thereof, namely, on the 14th September, at a meeting" (describing it)" the said rate so agreed upon and made at the said first-mentioned meeting" (12th August) "was duly signed by eight of the vestrymen present." And as to the effect of this second meeting relied upon for the defendants, in the first place, the avowry describes the rate as having been made at the firstmentioned meeting; and next (though this perhaps is rather an objection to the avowry itself) it is not alleged that the meeting of the 12th August was adjourned to the 14th September, but the contrary appears: and lastly, against considering the rate as having been made at the latter meeting, it does not appear that such meeting was held (according to the provisions of the said 69th sect.) "for the purpose of making a rate." It is indeed perfectly clear, both from the allegations in the avowry itself, and the proofs contained in the statement of the case, that the making of the rate was contemplated at the meeting of the 12th August, and not of the 14th September.

We are of opinion, therefore, that from the defect in the avowry, or in the proof of it, or in both, the defendants have failed to establish the fact that a legal rate was duly made, and that our judgment must be for the plaintiff Judgment for plaintiff.

EASTER TERM.

REG. v. THE TOWN COUNCIL OF LICHFIELD.-May 6. C. S., Town Clerk of L., being removed from his Office, made a Claim to Compensation, which was refused, on the Ground that he was dismissed for Misconduct: he then obtained a Mandamus to the Town Council to assess Compensation: there was a Return, which was traversed, and the Issues thereon were found for the Prosecutor. On the Rule nisi having been obtained, it was resolved by the Council, that A. E. (who had been previously retained as Solicitor of the Council and of the Corporation) should be authorised and retained to take Proceedings in Opposition to the Rule; and on the Rule being made absolute, the Return was read by A. E. at a Meeting of the Council, and ordered to be filed. On a Motion for a Certiorari to remove an Order by the Council for the Payment to A. E. of 300l. on Account of Law Expenses:"-Held, First, that the Costs of resisting the Claim of C. S. did not appear to have been improperly incurred. Second, That A. E. was sufficiently authorised to defend

the Return.

Third, that Non-production of the Bill at the Time of making the Order, and Non-delivery of the Bill before the Order, were no Ground for quashing the Order. By Patteson, J.-When an Order of the Council of a Borough for the Payment of a Sum of Money out of the Borough Fund is removed under Sect. 44 of Stat. 7 Will. 4 & 1 Vict. c. 78, Objections not appearing upon the Face of it, may be shewn by Affidavits. Cole had obtained a rule calling upon the council of the city and borough of Lichfield, to shew cause why a writ of certiorari should not issue, directed to them, to remove into this Court an order or resolution made by the council of the said city and borough at a meeting of the said council held on the 16th December last, whereby it was resolved and ordered that the sum of 3007. should be paid to Alfred Eggington their attorney, on account of law expenses," and also an order made by the said council on the same 16th December, signed by three of the members of the said council, and countersigned by the town clerk of the said city and borough, directed to the treasurer of the borough of Lichfield, whereby it was resolved and ordered that the said treasurer should pay the said A. Eggington, 3007., "on account of law expenses." It appeared, from the affidavits in support of the rule, that the costs in question had been incurred in resisting a claim made by Charles

