1844. RASTRICK v. BECKWITH. process. The ordinary rule as to the attorney's privilege to be sued in his own Court remains as heretofore. If the rule were not as stated, it might be in the power of parties sued upon a joint contract to suspend the proceedings altogether, by each setting up his particular privilege to be sued only in the Court in which he practises. I therefore think the defence in this case fails, and that there must consequently be a judgment of— Respondeat ouster. Monday, Nov. 25th. In trespass for breaking and entering the plaintiff's mes suage and taking away his goods, the de fendants plead ed four pleas, to the replication to one of which the plaintiff demurred, and obtained judg ment thereon. At the trial of the issues in THIS POOLE V. GRANTHAM and Others. was an action of trespass for breaking and entering the plaintiff's messuage and taking away his goods. The defendants pleaded four pleas, to the replication to one of which the plaintiff demurred. The demurrer was argued in Easter Term, 1843, when the Court gave judgment for the plaintiff. The cause came on for trial at the last Assizes at Stafford, when the jury found a general verdict for the plaintiff, damages 20s., but there was no certificate under the statute 3 & 4 Vict. c. 24, s. 2 (15). fact, a general verdict was found for the plaintiff, damages 20s., but there was no assessment of damages on the issue in law :-Held, that (since the 3 & 4 Vict. c. 24) the plaintiff was only entitled to the costs of the demurrer. (15) Which enacts, "that, if the plaintiff in any action of trespass, or of trespass on the case, brought or to be brought in any of her Majesty's Courts at Westminster, or in the Court of Common Pleas at Lancaster, or in the Court of Pleas at Durham, shall recover by the verdict of a jury less damages than 40s., such plaintiff shall not be entitled to recover or obtain from the defendant, in respect of such verdict, any costs whatever, whether it shall be given upon any issue or issues tried, or judgment shall have passed by default, unless the Judge or presiding officer before whom such verdict shall be obtained shall immediately afterwards certify on the back of the re The Master having declined to tax the plaintiff's costs, conceiving, that, under the circumstances, he was not entitled to any Byles, Serjeant, on a former day in this term, on the part of the plaintiff, obtained a rule calling upon the defendants to shew cause why the Master should not tax his costs of the whole action.-He submitted that the plaintiff was entitled to the costs of the issue in law, by force of the statutes 4 & 5 Anne, c. 16, ss. 4, 5 (16), and 3 & 4 Will. 4, c. 42, s. 34 (17); and that the Master was wrong in declining to tax the plaintiff's costs of assessing the damages on the demurrer, for that, that issue not being before the Judge at all, he had no means of exercising a discretion, and therefore the statute 3 & 4 Vict. c. 24, s. 2, did not apply-Taylor v. Rolfe, 13 Law J., N. S., Q. B., 39, where it was held that plaintiff for whom judgment has been given upon demurrer in an action of trespass, and who subsequently obtains one farthing damages only, on a writ of inquiry, is entitled to the costs of the cause, without a certificate; the clause in question not applying to judgments upon demurrer, or to inquiries consequent thereon. He further submitted that the plaintiff was also entitled to the costs of the other cord, or on the writ of trial or writ of inquiry, that the action was really brought to try a right besides the mere right to recover damages for the trespass or grievance for which the action shall have been brought, or that the trespass or grievance in respect of which the action was brought was wilful and malicious." (16) Section 4 enacts that "it shall and may be lawful for any defendant or tenant in any action or suit, or for any plaintiff in replevin, in any Court of record, with the leave of the same Court, to plead as many several matters there- (17) Which enacts, that, "where 1844. POOLE v. GRANTHAM. 1844. POOLE v. GRANTHAM. issues, though by reason of the statute 3 & 4 Vict. c. 24, s. 2, he might not be entitled to the costs of the trial. Sir T. Wilde, Serjeant, now shewed cause.