REPORTS OF CASES ARGUED AND DETERMINED IN The Court of Common Pleas, AND EXCHEQUER CHAMBER, DURING Michaelmas, Hilary, Easter and Trinity Terms, IN THE SECOND AND THIRD YEAR OF THE REIGN OF WILLIAM IV., 1831-2-3. BY JOHN BAYLY MOORE, Esq., OF THE INNER TEMPLE, AND JOHN SCOTT, Esq., OF THE INNER TEMPLE, BARBISTER AT LAW. VOL. II. IN THE SECOND YEAR OF THE REIGN OF WILLIAM IV.-1832. ELTON, Plaintiff; YATEMAN, Deforciant.-p. 1. Where through the fraud of an attorney's clerk a fine had not been duly perfected, the fee at the chirographer's office not having been paid, the court, on payment of the fee, allowed the fine to pass as of the term of which it would, but for that circumstance, have passed. TURNER, Plaintiff; ALZADA, Deforciant.-p. 24. Upon an affidavit that no parchment could be procured in the Brazils, the court allowed a fine to pass, the affidavit of the acknowledgment of which was taken there on paper. The Earl of SUFFOLK, Demandant; HILL, Tenant; Lord GUERNZEY, Vouchee. p. 55. In a recovery the premises were described by the general term "messuages." They consisted of stables and coach houses, with apartments for servants above, and were a distinct property, not appurtenant to any dwelling houses: Held, that the term "messuages" was sufficient to comprehend them. MEREDITH v DREW.-p. 116. "Seeking a livelihood" within a local jurisdiction, means seeking the whole of a party's livelihood. The defendant (an attorney) was sued in the Superior Court for a debt of 77. He resided and had an office at K., but part of his business was carried on at Bath, and other part at Bristol, at each of which places he also occupied offices. Bath and Bristol have each a Court of Requests, having exclusive jurisdiction to the extent of 10. over all debts contracted by parties "inhabiting, residing, or being" within such jurisdiction, or "keeping or using any house, warehouse, wharf, quay, lodging, shop, shed, stall, or stand, or using or frequenting the markets there, or seeking a livelihood, or in any way trading or dealing within the same:" Held, that the defendant was not entitled to claim to be sued in either of these courts. MR. Serjeant Merewether, on a former day in this term, moved for leave to enter a suggestion on the roll, under the Bath Court of Requests Act, 45 Geo. 3, c. lxvii., on the ground that the verdict was under 107., and the defendant liable to be sued in the Inferior Court. By the 22d section of the act, power is given to any person or persons (whether such person or persons shall reside within the jurisdiction of the said court or not,) having any debt or debts on the balance of account or otherwise howsoever, not exceeding the value of 107., due, owing, or belong to him, her, or them, &c., by or from any other person or persons whatsoever inhabiting, residing, or being within the said city or the liberty, or precincts thereof, &c., or keeping or using any house, warehouse, wharf, quay, lodging, shop, shed, stall, or stand, or using or frequenting the markets there, or seeking a livelihood, or in any way trading or dealing within the same, to apply to the Clerk of the Court, &c., &c." By the 47th section it is enacted, "That, if any action or suit for any debt recoverable by virtue of this act in the said Court of Requests shall be commenced in any other court whatsoever, or elsewhere than in the said Court of Requests, then, and in every such case, the plaintiff or plaintiffs in such action or suit shall not, by reason of a verdict for him, her, or them, or otherwise, have or be entitled to any costs whatsoever, and, if the verdict shall be given for the defendant or defendants in such action or suit, and the judge or judges before whom the same shall be tried or heard shall think fit to certify that such debt ought to have been recovered in the said Court of Requests, then, and in every such case, such defendant or defendants shall have costs, and such remedy for recovering the same as any defendant or defendants may have for his, her, or their costs in any cases by law." The action was brought to recover a debt of 77. The defendant was an attorney (a) residing at Kainsham, about six or seven miles from Bath, and had offices both at Bath and at Bristol, as well as at his place of residence. Mr. Serjeant Ludlow, contrà.-The defendant cannot be entitled to be sued exclusively in the Bath Court of Requests, for it appears that he has also an office at Bristol, where alone he might with equal propriety claim to be sued. In Kemsett v. West, 5 Dow. & Ryl. 626, a coal-merchant residing and carrying on his business at Lambeth, in Surrey, but keeping a counting-house in the city of London, for the purpose of receiving orders, was held not to be entitled to the privilege of being sued only in the London Court of Requests, as a person seeking his livelihood in the city. Mr. Serjeant Merewether, in support of his rule, referred to Axon v. Dillimore, 3 Dow. & Ryl. 51, where it was held that a defendant occupying a warehouse within the jurisdiction in question, though he does not personally reside in that city, is entitled to be sued within the local jurisdiction for a debt under 107. arising out of the limits thereof. LORD CHIEF JUSTICE TINDAL.