Simpson, the late town clerk, to compensation for the loss of his office: he applied for and obtained a writ of mandamus in November, A. D. 1845, to which there was a return; upon a traverse of that return, several issues were raised which were found for the crown, and ultimately a peremptory mandamus issued. The affidavits stated that the order for the payment of the costs in respect of which the present rule was obtained, had been made in general terms, and that no bill of costs was produced on the occasion of its being so made: and that before making the order the said Alfred Eggington had received 50%. out of the borough fund, on account of law expenses, whereof no bill was produced to the said council, and that the said council did not at any meeting of the said council, retain or employ the said Alfred Eggington, as the attorney of the said council, to defend the said return to the said mandamus, or to defend the said council or any member thereof, for the making of such return, or to act as their attorney to defend them in any prosecution of the said council by the said C. Simpson, in respect thereof, but on the contrary the said Alfred Eggington subsequent to the filing of the said return acted without any authority whatever from the said council in all proceedings connected with the same. The affidavits in answer stated, that on the 20th January, 1844, a meeting of the town council was held (amongst other things) "to consider the report of a committee previously appointed, as to the duties, salaries, emoluments, and perquisites of the present corporate officers, and the manner in which they have discharged their duties, and to make such orders thereon as the council may think fit, either as to the removal, resignation, or continuance in office of any of the present officers, and in case of removal or resigna tion for the appointment of other or others in their place or places," that a report was read which was set out in the affidavits, and which imputed misconduct and misbehaviour to the town clerk: that the said C. Simpson was heard before the council in opposition to the report, whereupon a resolution and order of the said council was proposed and agreed to, removing the said Charles Simpson from his said office of town clerk." That at a meeting of the town council held on the 12th February, 1844, a resolution was entered in the minute book retaining and appointing Alfred Eggington as solicitor of the council, and of the mayor, aldermen, and burgesses, in all matters and suits touching or concerning them, and the common seal of the borough was affixed to a retainer of Alfred Eggington to that effect: that in July, 1844, Charles Simpson served the said Alfred Eggington as town clerk with his claim for compensa tion, amounting to 3,520., and on such claim being laid before the council it was resolved "that the same should be wholly disallowed, the council being of opinion that the said Charles Simpson was properly removed from the said office of town clerk, for such misconduct as would warrant removal from any office held during good behaviour: this council being also of opinion that the illegal detention by the said Charles Simpson, the deeds, papers, property, and documents of the said council after his dismissal from the office of town clerk, and after a lawful demand of the same, is a farther reason for the disallowance of his claim." That on a rule nisi for a mandamus to assess compensation having been obtained, it was resolved at a meeting of the town council that Alfred Eggington should be authorised and retained to take proceedings in opposition to the rule, and on the rule being made absolute, the return to the writ was read by the said Alfred Eggington at another meeting of the town council, and ordered to be filed: that the issues were tried by a special jury at Stafford, and though a verdict was found for the crown on all of them, yet the jury made an observation censu ring the conduct of the town clerk; and that the costs out of pocket in shewing cause against the rule nisi, for

of

the mandamus, in preparing and filing the return, and attending the trial of the mandamus and incident thereto, amounted to much more than the 3007., which sum was paid on account before the bill was made out, or the whole proceedings had terminated: and in the judgment of the town council the above expenses were necessarily incurred in performance of the duties cast upon them.

Talfourd, Serjt., and Cowling shewed cause.-First, these costs are properly chargeable upon the borough fund, they were "necessarily incurred" in resisting an attack on the fund; Reg. v. The Town Council of Lichfield, (4 Q. B. Rep. 893; 7 Jur. 670); The AttorneyGeneral v. The Mayor of Norwich, (2 Myl. & Cr. 406, 424, 425); and The Attorney-General v. The Corporation of Norwich, (1 Kee. 700; sects. 66 & 92 of stat. 5 & 6 Will. 4, c. 76). In Reg. v. The Mayor of Bridgewater, 10 Adol. & Ell. 281; 3 Jur. 1123); further reported as Reg. v. Paramore, (10 Adol. & Ell. 286); Reg. v. The Town Council of Stamford, (4 Q. B. Rep. 900); note (a) to Reg. v. The Town Council of Lichfield, (8 Jur. 558); and Reg v. The Mayor of Leeds, (4 Q. B. Rep. 790; 7 Jur. 669); and Reg. v. Thompson, (5 Q. B. Rep. 477; 8 Jur. 909); the question in respect of which the costs were incurred, did not affect the whole corporation, nor the borough fund. In Reg. v. The Mayor of Gloucester, (5 Q. B. Rep. 862; 8 Jur. 573), the Court decided that the town clerk ought to pay the fees of the clerk to the borough justices upon a prosecution for an assault on one of the officers of the corporation. And it makes no difference that the town council were defeated at the trial: it is not alleged that the resistance of the claim was not bonâ fide. The town council were bound to see that the charge made by the late town clerk upon the fund was properly incurred. Secondly, there was a previous retainer for the business, in respect of which these costs were incurred; and the town council having retained Mr. Eggington, and instructed him to oppose the rule nisi, must be taken to have been cognisant of each step in the proceedings. It would be absurd to call a meeting of the town council to sanction every step. [Erle, J.-The attorney would be liable to an action, if having been retained for the purpose of conducting the suit, he did not take the necessary steps in it.] Thirdly, it is objected that no bill of costs was delivered, but it cannot be said that the town council may not make an order from time to time for payment of the expenses of conducting a suit. At all events the order is good on the face of it.

