But, if each a distinct subject-matter of complaint. It is true, the Rule discharged. 1838. JAMES บ. BOURNE. ORAM v. PARKER. Monday, April 30th. FRANCILLON, on a former day, obtained a rule on Where the plaintiff's at charged in his bill, and had been paid, for entering satisfaction on the roll, but had omitted to do the part of the defendant calling upon the plaintiff's attor-torney had ney to shew cause why the roll should not be carried in by him and at his own expense. It appeared from the affidavit upon which the motion was founded that the defendant was desirous of entering satisfaction upon the roll, but that the plaintiff's attorney, although his bill of costs, including a charge for so doing, had been paid, had omitted to carry in the roll, and now refused to do so without being paid for it. Martin now shewed cause, referring to a case (not reported) of De Bastos v. Wilmot, in which Coleridge, J., in 1835, made an order under precisely similar circumstances, directing the attorney to carry in the roll, on payment of costs. Francillon, in support of his rule, was stopped by the court. TINDAL, C. J.-The attorney has already been paid for doing that which he is now required to do. I do not see so-The court, at the instance of the defend ant, ordered him to do so at his own cost. 1838. ORAM V. PARKER. any good reason why it should not be done, and at his expense. At the same time, I must observe that the proper course for the defendant to pursue, was, to apply to a judge at chambers, instead of coming to the court. I therefore think the rule should be made absolute without costs. The rest of the court concurring— Rule absolute accordingly. Thursday, May 3rd. MASON v. WHITEHOUSE. An attachment R. V. RICHARDS, on a former day in this term, ob for non-pay ment of money pursuant to a rule cannot properly issue upon an affi davit of a demand by the ney, where the money is by the rule made tained a rule nisi to set aside an attachment that had issued against the plaintiff for non-payment of costs of the day for not proceeding to trial. The demand had been made by the defendant's attorney-the costs being by the rule plaintiff's attor- made payable to the defendant. He cited Doe d. Chippen v. Roe, 1 Scott, 588, n., where a motion for an attachment for non-payment of costs that had been ordered to be paid to the party, on an affidavit of a demand made by his attorney, was negatived-the Secondary reporting, that, where costs are directed to be paid to the party, in order to found an attachment for non-payment, the demand must be made by him, or there must be a power of attorney. payable to the plaintiff only, and there is no power of attorney. Whateley now shewed cause.-The demand was properly made by the attorney, for "he represents the principal for all the purposes of the suit "--per Parke, B., in Clark v. Dignum, 3 M. & Welsby, 319; and he has a lien on the costs. Had the rule required the party to pay a sum of money, and not costs, there might be ground for the objection. A refusal to pay to the recognized agent of the defendant, the party entitled to receive the costs, was in point of law a refusal to pay the defendant him self. R. V. Richards, in support of his rule, was stopped by the court. TINDAL, C. J.-The question is, not whether the defendant's attorney had authority to receive these costs; but whether the plaintiff is in contempt for the disobedience of an order of the court. The words usually inserted to give the attorney authority to make the demand, are here omitted; and no authority has been cited to shew that an attachment can issue against a party for non-payment of costs, where the demand has been made by one not named in the rule or acting under a power of attorney. I think the plaintiff is entitled to have the attachment set aside, with all the costs incident thereto. But I think the justice of the case will be answered by withholding the costs of this application. The rest of the court concurring Rule absolute, without costs. 1838. MASON บ. WHITEHOUSE. HUNTLEY V. BULMER and Others. Thursday, BAYLEY moved for a rule calling upon the plaintiff to A notice that shew cause why he should not give security for costs. The the defendant intends to move for security for costs by reason of the plaintiff's residence out of the jurisdiction of the court, does not dis pense with the necessity of demanding security prior to the motion. Semble, that the affidavit upon which a motion for security for costs is founded should shew in what stage the proceedings are. 1838. HUNTLEY บ. BULMER. fusal (a), or in what stage the proceedings were. He submitted, that the notice was equivalent to a demand; and that it was not necessary that the stage of the proceedings should appear on the affidavit in support of the motion— Jones v. Jones, 2 C. & J. 207, 2 Tyr. 216, 1 Dowl. 313, where the court say: "If the plaintiff is out of the jurisdiction of the court, the defendant is entitled to have security for costs, unless the plaintiff shews by affidavit that the proceedings are in such a stage as to deprive him of that right. The defendant makes the application at his peril, and it rests with the plaintiff to shew that the application is too late." PER CURIAM.-A notice of motion is not tantamount to a demand of security and refusal. And, notwithstanding the case cited, we are disposed to adhere to the rule laid down in this court in Luzaletti v. Powell, 1 Marsh. 376, and even since acted upon here, that the affidavit upon which the motion is founded must state in what stage the proceedings are. Rule refused. On a subsequent day an affidavit was produced, stating that security had been demanded and refused, and that the time for pleading had not expired; and the rule was granted. (a) See Adams v. Brown, 2 M. & Scott, 154, 9 Bing. 81, 1 Dowl. 273, and the cases there cited.. THIS PLACE and MEABRY V. Delegal. 1838. Thursday, May 3rd. The plaintiffs declared upon the following will of the late consideration of your having Mr. J. M.: In paid me the sum of 32l. 6s. 6d., in respect of the share of W. M., or of his assignees, in the produce of the estate called B. B., I undernify and save you and each of you harmless from any claim take to indem was an action of assumpsit on a contract of indemnity. The first count of the declaration stated, that, before and at the time of the making of the promise of the defendant thereinafter next mentioned, the plaintiffs were the executors of the last will and testament of one John Miers, and an estate called Black Bank had been and was sold under the directions of the plaintiffs as such executors; and before and at the time of the payment by the plaintiff's to the defendant thereinafter next mentioned, the plaintiffs, to wit, as executors as aforesaid, held in their hands certain monies as the produce of such sale; that, upon the death of the said John Miers, one William Miers claimed to be entitled to a certain share of and in the said estate and the proceeds thereof when sold, and the said William Miers became a bankrupt, and a certain commission of bankruptcy, founded on the statutes relating to bankrupts then in force, had been and was awarded against him after the death of the said John Miers and before the making of the defendant's promise thereinafter next mentioned, to wit, on the 23rd April, 1829; and thereupon, before the making of the defendant's promise thereinafter next mentioned, to wit, on the 20th May, 1829, certain persons, to wit, James Chart and Alfred Newman, were appointed and became assignees of the estate and effects of the said William Miers under the said commission; that, before and at the time of the making of the defendant's promise thereinafter next men- the proceeds at tioned, the said James Chart and Alfred Newman, as such assignees, claimed to be entitled to and required the plaintiffs to pay to them a certain sum, to wit, the sum of 321. 6s. 6d., being in the hands of the plaintiffs as such executors, in respect of the said William Miers's said that may be made against you in consequence of seque your having so said sum of money, whether by the said paid me the W. M., or any person claiming pers through him." J. E. was the at torney of P. and M., and as such had sold the estate, and held the time the taking was given:-Held, that the agree above under ment was pro perly sued upon by P. and M., without joining share of and in the produce of the said estate; that, J.E. |