ground that the general issue being pleaded to the whole declaration, and that plea not having been withdrawn, the plaintiff was forced to go to trial in order to obtain damages upon the judgment by default on the new assignment, and was therefore entitled to the general costs in the cause; to which point he cited House v. The Thames Commissioners (3 Brod. & B. 117), Longden v. Bourne (1 B. & C. 278), and Vickers v. Gallimore (5 Bingh. 196); and he observed, that a new assignment did not introduce new trespasses, but only described, with greater particularity, those mentioned in the declaration, and was an explanation of that, shewing that the defendants in their plea had mistaken the plaintiff's meaning. The introduction, by a new assignment, of trespasses different from those in the declaration, would be a departure. [942] Then the trespasses in the declaration and in the new assignment being the same, a general denial of all the trespasses in the declaration was inconsistent with a judgment by default on the new assignment. That judgment consequently could never be available as long as the general issue remained on the record. The plaintiff in this case was, therefore, obliged to go to trial to prove so much of the declaration as comprehended the trespasses newly assigned. In Cross v. Johnson (9 B. & C. 613), there was a retraxit as to so much of the general issue as related to the trespasses newly assigned. Blackburne now shewed cause. The defendants having succeeded on the justification, which embraced the whole cause of action, are entitled to the general costs of the cause; for it is a rule, that where one plea goes to the whole cause of action, and is found in favour of the defendant, he is entitled to general costs. Vivian v. Blake (11 East, 263), Benett v. Coster (1 Brod. & Bingh. 465), Othir v. Calvert (1 Bingh. 275), Edwards v. Bethel (1 B. & A. 254). The suffering of judgment by default as to the trespasses newly assigned, and thereby admitting that as to them the defendants were wrong, operates as a virtual withdrawing of the general issue, inasmuch as the trespasses newly assigned are included in the declaration. It cannot be necessary to make a special entry on the record that it has been so withdrawn. In Booth v. Ibbottson (1 Young & Jervis, 354), the justification was pleaded as to part only of the trespasses, and the issues as to these were found for the defendant; but the plaintiff, having established her right on the whole record, [943] was held to be entitled to the general costs; there, however, Hullock B. observed, "If the special plea had covered all the trespasses, the defendants would have been entitled to their full costs." Here the special plea does apply to all the trespasses. Parke J. The point raised in this case I consider fully settled by the three cases of House v. The Thames Commissioners (3 Brod. & Bingh. 117), Longden v. Bourne (1 B. & C. 278), and Vickers v. Gallimore (5 Bingh. 196). Since those decisions, the usual practice has been, in cases like the present, to withdraw the general issue. The rule having been established by those decisions, I think we must abide by it. Taunton J. The ancient course of practice seems to me to have been more reasonable and intelligible than that now in use. Before the case of House v. The Thames Commissioners (3 Brod. & Bingh. 117), it was considered that suffering judgment by default to the trespasses newly assigned was a virtual withdrawing of the general issue, because the defendant, by suffering judgment by default, confessed that he was guilty of the trespasses newly assigned, and those were the trespasses mentioned in the declaration. But it is now said, that, by the defendant's allowing the general issue to remain on the record, the plaintiff is compelled to prove the trespasses in the declaration. That seems to me contrary to reason; but it having been so decided in three cases, and the course of practice having been established accordingly, (as stated in the last edit. of Saunders, vol. i. 300 a, note (ƒ), ) I think we are bound to hold that the plaintiff is entitled to the general costs. [944] Patteson J. I feel myself bound by the decisions which have taken place upon the subject, though I cannot say I think they are founded in good sense. Rule absolute. An THE KING against THE JUSTICES OF NORFOLK. Monday, Nov. 21st, 1831. appeal was entered and respited, entitled, "A. B. Appellant, and the Churchwardens and Overseers of B. Respondents;" and was stated to be against the allowance of the overseers' accounts. Notice of the appeal, addressed to the overseers only, was afterwards served upon them, but no notice was given to the churchwardens, who, in fact, had not received or disbursed any money, or kept any account: Held, that the