Court Of Common Pleas, We...
(Si!tingts in BRaeao. X - s &r. ;iergean; t'ELL outained, in tbis term, a rule to show cause why the plaintiff in this case should not discharge thedefendant out of the custody of the sheriff of WNrorcester, on her entering " a coramon appearance." Thecircumstances stated in the affidavits on which the rule was obtained, we already stated in our report on the 20th inst.; but in justice to theindividual against wrhom thecomplaint was made. we nowv repeat them, that the answer may be better un- derstood. They were in substance as follows:-The defendant, who is a wivdow, 70 years of age, had been left some small property by her husbarnd. Part ef the produce of this k-he sold to a person named Oliver, for 91. 18s., of which he paid 51. To recover the balance, she applied to the plaintiff, who is an attorney practising at Kidderminstcr, and directed him to write " a lawyer's letter" to Oliver, but cautioned him against any farther proceeding, as she was too poor to bear the expense of a law-suit. The plaintiff not only (according to the widow's account of it) wrote the letter, but comnmenced an action against Oliver, and though again cautioned by the defendant not to put her to the expense, went on with the ac- tion, and obtaiRed 101. from her towards it. A verdict was obtained against Oliver, and he was run up to execution; but soon after de- fendant was presented with a bill of costs amounting to 901. 12s., to' secure thepayment of which plaintiffdemanded from defendant and her son a mortgage upon their small property. This they refused; and then plaintiff arrested defendant upon a debt of 601. and up- wvards (the taxed costs.) Not being able to give bail, defend- ant went to gaol, where she remained till the action came on to be tried at the WVorcetster assizes, on which occasion plaintiff was nonsuited. Ile then refused to disebarge defendant on the ground that he would move for a new trial in the ensuing term. This, however. hc neglected to do, and in the interim he senit in his originsl bill of costs for 901. l9s., and laid a detainer on defend.- ant, for 601. and upwards, as before. Under these circumstances, the Court granted tibe rule. Mr. Sergeant VAUGHAN this day appeared to show cause against the rule, and observed, that his client bad taken the eatliest pos- sible opportunity of vindicating his character from the imputations which had been so unjustly thrown upon it. He knew nothing of the rule until it was served upon him on Saturday, at WVorcester, when he hastened up to town to get office copies of theaffidavits, that he lmight reply to theni. Great use hadi already been made of this ease. It was not only circulated in all the provincial papers, but had been made the subject of comment in the houses of Lords and Cemmons. Lord Chief Justice BEST said, it was unnecessary to allude to any thing which had been said in either of those places. Mr. Sergeant VAUGIHAN said, that lie had every respect for both the houses of Parlianient, and had only made the remark of this case hiving been noticed in them, to show that it was an additional reason for his client to make all possible haste. in order to remove the impression whIch it had created against him. 'Whatever might have been the application of this case to a certain biU now pending in Parliament, the County Courts bill, we believe), he should be able to satisfy the Coart, that the inconveniences which bad arisen to to the defendant had been the consequence of the stare of the law, and not the fault of the plaintifF. in conseqtrence of the shortness of the timne which the plaintiff had to prepare his affidavits, he could not go over those of defendanit word for word, but had replied to many parts of them generally. Mr. Sergeant PELL here observed, that if the plaintiff was not now prepared, he had no objection to let the case stand over for a dav or two. Lord ChiefiJustice BEST said,hc twas about to recommend, thaton- lystuch past of the rule as applied to the discbarge of the (efendant (as it concerned the libertv of the subject) should be gone into at present. The plaintiff might have further tinc to answer the other parts. Alr. Sergeant VAUG1{AN; replied, that he should be glad to avail himself of this offer, but the character of the plaintiff had been so loa,ded with obloqiy hy the defendant'saffidavits, that though under diadvantages with respect to the shortness of the time, he could not allow the afFair to he any longer in suspense. The learned gentle- man then proceeded to read the affidavits of the defendlant, and next those which the plainitiff now produced in answer to them: There were three affidavits from persons, two of whom had formerly been clerks to plaintiff, and one Was still in that capacity in his office. In those it was most distinctly and positively sworn, that the defendant had full knowledge of the action whiel had been brought against) Oliver; that it was brought by her express desire, and contrary to thc advice of the plaintiff Emery, who representee t-o the defendant that it would be inuch better that the affair shlould be settled in some other way, rather than tW proceed to a trial, which, if Oliver could not pay the debt and costs, would cost her 501. or 601.; that detendant, notwithstanding this. pressed the plaintiff to proceed wvith the action, observing that Oliver had behaved shabbily towards her, and that he could verv well pay the debt andl costs; that on the day that the action age5Inst Oliver was tried, and a verdict obtained against him, defendant and her sea caime to plaintifand expressed their entire satisfaction at the manner in wlhich he had acted, and thanked him; that defendant gave 101. towards going on with the cause, and, after the trial, promised some more; that she (defendant) and her party were so much rejoiced on gaining a verdict against Oliver, that they left lVorcester irL triumph, wearing blue ribands. These deponents also positivoiy swore, thatto theirknowledge or belief, the defendant was never a3ked by plaintiff to grant a n.ortgage on her property, to secure payment of costs; but that she was told to pay them by instalments, *tronthly or annually, as it mnight suit her. It was also sworn that plaintiff hail gone to expense in carrying on the suit-tbat he had paid 71. 