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1821.

STAFFORD

97.

HAMSTON,

had jurisdiction, and whether they had or had not, was deemed by Mr. Justice Buller to depend on the fact, whether the party assessed derived benefit, or was likely to derive benefit from the sewing; and it being found as a fact, that the plaintiff might have sustained disadvantage, if the works had not been done, the Commissioners were held to have jurisdiction, and the defendant had judgment accordingly. Master v. Scroggs (a) was also an action of trespass, with a similar justification, and the point decided was, that the Commissioners of Sewers cannot assess a person in respect of drains which communicate with other drains that fall into the great sewer, if the level of his drains is so much above the sewer, that the stopping of it could not possibly throw back the water, so as to injure his premises, and if he be not, and it does not appear that he is likely to be benefited by the works done upon the sewer. In the present

case, the plaintiff offered evidence to prove that she derived no benefit from the sewer in question. The case states, that this was objected to, on the ground that her house was within the district comprised in the decree, and it has been insisted that the presentment and decree were conclusive against her. But this depends on the question of jurisdiction, and the Commissioners could not conclude the party assessed without allowing her an opportunity of being heard. To this point, the two cases I have referred to, fully go; for if the assessment had been conclusive, a case could not have been reserved, finding a fact, so as to raise on such fact the question of jurisdiction for the opinion of the Court, namely, (as in Masters v. Scroggs), that the party received no benefit; which necessarily implies such evidence to have been admissible and received at the trial. These cases are incompatible with the ground of objection made in the present as to the evidence ;-namely, that being within the district, was sufficient: for such was the case in Masters v. Scroggs, in which the assessment was by the Commissioners for the limits of Holborn, and the plaintiff's (a) 3 Maul. & Selw. 447.

house was situate within the division of Holborn. In both these cases, therefore, it was taken for granted that such evidence is admissible, and on the general sense and reason of the thing, it appears equally to be so. In some stage or other, the party who is to bear a burthen, on the ground that he derives, or is likely to derive a benefit, or is in danger of taking some hurt, ought to have an opportunity of shewing that no benefit is or can be derived, nor hurt sustained. This, he has not before the presentment is made, nor while it is making, nor before the decree, nor has he any notice of the presentment or the decree, but by the assessment, and notice of such assessment, or demand under it. The effect, therefore, of rendering the presentment and decree conclusive, would be to decide against the party unheard, and without allowing him any possibility of being heard. On general principles, this would be unjust, but it is enough to state the cases referred to, in order to shew that the assessment is not considered as conclusive. This is fortified by the statute 23 Hen. 8. c. 5. s. 11, by which it is provided, that "if any action of trespass be brought against any person for taking distress, or doing any other act by authority of the commission, or by authority of any laws or ordinances made by virtue of the Commission of Sewers, the defendants in such action shall and may make avowry, cognizance, or justification for the taking of the same distress, or other act, alleging in such avowry or justification that the said distress, trespass, or other act, was done by the authority of the Commissioners, (as by reference to the statute will more fully appear); whereupon the plaintiff shall be admitted to traverse such cause so alleged, and the issue shall be tried by a verdict of twelve men, and not otherwise, as is accustomed in other personal actions; and upon the trial of the issue, the whole matter shall be given by both parties in evidence, according to the truth of the same." The result, therefore, is, that in this case, the rule must be made absolute for a new trial.

Rule absolute.

1821.

STAFFORD

v.

HAMSTON

1821.

Monday,
June 4.

An attorney plaintiff, is not compellable to

JOHNSON, Gent. one, &c. v. BRAY.

MR. Serjt. Hullock, in the last Term, had obtained a

rule nisi, that on payment to the plaintiff of the sum of sue in a Court 17. 11s. 6d., being the amount of a verdict recovered by

of Requests,

unless his pri- him against the defendant on the trial of the cause, the vilege is taken

away by the defendant should be exempt from costs, and the plaintiff express words restrained from suing out execution, and that he might pay

or necessary

the statute establishing

such Court.

ney of this

here by attach

than 51., the Court refused

construction of the defendant the costs of this application. He founded his motion on affidavits, which stated, that the defendant had Where, there- employed the plaintiff as his attorney, to prepare a bond fore, an attor- of indemnity; that this action was brought by the plaintiff Court sued as such attorney, against the defendant, to recover the sum ment of privi- of 21. 16s. 6d. for preparing the bond. That the defendant lege, and recovered less pleaded the general issue, and gave notice of set off. That the cause came on for trial at the last Lincoln assizes, before Lord Chief Baron Richards, when the plaintiff established his claim to the said sum of 27. 16s. 6d., and the defendant, for want of evidence, failed to establish his set off, beyond 17. 5s. for which reason the plaintiff obtained a verdict for 17. 11s. 6d., being the balance due to him. That both the plaintiff and defendant, from the time of the defendant's contracting the debt, to the present application, resided at tion should be Holbeach, in the county of Lincoln, which is situate within brought in any the hundred of Elloe, and that there is a Court of Requests

