1834.

WELLS

SECRET.

It is true, that, in the summons to plead several matters, there are the words, " and why in the meantime proceedings should not be stayed." Those words, however, might be discarded as surplusage, as they are mere words of form, introduced into the summons, which could not entitle the defendant to a stay of proceedings if he were not otherwise entitled to it.

PARKE, J.-Is not the effect of this summons the same as if the defendant had taken out two summonses, one to plead several matters, and the other for further time to plead? It appears to me to be the same in substance as two summonses. It having been made returnable at eleven o'clock on the day after that on which the time for pleading expired, it operated as a stay of proceedings when that hour struck. The plaintiff, therefore, had no right to sign judgment after eleven o'clock, the Judgment Office not opening till then. The judgment, therefore, must be set aside, without costs, as there was some nicety in the point (a).

Rule absolute, without costs.

(a) Mr. Tidd, in the 9th edition of his Practice, p. 470, has this passage:-" When the object of the summons is collateral to the time for pleading, as to discharge the defendant out of custody on

filing common bail, &c., it will not in general operate as a stay of proceedings." For this, however, he cites no case, but only a dictum of the Court of King's Bench, M. T. 28 Geo. 3.

In order to bring a party

into contempt

Ex parte FORTescue.

BINGHAM moved for a rule to shew cause why an at

tachment should not issue against an attorney of this Court,

for non-delivery for not delivering up a bond pursuant to a rule for that

of a bond, pur

suant to a rule

of Court, the

demand of it must be made by one of the parties mentioned in the rule as entitled to receive it.

purpose. The rule directed that it should be delivered to the plaintiff, his attorney, or agent. The demand, however, was made by a clerk to the plaintiff's attorney. The question was, therefore, whether disobedience to such a demand would subject the attorney to an attachment as for a contempt.

PARKE, J.-That will not do. The rule is to deliver up the bond to the plaintiff, his attorney, or agent. A demand should therefore have been made by one of those three persons, in order to bring the attorney into contempt. Here the demand was made by the attorney's clerk, who is not entitled to receive it from him. Nor is the attorney bound to deliver it to him. The attorney, therefore, by not delivering it on such a demand, is not guilty of a contempt, and is therefore not liable to an attachment.

Rule refused.

1834.

Ex parte FORTESCUE.

DOE d. VISGER v. ROE.

THEOBALD moved for a judgment against the casual Service in ejector. The deponent, who made the affidavit on which ejectment. he moved, had gone to the premises and seen the tenant in possession. He offered the declaration to the tenant, who refused to take it. He then laid it on a chair in the room, and explained the nature and object of the service. The tenant then left the room, stating that he would not take any paper from the deponent, or any other person on the part of the lessor of the plaintiff.

1834.

If an attorney

has practised

abroad during

a period for which he has

not taken out his certificate,

Ex parte PHILCOX.

J. WILLIAMS moved to re-admit an attorney without payment of fine or arrears of duty. The attorney had discontinued to take out his certificate for four years, during that period he had not practised in this country,

he may be re- although he had practised abroad.

admitted with

out payment of arrears of duty

or fine.

and

PARKE, J.-That is sufficient to entitle him to re-admission without payment of arrears of duty or fine. The act only applies to practising in this country. Let him be readmitted, therefore, without paying any fine or arrears of duty.

Re-admitted accordingly.

ten years, it is

too late to ob

ject that a ha.

cor. ad satisfa.,

on which the defendant is charged in execution, was not indorsed with

WILSON v. BACON and Others.

After a lapse of MANSEL moved for a rule to shew cause why the defendant should not be discharged out of custody, on the ground that the habeas corpus ad satisfaciendum, on which he was charged in execution, was not indorsed with the number roll. A judgment was obtained against the defendant in the year 1811. In the year 1824, that judgment was revived by sci. fa., and a habeas corpus ad satisfaciendum issued, and on it the defendant charged in execution. On that writ the number roll was not indorsed pursuant to the directions of Reg. Gen, M. 1654.

the number

roll.

PARKE, J.-As the defendant has acquiesced for ten years, it is now too late for him to take advantage of that objection, although it might have been a fatal one if it had been taken in proper time.

Rule refused.

1834.

WHITE v. WESTERN.

DOWLING moved for a distringas.—The affidavit in support of his motion stated that three calls had been made, and the two latter, pursuant to appointments, together with the requisite explanation. The copy of the summons was left at the third call; eight days had elapsed since then, and no appearance had been entered. It was clear from the affidavit that the defendant was keeping out of the way to avoid service of the process; and the only peculiarity in the case was, that the two latter calls had been made on the same day.

PARKE, J.-That is of no consequence.

It is only ne

cessary to shew, that, when the calls are made, the defendant is keeping out of the way.

Rule granted.

Ex parte JONES.

torney has been

out his certifi

tled to take it

out without re

admission.

STEER applied to re-admit an attorney, if, on the state- Where an atment of circumstances, it should appear necessary that he admitted, but should be re-admitted. He had been admitted already has never taken for more than a year, but had never taken out his certificate, he is enticate, nor had he practised. He had given the usual notices previous to re-admission; and the application now was, that he should be re-admitted if the Court should be of opinion that re-admission was necessary. He contended that re-admission was unnecessary; for the rule of Court only contemplated the case of attornies who had been admitted, taken out their certificate, and afterwards ceased to take it out.

PARKE, J., (after referring to Master Chapman).—It appears to me that he requires no re-admission; the rule

1834.

Ex parte
JONES.

only applies to those cases in which an attorney has taken out his certificate after admission, and then ceased to take it out.

Where a de

fendant is resi

dent in the West

Indies, a judg

ment may be signed against him on a warrant of attorney, if seen alive four

months before.

FURSEY V. PILKINGTON.

BUTT moved to enter up judgment on an old warrant of attorney. The affidavit on which he moved stated, that the defendant was seen alive in September last, in the year 1833, in the West Indies, and that it was believed that he was still living, and on service there.

PARKE, J.-I think that will do, as, from the distance no one can make an affidavit of his being alive within the term, nor can you receive a letter from him dated within the term. You may, therefore, take a rule for judgment, and, if it turns out that he was not alive within the term, his representative may apply to set it aside.

Rule granted.

grant a rule

nisi for judgment against the casual ejec

DOE d. FORBES v. ROE.

The Court will DUNDAS moved for judgment against the casual ejector. The person endeavouring to effect the service called at the house and saw the tenant in possession. He produced the declaration to him and explained the object of it. The tenant refused to take it, and the deponent brought it away with him.

tor, where the

nature and ob

ject of the pro

cess has been explained to the tenant, but, in

consequence of

his refusal, the

not been left

PARKE, J.-If he had left it there with the tenant, or declaration has at the house, there would have been no difficulty, and you would have been entitled to your judgment. You may, however take a rule to shew cause.

with him.

Rule nisi granted.