1823. Thursday, If there is reasonable and probable cause for coming to the Court against an attorney, al DOE, d. THWAITES v. ROE. IN this case a rule had been obtained calling on an attor ney to answer the matters of an affidavit. The case was referred to the Master, who now reported that there was no foundation for the application, and no reason for making the rule absolute, but added, that there was reasonable and turn out that probable cause for coming to the Court. Under these cirtual foundation cumstances, the question was, whether the rule ought to for imputing misconduct to be discharged with costs. After hearing though it shall there is no ac him, the Court will not give him his costs of the application. Curwood, in support of the motion, and Marryat, contrà. ABBOTT, C. J., said-If an attorney behaves himself in such a manner as to excite reasonable ground for thinking that he has misconducted himself in his character of attorney, although upon investigation it shall turn out that there is not sufficient ground for imputing actual misconduct to him, yet that there was sufficient ground for bringing the matter before the Court, we think we ought not to give him costs. Rule discharged, without costs. Thursday, In case for not taking sufficient pledges in a replevin bond, the declaration set out the record, and averred DRAPER V. GARRATT and Another. CASE against the Sheriffs of Middlesex, for taking insufficient pledges in a replevin bond. The declaration set out the record in the replevin suit, and averred under a videlicet, that the plaint was levied at the County Court, under a videlicet, that the plaint in the County Court, was levied before A. B. C. and D., as suitors, and it appearing from the record itself, that it was levied before E. F. G. and H.-Held, no variance. "before A. B. C. and D., (naming them) as suitors of the said Court." At the trial before, Abbott, C. J., at the Middleser Sittings after last Easter Term, it appeared from the record that the plaint was in fact levied before E. F. G. and H., upon which it was objected, for the defendants, that this was a fatal variance. The learned Judge over-ruled the objection, but reserved the point, with liberty for the defendants to move to enter a nonsuit. Scarlett now moved accordingly, and contended, that the variance was fatal. It was essential to this action, that the plaintiff should set out the record of the former suit; and in doing that, he could not be allowed in any respect to alter the language, although he might, if he chose, in some parts abridge it. The description of the place, and the parties, being stated under a videlicet, would not at all vary the effect of it, because it was still necessary that the names should be truly set out. The rule of law upon this subject had been laid down in Bristow v. Wright (a), and had been ever since carefully and strictly adhered to by the Courts. [Bayley, J. Is there not a very recent case in this Court, in which it was held, that in assumpsit for not indemnifying bail, an averment that a judgment was recovered against the plaintiff in Michaelmas Term, and evidence that the judgment was in Hilary Term, made no variance?] That is Phillips v. Shaw (b), and certainly was so decided; but that cannot govern the present. Here the variance is in setting out a record, which is a much more important matter than the description of the term in that case. It may have been unnecessary for the plaintiff to set out this particular part of the record at all, but having undertaken to do it, he was bound to do it correctly, and the neglect is fatal to him. Webb v. Herne (c), and Whitwell v. Bennett (d). It is general rule that impertinent matter may be rejected as sur a 1823. DRAPER v. GARRATT. (a) Doug. 642. (c) 1 Bos. & Pul. 281. 1823. DRAPER v. GARRATT. plusage (a); but if it is relevant it cannot. Here it is relevant, because the action is actually founded on the record in the County Court, and the plaintiff cannot aver against the record. Suppose the replevin to have been in C. B., and the declaration described it as in B. R., this would be a material variance. Here the declaration professes to set out the whole record, and the plaintiff is bound by it. ABBOTT, C. J.-Bristow v. Wright is distinguishable from the present case; for there the rent was not laid under a videlicet, and no certain or fixed amount of rent was stated. When this objection was raised at Nisi Prius, I was inclined to yield to it; but I am now of opinion that it is without foundation. Undoubtedly, in order to maintain this action, it was necessary for the plaintiff to shew by his declaration that a plaint had been levied, but it was not incumbent on him to name the suitors. That part of the declaration therefore may be rejected altogether; and there was abundant evidence to support the fact that a plaint was levied. In Bushy v. Watson (b), a declaration for maliciously indicting at the General Quarter Sessions, instead of the General Sessions, was held to be sufficient; and De Grey, C. J., at the conclusion of his judgment, gives a reason for that decision, which is applicable to the present case. He says, "As the indictment was cognizable both at the Quarter and the General Sessions, we think the insertion of the word Quarter was immaterial and merely surplusage. Otherwise, had it been cognizable only at a Quarter Sessions." On the authority of this case, and of Phillips v. Shaw, I think this is no variauce. BAYLEY, J.-The only averment necessary in this case was, that a plaint was levied at the next County Court; and if that was substantially proved, it was sufficient. The rest of the averment was perfectly immaterial. In Purcell v. (a) King v. Pippet, 1 T. R. 235. (b) 2 Sir W. Bl. 1050. Macnamara (a), which was an action for a malicious prosecution, a variance between the day of the plaintiff's acquittal, as laid in the declaration, and stated in the record, was held to be immaterial, upon that very principle; and the case of Phillips v. Shaw, which I before alluded to, is another authority to the same effect. HOLROYD, J.-The substance of the plaintiff's allegation was proved in evidence to be true, and, being laid under a videlicet, that is sufficient, without proving the whole. The case of Bristow v. Wright cannot govern the present; the variance there was in an extremely important particular; for it affected both the quality of the rent to be paid, and the nature of the term to be demised; and an error on such a point was material and substantial. But the later cases cited by the Court I think govern the present, and to them may be added Judge v. Morgan(b), and Pippet v. Hearne (c). BEST, J.-I do not quite agree with the distinction which was taken in Bristow v. Wright and King v. Pippet (d); for it appears to me that impertinent and immaterial are synonimous terms. I cannot therefore consider the rule respecting variances as depending on such a distinction; I think the safer rule is, that whatever is necessary to be proved, must be correctly set out, and no more. In this case, all that it was necessary for the plaintiff to prove, was correctly set out. (a) 9 East, 157. Rule refused. (c) Ante, vol. i. 266. (d) 1 T, R. 265. 1823. Friday, DOE, d. Marquis of ANGLESEY . BROWN. After rule JEREMY, last Term, had obtained a rule absolute in a granted under 1. Geo. 4. c. 87, this case for the defendant to enter into the recognizances in a cause en- required by the 1 Geo. 4. c. 87. within fourteen days from titled " Doe, which the te... &c. v. Roe, to the date of the rule, or else the plaintiff to sign final judgnant in posses- ment (a). In consequence of the defendant's default judgsion appeared, ment was signed accordingly, and judgment was entered up, and execution taken out Manning now moved to set it aside for irregularity, the against the te- rule for judgment being entitled "Doe, &c. v. Brown," Held, no irre- whereas the original rule had been entitled, as indeed it progularity, nant by name: perly should be, "Doe, &c. v. Roe." On this account the defendant Brown had treated the whole proceeding as a 'nullity; he had not entered into the recognizance, nor attended the meeting for taxation; but the plaintiff had obtained possession of the premises, and had been awarded 'the costs both of the taxation and the rule. These advantages he was not entitled to as against the present defendant under this rule; for the defendant was no party to it, and could not be bound by it. That part of the proceedings therefore ought to be set aside. PER CURIAM.-Perhaps the judgment and the second rule may have been improperly entitled, though that is by no means clear. The language of the statute is, that the "rule shall be made for entering up judgment for the defendant" generally, not stating against whom, and not stating that it is to be against the casual ejector. After the defendant has appeared, the judgment should be against him by name. Here the defendant has appeared, and we think there is no irregularity. |