of proof; and, consequently, that he was entitled to resort to secondary evidence. We are, therefore, of opinion that the rule for a new trial must be made absolute. (a) The conclusion to which the court came rendered it unnecessary to determine whether Rule absolute. (a) or not the attorney was com- 1850. NEWTON V. CHAPLIN, FORD V. GRAHAM. Nov. 5. THE plaintiff, being a prisoner in the Queen's prison, It is entirely applied to Maule, J., at chambers, for a habeas in the dis corpus to enable him to appear to shew cause against a summons. The learned judge refused to grant it; and, a second summons having been taken out, an order was made thereon, which was afterwards made a rule court. of cretion of a judge, to grant or refuse a habeas corpus, to enable a prisoner to attend to shew cause summons. Hawkins now moved for a rule to shew cause why against a the order and rule of court should not be set aside, on the ground of the improper refusal of the habeas. MAULE, J. I do not see why a prisoner should have a habeas corpus whenever he pleases, in order that he may come out and conduct his business, whether that business consists of a proceeding in court or at chambers, or of anything else. JERVIS, C. J. The matter is clearly in the discretion of the judge; and I think the refusal was justified, no special ground being laid for the indulgence. The rest of the court concurring, Semble, such an 1850. Nov. 11. In assumpsit THIS on the fol lowing me "A. agrees A., at the rent HOOPER v. WOOLMER. HIS was an action of assumpsit. The first count of the declaration stated that a certain agreement morandum, was made by and between the plaintiff and the defendant, in the words following, that is to say, "18th of August, 1847. Memorandum of the terms on which Mr. S. Hooper agrees to let, and Mr. S. F. Woolmer to take, the ground-floor, consisting of two rooms, in the messuage of the said S. Hooper, at the rent of 401. per annum, payable quarterly: And the said S. F. Woolmer agrees to pay the proportion of rates, taxes, and assessments, whether parliamentary, parochial, or otherwise (except landlord's property-tax), which now are, or hereafter may be, assessed on the said premises so taken by the said S. F. Woolmer." Mutual promises. The count then proceeded to aver, that, whilst the defendant annum, pay- B. agrees now are, after may be, assessed on the premises so taken by B.," the declaration alleged, that, whilst B. was tenant, divers rates, &c., were assessed on the messuage; that the said rates, &c., became due on a certain day, and were paid by A.; and that the proper and reasonable proportion of the said last-mentioned rates, &c., to be paid by B. in respect of the demised premises according to the agreement, was a certain proportion thereof, to wit, one third part thereof, amounting, to wit, to 50%.," of all which B., before the commencement of the suit, had notice, and was then requested by A. to pay the same, &c. : 66 Held, that a plea traversing the request to pay, was bad, as attempting to raise an immaterial issue. Held also, that a special traverse, that "the proper and reasonable proportion of the said rates, &c., to be paid by B. in respect of the said demised premises, was a certain proportion, amounting to 127. 10s., and no more, absque hoc, that the said proper and reasonable proportion of the said rates, &c., was 501, in manner and form, &c.," was bad, for the same reason. Where the plaintiff has delivered all the demurrer-books, he cannot call upon the defendant to pay for those delivered to the junior puisne judges, as a condition of his being heard, unless he has himself strictly complied with the rule of Hilary term, 4 W. 4., by delivering the books for the defendant on the day following that on which the defendant should have delivered them. was tenant of the said premises, divers rates, taxes, and assessments, other than landlord's property-tax, amounting to a large sum, to wit, 250l., were assessed on the said messuage in the agreement mentioned, whereof the said demised premises were and are parcel as aforesaid; that the said rates, taxes, and assessments became on a certain day, to wit, the 2nd of July, 1850, due and payable, and were then respectively paid by the plaintiff; and that the proper and reasonable proportion of the said last-mentioned rates, taxes, and assessments, to be paid by the defendant in respect of the said demised premises, according to the form and effect of the said agreement, was a certain proportion thereof, to wit, one third part thereof, amounting, to wit, to the sum of 50%,- of all which the defendant, before the commencement of the suit, had notice, and was then requested by the plaintiff to pay the last-mentioned sum of money, &c. 1850. HOOPER V. WOOLMER. The defendant pleaded,-first, as to 127. 