against bail, on the ground of the ca. sa. being tested of a term prior to that in which judgment was signed against the principal. In support of the second point, he cited Rex v. Commissioners of the Flockwold Inclosure (a), in which it was held, that the words "shall and may" are imperative, when the clause is for the public good or benefit.

Thesiger shewed cause against the rule, and contended, that, although the ca. sa. was irregular by the improper teste, yet such an irregularity the Court would permit to be amended on payment of costs.

Mansel, contra, contended, that, as this application was made at the instance of the bail, the Court would not allow such an amendment to be made as against them, particularly after the decision in the case of Gawler v. Jolley.

PATTESON, J.-I think, that, even as against the bail, this amendment ought to be allowed on payment of costs. Rule accordingly.

(c) 2 Chitt. Rep. 251.

1832.

ENGLEHART

บ.

DUNBAR.

Ex parte PILKins.

WATSON moved to re-admit an attorney. The rule An attorney with respect to the notice of his intention to apply for seeking to be re-admission had been obeyed, with the exception that

the notice in the King's Bench Office, had not been stuck up until the opening of the office on the first day of this term. The reason given for this omission was, that he did

re-admitted,

plies with the

sufficiently comrule as to previous to his application, by sticking it up in the King's Bench

term's notice

Office on the morning of the first day of the term in which he applies, at the opening of

the office.

1833.

Ex parte PILKINS.

not go to the office on the previous day until it was closed. He submitted, however, that the notice having been stuck up on the morning of the first day ofthe term, at the opening of the office on the first day of the term in which he applied for re-admission, was sufficient. He cited the case of Ex parte Senior (a), in which a similar application was made under similar circumstances, the day previous to the first day of term being a holiday at the King's Bench Office. That case was decided on the authority of Ex parte Davey (b), in which a similar application was made, and the attorney affixed his notice outside the Court in the morning before it sat on the first day of the term of which notice was intended to be given. The Court, in both those cases, allowed the attorney to be re-admitted, as it was of opinion that such a proceeding was a sufficient compliance with the rule of Trinity Term, 33 Geo. 3.

TAUNTON, J.-The present case differs from that of Ex parte Senior, because there the day previous to the first day of the term was a holiday. Here it was not; but the reason of the notice not being affixed in the King's Bench Office previous to the term was, the neglect of the party himself in not applying sufficiently early. But the case of Ex parte Davey is an authority in your favour, because there the attorney affixed his notice outside the Court, on the morning before it sat. That case must therefore have proceeded on the principle that the term's notice required by the rule is inclusive of the day on which it is stuck up. In that case, Mr. Justice Littledale, who was sitting alone when the application was made, was at first of opinion that the rule was peremptory, that a full term's notice was necessary, and that the affixing the notice even before a single Judge had sat on the first day of the term, would not satisfy the meaning of the

(a) Ante, Vol. 1, p. 517.

(b) 4 D. & R. 646.

rule. On consulting the other Judges, however, the Court was unanimously of opinion, "that a notice affixed before the sitting of the full Court, on the first day of term, was sufficient, and therefore granted the application." That case, therefore, is a precedent for your application. The attorney may be re-admitted.

C. Cresswell, amicus curiæ, mentioned a similar application, which he lately successfully made, under similar circumstances, to the full Court.

Re-admitted.

1833.

Ex parte PILKINS.

END OF TRINITY TERM.

206

COURT OF COMMON PLEAS

Easter Term,

IN THE THIRD YEAR OF THE REIGN OF WILLIAM IV.

1833.

GOODBURNE v. BOWMAN.

If the jury find IN this case, a rule nisi for reviewing the Prothonotary's

immaterial is

a defendant, and

ment non ob

sues in favour of taxation was obtained, and cause shewn against it. It apthe plaintiff has peared, that, at the trial, several issues were raised, and a afterwards judg- number of them found for the defendant. On application stante veredicto, subsequently to the Court, it was of opinion that those neither party is entitled to the issues were immaterial, and judgment was given for the costs of those isplaintiff, non obstante veredicto. On taxation, the Prosues. thonotary refused to allow either the plaintiff or the defendant any costs upon these immaterial issues, according to the construction which he put on 1 Reg. Gen. H. T. 2 W. 4, s. 74 (a).

Per Curiam.-We are of opinion, that, in this case, neither the plaintiff nor the defendant is entitled to costs on these issues. The words of the rule are—" No costs shall be allowed on taxation to a plaintiff upon any counts or issues, upon which he has not succeeded; and the costs of all issues found for the defendant, shall be deducted from the plaintiff's costs." First, as to the plaintiff—he cannot be said to have succeeded on these issues, as they were found against him; and the judgment of non obstante veredicto has only put the finding of the jury out of the way, without constituting his success. Secondly, as to the de

fendant-issues found in his favour must of course mean such issues as in point of law he can ultimately succeed upon. But the Court has decided that the defendant is not to have judgment upon those issues. The present is a casus omissus; and it is therefore better to decide that neither party shall have his costs.

Rule discharged.

1333.

GOODBURNE

v.

BOWMAN

BOWYEAR v. Bowyear.

THE demandant in this case, which was a writ of right for the recovery of land in the county of Middlesex, had brought two actions of ejectment in the Court of King's Bench, for the same land. In both, he had failed. A rule nisi was obtained, calling on the demandant to shew cause why the proceedings in the writ of right should not be stayed until the costs of the two ejectments were paid.

Ludlow, Serjt., shewed cause, and cited Chatfield v. Souter (a), in which case the Court had refused a similar application.

Wilde, Serjt., in support of the rule, endeavoured to distinguish the case cited from the present.

Per Curiam.-We cannot distinguish the present case from that of Chatfield v. Souter. The present proceeding is quite different from that of an ejectment. We do not know why the ejectments have failed. Their failure may have been caused by something quite consistent with the demandant's present right to recover. His right of entry might have been tolled, or the action may have been brought after the twenty years had elapsed. For any thing

(a) 3 Bing. 167.

Where a writ of

right is brought

to recover land which has been

an unsuccessful action of ejectment, the Court

will not stay the proc proceedings in the writ of

right, until the costs of the ejectment are

paid.