1338.

WOOLFE

v.

COOPER.

was a plea of set-off, on which there was no evidence, the plaintiff is entitled to have a verdict on it, though the evidence on all the other pleas should be against him.

The rest of the Court concurred (a).

(a) Bosanquet, J., was absent.

Rule absolute.

Where an affi davit is sworn

before a Com

Court in Vaca

in Court" within the

meaning of the statute 11 Geo.

GRIFFIN V. TAYLOR.

THIS was an action of trover to recover certain bills of

exchange, and an affidavit was sworn by the plaintiff bemissioner of this fore a commissioner of this Court in the country, during tion, it is "busi- the last circuit, on which an application was made to ness depending Lord Abinger, C. B., at chambers, for an order for the arrest of the defendant. The order was granted, and, the defendant having been arrested, an application was and is sufficient made on his behalf to Park, J., at chambers, that he should be discharged, on the ground that the learned Chief Baron had no jurisdiction in the cause to issue an order for his arrest. The order of Park, J., was granted in vacation, and was drawn up to shew cause in Court.

4, c. 70, s. 4,

to confer a

power on the Lord Chief Baron of the

Exchequer to grant an order

at chambers for

the arrest of the defendant, the action being trover to recover bills of exchange.

Adams, Serjt., now shewed cause.-The question for consideration arose on the construction to be put upon the terms of the statute 11 Geo. 4, c. 70, s. 4. By that section it was enacted," that any Judge of the said Court, to whatever Court he may belong, shall be and he is hereby accordingly authorised to sit in London and Middlesex for the trial of issues arising in any of the said Courts, and to transact such business at chambers or elsewhere depending in any of the said Courts, as relates to matters over which the said Courts have a common jurisdiction, and as may, according to the course and practice of the Courts,

be transacted by a single judge." On this the question arose as to whether there was such "business depending in Court," as would give the learned judge jurisdiction. This was the first case upon this particular section of the present act of Parliament, but decisions had been given upon similar provisions of other acts, and Ex parte Smith (a) was in point. There the question arose upon the 3 Geo. 4, c. 102, which was repealed by the statute 11 Geo. 4, c. 70, and by which the Judges were enabled to sit under the king's warrant, and to determine such matters as were "depending in the Court;" and in that case it was held, that an affidavit sworn during term, in support of an application for the re-admission of an attorney, was sufficient to bring the case before the Court within the statute. In the judgment given by the Court in that case too, it was said, that the act must be construed liberally, "for the dispatch of business and for the benefit of the public." In principle, no distinction could be drawn between that case and the present, and, in fact, the only difficulty which could arise was that which might be produced by the affidavit having been sworn before a commissioner instead of in Court. But the commissioner was an officer of the Court, and had the same jurisdiction in that particular matter as the Court itself. The power of the Lord Chief Baron would be undoubted if the affidavit had been sworn in the Court of Exchequer, and as the Judges had a concurrent jurisdiction given to them, in the case of all matters "depending in Court," it could not be contended that that power did not extend in this case to an affidavit sworn before a commissioner of the Court of Common Pleas. That this must be considered to be business done in Court was obvious, for in Winter v. Payne (b), it was held that drawing and engrossing an

(a) 7 D. & Ry. 382.

(b) 6 T. R. 645.

1838.

GRIFFIN

v.

TAYLOR.

1838.

GRIFFIN

V.

TAYLOR.

affidavit of debt in order to hold a party to bail, was business done in Court.