Whateley and Cole, contra.-The costs in question were not incurred in the performance of the duties imposed by stat. 5 & 6 Will. 4, c. 76, but rather to prevent the provisions of that act from being carried into effect. The charges against Mr. Simpson have been proved to be false. If it had been alleged that the resistance to Mr. Simpson's claim was not bonâ fide, the allegation would have been contradicted. The town council did not allege misconduct as the ground of dismissal at the time: the charge of misconduct was an afterthought. The issues raised upon the return were found for the crown, and it cannot be contended that the council would have been justified in paying out of the borough fund the costs of defending an action for a false return. [Patteson, J.-Is there not a great distinction between defending a return and attacking another person? a party may not be authorised to bring an action for a false return, though the return may not be justified.] If the return is false it makes no difference. [Lord Denman, C. J.-The return may be false in the opinion of the jury, but not in the opinion of the client who directs the proceedings. Patteson, J.-If a party instructs an attorney to make a return, though he knows it to be false, the authority for making the return is one thing, the right to give it is another.] Still the town council had no right to defend the return at the expense of the

borough fund. Secondly, Mr. Eggington had no retainer or authority for trying the issues raised by the traverses; the traverses were no more connected with the previous proceedings than an action for a false return, and the instruction to file the return was not equivalent to an authority to defend it. [Wightman, J.-Suppose the return had been demurred to, would a fresh retainer have been necessary?] Probably the attorney would have required an authority to defend it. Lastly, a bill should have been delivered: it is impossible to know in respect of what charges the payments have been | ordered.

Lord DENMAN, C. J.-The costs in question were incurred in resisting a claim by the late town clerk of Lichfield to compensation for the loss of his office. The ground of resistance was, that the town clerk was dismissed for misconduct, such as before the municipal corporation reform act would have authorised his removal. It is true that the jury at the trial of the issues on the return to the mandamus, in effect have found that the town clerk was guilty of no misconduct: but it does not follow that the act of dismissal was not on that ground, and that the council did not believe that they were justified in imputing misconduct: it is not sworn that they did not bonâ fide believe it, but it is left to inference. On the other hand the resolution for dismissal which follows the investigation into the conduct of the town clerk, sufficiently shews that his supposed misconduct was the ground of dismissal, we cannot therefore say that the costs to that extent were improperly or unnecessarily incurred. Secondly, Mr. Eggington's employment was to do that in respect of which these costs have been incurred, though it may be doubtful whether, if an action had been brought for a false return to a mandamus, the attorney would have been justified in defending it without a distinct employment: here, when Mr. Eggington was instructed to file the return, an authority was granted him to defend the return to the full extent; I think, therefore, that he was authorised to go the whole length which he did in refusing payment of the compensation claimed. Thirdly, we have no right to assume that no bill was delivered, but if there was an omission to do so, it might have been made a ground for the town council coming to a vote that they would not pay the amount until a bill was delivered. We cannot say that the town council were not justified in making the part payment of 50%., and this further sum on account, provided they had a perfect belief that the money had been expended. I think, therefore, that non-delivery of the attorney's bill is no objection as far as this application is concerned, though it might have been a ground for postponing payment.

