1833. Lord OAKLEY Canal and only erred from inadvertence. Here they were guilty of a wilful deception. There was in this case a damage within six calendar months by the overflowing of the land, in respect of which the plaintiffs might sue. Roberts v. Read (a), Wordsworth v. Harley (b), is distinguishable. There the reversioner of land declared against defendant (who was a surveyor of highways) for digging his close and separating a portion of it from the residue, and keeping it so separated, and adding such portion to the public road. The separation was by a wall, which was begun more than three calendar months before the action brought; it was at that time very low, but it still formed a complete division between the parcels of land. After the commencement of the three months, the wall was raised and finished; and it was held, that the separation having been complete before that period, the raising of the wall was not such a new injury as would take the case out of the limitation in 13 G. 3. c. 78. s. 81., which required actions for any thing done in pursuance of that statute to be commenced within three calendar months after the fact committed. Here there was a new injury within six months. Thesiger, contrà, was stopped by the Court. DENMAN C. J. No sufficient reason is given why the action should not have been brought within the six calendar months. The limitation is a beneficial one, and should be adhered to. The words, " any thing done or to be done in pursuance of this act, or in execution of the powers and authorities" thereby given and (a) 16 East, 215. (b) 1 B. & Ad. 391. granted, granted, must be taken to mean something done in prosecution of the works contemplated, and not merely making the act a colour. The conduct of the company cannot be approved of, but the action is commenced too late. The plaintiff had notice of the injury, and might have proceeded sooner. LITTLEDALE J. I am of opinion that this is a case in which the defendants are entitled to protection, though they have exceeded their authority. PARKE J. The statute 5 G. 4, c. lxv. s. 128., requires the action to be commenced within six calendar months next after the fact shall have been committed, or, in case there shall be a continuance of damages, then within six calendar months after the doing of such damage shall have ceased. Here the action might have been brought, and the tenant have recovered a proper compensation, within six months after the land was taken away. The words "any thing done in pursuance of this act, or in execution of the powers," &c., apply to all cases where the parties are intending to act upon powers given by the statute, and not merely using it as a cloak for their own private purposes. Although the defendants here misrepresented facts to the tenant, that makes no difference in the application of the clause. PATTESON J. I am of the same opinion. The injury was complete when the land was taken. Judgment for the defendants. 1833. Lord OAKLEY against The KENSINGTON Canal Company. 1833. 4463 Friday, HARRISON and Another, Assignees, against Declaration of DECLARATION in debt, entitled of Easter term Easter term 1831, on a re- against W., the plaintiff in re plevin, and his 1831, by the plaintiffs, as assignees of John Bateman, sheriff of the county of Stafford, stated, that on the 21st of April 1829, the plaintiff's distrained the goods of the defendant Wardle for money then due from him to J. Ault, one of the plaintiffs, for rent; that stating the condition, assigned Wardle, within five days, made his plaint to the said "that although J. B., then being sheriff of the county aforesaid, out of the county court of the said sheriff, of the taking and sureties, after as a breach, the suit was re moved into K. B. by re. fa. in Michaelmas unjustly detaining of the goods of the defendant Wardle, the instance of W., the plaintiff in replevin, yet he did not prosecute his suit with effect and without delay." Plea, first, that by the re. fa. lo. the sheriff was commanded to record the plaint, to have the record on the return day in K. B., and to prefix the same day to the parties, that they might be ready to proceed in the said plaint; that W., the plaintiff in replevin, appeared in court at the return, and was ready to proceed in the suit, and prosecute the same with effect and without delay, but that the now plaintiffs did not appear, and the sheriff returned to the re. fa. lo., amongst other things, that he had prefixed the same day to the parties that they might be ready there to proceed in the said plaint. It then averred that W. was always ready to prosecute his plaint with effect, and without delay, and would have done so if the defendants in replevin (the now plaintiffs), had appeared. To this plea there was a general demurrer. The second plea stated that the sheriff, in pursuance of the re. fa. lo., recorded the plaint, returned it, prefixed the day of the return to both