to restrain him from taking out execution for costs, although the debt for which

he sued was recoverable under the

47 Geo.3. c.37.

enacts,

which enacts, that "if any ac

other Court, for

a debt not ex- there, established by the 15 Geo. 3. c. 64. and enlarged by

ceeding 51. and

virtue of that act, in the

recoverable by the 47 Geo. 3. c. 37. for recovering debts not exceeding the sum of 57., and that the plaintiff might have recovered his demand against the defendant in that Court. The learned lished thereby, Serjeant referred to the case of Baildon v. Pitter (a), where the plaintiff,by

Court of Re

quests estab.

reason of a ver. it was held, that a defendant residing within the jurisdiction diet for him, of the Court of Requests for the city of Bath, was, by the 45 Geo. 3. c. 67., entitled to be sued in that Court for a debt

should not have any costs."

(a) 1 Chit. Rep. 635.

under 10., though the cause of action accrued and the plaintiff resided out of the jurisdiction; and that if such an action were brought elsewhere, the Court, on motion, would deprive the plaintiff of costs.

Mr. Serjt. Vaughan and Mr. Serjt. Pell afterwards shewed cause, on an affidavit of the plaintiff, which stated, that he was one of the attornies of this Court, and as such, had brought an action of assumpsit against the defendant here, by attachment of privilege, to recover his demand from the latter, to whom a bill had been duly delivered before the commencement of the action. They submitted, that he was entitled to do so, as he had sued as an attorney of the Court, and not as a common person, and that he was not deprived of the right of suing here, by the statutes in question. The 15 Geo. 3. is confined to debts not amounting to 40s.; but by the 47 Geo. 3. the jurisdiction of the Court is extended to 5l. The 18th section of that statute contains a clause precisely similar, in terms, to the London Court of Requests Act (a); and although, by the 10th section of that statute, it is provided, that no privilege shall be allowed to exempt attornies from the jurisdiction of the Court constituted by that act, it has yet been held, in the case of Board v. Parker (b), that attornies plaintiffs, were not compellable to sue there for a debt under 57., at the peril of costs. The 47 Geo. 3., however, contains no clause of that description. It has also been tacitly admitted by this Court, in Tagg v. Madan (c), and Parker v. Vaughan (d), that they would not allow a suggestion to be entered on the roll, or give a defendant leave to plead that the cause of action arose within the jurisdiction of a Court of Requests, where the plaintiff was an attorney, unless he waived his privilege as such, by suing as a common person. Here, however, the plaintiff has

(a) 39 & 40 Geo, 3. c. 104. s. 12.- (b) 7 East, 47. & Pul. 629.- (d) 2 Bos. & Pul. 29.

(c) 1 Bos,

1821.

JOHNSON

v.

BRAY,

1821.

JOHNSON

บ.

BRAY.

not waived his privilege, but brought his action as an officer of this Court, which he was clearly entitled to do, unless he had been expressly prohibited by the statutes giving jurisdiction to the Court below.

Mr. Serjt. Hullock, in support of the rule.-It is quite clear, that the plaintiff might have sued the defendant in the Court where the cause of action arose. The case of Board v. Parker is distinguishable from the present, as it turned on the construction of a different act of Parliament, in which attornies, as defendants only, were made subject to the processes of the London Court of Requests; and as by the 10th section of that statute attornies were subjected to the several processes of that Court, it was held that those words standing in that order, must be taken to refer to defendants alone, and then that the maxim applied, that expressio unius est exclusio alterius. Here, however, an attorney, whether plaintiff or defendant, is placed on the same footing. It is necessary to look at the particular words of the statute 47 Geo.3. c. 37, on which the motion is founded, from which it is manifest, that the Legislature did not contemplate that attornies of this Court night sue here, where the cause of action did not exceed 5l. That statute was passed for the general benefit of the subject, and by the third section, additional Commissioners were appointed for putting the 15 Geo. S. c. 64., and the latter act in execution, who were thereby authorized and empowered to "determine all disputes and differences between party and party, for any sum not exceeding 57., in all actions of debt which might arise upon any promissory note or bill of exchange, &c. and among other actions, all causes of assumpsit and insimul computasset, as well as all those founded on a quantum meruit ;" and by the ninth section it is enacted, that "it may be lawful for any person (whether he reside within the jurisdiction of the Court or not), having any debts on the balance of accounts, &c. not exceeding 51. to cause the debtor to be sum

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