PATTESON, J.-I am of the same opinion, I do not indeed agree with Mr. Cowling, that if the certiorari went, and the order was brought up, the objection now made not appearing on the face of it, could not be shewn by affidavits; if that were so, we never could inquire into orders made in these general terms. Looking at the 44th sect. of stat. 7 Will. 4 & 1 Vict. c. 78, which gives the writ of certiorari for removing this order, it enacts, that such order, when brought up, may be disallowed or confirmed upon motion and hearing, with costs, "according to the judgment and discretion of the Court:" it does not say that the order shall be dealt with in the same way as a conviction; if it did, the enactment would be altogether nugatory, because the order would hardly ever shew want of authority on the face of it. I therefore suppose that the Legislature intended that we should deal with these orders in a different manner. But I think that the order is good, for the reason which my lord has given. WIGHTMAN, J., and ERLE, J., concurred.-Rule dis charged, with costs.

TRINITY TERM.

COLLETT v. CURLING.-June 12.

Plaintiff agreed to let to, and Defendant agreed to take the second Floor in a House, to hold from the 25th March, 1844, for a Twelvemonth certain, and thence for the Continuance of the Term of Plaintiff's Interest in the Premises, until determined by a six Months' Notice from Defendant, expiring at any Quarter of a Year, at the Rent of 120l. a Year:-Held, that after the Expiration of the first Twelvemonth, the Rent continued to be payable yearly.

Assumpsit for use and occupation. Plea, non-assumpsit. The action was commenced on 30th January, 1846; the particulars stated that the action was brought to recover 301., being one quarter's rent due on the 25th December, 1845. On the trial before Wightman, J., at the Middlesex sittings after Trinity Term, the following agreement was put in evidence :

"Miss Mary Jane Collett this day agrees to let to, and Mr. John Curling agrees to take the second floor in the house No. 4, Waterloo-place, Pall Mall, with the right of entry and exit at all times thereto. To hold from the 25th day of March, 1844, for a twelvemonth certain, and thence for the continuance of the term of Miss Collett's interest in the said premises, so long as it shall continue, until determined by a six months' notice from the said John Curling, expiring at any quarter of a year, at the rent of 1207. a year, free from all rates and taxes, which are not to be borne by the said John Curling; the above sum of 1207. a year to include attendance on and attention to the premises so let to the said John Curling, and the cleaning of the same, lighting fires, &c.; and at the door thereof Mr. Curling to have the right of placing his name and addition within and without the said house No. 4, and also of placing a letterbox on either the outer or inner door of the lobby or otherwise as he may think best: Mr. Curling to be at liberty to alter and enclose the stairs leading from the second landing upstairs. (Signed)

"Dated 29th March, 1844."

"MARY JANE Collett. "J. CURLING.

The tenancy was still continuing. It was objected, that by the instrument the rent was payable yearly, and not quarterly. A verdict was given for the plaintiff, leave being reserved to the defendant to move to enter a nonsuit or verdict for the defendant. In the following term a rule nisi accordingly was obtained, against which in this term*,

Sir John Jervis, A. G., and Welsby, now shewed cause. -The twelve months certain having elapsed before any part of the rent became due for which the action was brought, the subsequent tenancy is for an undefined term, for the time during which Miss Collett's interest may continue. The contract must speak for itself at the time it was made. The words "at the rent of 1207." are the measure of the rent: they do not mean that the rent is reserved, payable yearly. If the rent is not due till the end of the year, the defendant might by giving notice to quit at the end of the third quarter, occupy for three quarters without paying any rent. In an action of assumpsit for use and occupation, a rent which accrues de die in diem may be recovered. (Packer v. Gibbins, 1 G. & D. 10; 1 Q. B. Rep. 421; 5 Jur. 1036). Watson, contrà.-The demise is in the first instance for one whole year. If rent is reserved generally upon a term, it is payable at the end of the term. (Turner v. Allday, Tyr. & Gr. 819). In Packer v. Gibbins, (1 G. & D. 10; 1 Q. B. Rep. 421; 5 Jur. 1036), an action was maintained pro ratâ for a broken quarter, both parties agreeing that the defendant's liability ceased after the

* May 26.-Before Lord Denman, C. J., Patteson, Colcridge, and Erle, JJ.

fire. So here, if the tenancy was determined by a notice to quit at the end of a third quarter. An action for use and occupation would lie to recover pro ratâ for a broken year, though the rent was reserved payable determined at the end of a quarter not coterminous with yearly. [Coleridge, J.-Suppose Miss Collett's interest the end of a year, that definition of the tenancy would not arise from the act of the defendant.] And it may be that an action for use and occupation would lie. Coleridge, J.-Though dated on the 29th March, the commencement of the holding is put back to a quarterday.] Cur, adv. vult.