9s. at" the Alonth of the Nile," (a public-house in Worcester), ex- penses incurred by defendanit's witnesses in the action against Oliver and that this sum, and 41. paid to some of the witnesses for their trouble in a'ttending the assizes, were inc luded in plaintiff's bill of costs. There was also an affidavit fromi the plaintiff Emerv, im which he positively stated most of the facts above mentioned; and added, tbatbythe desire of-lefendant,liehiad issued execution against the property of Oliver for debt and costs; but that, so much of the property was seized by the landlord for rent, that the remainder did not produce a sumn sufficient to cover the expense of the levy, poundage, &c.; that he then offered to issue a co.'sa. against Oliver, btit that defendant, vexed at fdding that no property was found to pay costs, refusetd to allow hin; that lie therefore sent in his bil, desiriig to make some settlement, to secure his- payment in the v.way most convenient to herself; that after promising to do so, she de- layed, and at last refused to pay at all; that she then kept out of the way for soine time, and it was not until after he haii rone to the expense of issuing three writs that he succeeded in taking her into custody. The affidavit then went on to state the cir_ crrmstances under whichi plaintiff had been nonsuited. It sadd, that on the day of trial the cause was not entered til nine in the morning-that when in court, plaiitiiff saw a lr. Stepheii Godson, who, as he believed, was defendant's attornev. He asked Godson whether he was the attorney of defendant, to which Godson replied in the negative; but added, that a Alr. Brampton was. Pl,.intiff then (not knowing Brampton) asked if he was in court, as he wanted to speak to him on the subject of the trial, as he feared it would be called on before aU his witnesses arrived. Godson - told him that Brampton Xvas at a house a quarter of a mile distant ; aiid while plaintiffwent in search of himn, aud while thus abspntfrom court, Godson (who, as it afterwards appeared, was himself the at, torney of the defendant) hurried the cause forward; and plaintiff'on his return had no alternative but to allow himself to be nonsuited, as all his witnesses had not arrived. It was furtber sworn, that at the time Godson told plaintifF that Brampton was gone hame, he (God. son) knew Brampton to be in court; that Bramptois's name was in the list as defendant's attorney, but plaintiff was informed, and be. lieves, that Godson and Branmpton acted joinfly in the defeiiee. Lord Chief Justice BEST asked what answer was given to send- ing in the o: iginal bill of costs for 901., after the arrest for only 60]. Dlr. Sergeaut VrAUGIIAN said, that it was a copy of the original bill, hut that only 69L was sought. He then went on to the other parts of tde case, and couitended that the plaintiff, who had already suffered in his reputation by the erroneous and exaggerated state- ments of this case which had gone into some of the papers, had given a satisfactory answer to the charge brought against him; and he therefore hoped their lordships would discharge the rule with costs. Tire ComtT were of opinion that the plaintiff had given a full answer to the matters alleged; bitt the part of the rule which re- -spected the defendant's discharge, on entering "a common appear. ance " must be miade absolute, as theplaintiffwas irregular in laying the detainer. -The LoRD CHiIEs JUSTIcE asked wlhetlier plaintiff would give up all claim against eletcudant for the costs of Oliver's action, and discharge ber out of custody, withou t farther-costs on eitler side. Al r. Sergeant VAUGIIAN'said, that plaintiff liad already-paid the costs of the nonsuit, and ie p ut it to the CAourt whether the parties ouglit to liave to coeUl the Court after the payirrent of those costs. The Clr1Er JUSTICE said, that that niade a great diffeienee, but the defendant had a right tn -come before the ('Curt, 'as - the lodging of the detainer against her was irregular. - His Lordsbilp then said the matter should stand thus:-Let the defenidait returnt the costs ot nonsuit, and let lher be discharged out of custody; and the plaintiff give up his claimn againt her for the costs in the action- Over fo ; and rtehe 1_ allgw the pltaainff proceed egainst Ivr ~or the tecovery of his costs at his own expense. M3nr. Se?zru!it -VACGnA.IT submni1ted that it ought to be made a '1`2rt Of thec rul e that Gods'bn should bc calledl upon'to give an under- tak7n,, to return the Costs on?tonsuit 3 r* &Smeant PELL sulbmitted that the defendant should be al- loe t t costs of.this app:ication. g ud CDhieV Justice BEST thought not. The indemnity which she gasn, at the claim- or Oliver's costs would more than pay thehere, rand, upon B .balance.of accountsI she got well oft- ole- for the dct.ndant's discharge made absolute, but without COURT OF COMIMON? PLEAS. IV ---- -. s.. EmIERY V. BROWN. WiDOW.