1797. ALMGILL v. PIERSON. had against demandants. Newman v. Goodman (a), 2 Bl. 1093. 1110. The reafon why we did not proceed to trial at the laft Summer affizes was, that we fhortly expected to obtain material evidence from France, viz. the Baptismal Register of the elder Pierfon, whofe legitimacy was to be difputed. This cafe differs from all others, for where iffue is joined on the right, any judgment is peremptory [1] and may be pleaded in bar to every other action on the fame right. The estate in queftion is 3000l. a-year. It was ftated by Rooke J. that an application had been made to him by the tenants, for leave to examine a witnefs on interrogatories, who was going to Naples with her husband and child, to which the demandants refufed to confent. EYRE Ch. J. In a common cafe I fhould have been inclined to think the excufe fet up by the demandants fufficient: but the measure which they mete to others we shall mete to them. When they had the ftaff in their hands they tried to put difficulties in the way of the tenant, and made them rifk the lofs of an important witness. It was the demandants who made the attack, and who ought therefore to have been prepared to substantiate their claim before they made it. I fhould be inclined to give more indulgence to the tenants than to the demandants, who come in this cafe to difturb a very long poffeffion, on grounds which may perhaps be good, but which should be known to be good before the action is commenced. According to the demandants' own account this piece of evidence was a new discovery, and collateral to the only ground on which they were induced to commence the action! nor is there any reasonable probability for fuppofing that they will be able to proceed at the next affizes. I think the Court ought to adhere to the principle of a cafe (b) decided in laft Eafter term, where an application for putting off a trial was refufed, because the Defendant had not conducted himself fairly and candidly. HEATH J. I am of the fame opinion. Having refufed juftice to others, the demandants are not in a ftate to claim any indulgence from us. Moreover, as the parishes in France are now fuppreffed, and the registers disordered, it is not very likely that the demandants will be able to obtain the evidence they want. ROOKE J. Lentirely agree with my Lord that thofe who make the attack ought to be very well prepared to fupport it. In what (a) In that cafe however the rule for judgment as in cafe of a nonfuit had been made abfolute without opposition, and the only queftion before theCourt was, whether (6) Saunders v. Pittman, ante 33- paffed before me, I think the demandants behaved very ill. On general principles therefore, as well as on this particular cafe, I think they can claim no indulgence. Rule abfolute. SYMMERS V. WASON. 10 Eaft, 328. 2 New. Rep. A 132. "Wason fued by the name of RULE was obtained on a former day calling on the Plaintiff Arrest by the to fhew caufe why the proceedings in this action should not name of Wefon: be fet afide for irregularity, or why a common appearance fhould bene esse against not be entered and the bail-bond be delivered up to be cancelled. Shepherd Serjt. in fupport of the rule, now relied on the two following objections: ift, The Defendant was arrefted by the name of E. Wefton, and the Plaintiff filed a declaration de bene effe against E. Wafon, fued by the name of E. Wefton, which he contended could not be done on bailable process, unless warranted by the Defendant's putting in bail above in a different name from that by which he was arrefted. 2d, The jurat of the affidavit on which the Defendant was held to bail omitted to state the place where it was fworn. Clayton Serjt. contra. HEATH and ROOKE, J. (abfente Eyre, Ch. J.) overruled both objections, and Wefion," and held regular. The Court will not order the delivered up to be cancelled because the place where the affidavit to hold to bail-bond to be bail was fworn, is not mentioned in the jurat. Discharged the rule. years Nov. 20th. 15 Eaft, 599. The Court of has no power to iffue an original tion to reftrain a writ of probibi Common Pleas mitting waste in JEFFERSON v. The Bishop of DURHAM and Others. "ENGLAND, to wit. Be it remembered, that on the Morrow of the Holy Trinity, before the Right