1832. DREWS V. COLES. reasonable or probable cause to claim more than 51. when this action was commenced, that would involve a second investigation in all like cases where less than 51. had been recovered (a). But the question is, whether the plaintiff's demand was recoverable in this court of requests? It was said that it was originally above 5., though reduced below that sum by the verdict, and that therefore the plaintiff was not deprived of his costs; the words of the act being, that any person having a debt due to, or claimed or demanded by him, and for which he should demand any sum not exceeding 51., shall sue in the local court, and that if he shall sue in any other court, for any debt so recoverable, he shall not, by reason of any verdict for him, have or be entitled to any costs. However, I think that the fair construction of the word "demand" is "rightful" demand, and upon that point the jury have decided that the plaintiff had no such demand for more than 47. 10s. It is not necessary here to say that in every case the verdict shall rule as to the amount of the debt due to the plaintiff, or which might have been rightfully demanded by him, but there is no doubt that in the generality of cases it should decide the question (b). A case may occur in which the circumstances alluded to in Horn v. Hughes, by Lord Ellenborough, may be proved to exist, but the instances there put by him of a plaintiff's miscarriage from the absence of a material witness differs materially from this case, in which, after a conflict of evidence, the jury have found that the plaintiff's demand did not amount to 51. Their verdict having ascertained the amount of the demand, should not be disturbed. (a) See per Dallas C. J. 3 Br. & B. 263. That course is expressly di rected by 43 G. 3. c. 46. s. 3. in motions to deprive plaintiffs of costs where arrest has taken place for more than the sum recovered. (b) Shaddick v. Bennett, 4 B. & Cr. and other cases, ante, 509, n. (b). BAYLEY B.-These acts may operate hardly on a plaintiff by depriving him of his right to sue in a superior court (a), where his witnesses do not reside within the only ambit in which the court of requests to which he must resort has power to direct their attendance. However, the cases of Graham v. Brown, and Baildon v. Pitter, satisfy me that our decision must be the same on words similar to those considered in those cases. Now, primâ facie, a verdict is to be taken as evidence of what was the debt existing between the parties when the action was commenced; and I agree with my Lord Chief Baron, that "demand," as found in this act, means "rightful" demand, so that here the amount of the demand ascertained by the jury to have been rightfully due from the defendant to the plaintiff is less than 5. Then if the court could exercise a discretion in ordinary cases of this kind, I do not consider this to be such a case. To whatever extent the court of Common Pleas went in Harsant v. Larkin, there was one point in that case relied on by Richardson J. in his judgment, in which it differed from the other cases, viz. that the 13th section of the Rochester act, then in discussion, excluded the jurisdiction of the court of requests over any debt which shall not be for the payment of a sum certain, or any debt for any sum "being the balance of an account on demand originally exceeding 51."(b) Now in that case, as well as Horn v. Hughes (c), the sums originally due to the respective plaintiffs were above the sums recoverable in the local courts, and had been reduced below that sum by part payments by the defendant on account. (a) See 1 Siderfin, 309; Roll. Abridg. Prohibition (K. 4). (b) See 3 Brod. & Bing. 260, 265; and per Hullock B. Oakes v. Albin, M'Lelland's Rep. 591. (c) 8 East, 346. 1832. DREWS บ. COLES. 1832. DREWS V. COLES. BOLLAND B. Our decision in this case will not overturn Harsant v. Larkin, which proceeded on very peculiar circumstances. The parties there agreed to an estimate being taken by a surveyor appointed by them, and the plaintiff sued in the Common Pleas for a balance of 91. 7s. 1d. due to him on valuation, after allowing for payments by the defendant on account. But the jury most unaccountably reduced the value of the work below the surveyor's estimate, and left the plaintiff only 11. 