Lord TENTERDEN, C. J.-The nonsuit was right. The conviction was good in substance. By the act, work is to be done from which the parties are, however, allowed to redeem themselves by composition. This was not acted upon here. If paid, it would have been a good defence; but the proceeding must be for not doing the work. Secondly, the surveyor directs the plaintiff to attend with tools. If he had attended without tools, that point might have been raised; but he does not attend at all. Thirdly, he is the occupier of lands. That is sufficient in substance. Whether the question could have been tried which was meant to have been raised, is doubtful. gleby and Arncliffe being both in the same parish, if the liability to repair was several, there should have been separate surveyors. The proper way would have been, to object to the appointing of one surveyor for both districts. The surveyor was appointed for the whole parish. I consider the case with analogy to the poor laws. A person may bring his action on the ground of an entire want of jurisdiction (a). There the jurisdiction is given over persons having property within the parish. In HOLROYD, J.-I entertain considerable doubts, whether the justices had authority to make this order. With respect to the poor rates, where a party is not rateable, the magistrate has no jurisdiction. If notice had been given to a person not having property in the township, the magistrates would have had no jurisdiction, and the question might have been tried in the same way as in the case of a poor rate. Here the property was within the parish, for which the surveyor was appointed (b). 1 LITTLEDALE, J.-I am of opinion, that no action lies against these magistrates. The surveyor was appointed for (a) Vide Milward v. Caffin, 2 W. Bla. 1331. (b) Vide Hutchins v. Chambers, 1 Burr. 580; Bonnell v. Beighton, 1827. FAWCETT v. FOULIS. 1827. FAWCETT v. FOULIS. the whole parish. The party being taken before a magistrate, it is a question whether he should not have pleaded to the jurisdiction. Here he has pleaded only not guilty. Prima facie the magistrates had jurisdiction, and it was therefore the duty of the plaintiff to give evidence before them. Lord TENTERDEN, C. J.-There might have been an appeal to the quarter sessions, where these points might have been decided. (a) And see Rex v. Inhabitants of Buckinghamshire, 2 D. & R. 689, 1 B. & C. 485; Underhill v. Rule refused (a). Ellicombe, M'Clel. & Younge, 450; Chanter v. Glubbe, post. An Irish peer who has voted in the election of representative peers, cannot COATES and another, ASSIGNEES of Cox, a Bankrupt, ON the second day of this term, the Attorney-General obtained a rule, calling upon the plaintiffs to shew cause why the writ of pluries capias issued in this cause should not be set aside, and the bail bond given to the Sheriff of be arrested or the county of Sussex should not be delivered up to be cansued by capias. celled, and why the plaintiffs should not pay the costs of the said bail bond, and of this application to be taxed by the master, and in the meantime proceedings be stayed. This was moved on the affidavit of the defendant, stating that he was a Viscount of that part of the United Kingdom called Ireland (a); that his right to vote in the election of (a) By 40 Geo. 3, cap. 67, article 4, it is enacted that "all peerages both of Great Britain and Ireland, now existing, or hereafter to be created, shall,in all other respects be considered as peerages of the United Kingdom, and that the peers of Ireland, shall, as peers of the United Kingdom, be sued and tried as peers, except as afore the representative peers for Ireland had been allowed by (a) In Lord Banbury's case, 2 Salk. 512; 2 Lord Raym. 1247, the Court refused to grant a supersedeas to an arrest on a latitat, in favour of a defendant who claimed to be a peer, but had never sat in the House of Lords; and in Storey v. Birmingham, 3 D. & R. 488, this Court refused to direct a bail bond to be given up to be cancelled upon the mere fact of the defendant's being an Irish peer, without its being shewn that defendant had ever sat in parliament, or done any act in the character of peer; saying, that before the Court could interfere in that summary way, a clear case of privilege must be made out; and they left the defendant to plead his peerage. In another action against the same defendant brought by the executors of a party who had obtained a judgment against him in Ireland, the defendant filed the following plea. "And Edward Birmingham, Lord Birmingham, baron of Athenry, in Ireland, against whom the plaintiffs have issued their original writ by the name and addition of Edward Birmingham, Esq., in his own proper person, comes and says, that he the said baron, sued as aforesaid, before and at the time of the issuing of the original writ in this cause, was and still is baron of Athenry, in Ireland aforesaid. And this he is ready to verify. Wherefore, he prays judgment of the said writ, and that the same may be quashed, &c." The plaintiffs having replied that the defendant at the time of the issuing of the original writ, was not baron of Athenry modo et formå; the paper book was delivered on the 5th February, with notice of trial for the sittings after term. On the 9th February, a rule was obtained to shew cause why the trial should not be postponed till the sittings after Easter term, on an affidavit stating that in order to establish the defence, it would be necessary to bring witnesses from Ireland, and obtain much evidence from public records, parish registers, and other documents there, without which, he was advised, &c., that he could not safely proceed to the trial of this cause, especially as this deponent was advised, &c., that he could not safely proceed to trial without the testimony of Sir William Betham, Knight, Ulster king at arms, and principal herald of all Ireland, and deputy keeper of the records in Birmingham tower, who was then in Ireland, and could not, as this deponent verily believed, consistently with his the said Sir W. B's. official duties, at that time come to England, nor could this deponent safely proceed to trial without the production by the said Sir W. B. of certain national records, kept in the said Birmingham tower, in the castle of Dublin, which records would not, as this deponent was informed and be 1827. COATES บ. LORD VISCOUNT HAWARDEn. 