-If the plaintiff had confined his claim to the costs of the judgment on the demurrer, the rule would not have been opposed. But he is clearly not entitled to the other costs for which he asks. By the venire in this case the jury were not summoned to assess the damages on the judgment on demurrer, but only to try the issues in fact joined between the parties (18). The ground, therefore, upon which alone the rule could have been sustained fails; for, it is quite clear that Lord Denman's act deprives the plaintiff of costs as to the issues of fact. Byles, Serjeant, in support of his rule.-It being conceded that the plaintiff is entitled to the costs of the demurrer, he is also entitled to the costs of the consequent inquiry, and therefore the rule must at all events be made absolute to that extent. [Maule, J.-The difficulty is, that there has been no inquiry of damages here. You are asking for the costs of an inquiry which has not taken place, and which would have been useless if it had taken place.] TINDAL, C. J.-If the plaintiff's attorney had asked the Master for the costs of the demurrer, apart from the costs of the issues, they would have been taxed for him. Not having done so, and having come here with an application for which there is no foundation, his rule should properly be discharged. Let the rule be absolute that the Master be at liberty to tax and allow the plaintiff his costs of the demurrer, on payment by the plaintiff to the defendants, or their attorney, of their costs of and occasioned by this application. (18) This fact appeared on the affidavits produced in answer to the rule. Tuesday, Nov. 12th. The proceedings against a trader under the 5 & 6 Vict. c. 122, s. 11, may be taken simultaneously with an action at law for the ON the 30th of August last, the plaintiff made and filed in the Court of Bankruptcy, in supposed pursuance of the provisions of the 1 & 2 Vict. c. 110, s. 8, an affidavit that the defendant was indebted to him in the sum of 60l. 17s. 6d. for work and labour and for money paid, laid out, and expended to and for the use of the defendant; and, on the 2nd of September, a notice signed by the plaintiff, requiring immediate payment of the debt mentioned in the affidavit (a copy of which affidavit was annexed to the notice), was personally served upon the defendant. On the same 2nd of September the defendant was served with a copy of Court will not a writ of summons, issuing out of this Court on the 31st stay the action plaintiff, indorsed for 607. On the 4th of September, particulars of the plaintiff's of August, at the suit of the On the 6th of September the defendant was served with a notice that the plaintiff abandoned the affidavit and recovery of the same debt: debtor pays the and, though the demand under pressure of the former proceedings, the without pay ment of costs. 1844. COVINGTON v. HOGARTH. notice served upon him on the 2nd, and did not intend further to proceed thereon (20); and immediately afterwards the defendant was served with a summons or warrant under the hand of one of the commissioners of the Court of Bankruptcy, whereby the defendant was summoned to appear before the commissioner in rotation at the said Court of Bankruptcy on the 12th of September to admit the demand of the plaintiff, who claimed of him the sum of 60%. 178. 6d. for a debt; and by a notice upon the said summons it was stated that the said summons was served upon the defendant pursuant to the provisions of the 5 & 6 Vict. c. 122, and was founded on affidavit of debt filed in the Court of Bankruptcy, London, on the 5th of September, 1844. On the 27th of September, the defendant filed an admission that he was indebted to the plaintiff in the sum of 60l. 17s. 6d., and on the 9th of October he caused that sum to be paid to the plaintiff's attorney, in order to prevent an act of bankruptcy. On the 31st of October, the plaintiff's attorney delivered to the defendant's attorney a declaration in the above action, requiring him to plead thereto in four days. The particulars of the plaintiff's demand, which were afterwards delivered under a Judge's order, corresponded exactly with those delivered to the plaintiff on the 4th of September. Upon an affidavit disclosing these facts, and also stating that the defendant never was indebted to the plaintiff on any account other than the sum of 607. 17s. 6d. demanded and paid under the proceedings in the Court of Bankruptcy Channell, Serjeant, on a former day in this term, on behalf of the defendant, obtained a rule calling upon the s. 8. (20) This was because it was ings under the 1 & 2 Vict. c. 110, found that the debt was of insufficient amount to warrant proceed |