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Mr. Justice PARK and Mr. Justice BURROUGH concurred.
Mr. Justice RICHARDSON.-The trustees can know nothing of the original transaction between the parties. Besides, the annuity was granted ten years since; and the application rests solely on a statement, that it appears from the books of Howard and Gibbs that the consideration money did not belong to the plaintiff. That does not appear to me to be a sufficient ground for setting aside the annuity.
The learned Serjeant therefore took nothing by his motion.
The Coturt re- Mr. Serjeant Peake on a former day in this Term had fused to strike an attorney off
obtained a rule nisi, to strike the above named attoraffidavit which ney off the rolls of this Court, on an affidavit, which merely stated stated that the Master of the Court of King's Bench been struck off had reported that he had been struck off the rolls of the rolls of the that Court in 1816. Court of King's Bench. It should be shewn for what Mr. Serjeant Vaughan now shewed cause, and subcause he was struck off the mitted that the affidavit was not sufficient, as it did rolls of that Court, vis, for not appear that Mr. Hague was struck off the rolls of contempt, mal- the Court of King's Bench for mal-practice or misconmisdemeanor ; duct; and he read an affidavit of that gentleman, which and an application for that stated, that in 1815, a sum of money was put into purpose cannot his hands by a client, to be paid over to a third person; be made on the last day of that shortly afterwards he met with an accident, in conTerm.
sequence of which one of his arms was amputated ; that he confided his monies to a clerk, who had been guilty of embezzlement, and absconded. That the 1822. Court of King's Bench granted an attachment against In re HAGUE. him, for not having paid over the sum entrusted to him; and that he was ordered to attend personally in that Court. That he was in Wales when the rule for the attachment was granted, and continued there until it was made absolute; and that as he did not appear when called on by the Court, he was afterwards struck off the rolls.
Mr. Serjeant Peake, in support of the rule, relied on the role of Michaelmus Term, 1654 (a), by which it was ordered, that" attornies dismissed by one Court from their practice for misdemeanors, were not, after certificate, to be admitted to practice in another Court, it being contrary to the intent of the law.” And he referred to Smith's Case (6), where this Court granted a similar application.
Lord Chief Justice DALLAS -The affidavit in support of this application does not state that Mr. Hague was struck off the rolls of the Court of King's Bench for mal-practice or misconduct. In Smith's Case it appeared that he was guilty of a misdemeanour, in having instructed his clerk to swear falsely, for the purpose of his justifying as bail : and that appeared on the face of the Master's report. Here, however, it is inerely sworn that Hague was struck off the rolls of that Court in 1816. If he had been unconsciously guilty of a contempt, he might have applied to be restored; but it does not appear that he has so'done. At all events, the affidavit of the applicant is insufficient.
Mr. Justice PARK.-In Smith's Case, this Court re
(a) Section 1 K. B. and C. P. See Tidd's Practice, 7th edit. 68,
-() Ante, Vol. iv. 319. VOL. VII.
1822. quired an affidavit, stating that the original report In ve HAGUE. was in the custody of the Master of the King's Bench;
and that the motion was founded on a 'true' copy of such report. If an attorney be called on to appear in Court, and he is prevented from so doing by illness, is it to be supposed that he would thereby be guilty of so great a misdemeanour as to be incapacitated from practising in future, or being restored, on the disclosure of such fact, if the Court had ordered him to be struck off the rolls for a contempt?
Mr. Justice BURROUGH and Mr. Justice RICHARDson, concurred in thinking that the affidavit in support of the application should have gone further, and stated the reason of Hague's being struck off the rolls of the King's Bench: and the rule was consequently
(a) Mr. Serjeant Peake made a similar application in this case on the last day of the last Term; but the Court rejected it, on the ground that it ought not to have been made on that day.
ELIZABETH MAYNARD 0. BRIGHT.
Where the de. Mr. Sérjeant Lens, on a former day in this Term, fendant filed pleas of several obtained a rule nisi, that the interlocutory judgment, matters, to
which had been signed by the plaintiff in this cause, which was annexed a copy of might be set aside for irregularity ; on affidavits, which and the time for stated that the action was brought for goods sold and pleading having expired before it was made absolute, the plaintiff signed judgment; the Court set it aside, but without costs.
delivered; that the writ was returnable on the 21st April last; and that a declaration was delivered conditionally on the 24th, and a rule to plead in four days was given on the same day ; that the defendant appeared on the 29th, and a plea was demanded on the 30th. That on the 1st May instant, pleas of the general issue, and coverture of the plaintiff, were filed at the Secondary's office; to which was annexed a copy of the rule nisi to plead several matters, which had been taken out on the previous day. That on the said first Ist May, the plaintiff's attorney was served with a copy of the rule nisi to plead several matters, wbich was made absolute on the 3d ; but that interloculory judgment had been signed on the 2d, and a notice of executing a writ of inquiry was given on the same day.
Mr. Serjeant Pell now shewed cause; and submitted that the judgment was strictly regular, as the defendant could not be entitled to plead several matters without leave of the Court; and as he had only obtained a rule to shew cause, it was not a stay of proceedings; and the time for pleading having expired before the defendant moved to make his rule to plead several matters absolute, the plaintiff was entitled to judgment.
But Per Curiam.-The practice of this Court dif, fers from that of the King's Bench; for there a rule to plead several matters is absolute in the first instance. Here, however, the first step is taken by obtaining a rule nisi. On enquiry of the Secondary, we find there has been no decision as to this point; but that he has always considered it to be the practice, that the filing pleas of several matters with the rule
nisi annexed, was sufficient to prevent the plaintiff from signing judgment.
Rule absolute, without costs (a).
(a) See Impey's Practice E. P. 6th edit. 241.
Saturday, May 11th.
HARSANT o. LARKIN.
By the Roches. This was an action brought to recover payment of ter Court of Requests Act,
the sum of gl. 7s. Id. being the balance of an aceount 22 Gen.3.C., 27. amounting to 34l. 5s. Id. for work and labour done and debts under 40s. performed by the plaintiff for the defendant; and a within the ju- particular of the plaintiff's demand was delivered to risdiction of the the defendant's agents under a judge's order, of which bued for in that the following is a copy : Court, and not elsewhere. By the 48 Geo. 3.
sums not ex
Mr. Charles Larkin, c. 51. s. 1, the jurisdiction 1821.
To John Varsant. of the Court is extended to May. To three day's work
0 12 0 ceeding 51.; the Measured work
- 33 13 1 13th section contains an ex
£34 5 1 ception as to any sum, being the balance of an account on demand originally exceeding 5l. : and the 14th section enacts, "that if any action shall be commenced in a superior Court for any debt not exceeding 5h., and recoverable under either of the acts in the Court of Request, the plaintiff shall not be enti. tled to costs, notwithstanding a verdict in his favour.” Where the plaintiff's original demand was 341. 58. Id. for labour and measured work done, within the jurisdiction of the Ruehester Court, which a surveyor, appointed by the plaintiff and defendant, afterwards estimated at 331. 13s. Id., and the plaintiff brought an action in this Court, and the defendant proved payments to the amount of 241. 18s., and the jury estimating the work at 261. only, found for the plaintiff, damages 11. 25. :-Held, that this was not a case in which the defendant was entitled to enter a suggestion on motion to deprive the plaintiff of his costs, on the grounds—first, that he had reasonable cause for litigating his demand ; secondly, that if the defendant had intended to take advantage of the 27 Geo. 3, it should have formed part of his defence at the trial ; and lastly, that it fell within the exception in the 13th section of the 48 Geo. 3, as the balance of an account or demand originally exceeding 51.