Whitehurst, in support of the order.-Ex parte Smith was no authority here, because it was decided under very peculiar circumstances, for it happened that the learned counsel who was instructed to make the motion mislaid the papers, and could not therefore apply to the Court. That case was also distingishable from the present, because the affidavit was there actually sworn in Court, and that was stated to be the ground on which the decision rested, for it was said in the judgment, "An affidavit sworn in Court, or before one of its officers during the term, though not then made use of, seems to us sufficient to bring the subject-matter before the Court, so as to render it a matter depending in Court,' within the act of Parliament." Then in Winter v. Payne, the question was one of an entirely different character. There the point was whether the business done was such as came within the operation of the statute 2 Geo. 2, c. 23, s. 23, so that it was necessary that a bill of costs should be delivered a month before action brought, but nothing was said about its being "business in Court." An affidavit to hold to bail was no part of a suit; it was not a matter depending in Court, but was merely a preliminary proceeding: Richards v. Stuart (a). So, all the authorities would shew that affidavits to hold to bail were matters quite distinct from the action. The question here was, whether at the time the application was made to the Lord Chief Baron, there was any business in Court, and it was submitted there was not. What had been done? The plaintiff, it was true, had made an affidavit, but it was within his power, if he chose, to destroy that affidavit and to abandon all proceedings. The first moment at which it

(a) 10 Bing, 322.

could be said that there was any "business in Court," was when the writ was issued, because it was then only that a suit could be said to be pending.

TINDAL, C. J.-This case may be determined by a reference to the words of the section of the act of Parliament in question, which are so comprehensive, that it must be taken that they were intended to include the case now before us. They are, "Any Judge of the said Courts, to whatever Court he may belong, shall be and he is hereby accordingly authorised to sit in London and Middlesex for the trial of issues arising in any of the said Courts, and to transact such business at chambers or elsewhere, depending in any of the said Courts, as relates to matters over which the said Courts have a concurrent jurisdiction, and as may, according to the course and practice of the Court, be transacted by a single Judge." Now, the swearing an affidavit, whether before the Court itself, or a commissioner of the Court, is a "business depending in the Court," which is the expression used in the act as relating to matters in which the Courts have a common jurisdiction. Then each Court, it appears, would have jurisdiction to issue a writ, and, therefore, not being desirous to fritter away the intentions of the act, the object of which is evidently to make its provisions as comprehensive as possible, the best opinion is, that the learned Chief Baron had power to grant this writ.

was

PARK, J.-The question is, whether, in this case, there "business depending in Court," to give my Lord Abinger jurisdiction. The act is a wholesome act, and it has now become necessary; but I own, that I have had very considerable doubt as to the word "depending." At the same time, however, I have come over to the opinion of the rest of the Court, that the moment the affidavit is made, with a view to set the penal process of the Court in motion, there is "business depending in Court."

1838.

GRIFFIN

v.

TAYLOR.

1838.

GRIFFIN

V.

TAYLOR.

BOSANQUET, J.-I am of opinion that this case falls within the meaning of the act. Technically speaking, there is no doubt that the affidavit is not the commencement of the suit, and the words commonly employed in an act are, that where "a suit or action is depending in Court," such and such things shall be done. Here, however, that language has been avoided, and I apprehend intentionally so, and the words which are used are, "such business at chambers or elsewhere, depending in any of the said Courts, as relates to matters over which the said Courts have a concurrent jurisdiction, and as may, according to the course and practice of the Court, be transacted by a single judge." Now, there is no doubt that over actions of trover the judges have a common jurisdiction, and the affidavit prior to the issuing of the writ in trover is a matter relating to business, over which they have common jurisdiction; therefore, all these words agree certainly with all that has been done here. Then, is this "business depending in Court?" It appears to me that, although it is not technically the commencement of a suit, it is that which has for its object the commencement of a suit, and may be considered as "business depending in Court."

COLTMAN, J., Concurred.

Rule absolute.

Service, in

ejectment, on

the tenant, coupled with

DOE d. AGAR v. ROE.

TALFOURD, Serjt., moved for judgment against the

the daughter of casual ejector. The affidavit on which he moved stated that the deponent had called at the residence of the tenant in possession of the premises in question, and had served the daughter of the tenant with a copy of the declaration

the fact of the

tenant's after

wards calling on the attorney of the lessor of the

plaintiffs, and saying that he knows that the time is coming "when something must be done," is sufficient ground for the Court to grant a rule for judgment against the casual ejector.