who was himself a shareholder and recognised the legal existence of the company, and made money by it, ought not to be heard to make such a defence as this.

after all his vouchers might have been lost or delivered up.

Mr. Pemberton, opposed the petition, and insisted that no settlement of accounts ever took place but even admitting that there was a settlement, he cited several cases to shew that a settlement of accounts and a lapse of a longer time than had elapsed in this case, did not protect a solicitor from the opening of the accounts anew, or from the taxing of his bills, (see the late case of Hurlock v. Smith, 14 Leg Obs. 40, and the cases there cited).

His Honour the Vice Chancellor, thought this a very plain case. The deed by which the company was created, was plainly illegal. His Honor referred to passages of the deed, and added that the fair inference to be drawn from its language was, that certain persons were to form a company that might be increased to an unlimited amount, with a right of giving to any person the power of trans- Lord Langdale, M. R., in giving his judg ferring his share to any person whatever, with- ment said, that in this case the petitioner had out any sort of controul, so that the person acted as the attorney for the defendant Mrs. who should assign his share, would assign all Wynne, and for her late husband, from 1822 the liabilities attached to it, and he who should up to the year 1828. The defendant, Mrs. take the share would become subject to them. Wynne, some time since had obtained an That company could not be legal, and it was order for the taxation of the petitioner's bill not only illegal, but a fraud upon the public, of costs, and it was now alleged in support of for such a representation induced the public the present petition, that the accounts between to suppose that a shareholder might work these the parties had been finally settled inJune 1828, imaginary gold mines just as long as he pleased, by Mr. Wynne. In opposition to this, it was and then get rid of all his liabilities by a trans- alleged, first, that no such settlement of acfer of his share. The deed in fact trenched counts had taken place, and, in the next place, upon the prerogative of the Crown, in attempt- if such settlement had taken place, that it ing to invest the body of the shareholders ought not to stand for these reasons, because with the powers of a corporate body, which a Mr. Wynne had acted under a misconception charter alone or an act of parliament could of his interests in the cause, and of the services create. The proneness of the good people of which the petitioner had rendered him, because this country to be gulled by any specious the bill of costs was extravagant in its charges scheme holding out the prospect, however and amount, and because (supposing the settleremote, of gain, was an extraordinary weak-ment to have taken place,) Mr. Wynne must ness, of which there always were speculating persons ready to take advantage. The more such schemes were checked by Courts of justice, the better it would be for her Majesty's subjects.

The demurrers were allowed.-Blundell v. Winsor and others, Sittings at Lincoln's Inn, August 1, 1837.

Rolls Court.

COSTS. -TAXATION.- SETTLEMENT OF AC

COUNTS.

have agreed to that settlement without a knowledge of various bills of costs, relating to the same matter, which had been taxed and paid out of the fund in Court. It would make a great difference with regard to the costs of the petition if the first ground of defence prevailed. He should, therefore, be content to consider whether there had been a settlement of accounts between the parties. In support of the allegation of the settlement, there was only the testimony, on oath, of the petitioner; no settlement was produced, no memorandum, no letters or entries in books. The connection between the parties, as solicitor and client, continued for many years after the time of the alleged settlement, but at no subsequent time had any bill been delivered nor any account or memorandum, proving or admitting settlement of the accounts. Under these circumstances would it be safe for a Court of Equity, to rely upon the allegation of a party interestAn order had been obtained in this cause which would entirely exempt him from any ed, and declare that a fact had taken place for referring the bill of costs of the defendant's investigation of his accounts? Without exsolicitor for taxation. The solicitor now pre-pressing any opinion as to the truth or falsesented a petition, praying that the order for the taxation of his bill might be discharged. The petition stated that the petitioner had for several years acted as the solicitor for Mrs. Anne Wynne, and for her late husband before his death, and that a full settlement of accounts between them had taken place in June 1828.

An allegation on oath by a solicitor, that the accounts between him and his client had been settled several years ago, will not exempt him from the investigation of the accounts, or from the taxation of his bills of costs.

Mr. Temple for the petitioner, after stating the petition, said the settlement of the accounts so long ago was sufficient to protect the petitioner from the taxation of his bill of costs,

hood of the allegation, but merely having
regard to the protection of the suitors, his
be an improper one for the Court to adopt.
lordship would say that such a course would
The petitioner in the two affidavits he had filed,
had not alleged any entries to prove his allega-
he felt himself bound to dismiss the petition
tion, and therefore, under these circumstances,
with costs.

August 1st, 1837.
Hughes v Wynne.-Sittings at the Rolls,

Superior Courts: King's Bench.

King's Bench.
[Before the Four Judges.]