difference between the entry of appeal and the notice was immaterial; and that the churchwardens, having had no account to keep, were not entitled to notice as joint officers with the overseers. [S. C. 1 L. J. M. C. 12.] At the Quarter Sessions for Norfolk in April 1831, an appeal was entered in the following form: William Rodgers and Appellant, The Churchwardens and Overseers Accounts and disbursements of The appeal was respited till the following sessions, before which the appellant caused a notice of the said appeal to be served on the overseers for the year ending March 1831, addressed to "J. A. and T. S., now or lately overseers," &c. but not to the churchwardens, and no notice was given to them. The sessions refused to hear the appeal, because the notice varied from the entry of appeal, and because the churchwardens had had no notice. A rule was afterwards obtained, calling upon the justices to shew cause why a mandamus should not issue, directing them to enter continuances and hear the appeal. The affidavits in support of the rule stated, that J. A. and T. S. were the overseers for the above-mentioned year, and were the only parish officers who received and disbursed money during that period; and that the accounts in question were passed by them at Petty Sessions, and were entitled in their names only, as overseers, no mention being made of the churchwardens. [945] Gurney and B. Andrews now shewed cause. First, the entry of appeal in this case was against one set of parties, and notice for the hearing was given to another. The sessions were right in dismissing a respited appeal brought on under such circumstances. Secondly, the churchwardens cught, at all events, to have had notice, either actual or virtual. By the Act 17 G. 2, c. 38, s. 1, the account of monies raised, &c. for the poor is to be annually made by the church wardens and overseers; and sect. 4, the clause upon which appeals of this nature are founded, gives the appeal to persons having "any material objection to such account as aforesaid." And by 41 G. 3, c. 23, s. 4, all notices of appeal against the account of the churchwardens and overseers must be delivered to, or left at the places of abode of the churchwardens and overseers, or any two of them. They form but one officer; payment to one is payment to all, and payment by one is a discharge of all; Rex v. Bartlett (1 Bott, pl. 325, 6th edit.), Malkin v. Vickerstaff (3 B. & A. 89). [Patteson J. It does not follow that each is personally liable on every part of the account.] The notice of appeal ought to be addressed to all, for without that they cannot appear in Court as parties to the appeal, and may be burdened by the result, without the opportunity of defending themselves. They may never even know that the appeal is instituted. It is true, the accounts passed in this case were in the name of the overseers only; but it does not follow that the churchwardens might not legally have been called upon to join in them; and they do not become the less liable by having omitted to do so. [Parke J. Considering them as joint officers with the overseers, I still do [946] not agree that the churchwardens would be responsible for errors in the overseers' accounts.] Palmer contrà. Rex v. The Justices of Gloucestershire (1 B. & Ad. 1), shews that the account of one parish officer is not be considered, for every purpose, as the account of all; for one overseer may appeal against the other's account. The statute 43 Eliz. c. 2, s. 2, orders the churchwardens and overseers to make a true account of all sums received by them, on pain of commitment; but it only directs (sect. 4) that every one so refusing to account shall be committed. The form of entry of an appeal is not to be considered with the same strictness as an indictment or conviction: it is enough if it makes known the subject-matter of the appeal. It was not necessary to prefix the names of the respondents at all, as was done in this case. (Here he was stopped by the Court.) Parke J.(b). I am of opinion that this rule must be made absolute. (b) Lord Tenterden C.J. had gone to attend the Privy Council. With regard to the first objection, it is true the appeal is formally entered as an appeal against the accounts of the churchwardens and overseers of Brancaster; but it is evident to any one looking at the subject-matter of the appeal, that it was, substantially, an appeal against the accounts of the overseers; and to them notice was given. As to the second objection, it is clear, from Rex v. The Justices of Gloucestershire (1 B. & Ad. 1), that the accounts of joint parish officers may be treated as several, where the money transactions have been separate; and in the present case the churchwardens [947] had, in fact, nothing to do with the account; the overseers