Bail Court.

Attornies are not bound to sue in Courts of Re

quest, although the attachment of privilege is

taken away by the Uniformity of Process Act.

DYER V. LEVI.

THIS was an action of debt brought to recover the sum of 21. 16s. 6d., for business done by an attorney. At the trial before the under-sheriff of Middlesex, on the 6th August last, the jury gave a verdict for the sum of 17. 6s. 4d. It was admitted at the trial that the parties resided, and the cause of action arose, within the jurisdiction of the Court for the recovery of small debts at Blackheath and the neighbourhood. A rule was obtained in Michaelmas Term to show cause why judgment should not be given for the defendant, and why the plaintiff should not pay treble costs to the defendant, pursuant to the several statutes of 5 Geo. 3, c. 8; 10 Geo. 3, c. 29; and 47 Geo. 3, sess. 1, c. iv.; and that in the meantime proceedings be stayed.

Mansel, showed cause. The plaintiff in this case is an attorney, and when attorneys sue for their costs, they are not bound to sue in Courts of Request. This was an action for costs, and in Tidd's Practice (a) it is laid down, that attornies may sue in their own Courts for debts under forty shillings. The Uniformity of Process Act has done away with all proceedings except by summons and capias, but still it appears from the indorsement of the writ itself, and from the declaration, that the plaintiff is an attorney, and is suing for business done by him as such; he, therefore, clearly is not bound by the Acts establishing this Court of Requests.

Steer, contrà.-There is a provision in the statute 5 Geo. 3, c. 8, s. 28, that no attorney is to have privilege in the Court thereby established. That would be a sufficient answer on that point, but there is also another. The Uniformity of Process Act, by doing away with all proceedings by attachment of privilege, has in effect taken away the privilege of attornies to be exempted from the operation of Acts establishing Courts of Request.

There were other points argued, which it is unnecessary to notice.

Cur. adv. vult.

LITTLEDALE, J. this term (Feb. 1st,) gave judgment.-This was a case argued before me last term, in which the plaintiff, an attorney of this Court, sued in the superior Court for his costs, and the cause was tried before the Sheriff on a writ of trial. The plaintiff recovered a verdict for 17. 6s. 4d. - A rule was then obtained to show cause why judgment should not be given for the defendant, and why the plaintiff should not pay treble costs to the defendant, pursuant to the several statutes of 5 Geo. 3, c. 8; 10 Geo. 3, c. 29; and 47 Geo. 3, sess. 1, c. iv. I was prepared to give judgment last term on the question as to the costs, but I took time to reconsider the case. At that time it appeared to me that the plaintiff being an attorney was not protected by his privilege, and that he ought to have sued in the Court of Requests. On further consideration of the subject, and on the authority of a case decided this term in the Court of Exchequer (b), I have, on that part of my judgment, come to a different conclusion, and think that the plaintiff,

(a) P. 80, 9th edit.

(b) Wright v. Skinner, 3 Cromp., Mees., & Rosc., 144.

being an attorney, was not bound to sue in the Court of Requests. I founded my opinion last term on the cases of Tagg v. Madan (a), and Parker v. Vaughan (b), and particularly on the first. In that case the plaintiff, an attorney, had not sued by attachment of privilege, and on an application to plead that the cause of action arose within the jurisdiction of a Court of Requests, it was said by the Court, that as the plaintiff had sued as a common person he was not protected by his privilege. The reason given was, that he had elected to sue as a common person, and had thereby waived his privilege. By the Uniformity of Process Act the attachment of privilege is taken away, but not the privilege itself. Before that statute an attorney might elect to sue as a common person, now the statute having taken away the attachment of privilege, it is not left to the option of an attorney to sue as a common person, or not, as he pleases; but then it was not the intention of the Act altogether to deprive attornies of their privilege of suing in the superior Courts. Therefore, on the authority of the case in the Exchequer, deciding that though the election of suing by attachment of privilege is taken away, yet the privilege itself is not, because an attorney is deprived of that election; this rule must be discharged. This decision puts an end to the other points argued in the case. The clause in the statute 5 Geo. 3, c. 8, that attornies are not to have their privilege in the Court thereby established, applies only to attornies who are defendants, who are served with process of that Court, but does not apply to plaintiffs.

(a) 1 Bos. & Pul, 629.

Rule discharged without costs.

(b) 2 Bos. & Pul. 29.

Bail Court.

DYER

v.

LEVI.

RYAN V. FARNELL.

