Ludlow, Serjt., had obtained a rule nisi for his discharge, on the ground, as appeared by affidavit, that the plaintiff had not signed the note in Court; that no affidavit, verifying the plaintiff's signature to the note for the allowance of the sixpences had been delivered to the defendant; and that the note itself had been delivered to him, not in Court, but by the gaoler after he returned to prison.

It appeared, however, that the affidavit with the note attached to it, had been handed up to the Judge for his inspection.

Goulburn, Serjt., showed cause. The matter has been determined by the Judge of assize, the only competent tribunal; and this Court has no authority to interpose except in matters occurring subsequently, as the non-payment of the sixpences.

From the statement, however, that the affidavit was handed up to the Judge for his inspection, it may be presumed that the affidavit had reached the prisoner's hands, and that he had suggested some inquiry.

Ludlow in support of his rule contended, that the Court had authority to investigate the proceedings below; and that they would be astute to favour the liberty of the subject.

*TINDAL, C. J. I think we have no authority to interfere in this case.

ne statute enacts, that the Court shall make a rule to discharge the [*518

insolvent upon his executing an assignment of his property, unless the creditor insist upon his being detained, and agree in writing to pay him 3s. 6d. a week. (a)

Upon this enactment the Courts have introduced, as a matter of practice, that the note given by the plaintiff shall be signed in open court, or that his signature shall be verified by affidavit. But, first, we must intend that the court below pursued the regular practice, and no case of application to the court above can be cited which has not arisen upon matter subsequent to the remanding of the prisoner; and, secondly, there is enough before us to lead us to infer, that what was done was done correctly. It is not probable that the affidavit and note would have been handed up to the Judge except to enable him to satisfy himself upon some objection taken by the prisoner.

PARK, J. I am of the same opinion. However inclined to assist a prisoner, we must not take upon ourselves a jurisdiction that is not in us. Except for matter arising subsequently, the act precludes us from entering on a case after the Judge of assize has dealt with it. And here we may presume he dealt with it correctly, for except upon objection by the prisoner, it is not probable the affidavit and note should have been handed up to the Judge.

GASELEE, J. The power of discharging or remanding the prisoner rests solely with the Judge of assize; and after he has remanded, the Court here cannot discharge, except upon the failure of the plaintiff to *perform his undertaking. The course of the Judge of assize has varied occasionally, [*519 according to the practice of the place. But the words of the act have in this instance been strictly complied with. The Judge must have inquired into the case; for except upon some objection it is not likely the documents would have been handed up to him, and his direction respecting them would be final.

BOSANQUET, J. I have entertained some doubts, because the note was not handed to the prisoner till his return to the prison; and the affidavit, as it is stated, not at all, which is contrary to the ordinary practice: at the same time they were handed to the Judge in Court, so that there was no want of compliance with the words of the act. After he has exercised his judgment on the facts, I agree that this Court has no power to review his decision, and on that ground I think the rule should be discharged. Rule discharged..

(a) See 32 G. 2, c. 28, s. 13. 37 G. 3, c. 85, s. 3, 4.

Plaintiff had sued defendant for negligence, per quod plaintiff became liable to pay certain sums, and lost the custom of A., B., and C.

The cause was referred under an order of N. P., by which plaintiff was precluded from bringing any new action. The arbitrator made an award in favour of plaintiff, who nevertheless sued defendant again, the new declaration differing from the old one, in stating that plaintiff had paid the money he before alleged himself liable to pay, and had lost the custom of D., E., and F.:

Held, that the Court could not stay proceedings on a summary application.

THE plaintiff, in a declaration of several counts, had sued the defendant for negligence as an attorney in the conduct of a suit; and alleged that he the *520] plaintiff *had incurred certain liabilities as the consequence of this negli

gence, and had lost the employment of certain persons who would otherwise have employed him.

The matter was, by an order of Nisi Prius, afterwards made a rule of Court, referred to an arbitrator, who directed a verdict generally for the plaintiff for 237. 14s. 10d. The order by which the cause was referred precluded the plaintiff from bringing any new action.

