48

If an attorney does business for a client, of a nature to make his bill taxable, and other business clearly not so, he is bound to put the whole into one bill, which bill is taxable; and he cannot bring an action in the first instance, and recover for the non-taxable business, but must deliver his whole bill a month &c. under the statute. Thwaites v. Mackerson, 3 C. & P. 341. [Tenterden]

A rule for an attachment against an attorney, for not delivering a bill of costs, was discharged, the bill having been delivered since the service of the rule, and illness being assigned as a reason for the neglect. Such a rule for an attachment is not absolute in the first instance. Gripper v. Cole, 11 Price, 593.

In an action to recover the amount of an attorney's bill, it appeared that an action had been brought by the defendant's son, for prosecuting which the charges were incurred; but that the defendant employed the plaintiff to commence the suit: but, as the defendant was examined as a witness at the trial on behalf of bis son, and the attorney had prepared a release, in case his competency should be objected to: Held, that the plaintiff could not recover. Williams v. Goodwin, 4 Law J. C.P. 141, s. c. 2 C. & P. 257.

To defeat an action on an attorney's bill, it must appear that the costs in question were occasioned through the plaintiff's inadvertence, and not an error which a cautious man might have fallen into. Montriou v. Jefferys, 2 C. & P. 113, s. c. 1 R. & M. 317. [Abbott]

The words in the 2 Geo. 2. c. 23. s. 23, that "where the bill taxed is less by a sixth part than the bill delivered, the attorney is to pay the costs of the taxation," are imperative. Higgins v. Woolcott,

5 B. & C. 760.

In an action brought by an attorney against two defendants, to recover the amount of his bill of costs, evidence was adduced to shew that he was employed by both, but that one only undertook to pay; and the jury found that one only was liable, and accordingly found a verdict for the defendants: The Court refused to set it aside, or grant a new trial. Hellings v. Jones, 3 Law J. C.P. 164, s. c. 3 Bing. 70, s. c. 10 B, Mo. 360.

Settled accounts between attorney and client may be re opened by bill in equity, as far as relates to the disputed items. Johnes v. Lloyd, 10 Price, 62. But not in the absence of fraud or misconduct, after the expiration of seven years. Ex parte Shipden, 6 D. & R. 939,

A court of equity will direct an issue to try the fairness of charges between attorney and client. Johner v. Lloyd, 10 Price, 62.

A solicitor who defends a suit for a defendant in formd pauperis, can only recover from the plaintiff the money actually paid out of pocket. Philipe v. Baker, 1C & P. 54. [Abbott]

If a solicitor suffers his client to arrange with the adveram party, without making any provisions hu his cuata, he is not entitled to proceed with the aut, fu the purpose of recovering costs from the latter Maris v. Cooke, 13 Price, 473, s. c.

To entitle an attorney to recover foos for procurIng the remontii of a bail bond, the bond must be dused Neig/wrd v. Cireen, a stark, 135. [Abbott]

In an action on an attorney's bill, a witness may be called to prove, that when the attorney's agent went before the Master to have the bill taxed, he admitted that the cause was to be conducted for nothing. Ashford v. Price, 3 Stark. 185. [Abbott]

It is a good defence to an action on an attorney's bill, that he undertook to perform the business on the principle of "No cure, no pay." Tabrum v. Horne, 6 Law J. K.B. 24, s. c. 1 M. & R. 228.

If an attorney undertake to conduct a cause for the costs out of pocket, it being represented to him by his client, that such client took a certain interest under a deed: the attorney cannot charge more than the costs out of pocket, though it should turn out that the cause was lost, because his client did not take the interest under the deed which he stated that he took, it being the duty of the attorney to see the deed before he brought the action. Thwaites v. Mackerson, 3 C. & P. 311. [Tenterden]

A dispute between A B, a married woman, and C D, was referred to arbitration. After the reference had proceeded for some time, an additional matter was submitted by the attornies for the parties. CD's attorney signed the submission in his presence. A B's attornies signed in the presence of C D's attorney, but without any authority from their client. The award was afterwards set aside, and CD's attorney sued him for the expenses of the arbitration: Held, that he had not been guilty of such negligence, in not requiring to see the authority of A B's attornies, as would prevent his recovering the amount of his bill. Edwards v. Cooper, 3 C. & P. 277. [Park]

The Court will not order the defendant not to pay the debt and costs to the plaintiff, in fraud of the plaintiff's attorney, although they may entertain a motion against the defendant, in case he should make such a fraudulent payment. Anonymous, 6 Law J. K.B. 76.

