1845.

BARTLETT

v.

BINSON.

acknowledgment in writing, and that the plaintiff was not under any of the disabilities which would prevent the statute from operating.

Byles, Serjt., and D. Power, in support of the rule. The pleas are bad for want of an averment that the plaintiff took the bill after the dishonour by non-acceptance, and with notice of that fact. The case of Lewis v. Lady Parker (a), shews that the onus of proof would lie on the defendant, consequently he was bound to make the proper averments in his plea. In Cripps v. Davis (b), which was an action by the indorsee against the maker of several promissory notes, the defendant pleaded, that before the indorsement to the plaintiff, and whilst one L. was the holder, it was agreed between him and the defendant that the amount of the notes should be set off against monies due from L. to the defendant; that the notes were thereby satisfied and discharged, and that L. afterwards indorsed them to the plaintiff: and that plea was held bad, for not shewing distinctly that the notes were overdue, when indorsed by L. to the plaintiff. They also cited Whitehead v. Walker (c), and Blesard v. Hirst (d).

POLLOCK, C. B.-The rule must be discharged. The pleas afford a primâ facie answer to the action, and it seems to me that it was not necessary for the defendant to do more. Possibly the plaintiff might have stated in his replication circumstances which would have been an answer to the plea, but in that case I am not prepared to say that the replication would not have been a departure from the declaration. The point which we are now called upon to decide is, whether the defendant is bound to give more than an entire answer to the declaration. I think he is not. Reference has been made to the case of accommodation

bills, but they bear no analogy to the present case. A bill

(a) 4 A. & E. 838; S. C. 6 N. & M. 294.

(b) 12 M. & W. 159.

(c) 9 M. & W. 506; S. C. 1 Dowl. 600, N. S.

(d) 5 Burr. 2670.

of exchange imports consideration, and if the defendant means to impeach the plaintiff's title by denying it, he must get rid of that which is in effect an allegation contained in the declaration. But here the defendant was not bound to exclude every possible title in the plaintiff; it is enough for him to give a primâ facie answer; and if circumstances exist which would enable the plaintiff to recover, he should allege them, as they lie within his knowledge.

PARKE, B.—I am of the same opinion. Both pleas afford a good defence, and if the plaintiff had any answer he should have replied it. The title which he relies upon is the indorsement to him before the bill became due: the pleas put an end to that title, for they shew that the plaintiff indorsed the bill to some other person who presented it for acceptance, which was refused, and that no notice of that fact was given to the defendant. That is primâ facie an answer to the plaintiff's claim. The inference here is, that the plaintiff took up the bill upon its dishonour, and so was remitted back to his old title. I am not prepared to say whether or not the plaintiff could have replied any other title, without being guilty of a departure; but I am inclined to think that he could not. It is not however necessary for us to determine that point.

ALDERSON, B.-The plaintiff, by his declaration, says, "I am the holder of the bill, and my title consists of the indorsement by the defendant to me." The defendant is bound to answer that title in omnibus, and he does so. If the declaration is to be considered as alleging that the plaintiff was a bonâ fide holder for value, the defendant by his plea admits that fact; but shews that the plaintiff notwithstanding has no right to sue because he indorsed away the bill to an unknown party, by whom it was presented for acceptance and dishonoured, and that the defendant had no notice of that fact. That plea puts an end to the title upon which the plaintiff relies. The plaintiff must then

1845.

BARTLETT

v.

BENSON.

1845.

BARTLETT

v.

BENSON.

shew some other title consistent with the admissions in the plea, and the question then arises, whether he can do so without departing from the declaration, or whether he ought not originally to have stated it in his declaration? Upon that point I give no opinion, but I entertain no doubt whatever that the pleas are good.

ROLFE, B.-The plaintiff in his declaration relies upon the fact that he is the indorsee of the defendant, and in order to succeed he must put an end to the answer given by the plea. I very much doubt whether he can do that by shewing that he was the indorsee of some other person.

Rule discharged.

An attorney

on being re

In re STRETTON.

PEACOCK had obtained a rule nisi to review the

tained to bring Master's taxation of Stretton's bill of costs. The affidavits

an action, gave in support of the application stated, that Stretton had been the following undertaking: retained by one Chester to bring an action against Chapman, "Should the damages or when the following undertaking was given :— costs not be

sum and costs, judgment was entered up.

