1853. ANONYMOUS. viously, had been struck off the roll for malpractice, "and was now, upon humble petition and motion, readmitted; the Court declaring, that the striking off the roll was not to be understood as a perpetual disability, but was sometimes only meant as a punishment, and might be considered in the light of a suspension only, if the Court saw cause." Mr. Sidney Smith, for a solicitor of Birmingham, opposed the application. The MASTER of the ROLLS reserved judgment. July 12. The MASTER of the ROLLS. I have considered this case, and I have determined to restore this gentleman to the roll. Though he was very properly struck off, yet considering the great length of time that has elapsed, and the great suffering that he has endured by reason of the order, considering the testimonials to his good behaviour and conduct, and that the application is supported by so many solicitors of Birmingham, who have certified to that effect, and the absence of any opposition on behalf of that most useful and intelligent body in London, The Law Institution, I have come to the conclusion, that I shall best act by restoring this gentleman to the roll of solicitors. I sincerely hope, that the severe lesson he has received will have the effect of making him act, for the future, with perfect straightforwardness and strict integrity in all his dealings; I therefore restore him to the roll, and an order may be made accordingly. 1853 BARTLETT v. HARTON. November 4. dismissed for sequence of THE HE bill was filed on the 25th of August, 1845, A suit stood against three Defendants, and on the 14th of July, want of prose1853, a motion being made to dismiss for want of pro- cution, in consecution, it was ordered, that the Plaintiffs should, the Plaintiff within one week, set down their cause for hearing, and serve a subpœna to hear judgment; or in default thereof, that the bill should stand dismissed with costs, as against the Defendants, George Harton and William Henry Harton. not serving a subpæna to hear judg ment within the time li mited by an order to speed. The Plaintiff moved to stay the taxation of the costs of suit. Held, that the motion ought to have been to restore the bill; and that although On the 19th July, 1853, the Plaintiffs set down the cause for hearing, and issued a subpæna to hear judgment, returnable on the 2nd November, but did not serve it on the Defendants till the 9th September. On the 10th September, the Defendants' solicitor informed the Plaintiffs' solicitor that he intended to treat the suit as dismissed, and would insist on the benefit of the order of the 14th July; and, on the 29th October, took out warrants to tax the costs of the suit. The Plaintiffs now moved to stay the taxation, except as regarded the costs of the motion made by the Defendants on the 14th July, 1853. The solicitor of the Plaintiffs, by his affidavit as to encou would feel inclined to grant indulgence, in the case of a bona fide mistake, yet that it was not to be extended to such an extent rage parties in negligently with their suits. stated, that no copy of the order of the 14th July, proceeding which was drawn up, had ever been served on him; and his managing clerk swore, that he was not aware it was necessary to serve the subpanas within the week limited by the order, and that the omission to do so was by mistake. Ignorance of the practice sufficient held to be no ground for restoring the suit, nor the Mr. Roupell and Mr. Drewry, for the motion. The fact that the long vacation order had intervened. 1853. BARTLETT v. HARTON. order of the 14th July has been substantially complied with, and the omission to serve the subpana within the week arose entirely from ignorance as to the practice, on the part of the solicitor's clerk. The affidavits show that it was owing to a mistake, and not with an intention to delay the proceedings, that the subpoena was not served. The usual course of practice is to serve the subpœnas in not less than ten days before the return or day of hearing, and in this case, they were served a considerable time before. The omission to serve them within the week, as prescribed by the order, being entirely a slip from inadvertence, and as the Plaintiffs have not been. damnified by the delay, the Court will extend some indulgence, and stop the taxation. Mr. R. Palmer and Mr. Ellis, for the Defendant William Henry Harton. The motion is equivalent to asking the Court to restore the suit which is now gone, an order which the Court very sparingly makes. No case has been made for any such indulgence as is asked. The bill was filed so long ago as 1845; there has been gross negligence in the prosecution of the suit, and the express object of the order, in limiting the time to a week, was to compel the Plaintiff to bring his cause to a hearing. This order was made 1845, art. 4, and the under the 114th Order of May, the (a) 5 De G. & Sm. 247. (b) 2 Meriv. 61. the principle upon which it acts in restoring suits. In Matthews v. Chichester (a), a slip in not setting down a demurrer in proper time was not excused. They also cited Cooke v. Davies (b). Mr. Cole, for the Defendant George Harton. Mr. Roupell, in reply. The MASTER of the ROLLS. When this case was opened, I was struck with the singularity of the form of the motion, which asks, that the Defendant may be absolutely restrained from taxing the costs of the suit under the order of July last, instead of only seeking to stay the taxation until he could move the Court to restore the suit, which is gone by that order. But although the Plaintiffs knew, as early as the 10th of September, that the Defendants insisted on treating the suit as dismissed, they took no steps to restore it till November. If they had now come here upon a motion with that object, and had made out a case for indulgence, on the ground of a bona fide mistake, I should have been unwilling to destroy the suit by standing on the strict practice; but, at the same time, indulgence is not to be extended to such an extent, as to form a precedent which would encourage parties to proceed with a suit as negligently as they might think fit. The Plaintiffs say, that no inconvenience has resulted or can result from their slip, but it is a great and serious inconvenience to a Defendant to have a suit hanging (a) 11 Jur. 49, reversing 5 Hare, 207. VOL. XVII. I I (b) Turn. & Russ. 310. over 1853. BARTLETT v. HARTON. 1853. BARTLETT V. HARTON. over his head for a great length of time, in consequence of the delay of the Plaintiff in its prosecution. If the motion had been properly framed, I might have been inclined to restrain the taxation of the costs of the suit until the next seal, to enable the Plaintiffs to take such course as they might be advised. But the Plaintiffs make no case for indulgence, although they must have expected that the Defendants would oppose any application to take from them the benefit of the order. They make no case which, on a proper motion for that object, would have induced me to order the suit to be restored, and I must therefore dismiss the motion with costs; indeed, the Plaintiffs must have paid all the costs, if the motion had been granted. November 5. Three-fourths of a legacy of 4001. belonging to a wife (after payment of the cost) settled as against a particular assignee of the fund, the husband having nine years before become bank rupt; and semble, that the whole would have been settled but for negociations between the parties for several years, which had in WALKER v. DRURY. TESTATOR devised a house, &c. to his widow for life, with remainder to his son Robert, in fee, charged with the payment of 400l. to his daughter Ann. The testator died in 1818, and, in 1825, the daughter married Joseph Walker, on which occasion a settlement was made of some furniture of small value, the property of Joseph Walker, but no other settlement was ever made. In 1838, Joseph Walker and Ann his wife, in consideration of 4997. (stated to be then due and owing from Joseph Walker to Wm. Walker), assigned the legacy of 400l. absolutely to Wm. Walker, and he, in volved the as- 1838, mortgaged it to Thos. Windley. signee in con siderable ex penses. In |