(K) STRIKING OFF THE ROLL.

Conducting a plaint in the county court, is suing out process in a court of law within the meaning of 12 Geo. 2. c. 13, which subjects attornies to be struck off the roll, who commence or prosecute any suit at law or equity whilst in prison. Ex parte Flint, 1 Law J. K.B. 111, s. c. 1 B. & C. 254, s. c. 2 D. & R. 406.

An attorney took into his office a certificated conveyancer, to conduct the business as his clerk. Both of their names appeared on the door. The bills were made out in their joint names, and they divided the profits equally between themselves. The court adjudged, that the attorney had enabled an unqualified person to practise in his name for his own profit, and ordered the attorney to be struck off the roll, and the unqualified person to be imprisoned one month. In re Jackson and Wood, 1 Law J. K.B. 115, s. c. 1 B. & C. 270.

The Court will not strike an attorney off the roll, on account of an irregularity in the service of his clerkship, and misconduct prior to his admission. In re Puge, 1 Law J. C.P. 45, s. c. 1 Bing. 160, s. c. 7 B. Mo. 572.

If an attorney wish to take his name off the roll of the Court of King's Bench, he must swear not only that no proceedings are depending against him for misconduct, but also that he does not expect

that any are about to be instituted. Ex parte Jones, 2 Law J. K.B. 151.

Two attornies having permitted an unqualified person to practise in their names, for their own benefit, were, under the 22 Geo. 2, c. 46, directed by the Court to be struck off the roll, and the unqualified person was sentenced to three months' imprisonment. In re Clark and others, 3 D. & R.

260.

An attorney of the Court of Common Pleas having been found by the Prothonotary to be in contempt for allowing another person to practise in his name, who had not been admitted an attorney, the Court ordered the former to be struck off the roll, and the latter to be committed to the Fleet Prison for three months. In re Isaacson, Clark, and Brookes, 7 B. Mo. 322.

By statute 22 Geo. 2, c. 46, s. 11, it is enacted, "that if any sworn attorney or solicitor shall suffer his name to be used by any unqualified person, to enable him to practise as an attorney or solicitor, and a complaint shall be made thereof in a summary way, and proof made thereof on oath to the satisfaction of the Court, such attorney or solicitor shall be struck off the roll ;" and by the same section it is enacted, "that in that case, and upon such complaint, and proof made as aforesaid, it shall be lawful for the Court to commit such unqualified person, so acting or practising as aforesaid, to the prison of the said Court for any time not exceeding one year:" Held, that a person brought within the latter branch of the section, upon affidavit of his offence, was not entitled to have the witnesses in support of the charge examined vivá voce.

After the matter had been referred in such case, by consent of counsel, to the Master of the Crown Office, who reported the party in contempt, the Court allowed the latter to bring the whole of the case under their own consideration, when brought up to be committed. In re George Jaques, 2 D. & R. 64.

An attorney having died and bequeathed all his property to his widow; his eldest son, for the mixed consideration of the good-will of the business, the advancement of money for carrying it on, and family affection, enters into an agreement with his mother to continue the business, and to account to her for a moiety of the profits during the minority of his younger brothers and sisters. This arrangement is not contrary to the policy of the stat. 22 Geo. 2, c. 46, s. 11. Candler v. Candler, 6 Mad. 141.

An attorney who forms a partnership with an unqualified person is within the provisions of the 22 Geo. 2, c. 46, s. 11. An agreement to share profits constitutes a partnership. Tench v. Roberts, 6 Mad. 145.

It seems that an attorney by signing a fictitious name to a demurrer, purporting to be a barrister's signature, renders himself liable to be struck off the roll. Smith v. Matham, 4 D. & R. 738.

An attorney who had taken out his certificate for the current year, but had neglected to do so for two years preceding, sued by attachment of privilege without being re-admitted. Rule to strike him off the roll was discharged, on payment of costs to the defendant. Cooke v. Leggutt, 3 Law J. K.B. 134.

DIGEST, 1822-1828.

