1806. HANHORN against THOMAS.-8th May. sion: Wit ness. Where upon application to the attorney for the defendant to admit Costs. Admis certain facts in proof, and he refused; and afterwards, upon going to trial, it appeared, that, by having pleaded a tender, it became unnecessary to prove them, but the plaintiff took witnesses to the assizes for that purpose, and was allowed their expences, to a large amount, in the taxed costs, notwithstanding they were not called upon the trial, the court refused to revise the taxation. TAUNTON obtained a rule to shew cause why the master should not revise his taxation of costs in this cause, in order, that several sums, amounting to 641: in the whole, being the expence of certain witnesses who attended at the assizes for the plaintiff, should be struck out! The case was, that, in an action of assumpsit, upon a contract relating to the purchase of several estates, including a great many distinct averments, which upon the declaration were necessary to be proved, the defendant pleaded a tender, and when the cause came to be tried, at the last assizes for Hereford, before Lord ELLENBOROUGH, C. J. the counsel for the defendant endeavoured to put the plaintiff to the proof of these averments; but his lordship thought, that, by the plea of tender, the declaration was admitted, and it was not necessary to prove any of them, but only to prove the amount of the damages, and the only witness called was a Mr. Stephenson. The master finished the taxation of costs in March last, and included in the amount the expences of six witnesses and upwards, who attended to prove the special averments. On shewing cause, it appeared that the plaintiff's attorney having taken the advice of a gentleman at the bar, who thought he could not safely advise the going to trial, without 3 A NO. XXXII. N. S. HANHORN versus THOMAS 1806. HA ORN versus THOMAS. proof of these averments, he applied to the defendant's attorney to admit some facts, in order to save expense, which he refused to do. TAUNTON Contended, in support of the rule, that it being necessary to state, that the witnesses were material and necessary in the affidavit to increase costs, that could not truly be stated, and the plaintiff could not be entitled to their expences, and whether they were necessary or not was the only question to be con sidered by the court. As to the conduct of either of the attorneys, who were under a mistake as to the necessity of the witnesses, it could not affect the case; and if they were not necessary, the conduct of the defendant's attorney could not help the plaintiff's case; for it was not the business of the former to admit proof of that which might be unnecessary, nor to supply defects in the plaintiff's case, and it was the business of the plaintiff's attorney to know the degree of proof, and the number of witnesses necessary at the trial. Lord ELLENBOROUGH, C. J. "Are you to expect, that we will open the taxation for a party who conducts himself in this way; who refuses to admit, and then complains that witnesses are produced for the purpose of proving that, which it was in his power to admit? At a period of time when it is doubtful between the parties, whether proof is necessary or not, the party applies quia timet, the other refuses, and thus makes it necessary in the opinion of the other party to take the witnesses to the assizes. As to the question whether the witnesses are material and necessary that has been before the officer of the court; he has allowed them, and under these circumstances, we do not see any reason to revise the act of our officer, in such a case." 1 RULE DISCHARGED. 1806. DESIONS against HEAD.-May 14th. riance between Where the defendant, being sued by original, had pleaded the sta- Practice. Plea. tute of additions in abatement of the original writ, and had given Abatement.Vaa rule to reply, without oyer of the original writ, the court, upon original and motion, discharged the rule to reply, in order to let in the plaintiff declaration. to sign judgment, as for want of a plea; notwithstanding the rule that oyer cannot now be prayed of an original writ. Semble. No advantage can now be taken of a variance between the writ and the declaration. versus THIS was a rule to shew cause why a rule to reply DESHOND in the cause should not be discharged, and the plaintiff be at liberty to sign judgment. Upon the affidavit of the plaintiff's attorney, it appeared, that he had sued out a special capias against the defendant on a bill of exchange, delivered declaration and demanded a plea; when he found a plea in abatement filed in the office and was served with a copy of a rule to reply. The plea in abatement was,. that the original writ contained no addition to the defen dant's name. LAMBE shewed cause, " The present rule is a new experiment, and it is clear that the plea in abatement was not for mere delay, for otherwise the defendant would not give a rule to reply. If the plea was a mere nullity then the plaintiff ought to have signed judgment. The plea is verified by affidavit, and if the plaintiff' made a blunder by omitting to sign judgment, when he might have signed it, the defendant may well take advantage of it; and if the plea was bad, the plaintiff ought to have demurred. The object of the defendant was to save himself the costs; for the plaintiff had sued out two originals upon the same bill of HEAD. 1806. DESHONS versus HEAD. exchange, and had obtained, from the drawee, the debt and costs in the action against him. The defendant could not have oyer of the writ because of the rule of the court." COMYN, in support of the rule. "This plea is not merely defectively pleaded, but is such a plea as cannot be received, and yet we cannot sign judgment because there has been a rule to reply, and it would be a contempt of the court if judgment were signed without previously discharging that rule. This plea ought not to be received because the defendant has not prayed oyer of the original writ, and in Com. Dig. Pleader, R. 2, it is said the defendant shall not plead in abatement of the writ before oyer of it; and the same rule is laid down in Abatement H, no plea to the writ can be before oyer.' This is not a new experiment, for in Holl v. Finch, the court said at this day the courts of justice interpose in a summary way, and in many cases set aside proceedings upon motion, where there is no other remedy; as where they see that a plea is frivolous they will set it aside. In Murray v. Hubbard,† the defendant was arrested by the name of F. Hubbard and put in bail by the name of S. Hubbard, the plaintiff declared against S. Hubbard arrested by the name of F. Hubbard: the defendant pleaded in abatement of the writ, that his name was S. Hubbard, the plaintiff signed judgment treating this plea as a nullity; the defendant moved to have the judgment set aside; the ground of signing the judgment was that the defendant had not craved oyer of the writ; the court said, that, the plea being bad and wholly unavailable, they thought the judgment was right. So in Gray v. Signet; there was a plea like this of the statute of additions, and a motion to set aside the plea and for leave to sign judgment, 3 Bos. * 2 Wilson, 393. + 1 Bos. and Pull. 645. on the same ground, that the defendant had not craved oyer of the writ. It was said on behalf of the defendant that the court would not interpose to give the plaintiff the opportunity of signing judgment, but would put the plaintiff to his demurrer,because that mode would deprive the plaintiff of his writ of error; but Lord Alvanley said 'the question is only whether the plea could be received; that question appears to be decided by the case of Murray y. Hubbard; it had been long the practice not to grant oyer of original writs, and it was a strange position, that, because of that, the defendant should be at liberty to plead in abatement without; for the Master of the Rolls, if such a plea were pleaded, would issue a new writ agreeable to the declaration.' So in 1 Saunders, $18, note 3, by Serj. Williams, it is said from thence (from the rule that oyer shall not be given of the original writ,) it seems to follow that no advantage can be taken of a variance between the original writ and the declaration.' The cases in which that rule was laid down, were Vauderplank v. Banks, and Joseph Hole v. John Finch, and it is theresaid that where the defendant pleads a variance between the writ and the declaration, he must demand oyer of the writ to shew the variance of the writ. Although these cases were in the Common Pleas, yet there is no difference between the practice of the courts, this being upon an original. And the original writ, in fact, is never issued unless there is an outlawry or a writ of error. So there was a plea in abatement, in the case of Wallis v. the D. of Cumberland, in an action upon an annuity bond; the defendant prayed oyer of the deed, and did not set forth the real deed, and the court held that the plaintiff might sign judgment or demur: and in Ferguson 2 Wilson, 85. Ibid. 395. 4 Term Rep. 370. |