Lord DENMAN, C. J., now delivered the judgment of the Court.-In this case the question was, whether the rent was payable quarterly or yearly, the agreement for the rent of 1201. a year would make it payable yearly, unless the stipulation for determining the tenancy by a six months' notice, expiring at any quarter of a year, raises a presumption that it should be payable quarterly. We cannot infer any such intention from that stipula tion, nor do we find any authority for such a construc tion, consequently the plaintiff's claim fails.-Rule absolute.

RICHARDSON v. CHASEN.—June 7. Declaration on an Agreement to assign Premises to Plaintiff; Breach, that the Defendant did not make out a good Title, by Reason whereof Plaintiff hath been necessarily put to great Expenses, amounting to a large Sum of Money, in and about investigating the Title of Defendant, and causing the Fixtures to be valued:Held, that, under this Allegation, Plaintiff might recover the Charges of a Broker and an Attorney's Bill, though not paid before the Commencement of the Action, Assumpsit. The declaration stated, that, by a cer tain agreement between the plaintiff and the defendant, it was (amongst other things) agreed, that the defendant, in consideration of the sum of 1007. then paid to the defendant by the plaintiff as a deposit, and of the further sum of 28997. to be paid to the said defendant by the plaintiff at the time in the said agreement thereinafter mentioned, agreed to sell to the plaintiff, and that the defendant, by a good and effectual assignment, would assign to the plaintiff all that messuage, tenement, or public-house called &c., situate, &c., with the appurtenances, and the trade and good will thereof, for all the residue of the term for which the defendant then held the same under an underlease thereof. The ment as to the sale of the stock and the mode of carry declaration then stated various stipulations in the agree ing on the business; "and that, if either party neglect or refuse to perform his part of the said agree ment, he should pay unto the other of them, on demand, the sum of 300l. as liquidated damages." Aver ment of mutual promises. Breach, that although a reasonable time for the defendant's making, deducing, and shewing a good title to the premises for the residue of the defendant's term had elapsed, nevertheless the defendant did not make or cause to be made, deduced, title to the said premises, nor complete the said pur or shewn to the plaintiff a good and sufficient, or any, chase, nor sell to the plaintiff the said messuage or tene ment and premises, with the appurtenants &c., by a good and effectual assignment, nor deliver to the plaintiff possession of the said premises, "by reason whereof, and of the premises aforesaid, the plaintiff hath lost and tages which would have arisen to him from the combeen deprived of all the benefit, profits, and advanpletion of the said sale and assignment as aforesaid, and hath been wholly hindered and prevented from setting up and engaging in business elsewhere, and he hath been necessarily put to great expenses, amounting to a large sum of money, to wit, to the sum of 2001, in and about the endeavouring to procure such title, sale, and assignment as aforesaid, and in and about investigating the

should

said title of the said defendant to the said premises for the said residue of the said term, and causing the said fixtures, furniture, and effects, to be valued, and hath lost all gains and profits which he might and would otherwise have made and acquired &c. Yet the defendant hath not yet paid to the plaintiff the said sum of 2007. last above mentioned, nor any part thereof, nor the said sum of 3007. in the said agreement secondly mentioned, nor any part thereof." There were also counts for money had and received, and on an account stated. Plea-Payment into court of 125l., and no damages to a greater amount. Replication-Damages ultra. On the trial, before Lord Denman, C. J., at the Sittings in London after last Hilary Term, the plaintiff sought to recover the amount of an attorney's bill for business done for him under the agreement, and the charges of a broker also employed by him. It appeared, on the cross-examination of one of the plaintiff's witnesses, that the broker's charges and the attorney's bill had not been paid before the commencement of the action, but had been since paid out of the money paid into Court. It was objected for the defendant that the plaintiff was not entitled under the allegation of damage in the declaration to recover money which he had not paid before the commencement of the action, but only incurred a liability to pay. The Lord Chief Justice overruled the objection; and the jury gave the plaintiff a verdict for 45., including 187. for the broker's fees in valuing, and 157. the attorney's bill: this sum was 207. beyond the amount paid into court. In Easter Term, April 19,

