1850. GELL V. CURZON. ferent case, for it is the subject-matter of the reference, while this is independent of the matters referred. The case cited in support of the rule is an authority for calling upon the attorney to give security. Then, is the proceeding taken for the benefit of the attorney? The plaintiff is no doubt in England, and makes no affidavit on the point; and it is quite consistent with the affidavit of the attorney that it is substantially for his benefit. Rule absolute. Jan. 31. The plaintiff agreed in writing with the defendant to do the brick work of a cer- the defendant to require a stamp, it not appearing at the time of making it that its value amounted to 201., though the work done ultimately exceeded that amount. LIDDIARD V. GALE. DEBT for goods sold and delivered, work and labour, &c.-Plea, nunquam indebitatus. At the trial, before Rolfe, B., at the Middlesex Sittings in the present term, it appeared that the action was brought by the plaintiff, a bricklayer at Slough, to recover from the defendant the sum of 481. 12s. 11d., for repairing the "Mechanics' Institution" at that place. The plaintiff tendered in evidence the following unstamped document, signed by himself and the defendant: "An agreement for the brickwork, labour, and scaffolding for Mechanics' Institution.' Mr. Liddiard agrees with Mr. Gale to do the same for the sum of 11. 148. per Mr. Gale to find all materials, and screen the sand.” rod. The brickwork, labour, and scaffolding, on being measured after the completion of the work, amounted in value to 20%. 7s. 74d., and the plaintiff had charged that amount to the defendant in an account delivered, which contained, amongst others, the following item:-“ Labour and scaffolding to reduced brickwork, by agreement, 201. 7s. 74d." There was no evidence that, at the time of the contract, it was known that the value of the work would amount to 20l. It was objected, on behalf of the defendant, that the agreement was not admissible in evidence for want of a stamp; the learned Judge, however, received it, and a verdict was found for the plaintiff. T. Jones now moved for a new trial, on the ground of this improper reception of the evidence.-The value of the subject-matter of the agreement was above 20l., and therefore it required a stamp under the 55 Geo. 3, c. 184, Sched. Part 1, tit. "Agreement." [Pollock, C. B.—If, at the time of making the contract, the pecuniary value does not amount to 207., no stamp is necessary, though it subsequently turns out that the value is more than 20%. Suppose a person agrees to supply another for a year with coals, at a rate not exceeding 20s. per ton, and at the end of the year the amount supplied exceeds 20l., that agreement would not require a stamp. Platt, B.-The value must be measureable, and capable of being ascertained, at the time of entering into the contract.] If so, a person who agreed to build a house at so much per foot, might evade the duty, although, at the time of the contract, it was evident that its value would amount to 10,000. [Parke, B.—In the case of Rex v. The Inhabitants of Enderley (a), the Court said, that, as there was nothing to shew that the value of the subject-matter of the agreement itself was 20%., it did not, therefore, fall within the terms of the schedule rendering a stamp necessary where such is the value.] PER CURIAM (b).—There will be no rule. 1850. LIDDIARD V. GALE. Rule refused. (a) 2 B. & Ad. 205. (b) Pollock, C. B., Parke, B., Rolfe, B., and Platt, B. 1850. Jan. 31. Where a defendant has taken out a summons for further time to dismissed after his time for pleading has expired, he is entitled to the remainder of that day to plead. EVANS v. SENIOR. IN this case the time for pleading expired on the 25th of January. On the 24th the defendant took out and served a summons for further time to plead, returnable at three plead, which is o'clock on the 25th. The plaintiff having failed to attend this summons, the defendant on the 25th took out and served another summons, returnable at three o'clock on the 26th. This summons was attended by both parties, and the Judge refused to make an order. On the same day the plaintiff signed interlocutory judgment as for want of a plea. This judgment was afterwards set aside by Rolfe, B., for irregularity, on the ground that the defendant had the whole of the 26th to deliver his pleas. Keane now moved for a rule to set aside the order of Rolfe, B., and subsequent proceedings.