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The Court refused to strike an attorney off the roll, on an affidavit which stated that a person who had lately been his clerk, and who lived at a town eight miles distant from the residence of the attorney, and carried on business at an office, over the door of which was written the attorney's name, but that he only attended on market-days, and then transacted all his business at an inn-on the ground that it should have been shewn that such person. either participated in the profits or carried on business on his own account. In re Garbutt, 9 B. Mo. 157.

If an attorney be struck off the roll of the King's Bench for misconduct, the Court of Common Pleas will make a like order, on an affidavit stating that fact. In re Cope, Law J. C.P. 50.

(L) RE-ADMISSION.

It is sufficient for an attorney, who intends to apply to be re-admitted, to stick up his notice on the outside of the court, on the first day of term, before the full Court sits. Ex parte Davey, 2 Law J. K.B. 209, s. c. 4 D. & R. 646.

If an attorney who has not taken out his certificate ceases to practise during that time, he may be re-admitted without paying any fine, or any arrears of duty. Ex parte Marson, 1 Law J. K.B. 60, s. c. 2 D. & R. 238; Ex parte Cunningham, 1 Bing. 91.

An attorney who has discontinued practising, may, on application to the Court, be re-admitted on paying a nominal fine. Ex parte Maliphant, 7 B. Mo. 495.

An attorney, after being admitted, and after taking out his certificate for many years, discontinued to practise in 1814; in 1817 he recommenced business, having in 1816 taken out a certificate. On application to be re-admitted, the Court ordered him to pay the arrears due from 1814 to 1816, and to pay a nominal fine. Ex parte Sherwood, 7 B. Mo.

493.

A solicitor who had ceased to practise, and in consequence of which had neglected to take out his certificate for one whole year, was permitted to be re-admitted on payment of a small fine only, without paying the arrears of duty. Ex parte Murray, 1 Turner, 56.

The re-admission of an attorney will not be allowed without the payment of a penalty, because it was the neglect of the attorney's agent in London that the certificate had not been taken out. Ex parte Chalker, 1 Law J. K.B. 86.

A person was admitted an attorney in Hilary Term, 1822, and then went into the country as a clerk. Before that time twelvemonth, he sent to an attorney in London to take out his certificate, which was omitted to be done. The Court, upon a motion for his re-admission without paying a fine, would not grant it on the affidavit of the agent, that he had not, in the meantime, been practising on his own account. Hawkin's case, 1 Law J. K.B. 160.

ATTORNMENT.

[See COVENANT, and EJECTMENT.]

The payment of rent by a tenant, in ignorance of the real nature of a claim to the property adverse H

to that of his landlord, cannot be considered an attornment or evidence of a new tenancy, so as to preclude him from shewing that his landlord's title has expired; for before it can be so found, it must be proved that he was acquainted with all the particulars of the landlord's right to the property. Fenner v. Duplock, 2 Law J. Č.P. 102.

A tenant in possession, who attorns to another from whom he did not receive possession, is not precluded from disputing the title of the person to whom he attorned.

Sequestrators under the authority of the Court of Chancery, having no interest in the premises, cannot take an attornment to themselves as sequestrators. Cornish v. Searell, 6 Law J. K.B. 255, s. c. 8 B. & C. 471.

AUCTION AND AUCTIONEER.
(A) RELATIVE TO THE SALE.
(B) OF THE AUCTION DUTY.

(C) RIGHTS, DUTIES, AND LIABILITIES OF THE AUCTIONEER.

[See PRINCIPAL AND AGENT.]

(A) RELATIVE to the Sale.
[See SALE.]

Under a lease that the lessee and his assigns should not use or exercise certain obnoxious trades on the premises, the original lessee underleased the premises, with no proviso against the obnoxious trades provided against by the original lease: Held, that a vendee, under a sale by auction of the premises so underlet, might recover a deposit paid at the sale, if the conditions of sale did not state the proviso in the general lease, that no obnoxious trade should be exercised. Waring v. Hoggart, 1 R. & M. 39. [Abbott]

An auctioneer, after knocking down a lot for 1052, wrote the name of the bidder, who was the agent of the purchaser, opposite to the lot in his catalogue. The conditions of sale had been read over by him to the persons assembled, but they were not attached to the catalogue, nor was any reference made in the latter instrument to the former: The Court held, that a note or memorandum in writing of the bargain had not been signed by the party or his agent, as required by the Statute of Frauds. Kenworthy v. Schofield, 2 Law J. K.B. 175, s. c. 2 B. & C. 945, 8. c. 4 D. & R. 556.