Humfrey obtained a rule nisi for reducing the damages by the amount of the broker's charge and the attorney's bill, which would give the defendant a verdict. [He cited Jones v. Lewis, (9 Dowl. P. C. 143); Taylor v. Higgins, (3 East, 169).]

The Court having directed that the case should not be put down in the new trial paper, in Trinity Term, (June 7),

Watson and Warren shewed cause.-The allegation that the plaintiff was necessarily put to great expense, is supported, without proof of payment of the money before the commencement of the action; it is sufficient that the plaintiff had contracted debts with the attorney and broker, which he would be compellable to pay. [They referred to the form of a declaration for the sale of lands, in 2 Chit. Plead., 288, 296.] Dixon v. Bell (1 Stark. 287) is in point: that case was reviewed on a motion for a new trial, (5 M. & S. 198), and this point was not mooted. In Pritchet v. Boevey, (1 C. & M. 775), the words were, "had been forced and obliged to pay," " and "had necessarily paid." In Jones v. Lewis, (9 Dowl. P. C. 143), the words were "forced to pay,' and they were considered as equivalent to an allegation of actual payment. In Taylor v. Higgins, (3 East, 169), the plaintiff had not paid any money.

Humfrey and Cleasby, contra.-In Dixon v. Bell, (1 Stark. 287), the question was, not whether the allegation in the declaration was supported by the evidence, but whether certain damages were recoverable; the decision would have been the same, whatever the words in the allegation might have been. In Pritchet v. Boerey, (1 C. & M. 775), Bayley, B., suggested the words which should be used: he said, that though upon a declaration properly framed, the plaintiff would have been entitled to recover damages which he had become liable to pay, it was unreasonable that the plaintiff should recover what he might, perhaps, never pay. The allegation here is not that the plaintiff had incurred expenses: there is a great difference between payment and a liability to pay. Actual payment is a test of the bona fides of the outlay, and is a more certain guide for the jury in giving damages than if the money is merely claimed from the plaintiff at the time of action brought. The phrase "put to expenses" is more correctly applied to payments of money. [Erle,

J.-The word "expenses" is not always synonymous with "monies paid."]

Lord DENMAN, C. J.-If the plaintiff alleges that he has paid money, he must prove it; but if he says that he has been put to expenses, I think we may fairly hold that such an allegation amounts to no more than that the plaintiff has incurred the liability to pay certain expenses.

PATTESON, J.-This is not exactly like any other case. I think we may fairly consider that the allegation does not necessarily mean that the money has been actually paid.

COLERIDGE, J., concurred.

ERLE, J.-I think the course of precedents justifies us in holding that a meaning is attached by usage to these words, including the damage which the plaintiff wishes to include.—Rule discharged.

SITTINGS IN BANC AFTER TRINITY TERM.
HULLS v. LEE.-July 7.

An Attorney duly admitted and enrolled in one of the Superior Courts, according to the Regulations of Stat. 6&7 Vict. c. 73, may practise in any other Court in the Name of an Attorney of the latter.

And he is not disabled by Sect. 2 or 35 of that Act from recovering his Costs for Work so done.

Declaration for work and labour and disbursements as an attorney. Plea, confessing work and labour, &c., as attorney, alleged that the action in which &c., was in the Court of Exchequer, that the plaintiff did the work there in the name of A. B., that the plaintiff, although an attorney of another court, was not an attorney of the Court of Exchequer. Demurrer.-The demurrer was argued at the sittings in banc after Trinity Term* by

Hayes, for the plaintiff.-The plea is bad, for although in the case of Latham v. Hyde, (1 Dowl. P. C. 594; 1 Cr. & M. 128), it was held, under stat. 2 Geo. 2, c. 23, s. 1, that an attorney practising in a court in which he had not been admitted could not maintain an action for fees, yet it was afterwards held in Goodner v. Cover, (3 Dowl. P. C. 424), and in Jones v. Jones, (2 Mee. & W. 323), that he might recover, if he acted in the name of an attorney of that court. The late stat. 6 & 7 Vict. c. 73, has made no alteration.