-The judgment was regular. The time for pleading expired on the 25th, so that the plaintiff was entitled to sign judgment on the morning of the 26th. If a summons for time to plead, returnable on the day on which judgment may be signed, is to deprive the plaintiff of his right, a defendant might always obtain one or two days' additional time to plead, though the Judge has determined that none ought to be allowed. It is true that, in Hughes v. Walden (a), the Court considered that a defendant, who obtained a rule which stayed the plaintiff's proceedings, ought to have a reasonable time allowed him for the purpose of taking his next proceeding, and that the whole of the day on which the rule was disposed of was such reasonable time; but in that case a rule nisi had been granted, the service of which operated as a stay of proceedings; whereas a summons of (a) 5 B. & C. 770, n. this kind is obtained on application to a Judge's clerk, without any statement to the Judge, and is only a stay of proceedings from the time it is returnable. [Parke, B.The summons is the act of the Judge, who, in contemplation of law, is cognizant of it and directs it to issue. Alderson, B.-It may be said that it is a hardship on the plaintiff that the defendant should gain time by his summons, which is the case if he has the residue of the day after the summons is dismissed; but on the other hand, the defendant took out a summons returnable the day before the time for pleading expired, and if the plaintiff had attended it, and that summons had been dismissed, the defendant would have had the remainder of the day to plead; so that the plaintiff has deprived the defendant of that time by not attending the summons. The rule laid down in Mengens v. Perry (a) is, “that the defendant is not entitled to more time for pleading than the rest of the day on which the summons is dismissed."] POLLOCK, C. B.-I am of opinion that my Brother Rolfe was right. The correct rule was laid down in Mengens v. Perry, and ought to be adhered to. PARKE, B.-We ought to abide by the last case, which is that of Mengens v. Perry, decided in 1846, and in which the rule laid down is a reasonable one. (a) 15 M. & W. 537. Rule refused. 1850. EVANS v. SENIOR. 1850. Jan. 22. On the removal by certiorari into the Court of Queen's Bench of an indict ment for diso In the Matter of the Recognisance of JOHN THORNTON and and two Others, estreated into this Court. REGINA V. THORNTON. THIS was a petition to the Lord Chief Baron, praying that all further proceedings upon a recognisance entered into, in the Court of Queen's Bench, by John Thornton and two sureties, and estreated into this Court, might be bedience of an stayed, and that the petitioner and the said recognisance might be discharged. order of ses sions, the defendant and two sureties en tered into the usual recognis 5 & 6 Will. & M. c. 11, s. 2, which made no mention of costs. The de fendant was convicted and attached for non-payment of the costs, and the recognisance was estreated into It appeared from the affidavits and petition, that John Thornton, on the 23rd of October, 1846, conceiving himance under the self to be injured and aggrieved by the diverting, turning, and stopping of a certain public footway leading from Kirby Lonsdale to Hutton Roof, in the county of Westmoreland, appealed against the confirmation of the certificate of the justices. The certificate was, however, confirmed at the Quarter Sessions, and he was ordered to pay the surveyors of the highways of Kirby Lonsdale the costs of the said appeal, which amounted to 471. 18s. 6d. In the Court of Ex- consequence of his poverty he was not able to pay that chequer. On sum, and at the Easter Sessions, 1847, a bill of indictment was preferred and found against him at the Quarter Sessions for the county of Westmoreland, for a misdemeanor in disobeying the order of sessions, by omitting to pay the costs of the appeal. He removed the indictment by writ of certiorari into the Court of Queen's Bench, and thereupon, together with Henry Robinson and Miles Hodgson, without preju entered into the usual recognisance, himself in 80%, and two sureties in 40%. each, conditioned as follows: the petition of the defendant and his sureties, the Court stayed the pro ceedings on the recognisance, as regarded the defendant, on account of his poverty, but dice to the liability of the sureties. "That if he the said John Thornton shall appear in her Majesty's Court of Queen's Bench at Westminster, on the 22nd day of May instant, in next Trinity Term, and shall plead to all and singular indictments, of whatsoever misdemeanors whereof he stands indicted, and at his own pro |