A Rule had been obtained to show cause why defendant's attorney should not pay him a sum of money. On cause being shown, it was referred to the Master. The Master found that a certain sum was due by the attorney to his client, and made his allocatur accordingly. Upon the Master's report being made, the rule which had been obtained was made absolute. The sum not having been paid,—

Barstow, now moved for a rule absolute, in the first instance, for an attachment against the attorney. He submitted that the case differed from the ordinary case, where an attorney is ordered to pay a sum of money, as the Master's allocatur has been adopted and confirmed by the Court.

that a rule for an attachment for the

non-payment was not absolute in

PATTESON, J.-I think there is no difference, the Master is only an arbi- the first instance. trator, and is put in the place of the Court to ascertain the amount due. I think the parties are in the same situation as if the order had been made in the first instance by the Court (c).

Rule nisi only granted.

(c) Reg. Gen. T. T. 17 G. 3.

Bail Court.

After verdict

for the defendant

and a rule nisi for

a new trial, the

Court will not

to find security

OXENDON V. CROPPER.

WHITEHURST applied for a rule to show cause why the plaintiff should not give security for the costs incurred in this cause. The cause was tried at the last assizes, when a verdict was found for the defendant. In Michaelorder the plaintiff mas term the plaintiff obtained a rule nisi for a new trial, which had not yet come on to be argued. The plaintiff is in insolvent circumstances, and after being in prison for debt for some time got discharged, and is now living at Paris. This is certainly a novel case in which to apply for security for costs; but it is submitted that it is a case in which the Court will grant it. [Patteson, J.—It is certainly a novel case; all the costs have already been incurred except those of the argument on the new trial.]—In the case of Lewis v. Ovens (a), the Court granted a similar application, on a writ of error being brought.

for costs, he being in insolvent circumstances and resident abroad.

On a sham plea

being pleaded, the

Court will not

leave to sign judg

PATTESON, J.-There the writ of error was brought for the purpose of delay, here there is a point of law to be argued. I cannot grant this application, as I must assume there is some doubt as to the verdict being right. I know of no instance where security for costs has been granted, except at the commencement of the proceedings, where the party is resident abroad. Here all the expenses have already been incurred.

Whitehurst, then asked leave to alter his motion, and to confine it to the future costs that would arise on the argument.

PATTESON, J.-I think I cannot grant that application. The only mode of enforcing the rule would be to order that the judgment should be entered up, which would be contrary to the opinion of the Court as at present expressed. Rule refused.

(a) 5 Barn. & Ald. 265.

COWPER and another v. JONES.

was an action of debt on recognizance of bail for one Stenburg. The defendant pleaded, that after judgment had been recovered against Sten

give the plaintiff burg, and before any action accrued to the plaintiff, and before the commencement of the action, that Stenburg became bankrupt, according to the statutes relating to bankrupts.

ment as for want

of a plea.

Mansel, moved for a rule to show cause why the plaintiff should not have leave to sign judgment as for want of a plea. This plea is a mere sham plea, and, if true, is no answer to the action. The object of the defendant is merely to delay the cause. It is a mere trick, and the Court will grant this rule. The case of Miley v. Walls (b) is an authority for this application.

PATTESON, J.-I do not know that I have power to give leave for judgment to be signed as for want of a plea. It was at one time ruled by the (b) 1 Dowl. P. C. 648.

Courts, that when a sham plea was pleaded, the plaintiff should be at liberty to sign judgment as for want of a plea. Afterwards they retraced their steps and refused to allow judgment to be signed except under particular circumstances, as where the defendant is under terms, or where the plea is of such a nature as to require two different modes of trial. But where the plea is only a statement of facts, and it is suggested that they are not an answer to the action, the Court will not give leave to sign judgment as for want of a plea. The defendant must demur, and I hope some rule will be adopted to argue such demurrers early in the term.

Rule refused.

Bail Court.

COWPER

บ.

JONES.

THIS

ARMSTRONG v. MARSHALL.

