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In the Second Year of the Reign of William IV.


Jan. 13.

THE Plaintiff had declared in debt for 71.

By the Bath court of re

quests act, a Merewether Serjt. moved to stay proceedings upon Plaintiff who payment of the debt without costs, the Defendant carry- sues in

h another court ing on his business in the city of Bath, and claiming to i be within the jurisdiction of the Bath court of requests might have act, 45 G. 3. c. 67., by which commissioners are autho- recovered in

the Bath court, rized to decide all disputes and differences between party shall not, by and party, for any sum not exceeding 101. in all actions reason of a

verdict for

him, be entitled to costs. This Court refused to stay proceedings before verdict, upon payment of debt without costs, upon the ground that the action ought to have been brought in the Bath court. Vol. VIII.





or causes of debt; and it is made lawful for any persons, whether they reside within the jurisdiction of the said Court or not, having any debts not exceeding the value of 101., due by or from any persons whatever, inhabiting, residing, or being within the said city, or the liberty and precincts thereof, to proceed by summons in the said court; and if any action for any debt recoverable in the said court shall be commenced in any other court, the Plaintiff shall not, by reason of a verdict for him, or otherwise, be entitled to any costs.

Although the case had not proceeded to verdict, this Court, he contended, would interfere at once to prevent unnecessary expense. In Dunster v. Day (a) it was held, that after judgment by default, and the damages assessed upon a writ of enquiry, the Defendant might come into court and move to stay proceedings on payment of the damages assessed, without costs. That case was under the London court of requests act, but the language in both acts is the same, and an application before verdict, comes as much within the reason of the act as an application after.

Park J. I think not: the party is not in the stage of proceeding contemplated by the act, and that is a sufficient reason for us not to interfere; besides, he who asks for justice should do justice.

ALDERSON J.(6) The Defendant might be conspelled to go on at the expense of paying his own costs in any event: he comes here to ask for a favour, and ought at least to do justice himself.

Rule refused. (a) 8 East, 239. (6) The other Judges were absent, on the special commissions.


Pirie v. IRON.

Jan, 14.

O N the 12th instant a rule had been obtained under Practice. 1 W. 4. c. 22. for examining, this day, before the Examination

of witnesses prothonotary certain witnesses for the Plaintiff, upon an by protho affidavit that they were immediately about to sail for notary. India.

The Defendant's agent had notice of the rule the day it was obtained, and immediately wrote to the Defendant's attorney at Dover, but no answer having arrived this day by return of post,

Merewether Serjt. moved that the examination of the witnesses might be deferred till the Defendant's attorney could be present to cross-examine them, without which great injustice might be done to the Defendant.

The Court observed that such delay might defeat the object of the act of parliament; and it was then asserted that the witnesses were about to sail on the morrow ; upon which,

Merewether contended that the preparations for a voyage to India requiring much time, the Plaintiff must have been long apprized of the witnesses' probable departure, and must have deferred his application to the last moment, in order to elude a cross-examination.

Sed per Curiam. Let the examination be taken provisionally; the Plaintiff to satisfy the Court by affidavit that the application has not been delayed with any sinister intention.


Jan. 14.

Gwilt v. CRAWLEY.

Defendant's THIS was an action against the Defendant for running attorney had

over the Plaintiff in a gig. notice, Nov. 26th, The cause was set down for trial at the Middlesex sitthat his cause tings on the 26th of November last, and was called on, was set down for trial; five the 2d of December. days after- No one appeared on the part of the Defendant; but wards it was called on and

the case having been fully proved, a verdict was taken tried as an for the Plaintiff. undefended cause, no one appearing for

Storks Serjt. now moved, on payment of costs, for a the Defendant. new trial, on an affidavit that the cause was the last of

fifteen appointed for trial on the 2d of December ; that fendant's attorney having the Defendant's attorney did not expect it could come on the day of to his turn on that day; that he had examined a number trial delivered no briefs, the of witnesses who could prove the innocence of the DeCourt refused fendant; and that the application was not made for a new trial

delay. It appeared, however, that the Defendant's upon any terms. attorney had notice on the 26th of November that the

cause stood for trial, and that his clerk attended in court to watch the progress of the causes two or three days; but it did not appear that he had delivered any brief to counsel, or had examined any witnesses before the cause had been actually tried.

Tindal C. J. The rule cannot be granted. The Defendant's attorney knew on the 26th of November that the cause was set down for trial; and though it was not called on till the 2d of December, he had not up to that time delivered a brief or examined the Defendant's witnesses. It would be a gross injustice to plaintiffs if we were to listen to the application, as it



would enable defendants to lie by, and after learning the particulars of the plaintiff's case to harass him with a new trial and evidence got up in answer.



PARK J. concurred.

ALDERSON J. If the Defendant's attorney had been present when the cause was called on, the Court before putting off the trial would have required him to shew that he had delivered a brief, or had taken some steps to prepare for trial : he does not depose that, even now; and as a new trial would necessarily occasion delay to the Plaintiff, the rule must be


Macarthy v. Smith.

Jan. 14. '

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DECLARATION for goods sold and delivered, When the money had and received, &c.

bill of par

ticulars is Bill of particulars for goods sold only, appended to an the record pursuant to the late rule.

the record At the trial the defence was, that the goods had been

the rule of delivered to the Defendant as an agent upon sale ana Court, it is return. It appeared, however, that he had sold some not necessary

to prove the of them to the amount of 31. 185.

delivery of it After the Chief Justice, before whom the cause was to Defendant. tried, had done summing up, the counsel for the Defendant objected that the bill of particulars contained no demand for money had and received, to which it was answered, that the delivery of the bill of particulars had not been proved; but the learned Judge thought this unnecessary since the adoption of rule for appending the

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