1833. STORR v. MOUNT. The Solicitor-General and Hughes shewed cause.They contended that the variance was not material, as it could not mislead. Though the act says the writs shall be according to the forms there given, it could never have been intended that a writ must conform to the act in every word and letter. The direction of a Palace Court writ is very different: it is "To the bearers of the virges of our household, the officers and ministers of our Court of our Palace of Westminster, and every of them." In Tidd's Forms (a) there are forms of writs directed to the Marshal very similar to the present: a habeas corpus ad respondendum against a prisoner, directed" To the Marshal of our Marshalsea before us;" another writ in the Exchequer directed simply thus-"To the Marshal of our Marshalsea, or his deputy there." A writ directed to the sheriff instead of" sheriffs" of London was held not to be irregular on that account. Clutterbuck v. Wiseman (b), and Tidd's Practice (c). LITTLEDALE, J.-I have sent in to the other Judges, and two of them are of opinion that the writ is not properly directed: the rule must, therefore, be made absolute. (a) Last edition, pp. 124, 125. Rule absolute. (c) 9th ed. 151, citing MS. E. 21 Geo. 3, K. B. Service on an under joint-tenant is good service on him and a joint-tenant. DOE d. HUTCHINSON v. ROE. ADDISON moved for judgment against the casual ejector. It appeared that the service was regular, except as to one of the tenants, who was joint-tenant with one who had underlet and whose tenant had been regularly served. In Doe d. John Bailey v. Roe (a) it was held that ser (a) 1 B. & P. 369. vice of a declaration in ejectment on one of two tenants in possession is good service on both. In the present case à fortiori must the service on one be sufficient. LITTLEDALE, J.-You may take your rule. Rule granted. 1833. DOE d. HUTCHINSON บ. ROE. DOE d. STEPPINS v. LORD. does not proceed defendant's re GOULBURN, Serjt., shewed cause against a rule ob- If a plaintiff tained by Mansel, for judgment as in case of a nonsuit to trial pursuant for not proceeding to trial pursuant to notice. It appeared to notice, at the by the affidavit, in answer to the rule, that the defendant's quest, he is not entitled to judgattorney requested the plaintiff not to proceed to trial, on ment as in case the ground of such a proceeding being at that time incon- of a nonsuit. venient, as he was not then prepared with his defence. Accordingly, the plaintiff did not proceed. After that default, which was committed at his express desire and to oblige the defendant, he came to the Court to move for judgment as in case of a nonsuit. The plaintiff was not entitled merely to discharge the present rule, but to have the costs of coming to oppose it. Mansel supported the rule. PATTESON, J.-The present rule must be discharged, as it appears that the plaintiff did not proceed to trial pursuant to notice, solely at the instance of the defendant's attorney, and then that very attorney now comes and moves for judgment as in case of a nonsuit. The rule must, therefore, be discharged, under the circumstances, with costs. Rule discharged, with costs. 1833. It is not sufficient to state in the notice at the foot of a de claration in ejectment, that the tenant is tor. DOE d. FORBES v. ROE. ADDISON moved for judgment against the casual ejecThe peculiarity in the case was, that the notice at the bottom of the declaration was "to appear in due time," instead of" to appear in Michaelmas Term next." The nature and object of the service was explained by the person effecting it. LITTLEDALE, J.-The tenant in possession cannot be supposed to know what is the practice of the Court, and therefore directing him "to appear in due time" gives him no information. The service is not sufficient, and the rule, therefore, cannot be granted. Rule refused. If a defendant unnecessarily rules a plaintiff to enter the is sue, he is not thereby deprived of his right to obtain judgment as in case of a nonsuit. HUTCHINSON shewed cause against a rule for judgment as in case of a nonsuit, obtained by Harrison. The defendant had, notwithstanding 1 Reg. Gen. H. 2 Will. 4, ruled the plaintiff to enter the issue. By sect. 70 of that rule, it is ordered that "no entry of the issue shall be deemed necessary to entitle a defendant to move for judgment as in case of a nonsuit, or to take the cause down to trial by proviso." Having ruled the plaintiff unnecessarily to enter the issue, it was entered accordingly. The defendant must thereby be taken to have waived his right. Harrison, contrà, contended, that, although it was not "necessary" to enter the issue, the fact of the defendant ruling the plaintiff to enter it could not interfere with his right to obtain judgment as in case of a nonsuit. LITTLEDALE, J.-If the entry of the issue is unneces sary, the fact of its being entered can be of no consequence, or at all interfere with the right of the defendant to move for judgment as in case of a nonsuit. Rule discharged on a peremptory undertaking. 1833. SARJEANT v. JONES. In re G. CHITTY, Gent., One &c. (Before the four Judges.) torney has not respect to the loan of money, independent of his character of attorney, the Court will not summarily compel him to fulfil it. BUTT moved for a rule to shew cause why Mr. Chitty, Where an atan attorney of this Court, should not give up to the Rev. fulfilled his enMr. Dowland a promissory note for 300l., and a policy of in- gagement surance on the life of Mr. Dowland. The motion was founded on an affidavit, stating that, in 1829, Mr. Chitty lent Mr. Dowland 300l. on the security of a note for that amount and a policy of insurance on the life of the borrower. In 1831, Mr. Chitty sold for Mr. Dowland a reversionary interest in a sum of 7000l. From the proceeds of this sale, Mr. Chitty paid himself the 3007. with interest and expenses, and the balance to Mr. Dowland. On this settlement the latter required the note and policy to be given up to him, when Mr. Chitty said he had left the note at home, but would either forward it on the next day, or destroy it. The note and policy were not sent, and nothing further was heard of them until a few months since, when the personal representatives of a banker at Shaftesbury, where Mr. Chitty lived, applied to Mr. Dowland for the amount of the note, and threatened to enforce their claim by an action. Then it appeared that Mr. Chitty had paid the note into his bankers as a security for money advanced to him. Per Curiam.-We think it would be carrying the rule further than the authorities will warrant if we were to 1833. In Re CHITTY. grant this motion. The misconduct of Mr. Chitty in not returning the note was not misconduct in his employment as an attorney, the transaction between the parties being not that of an attorney and client, but of borrower and lender. Rule refused. MILNER v. GRAHAM and Another. Under 1 Reg. BUSBY applied for a rule to shew cause why the Master Gen. H. T. 2 Will. 4, s. 74, entitled to the costs of all issues found for him, although costs of those found for the plaintiff. should not be directed to tax the defendant his costs, the defendant is under the provisions of 1 Reg. Gen. H. T. 2 Will. 4, s. 74. To the declaration there were several pleas, all of which, with the exception of one, were found for the defendant. they exceed the On the one found for the plaintiff, the jury gave a verdict for a farthing damages, and the Judge certified to deprive the plaintiff of any more costs than damages. On taxa. tion a difficulty arose on the construction of the above rule, the words of which were, that "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." As only one farthing costs was allowed to the plaintiff, it would of course be impossible to deduct the defendant's costs, which of course in this case were much more, from them. The question, therefore, was, whether the word " deduct" was to be considered as compulsory. It should seem that the meaning and intention of the rule were, that the defendant should be allowed the costs of the issues found for him, without regard to the amount of the plaintiff's costs. LITTLEDALE, J.-It appears a very proper question for consideration, and, therefore, you may take a rule nisi. Rule nisi granted. |