1811.

BAKER ข.

HEATH, J. This point has frequently been decided at nisi prius, though I do not recollect any case reported. The defendant might have rebuilt at any period of the term, whereas the HOLTPZAF landlord would have been a trespasser if he had entered for that purpose, which shews that the former held the land. Per Curiam,

TELL

Rule refused.

June 26,

[ 47 ]

The Court will not, upon motion, give leave to examine an attesting witness to a deed

upon interroga

tories, and to give such examination in evi

dence at the trial, on the

ground that he is incapable,

JONES v. BREWER.

ON a former day in this term Lens, Serjt. obtained a rule nisi

on behalf of the plaintiff, for leave to examine the subscribing witness to the bond on which this action was brought, upon interrogatories, and to give such examination in evidence at the trial, upon the ground, as appeared by the affidavit on which he moved, of his being incapable, through illness, of at*tending in person, and of its being improbable that he would ever recover so as to be capable of attending. The affidavit also stated that the defendant, upon one occasion, had admitted his execution of the bond, but afterwards upon hearing of the illness of the witness, had retracted that admission, and declared he would neither make nor receive admissions. At the time when the rule was moved, Mansfield, C. J. doubted whether it were not notwithstanding unnecessary, inasmuch as under the circumstances disclosed, eviit also appears dence of the handwriting of the witness would be admissible at the trial, but upon the suggestion of Lawrence, J., that the admissibility of such evidence had been objected to at nisi prius, the rule was granted.

through iliness, of attending in person, and

that he is not likely to recover so as to be able to attend,

by the affidavit that the defen

dant had at one

time admitted

the execution of the deed; nor will the Court, on these grounds, grant a rule for dispensing with the attendance of such witness

at the trial.

Best, Serjt. was now about to shew cause, but was stopped by MANSFIELD, C. J., who said he was afraid that the Court had no power to make the rule absolute: if a subscribing witness is incapable of attending from inevitable cause, such as death, or absence from the country, or even perhaps in some instances of sickness, his handwriting may be proved, but it is not necessary for the Court upon motion to try what degree of necessity will dispense with his presence, which question, when it arises at nisi prius, will come more regularly before the Court.

HEATH, J. The practice now attempted would be very dangerous, for the presence of an attesting witness is in many cases of the utmost importance, and ought not to be dispensed with upon such grounds. If this were permitted to be done, it

might lead witnesses to feign sickness in order to keep out of the

way.

1811.

JONES

V.

BREWER.

* Lens, Serjt. admitted that in the case of a bond it had been held, that the acknowledgment of the obligor would not dispense with the proof of its execution by the production of the attesting [ 48 ] witness, but he submitted to the Court, whether, coupling this admission with the other circumstances of the case, he might not be permitted to change the form of his rule into a motion for dispensing with the attendance of the attesting witness.

MANSFIELD, C. J. We cannot permit that, for the defendant's admission is a fact which we cannot try upon affidavits, because if it were admissible evidence, it would decide the cause, and ought therefore to be submitted to the consideration of a jury.

Per Curiam,

Rule discharged.

TRESPA

EVANS V. MUNKLEY and Another.

June 26.

In trespass, if justify as plaintiff in a suit in court, under mesne process

the defendant

an inferior

of that court,

he must allege in his plea that

the cause of action arose within the jurisdiction,

otherwise the

RESPASS for seizing and detaining the plaintiff's horses until he paid a sum of money to redeem them. The defendants justified (in separate pleas), under mesne process out of the court of the city of Hereford, (and shewed that the Court had jurisdiction of all manner of pleas, actions, suits, and demands whatsoever, trespasses with force and arms or otherwise, in contempt of the king, and of whatsoever trespasses, faults, and offences within the said city and, the suburbs, and liberties, limits, and precincts of the same, done, moving, arising, had, or committed,) the defendant Owen, as an officer of the Court, on a plaintiff may plaint levied by the defendant Munkley against the plaintiff of a demur. plea of trespass on the case for a cause of action personal, to the damage of the defendant of 421. 8s. (without stating that the [49] cause of action arose within the jurisdiction of the court). To the plea of the defendant Owen, the plaintiff replied, de injuriâ suá propriâ, &c., and to that of the defendant Munkley, he demurred specially, assigning for cause (inter alia) that it did not appear by the plea, that the plaint of a plea of trespass on the case therein mentioned, was levied against the plaintiff for a cause of action arising or happening within the city of Hereford, or the suburbs, limits, or precincts thereof. Runnington, Serjt., in support of the demurrer, relied upon

1811.

EVANS

ข.

the rule laid down in Peacock v. Bell, 1 Saund. 74., respecting jurisdiction, and recognised in Stanian v. Davies, 1 Ld. Raym. 796., and Winford v. Powell, ibid. 1310., viz. that nothing shall MUNKLEY. be intended to be out of the jurisdiction of a superior court, but that which specially appears to be so; and, on the contrary, nothing shall be intended to be within the jurisdiction of an inferior court, but that which is so expressly alleged.

[ 50 ]

MANSFIELD, C. J. cited Trevor v. Wall, 1 T. R. 151., and said that he supposed the general rule would not be disputed, but that it would be attempted to distinguish this from the cases cited. Runnington was stopped by the Court.

