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1797.

II10.

ALMGILL

PIERSON.

had against demandants. Newman v. Goodman (a), 2 Bl. 1093.

The reason why we did not proceed to trial at the last Summer aflizes was, that we shortly expected to obtain material evidence from France, viz. the Baptismal Register of the elder Pierson, whose legitimacy was to be disputed. This case differs from all others, for where issue 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 question is 3000l. a-year.

It was stated by Rooke J. that an application had been made to him by the tenants, for leave to examine a witness on interrogatories, who was going to Naples with her husband and child, to which the demandants refused to consent.

EYRE Ch. J. In a common cafe I should have been inclined to think the excuse set up by the demandants sufficient : but the measure which they mete to others we shall mete to them. When they had the staff in their hands they tried to put difficulties in the way of the tenant, and made them risk the loss 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 should be inclined to give more indulgence to the tenants than to the demandants, who come in this case to disturb 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 suppofing that they will be able to proceed at the next affizes. I think the Court ought to adhere to the principle of a cafe (6) decided in last Easter term, where an application for putting off a trial was refused, because the Defendant had not conducted himself fairly and candidly.

Heath J. I am of the fame opinion. Having refused justice to others, the demandants are not in a ftate to claim

any

indulgence from us. Moreover, as the parishes in France are now fuppressed, 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 those who make the attack ought to be very well prepared to support it. In what

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(a) In that case however the rule for only question before the Court was, whether judement as in case of a nonsuit had been the tenant was entitled to costs. made absolute without oppostios, and the (1) F. N, B. N.

b) Saunders v. Pittman, ante 33.

paffed

1797.

pafled before me, I think the demandants behaved very ill.

ill. On general principles therefore, as well as on this particular case, I think they can claim no indulgence.

Rule absolute.

ALMGILC

PIERSON.

Nov. 16th,

SYMMERS V. Wason.

10 Eas, 328.

2 New. Rep.

132.

the name of

A RULE was obtained on a former day calling on the Plaintiff Arreft by the

to shew cause why the proceedings in this action should not name of W-Nons be set aside for irregularity, or why acommon appearance should bene ele against

Wafon sued by not be entered and the bail-bond be delivered up to be cancelled.

Shepherd Serjt. in support of the rule, now relied on the two Weston," and following objections: ift, The Defendant was arrested by the The Court will name of E. Weston, and the Plaintiff filed a declaration de bene not order the elle againft E. Wafon, sued by the name of E. Weston, which he delivered up to contended could not be done on bailable process, unless warranted be cancelled beby the Defendant's putting in bail above in a different name from where the affithat by which he was arrested. 2d, The jurat of the affidavit on davit to hold to which the Defendant was held to bail omitted to state the place is not mentioned

bail was sworn, where it was sworn.

in the jurel. Clayton Serjt. contrà.

Heath and Rooke, J. (absente Eyre, Ch. J.) overruled both objections, and

Discharged the rule.

Common Pleas

Nov. 20th. JEFFERSON v. The Bishop of Durham and Others.

15 Eaff, 599. "

'NGLAND, to wit. Be it remembered, that on the Morrow The Court of

of the Holy Trinity, before the Right Honorable Sir has no power to James Eyre Knight, and his Brethren Juftices of our Lord the issue an original King of the bench at Westminster, cometh Thomas Jefferson, tion to reftrain a in his own proper person, and giveth the Court here to under- bishop from com. ftand and be informed, that whereas the Right Reverend Shute the possessions Lord Bishop of Durham now is and for the space of five years of his

fee : at

least at the suit now last paft hath been Bishop of Durham, and during all

of an unintethat time hath been and still is feised in his demesne as rested person. of fee in right of his bithopric of Durham, of and in a court of common certain wood, or parcel of wood ground, called Walkington law has that East Wood, in Walkington in the county of York, as belonging the Court of to and parcel of the possessions of his bishopric, containing divers, Chancery has (to wit,) 192 acres and one rood, and wherein during all

the

Semb. That no

1797

JEFFERSON

Bishop of DURKAM.

