1822.

DARTNALL

V.

MARQUIS

Mr. Justice PARK and Mr. Justice BURROUGH concurred.

WELLESLEY. 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.

Friday, May 10th.

The Court refused to strike

an attorney off the rolls, on an

affidavit which merely stated that he had

been struck off

In re HAGUE.

MR. Serjeant Peake on a former day in this Term had
obtained a rule nisi, to strike the above named attor-
ney off the rolls of this Court, on an affidavit, which
stated that the Master of the Court of King's Bench
had reported that he had been struck off the rolls of

the rolls of the that Court in 1816.
Court of King's
Bench.
should be

It

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, viz. for not appear that Mr. Hague was struck off the rolls of contempt, mal- the Court of King's Bench for mal-practice or misconpractice, or a misdemeanor; duct; and he read an affidavit of that gentleman, which and an applicastated, 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; that shortly afterwards he met with an accident, in consequence of which one of his arms was amputated; that he confided his monies to a clerk, who had been

tion for that

be made on the last day of

Term.

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 rule of Michaelmas 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 (b), 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 merely 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, -(6) Ante, Vol. iv. 319.

1822.

quired an affidavit, stating that the original report In re 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

Discharged (a).

(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.

Friday, May 10th.

ELIZABETH MAYNARD v. BRIGHT.

Where the de- MR. Serjeant Lens, on a former day in this Term,

fendant filed

matters, to

pleas of several obtained a rule nisi, that the interlocutory judgment, which had been signed by the plaintiff in this cause, nexed a copy of might be set aside for irregularity; on affidavits, which

which was an

the rule nisi,

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 1st May, the plaintiff's attorney was served with a copy of the rule nisi to plead several matters, which was made absolute on the 3d; but that interlocutory 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 differs 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

1822.

MAYNARD

v.

BRIGHT.

nisi annexed, was sufficient to prevent the plaintiff from signing judgment.

Rule absolute, without costs (a).

(a) See Impey's Practice C. P. 6th edit. 241.

Saturday, May 11th.

HARSANT V. LARKIN.

v.

By the Roches- THIS was an action brought to recover payment of

ter Court of

Requests Act, 22 Geo. 3. c. 27.

ss. 12 and 32,

debts under 40s.

the sum of 97. 7s. 1d. being the balance of an account amounting to 347. 5s. Id. for work and labour done and performed by the plaintiff for the defendant; and a particular of the plaintiff's demand was delivered to of the the defendant's agents under a judge's order, of which bued for in that the following is a copy:

contracted

within the ju

Court, are to be

Court, and not elsewhere. By the 48 Geo. 3.

an account on demand originally exceeding 57.: and the 14th section enacts, "that if any action shall be commenced in a superior Court for any debt not exceeding 51., and recoverable under either of the acts in the Court of Request, the plaintiff shall not be entitled to costs, notwithstanding a verdict in his favour." Where the plaintiff's original demand was 341. 58. 1d. for labour and measured work done, within the jurisdiction of the Rochester Court, which a surveyor, appointed by the plaintiff and defendant, afterwards estimated at 334. 13s. 1d., 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 17. 2s. :-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 22 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 57.