Dowling, Serjt., contra.-By stat. 2 Geo. 2, c. 23, s. 1, no attorney could recover fees unless he had been enrolled and admitted of the court in which he practised. By sect. 10, however, he might, if, being an attorney of another court, he obtained the consent and acted in the name of an attorney of the court in which he practised. By 7 Will. 4 & 1 Vict. c. 56, s. 4, an attorney of one court might practise in any other. But stat. 1 & 2 Vict. c. 45, s. 3, enacted, that he must first sign the roll of the second court, and rendered that enrolment imperative by the words "and not otherwise." Stat. 6 & 7 Vict. c. 73, repeals all those, and therefore former decisions are only useful as analogies, when words are used in this statute similar to those in former acts. Sect. 2 of this statute prohibits all persons from acting as attornies in any court unless admitted, and enrolled and qualified, pursuant to the directions and regulations of the said act. Sect. 27 permits an attorney admitted and enrolled in one court to practise in another, "upon signing the roll of such other court, and not otherwise." Sect. 35 disables any person from recovering fees, &c., who practises in any court in his own name, or in the name of any other person, without being admitted and enrolled "as aforesaid," that is, without being admitted in and signing the roll of the court in which the fees, &c. were earned.

* Before Lord Denman, C. J., Patteson, Coleridge, and Erle, JJ.

There is no clause in this act similar to sect. 10 of 2 Geo. 2, c. 23, and therefore the cases cited, all of which depend upon that section, do not apply: no attorney now can act as agent for another in any court, unless both are attornies admitted and enrolled in that court. No clause in the act now in force enables the present plaintiff to recover.

Hayes, in reply. A solicitor in Chancery may practise on the equity side of the Exchequer without being admitted in the latter court. (Meddowcroft v. Holbrooke, 1 H. Bl. 50; Vincent v. Holt, 4 Taunt. 452; The Attorney-General v. Malin, 2 Tyrw. 512). And at common law, an attorney, if admitted in one court, might practise in any other. (Thursby v. Warren, Cro. Car. 159). All enactments tending to confine that right are prohibitory and penal, and therefore to be construed strictly. No enactment in terms disables the plaintiff from recovering. Cur. adv. vult.

Lord DENMAN, C. J., now delivered the judgment of the Court. This was an action on an attorney's bill of costs. Plea, that the action is brought for fees and disbursements on account of prosecuting and defending actions in the Court of Exchequer, in the name of other attornies, as agents of the plaintiff, who were duly admitted to practise in that Court, and that the plaintiff, although he was duly admitted an attorney of the Queen's Bench and Common Pleas, was not admitted in the Court of Exchequer; and the question is neatly raised, whether an attorney of the Queen's Bench or Common Pleas only can recover for work done by him in the Court of Exchequer through the agency of an attorney of the last-named court.

