1845. WALFORD v. FLEETWOOD. [Parke, B.-Ought not the plea to have gone on to aver that the defendant was not an attorney of this Court?] It has been expressly decided, that such averment is unnecessary (a). Secondly, the replication is bad in form, for it should have concluded with a prout patet per recordum, and not with the ordinary verification. Since the 6 & 7 Vict. c. 73, s. 2, the fact of a person being an attorney is matter of record; and, therefore, the issue as to that fact must be tried by the record, and not by the country ; Rex v. Banbury (b). [Platt, B.-That objection applies also to the plea.] Pashley, contrà. In ancient times there was a reason for allowing this privilege to an attorney of the Court of Queen's Bench, viz., because that Court was not stationary at Westminster, but might be held at any place in the kingdom, and every officer was bound or presumed to attend it. But that reason has ceased, and with it the privilege. If this replication be held bad, the consequence would be that an attorney could not be sued at all; for if he happened also to be an attorney of the Court of Common Pleas, he might plead that in answer to another action commenced in the Court of Queen's Bench. The objection to the form of replication is not available on general demurrer. Atkinson, in reply. The reason for allowing the privilege still remains; for there is no act of Parliament which requires the Court of Queen's Bench to sit in Westminster Hall, and the Queen might (if she thought fit) command it to follow her, ubicunque fuerit in Angliâ. If, therefore, the ambulatory nature of the Court was the true origin or cause of the privilege, there is still a valid reason for its continuance. (a) Percival v. Cook, 5 M. & W. 293; S. C. 7 Dowl. 500; Hunter v. Neck, 3 M. & G. 181; S. C. 3 Scott. N. R. 448. Besides, the venue of the Court of Queen's Bench being transitory, and the venue of this Court local, as appears from the forms of the modern writs and old entries; there is a distinction between a privilege claimed in the one Court and the other. With respect to the conclusion of the plea, pleadings in abatement are not within the 4 & 5 Ann. c. 16; and, therefore, the formal objection may be taken on a general demurrer; Lloyd v. Williams (a). PER CURIAM (b).—The objection as to the informal conclusion of the replication applies equally to the plea. But we think the replication good in substance. The defendant being an attorney of both Courts, the plaintiff may choose in which Court he will sue him. There must, therefore, be judgment for the plaintiff. (a) 2 M. & S. 484. Judgment quod respondeat ouster (c). (c) See Rastrick v. Beckwith (b) Parke, B., Rolfe, B., and and Others, ante, vol. 2, p. 624. Plutt, B. 1845. WALFORD v. FLEETWOOD. COOK v. SWIFT. statute re quires certain qualifications in persons DEBT for penalty. The second count of the declaration Where a acting under it, and pro.. vides that in an action for penalties for acting without qualification, the defendant shall prove that he was duly qualified, it is sufficient to allege in the declaration that the defendant was not qualified, without specifying in what his disqualification consisted. Since the rule of H. T., 4 Wm. 4, r. 8, the venue is the county for all purposes: therefore, in declaring for a penalty, it is not necessary to aver that the offence was committed within the county in which the venue was laid. 1845. Cook v. SWIFT. missioner in the execution of the said act, although he was not at the time of his acting as such commissioner, duly qualified to act as a commissioner in the execution of the said act; contrary to the form of the statute in such case made and provided; by means whereof actio accrevit, &c. Special demurrer, assigning for cause, that the count does not show in what respect or on what ground the defendant was not duly qualified to act as a commissioner, or of what his qualification should have consisted; also, that the count is double, inasmuch as there being several grounds of disqualification mentioned in the statute, the plaintiff by stating generally that the defendant was not duly qualified to act as a commissioner, involves the whole of them in the issue; notwithstanding the defendant was liable to the penalty, if disqualified on one ground only: also that it does not appear that the offence was committed or the penalty incurred within the county where the venue was laid. Martin, in support of the demurrer. The declaration is bad, for the causes assigned. The 9th section of the 4 & 5 Vict. c. cxii., enacts, " that every male person of the age of twenty-one years, being a resident member