Honorable Sir James Eyre Knight, and his Brethren Juftices of our Lord the King of the bench at Westminster, cometh Thomas Jefferson, in his own proper perfon, and giveth the Court here to under- bishop from comftand and be informed, that whereas the Right Reverend Shute the poffeffions Lord Bishop of Durham now is and for the space of five of his fee: at now laft paft hath been Bishop of Durham, and during all of an unintethat time hath been and ftill is feifed in his demefne as refted perfon. Semb. That no of fee in right of his bishopric of Durham, of and in a court of common certain wood, or parcel of wood ground, called Walkington law has that Eaft Wood, in Walkington in the county of York, as belonging the Court of power. Qu. If to and parcel of the poffeffions of his bishopric, containing divers, Chancery has (to wit,) 192 acres and one rood, and wherein during all the leaft at the fuit not? 1797. JEFFERSON บ. Bishop of DURHAM. the time aforefaid, until the wafte hereinafter mentioned, were large quantities of timber and wood growing, and in part whereof there are ftill divers large quantities of timber and wood growing; and that John Lockwood, Gentleman, now holds and during all the time laft aforefaid hath held the faid wood or parcel of wood ground called Walkington Eaft Wood, as lefke or tenant thereof, under the faid Bishop of Durham: And whereas by the law of this land, bishops, or their leffees or tenants, or any other perfon or perfons by their or any of their licence or authority, ought not to commit wafte in the wood or wood grounds belonging to and parcel of the poffeffions of the bithoprics of fuch bifhops respectively; the faid Thomas Jefferfon farther gives the Court here to understand and be informed, that the faid Bishop and the faid John Lockwood, during the time aforefaid, agreed between themfelves to fell the timber and wood growing in the faid wood or parcel of wood ground, and to divide the money arifing from the fale thereof between them in certain proportions; that is to fay, one-third thereof to the faid Bishop, and the other two-thirds thereof to the faid John Lockwood; and in confideration thereof to permit, fuffer, and authorize fuch timber and wood to be cut down, felled, and taken away by the vendees thereof to their own ufe; and the faid Bishop and John Lockwood have alfo agreed to grub up, eradicate, and deftroy the timber and wood growing on the faid wood or parcel of wood ground, and to convert the ground and foil thereof into arable, meadow, or pafture; and the faid Bishop and John Lockwood, or one of them, in purfuance of fuch agreement, have or hath fold the timber and wood growing in the faid wood or parcel of wood ground to Leathem and William Briggs, for a large fum of money, to wit, the fum of 3000l. to be therefore paid by the faid -Leatham and William Briggs to the said Bishop and the faid John Lockwood, or one of them; and in confideration thereof have permitted, fuffered, and authorized the faid - Leatham and William Briggs to cut down, fell, and take away to their own ufe, the faid timber and wood; and by virtue of the faid fale, permiffion, and authority, the faid Leatham and William Briggs have cut down, felled, and taken away to their own ufe, the timber and wood growing, in great part, (to wit,) 138 acres of the faid wood or parcel of wood ground; and the faid Bifhop and John Lockwood, or one of them, have or hath caufed the faid laft-mentioned timber and wood to be grubbed up, eradicated, and deftroyed, in order order to convert, and have in fact converted the ground and foil of the faid laft-mentioned part of the faid wood or wood ground into arable, meadow, or pafture; and the faid Leatham and William Briggs have declared, that they will, and do proceed to cut down, fell, and take away to their own ufe, by virtue of the tad fale, permiffion, and authority, the timber and wood growing in the refidue of the faid wood or parcel of wood ground; and the faid Bifhop and the faid John Lockwood do intend to proceed in causing the fame timber and wood in the faid refidue of the faid wood or parcel of wood ground, to be grubbed up, eradicated, and deftroyed, and in converting the ground and foil thereof into arable, meadow, or pafture. Whereupon the Laid Thomas Jefferson