2s. for his damages, instead of the balance sued for. GURNEY B. concurred. Rule absolute to enter a suggestion. The ATTORNEY GENERAL, on relation of CRUPPER and Others, against MALIN and Others. A solicitor ad- A Solicitor, duly admitted as such in the court of chancery, and duly certificated, was retained by enrolled in the the relators to file an information in the office of the mitted and court of chan duct a suit in the court of equity in the exchequer chamber, in the name of cery may con- king's remembrancer of this court, being the equity side of the court, in order to found a scheme for the future government of a charitable foundation.A clerk in court, duly admitted in that office, was employed by him for the relators therein, and carried on the proceedings in the information, according to the usual practice. An order was made on the defendants to pay the relators their costs on taking the answer off the file, and the master taxed them as a clerk in and is entitled to costs on taxation, though he is between party and party, including the solicitor's fees as not admitted a solicitor in that court of equity. well as those of the clerk in court, which were charged in gross, and afterwards divided by the solicitor and clerk in court. A motion was made before the Lord Chief Baron sitting alone in equity, that the order should be referred back to the master to review his taxation, and that he should strike out all the costs payable to the solicitor for the relators, and only allow such costs as had been paid to the clerk in court, on the ground that the solicitor not being admitted as such on the equity side, could not practise there. The affidavits used against the motion stated, that the solicitor had been informed by the officers of the king's remembrancer's office, that in practice his admission was wholly unnecessary to enable him to practise there by his clerk in court, or to receive allowance of such fees as might become due to him as solicitor, besides those of the clerk in court; and several experienced solicitors deposed to the same effect. He also deposed, that the relators had advanced him sums from time to time during the progress of the suit, on general account, exceeding the taxed costs, and that the costs decreed were therefore due to the relators. It also appeared that there is a roll of admissions of solicitors of the office of king's remembrancer kept there, beginning 1729, containing in that year forty-six admissions; in 1730 about 1360; (2 Geo. 2. c. 23. having then passed); from 1731 to 1793 about 100; in 1794 near 700; and from 1795 to 1832 about 20. No such roll is kept in the office of the treasurer's remembrancer, or the pipe office. A limited number of attornies are admitted in those offices, viz. five in the former and eight in the latter; and the admissions take place after serving a five-years' clerkship to an attorney or officer in those offices, and only on deaths or other vacancies. Attornies and solicitors of other courts practise there when neces sary, in the name of an admitted attorney or officer. 1832. ATTORNEY- v. MALIN and Others. 1832. ATTORNEY- v. MALIN and Others. The Lord Chief Baron having suggested that the question should be discussed before the whole court (a), the parties consented, and it was now argued by Boteler and Wakefield in support of the motion. This solicitor is not entitled to his costs. By 2 Geo. 2. c. 23. s. 1. no person shall be admitted to act as an attorney, or to carry on proceedings in the name of any person in any court of record in England, wherein attornies have been accustomably admitted and sworn, except he be sworn, admitted, and enrolled in such of the said courts where he shall act as attorney according to that act; and by sect. 2, the judges are to examine into his capacity and fitness to act as an attorney, before his swearing and admission. By s. 3, no. person shall act as a solicitor, or carry on, solicit, or defend any suit or proceedings in the name of any other person in any court of equity, (mentioning, among others, the court of equity in the exchequer chamber,) unless he shall take the oath appointed by the act to be taken by solicitors in courts of equity. By s. 18, the different officers of the courts of equity there mentioned, (among others) the king's remembrancer of the court of exchequer, or his deputy, shall from time to time enrol the name of every person admitted a solicitor in the said respective courts of equity. By s. 24, a person who in his own name or that of another commences, &c. proceedings as an attorney or solicitor in any court of law or equity aforesaid, without being admitted and enrolled as aforesaid, shall forfeit 50%. Section 27 only exempts the known attornies and clerks of the different offices in the court of exchequer from the operation of the act, so that they may be admitted and practise in that court, or may practise in other courts of record, in the name and with the consent in writing of some sworn attorney (a) See 4 Inst. 109. 118. and 57 G. 3. c. 18. |