H. T. 1844. not within this exemption. The Sheriff sells them as on an execution Exch. of Pleas. and judgment, and a civil bill decree is a judgment for the benefit of

GENERAL

v.

MALONE.

THE creditors. After some further enumeration, the schedule concludes ATTORNEY- thus:-" All and every the sale and sales by auction of the articles "before exempted from the payment of the duty on auctions (except "such as are herein before expressly allowed to be held by persons "not licensed to sell by auction) shall be held by some auctioneer "duly licensed; and every such auctioneer shall, in respect of all "and every such sale or sales (except as aforesaid), be subject and "liable to all the rules and regulations contained in this Act, except "only as to the payment of the duty on the sales so exempted:" an express and positive direction, that any sale by auction, even of articles exempted from duty, must, except the contrary has been expressly allowed, be held by a licensed auctioneer; and no part of the schedule contains any such allowance as to sales by or under the authority of a Sheriff for the benefit of a creditor. And then follows the 6th G. 4, c. 81, which imposes a penalty on any one not duly licensed selling goods by auction; and upon comparing the two Acts, I have no doubt whatever that this case is abundantly provided for. In the Queen's Bench the case for the Crown was open to an objection, that the information only charged the defendant with carrying on the trade and business of an auctioneer in Ireland, and that the evidence was but of one sale; and that case might perhaps have been decided on the ground, that a bailiff selling goods under the Sheriff did not by that single employment carry on the business of an auctioneer; but the information here goes further; it charges the defendant with having sold by auction: he has pleaded to that, that he sold under the Sheriff, which the 54th of G. 3, in my judgment, says shall not be done but by a licensed auctioneer. On these grounds, therefore, the Court is of opinion that judgment must be given for the Attorney-General; and, as I have already observed, we have come to that opinion with great reluctance, when we consider the judgment pronounced by the Queen's Bench, and the great public inconvenience likely to result from our decision.

Demurrer allowed, and judgment for the Attorney-
General.

H. T. 1844.

Exch.of Pleas.

KEHOE, Administratrix of KEHOE,

บ.

WRIGHT, Administrator of COWER.

Jun. 25.

be sued in this Court in autre

THE declaration in this case stated, that "Mary Anne Kehoe, admi- If an attorney "nistratrix of all and singular the goods and chattels, rights and "credits which were of Thomas Kehoe, late deceased, at the time of "his death, cometh before the Barons of the said Exchequer on the "fifth day of June in this same Term, and complains by bill against "William Henry Wright, one of the attornies of the Pleas Side of "this Honorable Court, administrator, &c., present here in Court "the same day as such attorney in his own proper person, of a plea "of trespass on the case upon promises." The declaration further setting out the common counts and usual breach, concluded "To "the damage of the said plaintiff as such administratrix as aforesaid, "of £80, and therefore she prays relief," omitting the "quo minus" clause.

To this declaration the defendant demurred specially, assigning the following causes: For that it is not stated or shown in or by the said declaration, that the plaintiff is a debtor or accountant to our said Lady the Queen, or has any other character giving her privilege to sue in this Court in this action, nor is it shown that the defendant is a debtor or accountant to our said Lady the Queen, or has any other character rendering him liable to be sued in this Court, in this action; for that although it is shown that the defendant is an attorney of this Court, yet it appears by the said declaration that he is sued for a cause of action in respect of his character as administrator of one John Cower, deceased, and therefore is not, by his said character as attorney, liable to be sued here as such attorney in this action. And also, for that the plaintiff thereby complains against the defendant and prays relief against him as an attorney of this Honorable Court, present here in Court as such attorney in his proper person, although the defendant is thereby sued in an unprivileged capacity as administrator of John Cower, and therefore is not liable to be declared or relieved against as such attorney as aforesaid, &c.

Samuel Ferguson, with whom was Baldwin, in support of the demurrer.

In this case there are two propositions which must be established

droit by bill, no writ having been issued against him, his proper course is, to come in and aside those proceedings: if he appear and plead or demur, he waives his objection.

move to set

If the character of either plaintiff or defendant sufficiently appear on the face of the de

claration to

found the jurisdiction of

this Court as to him, that is sufficient to give this Court jurisdiction in

the action.

What is a sufficient affi

davit of merits

to ground a motion for liberty to plead after a demur

rer overruled.

KEHOE v.

WRIGHT.

H. T. 1844. and maintained; first, that in every action by bill in this Court, it Exch. of Pleas. ought to appear and be shown on the face of the declaration, that the parties, or one of them, have or has some character giving the right or imposing the liability to sue or be sued by bill in the Exchequer; and secondly, which is in the nature of a corollary from the first, that such character must be proper to the party to whom it is so ascribed, and consistent with the capacity in which such party sues or is sued. Now, taking up the second proposition first, it is contended that the character of attorney is not proper to a party sued in autre droit, and that consequently the Court, cannot found its jurisdiction on such incompatible description. This being so, there is no description giving jurisdiction on the face of this declaration; there are additional authorities, besides those relied on in the recent case in this Court, of Knox v. Irwin, bearing on the general question. [BRADY, C. B. Is not the party defendant here an attorney; and does not that give us jurisdiction over him?—No, this being an action against him as administrator, any jurisdiction the Court may have over him in his character as attorney, ceases when he appears before it, not in that character, but in autre droit. The leading case on this subject is Gage's case (a); reported also by Brownlow, p. 47, where it is said: "It was held in the case of Gage "an attorney, who as an administrator brought an action of privi"lege, that his privilege ought not to be allowed; and after a bill was filed against Drury an attorney, as executor, and held that the "bill would not lie; but in both cases the suit should be by original "bill."-[BRADY, C. B. This declaration is filed against an attorney, and if it be filed wrongfully, in consequence of not having served him with a writ, his proper course is to come in and move to set it aside; but when he has appeared, I apprehend he cannot then make this objection.*]-This is not a complaint of being irregularly served, but a demurrer to the declaration for want of some averment to give the Court jurisdiction; for the Court cannot found its jurisdiction on an incompatibility, and the only description here given is incompatible with the defendant's character in the action: Saville, 39, recognised by Comyn's Digest, tit. Courts, D. 2: "so