received all, and paid all. It would have been useless to serve a notice upon the churchwardens. There was, therefore, no valid objection to the mode in which the notice was addressed and served. Taunton J. By the statute 41 G. 3, c. 23, s. 4, it is sufficient if the notice be served on the churchwardens and overseers, or any two of them. If it had been deemed necessary that all should personally be informed of the appeal, the Legislature would not have enacted that service on two only should be sufficient. The notice being addressed to all, would not make the appeal more known to those who were not served. It was held in Rex v. The Justices of Gloucestershire (1 B. & Ad. 1), that one overseer may appeal against the other's accounts, where they have been separately kept of course, therefore, any other parishioner may appeal against the accounts of one or more of the overseers and churchwardens, if he or they are the only persons who have had an account to keep, and against whose account, consequently, any appeal could be instituted. Patteson J. The statute 41 G. 3, c. 23, requires only that notice be served on two of the churchwardens and overseers; and, therefore, it is sufficient that the notice be addressed to two. And as that which was served in the present case contained the subject-matter of the appeal previously entered, I think it was sufficient. Rule absolute. [948] DOE DEM. GREAVES against RABY. Thursday, Nov. 24th, 1831. At the trial of an ejectment, where there is no doubt as to the identity of the premises sought to be recovered with those for which the tenant defends, the lessor of the plaintiff is not required to produce the consent rule. Ejectment tried before Littledale J., at the Summer Assizes for Nottingham 1831. The defendant appeared at the trial by counsel, who cross-examined the plaintiff's witnesses. At the close of the plaintiff's case, the defendant's counsel required proof of lease, entry, and ouster. It was answered, that he was bound to confess them; but the defendant's counsel contended, that the plaintiff ought to produce the rule of Court, whereby the defendant had so bound himself, and cited Doe dem. Lamble v. Lamble (1 M. & M. 237). The Judge, on the authority of that case, thought that the plaintiff was bound to produce the rule; which not being able to do, he was nonsuited, with leave to move to enter a verdict for the plaintiff, or for judgment against the casual ejector, in consequence of the defendant's not appearing to confess lease, entry and ouster. Whitehurst, on a former day in this term, obtained leave accordingly. Sir James Scarlett and White now shewed cause. It was the duty of the plaintiff to produce this rule as part of his case, if he did not otherwise prove the facts contained in it, Tidd's Practice, Supp. 189, Doe dem. Lamble v. Lamble (1 M. & M. 237). Without the production of the rule, the plaintiff does not identify the premises in the action with those mentioned in the consent rule. [Lord Tenterden C.J. If the consentrule was required, it should have been called for at once, and not after all the plaintiff's evidence had been gone through.] [949] Adams Serjt. and Whitehurst in support of the rule. It was not for the plaintiff to produce the consent rule, and no purpose could be answered by calling for its production. If it is made to appear that there was no such rule, then the tenant cannot be let in to defend, and judgment must go against Richard Roe, the casual ejector. But it is part of the practice of all the Courts, that no one can defend an ejectment unless he has entered into such a rule; and, therefore, the Judge at Nisi Prius must take it of his own knowledge, that such a rule has been entered into by the defendant. This is not the case of a tenant in common, where it may be necessary, under some circumstances, to produce it, Doe dem. White v. Cuff (1 Campb. 173). The Lord Tenterden C.J. The rule must be absolute for judgment against the casual Parke J. The defendant ought to have complied with his undertaking, but has Taunton J. The tenant in possession cannot be allowed to defend an ejectment, Patteson J. gave no opinion, having been absent (at the sittings in London) during Rule absolute for judgment against the casual ejector. [951] BECQUET AND OTHERS against MARY MAC CARTHY, Executrix of M. S. J. [Referred to, Meyer v. Ralli, 1876, 1 C. P. D. 370; Rousillon v. Rousillon, 1880, 14 This was an action on a judgment obtained by the plaintiffs against the testator (b) Reg. Gen. M. t. 1 G. 4, 4 B. & A. 196. of the Court, that the plaintiffs had caused the defendants in that suit to be cited to appear before the Tribunal of First Instance on the 16th of December 1816, to answer the plaintiffs touching a fire which they alleged to have broken out in