EVIDENCE.-BANKER'S DRAFT.

The 31 Geo. 3, c. 25, s. 19, is incorporated in the 55 Geo. 3, c. 184, s. 8, and therefore a draft on a banker which ought to be stamped is not admissible in evidence, nor good, useful, nor available in law, without such stamp.

The objection to its admissibility may be taken without being pleaded.

Assumpsit to recover the amount of a bankers' cheque, of which the defendant was alleged to be the maker. Plea that the defendant did not make the said cheque or order for the payment of money in manner and form, &c. The parties attended before a Judge on summons, and an order was made that the defendant should admit the handwriting of the cheque, saving all just exceptions. At the trial of the cause before Lord Denman it was objected that the cheque was a post-dated cheque, and therefore ought to have a stamp upon it, pursuant to the provisions of the 31 G. 3, c. 25, s. 19, and the 55 G. 3, c. 184, s. 8, and the schedule annexed to the said act. It was answered that this was an objection which under the new rules ought to have been specially pleaded, and that the defendant not having pleaded it, could not take advantage of it; and that at all events such an objection was inadmissible in consequence of the Judge's order. The learned Judge allowed the verdict to be taken for the plaintiff, reserving to the defendant leave to move to set it aside and have a new trial. A rule for that purpose having accordingly been obtained,

Mr. Channel! now shewed cause. It may be admitted that the only advantage given to the plaintiff by the Judge's order was that he was not compelled to call evidence to prove the hand writing of the party. But if not on that ground certainly on another the defendant was precluded from taking the objection of the want of a stamp. The objection should have been pleaded. And the objection came too late, for the draft had actually been read before the objection was taken. A banker's cheque is not an instrument which necessarily requires a stamp. Some particular circumstances must be proved in order to shew that it ought to be stamped. Those circumstances ought to be specially pleaded. The want of a stamp does

a By the first of these acts it is declared that no bill of exchange, promissory note, or other note, draft, or order, liable to be stamped, as directed by this act, shall be pleaded or given in evidence in any Court, or admitted in any Court to be good, useful, or available, in law or equity, unless the same be duly stamped."

By the 8th sect. of the 55 G. 3, c. 184, all the provisions, &c., of former acts of parliament, relating to any prior duties, are declared to be of full force and effect with respect to the duties thereby granted.

309

not render a document of the kind invalid, but prevents its admissibility in evidence. Unless the instrument is invalid, unless it is altogether void, the objection to it must now be raised on the record. It is not intended to be denied that in a certain class of cases the Court would permit, under a plea similar to the present, the same objection to be taken if it was taken in proper time. As for instance, under a plea that the defendant did not accept a bill of exchange, the Court would require the plaintiff to shew that the acceptance was in writing. Nor would the instrument be admissible without a stamp, if on the face of it a stamp was necessary to its validity. But in both these cases the objection would be apparent. Here the instrument does not require a stamp except under particular circumstances, and the defendant cannot be let in to shew those circumstances under a plea like the present. In Allen v. Reeves, and in Whitwell v. Bennett, a banker's cheque that was post-dated was held to be void, but the doctrine in those cases has been since in effect overruled in the case of Williams v. Jarrett. That case decided that, although by the 55 G. 3, if a bill purporting to be payable at two months from a certain time be issued before the commencement of that period, without payment of a proportionate duty, the maker is liable to a certain penalty, yet a bill so post-dated, and bearing the inferior stamp, corresponding with the purport of the bill, is admissible in evidence, being on the face of it conformable to the schedule. Such a bill therefore, if impeached at all, must be impeached by evidence which can only now be admissible upon a plea specially framed to raise that issue. A draft on a banker is for this purpose in the same situation as a bill of exchange; and may under the authority of the case just cited be read in evidence, except it is impeached by some new fact not apparent on the face of the instrument. That new fact can only be brought to the attention of the Court by pleading.

Mr. Payne in support of the rule. The objection arising from the want of a proper stamp is not a matter of the defendant's defence, but is an informality in the plaintiff's own case. Though this draft was in fact read in evidence before this objection was taken, still the objection must prevail; for if a Judge finds that he has improperly admitted evidence upon his notes, which ought not to be there, he will strike it out. The case of Williams v. Jarrett is distinguishable from the present, for there the instrument had a stamp, and the only question was whether that stamp was sufficient. Allen v. Reeves is the case in point with the present. The authority of that case has never been shaken. It would be difficult to raise this point in pleading, for the statute 31 G. 3. does not say that the instrument shall be void, but that it shall not be available in evidence. [Mr.

b 1 East, 435.

c 2 Bos. & Pul. 559.
d 5 Barn. & Ad. 32.