"Sir,

"Yourself v. Chapman.

"Should the damages or costs not be recoverable in this action, under the circumstances, I shall charge you costs out of purse only.

"Yours, &c.,

"C. M. STRETTON."

The defendant took the benefit of the Insolvent Act, and the dividend on his estate awarded to the plaintiff was 2721. odd The Master, on taxation, allowed the attorney costs out of pocket only, but referred the matter to a Judge, who directed the taxation of costs out of pocket only. A second summons was taken out before the same Judge, to review the taxation, and dismissed. Held, first, that the party was not precluded from appealing to the Court; and secondly, that the taxation was incorrect.

The action was accordingly commenced, and Chester obtained a verdict, with 6007. damages. The costs were taxed at 917. 4s. 6d., and judgment was duly entered up and registered for the amount of damages and costs. Chapman afterwards took the benefit of the Insolvent Debtors' Act, and the sum of 2721. 3s. 44d. was ascertained and appropriated to Chester, as his dividend on the 6914 4s. 6d., damages and costs. On the 29th of May last, the Master taxed Stretton's costs out of pocket only, and gave a certificate to that effect, in order to take the opinion of a Judge at Chambers as to the correctness of the principle; but the application was not to prejudice the parties if consented to. Accordingly a summons was taken out, and heard, on the 5th of June, before Parke, B., and an order made to tax the costs out of pocket only; and, on the 12th of June, the Master completed the

taxation.

Atkinson shewed cause upon affidavits, which stated, that the Master taxed absolutely, and not de bene esse, and denied that the application was without prejudice; that the summons taken out on the 29th of May was dismissed, with costs, by the Chief Baron on the 31st, (Stretton not attending;) that on the 2nd of June, Stretton took out another summons to review the taxation, which was heard before Parke, B., on the 5th, when the above mentioned order was made; that, on the 10th of June, another summons to review the taxation was taken out by Stretton, and dismissed by Parke, B., on the 13th of June. Upon these facts it was contended, that Chester, having his option to appeal from the Master's decision, either to the full Court or to a Judge at Chambers, had made his election, and, consequently, that there was no further appeal to this Court. Thompson v. Becke (a) is in point. There, a Judge at Chambers dismissed a summons with costs: the unsuccessful party paid the costs, but immediately after

(a) 4 Q. B. 759; See S. C. 1 D. & M. 49.

1845.

In re STRETTON.

1845.

In re STRETION.

wards applied to the Judge, on further summons, to rescind the order. The Judge, learning from the affidavits that the costs had been paid, dismissed the application as made too late. On motion to the Court to rescind the first order, it was held, that the parties having appealed to the Judge who made the order, were bound by his decision, and could not make a further appeal to the Court. [Pollock, C. B.-There is an appeal to the Court from every order made by a Judge at Chambers, except where the Judge has a sole authority. In the case cited, there was an appeal to the Judge who made the order to review his decision, and in such a case I can well understand, that there is an implied agreement that the Judge's decision shall be final; but in this case, the application to my Brother Parke was not by way of appeal from his former decision. Alderson, B. -As a general rule, the party may always appeal to the Court; the exception is, where the Judge has a sole jurisdiction, either by act of Parliament, or otherwise. If it were not so, there is hardly any case in which a Judge gives an opinion at Chambers which would not be final. Whenever parties come before me at Chambers, and I see that the question is one to go to the Court, I say that I will not determine it, but that if they choose to treat my opinion as final, I will give it. Where a rule is enlarged to be heard at Chambers, the decision of the Judge is final, for there is an agreement to substitute the Judge for the Court. It is upon that ground that Thompson v. Becke (a) was decided: there Lord Denman says, "If the second application had been made to this Court, and counsel had admitted that, before making it, the costs had been paid, the Court would have done what my Brother Coleridge did. The defendants here have put him in the place of the Court. Knowing that the Judges sometimes review their own orders, they have taken their chance of such a result in this case; and they must abide by the decision."] With respect to the attorney's right to these costs, it is submitted, that as Chester was

(a) 4 Q. B. 759; See S. C. 1 D. & M. 49.