The sheriff sold a vessel and her stores by public suction under an execution. The sails were seized on the premises of a sail-maker. At the time the purchase was completed, in August 1822, the sheriff gave to the purchaser an order on the sail-maker to deliver up the sails: but he refused, alleging that he had a lien upon them for 601. The writ was returnable in Michaelmas term, 1822. In April 1823, the purchaser gave notice to the sheriff that he could not use the vessel without the sails, and should redeem them. The Court held, that the purchaser bad necepted the order by not informing the sheriff, before the return of the writ, that he could not tain the wile. Duncan, Carlton, 2 Law J. K.B. 117,5 6 7 1 & C. 798, #, 6, 4 D), & R, 391,

An auctioneer at a sale, where it was one of the conditions, that a deposit should be paid immediately, and the remainder before the goods were delivered, knocked down a lot, and handed it to the bidder, who looked at it for three or four minutes, and then returned it to the auctioneer, saying that he was mistaken in the price. The auctioneer said he would take it back only to keep for his use: The Court held, that it was a question of fact for the jury, whether, under such circumstances, there had been a delivery to satisfy the Statute of Frauds. Phillips v. Bistolli, 2 Law J. K.B. 116, s. c. 2 B. & C. 511, s. c. 3 D. & R. 822.

A person possessed of a freehold house and premises, sold them by auction, without any mention being made of the fixtures. After the conveyance had been executed, and the vendee put into possession, a demand was made of the articles contained in "an inventory of the fixtures." The buyer refused to deliver up the fixtures demanded, and the vendor brought an action of trover: The Court held that, not only the things fixed to the freehold, but also the articles generally known as fixtures between landlords and tenants, passed by the conveyance; and also that, as the demand and refusal was of fixtures, the plaintiff's action was not supported, because some of the articles detained were not fixtures. Colegrave v. Dias Santos, 1 Law J. K.B. 239, s. c. 2 B. & C. 76, s. c. 3 D. & R. 255.

Where certain articles were put up to sale by auction, and the vendee and a friend of his were the only bidders, the rest of the company being deterred from bidding, in consequence of a statement made by the vendee, that he had been ill-used by the late owner: Held, that under such a sale the vendee did not acquire any property in the articles he had bought. Fuller v. Abrahams, 6 B. Mo. 317, s. c. 3 B. & B. 116.

The plaintiff having sent a horse to a repository to be sold by auction, his groom attended, and bid for the horse on behalf of his master, without its being announced to the company present that he attended for such a purpose: Held, that it was illegal, and avoided the sale against the last bidder, who was to be considered the purchaser, by the conditions of sale. Crowder v. Austin, 4 Law J. C.P. 118, s. c. 3 Bing. 368, s. c. 2 C. & P. 208.

If the owner of an estate put up for sale by auction employ a person to bid for him, the sale is void, although only one such person be employed, and although he is only to bid up to a certain sum, unless it is announced at the time that there is a person bidding for the owner. Wheeler v. Collier, 1 M. & M. 123. [Tenterden]

(B) OF THE AUCTION DUTY.

A sale by auction, by assignees of a bankrupt, of the absolute interest in an estate in fee, which is in mortgage, is not liable to the auction duty. Rer v. Winstanley, 2 Y. & J. 124.

(C) RIGHTS, DUTIES AND LIABILITIES OF THE
AUCTIONEER.

If an auctioneer, on the sale of real estates, conducts himself in such a manner as to render the contract invalid, he cannot, though he knocked down the lot to the highest bidder, and afterwards paid to

the collector of Excise the duty in respect of such sale, and which was, by the express condition of sale, to be paid by the purchaser, maintain an action of special assumpsit against the vendee for the money paid to the collector of duties, he (the defendant) not being a purchaser, and by consequence not liable to duty, especially as the purchaser had not authorized the auctioneer to pay the money on his account.

Semble that under the circumstances the vendor would not be liable to repay the auctioneer; yet quare whether under such a sale the auctioneer did not render himself liable to the duty. Jones v. Nanney, 13 Price, 76.