hereby humbly imploring the aid of this Court, prayeth a remedy and the writ of our Lord the King of prohibition, to prohibit the faid Bishop, the faid John Lockzood, and the faid Leatham and William Briggs from doing any further wafte in the faid wood or parcel of wood ground, by cutting down or felling the faid timber and wood there growing, or by grubbing up, eradicating, or deftroying the timber and wood there growing, or converting the ground and foil thereof into arable, meadow, or pafture. And it was granted, &c." The circumftances under which the prefent application was made, as appeared from the affidavits on both fides, were as follow: The wood in queftion, of which Mr. Lockwood had been leffee under the late, and is now leffee under the prefent, Bishop of Durham, had, previous to the year 1793, been fubject to certain rights of pafturage in the owners and occupiers of houfes and lands in Walkington. About that time an act was paffed for the inclofure of the waftes, open fields, and commons in Walkington, and Eaft Wood was comprehended therein. In the affidavits in fupport of the rule, it was ftated that at the time the above inclofure took place, affurances had been given by Mr. Lockwood, that the wood in queftion would not be cut down; but this was denied by thofe on the other fide, and proof adduced of Mr. Lockwood's ever having exercifed the right of cutting timber in East Wood. There was no denial of the agreement complained of in the fuggeftion, between the Bishop and Mr. Lockwood for cutting down the wood; but on the part of the Bifhop it was fworn, that the wood was in a very decayed ftate; that feventy out of the 192 acres of which it confifted were to be replanted, which 1797 JEFFERSON ข. Bishop of DURHAM. would 1797. JEFFERSON ย. Bishop of DU RHAM. would produce timber of greater value than the whole then ftand-, ing; and that the refidue being employed in hufbandry would be for the advantage of the fee. It appeared, moreover, that Jefferfon, in whofe name the application was made, was, with refpect to the wood in queftion, an uninterested perfon. In Trinity term, Le Blanc Serjt. obtained a rule to fhew caufe why the prohibition fhould not iffue, which was enlarged till this term; the parties undertaking not to fell any timber in the mean time. Accordingly, in this term, Shepherd, Heywood, Williams, and Palmer, Serjts. fhewed cause against the rule, which was fupported by Adair, Le Blanc and Cockell, Serjts. The counfel who oppofed the rule, argued in the following manner: This queftion may be divided into three heads, 1ft, Whether a prohibition to stay wafte directed to a bishop, can iffue out of any court of common law: 2dly, Suppofing that any court of common law may grant it, whether it can iffue out of the Court of Common Pleas : 3dly, Suppofing the Court of Common Pleas to have the power, whether they will grant it under the circumftances of the prefent cafe. ift, At common law wafte could be committed by three perfons only, tenants in dower, guardians in chivalry, and tenants by the curtefy, Co. Litt. 53. b. 54. a. 2 Inft. 299. and fome have doubted as to the latter (a). By Stat. Marlebridge, 52 Hen. 3. c. 23. and Stat. Gloucefter, 6 Ed. 1. c. 5. a writ of prohibition of wafte was given against all tenants for life and tenants for years. The Stat. Weft. 2. 13 Ed. 1. c. 14. took away the writ of prohibition of wafte in all cafes, and fubftituted a writ of fummons. 2 Inft. 389. By another claufe of the Stat. Glouc. viz. c. 13. a writ of eftrepement pendente placito was given; but according to Lord Coke, 2 Inft. 328. that is to be fued out of the Court of Chancery, or the Court in which the plea is pending: feveral forms of this writ may be feen in the Register, 76, 77. which are not founded on the common law, but are all contrà formam ftatuti; befides here, no plea is pending. After judgment indeed, a writ of eftrepement lies at common law, Reg. 77. Reg. Judic. 13. 2 Inft. 319. but it is equally obvious that fuch a writ does not apply to the prefent cafe. Again another prohibition (b) lies by the 35 Ed. 1. Stat. 2. Ne rector profternat arbores in cameterio, &c. (a) Reg. 72, 73. Bro. Abr. tit. Wafie. pl. 88. 2 Inf. 145. F. N. B.56. (6) For a precedent of this writ, fee Thompson's Entries, 240. |