Allen v Bennet
| Jurisdiction | England & Wales |
| Judgment Date | 04 July 1810 |
| Date | 04 July 1810 |
| Court | Court of Common Pleas |
English Reports Citation: 128 E.R. 67
Common Pleas Division
Referred to, Lonq v. Millar, 1879, 4 C, P. D. 456.
writ sued out. To this replication the Defendant demurred, and the Plaintiff joined in demurrer. Vaughan Serjt. in support of the demurrer, cited Comerford v. Price, 1 Doug. 312, to show that an attorney may plead his privilege in abatement in any case personal to himself, though it do not concern his duty as attorney ; although he cannot, according to Lori Raym. 533, Newton v. Rowland, plead it when sued in auter droit. Williams, Serjt., contra. By stat. 5 Geo. 2, c. 18, s. 2, no practising attorney shall be capable to be a justice of the peace in a county, but the 5th section gives an exception a& to magistrates of boroughs. By 24 G. 2, c. 44, s. 1, no writ shall be sued out against, nor any copy of any process at the suit of a subject served on, any justice of the peace, for any thing done by him in the execution of his office, without one month's previous notice in writing. It being admitted by the demurrer that the act done was in the execution of his office, the defendant was clearly entitled to a month's notice under that statute. This is decisive against the privilege, for the statute hereby contemplates, and even requires, that all actions against magistrates shall be commenced by writ or process to bring them into court. A writ clearly is not a bill, nor is process here meant for that which issues against an attorney, but against any common person. The set therefore supposes, that whether the Defendant is a county magistrate, or a borough magistrate, he must be sued like any other common person, and must have notice of the process. The act therefore virtually takes [168] away the privilege of an attorney under such circumstances. Vaughan in reply, the privilege of an attorney is general, that of a borough magistrate local. It cannot be intended by this local provision to repeal the general privilege ; or if intended, it would have been more plainly expressed. [Mansfield C. J. The reason of the thing is with you, but the very terms of the act prescribe a writ or process, which seems to be that which is to bring a party into court : a bill of privilege is no process, it supposes the Defendant to be already in court, and the very object of process in that case fails, therefore no process is necessary.] The act was meant in ease of the magistrate, and it would be hard in any case to turn it to his disadvantage ; and it may perhaps be considered as applying in this respect to county magistrates only. Cur. adv. vult. The judgment of the Court was now delivered by MANSFIELD C. J. It was never intended probably that an attorney should act as a magistrate ; but in boroughs this might be necessary. The question is, whether he is entitled to his privilege? Suppose he had been proceeded against as an attorney, and a notice of a bill bad been given, I should have thought this a compliance with the act, though the bill is neither a writ nor a process. Then it follows that he has a right to be sued in this manner, as an attorney. I 7.2 , . Judgment for the Defendant. [169] ALLEN v. BENNET. July 4, 1810. [Referred to, Long v. Millar, 1879, 4 C. P. D. 456.] Au order for goods, written and signed by the seller in a book of the buyers, but not naming the buyers, may be connected with a letter of the seller to his agent mentioning the name of the buyer, and with a letter of the buyer to the seller claiming the performance of the order, to constitute a complete contract within the statute of frauds.It is no objection to the validity of a contract for the sale of goods signed by the seller, that the seller cannot enforce the same contract against the buyer, because the buyer has never signed it. This was an action of assumpsit : the first count of the declaration was for not delivering to the Plaintiff a parcel of rice ; the second and third counts were upon the non-delivery of two several quantities of tobacco, to the amount of...
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