The plaintiff, however, now commenced a fresh action against the defendant, the declaration in which was the same as in the preceding action, with the addition, that the plaintiff alleged himself to have paid certain sums, for which he had before only alleged himself to be liable, and named certain other persons who had ceased to employ him in consequence of the defendant's negligence.

Cross, Serjt., obtained a rule nisi to stay the proceedings in this second action, on an affidavit alleging that it was brought for matters which were included in the award. In Dunn v. Murray, 9 B. & Č. 780, the declaration stated, that in consideration that the plaintiff, at the request of the defendant, would enter into the employ of the defendant in a certain capacity for a year, at the rate of five guineas per week throughout the year, defendant undertook to employ him for a year, and alleged as a breach, that the defendant dismissed the plaintiff from his employ before the end of the year, without any reasonable or probable cause. The declaration contained counts for wages, and for work and labour, &c. The cause, which was commenced before the expiration of the year, was referred to an arbitrator, who awarded to the plaintiff a sum of money equivalent in amount to the wages he would have been entitled to receive from *521] *the defendant on the day when the action was commenced. No claim was made before the arbitrator for any compensation in damages for the dismissal, except so far as the special count in the declaration, and the evidence of the employment and the dismissal, might amount to such a claim. The plaintiff having afterwards brought an action to recover a compensation in damages in consequence of the dismissal from the defendant's employ before the end of the year, it was held, that the award of the arbitrator was a bar to such action.

Wilde, Serjt., who showed cause, relied on an affidavit in which it appeared that the learned Judge before whom the former cause was about to be tried had expressed an opinion, that the damage complained of in the present action might form the subject of a second suit. He pointed out the difference between the two declarations as above; and contended, that the Court would not try. summarily, on affidavit, a doubtful question, which the defendant might bring to issue by pleading.

Cross, Serjt. This action is a violation of the rule of Court, for which the plaintiff is liable to an attachment; but, if the defendant waives the graver proceeding, the Court may interfere in support of its own order.

TINDAL, C. J. This is an application to stay proceedings, on the ground that a former action for the same cause has been referred to an arbitrator under a rule of Court, and that this proceeding is a violation of that rule. It is, therefore, only a milder mode of moving for an attachment. When the former cause was referred, the learned Judge who was about to try it expressed an opinion, that

[*522

the damage now complained of might form the subject of a separate action. Under these circumstances, it is difficult to say that the plaintiff is guilty of a contempt in bringing a second action, although, upon looking at the plaintiff's declaration, we think it would be mercy to him to make this rule absolute with costs. But we have no right to prevent him from proceeding if he chooses to do so, and therefore this rule must be discharged without costs. PARK, J., said he had considerable doubts.

GASELEE, J. I am of opinion, that the recovery in the first of these actions may be pleaded in bar to the second; and I therefore agree that it would be mercy to the plaintiff to make this rule absolute; but as we cannot go the length of saying there has been a wilful violation of the order of Court, the rule must be discharged if the plaintiff insists on proceeding. BOSANQUET, J., concurred.

Rule discharged.

MAXWELL v. MARTIN. May 10.

Trespass for breaking a close called Lord's Leys. Plea, right on Brockeridge Common, and that Lord's Leys was part of the common. Replication, no right on Lord's Leys.

At the trial, plaintiff admitted that defendant had a right on all Brockeridge Common except the portion called Lord's Leys, and defendant admitted he had no evidence of any exercise of the right on Lord's Leys:

Held, that upon these pleadings and admissions, plaintiff was entitled to judgment.

TRESPASS for breaking and entering plaintiff's close, called the Lord's Leys. Plea, that the supposed close called Lord's Leys is *and at the said several times when, &c., was an open waste, and considered part of a [*523 certain common called Brockeridge Common; and that defendant, and those whose estate he had, had a right to take stone from the open waste and unenclosed parts of Brockeridge Common, and in, upon, and from the Lord's Leys, as being an open, waste, and unenclosed part of Brockeridge Common.

