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the same year, and the commission finds, on the oath of
The second objection raised upon the record was that the writ of scire facias, issued before the commission was returnable; and, therefore, before any debt appeared upon
(a) 12 M. & W. 520. VOL. III.
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1. & L.
the record, the commission being returnable on the 15th of April, and the scire facias bearing teste on the 30th of March, and being made returnable on the same day as the commission, namely, the 15th of April. But we are of opinion that that objection amounts only to an irregularity, and not to error on the record. In the case of Rex v. Pearson (a), on which the plaintiff in error relies, the objection, which is precisely the same as the present, was treated by the defendants as matter of irregularity only, and so held by the Court. The scire facias in this case is only in the nature of process to bring the party into Court to answer; and if the teste of mesne process be too early, that does not make the process a nullity but irregular only. We, therefore, think that the judgment of the Court of Exchequer must be affirmed.
Judgment affirmed. (a) 3 Price, 288.
BEVINS v. HULME.
THE parties in this case, which is reported ante, p. 309, The declara.
fed ibat not having consented to amend, the following judgment of tion stat the defendant the Court was afterwards delivered by and A. were in partnership as attorneys, and in consideration that the plaintiff would retain them as such attorneys, to conduct an action at the suit of B. against one L. for negligent driving, the defendant and his partner promised to fulfil their duty as such attorneys in and about prosecuting the said action, and recovering damages : it then alleged that the defendant and his partner did, under the said retainer, commence an action against L., and such proceedings were thereupon taken that B. recovered judgment against L. for 561. 158.: that afterwards the defendant and his said partner, as such attorneys as aforesaid, for obtaining satisfaction of the said damages, sued out a writ of fi. fa., to which the sheriff returned that he had levied 91., part of the damages, and nulla bona as to the residue : that the defendant and his said partner, as such attorneys as aforesaid, for obtaining satisfaction of the said residue, issued a ca, sa., by virtue whereof L. was imprisoned, and paid the residue of the damages to the governor of the gaol, who paid the same to the defendant and his partner, as such attorneys as aforesaid : that before they received the same they sent, as such attorneys as aforesaid, to the gaoler, a discharge of L. out of custody, by virtue whereof he was discharged. Breach : that although the defendant and his partner received the said damages, and the plaintiff duly paid to them, as such attorneys as aforesaid, their costs and charges of prosecuting the said action, yet they had not paid to B, or the plaintiff, the residue of the said damages.
Held, that the declaration was bad on special demurrer, for not shewing with sufficient certainty that the money which the defendant had received and not paid over, was money received by the defendant and his partner as attorneys in the action, under the retainer.
Held also, that the original retainer was not determined by the judgment; but continued afterwards so as to warrant the attorney in issuing execution within a year and a day; or afterwards, in continuation of a former writ of execution issued within that time, and also to warrant his receiving the damages without a writ of execution (a). (a) The reader is requested to cancel the marginal note, ante, p. 309, and to substitute the above.
PARKE, B.-This case was argued before my Lord Chief Baron, my Brothers Alderson and Platt, and myself, in the course of last Michaelmas Term.
