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1827.

NOWELL

V.

ROAKE.

said Court of our said lord the king, before the king himself, before the term in which the said judgment of the said Court of the Bench was given, that is to say, the same writ of error was returnable in Easter terny, in the eighth year of the reign of our said lord the king ; and the said judgment of the said Court of the Bench was given and obtained in Trinity term in that year; without this, that after the giving the said judgment in the said third plea mentioned, the record and proceedings in the said third plea mentioned, were brought into the said Court of our said lord the king, before the king binself, by virtue of the said supposed writ of our said lord the king, for correcting errors therein, in manner and form as the said plaintiff hath, in his said replication to the third plea alleged: and this, &c., verification and prayer of judgment. Similar rejoinder to replication to fourth plea. Sur-rejoinder, taking issue on the traverses in the rejoinders. At the trial before Park, J., at the last assizes for the county of Surrey (a), the plaintiff, in support of the issues on the special traverses, produced the return made by the Chief Justice of the Common Pleas, to the writ of error, shewing that the transcript was brought in after the taxation of costs. Evidence was also given of the costs in error, and of the costs attending the execution of the writ of habere facias possessionem, as between attorney and client. It was objected for the defendants that the issues on the traverses ought to be found for the defendant, inasmuch as the writ of error was sued out before the costs were taxed and judgment signed in the Court below : and that no costs are given by statute upon a judgment of reversal. The learned Judge having overruled these objections, a verdict was found for the plaintiff, with 5101. damages,

Gurney now moved for a rule to shew cause why a verdict should not be entered for the defendant on some of the issues, or why the damages should not be reduced by 2101.,

(a) Counsel for the plaintiff, defendants, Gurney and Chitty. Marryat and Barnewall; for the

1827.

NOWELL

ROAKE,

being the amount of the costs in error. The defendants moved to quash the writ of error (a), but came too late, having, before the application, joined in error. Error is now pending in the House of Lords. The writ of error having been brought prior to the judgment in C. P., that issue ought to have been found for the defendants (6). [Bayley, J. It is no matter when the writ of error was sued out. A judgment in C.P. of Trinity term might have been reversed upon it. It is all right]. Then as to the 2101. the defendant ought not to be required to pay costs occasioned by the error of the court. Costs are not given by the statute. [Bayley, J. The question is, whether they are not damages sustained by the plaintiff, by reason of his being wrongfully kept out of possession). In Bell v. Potts (c), it was held, that where the plaintiff recovered a verdict, and had judgment in the Common Pleas, as the judgment was reversed in this court, the defendant could not have costs. [Lord Tenterden, C. J. We are taking it for granted, that a court of error could not give costs]. The verdict included costs as between attorney and client. If after the plaintiffs had recovered judgment in this cause, the judgment of reversal in this court should be reversed in the House of Lords, there would be actions backwards and forwards. [Bayley, J. Upon such reversal you might have an auditá querela (d), to restore you to what you had lost in the present action.]

(a) See the argument in this pl. 638 ; Error, pl. 66; Proces, pl. Court upon the writ of error brought 129, 160 ; Severance, pl. 23; Bro. upon the special verdict, 8 D. & R. Damages, pl. 38; Executors, pl. 514, and 5 B. & C. 720, and the 42 ;Dyer, 194 a, 297 b;5 Co. Rep. motion to quash the writ of error, 86; Fra. Moore, 536, 811; Cro. on the ground that it was return- Eliz. 4, 233; Cro. Jac. 29; Hob. able before judgment given in the 2, 383 ; Bulstr. 97, S.C.; Finch Court below, 5 B. & C. 735, n. Law, 488, 9; Sir W. Jones, 90,

(6) This objection seems to as- 377, 378; H. 2 H. 4, fo. 17, pl. sume, that the inducement to the 28; Longo Quinto, 118 ; M.2 R. special traverse, was in issue. 3, fo. 1, pl. 3; 1 Sid. 351 ; 1 Roll. (c) 5 East, 49.