310

Superior Courts: King's Bench; K. B. Practice Court.

Justice Littledale.-In which it differs somewhat from the Apothecaries' act, for that says that the plaintiff must prove at the trial that he is an apothecary; so that whatever plea is put on the record, he must prove that he fills that character.e] In a recent case of Dawson v. Macdonald an objection of this sort was taken, and the Court of Exchequer said that there was no question but that evidence of this sort was admissible under the general issue. In the very case of a deed having too many words, the defendant need not put that fact on the record, though such an objection will certainly take the opposite party by surprise. Unless this Court means to declare that all objections whatever, whether statutory or not, to the admissibility of an instrument in evidence must be pleaded, the rule here must be made absolute.

Lord Denman, C. J.-It is impossible to distinguish this case from that of Dawson v. Macdonald, which was not decided when this case was tried. Here is an instrument which appears on the face of it not to require a stamp. Then evidence is given which shews there is that about it which makes a stamp necessary. As Mr. Baron Parke observed, in Dawson v. Macdonald, "the consequence is that such an instrument cannot be given in evidence." It is the same here. The instrument itself be valid, but it is by the express provisions of a statute inadmissible in evidence.

may

Mr. Justice Littledale.—I am entirely of the same opinion. The 55 G. 3, embodies the 31 G. 3, and leaves no doubt on the question. I think that this case falls within the rule laid down in the former statute. Then the question is whether it is necessary to plead this objection. I think it is not, for the act is clear against receiving such an instrument in evidence. The issue on these pleadings is that the defendant did not make the draft stated in the declaration. The Judge was bound to say that he could not receive the instrument in evidence. Here, however, it was received; but in a case of this sort, where the objection was positive, and affected the very admissibility of the instrument itself, the Judge would have been justified in striking it out of his notes.

Mr. Justice Patteson.-I do not doubt that the 31 G. 3. is incorporated in the 55 G. 3. The words on the earlier statute are that the instrument shall not be "good, useful, or available." So that under these words, even if given in evidence, it would not be available for the purposes of the plaintiff. In the first instance all drafts are made liable to a stamp duty-then comes the exception. The proof that the draft was within the exception was a matter of extraneous evidence, which ought to have been shewn by the party seeking to recover upon it. That was not made out here, and the objection to the draft was complete. The circumstance of its having been read in evidence before the objection was taken makes

Shearwood v. Hay, 2 Har. & W. 249; and Willis v. Langridge, Id. 250. f 2 Mee. & Wels.

no difference. I think that the rule must be made absolute.

Mr. Justice Williams concurred.

Rule absolute.-Field v. Wood, T. T. 1837. K. B. F. J.

King's Bench Practice Court.

SECURITY FOR COSTS.-PAUPER.

A pauper plaintiff must be dispaupered before he can be compelled to give security for costs, although he may have petitioned for his discharge under the Insolvent Act, and a provisional assignee may have been appointed.

Dowdeswell applied to compel the plaintiff in this case to give security for costs, on the ground of his having given notice of trial, and Court. A provisional assignee had been apsince that filed his petition in the Insolvent pointed, and therefore, it was contended, that the assignees, or those who claimed under the plaintiff should give security for costs. true that the plaintiff was a pauper, but that could make no difference as to the claims which a defendant had with respect to security for costs.

It was

Mansel shewed cause, and contended, that as the cause of action in the present case was the assignees under the act of parliament: no an alleged excessive distress, it did not pass to security for costs. reason therefore, could exist for compelling

entitle the defendant to obtain the security for
Coleridge, J., was of opinion, that in order to
costs which he required, a preliminary applica-
tion for the dispaupering of the plaintiff must be
made. Until he had been dispaupered, the
plaintiff was under the protection of the order
made by a Judge, entitling him to sue in formá
pauperis. The present rule must therefore be
discharged.

1837. K. B. P. C.
Rule discharged.-Mylett v. Hucker, T. T.

HABEAS CORPUS.-DE CONTUMACE

CAPIENDO.

A writ of habeas corpus need not be moved for, where the application is to discharge a defendant out of custady, on the ground of a defect in the writ de contumace capiendo, on which the defendant has been taken.

discharge a defendant out of custody on a writ This was an application by J. W. Smith to de contumace capiendo, on the ground of a defect apparent on the face of it. The only question was, whether as the defendant was in custody on the writ, it was necessary to apply at the same time for a writ of habeas corpus.

necessary to apply for such a writ in order to Coleridge, J., was of opinion, that it was not make the proposed application.

