1832. The KING against The Sheriffs of YORK. heard where barristers are present. And so this court, in Collier v. Hicks (a), where a party, being an attorney, entered a police office with an informer, for the avowed purpose of acting as his attorney and advocate, held, that the magistrate had a right to exclude him from the room in consequence of his persisting so to act. The by-law, which was made so far back as the reign of Philip and Mary, is not contrary to any rule of law, for attornies of this court have not, by common law, any right to practise in the inferior courts; and by the statute 6 G. 2. c. 27. s. 2., they have not a general, but a limited right only, that is, provided that they be capable and qualified to be admitted according to the usage and custom of such inferior court. The usage and custom of this particular court since the 3 & 4 Ph. & M., has been, that there shall not be more than four attornies admitted to practise in it. Smith, therefore, according to that usage, was not capable and qualified to be admitted. For these reasons, I think, that the rule for a mandamus should be discharged. (a) 2 B. & Ad. 663. Rule discharged. 1832. DOE dem. FISHER against SAUNDERS. TALFOURD had obtained a rule to shew cause why the lessor of the Plaintiff should not be at liberty to proceed on the verdict obtained by him in this case, unless the defendant should consent to a new order of reference, to be drawn up at the expence of the lessor of the plaintiff, on the same terms as had been agreed upon at the assizes. This was an action of ejectment, grounded on an alleged breach of a covenant to repair. At the last Spring assizes at Gloucester, on the 31st of March, the cause came on for trial, and a verdict was taken for the plaintiff, subject to the award of a barrister, who was to determine all matters in difference, and particularly whether or not the premises were in repair on the day of the demise; if they were, the verdict was to be entered for the defendant, with costs; if not, the arbitrator was to direct what repairs should be done, and by what time; and if they were completed in time, the defendant was to have a verdict, but pay the costs; otherwise, the plaintiff to have judgment, and a writ of possession. Immediately after the verdict was taken, attorney for the lessor of the plaintiff left Gloucester, and returned to Bristol, where he resided, having given in the structions to his agents at Gloucester to obtain the order of reference from the associate, and send it to Bristol; and he afterwards wrote to the agents to the same effect. On the 4th of April (the Gloucester assizes not being then over), he left Bristol on business, Thursday, June 7th. A verdict was plaintiff at the taken for the 31st, subject to a reference, the assizes March award to be made on or before the first day of Easter term, April 16th. The attorney for the plaintiff left the assize town for his own resi dence, having first directed his agents at the assize town to obtain the order of reference, and send it him. On the 4th of again written to April, having his agents respecting the order, he left home on busi ness, and re turned on the 14th, when he found that the order of re ference had not been sent, and, in consequence, he was not able to obtain it till the time for making the award had ex pired. The defendant hav ing declined former terms, this Court refused to grant a rule enabling the plaintiff to proceed upon his verdict in default of such submission. 1832. Doɛ dem. FISHER against SAUNDERS. and did not return till the 14th. On the 16th (having found that the order of reference had not been sent over according to his desire), he wrote to the agents at Gloucester, but learned by their answer, received on the 19th, that they had not obtained the order. On the same day he wrote to his agents in London to procure it. He received it on the 28th, and he then found that the award was to have been made on or before the first day of Easter term, April 16th. Immediately on receiving the order of reference, he wrote to the defendant's attorney, stating the facts, and offering to consent to a rule for a new reference; but this was not agreed to. F. Pollock now showed cause, and distinguished this case from Woolley v. Kelly (a), where the reference had gone off without any fault of the plaintiff, the arbitrator having declined to proceed, on finding that he had been consulted in the cause. [Lord Tenterden C. J. Here it was the plaintiff's own fault.] Talfourd contrà, contended, that as the term had followed so closely upon the time of making the order of nisi prius, the lessor of the plaintiff might reasonably claim the assistance of the Court. Per Curiam (b). It was the plaintiff's fault that the arbitration did not proceed; the attorney went away and deserted the cause. The rule must be discharged, and the plaintiff may take the cause down again for trial. Rule discharged. (a) 1 B. & C. 68. See Taylor v. Gregory, 2 B. & Ad. 774. 1832. DOE dem. DAVIES against EYTON. Thursday, A party re tained attornies to prosecute an ejectment for D., and shewed them as his warrant for so doing, a power of attorney purporting to be executed by D. The attornies, believing it genuine, took the cause to the assizes, but were obliged to withdraw the CAMPBELL, in a former term, obtained a rule on behalf of the lessor of the plaintiff, calling on Messrs. Shearman and Freeman, attornies of this Court, to shew cause why they should not pay the defendant 2157. (costs on withdrawing the record in this cause at the assizes), and why they should not deposit in the hands of the Master a power of attorney mentioned in the rule, and supposed to have been forged. It appeared that the attornies had been employed to prosecute this action (which was for the recovery of some freehold property) by a person named Collier, who told them that he was authorised so to retain them by the lessor of the plaintiff, an officer in the army, then in the Mauritius. Collier afterwards left with them a power of attorney, proceedings, purporting to be signed by the lessor of the plaintiff, and to authorise Collier to institute the proceedings on his behalf. The attornies took the cause to the assizes for trial, but, by the advice of counsel on a consultation, withdrew the record, on which occasion the defendant's costs were as above stated. Davies, the lessor of the plaintiff, afterwards returned to England, and denied having given any authority to Collier, or executed any power of attorney; and it was stated in his affidavit and others, in support of the rule, that the signature to this instrument, and the attestation, were forged. The rule had been enlarged to give Messrs. Shearman and Freeman time to find Collier, from whom they expected to gain information respecting his sup 3 E 3 record. D., who had been the plaintiff, and was abroad during these made lessor of disavowed them on his return, alleging the power of attorforgery; and motion by him, ordered the ney to be a the Court, on attornies to pay the costs, D. giving security to repay them the amount if they should suc ceed in an issue which the Court directed, and in which the at tornies were to be plaintiffs and D. defendant, to try whether or not the eject ment was com menced or posed the privity of D. carried on with 5Bae. 848. 1832. Doɛ dem. posed authority to institute proceedings; but he had not been met with. Sir James Scarlett and Kelly now shewed cause on behalf of the attornies, and contended that they were not liable, at least upon this summary application; and they relied upon the dictum of Holt C. J., in an Anonymous case, 1 Salk. 86. (a), that "where an attorney takes upon him to appear, the Court looks no further, but proceeds as if the attorney had sufficient authority, and leaves the party to his action against him." Campbell, for the lessor of the plaintiff, insisted that the attornies were bound to pay the costs, and might have their action against Davies for the amount, if they should, at any time, be in a condition to prove him liable. Whateley, for the defendant (contending, however, that that party was not under the necessity of appearing), cited Robson v. Eaton (b) as an authority to shew that the attornies were liable, even if they had been deceived by a forged power of attorney. The Court (c) said there was strong reason to believe that the action had been carried on without authority, but they would not absolutely exclude Messrs. Shearman and Freeman from proving the contrary if they should be able to do so. They, therefore, ordered that Messrs. Shearman and Freeman should pay the defendant 2157., and costs of his appearance, to be taxed by (c) Lord Tenterden C. J., Littledale, Parke, and Taunton Js. the |