the time aforesaid, 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 last aforesaid hath held the said wood or parcel of wood ground called Walkington East irood, as leffe or tenant thereof, under the said Bishop of Durham : And whereas by the law of this land, bishops, or their lefsees or tenants, or any other person or persons by their or any of their licence or authority, ought not to commit waste in the wood or wood grounds belonging to and parcel of the poffeffions of the bishoprics of such bishops respectively; the faid Thomas Jeterjen farther gives the Court here to understand and be informed, that the said Bishop and the said John Lockwood, during the time aforesaid, agreed between themfelves to fell the timber and wood growing in the faid wood or parcel of wood ground, and to divide the money arising from the sale thereof between them in certain proportions ; that is to say, one-third thereof to the faid Bithop, and the other two-thirds thereof to the said John Lockwood ; and in confideration thereof to permit, suffer, and authorize such timber and wood to be cut down, felled, and taken away by the vendees thereof to their own use; and the faid Bishop and John Lockwood have also agreed to grub up, eradicate, and destroy the timber and wood growing on the said wood or parcel of wood ground, and to convert the ground and foil thereof into arable, meadow, or pasture; and the said Bishop and John Lockwood, or one of them, in pursuance of fuch agreement, have or hath fold the timber and wood growing in the said wood or parcel of wood ground to - Leathem and William Briggs, for a large sum of money, to wit, the sum 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 said timber and wood; and by virtue of the said fale, permission, and authority, the said — Leathamand William Briggs have cut down, felled, and taken away to their own use, the timber and wood growing, in great part, (to wit,) 138 acres of the said wood or parcelof wood ground; and the said Bishop and John Lockwood, or one of them, have or hath caused the said last-mentioned timber and wood to be grubbed up, eradicated, and defiroyed, in

order

1797.

JEFFERSON

Bishop of DURHAN,

order to convert, and have in fact converted the ground and foil of the faid laft-mentioned part of the said wood or wood ground into arable, meadow, or pasture; 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 use, by virtue of the wd fale, permiflion, and authority, the timber and wood growing in the residue of the faid wood or parcel of wood ground; and the said Bishop and the said John Lockwood do intend to proceed in causing the same timber and wood in the said residue of the said wood or parcel of wood ground, to be grubbed up, eradicated, and destroyed, and in converting the ground and foil thereof into arable, meadow, or pasture. 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 said Bishop, the said John Lockzood, and the said — Leatham and William Briggs from doing any further waste in the said wood or parcel of wood ground, by cutting down or felling the said timber and wood there growing, or by grubbing up, eradicating, or destroying the timber and wood there growing, or converting the ground and foil thereof into arable, meadow, or pasture. And it was granted, &c.”

The circumftances under which the present application was made, as appeared from the affidavits on both fides, were as follow : The wood in question, of which Mr. Lockwood had been leffee under the late, and is now lessee under the present, Bishop of Durham, had, previous to the year 1793, been subject to certain rights of pafturage in the owners and occupiers of houses and lands in Walkington. About that time an act was passed for the inclosure of the wastes, open fields, and commons in Walkington, and East Wood was comprehended therein. In the affidavits in support of the rule, it was stated that at the time the above inclosure took place, afsurances had been given by Mr. Lockwood, that the wood in question would not be cut down; but this was denied by those on the other fide, and proof adduced of Mr. Lockwood's ever having exercised the right of cutting timber in East Wood. There was no denial of the agreement complained of in the suggestion, between the Bishop and Mr. Lockrood for cutting down the Food; but on the part of the Bishop it was sworn, 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

would

1797

JEFFERSON

Bishop of DU RHAM.

would produce timberof greater value than the whole then stand-, ing; and that the residue being einployed in husbandry would be for the advantage of the fee. It appeared, moreover, that Jefferfon, in whose name the application was made, was, with respect to the wood in question, an uninterested person.

In Trinity term, Le Blanc Serjt. obtained a rule to fhew cause why the prohibition should not issue, 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. Thewed cause against the rule, which was supported by Adair, Le Blanc and Cockell, Serjts.

The counsel who opposed the rule, argued in the following manner: This question may be divided into three heads, ist, Whether a prohibition to stay waste directed to a bishop, can issue 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, Supposing the Court of Common Plcas to have the power, whether they will grant it under the circumstances of the prefent cafe.

ift, At common law waste could be committed by three persons only, tenants in dower, guardians in chivalry, and tenants by the curtesy, Co. Litt. 53.b. 54. d. 2 Inft. 299. and some have doubted as to the latter (a). By Stat. Marlebridge, 52 Hen. 3. C. 23. and Stat. Gloucester, 6 Ed. 1. c. 5. a writ of prohibition of waste 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 waste in all cafes, and substituted a writ of fummons. 2 Inft. 389. By another clause of the Stat. Glouc. viz. c. 13. & writ of estrepement pendente placito was given ; but according to Lord Coke, 2 Inft. 328. that is to be sued out of the Court of Chancery, or the Court in which the plea is pending: several forms of this writ may be seen in the Register, 76, 77. which are not founded on the common law, but are all contrà formam ftatuti ; besides herc, no plca is pending. After judgment indeed, & writof eftrepement lies at common law, Reg. 77. Reg. Judic. 13. 2 Inft. 319. but it is equally obvious that such a writ does not apply to the present cafe. Again another prohibition (6) lies by the 35 Ed. 1. Stat. 2. Ne rector projternat arbores in cæmeterio, &c.

(a) Reg. 72, 73.

Bro. Abr. tit. Wafie. pl. 88. 2. Infi. 145. F. N. B.36.

(6) For a precedent of this writ, see Tbompson's Entries, 240.

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