have executed this our writ make appear to us at Westminster immediately after the execution thereof, and have there then this writ. 1839. The Judges who sat in Banc during this Term were, TINDAL C. J. COLTMAN J. BOSANQUET J. ERSKINE J. April 15. An attorney re-admitted in the Court of Queen's Ex parte THOMPSON. MARTIN moved to readmit in this Court an attorney who last term had been readmitted in the Court of Queen's Bench. The statute 1 & 2 Vict. 45. s. 3., which enacts that attornies admitted in one Court shall be thereby entitled to practice in the others, entitled under had been thought, by the officer, not to apply to a case Bench, is by such re admission 1 & 2 Vict. c. 45. to practise in the other courts. of readmission. Sed per curiam. If he is readmitted in the Queen's Bench, he is admitted in the Queen's Bench, and then he may practice here. The application is unnecessary. 1839. WARD v. Suffield. THE declaration stated that the Plaintiff was about to employ an agent for the sale of turpentine and certain other property, and that in consideration the Plaintiff would employ one Henry New as his agent to collect his debts, the Defendant undertook and promised the Plaintiff to be responsible to him for all sums of money which New might receive as the Plaintiff's agent, not exceeding the sum of 250l. Breach, that New did not pay over what he had received. The Defendant pleaded, first, non assumpsit; secondly, that New, during his employment as agent, had not received as such agent the money which the declaration alleged him to have received on account of the Plaintiff; and, thirdly, that New did account modo et formâ. At the trial, after the Defendant's signature to the guaranty had been proved, and that a Mr. Bradley was also a surety for New, the Plaintiff gave in evidence the following letter from his attorney to the Defendant: "On the other side you have accounts between Ward and New, as agreed to by the latter, by which a balance of 1837. 9s. 2d. is due to Mr. Ward, with some slight deductions for postage, &c. November 8. 1837." The Defendant's answer was, "In reply to yours of this morning, I have to inform you that I have sent by this evening's post to Bradley for his share, which, when I have received, I will remit, with mine, to Mr. Ward." The Defendant declining to produce the account sent to him, a witness named Lang then proved that he and April 20. Defendant, as surety for N., having received and promised to pay an account which refusing to action brought against him by Plaintiff, the employer of N., Held, that without calling N., Plaintiff might prove who produced by the witness a duplicate, that that was the account N. had gone over, and that he had said it was correct. 1839. WARD V. New together had gone over an account, and that New admitted it was correct. Another witness identified the account which New SUFFIELD. had gone over as a duplicate of that sent to the Defendant. On the part of the Defendant it was objected, that New being alive, the declaration made by him to Lang was not admissible in evidence. New himself ought to have been called. Gurney B., however, before whom the cause was tried, admitted the testimony of Lang, and left it to the jury to say, whether the paper produced by him was the account agreed to by New. A verdict was found for the Plaintiff, which R. V. Richards moved to set aside, on the ground that the evidence of New's declaration ought to have been rejected. In Goss v. Watlington (a) and Whitnash v. Gifford (b), where similar evidence was received, the party making the declaration was dead; and though, without New's declaration, the Plaintiff here might have succeeded on the Defendant's letter, yet as the Court could not ascertain what portion of the proof it was that determined the minds of the jury, they would grant a new trial if any were improperly received: Crease v. Barrett. (c) In Doe dem. Teynham v. Tyler (d), the rule as to the discretion of the Court on this head was laid down too broadly. A rule nisi having been granted, Talfourd Serjt. shewed cause. The evidence was admissible, because there was an express issue on New's accounting; and his declaration (a) 3 B. & B. 113. (c) 1 Cr. M. & R. 319. (d) 6 Bingh. 561. accompanying the act of accounting was evidence in support of that issue. At all events, the admission of the evidence was immaterial, for the Plaintiff's case was complete without it, and though, according to Crease v. Barrett, the rejection of proper evidence, however slight, may be a ground for a new trial, because without it the party may say his case is not complete, yet the admission of superfluous evidence ought not to impeach a verdict which may be maintained without it. R. V. Richards, in support of the rule. In De Rutzen v. Farr (a) and Wright v. Tatham (b) the evidence objected to was superfluous, and the verdict might have been maintained without it; but as it is impossible to ascertain what portion of the evidence it is that weighs most with the jury, the Court held that the only question was, whether the evidence was properly or improperly admitted. Here, however, it was important to the Defendant that New should have been called to explain the particulars of the account. TINDAL C. J. I think this rule I think this rule may be discharged, without breaking in on any principle of law laid down in Crease v. Barrett. Looking at the purpose for which the evidence in question was adduced, I think it stands clear of the rule laid down in that decision. It is true, that when the principal debtor is alive, his declarations are not evidence against his surety; but the account which New had examined and assented to as a correct statement of the account between him and the Plaintiff, was, under the circumstances of this case, evidence against the Defendant, and the object of calling Lang was only to identify that account. 1839. WARD บ. SUFFIELD. (a) 4 Adol. & El. 53. (b) 4 New Cases, 489. |