1. The Court will not set aside ground that the

an award on the

arbitrator has rejected certain

pearing on the

2. In an action

was an action by a surveyor for his expenses in making plans of some mines. The plans were made for the purpose of being given in evidence in an action of trespass between the occupiers of two adjacent mines. The plans, it appeared, were not accurate, which was accounted for by the plaintiff by the state of the air in the mines. They were given in evidence in the action evidence, that reof trespass, and the special jury by which it was tried had the plans by them jection not ap while considering their verdict. This action by the surveyor was referred to face of the award. a barrister to award what was due. At a meeting before the arbitrator, one by a surveyor for of the special jury who had tried the action of trespass, was examined as to making some plans the accuracy of the plans, and he deposed to his own impression that they curate, but which were inaccurate. On being further questioned as to the effect the plans had had been given in on the jury in agreeing on their verdict, it was objected on the part of the plaintiff, that such evidence was inadmissible. The arbitrator rejected the evidence, and ultimately made his award that the defendant should pay the plaintiff 177. 2s. A rule was obtained last Michaelmas Term to show cause why the award should not be set aside, on the ground that the arbitrator had dence. rejected this evidence.

Erle, now showed cause.-This rule cannot be supported, for two reasons. In the first place the objection does not appear on the face of the award, and all the authorities show that it cannot therefore be made. If the Court should think that argument invalid, the rule must yet be discharged; as the arbitrator was right in rejecting the evidence offered. The impressions which the plans created in the minds of the rest of the jury, or their opinions, could not possibly be evidence in the cause. Those impressions and opinions could only be derived from their conversations, which are clearly inadmissible in evidence. It is, moreover, very inexpedient to make such inquiries of the jurors who have tried a cause.

Crowder, contrà.-The question here is, whether a certain line of evidence was improperly rejected by the arbitrator. The arbitrator must have thought that the questions put related to a matter the juror was bound not to reveal. That is clearly an erroneous idea, a special jury not being bound to secresy like a grand jury. The evidence was admissible. It was material to know whether the plans were the foundation of the jury's decision. This was a question not of opinion or of conversation, but of fact. As regarded the juror

which were inac

evidence on the

trial of a cause. Semb. that the ef

fect which they

had on the jury in

agreeing on their verdict is not evi

ARMSTRONG

V.

MARSHALL.

Judgment having been recovered in a debt for 201. debt and 1s. as merely nominal damages,

the defendant is

charge under the

Small Debtors'

examined, it was asking him on what he acted in giving his verdict. As regards the other jurors, their consultation together was a fact, and it was also a fact whether or not they took these plans into their consideration in agreeing on their verdict. These were facts which were admissible in evidence, and this rule must be made absolute. The objection taken, that the rejection of this evidence does not appear on the face of the award, cannot be supported. The case of Wade v. Huntley (a), decides that a mistake in the judgment of the arbitrator is a cause for setting aside an award. [Patteson, J.-The case of Campbell v. Twemlow (b), is conclusive against this application. The judgments of Lord Tenterden and Lord Eldon in the cases of Richardson v. Nourse (c) and Young v. Walter (d) are, however, in favour of this application.

Cur. adv. vult.

PATTESON, J.-The objection here made does not arise on the face of the award, and I think I am bound to decide this case on the authority of that of Campbell v. Twemlow. If parties are allowed to bring on those questions which do not appear on the face of the award, there is no saying to what extent the rule will gradually be broken in upon. It is far better to adhere to the broad principle. Therefore, without deciding the question as to the admissibility of the evidence, I must decide that I am bound by the award, and the rule must be discharged. At the same time I do not wish to have it supposed that the arbitrator was wrong; I think he was right, but this opinion is entirely extra-judicial.

(a) Tidd Prac. 841, 9th edit.
(b) 1 Price, 81.

Rule discharged.

(c) 3 Barn. & Ald. 237.
(d) 9 Ves. jun. 364.

FOGARTY V. SMITH.

R. BAYLY, opposed the discharge of a prisoner under the Small Debtors' Act, 48 Geo. 3, c. 123. The action was in debt in the Borough Court of Plymouth. The judgment was for 201. debt, and 71. 3s. 10d. damages and costs, which last sum is made up of one shilling damages and 71. 2s. 10d. for costs. The question here is, whether this is a judgment for any debt or entitled to his dis- damages not exceeding 201. exclusive of costs, within the meaning of the Act. The point turns on whether the one shilling nominal damages takes the case out of the statute. The Court will look to the judgment alone, from which it is clear the debt and damages exceed 201. The defendant therefore is not entitled to his discharge. No distinction can be drawn between the words "debt or damages” and “debt and damages," but the former words, which are those used in the Act, imply the same as if the latter had been used. The cases of Cooper v. Bliss (e), and Doe v. (f), show that the sum

Act.

for which the party is in execution is that to which the Court will look.

Mansel, contrà.-This case is within the Act, which refers to two species of demands. If the action is in assumpsit, the damages, which is the substantial