10s., parcel First plea. of the 507., tender. Secondly, that the defendant was not requested to Second plea. pay, in manner and form as in the declaration alleged. Fourthly, as to the residue of the 50%., that the Fourth plea. proper and reasonable proportion of the said rates, taxes, and assessments to be paid by the defendant, in respect of the said demised premises, was a certain proportion, amounting to the sum of 127. 10s. and no more, absque hoc, that the said proper and reasonable proportion of the said rates, taxes, and assessments, was a certain proportion or part thereof, to wit, the sum of 501, in manner and form as in the declaration alleged. · The plaintiff demurred to the second plea, assigning Demurrer. for cause that it attempted to raise an immaterial issue; and to the fourth, on the ground of uncertainty and multifariousness, it being uncertain whether the plea meant to traverse the allegation that the proportion of one third was the proper one, or that the rates amounted 1850. HOOPER V. WOOLMER. to 50l., or to put in issue both the proportion and the amount. Couch, for the plaintiff, objected to the defendant's being heard until he had paid for the demurrer-books which had, upon his default, been delivered by the plaintiff to the two junior judges, pursuant to the rule of Hilary term, 4 W. 4. r. 7. (a) It appeared, that the defendant's demurrer-books ought to have been delivered on Tuesday, the 5th instant, and that, he having failed to deliver them, the plaintiff's attorney delivered them for him on Saturday, the 9th. Needham, contrà, submitted, upon the authority of Fisher v. Snow (b), that the plaintiff had not complied strictly with the rule, and therefore was not entitled to costs. In that case, the defendant's demurrer-books ought to have been delivered on Thursday, and the plaintiff did not deliver them until Saturday: and Littledale, J., said: "I think, under the circumstances, the plaintiff is not entitled to the costs of these copies before the plaintiff is heard. The rule says, that, in default thereof by either party, the other may, on the (a) Which provides, that, "four clear days before the day appointed for argument, the plaintiff shall deliver copies of the demurrer-book, special case, or special verdict, to the lord chief justice of the King's Bench or Common Pleas, or lord chief baron, as the case may be, and the senior judge of the court in which the action is brought; and the defendant shall deliver copies to the other two judges of the court next in seniority; and, in default thereof by either party, the other party may, on the day day following, deliver such copies. Now, although a delivery on the day next but one may be sufficient to enable the plaintiff to proceed with the argument, yet, as the plaintiff seeks to make the defendant pay costs, he ought to have delivered the extra copies on the day following that on which the delivery ought to have been made by the opposite party." JERVIS, C. J. The plaintiff certainly has not brought himself strictly within the rule. 1850. HOOPER V. WOOLMER. Couch, in support of the demurrer. The second plea Second plea. is bad for seeking to put in issue an immaterial averment in the declaration, viz. the request. The declaration alleges the fact of the assessment, and of the payment of the rates and taxes by the plaintiff, and that the defendant had notice thereof. There is nothing in the agreement requiring any special request to the defendant to pay his proportion: his duty and liability to pay arose immediately upon the payment by the plaintiff. In Wallis v. Scott (a), the plaintiff declared that the defendant, in consideration the plaintiff would make him a set of sails worth 457., promised to pay so much for them upon request; and averred that he made the said sails, and that the defendant, although often requested, refused to pay. Upon demurrer, it was contended, first, that this being a special contract, the plaintiff must shew a performance of all on his part, which he had not done; for, he had not averred that he made the sails worth 45l., and, if they were not worth it, the defendant was not chargeable. Secondly, the action being founded upon the breach of contract, there ought to be a special request laid; for, this differs from the cases where there is a precedent debt or duty whercon to ground the (a) 1 Stra. 88. |