compelled to argue it. The Court, after some hesitation, gave him leave to amend, on payment of 57. costs.

Leave given to the plaintiff to amend his bill by making the impropriate rector a party, on payment of 51.

1824.

JACKSON

v.

BENSON,
Clerk.

KIRBY V. HUNT.

THE defendant in this action resided at Rugeley, in Staffordshire. The plaintiff's attorney, not residing there, employed solicitors of that place as his agents, who became, without his knowledge, the defendant's attorneys before the return of the writ of quo minus. The writ was returnable on the morrow of All Souls, in last Michaelmas term, and was served on the defendant in October. It appeared from an affidavit by the plaintiffs attorney, that "on or about the 1st of November," he sent to his agents a notice of declaration being filed, with directions to serve it on the defendant and that " on or about the 6th of November," he received a letter from them, stating that the defendant had been served with the notice.

An appearance was

entered for the defendant on the 11th, and notice thereof given to the plaintiff's clerk in court, who stated that a declaration was filed. The declaration was taken out of the office on the 13th, and a plea in abatement delivered the same day. This plea being considered too late, interlocutory judgment was signed as for want of a plea, on the 20th of January.

Chilton, on a former day, obtained a rule to shew cause why the interlocutory judgment should not be set aside with costs, for irregularity: against which,

1824.

KIRBY

HUNT.

Manning now shewed cause. The time of filing and giving notice of the declaration must be taken, on the plaintiff's attorney's affidavit, to be the 6th of November. The defendant ought, by the rule of practice, to plead in abatement in four days inclusive, from that time. Here he has not pleaded till the 13th; and he is therefore clearly too late. The point intended to be raised on the other side is, that there was an irregularity in the service of notice of declaration—that it was too soon; because it was sent for service on the 1st of November, to the plaintiff's agents, who happened also to be the defendant's attorneys. But as the plaintiff's attorney did not know at that time that his agents were acting for the defendant; and as the notice lay with them till the fit period for service arrived, when it became good, the defendant ought not to be suffered to take advantage of the double character which the agents accidentally sustained.

Chilton, contra, contended that the notice must be taken to have been served before the 6th; whereas it ought not to have been served till the 6th, or later. The judgment was therefore irregular.

GARROW, B. The same persons being agents for both parties interrupts the usual course of proceedings; and therefore the C. Baron, and the court are of opinion, that the rule ought to be made absolute without costs; the defendant undertaking, if the plaintiff wishes, to plead instanter, and go to trial without delay; otherwise the plaintiff to be at liberty to execute a writ of enquiry.

But on further consideration and conference, the court allowed the plea in abatement to stand..

Rule absolute, without costs.

February 10the

Jones, D. F. prayed the opinion of the court, whether

service of a writ on Candlemas Day was good service, as the Master had doubts on the point. The court held that it was.

THE KING U. WILLIAMS.

On a Writ of Scire Facias, un an Extent.

1824.

February 10th.

an action at law

against J. W., for money paid

to his use. J. W. filed a bill

for discovery against B.; and

B. was restrain

ed from proceeding, by i junction, on the 3d of June. An

extent had is

sued against B.

IN Easter term 1823, Bell commenced an action against B. commenced Williams in the King's Bench, for money advanced to one Edington, to his use. In the ensuing vacation, Williams filed a bill for discovery in this court, against Bell and Edington. Bell not having appeared, or answered thereto, an injunction to restrain him from proceeding at law was granted the 3d of June. The 21st of May, an immediate extent issued against Bell, who was a collector of assessed taxes, for 65001. due to his Majesty ; and upon the inquisition taken thereon, Williams was found indebted to Bell in the sum scught to be recovered at law, and that debt was seized into the King's hands. The 30th of May, a commission of bankrupt was taken out against Bell, and he was declared a bankrupt. And on the 17th of June, a scire facias issued against Williams, for the amount of the debt to Bell; to which he appeared, and pleaded, and it stood for trial at the sittings after this term. Bell was brought up on a day in this term from the Fleet, where he was a prisoner for debt, charged with contempt; and undertook to answer the bill forthwith.

It was this day moved by Brougham, upon notice, on the part of Williams, as a matter of equitable indulgence and convenience, that the trial of the issue depending on

the 21st of May, for a debt to the crown, and on the inquisition taken thereon,

J.W. was found

indebted to B., seized into the king's hands.

A commission

of bankrupt was taken out

against B., May 30th. Subsequently a scire facias, issued against J. W. for the debt found to B., to

which he pleaded, traversing the supposed debt. B. hav

ing been brought up in

contempt, and undertaken to answer the bill forthwith, a motion to postpone the trial of the issue depending on the scire facias, until he should have put in his answer, was refused, because the answer could not be used as evidence on the trial of the issue.

1824.

The KING

v.

the scire facias, might be postponed until Bell should have answered the bill; on an affidavit stating that it was WILLIAMS. impossible the defendant could defend himself without having the answer filed, and that his plea to the scire facias traversed the supposed debt. It was stated that the object of the motion was to obtain time until the answer should come in, and the cause at common law be disposed of ;—and that the defendant was quite in hostility with Bell.

Parke opposed the motion in the first instance; on the grounds, first, of its being an application of the first impression, and that the granting it would be productive of very great inconvenience to the crown. Secondly, that the answer would not be evidence. Thirdly, that the suit at common law was abated, and at an end.

Brougham, in reply, denied that the suit was at an end; and argued that the answer might be useful in two ways It might discover evidence material for the defence in the suit at law; and it might disclose matter which would be of benefit on the trial of this issue. [GRAHAM, B. On the trial of this issue, the crown must prove that Williams is indebted to Bell. There is a great appearance of collusion.] If there be collusion, the parties must have anticipated the proceedings by the crown.

GRAHAM, B. I clearly think that there is no ground for this application. Here a scire facias has issued against Williams, for a debt found to be due from him to Bell. Williams has pleaded that he never was indebted to Bell. It seems there is an issue at law, in which this debt is contested between these parties. But the crown process supersedes that issue, and the suit is thereby abated. On the trial of the present issue, the crown must prove the debt. The ground of the application is, that Williams

found it necessary to file a bill for a discovery; and that Bell has not answered that bill. No good reason has been given why the answer has not been put in; and we can't tell when it would come in. But in no possible view could that answer be used by Williams, as evidence on the trial of the issue on the present plea, after Bell has transferred the whole of his interest in the debt.

GARROW, B. I am very clearly of opinion, that there is no foundation for the application. And it is rather questionable, whether more indulgence has not been already given to the defendant than he deserved. If the answer of Bell had been already put in, it is not clear that he could have made any use of it. The argument is, that the answer might be useful in two ways. Now Bell must swear truly or falsely: if truly, all that he does swear is within the knowledge of the defendant; if falsely, Williams is not a bit benefited by that party's answer. It appears to me, that the defendant is as well prepared now, as he would be after the answer.

Per Curiam.

1824.

The KING

V.

WILLIAMS.

Motion refused.

ELSWORTHY and another v. BIRD.

ASSUMPSIT against a husband, for not bringing into effect an agreement alleged to have been entered into by him at the General Quarter Sessions of the Peace, held at Wells,

1824. February 11th.

Where a judge at nisi prius,

told the plaintiff's counsel, that unless they called a person

as a witness, whom they had not intended to examine, he would nonsuit them; and on that witness being called and examined, did nonsuit them, and the counsel acquiesced; a rule for setting aside the nonsuit, and having a new trial, on the ground of mis-direction in not leaving the case to the jury on the evidence, was discharged.