the paymaster's office, and consumed a house and premises and other property of the plaintiffs; and that the plaintiffs prayed the said Tribunal that the defendants might be ordered to admit or deny that the fire first broke out in the paymaster's office, and spread from thence till it destroyed the plaintiffs' premises and goods: and, in case of their admitting the same, that Mac Carthy individually, and likewise the administration of paymaster, might be condemned, jointly and severally, [952] under the 1384th article of the code of laws of the colony, to reimburse to the plaintiffs their damages and costs; or, in case of denial, that an order of the Court might be made for proofs to be adduced, whereupon a report might be made in form of law, and a decision had. The minute then stated, that on the cause coming on for hearing on the 16th of December 1816, default was granted against Mac Carthy, and the cause remanded to the 5th of May following, during which time it was ordered that the party in default should be re-cited. It was then stated, that by a writ served on the 21st of December 1816, the sentence above mentioned was judicially notified to the defendants, with a citation to appear on the 5th of May 1817, and that on that day, the Court, by its sentence, granted a definitive default against Mac Carthy (he not appearing, nor any one for him), and ordered that the documents and readings of the parties appearing should be communicated to the substitute of the King's Attorney-General, together with the notes of the pleadings, in order to the necessary decree being made. This sentence, it was stated, the plaintiffs caused to be notified to the defendants. The point for the adjudication of the Tribunal was stated to be, whether the administration of the Paymaster-General of British Forces was reponsible for the loss arising from the quasi crime imputed to the superintendant of such administration, under the 1384th article of the code, and whether the conclusions and condemnations prayed against the said administration, and against Mac Carthy personally, were well founded? The Tribunal, by its judg ment given on the 9th of February 1818, (and on which the present action was brought) condemned Mac Carthy in default in the legal indemnifications prayed, and in costs; and [953] the damages having been assessed, it was afterwards adjudged that Mac Carthy should pay the plaintiffs 18,371 piastres. On the trial of the present cause it was objected, that this judgment was invalid on the face of it; for the following among other reasons: first, that assuming it to have proceeded on the 1384th article of the French Code Civil, livre 3, tit. 4, chap. 2, ("On est responsable non seulement du dommage que l'on cause par son propre fait, mais encore de celui qui est causé par le fait des personnes dont on doit répondre, ou des choses que l'on a sous sa garde,") and admitting that the fire first began in the premises occupied by Mac Carthy, it did not appear upon the face of the judgment that he was charged with any negligence, or that he had been guilty of any, by himself or his servants; and, secondly, that Mac Carthy was shewn by the judgment itself, to have been absent from the island at the time of the proceedings against him, and it was contrary to justice that a man should be condemned unheard; on which head Buchanan v. Rucker (1 Camp. 63. 9 East, 192), and Cavan v. Stewart (1 Stark. N. P. 525), were cited. Lord Tenterden reserved the points; and the plaintiff proved that, by the law of the island, whenever an action was commenced against a person who had been once resident in it, but had afterwards absented himself, process was served for him upon the King's Attorney-General. The defendant then gave evidence to contradict the facts upon which the judgment proceeded. A verdict having been found for the plaintiffs, a rule nisi was obtained for entering a nonsuit upon the objections taken to the judgment, or [954] for a new trial, upon the ground that the verdict was against evidence. Campbell and Hoggins in this term shewed cause. It is not clear that the evidence given to contradict the judgment was admissible, though it be generally assumed that a foreign judgment is only primâ facie, and not conclusive evidence of a debt. [Parke J. The Vice-Chancellor has held, in Martin v. Nicolls (3 Simons, 458), that the grounds of a foreign judgment cannot be reviewed in the Courts of this country; and that a bill for a discovery and a commission to examine witnesses in Antigua, in aid of the plaintiff's defence to an action brought on the judgment in this country, was demurrable.] If that be so, the application for a new trial is answered. Then, as to the objection arising on the face of the judgment, it ought to appear clearly and |