This privilege, by which an attorney of one court may practise in another court, in which he is not admitted, in the name of an attorney of that other court, was given by the 2 Geo. 2, c. 23, s. 10, in express terms; and by the 7 Will. 4 & 1 Vict. c. 56, s. 4, an attorney of one court was enabled to practise in his own name in another court in which he was not admitted. But the 1 & 2 Vict. c. 45, s. 3, confines it to such attornies as shall sign the roll of the court in which they are to practise. The whole of the last-named act, however, as well as this enactment in the two former, is repealed by the general act of 6 & 7 Vict. c. 73, and we are to inquire whether any provision of this general act prevents the present plaintiff from recovering on this bill; and the meaning of the words of the 35th section, which are supposed to do so, ("in case any person shall, in his own name, or in that of any other person, sue out any writ, &c. in any court of law or equity, without being admitted and enrolled as aforesaid, he shall not recover his costs") must be sought in what had been antecedently enacted by the statute respecting the admission and enrolment of attornies. The 2nd section is here directly referred to. No person shall act as an attorney "unless such person shall be admitted and enrolled, and otherwise duly qualified to act as an attorney, pursuant to the regulations of this act, and unless such person shall continue to be so duly qualified, and on the roll at the time of his acting as such attorney." But the plaintiff appears by the plea itself to be duly admitted according to the statute as attorney of the two Courts of Queen's Bench and Common Pleas, and therefore has the general capacity to practise as an attorney. The 27th section applies to persons duly admitted as attornies of any one superior court practising in any other court, and permits them to do so "upon signing the roll of such other court." This the plaintiff has not done, and therefore he could not have practised in the Exchequer in his own name. No provision has been made for the precise position in which he stands; but the 35th section contemplates the practising by one person in the name of another, and allows him to recover his costs, a privilege of little or no value, if his being on the roll of the court is neces

sary to enable him to practise in it, for then he could practise there in his own name.

It may be observed that the 1st section of the 2 Geo. 2, c. 23, requires every attorney to be admitted and enrolled in such of the courts where he shall act as an attorney; therefore the 10th section was necessary to enable him to act in the name of another attorney in a court in which he was not himself admitted. But the present act, 6 & 7 Vict. c. 73, s. 2, has not the words "in such of the courts where he shall act as an attor ney," but prohibits an attorney from practising unless he is admitted and enrolled, and otherwise duly qualified to act as an attorney, pursuant to the directions and regulations of this act; which words being general, it was probably thought unnecessary to have an express clause to enable an admitted attorney of one court to practise in another court in the name of an admitted attorney of that court, although it was necessary to provide for his practising in his own name in such other court.

The result is, that the plaintiff being duly admitted and enrolled in the Queen's Bench, and having in the name of an attorney in the Exchequer sued out writs, &c. in that Court, is under no disability with respect to the recovery of his bill of costs.-Judgment for plaintiff.*

DOE d. WILKINson v. Goodier.—July 7.

Ejectment by Mortgagee against Mortgagor. The Mort gage-deed contained a Power in the Mortgagee to enter and distrain upon the Premises for Interest, if unpaid for a certain Time, as for Rent, and the Mortgages had so entered and distrained at a Period later than that of the Demise laid in the Declaration, but for Interest accruing before the Day of Demise:-Held, that the Power to enter and distrain was not inconsistent with the Right of the Mortgagee to recover in Ejectment, and the Exercise of it was no Recognition of the Mort gagor as Tenant.

Ejectment by the mortgagee against the mortgagor to recover a farm in Cheshire; the demise was laid on the 2nd October, 1846. On the trial before Coltman, J., at the last spring assizes at Chester, it appeared that the mortgage was dated the 19th February, 1842, and contained the usual proviso for redemption, and a power of entry and distress as in the case of a common demise if the interest should be in arrear for twentyone days, also a covenant for payment of interest; the mortgagor continued in possession down to the time of the trial. On the day of the demise the lessor of the plaintiff put in a distress for arrears of rent due on the 20th, and the distress was levied subse quently. It was objected for the defendant, that under these circumstances the mortgagor could not be treated as a trespasser on the day of the demise laid in the declaration. The learned judge overruled the objection, and a verdict was given for the lessor of the plaintiff, leave being reserved to move to enter a nonsuit. In the following Easter Term †,

Townshend moved accordingly.-The lessor of the plaintiff having levied a distress, could not treat the defendant as a trespasser at that time. [Patteson, J. -In Doe d. Whitaker v. Hales, (7 Bing. 322), the dis tress was after the day of the demise.] The stat. 8 Ann. c. 14, does not apply to the case of a mortgagee and mortgagor. [Wightman, J.-The ejectment treats the mortgagor a trespasser on the day of the demise; the statute says the landlord may distrain within six months after the determination of the tenancy, and during the possession of the tenant.] The tenancy