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1801.

Lord KENYON C. J. faid, that the cafe cited had removed the only doubt which had floated in his mind. And accordingly (the BUTLER other Judges concurring) The Rule was discharged. The Court at the fame time intimating to the fheriff's counfel, that it would be better for him to pay over the money levied in his hands to the crown without further litigation and expence.

against BUTLER.

[346]

Thursday,
Feb. 12th.

Where
plaintiff
withdraws

his record

after entering it for

trial, the de

fendant may

have judgment as in cafe of a nonfuit.

THE

BURTON against HARRISON.

HE common rule for judgment as in case of a nonfuit, for not proceeding to trial pursuant to notice, having been moved for in this cafe,

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Wood fhewed cause against it; infifting that by the practice of the Court it could not now be granted, the plaintiff having taken down the record to trial and entered it, though he had afterwards withdrawn it. And he cited King v. Pippet (a), where the plaintiff having been nonfuited, which nonfuit was afterwards set aside on a point of law, the Court ruled that judgment as in cafe of a nonfuit could not be entered on the plaintiff's neglecting to carry the record down to trial a fecond time, where the defendant might have carried it down by provifo. So in Mewburn v. Langley (b), where the cafe was made a remanet after being entered for trial, the Court refused the like rule for not proceeding to trial the fecond time, because the ftat. 14 Geo. 2. c. 17. was fatisfied by the plaintiff's having once carried the record down to trial.

GROSE J. The words of the statute are, that where the plaintiff" fhall neglect to bring fuch iffue on to be tried" the Court [347] may give the defendant the like judgment as in cafe of a nonfuit. But how can it be faid that the plaintiff brought the iffue on to be tried when the record was withdrawn.

LE BLANC J. The very point has been already exprefsly decided in a cafe of Reed v. Stone, E. 36 Geo. 3. (c), where the record having been taken down to trial and entered, but afterwards withdrawn, it was objected that there could not be judgment as in cafe of a nonfuit: but the Court were of a different opinion upon the words of the ftatute, and granted the rule. The fame point was taken for granted in two other cafes; Raines q. t. v. Spicer (d), and Jordaine and Others v. Sharpe (e).

Wood thereupon confented to give a peremptory undertaking to try; on which terms it was agreed that the rule fhould be difcharged.

Dayrell for the defendant.

(a) 1 Term Rep. 492.

(d) 7 Term Rep. 178.

(b) 3 Term Rep. 13
(e) 2 H. Blac. 280.

(c) Vide 2 Tidd's Proc. 692.

In this term William Macworth Praed Esq. of Lincoln's-Inn was called to the Degree of Serjeant at Law. His motto was " Fœderis aquas dicamus leges."

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CASES

ARGUED AND DETERMINED

IN THE

Court of KING's BENCH,

אן

Eafter Term,

In the Forty-first Year of the Reign of GEORGE III.

IN the courfe of the laft vacation, the Great Seal was, on the refignation of Lord Loughborough, (afterwards created Earl of Roslyn,) immediately delivered to Lord Eldon, Lord Chief Justice of the Court of Common Pleas, who was appointed Lord High Chancellor of Great Britain. His lordfhip however continued to prefide in the Court of Common Pleas till the appointment of his fucceffor, which did not take place till after this term: when

The Right Honorable Sir Richard Pepper Arden Knt. Master of the Rolls, was appointed to fucceed him (having first refigned the Rolls) and was created a Peer, by the title of Baron Alvanley of Alvanley, in the County Palatine of Chefter.

Sir John Mitford Knt. his Majefty's Attorney-General refigned his office before the term, and was elected Speaker of the House of Commons; in whose room

1801.

Edward Law Efq., one of his Majefty's Counfel learned in the [350] Law, was appointed Attorney-General, and was knighted.

Sir William Grant Knt. his Majefty's Solicitcr-General, refigned

at the fame time, and was fucceeded by

The Honorable Spencer Perceval, one of his Majefty's Counsel learned in the Law.

And after the term, Sir Wm. Grant was appointed to fucceed Lord Alvanley as Mafter of the Rolls, and was fworn of his Ma jefty's Moft Honorable Privy Council.

MARTIN against VALLANCE.

Friday
April 24th.

cl. fr. the

THIS HIS was a rule calling on the plaintiff to fhew caufe why the where in Mafter fhould not review his taxation of cofts. The action trefpafs qu, was trefpafs quare claufum fregit: pleas, ift, not guilty, which was defendant found for the plaintiff; 2dly, a juftification of a right of way ge- pleads not nerally (not fetting out the way by metes and bounds) over the guilty, and a juftification of a right of way, and the plaintiff traverses the right of way, and new affigns extra viam; and there is a verdict for the plaintiff, with 15. damages on the new affignment, and for the defendant on the juftification; the plaintiff is entitled to fuil cofts, deducting the defendant's cofts on the issue found for him.