-It appears to me that the defendant in this case is not within the 22d section of the statute 45 Geo. 3, c. lxvii. The words of that section are "any person or persons whatsoever, inhabiting, residing, or being within the said city (Bath) or the liberty or precincts thereof, &c., or keeping or using any house, warehouse, wharf, quay, lodging, shop, shed, stall, or stand, or using or frequenting the markets there, or seeking a livelihood, or in any way trading or dealing within the same." Now, the defendant cannot be said to inhabit or reside in the city of Bath; for, it appears upon the affidavits, that his place of abode is distant about six or seven miles from that city, where part of his business is carried on: and, therefore, unless we give to the word "being" that very general interpretation of which it is susceptible, we cannot hold the defendant to be within this part of the clause. Then, does he keep or use any house, warehouse, wharf, quay, lodging, shop, shed, stall or stand? Much stress has, on the part of the defendant, been laid upon this word "using," and it is said that the defendant (a) By the 32d section of the act, attorneys were ousted of privilege. uses a house in Bath. But it seems to me that that word properly has reference to the using of a wharf, quay, &c., and that the preceding word "keeping" only applies to a house. The only expression in the act that is in my opinion at all calculated to mislead in its construction, is that of "seeking a livelihood:" and that has been held to mean entirely seeking a livelihood. If this were not so, the defendant in the present case would stand between two conflicting jurisdictions, viz., those of the Courts of Requests at Bath and at Bristol, at both of which places, as well as at Kainsham, he seeks his livelihood. I am therefore of opinion that this case must be governed by that of Kemsett v. West. Mr. Justice PARK.-I am of the same opinion. The words "seeking a livelihood" have received an express construction in the case cited, with which I entirely concur. Mr. Justice GASELEE declined giving any opinion, observing that the consequence of this decision would be that the defendant could never be sued in either of the local courts. Mr. Justice BOSANQUET.-I concur in the opinions pronounced by my Lord Chief Justice and my brother Park. The words "seeking a livelihood" must be construed with great caution. I think we are bound by the case of Kemsett v. West. Rule discharged, but without costs. (a) (a) And see Gould v. Colyer, 1 Smith, 234; Skinner v. Davies, 2 Taunt. 196; Gray v. Cook, 8 East. 236; Stephens v. Derry, 16 East. 147; Jefferies v. Watts, 1 New. Rep. 153. But see contrà, Croft v. Pitman, 1 Marsh. 269; S. C. 5 Taunt. 648. The defendant in that case was a coal-merchant; his dwelling-house and wharf were in Southwark, but he also pursued his trade in the city of London, where the debt in question was contracted, and where he occupied the half of a counting-house, and paid half the rent: and it was held that this was a "seeking his livelihood" in London within the statute 39 & 40 Geo. 3, c. 104. A motion to enter a suggestion to deprive a plaintiff of costs, under the authority of an act erecting a local jurisdiction, will not be entertained after payment of money into court. Miller v. Williams, 5 Esp. Rep. 19. LEE v. MACDONALD.-p. 140. The defendant was convicted of felony after issue joined, and the notice of trial was countermanded. The court discharged a rule for judgment as in case of a non-suit, on a peremptory undertaking-the defendant being permitted to plead the plaintiff's conviction puis darrein continuance. MR. Serjeant Stephen, on a former day in this term, obtained a rule nisi for judgment as in case of a nonsuit, on an affidavit which stated, that, after issue joined and notice of trial given, the plaintiff had been convicted of felony and then remained under sentence in Newgate; and that a countermand of notice of trial in the cause was given on the 7th of October last, since which no further step had been taken by the plaintiff. Mr. Serjeant Spankie, on the part of the plaintiff, now moved to discharge this rule on a peremptory undertaking, upon an affidavit assigning his imprisonment as the cause of his default. Mr. Serjeant Stephen, contra.-In Bunyon v. Yerbury, 1 Dow. & Ryl. 448, it was held, in an action for penalties for usury, that the defendant was entitled to judgment as in case of a nonsuit, it appearing that a witness to the contract, who was abroad, would not be permitted to give evidence even if he were in this country. In the event of the plaintiff obtaining a verdict in this case, he would not be entitled to execution; (a) the right of the crown would supervene. (a) In Bullock v. Dodds, 2 Barn. & Ald. 258, it was held, that, by attainder, all the personal property and rights of action in respect of property accruing to the party attainted either before or after attainder, are vested in the crown without office found; and |