Best, Serjt., contrà. The question in all the cases cited arose upon error brought on the judgment in the inferior court, and it was decided that in inferior courts it is necessary that the gist of the action should appear to be within their jurisdiction. But this is an action of a different sort, which is brought for a cause collateral to the original suit in the inferior court, and to which therefore the rules applicable to proceedings in that court do not apply. This was so decided in Truscott v. Carpenter, 1 Ld. Ray. 229., where, in an action of false imprisonment, the defendant, after justifying (as here) under process of an inferior court, alleged that the cause of action arose within the jurisdiction, and it was held that such allegation was immaterial, and could not be traversed, and the resolution of the case of the Marshalsea, 10 Co. 76., where the contrary had been adjudged, was held to be a hard resolution, and warranted by none of the books there cited; and the distinction was taken, that if the cause of action arose out of the jurisdiction of the inferior court, the defendant in the inferior court ought to plead it, and if he does not, the affair of the jurisdiction is over, and he shall not take advantage of it in any collateral action against the plaintiff. The same doctrine was also held in Gwinne v. Poole, 2 Lutw. 935., 1560.; and these cases are directly in point.

LAWRENCE, J. The case of Moravia v. Sloper, Willes 30., has set this question at rest, and that is a later case than any of those which have been cited; and Willes, C. J., in delivering the judgment of the Court, went into all those cases very fully, and after considering them it was decided, that where a party who was the plaintiff below justified under process of an inferior court, it was necessary to set forth in his plea that the cause of action arose within the jurisdiction of the court, otherwise the plaintiff might demur thereto.

CHAMBRE,

CHAMBRE, J. In Truscott v. Carpenter, the plea did allege that the cause of action arose within the jurisdiction.

The rest of the Court concurred.

Per Curiam,

1811.

EVANS

V.

Judgment for the plaintiff. MUNkley.

ΟΝ

cause,

HEWIT v. PALMER.

Na rule for setting aside the interlocutory judgment in this for irregularity, it appeared that the declaration was delivered on the 15th February, indorsed to plead thereto within the four first days of Easter term. On the 18th and 24th May two several demands of a plea were made, after which a rule to plead was given, and on the 6th June judgment was signed as for want of a plea without any other demand of one.

Lens, Serjt., against the rule, insisted that it was not necessary that the demand of a plea should be made after the rule given to plead, and therefore the judgment was regularly signed. He said that the case in Barnes 276., Eames v. Jew, on the authority of which the rule was granted, had been overruled in 6 T. R. 689., The Churchwardens of Edmonton v. Osborne, where it was held that the demand of a plea may be made at the time of delivering the declaration; and in Maxwell v. Skerrett, 5 East, 547., where the precise point now before the Court arose, it was decided, that a demand of a plea being once made, a rule to plead may be given afterwards without any fresh demand of a plea.

June 26. [51]

A demand of a

plea made be

fore the rule to plead is

entitle a plaingiven, will not tiff to sign judg

ment after the

rule expired,

as for want of a plea.

LAWRENCE, J. It strikes me that the rule laid down in Barnes is the most reasonable. After the plaintiff has declared, the defendant is not bound to plead until he is ordered so to do by the Court, in the form of a rule to plead; and what is the use of the plaintiff making a demand of a plea, until such time as the defendant is bound to plead? After the defendant becomes bound by the rule to plead, the plaintiff is to make demand of a plea, and is restrained from signing judgment before the expiration of [ 52 ] twenty-four hours after that demand, which practice was introduced for the benefit of the defendant, in order that judgment may not be signed against him by surprise. The rule to plead is not served on the defendant, but only entered in the book of the officer; and therefore, until a demand is made, he cannot be supposed to have notice of the rule, for he is not bound to be perpetually searching the officer's book. The learned Judge

7

(after

1811.

HEWIT

V.

PALMER.

'(after referring to the officer) then said, that the practice of this Court was uniform, that the demand of a plea must be made after the rule given to plead.

The Court made the

Shepherd, Serjt. supported the rule.

Rule absolute.

June 29.

If a consignee

accept goods THIS

under a bill of lading, at the

bottom of which

is a memoran

dum that the ship is to be cleared in 16 days, and 81. per day, demurrage to be paid

after that time,

JESSON V. SOLLY.

HIS was an action brought by the master of a vessel upon a general count in assumpsit for demurrage. Upon the trial, before Mansfield, C. J., at the sittings after Hilary term 1811, it appeared that the plaintiff, who was master of a vessel, had taken on board a cargo, and signed bills of lading, deliverable to the order of the shipper upon payment of freight, and at the bottom was a memorandum that the ship was to be delivered in sixteen lay days, 81. per day demurrage to be paid for every laythe master, up--ing day after the expiration of that time. The master retained on delivery of the goods, may one part of the bill of lading, which was produced as his evidence recover demur- at the trial, and it was objected, that as it was not signed by the rage against the consignec. consignor or consignee, it was not admissible in evidence: it was [53] however received as a counterpart, upon the ground that the defendant might, by producing the part which he possessed, prove it dissimilar, if it were so, to the part now produced. When the vessel arrived, no bill of lading had arrived in this country; the defendant, who expected the cargo to be consigned to him, demanded the goods, which the plaintiff, having been apprised by another person that he also claimed the consignment, refused to deliver, unless either upon sight of the bill of lading, when it should arrive, indorsed to the defendant, or on receiving an indemnity: he also gave the defendant notice, that if the vessel was not delivered within the sixteen lay days, he should insist on the demurrage. The bills of lading being delayed, the vessel was not completely delivered till eight days after the expiration. of the sixteen. The defendant paid the freight, but refused to pay the demurrage. He now objected, that he having demanded the goods, and offered to accept them, the vessel's delay was caused by the plaintiff's own fault, and therefore he was not entitled to recover; and Mansfield, C. J. being struck with the objection, nonsuited the plaintiff, with liberty to move to enter a verdict for the plaintiff for eight days' demurrage.

Shepherd,