not contain any pofitive allegation "that the faid Sir W. H. and R. W.-committed the faid feveral "fuppofed grievances therein mentioned: and alfo for that "the faid declaration is in other refpects uncertain, infufficient, "and informal."

Joinder in demurrer.

Shepherd Serjt. in fupport of the demurrer. The whole of this record is a mere recital of a writ having been fued out without any averment that the Plaintiff complains of or alleges any thing against the Defendant. The declaration fhould have been in this

(a) The omiffion of the attorney's chriftian name was held to be error in Hewfen's afe. I Roll. 336.

form.

form. "The Defendant was attached to anfwer 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 neceffary
to ftate that the Plaintiff complains by attorney, though that is
one of the objections ftated in the fpecial demurrer. Before
the rule of Court 1654, S. 16. the writ was recited at length in
all declarations as is now done in declarations in trefpafs only;
and thereupon the Plaintiff made his allegations. By that rule
the Plaintiff is allowed in all cafes except trefpafs to ftate the
writ fhortly: but when he has fo done he muft make his com-
plaint and allegations in the fame manner as was necessary be-
fore the rule referred to. When pleadings were ore tenùs the
writ being returned and the parties having appeared, the Coun-
ter read the writ to the Court, and then mentioned the time,
place, and circumftances contained in it, &c. and the particular
damage accrued.
Gilb. C. P. 47. Ed. 2. The prefent cafe
ftands as if the writ had been read but no count had followed.
Marshall Serjt. contrà was ftopped 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 firft objection, viz. that the complaint is not made by attorney has been abandoned. The fecond 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 pofitive enough. The Defendant's objections are not fufficient to entitle him to judgment; but as the declaration is drawn in a flovenly manner, and ought not to stand on the records of the Court, I think that the Plaintiff should have leave to amend without cofts.

ROOKE J. Of the fame opinion.

Leave given to amend without cofts.

1799.

DOBSON

ย.

HERNE.

1799.

Feb. 5th.

of a writ of in.

petent to the

Defendant to

DE GAILLON V. VICTOIRE HAREL L'AIGLE.

At the execution JUDGMENT having been given against the Defendant in this cafe 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 adduced evidence to fhew that fhe had only acted as agent for. her husband. The under-fheriff directed the jury, that if they fhould be of opinion that the Defendant really acted in the tranfaction as agent for her hufband, they ought to find a verdict for the Plaintiff with only 1s. damages. This they accordingly did.

controvert any thing but the amount of the

fum in demand.

Marshall Serjt. having obtained a rule to fhew caufe why the execution of this writ of inquiry fhould not be fet afide on the ground of improper evidence having been admitted on the part of the Defendant,

Shepherd Serjt. fhewed cause and contended that although the Defendant by demurring had admitted fomething to be due, yet that it was competent to her to fhew 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 queftion 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 concurred in any decifion in which it has been held that if a perfon defcribing himself as agent for another refiding abroad, enter into a contract here, he is not perfonally liable on the contract. Per Curiam, Rule abfolute. (b)

(a) Vid. ante 357

(b) Vid. Bevis v. Lindfell, 2 Str. 1149. Thalluffen v. Fletcher, Doug. 315. Ed. 3.

Green v. Hearne, 3 T. R. 301. and Shepherd v. Charter, 4 T. R. 275.

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