The replication (after protesting that Lord's Leys was not an open, waste, and unenclosed part of Brockeridge Common) alleged, that defendant and those whose estate he had, had not a right to take stone from the close or parcel of land called the Lord's Leys. Upon which issue was joined.

At the trial the cause was conducted by admissions on both sides: the counsel for the defendant admitting, that he had no evidence to prove the exercise of a right to take stone on the Lord's Leys; and the counsel for the plaintiff admitting, that the defendant had a right to dig stone upon Brockeridge Common, with the exception of the parts of it called the Lord's Leys; it being understood, according to the report of the learned Judge who tried the cause, that there was no fact in dispute between the parties for the consideration of the jury. On this state of the pleadings, and these admissions as to the evidence, the verdict was entered for the defendant, with liberty for the plaintiff to move to enter a verdict for 1s. damages.

Accordingly,

Russell, Serjt., having obtained a rule nisi to that effect,

Ludlow, Serjt., showed cause. The plaintiff not having traversed the defendant's right to take stone on Brockeridge Common, has, on the pleadings, admitted it; *and for want of a traverse, he has also (notwithstanding the protestando) admitted on the pleadings that the Lord's Leys is part of Brockeridge [*524 Common, and as every whole must contain all its parts, the admission of the right on Brockeridge Common involves the admission of a right on Lord's Leys as part of the common. It is impossible, therefore, that any judgment can be entered for the plaintiff on this record. In Moorewood v. Wood, 4 T. R. 157, it was held, that, if to an action of trespass in the common called A. the defendant plead that A. and B. commons lie open to each other, and then prescribe for a right in both commons, the plaintiff must traverse the whole prescription. And in Rotheram v. Green, Cro. Eliz. 593, where the defendant pleaded a right

of common in respect of a tenement in L., and the jury found that the defendant's ancestor released to the plaintiff's ancestor all his right and common ir part of the land where he had the common, the Court held that "the common is entire through the whole land, wherefore a release in part shall discharge the whole," " and therefore the prescription is found against the defendant." Evidence of ownership, or of rights upon some parts of a waste, is, until rebutted, evidence of a right over the whole. Tyrwhitt v. Wynn, 2 B. & A. 554, Stanley v. White, 14 East, 332, Grose v. West, 7 Taunt. 39, Rowe v. Brenton, 8 B. & C. 737.

Wilde, Serjt., and Russell, in support of the rule. The qualified admission by the plaintiff's counsel of the defendant's right on Brockeridge Common, coupled with the admissions made by the defendant, threw it on him to make out the affirmative, that he had a right on Lord's Leys. The present resistance is an attempt to elude by finesse the understanding come to by both parties on the trial.

*The Court took time to consult Vaughan, B., before whom the ver

*525] diet was taken, and judgment was now delivered by

TINDAL, C. J. Upon the pleadings in this case, the precise issue raised by the replication is, Whether the defendant has a prescriptive right to dig stone in, upon, and from the close called the Lord's Leys; and it is admitted on the face of the pleadings, for the purpose of this cause, that the Lord's Leys was, at the time of the trespass committed, an open, waste, and unenclosed part of a certain common called Brockeridge Common.

The cause, instead of being tried by the actual production of evidence before the jury, was brought to a termination by the admission of the counsel on each side the counsel for the defendant admitting, that he had no evidence to prove the exercise of a right to take stone on the Lord's Leys: and the counsel for the plaintiff admitting, that the defendant had a right to dig stone upon Brockeridge Common, with the exception of the parts of it called the Lord's Leys: it being understood, according to the report of the learned Judge who tried the cause, that there was no fact in dispute between the parties for the consideration of the jury.

On this state of the pleadings, and this mutual understanding of the condition in which the parties stood as to the evidence, the verdict was entered for the defendant, with liberty for the plaintiff to move to enter a verdict for 1s. damages, which is now sought to be done on the rule obtained for that purpose, and which rule, we think, ought to be made absolute.

