May, of monies due and owing from him, the said Stribblehill Norwood May, to this deponent, and also for work done by this deponent as the factor and agent of and for the said Stribblehill Norwood May, in and about selling and disposing of divers goods of the said Stribblehill Norwood May, and in and about other business of the said Stribblehill Norwood May, and on his retainer, and for commission and reward due, and of right, payable from the said Stribblehill Norwood May to this deponent in respect thereof. And this deponent saith, that no offer or tender hath been made to pay the said sum of eight hundred pounds, or any part thereof, to this deponent, but that the whole thereof still remains justly due to him." 66 The objection to the affidavit arose upon the words 66 Imoney found to be due from the said Stribblehill Norwood May to this deponent, upon an account stated between them." In support of the objection was the case of Hooper v. Vestris (a), in which it was held that an affidavit of debt, stating the defendant to be indebted to the deponent on an account stated between them" is insufficient. In the same volume, however, was the case of Tyler v. Campbell (b), where it was held by the Court of Common Pleas that in an affidavit of debt it is sufficient to allege the claim to be due on the balance of an account stated," without the words " and settled." In the case of Debenham v. Chambers (c), a count in assumpsit stated the defendant to be indebted to the plaintiffs and their deceased partner "for money found to be due upon an account then stated between them;" and after laying the promise to the three, assigned as a breach that the defendant had not paid. The Court of Exchequer there held that the count was sufficient on special demurrer. There, it was intimated, both by Baron Parke and Baron Alderson, that no more strictness was required in the affidavit of debt 1833. BALMANNO ย. MAY. 1838. BALMANNO v. MAY. than in a declaration. The affidavit in the present case differed from those in the cases cited. Here, the affidavit alleges the account to have been stated in respect of causes of action, which would justify the defendant's arrest. In the cases cited, however, the account might have been stated with respect to matters which would not justify the arrest of the defendant. Under these circumstances, it was contended that the affidavit of debt was sufficient. sent. W. H. Watson, in support of the rule, submitted that, if the authorities were examined they would be found to support the present application. In the case of Tyler v. Campbell the question was not discussed, but the Court of Common Pleas merely refused to interfere. There was a material distinction between that case and the preThe affidavit there stated a "balance" to be due upon an account stated. Here the words were simply “an account stated." The case of Debenham v. Chambers was no authority at all upon this question, as the point upon which that case proceeded was the sufficiency or insufficiency of the form given by the rules of T. T. 1 Will. 4. Any thing that was there said was merely obiter. A great difference existed between a count in a declaration and an affidavit of debt. Any averment in the declaration might be traversed, but no averment in the affidavit of debt could be traversed. The case of Hooper v. Vestris therefore, remained unimpeached, and was a direct authority in support of the present application. Cur. adv. vult. PATTESON, J.-In this case the question was, whether the affidavit to hold to bail was sufficient or not. The discussion on the argument turned on the case of Hooper v. Vestris. In that case, a former one, which had been decided in the Common Pleas, was not brought before the notice of my brother Coleridge. I have a difficulty in see ing the distinction between an affidavit for the "balance" of an account before stated between the parties, and “an account stated" merely without the word "balance." I think that there is nothing peculiar in that particular word. It must be presumed that an account has been stated after a discussion between the parties. In the case of Visger v. Delegal (a), the Court held that an affidavit of debt "on a balance of an account for money paid, laid out, and expended by the plaintiff to and for the defendant, and at his request, and for money had and received by the defendant for the plaintiff, and for interest on monies due from the defendant to the plaintiff" was not sufficiently certain. The Court there observed, "without the words on balance of account' the affidavit would clearly be bad. Those words, however, only imply that the defendant was originally indebted to the plaintiffs, on the account stated in the affidavit, in a larger rent, which has been reduced by a set-off to 1000l. The case is therefore left in the same uncertainty as if no balance had been mentioned." Since that case Debenham v. Chambers was decided. There, the attention of the Court of Exchequer was called to the form of the declaration in relation to the rules of T. T. 1 Will. 4. The question then arose on special demurrer, and Mr. Baron Parke said, "the case of Hooper v. Vestris arose upon an affidavit to hold to bail, and I question whether more strictness is required in an affidavit than a declaration." The Court of Exchequer having given this intimation, and it being desirable that the same decision should be pronounced in every Court, and it being rather absurd that an affidavit of debt should be in one form and a declaration in another, I think it is better to hold that this affidavit is sufficient. An "account stated" between the parties, would mean that the parties had settled it between them after discussion. Any man, not {(a) Ante, Vol. 1, p. 333. 1838. BALMANNO v. MAY. 1838. BALMANNO บ. MAY. a lawyer, would have the impression that that was the meaning of the allegation. If the account had not been stated and agreed between them, I think the person swearing in that form would be liable to an indictment for perjury. I have spoken to my Brother Coleridge and the other Judges, and we are all of opinion that, as the count is good, the affidavit in the same form is good also. The word "balance" makes no difference. The present rule must therefore be discharged without costs. Rule discharged, without costs. Affidavits in support of an application against an attorney to compel him to deliver up a document, may be entitled in the which the claim An attorney is liable to the summary jurisdiction of the Court for misconduct, while one of its officers, although at the time of an application against him he has ceased to be an attorney. SIMES V. GIBBS. PETERSDORFF shewed cause against a rule nisi, requiring an attorney named Humfrey to deliver up a bill of exchange. He objected to the entitling of the affidavit on which the rule had been obtained, on the ground that it was entitled in the cause out of which the alleged claim to the bill of exchange arose. In that action judgment had been signed and execution issued. The cause was at an end, and therefore it was improper to entitle the affidavits in that manner. They should have been entitled "In the matter of Humfrey." Another objection was, that Mr. Humfrey had ceased to be an attorney of the Court. PATTESON, J.-I think that the affidavits are properly entitled in the cause out of which the claim to the bill is alleged to have arisen, although that action may be at an end. With respect to the fact of Mr. Humfrey having ceased to be an attorney of the Court since this action arose, I do not think that is any answer to the present application. If a man be once an attorney, he cannot get rid of the summary jurisdiction of this Court with respect to what he has done while an attorney, by ceasing to be an officer of the Court. The rule is, once an attorney always an attorney, for that purpose. As it appears by the affidavit, that, at the time of the transaction out of which this application has arisen, he was an attorney of this Court, it does not lie in his mouth to say he is not one now. The rule was afterwards made absolute on the merits. Rule absolute. 1838. SIMES ย. GIBBS. Ex parte WARE. WALKER applied for leave to be allowed to add, on Where an at the roll of attornies of this Court, the name of Ware as the additional surname of Mr. Titus Hibbert. That gentleman, whose name was already on the roll, had lately, for private reasons, assumed the latter name. It was therefore desirable that it should be added to the names already on the roll. PATTESON, J.-That may be done. torney, whose name is on the roll, assumes an additional sur name, the latter may be added to that already on the roll. Application granted. Ex parte BAILEY. J. BAYLEY moved for a writ of habeas corpus to bring Where the father has been a habeas corpus, up the body of Jane Bailey from the custody of her aunt, who was resident at Chatham, in Kent. The girl was an infant of fifteen, and the application was made at the instance of her mother. Her father was still alive, but had lately been convicted of felony, and was now in custody at custody of an the hulks, under sentence of transportation. On this state in order to give the mother the infant. |