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In the Thirty-second Year of the Reign of George III.

a common appearance,

Geo. 2. c. 30.

VINCENT against BRADY.

Friday,

Nov. 18th. THE Defendant in this case having become a bankrupt, and when

obtained his certificate, was arrested on a promissory note, bankrupt is given by him before his bankruptcy. In consequence of arrested for this, a rule was granted to shew cause why he should not be before his

bankruptcy, discharged out of custody on entering a common appearance, the Court in pursuance of stat. 5 Geo. 2. c. 30. s. 7. which directs, that will not dis

charge him “ In case any such bankrupt shall afterwards be arrested, pro- on entering “ secuted, or impleaded, for any debt due before such time as “ he, she, or they became bankrupt, such bankrupt shall be on stat. 5 “ discharged upon common bail”, &c.

s. 7. (a) if it Affidavits were read on shewing cause, stating that the De- appear that

his certifitendant's certificate was obtained by palpable fraud, many fictitious creditors having proved debts under the commission, and tained by

fraud. others having received money for signing the certificate. One of the affidavits was of the Defendant himself, made by him, last term, in the case of Sumner v. Brady (6), and setting forth the fraudulent means by which the certificate was obtained.

Marshall, Serjt., contended that the benefit of 5 Geo. 2. c. 30. $. 7. was taken away, if the certificate were obtained unfairly,

(a) (Similar provision in the new Act, 6 Geo. 4. c. 16. s. 126.]

(6) Antè, Vol. I. 647. VOL. 11.

cate was ob

B

or

1791.

VINCENT against BRADY,

or by fraud, and by 24 Geo. 2. c. 57. s. 9. such certificate was declared to be void. And he cited Martin v. O'Hara, Cowp. 823. and Sorley v. Jones, 2 Black. 725.

Adair, Serjt., argued in support of the rule, that the Defendant was intitled to be discharged on a common appearance, by the terms of the stat. 3 Geo. 2. c. 30. s. 7. that he was not obliged to remain in prison till the time of the trial, when, and not before, it was to be proved whether or not the certificate were fraudulently obtained.

But the Court were clearly of opinion that the Defendant was not intitled to his discharge, as it plainly appeared from his own affidavit, that the certificate was obtained by fraud.

Rule discharged with costs.

and the verdict is

Monday,

Redridge against PALMER. Nov. 21st. action of an IN this action of trespass, the declaration, which contained trespass, the

only one count, stated that the Defendant with force and Defendant pleads a spe

arms broke and entered a certain close of the plaintiff, called cial plea of the Yard, situate, &c. and then and there broke down, prosto the whole trated, &c. two wooden fences, &c. and the materials thereof, declaration, to wit, 500 pales, &c. took and carried away, &c. and also then

and there pulled down, spoiled and destroyed a certain hogagainst him, the Plaintiff stye, &c. and the materials thereof, to wit, 50 cart-loads of is intitled to wood, &c. took and carried away, &c. and then and there ejectfull costs, although the ed, expelled, and put out the Plaintiff from the possession, &c. damages are of his said close, &c.

The Defendant pleaded, First, not guilty ; Secondly, a plea judge, at the trial,

of licence to all the trespasses mentioned in the declaration; on

both of which pleas issues were joined. certify (a).

These issues came on to be tried before Mr. Baron Hotham, at the last Lent assizes at Kingston, for the county of Surrey, when, on each of them, a verdict was found for the Plaintiff, with one shilling damages, and 40s. costs; but the judge did not certify. The prothonotary having allowed full costs to the Plaintiff, a rule was granted to shew cause why the taxation should not be reviewed, on the ground that as the damages

less than
40s. and the

does not

(a) [Accord. Peddle v. Kiddle, 7 T. R. 659. Comer v. Baker, post. 341. See also Stead v. Gamble, 7 East, 326.]

were

1791.

REDRIDGE

against PALMER.

[3]

were under 40s. and there was no certificate, the Plaintiff was intitled to no more costs than damages.

Against this rule, Kerby, Serjt., shewed cause; arguing, 1st, that where there was an asportavit of personal chattels, though in the smallest degree, joined with the trespass, and a verdict found for the Plaintiff, he was intitled to full costs, (the case being out of the statute 22 & 23 Car. 2. c. 9.) by the following authorities; in some of them in express terms, in others, by necessary inference. 2 Show. 253. Sir Thomas Raym. 487. Sir Thomas Jones, 232. S. C. 1 Salk. 208. Carth. 225. 2 Ventr. 48. 2 Bac. Abr. 513. 2 Com. Dig. tit. Costs, 446. 2dly, It was the constant practice, never departed from by the officers of the court(a), to tax full costs to the Plaintiff, wherever a special plea of justification was pleaded, and found against the Defendant. And this was supported by 2 Ventr. 295. 2 Ld. Raym. 1444. 2 Com. Dig. 547. Barnes, 129 (6) and also by Page v. Creed, 3 Term Rep. B. R. 391. which was trespass for assault and battery; the Defendant justified the assault only, and the Plaintiff obtained damages under 40s. but the judge did not certify, and the Plaintiff had no more costs than damages:-but the Court held, that if the plea of justification had extended to the battery as well as the assault, no certificate would have been necessary, the justification being tantamount to it. 3dly, A certificate was not necessary in this case, since it appeared on the record by the plea of licence, that the trespass was wilful(c)

Bond, Serjt. contrà. The statute of Gloucester having given costs where damages were recoverable at common law, wherever the smallest damages were recovered the Plaintiff obtained his full costs. This was productive of so much inconvenience by encouraging vexatious suits, that it was the object of the Legislature, in subsequent statutes, to confine the operation of the statute of Gloucester. The Court therefore will not be anxious to extend the construction of the stat. 22 & 23 Car. 2. to the present case. As to the cases cited on the other side, to shew that an asportavit of personal chattels carries costs, the modern

(a) This was stated in Court by the prothonotaries, to be the uniform course in their office.