1827. COATES -v. and that he was entitled to all the rights, privileges, and immunities of an Irish peer (a); that the defendant was arrested at his residence at Brighton, on the 15th SeptemVISCOUNT ber, 1827, by an officer of the Sheriff of Sussex, and that HAWARDEN. he had been discharged from that arrest upon a represen LORD tation of his privilege; that he immediately forwarded a strong remonstrance to the Sheriff, notwithstanding which he had been again taken under the same process on the 24th September, upon which occasion he had given a bail bond accompanied with a protest against the regularity of lieved, be intrusted to the care of any other person than the said Sir W. B.; that he purposed leaving London the following day, and to proceed forthwith to Ireland for the purpose of collecting the needful evidence in the support of his defence, but that it would not be possible to be prepared for trial at the time, for which, notice of trial had been given; that he expected that he should be able to obtain the attendance of the said Sir W. B,, and the production of the said documents and other necessary evidence for the trial of the cause for the sittings after next Easter term. On the last day of Hilary term, cause was shewn against the rule by Manning, who urged that the defendant after suffering a judgment to pass against him in Ireland by the name of Edward Birmingham, Esq., had no right to require that the executors of his ereditor should try a question of peerage, and that a party who puts in a plea in abatement, should be prepared to establish his plea, and not occasion further delay by such an application as the present. Manning was stopped by the Court, who asked Chitty, who supported the rule, whether his affidavit stated that the peerage had devolved on the defendant subsequently to the judgment in Ireland; Chitty admitted that this was not sworn: but he stated from his own knowledge, that the fact was so, and added, that from the form of the judgment it appeared to be on a warrant of attorney. The Court then desired Chitty to direct his argument to the increased delay. On this point he contended that an application to put off a trial on account of the absence of a material witness was a matter of course. The Court, however, said that although there might be cases in which it would be reasonable to postpone the trial of a plea in abatement, yet that in general, where a party puts on the record, a plea unconnected with the merits, he ought to be prepared with evidence to support it; and that the indulgence now prayed for, would be contrary to the spirit of the act of parliament on dilatory pleadings; and they discharged the rule. Wade and another, executors, &c. v. Birmingham. Ed. MSS. (a) See information in the Starchamber, for arresting the Countess the proceedings (a). The Court in granting the rule, said that they entertained no doubt as to the defendant's privilege. 1827. COATES V. LORD VISCOUNT Gurney now appeared to shew cause, but said he would HAWARden. not oppose the rule being made absolute with costs as prayed, provided the defendant would undertake to bring no action. This proposal being acceded to by the AttorneyGeneral, who, with Langslow, was to have supported the rule, the Court pronounced the Rutland, 6 Co. Rep. 52 b, 54 a, where it is said, that a severe sentence was passed upon the serjeants-at-mace, though it does not appear what that sentence was. No process against a peer containing even a formal capias, can be supported; Couche v. Lord Arundel, 3 East, 127; Fortnam v. Lord Rokeby, 4 Taunt. 668; Briscoe v. Lord Egremont, 3 M. & S. 88; and in the Countess of Huntingdon's case, 1 Ventr. 298, the attorney was committed for suing out such process. In Davis v. Lord Rendlesham, 7 Taunt. 679; 1 J. B. Rule absolute. Moore, 410, the Court of C. P. re- 2 Lev. 72. (a) It appeared also by the defendant's affidavit, that the whole debt except 4l., had been received by Cor before his bankruptcy. VICE against the RIGHT HONORABLE ANN MARGARET VISCOUNTESS DOWAGER ANSON. 7B38 489 ASSUMPSIT for goods sold and delivered, work and labour, with the common money counts. Plea, non-assumpsit. This was an action brought by the plaintiff, a A. pays money for shares in a mine to B., describing himself as treasurer of the mine, and receives from persons calling themselves directors, a memorandum purporting that A. is a proprietor of shares, and that his name is entered in the cost book. A. in writing, and in conversation, acknowledges himself to be a shareholder and receives money from B. as treasurer, on account of supposed profits, but no deed is executed, nor is there an assignment of any interest in the mine from the lessee thereof. Held, that A. is not liable for supplies furnished the mine, unless furnished on his credit. VOL. I. |