Cause being afterwards shewn in the full Court, his Lordship's view was confirmed as to the necessity of applying for such a writ.

Rule absolute. The King v. Hewitt, T. T. 1837. K. B. P. C.

Superior Courts: King's Bench Practice Court.

ATTORNEY DEFENDANT.-APPEARANCE.

CHANGE OF ATTORNEY.

When an attorney defendant has appeared as attorney, he must be considered as appearing in person, and a plea in the name of another attorney is good, although a rule for change of attorneys has not been obtained, and interlocutory judgment signed as for want of a plea will be set aside. Butt had obtained a rule nisi for setting aside the interlocutory judgment signed in this cause for irregularity. The action was brought to recover a sum of money alleged to be due from the defendant, as one of the directors of the West Cork Mining Company, to the plaintiff for wages. The defendant was sued under the act of parliament by which the company had been incorporated, and which provided that any one of the directors might be sued by any person who had a claim. The defendant was an attorney, and he had entered an appearance as attorney, and not in person; but subsequently, and before the time of pleading, the company made up their minds to defend the action, and they employed a Mr. Green, an attorney, to act on their behalf. An order for a change of attorneys was obtained; but on the defendant pleading, it was by "William Henry Green, his attorney." The plaintiff, however, treated this plea as a nullity, and signed judgment.

Bagley now shewed cause, and contended, that as the defendant had originally a right to appear as attorney, if the other directors chose to defend the action, they could not do so by Mr. Green, without first obtaining a rule for changing the attorney, otherwise the plaintiff would be at a loss to know to whom the subsequent proceedings in the action were to be directed. The case therefore was one which would come within the rule for serving orders for the change of attorney, and the plaintiff was in consequence entitled to the judgment which he had signed.

Butt urged, that the defendant was not entitled to enter an appearance as attorney, but his appearance was in fact an appearance in person, and there was in reality no attorney for the defendant. How then could there be a change of attorneys? The defendant was not personally liable for the costs, but all the directors were equally interested; and in appointing an attorney to defend the action, they were only exercising a right which they possessed.

Williams, J.-The defendant in reality appeared in person, although by some error he appeared as by attorney in his own name, and I think the plaintiff had no right to treat the plea as a nullity. The judgment therefore is clearly irregular, and the present rule must be absolute, with costs. The costs must be paid to the attorney for the directors.

Rule absolute.-Kerrison v. Wellingborough, E. T. 1837. K. B. P. C.

AFFIDAVIT.-COMMISSIONER.

311

The Court will not permit an affidavit to be used which is sworn before a commissioner who acts as the attorney of the defendant before an appearance is entered; but they will require strict proof that he is so acting as the attorney, and evidence of his being so employed at the time of making the objection is not sufficient.

Mansel had obtained a rule for setting aside a notice of declaration for irregularity, against which F. V. Lee shewed cause. He took a preliminary objection to the affidavit on which the rule had been obtained, on the ground of its having been sworn before a commissioner, who was acting as an attorney for the defendant, contrary to the 1 R. G., H. T. 2 W. 4, s. 6. That rule provided that where an agent in town or an attorney in the country was the attorney on record, an affidavit sworn before the attorney in the country, should not be received. Although there was not in the present case any attorney on the record, yet there was an attorney acting for the defendant, and it was before him that the affidavit was sworn. The case was, therefore, within the spirit of the rule.

Mansel, contrà.-The rule of Court applied only to the attorney on the record, and here there was no attorney on the record for the defendant, for no appearance had been entered.

Williams, J., was of opinion that the case came within the spirit and meaning of the rule.

Mansel then submitted that the affidavit on which the objection was founded was insufficient. It swore that the affidavit in question was taken before a commissioner, "who is the attorney for the said defendant in the cause." Although the attorney acting for the defendant at the time this affidavit was sworn might have been the commissioner before whom the first affidavit was taken, yet it did not follow that at that time he was the attorney of the defendant, for the affidavit on which the rule was obtained had been sworn two months before, as appeared from its date. It was necessary that the proof of the facts, on which such an objec tion as the present was taken, should be strict, and the Court would not raise any presumptions to support it.

F.V.Lee urged that quite enough was proved to warrant the presumption that the same attorney, who was now acting for the defendant, had been his attorney at the time of his swearing the affidavit.

Williams, J.-If the plaintiff desires to make this objection, he is bound to shew that the present attorney of the defendant was his attorney at the time of swearing the affidavit. I am of opinion, therefore, that the affidavit may be used.

The rule was eventually made absolute without costs.-Kidd v. Davis, E. T. 1837. K. B. P. C.

Miscellanea.-The Editor's Letter Box.