1839. PRIOR v. SMITH. that, in an action by the indorsee against the indorser of a bill of exchange, a plea that the defendant did not draw the bill is not a nullity, so as to entitle the plaintiff to sign judgment as for want of a plea. The reason stated by the Court then for that decision was, that the plea was only demurrable, as, in contemplation of law, every indorser was a new drawer of the bill. Again, Cowper and Others v. Jones and Another (a) would be cited. The Court there determined that the mere fact of a plea being clearly insufficient in point of law, is not a ground for signing judg ment as for want of a plea. This case also came within the admitted principle, that a plea, which is merely demurrable, cannot be treated as a nullity. On the other hand, might be cited Hopgood v. Wright and Others (b). The marginal note of that case was, "Trespass against B., C., and D., for turning A. out of his house, and keeping the house and goods from him. Plea, that A. had nothing in the said house and goods, but 'jointly and undividedly with D.' Judgment signed for want of a plea, and held right," Again, in Mucher v. Billing (c), the general issue was pleaded to part of a declaration, and the Statute of Limitations to the remainder, without the signature of counsel, and the Court of Exchequer held the whole plea to be a nullity. In Warne v. Beresford (d), the same Court held a rule to plead in a wrong name a nullity; and, in King v. Myers (e) Mr. Justice Coleridge held, that a plea of never did promise, in an action of debt, was a nullity. In the present instance, the plea is as much a nullity as the plea of non-assumpsit would be in an action on a bill of exchange, since the new rules of pleading, title assumpsit, rule 2 (f); or the plea of misnomer, since the 3 & 4 Will. 4, c. 42, s. 11. There can (a) Ante, Vol. 4, p. 591. (c) Ante, Vol. 3, p. 216. 361. (d) Ante, Vol. 4, p. be no difference whether the words directly forbid a plea, or take it away by necessary implication. Miller, in support of the rule, contended, that the section in question was far from abolishing the right to plead privilege in abatement, as the object of the statute was to extend, instead of abridging, the attorney's privileges. The statute must, therefore, be construed liberally. The privilege existed before the statute, and could not be taken away without express words. Before the passing of this act, an attorney might be admitted of all the courts, if he chose to incur the expense of paying the fees: if he thought proper to be so admitted of all the Courts, he was considered to have undertaken to be present, either by himself or his clerks, in all the Courts. Therefore, if he were sued in any one court, he could not plead in abatement the fact of his being an attorney of another. Now, the new act just leaves him in the same situation as before, except that it relieves him from the necessity of paying the fees of admission in the other Courts, of which he has not been formally admitted, if he chooses to become a practitioner of them. It allows him to go into all the Courts if he choose; but if he does not choose to do so, the act does not empower other persons to compel him to go there, he having been only admitted in one. If he were to come into this Court, and conduct a cause, and an action were afterwards brought against him here, it might be admitted that such conduct on his part would amount to a waiver of his privilege to be sued in his own Court; but then such waiver should be replied. In the case of Jones v. Bodeenor (a), it was resolved, "that if after the defendant has waived his privilege, he shall yet plead, the plaintiff in his replication must shew his waiver, and rely upon the estoppel." The proviso at the end of the clause in question, in the act of Victoria, is so worded (a) 1 Ld. Raymond, 135. 1838. PRIOR v. SMITH. 1838. PRIOR บ. SMITH. as clearly to limit the jurisdiction to which an attorney practising in any other Court than one of which he has been admitted, is liable to "such Court;" thus not extending it to the Courts generally. Therefore, no other Court has jurisdiction over him, but the one of which he has been admitted an attorney, unless he practise in some other, and then that Court also acquires jurisdiction, but none of the others in which he has not practised; and if, therefore, he be sued in any of them, he is as much entitled to plead his privilege as he was before the passing of the act. Then, as to the second point; the cases which have been cited on the other side, in support of the judgment, and in which the Court had determined that certain pleas might be treated as nullities, it would be found that those pleas were either in direct contravention of an act of parliament, or a positive rule of Court. Here, it could not be said that the plea was at all in contravention of any act or rule. The case of Cowper v. Jones is exactly in point. The question is, whether this plea is sufficient in point of law; and that is a question which ought to be decided on demurrer by the Court, and not by the party himself. If the Court were to give judgment against the defendant, still such judgment would only be, that he shall answer over; in which case he would then have an opportunity of pleading to, and trying, the action on the merits. PATTESON, J.-I do not think that the case of Cowper v. Jones has any thing to do with the question here, as there the question was not, whether the plea was a nullity, but whether it was a sham plea, which the Court would, on application, set aside. Miller contended that the plea here was good, and therefore could not be treated as a nullity by the plaintiff, so as to entitle him to sign judgment. Cur. adv. vult. PATTESON, J.-I am quite satisfied that the utmost effect which can be given to this act of parliament is, that if an attorney of one Court should choose to practise in another, he would become subject to the jurisdiction of that Court for any thing in which he acted as an attorney in that count, and a question might be raised whether he would not so far render himself an attorney of that Court, as to be amenable to that Court in any matters connected with his character of attorney. I think that is the utmost extent to which the operation of this statute can be carried, though I do not say that it can be carried so far. The act of parliament, by itself, does not render an attorney liable to the process of another Court, so as to destroy his privilege. Therefore, if it could be said that the attorney had done any act by which he had waived his privilege, that is a question of fact, and, therefore, a matter of reply. In the present case, therefore, if the plaintiff means to say that the defendant has done any act by which he has waived his privilege, and rendered himself liable to the jurisdiction of this Court, he should have made it a matter of reply. The plea must, therefore, stand, and the judgment be set aside with costs, as it is a strong measure to sign judgment for want of a plea. Rule absolute, with costs. 1838. PRIOR V. SMITH. DOE d. CLARKE and Others v. STILLWELL and Another. the execution of mand the per PLATT shewed cause against a rule nisi for an attach- The affidavit of ment obtained by the Attorney-General for the non-per- a power of atformance of an award. He objected to the affidavit, torney to dewhich proved the execution of the power of attorney, authorising the demand of the execution of the award, on the ground that the affidavit was not entitled in the cause. formance of an award, must be entitled in the cause. 1838. DOE d. CLARKE V. STILLWELL. The Attorney-General contended that as this application was a matter dehors the cause, it was unnecessary for the affidavit in question to be entitled in the cause. The arbitrator, by directing a verdict to be entered in a The proparticular way, had disposed of the cause. ceeding by attachment was independent of the cause therefore. COLERIDGE, J.Here, the demand of the performance of the award was made under a power of attorney. No affidavit, not entitled in the cause, can be used to prove the execution of that power. I never heard of the distinction now sought to be introduced. Rule refused. An affidavit of debt" for money found to be due upon an ac count stated," is sufficient, with BALMANNO v. MAY. R. V. RICHARDS shewed cause against a rule nisi obtained by W. H. Watson, calling on the plaintiff to shew cause why the defendant should not be discharged out of custody, on the ground of a defect in the affidavit of debt. The affidavit was in this form :— "Alexander Balmanno, of No. 18, Queen street, Cheapside, in the city of London, merchant, trading under the style or firm of Alexander Balmanno & Co., maketh oath and saith, that Stribblehill Norwood May is justly and truly indebted unto this deponent in the sum of eight hundred pounds and upwards, for money found to be due from the said Stribblehill Norwood May to this deponent upon an account stated between them, for money lent and advanced, and paid, laid out, and expended, by this deponent, for the use of the said Stribblehill Norwood May, and at his request, and also for interest upon and for the forbearance to the said Stribblehill Norwood May, by this deponent, at the request of the said Stribblehill Norwood |