The action is on a special contract between the defendant and one Andrew, who are stated to be in partnership as attorneys, and the plaintiff; and it is averred that in consideration, &c. [His Lordship here read the declaration.] To this declaration there is a demurrer, assigning several causes ; but the material one is, that it is not alleged that the defendant and Andrew, in receiving the money, acted on the retainer of the plaintiff. Though the declaration would we think, have been good after pleading over, or on general demurrer, it seems to us that it is bad for the cause assigned. The contract declared upon is that made in consideration of the original retainer, by the plaintiff, of the defendant and Andrew to prosecute a suit, in the name of another person, for reward to be paid by the plaintiff; and the defendant and Andrew's promise is to perform and fulfil their duty as attorneys in prosecuting the action for the plaintiff, and in and about recovering damages, and in relation thereto; and the breach meant to be assigned is, the non-payment of the damages after the receipt thereof. Now, what was the duty, in this respect, of the defendant and Andrew, as attorneys in that suit, arising out of the original retainer by the plaintiff? It was that if they received the damages, as attorneys in that suit, under the retainer, they would pay them over, whether to the plaintiff in the present suit, or the nominal plaintiff in that which they brought, does not appear, but to one or the other; it certainly, however, was not a duty flowing out of the original retainer to pay any money received at any time by them, though as attorneys. Is there, then, a sufficiently certain allegation that the money which they refused to pay over to the present plaintiff, or the nominal plaintiff, was money which was received by them as attorneys in that action under that retainer ? It appears to us that there is not, for though we agree that the original retainer is to be
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presumed, primâ facie, to continue as long as by law it might, as argued by Mr. Prideaux, on the authority of Lord Ellenborough's dictum, in Brackenbury v. Pell (a); and although we think he was right in contending that the original retainer was not determined by the judgment but continued afterwards, so as to warrant the attorney in issuing execution within a year and a day, or afterwards, in continuation of a former writ of execution issued within that time, and also to warrant his receiving the damages without a writ of execution, [the weight of prior authorities (6) being against the decision of Heath, J., in Tipping v. Johnson (c)]; yet it seems to us that the averment of the receipt of the money is bad for uncertainty. It is stated that the defendant in the original action, being in custody on a ca. sa. paid a sum, being the amount of the residue of the damages, not to the plaintiff, but to the governor of the gaol, who paid it to the defendant and Mr. Andrew, “ as such attorneys as aforesaid.” This expression is ambiguous; it may mean as attorneys for the plaintiff in that suit, and under the original retainer; or it may mean (as the same expression certainly does in the allegation of the special contract itself) simply as attorneys, or attorneys in copartnership. In the latter case the averment would be clearly insufficient, and the non-payment to the plaintiff would be no breach of the contract declared upon; and the rule of construction is, that the words are to be taken most strongly against the party pleading. After pleading over, the allegation would be good, for then it would be understood in that sense which would require an answer; so also, on general demurrer ; but, as the objection is pointed out on special demurrer, it seems to us that it ought to prevail.
Judgment for the Defendant.
(a) 12 East, 585.
(6) Lawrence v.Harrison, Styles,
4, 5. 2 Inst. 378.
(c) 2 B. & P. 357.
IN THE NINTH YEAR OF THE REIGN OF VICTORIA.
REGINA v. The Recorder of King's LYNN.
THIS was a rule calling upon the Recorder of the An order of
removal was borough of King's Lynn, in the county of Norfolk, to shew drawn up in cause why a writ of certiorari should not issue to remove
form: “ Bointo this Court an original order, under the hands and rough of King's
Lynn, in the seals of two justices of the said borough, dated the 18th of county of August, 1845, for the removal of Sarah Wray, widow, and in the margin)
a Norfolk ;" her six children, from the parish of St. Margaret, in the “Upon com
plaint of the said borough, to the township of Bowling, in the parish of churchwardens
and overseers Bradford, in the county of York; and also an order of of the poor of
the parish of
St. Margaret, in the borough of King's Lynn aforesaid, unto us, whose hands and seals are hereunto set, two of her Majesty's justices of the peace in and for the said borough," &c., that S. W. and her six children, inhabitants of the said parish, “are now actually chargeable to the said parish,” “We the said justices, upon due proof made thereof, as well upon the examination of the said S. W. of S. HI, and of J. H., upon oath, as otherwise, and likewise upon due consideration bad of the premises, do adjudge the same to be true; and we do likewise adjudge that the lawful settlement of them the said S. W. and her said children is in," &c. The order concluded in the usual form “ Given,” &c., without stating where it was made. Held, that it sufficiently appeared upon the face of this order :
First, that the justices were acting within their jurisdiction.
Secondly, that the evidence upon which the justices had proceeded was legal evidence, and that the words “ as otherwise," would not be intended to mean evidence not upon oath.
Thirdly, that the adjudication of the settlement was made at the same time and place as, and upon, the bearing of the evidence.