(6) Last Edit. 8vo.

(c) But whatever might have been collected from the whole record, prior to the stat. 8 & 9 W. 3. c. 11,

qu. Whether the only proper mode
by which it can appear, since the
passing that statute, that the trespass
was wilful and malicious, be not the
certificate of the judge, according to
sect. 4. of that statute ?

B 2

authorities

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1791. authorities of Clegg v. Molyneux (a) and Mears v. Greenaway (6) REDRINGE sufficiently prove, that where the asportavit is coupled with the against rest of the count, in the same manner as in the present

declaration, it is not considered as a distinct injury, but part of one

trespass, and therefore does not intiile the Plaintiff to full costs. [ 4 ] With respect to the argument, that wherever a special plea is

found against the Defendant, the Plaintiff has full costs, it is a proposition which is by no means warranted by the statute ; besides, if in the pleading that is involved which might have brought the title to the freehold in question, there must be a certificate from the judge, to give the plaintiff a right to costs. Here the title to the freehold might have come in question, but there is no certificate.

Lord LOUGHBOROUGH on this day declared, that, after due consideration, the Court were of opinion that whatever question might be made on the true construction of the statute, as to the asportavit of personal chattels, yet as the practice had been uniform for a great length of time, above 100 years, it would be highly inconvenient to disturb it. The rule therefore, which had so long prevailed in both this court and the King's Bench, namely, that where there was a special plea of justification found against the Defendant, the Plaintiff was intitled to his full costs, ought not to be overturned.

Rule discharged.

(a) Dougl. 779. 8vo. Edit.

(6) Antè, Vol. I. 291.

common

Wednesday,

WHITEMAN against King.
Nov. 23d.
A. being

RE

EPLEVIN for taking, on the 20th of November 1790, at possessed of a quantity of

Holt, in the county of Norfolk, in a certain place called land in a Holt-Field, one gelding and three mares of the plaintiff, &c. &c. field and

Cognizance, that the locus in quo was an open and common having a

field, that one Anne Peters was seised in fee of 10 acres of land, right of

being in and parcel of the said field; that on the 25th of over the whole field, and B. having also a right of common over the whole field, they enter into an agreement, for their mutual advantage and convenience, not to exercise their respective rights for a certain term of years, and each party covenants to that effect. If during the terin the cattle of B. come upon the land of A. he may distrain them damage feasant; And may in his replication in answer to a plea pleaded by B. of his right of common, in bar of the cognizance of A.), set forth the special circumstances of the agreement and covenants (and leave the construction of them to the Court).

March

common

March 1790, she demised the same to the Defendant King, 1791. for one year, and so from year to year, &c. &c., and acknow

WHITEMAX ledged the taking the cattle, damage feasant, &c.

against

King. Plea in bar, admitting that the said place called Holt-Field, in which, &c. was an open and common field, and that the cattle were taken in the said parcel of the said field demised to the Defendant; that the said parcel of the said field, in which, &c. at the said time when, &c. lay, and from time whereof, &c. bath lain open to other parts of the said field, &c. and not inclosed or divided therefrom by any hedge or fence whatsoever; that one Robert Jennis was seised in fee of a messuage and 60 [ 5 ] acres of land in the parish of Holt, &c. that he and all those whose estate he bath (prescribing in a que estate) bave had and used, &c. common of pasture for all his and their commonable mares and geldings, levant and couchant, fc. in and over the locus in quo (specifying the times of the year, and the mode of enjoying the common, with reference to the sowing the field with corn) as belonging and appertaining to the said messuage and land with the appurtenances : That the said Robert Jennis on the 15th of November 1782, demised the said messuage, &c. to the Plaintiff for 14 years; that the Plaintiff entered, &c. and (according to the specified terms of the prescription) put the cattle in the declaration mentioned, being his commonable gelding and mares levant and couchant, 8c. into and upon the locus in quo, 8c. and that the said cattle were and continued, &c. until the Defendant of his own wrong, &c.

The second and third pleas varied in a few circumstances of the prescription, and stated that Robert Jennis was seised of 50 acres of land, &c.

The fourth stated, “ That in Holt-Field the lands of divers persons from time immemorial had lain, and still lay dispersed and intermixed in small parcels, and not inclosed or divided, the one from the other, by any fences or inclosures whatsoever; that Robert Jennis was seised in fee of 50 other acres of land; that as well as the last mentioned 50 acres of land, as also divers and many other parcels of land, of divers and many other persons, at the said time when, &c. did lie, and from time immemorial had lain dispersed in the said field, and were not inclosed or divided, the one from the other, by any fences or inclosures whatsoever; and that from time immemorial the mares and geldings of the respective owners of the said last

mentioned

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