1819. Saturday, Application against defendant's attorney for costs of opposing bail changed vexatiously.-Referred to the master.(b) STEER V. SMITH. (a) NDREWS moved for a rule calling upon the defendant's attorney to shew cause why he should not pay the plaintiff's attorney the costs of former oppositions to bail under the following vexatious circumstances. The action had been brought in the Mayor's Court, and was removed into K. B. In the vacation notice of bail was given to justify before Best J. at chambers, but his Lordship was of opinion, that under the statute 43 Geo. 3. c. 46. he had no authority to take the bail. Notwithstanding this decision, the defendant's attorney gave two other notices in vacation of the same bail to justify before other Judges of this Court at chambers, when the plaintiff's attorney again attended, and the bail were rejected on the same ground. The plaintiff's attorney then received another notice for the justification of the same bail for the first day of Term, but the bail did not come up on that day, although the plaintiff's attorney had instructed counsel to oppose. A fresh notice of the same bail was then served for the third day of the Term, when the bail did attend. Before they were permitted to justify, application was made to Holroyd J. who sat in the Bail Court, for the costs occasioned by these repeated notices; his Lordship however said he had no authority to grant such an application, but suggested that the better course was to move the Court against the attor (a) This case came before the Court on a former day, see ante 44; on which occasion the present application was suggested. (b) Vide Hullock's Law of Costs, 2d ed. 485. 3 Taunt. 492. 2 Burr. 654. 4 T. R. 371. Tidd. 6th ed. 78. as to the liability of an attorney to pay costs to the opposite party for vexatious conduct. ney for vexatious proceedings; and under that suggestion this application was now made. BEST J. said he had some doubts whether the motion was tenable, but as he understood that his Brother Holroyd was favourable to it, he should grant a rule to shew cause. And afterwards on shewing cause, the matter was ordered by the Court to be referred to the Master. 1819. STEER against SMITH. IN BAIL COURT.-WHEELER v. RANKIN. CHITTY moved to justify bail in behalf of the defendant. In this cause two notices had been given by two different attorneys, one on behalf of the defend ant, and the other for the sheriff. E. Lawes opposed the justification of the bail put in by the defendant, on account of the uncertainty occasioned by the two different notices, and on the ground that the bail put in by the sheriff had already this morning justified, and therefore the bail of the defendant could not be allowed to justify, for there could not be two allowances of bail. BAYLEY J. There is no objection to the justification of these bail on that ground. In point of fact, it is no uncommon thing that notice of the justification of bail should be given by different persons. There are many different persons interested that bail should be put in the defendant is interested, the bail to the sheriff are interested, and the sheriff himself is interested; and therefore it very often happens that you receive notice of bail from two different persons. If the defendant's bail were not allowed to justify, the consequence G Monday, Though two noby different attorneys of two tices are given different sets of bail, and bail put in by the sheriff have already justified, the defendant is en titled to have his bail justify and be allowed. 1819. WHEELER against RANKIN. would be that the sheriff's bail might immediately render the defendant, notwithstanding he might be ready to perfect bail, and who would not render him. There must, however, be an affidavit that the bail were put in by the defendant, upon producing which, and the bail justifying, the rule for the allowance must be drawn up for such bail instead of the sheriff's bail. This was done accordingly during the sitting of the Court. Monday, A person once rejected as bail cannot afterwards become bail, however his circumstances may have changed. SNELL'S BAIL. IT was in this case objected that Moore, one of the bail, had been rejected before Lord ELLENBOROUGH on the 11th of March 1813, and in Court on the 20th of May in the same year; and which was established by production of the book in which the names of rejected bail are entered. And the facts were not disputed. Campbell, in support of the bail, asked him under what circumstances he had been rejected. The bail said, he had been rejected six years ago on account of insufficiency of property, but that since then he had acquired much more than double the sum for which he. proposed to become bail. But per BAYLEY J. If bail has been once rejected and entered in the rejected book, it is an established rule. that the circumstances under which the rejection took place cannot on a subsequent occasion be inquired into, and the party afterwards continues incompetent to be come bail. 1819. COUNSEL BUTLER'S BAIL. but was instructed to oppose this bail, mistating the name when called over, did not oppose when they came to justify; but instantly after they had been sworn and had justified, the Counsel stated his mistake. But per BAYLEY J. The rule is established, that opposition comes too late after the bail have justified, and it is not in my power to admit you to examine the bail. (a) Hawkins v. Wilson, 5 Taunt. 666. If bail justify without the observation of counsel instructed to oppose them, the Court will not require them to come up again and justify de novo. Per Curiam. The bail may not like to come up again, nor can we ask a bail whether he has been guilty of perjury on a former day. Monday, Opposition of bail must be be fore justifica take of counsel in not opposing tion, and a mis in time, will not be a ground for examination. (a) CONNELLY V. SMITH. TURTON moved for a rule to shew cause why the bail bond in this case should not be delivered up to be cancelled, and why the defendant should not Monday, The statute arrest from ser- though necessarily employed about their persons and estates, and therefore the Court refused to discharge defendant upon common bail who was employed as a surveyor on the estate of a peer (a) (a) Before the passing of the 10 Geo. 3. c. 50. the servants of peers necessarily employed about their persons and estates could not be arrested. Rivers v. Cousin, 1 Mod. 146. In Chester v. Upsdale, 1 Wils. Rep. 278. the Court of K. B. refused to discharge a person on common bail who claimed his privilege, as a gamekeeper in the service of Lord Willoughby de Broke, on the ground that it did not appear that the defendant was necessarily employed about his Lordship's estate; and the Court referred to the order of the House of Peers of the 28th June 1715, which they considered to be a declaration by the Lords themselves of the extent of their own privileges 1819. CONNELLY against SMITH. be discharged on filing common bail, upon an affidavit which stated that the defendant was a surveyor, and had been for a considerable time past employed in cutting a canal on the estate of Lord Hawke, a peer of parliament, and by virtue of such employment was entitled to privilege from arrest. It was well known that the House of Lords, on the first day of every session of parliament, issued an order in pursuance of the claim made in former times, for granting protection from arrest, not only to the members themselves, but to their menial servants and other persons necessarily employed about their persons and estates. The defendant in the present case, though not a menial servant, yet was necessarily and properly employed in the management of an estate of a peer in parliament, and upon that principle was entitled to his privilege. He was not aware of any case which decided that a person so situated was entitled to privilege from arrest; but as the affidavit stated positively that this person was necessarily and properly employed in the management of the property of Lord Hawke, the Court will consider him entitled to the benefit of the motion now made. It was true that the 10th Geo. 3. c. 50, had been passed for the purpose of limiting this privilege and as the defendant did not bring his case within the terms of that order, the Court refused to discharge him on motion, but gave no opinion whether he was entitled to the privilege he claimed. And see 2 Stra. 1065. The 10 Geo. 3. c. 50. sec. 1. enacts, that after the 24th day of June 1770, any persons may at any time commence and prosecute any action or suit in a court of record or court of equity or admiralty, and in all causes matrimonial and testamentary, in any court having cognizance of causes matrimonial and testamentary, against any peer or lord of Parliament of Great Britain, or members of the house of commons, or against their or any of their menial or other servants, or any other person entitled to the privilege of Parliament of Great Britain; and no such action, suit, or other process or proceeding, shall at any time be impeached, stayed, or delayed, under colour or pretence of privilege of Parliament. The second section of the act provides that it shall not extend to subject the persons of members of the house of commons for the time being to be arrested or imprisoned upon any such suit or proceedings. Vide Tidd. 6th ed. 199. Imp. K. B. 8th ed. 120, |