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CASES

ARGUED AND DETERMINED

IN THE

Court of COMMON PLEAS,

AND

OTHER COURTS,

IN

Hilary Term,

In the Second Year of the Reign of WILLIAM IV.

1832.

MEREDITH V. DREW.

THE Plaintiff had declared in debt for 77.

Merewether Serjt. moved to stay proceedings upon payment of the debt without costs, the Defendant carrying on his business in the city of Bath, and claiming to be within the jurisdiction of the Bath court of requests act, 45 G. 3. c.67., by which commissioners are authorized to decide all disputes and differences between party and party, for any sum not exceeding 107. in all actions

Jan. 13.

By the Bath court of re

quests act, a

Plaintiff who sues in

another court

for a debt he might have

recovered in the Bath court, shall not, by 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.

L

.or

1832.

MEREDITH

บ.

DREW.

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 10., due by or from any persons whatever, inhabit-
ing, 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.(b) The Defendant might be compelled 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.

(a) 8 East, 239.

Rule refused.

(b) The other Judges were absent, on the special commissions.

1832.

PIRIE V. IRON.

Jan. 14.

of witnesses

ON the 12th instant a rule had been obtained under Practice. 1 W. 4. c. 22. for examining, this day, before the Examination prothonotary certain witnesses for the Plaintiff, upon an by prothoaffidavit 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.

1832.

Jan. 14.

Defendant's THIS

attorney had

notice,

Nov. 26th,

GWILT v. CRAWLEY.

was an action against the Defendant for running over the Plaintiff in a gig.

The cause was set down for trial at the Middlesex sit

that his cause tings on the 26th of November last, and was called on, the 2d of December.

was set down

five

for trial; days afterwards it was

called on and

tried as an undefended

cause, no one

appearing for

The De

fendant's at

torney having

on the day of

trial delivered no briefs, the

No one appeared on the part of the Defendant; but the case having been fully proved, a verdict was taken for the Plaintiff.

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 the Defendant's attorney did not expect it could come to his turn on that day; that he had examined a number of witnesses who could prove the innocence of the DeCourt refused fendant; and that the application was not made for delay. It appeared, however, that the Defendant's 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.

a new trial

upon any terms.

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

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

1832.

GWILT

ข.

CRAWLEY.

Refused.

MACARTHY V. SMITH.

DECLARATION for goods sold and delivered,

money had and received, &c.

Bill of particulars for goods sold only, appended to

the record pursuant to the late rule.

At the trial the defence was, that the goods had been delivered to the Defendant as an agent upon sale and return. It appeared, however, that he had sold some of them to the amount of 3l. 18s.

After the Chief Justice, before whom the cause was 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 particulars

L 3

Jan. 14.

When the

bill of particulars is

appended to

the record

pursuant to

the rule of

Court, it is not necessary to prove the delivery of it to Defendant.

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