Where an auctioneer, on the sale of real estates, has been called upon to pay the Excise duty in respect of such sale, he must sue his employer on the implied assumpsit, leaving his employer to sue the vendee under the conditions of sale, if they be, that the duty is to be paid by the purchaser. Jones v. Nanney, 13 Price, 76.

An auctioneer, against whom an action is brought for the recovery of a deposit, is not entitled to a bill of interpleader, if he insists upon retaining either bis commission or the duty. Mitchell v. Hayne, 2 S. & S. 63.

If an auctioneer deviates from the express conditions of sale, he renders himself personally liable to those who sustain an injury by bis improper conduct. Jones v. Nanney, 13 Price, 76.

If A purchase an estate at a sale, and describe himself as an agent for B, and B refuse to complete the contract, and give the vendor's agent notice to that effect, and A afterwards pay the deposit according to the conditions; if the title be defective, A may maintain an action in his own name against the auctioneer, to recover the deposit. Langstroth v. Toulmin, 3 Stark. 145. [Abbott]

A sale by auction being unproductive, another day was fixed for a sale, when two persons who attended upon the former sale, being desirous of making a purchase, were directed to retire to another room, where each was to write two different sums on a piece of paper: and whoever should be found, on giving in these pieces of paper, to have written the largest sum, was to be declared the purchaser. This was held to be a mode of sale by auction within the 19 Geo. 3: and therefore, that the person who had so conducted the sale had incurred the penalty of 1001. thereby imposed, for having acted as an auctioneer without first taking out a licence. Attorney General v. Taylor, 13 Price, 636, s. c. M'Clel. 362.

Where an auctioneer sells an estate by public auction, and receives a deposit, it is his duty, as the agent of both vendor and purchaser, to retain the deposit until the sale is complete, and it is ascertained to whom the money belongs. Where an auctioneer sold an estate by public auction, and received the deposit, and signed an agreement stating that he acknowledged to have sold the estate, and that he agreed to complete the sale; and the sale was not completed on account of a defect of title: Held, that the purchaser might recover the deposit in an action for money had and received against the auctioneer, though the latter had paid it over to the vendor, without any notice from the purchaser not to do so, and before the defect of title was ascertained.

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Gray v. Gutteridge, 6 Law J. K.B. 154, s. c. 1 M. & R. 614, s. c. 3 C. & P. 40.

An auctioneer,-who, as agent for the vendor, agrees to sell an estate upon the terms contained in conditions of sale, by which the purchaser is to pay down immediately a deposit, and the auction duty, and the residue of the purchase-money upon a day certain, on having a good title; and the vendor is to prepare and deliver to the purchaser an abstract of title, is not, upon a failure of the contract, in consequence of a defective title, personally responsible for interest upon the deposit and auction duty, unless the money be demanded, or notice be given to him that the contract has been rescinded. Gaby v. Driver, 2 Y. & J. 549,

AUDITA QUERELA.

A defendant having been taken in execution on a judgment, was discharged upon a commission of bankrupt having issued against him; but the commission being afterwards superseded, he was again taken in execution upon the original judgment: Held, that if there was no fraud in suing out the commission, the defendant was entitled to his discharge; but if there was, that he was not exempt from being so taken a second time in execution. There being strong circumstances of fraud presented to the consideration of the Court, an order for the discharge of the defendant was refused, it being open to him to proceed by writ of audita querela. Baker v. Ridgway, 2 Law J. C.P. 110, s. c. 2 Bing.

41.

A bankrupt obtained his certificate on the 13th of November; the same day a fieri facias was executed on his goods; the Court refused relief on motion, but left the parties to their audita querela. Hanson v. Blakey, 6 Law J. C.P. 70, s. c. 4 Bing. 493, s. c. 1 M. & P. 261.

AUTREFOIS ACQUIT.

The defendant was indicted for a misdemeanor in keeping a common gaming-house. The offence was laid on a day in 2 Geo. 4, and, in the usual words, on divers other days and times between that day and the day of the inquisition.

The defendant pleaded autrefois acquit of an indictment found in 4 Geo. 4, for keeping a gaminghouse, laying the offence on a day in 57 Geo. 3, and on divers other days between that day and the day of the inquisition, against the peace of the King.

The Court held, that the offences in that latter indictment must be taken to be against the peace of Geo. 3, and therefore that the defendant had not been acquitted of offences against the peace of Geo. 4.