The original grant of the right of digging stones upon Brockeridge Common, on the foundation and in the place of which grant the prescription now stands, might either have been a general grant to dig stone over the whole common, or *526] a grant to dig stone over the whole *common, with the exception of the Lord's Leys. But the affirmative of the issue is upon the defendant, He must show affirmatively, either that the original grant, or the prescriptive right set up in the plea, does comprehend the whole common without any exception. So that, if the original grant cannot be produced, and the evidence as to the prescriptive right over the part called the Lord's Leys hangs in even scales, the balance must be declared in favour of the plaintiff, inasmuch as the burden of making the scale preponderate is cast upon the defendant.

Now, if the case had gone to the jury upon the actual production of evidence, the right to take stones upon the Lord's Leys would have depended, not merely on affirmative evidence of the exercise of that right on the particular spot; but as the defendant had evidence of the exercise of the right of getting stone on the whole of Brockeridge Common, the jury might have inferred the right as to the particular spot in dispute, from the mode and circumstances under which the right was exercised over the residue of the common, and not exercised as to the Lord's Leys. Thus, the situation of the Lord's Leys, the quantity and value of the stone under it, its accessibility or convenience with respect to the tenement of the defendant, might have been important evidence, either to sup

port or to negative the inference as to the exception of the Lord's Leys from the original grant, or from the prescriptive right.

But as this was well known to the counsel on both sides, we take the admission made at the trial as a general admission, not only that there was no direct affirmative evidence to support the issue as to the Lord's Leys, but none that would raise an inference in support of it; and, therefore, upon the whole, we think the defendant has not proved his issue, and that the rule obtained must be made absolute. Rule absolute.

*FORSTER and Another v. WESTON. May 10.

[*527

Defendant having been arrested for 11231., when the plaintiffs had the means of knowing that only 7167. was due, was held entitled to his costs under 43 G. 3, c. 46, although the accounts between plaintiffs and defendant were somewhat complex.

THE defendant was arrested for 11237., and the plaintiffs at the trial consented to take a verdict for 716/.

Wilde, Serjt., obtained a rule nisi to tax the defendant his costs under 43 G. 3, c. 46, as for an arrest without probable cause, upon affidavits which alleged that at the time of the arrest the plaintiffs had in their hands 4077. of the defendant's money, which reduced their real demand to 7167., the sum recovered; that the account on which this balance was due stood in the joint names of the defendant and another, but that the plaintiffs had, upon an arrangement between them, been accustomed to pay each of them separately a moiety of the sums that became due to the two. He cited Dronefield v. Archer, 5 B. & A. 513.

The plaintiffs in answer alleged that the defendant was about to leave the country when he was arrested. They admitted that 4077. was due to the defendant as his moiety upon the joint account, and did not expressly deny that they knew this to be the amount of his moiety at the time of the arrest.

Taddy, Serjt., who showed cause, contended that there was no ground for calling this a malicious or vexatious arrest, since the disproportion between the sum sworn to and the sum recovered was not immoderate, and the *plaintiffs might well have been misled by the joint account.

[*528 TINDAL, C. J. I think this case falls within the statute of 43 G. 3, and that the plaintiffs had not reasonable or probable cause for arresting the defendant for 11237. If, indeed, they had really believed that they were not safe in divid ing the joint account, that might have given a different complexion to the affair; but they admit that they afterwards divided the amount, and they have not stated that they did not know it was to be divided previously to the arrest.

PARK, J. The balance is the sum due. The plaintiffs knew that something was due from them to the defendant which would reduce the amount for which they arrested him, and they had no probable cause for arresting him for more than the balance. In a great variety of decisions it has been laid down that the rule upon these motions is the same as in actions for a malicious arrest. The rest of the Court concurred, and the rule was made

Absolute.

*CHALIE and Another v. BELSHAW. May 10.

[*529 Averment, that defendant accepted a bill, sufficient on special demurrer, although the stat. 1 & 2 G. 4, requires an acceptance in writing.

THE declaration stated that the defendant, according to the usage and custom of merchants, accepted a bill of exchange drawn by the plaintiffs, and thereupon became liable to pay the amount according to the tenor of the said bill. Breach, non-payment. Special demurrer, on the ground that it was not