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1860.

CARR

1.

DUCKETT.

out on the ground that it amounts to the general issue; reformed on the ground that it is doubtful whether the defendant meant to set up as a defence "not guilty" or a justification, and consequently it was a pleading calculated to embarrass the plaintiff. The plaintiff not having done so, the defendant is entitled to judgment on the demurrer. Judgment for the defendant.

June 8.

Where a writ has issued for a sum under 202., the

notice men. tioned in the indorsement

thereon, pur

THIS

WOODWARD v. North.

HIS was a rule to rescind an order of Wilde, B., whereby the execution in this cause and all the subsequent proceedings were set aside, on the ground that, as the defendant gave notice to the plaintiff that he objected to the ant to Reg. payment of costs, a summons should have been previously taken out and served, to enable the plaintiff to recover such costs. The order was obtained on affidavits, which stated that on the 27th April the defendant was served with a writ to recover the sum 107. 16s. 7d. This writ, in pursu

Gen. E. T.

1857, of the defendant's intention to oppose the plaintiff's application for

costs, is a notice within

the Reg. Gen.

H. T. r. 161, and must therefore be in writing.

ance of the Rule, E. T. 1857, was indorsed as follows:

"Take notice, that if judgment be signed for default of

appearance the plaintiff will, without summons, apply to a Judge for his costs of suit, unless before such judgment you shall give notice to him, or his attorney, that you intend to oppose such application." On the 4th May the defendant called at the office of the plaintiff's attorney and paid his clerk the debt indorsed on the writ; and at the same time told him that he disputed his liability to pay the costs. No summons was served on the defendant calling on him to shew cause why he disputed his liability to pay the costs; and on the 16th May execution was leved for 4l. 14s. 8d. the costs of the action.

The affidavit of the clerk, in support of the rule, stated that at the time he received the debt he claimed the costs, and told the defendant that unless they were paid the action would be proceeded with: that the defendant never gave any notice verbally or in writing that he intended to oppose any application to be made to a Judge for the costs of the action: that a Judge's signature to the indorsement on the writ of summons was obtained, which entitled the plaintiff to his costs of suit.

Gates now shewed cause.-The notice to the plaintiff, that the defendant disputed his liability to pay the costs, was sufficient, although not in writing. The case is not within the Reg. Gen. H. T. 1853, r. 161, which provides. that "all notices required by these rules, or by the practice of the Court, shall be in writing." The notice mentioned in the indorsement on the writ of summons was not a notice required by the Reg. Gen. H. T. 1853, but by a subsequent rule of E. T. 1857; and the practice of the Court does not require a defendant to give notice that he disputes his liability to costs. [Martin, B.-This is a notice required by the rule of E. T. 1857, which prescribes the practice of the Court, and consequently it is required to be in writing by the Reg. Gen. H. T. 1853.]

Prentice appeared to support the rule, but was not called

upon.

1860.

WOODWARD

v.

NORTH.

Per CURIAM (a).-The rule must be absolute to rescind the order.

Rule absolute.

(a) Pollock, C. B., Martin, B., Bramwell, B., and Channell, B.

VOL. IV.-N. S.

FFF

EXCH.

1860.

June 2.

K. being charged by the plaintiff

with an assault

committed in turning him out of certain premises in

which he had

agreed to sell

wine on com

mission under

an agreement, with J.;

the defendant, an attorney, appeared for K., and stated

that J. bad sufficient reasons for de

MACKAY v. FORD.

DECLARATION.-That the defendant on the 29th

of September, 1859, in the presence of divers liege subjects, spoke and published of the plaintiff, in his business of a retailer of wine and spirits, the false, scandalous, malicious, and defamatory words following:- "I think there is sufficient cause for determining at once the connection between Mr. Jones and Mr. Mackay (meaning the plaintiff). Mr. Jones has been plundered by this man (meaning the plaintiff) to a frightful extent."-Averment: that by reason thereof the plaintiff was greatly injured in his business, &c.; and that J. W. and W. A. refused to employ the plaintiff or

termining the have dealings with him in his trade, &c.

agreement; that he had

been plundered by the plaintiff to a frightful

extent.-Held,

Plea.-Not guilty.

At the trial, before the Recorder of London, at the Spring Assizes at Chester, it appeared that the plaintiff that no action had been employed by one Jones, under an agreement, by lay against the defendant for which Jones agreed to supply the plaintiff with wines, &c., the words so uttered by him which the plaintiff was to sell, taking for himself all that he could get above certain prices specified, and having the use An attorney of some wine vaults and the fixtures therein, for the purpose acting as an

in defence of

his client.

advocate has the same privilege as counsel.

of selling the wines, he paying 47. a week for such accommodation. The rent, rates and taxes to be paid by Jones, and twelve months' notice to be given on either side of the determination of the agreement. Jones having subsequently executed an assignment of his estate to trustees for the benefit of his creditors, and the trustees having sold the premises to one Eaton, Eaton required the plaintiff to leave the premises. He refused to go, whereupon one Kelly, the servant of Eaton, forcibly turned him out of possession.

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1860.

MACKAT

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FORD.

1860.

June 2.

K. being
charged by
the plaintiff
with an assault

committed in
turning him
out of certain
premises in

which he had agreed to sell mission

wine on com

under

an agreement, with J.;

the defendant, an attorney, appeared for K., and stated

that J. bad sufficient reasons for de

MACKAY v. FORD.

DECLARATION.-That the defendant on the 29th

of September, 1859, in the presence of divers liege subjects, spoke and published of the plaintiff, in his business of a retailer of wine and spirits, the false, scandalous, malicious, and defamatory words following:- "I think there is sufficient cause for determining at once the connection between Mr. Jones and Mr. Mackay (meaning the plaintiff). Mr. Jones has been plundered by this man (meaning the plaintiff) to a frightful extent."-Averment: that by reason thereof the plaintiff was greatly injured in his business, &c.; and that J. W. and W. A. refused to employ the plaintiff or

termining the have dealings with him in his trade, &c.

agreement; that he had been plundered by the plaintiff to a frightful

extent.-Held,

that no action

lay against the defendant for

the words so

uttered by him

in defence of his client.

Plea.-Not guilty.

At the trial, before the Recorder of London, at the Spring Assizes at Chester, it appeared that the plaintiff had been employed by one Jones, under an agreement, by which Jones agreed to supply the plaintiff with wines, &c., which the plaintiff was to sell, taking for himself all that he

could get above certain prices specified, and having the use An attorney of some wine vaults and the fixtures therein, for the purpose acting as an

advocate has the same privilege as counsel.

of selling the wines, he paying 47. a week for such accommodation. The rent, rates and taxes to be paid by Jones, and twelve months' notice to be given on either side of the determination of the agreement. Jones having subsequently executed an assignment of his estate to trustees for the benefit of his creditors, and the trustees having sold the premises to one Eaton, Eaton required the plaintiff to leave the premises. He refused to go, whereupon one Kelly, the servant of Eaton, forcibly turned him out of possession.

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