an executor has no privilege to sue there, if he only alleges the "defendant does not pay, quo minus, &c., he is able to pay his debts "to the King, for he cannot pay it with his testator's money." The same point will be found in Com. Dig. tit. Pleader, C. 17: "If no "time be alleged but after a videlicet, and the time there mentioned be

(a) Hobart's Rep. 177.

See acc. Com. Dig. Attor. B. 17, pl. 39, 40, 43.

KEHOE

ຫ.

WRIGHT.

"repugnant, by reason of which the videlicet shall be rejected, then H. T. 1844. "the declaration is bad for want of time.”—[BRADY, C. B. A writ Exch. of Pleas. may have been served on this defendant, for any thing we know to the contrary.]—It clearly appears from the declaration that there was not.—[BRADY, C. B. No, if the defendant, on the writ being served on him, appeared in person, the declaration might then be in this form. PENNEFATHER, B.-If the defendant here be improperly sued, he should move to set aside the proceedings.]-The question comes to this; should the parties on the face of the declaration so describe themselves as to give the Court jurisdiction? If an action be brought against an attorney sued in autre droit, in the ordinary way by suing out a writ, he cannot plead his privilege: Newton v. Rowland (a); and an attorney cannot be sued in autre droit by virtue of his privilege (b).—[BRADY, C. B. The privilege is given him for his own advantage and that of the suitors, and that privilege appears to attach to him when sued for a debt due by himself or in autre droit. I have before me a declaration filed against an ordinary person, and I cannot discover from it the manner in which a party is brought before the Court; you will find very little difference between it and the present declaration. The ordinary form states, "present here in Court by his attorney;" the declaration before us states, "present here in Court the same day in his own proper person;" from that statement non constat but that a writ was served, and the demurrer does not set out that fact. How can you show from the face of this declaration, that the bill was filed without a writ having issued ?]-It appears plainly from the face of the declaration, "she complains against William Henry Wright, one "of the attorneys of this Court, present here in Court as such "attorney."-[BRADY, C. B. That is only a description of the person.It is not to be presumed from the expression in the declaration, "and therefore she prays relief," that the defendant is therein sued as an attorney. No precedent can be found in which relief has been prayed against an ordinary person; it is not usual in declarations to describe the defendant; he is only styled "A B," whereas here the defendant is styled one of the attorneys;" it must therefore be taken against the pleader, that this defendant is sued as attorney and not as an ordinary person : 2 How. P. E. 246; Com. Dig. Attorney, B. 17. [PENNEFATHER, B. Supposing all this to be good law, here the defendant is found in Court, and it does

66

(a) 1 Ld. Raym. 533.

(6) Will. Exors. 1189; Tidd Prac. 83, 84; Arch. Prac. 887.

KEHOE

V.

WRIGHT.

H. T. 1844. not appear but that he may have had a writ served upon him, stating Exch.of Pleas. his special character as attorney, omitting the quo minus clause; and on that writ the present declaration may have been filed against him. I take it to be law, that if a party be brought into Court generally, you may then declare against him in a special character; but not vice versa. BRADY, C. B. Your demurrer admits the jurisdiction of the Court, because you come in by attorney. It states, "and the "said defendant, by Alexander Boyd his attorney, comes and "defends," &c.]-He could not otherwise come in before the Court and take advantage of the want of jurisdiction. Further as to the necessity of showing some character in the parties suing here by bill, to ground the jurisdiction of the Court.

PENNEFATHER, B.-If the Court is of opinion that the defendant's character sufficiently gives it jurisdiction over him, it is enough; we need not hear any thing of the plaintiff.

Counsel in support of the declaration were not called on by the Court.

BRADY, C. B.

We must take it for granted that a special writ has, in this case, been issued; many very similar will be found noticed in Burton's Exchequer. No case has been cited in which the prayer of relief in a declaration has been held ground of demurrer. If there be any hardship in this case in the mode of proceeding against the defendant, the proper course for him is to come in before the Court and apply to have the declaration set aside.

LEFROY, B.

I confess I have found some difficulty in coming to the conclusion agreed on by the Court.

Demurrer overruled.

Jan. 27.

Ferguson then moved for liberty to plead.

Per Curiam.

It is the unbending practice of this Court not to allow a party whose demurrer has been overruled, to plead without a special application founded on affidavit.

On this day Ferguson moved for liberty to plead, on an affidavit