1822. COLE V. GILL absolute on the terms as prayed; and the only question is, whether it shall be suspended or discharged; and if so, on what terms? The general rule is, that the person who swears last, is entitled to belief; as in all probability truth may be elicited from him. At all events, for the sake of convenience, this rule ought not to be departed from; for if the last swearer may be answered, there would be no end to affidavits. If a party make an application on affidavit, which is fully or satisfactorily answered, it is in the discretion of the Court to discharge the motion with or without costs. Although it has been admitted that the affidavit of the grantor has been in substance answered, still, it is said that there is suspicion enough contained in that of the grantee to induce the Court to direct an issue, in order that the merits of the case may be arrived at. This, however, would apply to other cases than those founded on warrants of attorney. If the affidavit of the grantee, in answer to that of the grantor, be true in substance, it cannot be said that an issue is necessary from the nature of the case. If it were so, it might be required in almost every other instance. It is true, there may be cases where it is necessary to grant an issue; but they must not only be strong in themselves, but so clear, that the Court can entertain no real or substantial doubt. I have no hesitation in saying, that the present cannot be assimilated to cases of that description. The onus of answering the application was thrown on the grantee, and he has broadly and satisfactorily answered the affidavit on which it was founded; and although affidavits might have been made by other parties, it does not appear to me that any new light can be thrown on the subject, even if an issue were directed. Mr. Justice PARK.-I entertain no doubt whatever on this point; and if the present rule were made absolute, every party who has executed a warrant of attorney might apply to the Court to set it aside, on the ground of usury and even if such application were fully and satisfactorily contradicted, they might insist on being entitled to an issue. That, however, is entirely contrary to practice: the motion is founded on the affidavit of the grantor alone, and appears to me to be fully and satisfactorily answered by that of the grantee. I therefore am of opinion, that this rule must be discharged with costs. Mr. Justice BURROUGH.-No Court has ever directed an issue under circumstances similar to the present. The affidavit of the party applying to have the security set aside has been most fully answered by that of the party resisting it; and if he has sworn falsely, the former may have his remedy against him, by indicting him for perjury. If an issue were directed, neither of these parties could be examined; and although it may appear suspicious on what terms the warrant of attorney was given, the answer of the grantee appears to me to be not only satisfactory, but altogether conclusive. Rule discharged with costs (a). (a) But see Edmonson v. Popkin, 1 Bos. & Pul. 270, where the Court set aside a warrant of attorney and judgment given to secure a loan, which was sworn to be usurious, in order to bring the question of usury before a Jury. See also Hindle v. O'Brien, 1 Taunt. 413. 1822. Wednesday, not set aside a release given by one of two plaintiffs to a defendaut after action brought, unless fraud can be clearly Where, there fore, two plaintiffs (as partners) instructed their attorney to proceed to trial to trial in an action brought by them against the defendant for misrepre sentation as to their solvency, FURNIVAL and HARDY v. WESTON. The Court will MR. Serjeant Vaughan applied for a rule calling on the defendant to shew cause, why the release which had been given in evidence at the trial of this cause, might not be set aside, or be delivered up to be cancelled. He founded his motion on affidavits, which stated, that the established action was commenced by both the plaintiffs, who are in partnership as corn-factors, against the defendant, for having falsely represented that they were in insolvent circumstances, in consequence of which their bankers had called upon them for the payment of the balance of an account due to them from the plaintiffs, and refused to make them further advances, and that a commission of bankruptcy was afterwards issued against them. That the cause came on for trial at the last assizes for the and a few days county of Stufford, when a release was given in evidence by the defendant from the plaintiff Hardy, dated on the to the defend- 16th July last, being ten days only before the cause was tried, and which had been given by him to the defendant of, or commu- without the knowledge or concurrence of the plaintiff's attorney, whom he had faithfully promised, a few days before, to procure the attendance of witnesses, in order to proceed with the trial.—The learned Serjeant contended, that the release operated as a fraud between the parties, and was a surprise on the attorney, who had paid the greater part of the costs of the action out of his own pocket, and he referred to the late case of Innell v. Newman (a), where a husband and wife lived separate under a deed, by which he stipulated that she should enjoy, as her separate property, all effects which she might acquire, and that he before the trial, one of them gave a relcase ant, without the knowledge nication with such attorney, fused to inter the Court re fere. (a) 4 Barn. and Ald. 419. would not do any act to impede the operation of that deed; and the wife having, as executrix of J. S., commenced an action on a promissory note against the defendants, in the names of her husband and herself, the husband released the debt, which release was pleaded puis darrien continuance, the Court of King's Bench ordered such plea to be taken off the record, and the release to be given up to be cancelled. So, here, the release given by Hardy was a fraudulent and wrongful act, and ought not to be allowed so as to be available to the defendant. But the Court observed, that there could be no doubt but that one of two plaintiffs might release the action; that unless fraud could be imputed by direct evidence to the defendant, as well as the plaintiff Hardy, they could not interfere; that this case was distinguishable from that of Innell v. Newman, as there, the release given by the husband was most clearly in fraud of the deed of separation. There too, the husband was only named as plaintiff for conformity; and if he had been allowed to release the debt, it would be a fraud on the person having an interest under the will of the wife's testator. The learned Serjeant therefore took nothing by his motion (a). (a) See Arton v. Booth, ante, Vol. IV., 192, where all the previous cases relative to this subject are collected. 1822. FURNIVAL v. WESTON. 1822. Thursday, The rule E. T. requires that all notices shall be given before nine o'clock at night, does not extend to process, which may be served at any hour. 10 Geo. 2, which PRIDDEE V. COOPER. MR. Serjeant Hullock, on a former day in this Term, obtained a rule nisi, that the capius ad respondendum which had been issued in this cause, and all the subsequent proceedings thereon, might be set aside for irregularity; on the ground, that the writ had not been served until half past nine o'clock at night; and he referred to the rule Easter Term, 10 Geo. 2, by which it is ordered, that "all declarations and pleadings shall be delivered, all demands thereof made, and all notices given, before nine o'clock in the evening." Mr. Serjeant Vaughan now shewed cause, and contended, that this case did not fall within that rule: that there was a clear distinction between service of process and service of notices; for that unless the former could be served at any hour, it might deprive the plaintiff of the only opportunity he might have of serving the defend ant. The Court being of opinion that service of process was not within the rule of Court, which extended only to notices, and that the service of the former must be considered in the same light as an arrest, which may made at any time; ordered the rule to be Discharged with costs (a). be (a) See S. P. K. B. Anonymous, 2 Chit. 357. Upton v. Mackenzie, 1 Dow. & Ryl. 172. |