parties, and summoned the now plaintiffs to appear in K. B. to proceed in the plaint; and that W., the plaintiff in replevin, was ready to proceed, but the now plaintiffs did not appear. Replication, that the sheriff did not summon the now plaintiffs to appear. Rejoinder, by way of estoppel, that the sheriff, before the assignment, returned to the re. fa. lo. that he had prefixed a day to the parties that they might be ready to proceed in the plaint. General demurrer. Held, first, that a plaintiff in replevin, who does not use due diligence in prosecuting the suit, is guilty of a breach of that part of the condition of the bond which requires him to prosecute without delay, even though it may not appear that the suit is determined. Secondly, admitting that upon the replication to the second plea it was to be assumed that the now plaintiffs were not summoned, (and semble that, in the present action, they were not estopped from alleging this,) still, as it appeared by the pleas that the re. fa. lo. contained a direction in effect to summon the now plaintiffs, W., the plaintiff in replevin, was not responsible for the default of the sheriff, or guilty of delay in that suit by reason of the sheriff having neglected to serve a summons. and and prayed the sheriff that the same might be replevied by him (the sheriff) and delivered to Wardle; and thereupon the said J. B., so being sheriff, &c., did take from Wardle, and from the other defendants as two responsible sureties, a bond in double the value of the goods distrained, &c., and the defendants in this suit, on the 23d of April 1829, by their writing obligatory, acknowledged themselves to be bound unto the said J. B., so being sheriff, &c., in 146l., to be paid to the said J. B., &c., with a condition thereunder written, "that if the defendant Wardle should appear at the then next county court, to wit, at the county court of the said sheriff, on the 7th of May then next, and should then and there prosecute his action with effect and without delay, against the said plaintiffs in this suit, for taking and unjustly detaining the goods in the condition mentioned, and should make a return of the said goods, if a return thereof should be awarded, then the obligation should be void, or otherwise it should remain in full force;" that the sheriff, at the prayer of the defendant Wardle, replevied and made deliverance of the goods to him; and afterwards, at the then next County Court of the said sheriff, Wardle appeared, and, without writ, levied hist plaint against the plaintiffs in this suit, for the taking and unjustly detaining of the said goods, and then and there found pledges, as well for prosecuting his said plaint as for returning the said goods, if return thereof should be adjudged by law, to wit, the other two defendants, which plaint, in Michaelmas term 1829, was duly removed, at the instance of Wardle, out of the County Court of the said sheriff into the Court of King's Bench, by virtue of a writ of recordari facias loquelam, returnable on the morrow of All Souls. Averment, that Wardle L 2 1833. HARRISON against WARDLE. 1833. HARRISON against WARDLE. Wardle did not prosecute his aforesaid suit in the Court of K. B. with effect and without delay against the plaintiffs in this action, for taking and detaining the goods aforesaid, nor had he further prosecuted such suit, nor did he make a return of the said goods, or any part thereof, according to the form and effect of the said writing obligatory, whereby the same became forfeited to the sheriff, who assigned it to the plaintiffs. Plea 1st, that by the writ of re. fa. lo. the sheriff was commanded that he should cause the plaint to be recorded, and that he should have the record in K. B. on the morrow of All Souls, and that he should prefix the same day to the parties, that they might then be there ready to proceed in the said plaint, as should be just; that at the return of the re. fa. lo., Wardle came into the Court of K. B., and was then and there ready to proceed in the said suit, and to prosecute the same with effect and without delay against the now plaintiffs; but that the said now plaintiffs came not, and did not appear in the said Court of K. B.; and the said sheriff, on the morrow of All Souls, returned to the said Court of K. B., upon the said writ of re. fa. lo., that, by virtue of that writ, he had caused the plaint to be recorded, &c., and had the said record in Court on the day in the writ mentioned, and that he had prefixed the said day to the said parties, that they might be there ready to proceed in the said plaint as should be just, as in the said writ he, the sheriff, was commanded. The plea then averred, that Wardle was always ready to prosecute his action with effect, and without delay, against the now plaintiffs; and would have so prosecuted his suit against the said now plaintiffs, if they had appeared in the Court of K. B., according to the exigency of |