The Court also held, that the judgment against a defendant on a demurrer to a plea of autrefois acquit of a misdemeanor, was final. Rex v. Taylor, 3 Law J. K.B. 68, s. c. 3 B. & C. 502, s. c. 5 D. & R. 422.

If, in a plea of autrefois acquit, the prisoner were to insist on two distinct records of acquittal, his plea would be bad for duplicity. But semble, that if he insisted on the wrong, the Court would, in a capital case, take care that he did not suffer by it.

If the prisoner could have been legally convicted on the first indictment, upon any evidence that might

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1. of the affidavit to hold TO BAIL.

(A) BY WHOM AND HOW MADE.

The mere conviction for a conspiracy does not render the party incompetent to make an affidavit to hold to bail. Park v. Strockley, 4 D. & R. 144.

It cannot be objected to an affidavit to hold to bail, that it is sworn by a deponent, a third person, who does not shew himself to be in any way connected with the creditor, or to have any means of knowing of the existence of the debt. Lee v. Sellwood, 9 Price, 322.

The Court will not, under any circumstances, relax the rule, that the deponent, in an affidavit to hold to bail, should insert therein his true place of

abode. Collins v. Goodyer, 2 Law J. K.B. 113, s. c. 2 B. & C. 563, s. c. 4 D. & R. 44.

In an affidavit to hold to bail, the plaintiff was described as A B, No. 31, Tottenham-court-road, gentleman; on inquiry being made, it was ascer tained that the plaintiff did not reside there, but had merely taken an apartment, and that he had never slept there. On an application by the defendant to cancel the bail-bond, on the ground, that the plaintiff's true place of abode and description had been misstated in the affidavit of debt;-the Court refused to interfere, as the defendant had not sworn that he did not know who the plaintiff was, or that he was not indebted to him. Brown v. Moore, 5 Law J. C.P. 151, s. c. 4 Bing. 148.

An affidavit of debt by a bankrupt, stating that the defendant was indebted to him at the time of suing out the commission, and still was, as he verily believed, to his assignees, is insufficient, as the assignees should have joined. Tucker v. Francis, 5 Law J. C.P. 127, s. c. 4 Bing. 142.

In debt on bond by the obligee against the obligor (for the benefit of an assignee), the affidavit was made jointly by the plaintiff and the assignee, the former stating, that a certain sum was due on the bond, and that he had assigned his interest therein to the latter, and the assignee stating that the sum due on the bond remained unpaid and due to him as such assignee: Held good. Fairman v. Farqu harson, 6 Law J. C.P. 49, s. c. 1 M. & P. 179.

(B) BEFORE WHOM sworn.

By the act 12 Geo. 1, c. 19, s. 2, it is provided, that, before arrest by an inferior court, an affidavit of debt shall be made before the officer who issues the process, or his deputy: Held, that the deputy must be appointed for issuing process, and not merely for taking affidavits. Rogers v. Jones, 7 B. & C. 86.

(C) FORM AND REQUISITES OF.

An affidavit to hold to bail on a bond, must shew that the debt is due and payable at the time of the arrest. Smith v. Kendal, 7 D. & R. 232.

Where an affidavit to hold to bail stated, "that the defendant is indebted to the plaintiff in the sum of 1000l., upon and by virtue of a certain memorandum in writing, bearing date, &c., and signed by the defendant, whereby he promised plaintiff, that when he returned in the month of March or April, then next, he would marry her, or pay her the sum of 1000l.:" Held insufficient, because it did not shew mutual consideration on the part of the plaintiff, to sustain the defendant's promise. Macpherson v. Lovie, 1 Law J. K.B. 14, s. c. 1 B. & C. 118, s. c. 2 D. & R. 69.

An affidavit of debt, stating that A B, C D, E F, and G H, were indebted to the plaintiff, on a bill of exchange, (accepted in the name and firm of A B & Co.) by the four or one of them, is insufficient and uncertain. Hamer v. Ashby, 3 Law J. C.P. 144, s. c. 10 B. Mo. 323.

An affidavit of debt stating that the defendant is indebted to the plaintiff in a certain sum, for the difference of prices of foreign stock on certain days, is insufficient. Poole's case, 1 Law J. K.B. 30.

A debt, incurred in Holland, had been assigned to the plaintiff, who, in his affidavit, swore, that