within the said town of Blackburn, or within three miles of any part of the boundary thereof, and either being rated to the rate made for the relief of the poor of the same township in the annual sum of thirty pounds or upwards, or being seised or possessed or in the enjoyment for his own use, of the rents and profits of lands and hereditaments within the said township of the annual value of thirty pounds for an estate not less than a life in being, or for a term of years of which not less than twenty-one years shall be unexpired, and whether determinable on a life or lives or not, shall be a commissioner for carrying this act into execution." The 18th section enacts, that at the meeting of commissioners, at which any person shall first attend as one of such commissioners, such person shall make and subscribe the declaration therein required. Then follows the section upon which the present action is founded. The 19th section enacts, "that if any person shall act as a commissioner being incapacitated to act, or not being duly qualified, or before he shall have made or subscribed such declaration as aforesaid, or after having become disqualified, he shall for every such offence forfeit the sum of fifty pounds; and such penalty may be recovered with full costs of suit, in any of her Majesty's Courts of record at Westminster, by any person who shall sue for the same by action of debt or on the case, and in every action for the recovery of such penalty the person so sued shall prove that he was qualified, and had made and subscribed the declaration aforesaid, or he shall pay the said penalty and costs, without any other proof or evidence on the part of the plaintiff than that such person hath acted as a commissioner in the execution of this act." The qualification is threefold; the person must be of age, resident within the township, and rated to the poor in the annual sum of thirty pounds, or possessing certain property. This declaration is too general, it alleges, that the defendant having none of those requisites has become liable to the penalty. It ought to specify the particular ground of disqualification upon which the plaintiff relies. The effect is to impose considerable hardship on the defendant, for if the plaintiff fail as to one ground, he may resort to another. In Stephen on Pleading (a), it is said, with respect to the rule, that pleadings must not be double. "This rule applies both to the declaration and subsequent pleading. Its meaning with respect to the former is, that the declaration must not in support of a single demand allege several distinct matters, by any one of which that demand is sufficiently supported." [Parke, B.-This declaration is enough to bring the case within the act of Parliament; especially as, by the same section which im (a) Page 279, 4th ed. 1845. Cook v. SWIFT. poses the penalty, the burden of proof is cast on the defendant. Pollock, C. B.-The act says, that any person may be sued, and that then he must prove his qualification ; your construction of the act would limit the proof to one particular]. It would be clearly a bad count to allege that the defendant acted as a commissioner, and that he was not twenty-one years of age, or that he did not reside in the borough; or that he was not rated to the poor. This declaration is in effect the same. [Parke, B.-In debt on the Game Acts, the declaration never stated in what way the defendant was not qualified]. Secondly, the declaration is defective, in not alleging that the defendant acted within the county. [Parke, B.-Is not that cured by the rule of Court (a), which makes the venue the county for all purposes]. That rule does not affect the statutes 31 Eliz. c. 5, and 21 Jac. 1, c. 4. [Pollock, C. B.-Those statutes are satisfied, if it is averred, that the offence was committed within the county. As the venue is now the county, it is so averred in this declaration. Parke, B.-You had better amend.] Amendment accordingly. (b) Reg. Gen., H. T. 4 Wm. 4, part II. r. 8. Where a verdict has been found for one of several de fendants, and against the others, and the latter apply to set it aside; the rule should call on the successful defendant, as well as the plaintiff, to shew cause. BELCHER V. MAGNAY and Others. IN this case a verdict had been found for one of several defendants, and against the others. The latter afterwards obtained rules, calling on the plaintiff to shew cause why the verdict for the plaintiff should not be set aside, and a new trial had. On the rules coming on for argument, Watson, (with whom was Humfrey), objected to the form of the rules, on the grounds, first, that they only proposed |