VOL. I.

Bb

locus

VALLANCE.

1801. locus in quo: replication, traversing the right of way, and new affigning extra vian: issues taken on the right of way and on the MARTIN new affignment: verdict for the plaintiff on the new affignment, against with 15. damages, and for the defendant on the right of way. The Master taxed the plaintiff his full costs, deducting the colts of the iffue found for the defendant; and the objection was, that the plaintiff was entitled to no more colts than damages. The queftion was first agitated on the last day of laft term, when the Court ordered it to ftand over till now.

Wigley in the wing caufe, relied on Affer v. Finch (a) as in point; [351] the only difference being, that the plaintiff only replied extra viam, admitting the right of way. But the reafon given why the plaintiff fhould have his full cofts was, because the title to the way was in queftion, namely, of what extent it was. The cafe of Ibbotfon v. Browne (b) is the only authority which appears the other way; and there the plaintiff, who had a verdict on the new affignment, as here, had no more colts than damages. But it does not appear what the juftification was in that cafe, it might only have been the common bar. The rule however adopted in Affer v. Finch has been recognized in fubfequent cafes; in Beale v. Moor, Tr. 15 Geo. 2. (c), and Cockerill v. Allanfon, Tr. 22 Geo. 3. (d); though a distinction was taken in the latter, that where the way pleaded is fet forth by metes and bounds, the new allignment operates like a new action, and then the cafe amounts to no more than a common action of trefpafs with damages under 40s.; and fo the plaintiff is not entitled to any more costs than damages, unless the Judge certified under the ftat. 22 & 23 Car. 2. c. 9. f. 136. that the freehold or title to the land came in queftion. This cafe differs from that of Griffiths v. Davis (e), for there there was judgment by default on the new affignment, and all the pleas on which iffues were taken, which were juftifications for feveral rights of way, were found for the defendant

Lawes contrà. The finding the juftification for the defendant does away the finding of the first general iffue for the plaintiff, and then the finding for the latter on the new affignment is no more than equivalent to a verdict in a new action of trespass, and 352] confequently the plaintiff is entitled to no more colts than damages.

2 Ventr. 180. 195. The cafe of Ibbotson v. Browne before alluded to is in point, that where there is a verdict for the plaintiff on the general iffue, and for the defendant on the special justification, the plaintiff is not entitled to full costs.

LE BLANC J. obferved, that there was no new affignment in either of the cafes in Ventris.

The Court on this day, after fome further argument, faid, that after the practice had been fo long ago fettled by the cafe of Affer v. Finch, which had been followed up by fubfquent deter minations, it was now too late to depart from it.

Rule discharged.

(a) 2 Lev. 234. This and other cafes on the subject are collected in Hullock om Cofis, 25, &c.

(b) E. 11 Geo. 2. 4to. Barnet, 129.
(d) Hullock on Cofts, 86.

(c) 2 Stra. 1168.

(e) 8 Term Rep. 465.

PARKER against ELDING.

1801.

Friday,
April 24th.

diction en

acts that

no action

"debt not "amount

66 Tt cover "able by

ASSUMPSIT for the depafturing of cattle, for work and labour, where a and on the common counts. At the trial before Grofe J. at public ftathe laft affizes at Cambridge, the plaintiff failed as to part of his tute for erecting a demand, but proved himself entitled to receive from the defendant Court of in17. 185. for work and labour, and for agiftment. The defence as terior jurif to fo much was, that the debt was contracted within the Isle of Ely by the defendant refiding there, where the plaintiff alfo lived at that time, (though the latter had removed at the time of the action "for any commenced;) and that by the ftat. 18 Geo. 3. c. 36. (directed to " be deemed a public act) for the more eafy and speedy recovery of "ing to small debts contracted within the Ile of Ely, a court of requests is "40s. and conftituted, and it is enacted, "that no action or fuit for any debt "not amounting to 4cs. and recoverable by virtue of this act in " that act "the faid court of requests, fhall be brought against any perfon re-hall be . brought fiding or inhabiting within the jurifdiction thereof in any of the " "against "king's courts of Westminster, &c. or elsewhere out of the faid court" any perfon "of requests." In reply, it was urged on the part of the plaintiff "refiding at the trial, that, admitting that the abovementioned claufe was " ftrong enough to draw the fubject matter of the action within the "tion,” &c. inferior jurifdiction, because the defendant refided there, although the plaintiff did not; which was contrary to the ufual rule in fuch cafes (a); more efpecially as a fubfequent claufe gave treble cofts neral iffue to against the plaintiff in cafe he was nonfuited or a verdict paffed a party bringing against him, a provifion which feemed to imply that he alfo muft himself refide within the jurifdiction; yet at any rate fuch an objection to within it, the jurisdiction could not be taken on the general iffue, but ought who is fued to have been fpecially pleaded; for otherwife it is a furprife upon rior Courts. the plaintiff, as he might not know that the defendant lived within *[353] the peculiar jurisdiction at the time of the contract made. The learned Judge however thought the objection to the action well founded, and a verdict was taken for the defendant, with liberty to the plaintiff to move to set it afide and enter a verdict for the 11. 185., if the Court fhould be of a different opinion.

"" within the

fuch itatute is a defence

upon the ge

in the fupe.

Wilfon now moved for a rule for that purpose, upon the ground [354] before stated.

Lord KENYON C. J. Some acts of parliament, giving a peculiar jurifdiction, require that it fhall be pleaded, in cafe the parties claiming the privilege fhall be fued elsewhere; and others direct that a fuggeftion fhall be entered on the roll; and in those cafes the methods pointed out by the respective statutes must be pur

(a) In Webb v. Brown, 5 Term Rep. 535. it was holden, that a citizen and freeman of London, not refident therein, having a demand under 40s. for goods fold against another citizen and freeman who is refident, is not bound to fue in the Court of Requests pursuant to the ftatute 14 Geo. 2. c. 10. But upon reference to that statute it will appear that the words of the enacting clause are very different from those in the present case, and that they only apply to cafes where both the parties refide within the inferior jurisdiction. But it is fufficient to entitle a plaintiff to fue in the county court that the cause of action arises and the defendant refides within the county. Web v. Troyte, 2 H. Blac. 29., and Tubb v. Woodward, 6 Term Rep. 175.

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1801. fued. But here is a general law, of which we are bound to take notice, which fays, that no action fhall be brought against any PARKER perfon refiding within the jurifdiction for any debt not amounting against to 40s., and recoverable by virtue of that act. The demand in

ELDING.

[355] Saturday, April 25th.

A verdic against one

d. fendant in

queftion is of that fort. How then can we fay that the plaintiff
fhall recover it against the pofitive direction of the act? This
being directed to be taken as a public act is part of the general
law of the land, of which the plaintiff must be deemed to have
notice, and therefore cannot object to being furprised. He muft
also know in fact with whom he contracted, and on what account.
Per Curiam,
Rule refufed (a).

(a) In Taylor v. Blair, 3 Term Rep. 452. under a fimilar provifion in an act of parliament creating a Court of Requests in Westminster for caufes under 40s., which enaếts that the defendant fued elsewhere may plead, &c. Lord Kenyon intimated an opinion, that even on the general iffue, if the objection were made at the trial, the plaintiff might be non. fuited. In Shipman v. Henbeft, 4 Term Rep. 109. it was not neceffary to determine this point, because the Court there held that the jurifdiction of the fuperior Courts was not taken away.

TR

REED against JACKSON.

RESPASS for breaking and entering the plaintiff's clofe called the Marsh, fituate at the parifh of Holme Cultram in the trefpf- upon county of Cumberland. Pleas, the general iffue, and feveral juftian fue of a fications; 1. for a common public footway in, through, over, and juftification of a public along the locus in quo; 2. for a public carriage-way; 3. for an right of way, Occupation-way to and from the defendant's house over the locus negativing in quo to a certain bridge; 4. for a customary-way for all the fuch right, is evidence inhabitants of a certain fide of the parish to and from their rein trefpafs fpective dwelling-houses over the locus in quo to the fame bridge, for breaking and from thence to the parish church. The replication traversed and entering these feveral rights of way, and new affigned other trefpaffes extra clofe against vias. The rejoinder took iffue on the feveral traverfes, and another des pleaded the fame juftifications to the trefpaffes newly affigned, to juftified unwhich the plaintiff protesting, &c. replied de injuria, &c.; on all der the fame which iffues were taken.

the fame

fendant who

right; and

the latter

that fuch

entered upon

mistake of

the officer,

At the trial before Graham B. at the laft Summer aflizes at

cannot fhew Carlife, the plaintiff's counfel, in order to negative the existence of a public footway, tendered in evidence a record of another verdict was action brought by the fame plaintiff against one Brown for a trefthat particu pafs in the fame clofe defcribed in the prefent declaration, to lar plea by which amongst others there was a fimilar plea of justification for a common footway over the locus in quo, and another juftification there having for a prefcriptive easement to go upon the land to wash and fhear been no evi- fheep at fhearing time in right of a certain meffuage, &c.; which dence given juftifications were traverfed, and the iffues thereon found for the in refpect of plaintiff, negativing the right of way, and the eafement laft menthat iffue on [356] tioned. It was objected by the defendant's counsel, 1ft, that the the former record was no evidence between these parties, being res inter alios rec rd being acta; which objection being over-ruled, though the evidence was holden not to be conclufive, the defendant then offered to fhew, of fuch a finding, though not as to the truth of it between other parties.

on either fide

trial; the

conclufive

as to the fact

that

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