Abr. 306 (B) pl. 6, 7, 8, 10, (C) (d) As to which, see Co. Litt. pl. 1, 2, 4, 582, 604; 1 Salk. 92, 100 a ; F. N. B. 104 B., 233 A., 93, 264; 1 Lord Raym. 439; 1 237 I., 239, 240 B.; Fitz. Brief, Mod. 111, 170; Gilb. C. B. 103,

1827.

NowELL

Lord TENTERDEN, C.J.-These costs are the consequence of keeping the plaintiff wrongtally out of possession. I see no objection to the plaintiff's recovering them, as between attorney and client. Here they could not be taxed at all.

ROAKE.

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BAYLEY, J.-The pendency of a writ of error in the House of Lords does not vary the case.". The Plaintiff always has the costs of the writ of possession.

The other Judges concurring,

Rule refused.

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The King v. The INHABITANTS of the Township of

FYLING DALES.
Under the THE presentation stated, that John Wharton, esquire,
Highway Act,
13 Geo. 3, c.

one of his Majesty's justices, &c., upon information upon 78, s. 14, a

oath of William Raine, the surveyor of the highways for
justice of the
peace cannot the township of Thornton le Beans, in (a) the North Riding
present a road in the county of York, which township is 35 miles distant
upon the infor- from the township of Fylingdales, did present that on the
matic surf anys 1st day of July, 1826, and long before, there was, and from
of highways thence continually had been, and still was, a certain com-
than the sur-
veyor of high- mon king's highway, leading from the town of Sneaton, in
ways appoint- the said riding, towards and to the market town of Scar-
particular borough, in the said riding, used for all the liege subjects
Ship, or place, of our said lord the king to go, return, pass, and repass,
where the
road lies.

3d edition ; 4 Burr. 2287; 2 Stra. Raym. 335; 2 Sell. Pra. 254.
1197 ; 1 Wils. 98; 2 Marsh, 37. And for practical directions, see
And see the proceedings on an Lee, Dict. Pra. 125. .
audita querelá, between Dr. Ban- (a) The words in italics were di-
croft and Sir Edward Heron, Ball's rected to be inserted by an order
MSS. 139;

1 Burt. 296 ; and be- for amending the record, made at tween Lord Porchester and Petrie, York, by Mr. J. Bayley; but the 2 Wms. Saund. 148, b. And see amendment having been omitted the forms, Co. Ent. 87 a, 88, 91, to be made in the Nisi Prius re238; Aston, Ent. 136, 142 ; Herne, cord, the motion in arrest of judge 52, 56 ; Towns. Judgm. 3, 6, 7; ment proceeded upon the record Hans. Ent. 140, 156, 159 ; 3 Lord in its original form.

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on foot and on horseback, and with cattle, carts, and car- 1827. riages, at their will and pleasure; and that a certain part The King of the said king's highway, situate and being in the town

FYLINGDALES. ship of Fylingdales, in the said riding, beginning at a certain gate in the said highway called Red Gate, situate, &c., and extending from thence, in a south-eastwardly direction, towards, &c., and containing in length divers, to wit, 7553 yards, in breadth divers, to wit, four yards, on the said 1st day of July, 1826, and from thence continually until this day, at the said township of Fylingdales, was, and still is very ruinous, miry, deep, broken, and in great decay, for want of needful and necessary reparation and amendment thereof, so that the liege subjects of our said lord the king, through the same way, with their horses, coaches, carts, and carriages, could not, during the time last aforesaid, nor yet can, go, return, pass, and repass, ride, and labour, without great danger of their lives and loss of their goods, to the great damage and common nuisance of all the liege subjects of our said lord the king, through the same way going and returning, passing and repassing, riding and labouring, against the form of the statute, &c., and against the peace, &c. The second count omitted the termini of the road. The third count stated that Fylingdales repaired the roads within it, and that the road was within Fylingdales. Plea, not guilty.

This presentment having been removed into the court of King's Bench by certiorari, came on to be tried at the last Spring assizes for the county of York, before Bayley, J. (a); when the defendants were convicted. In Easter term, J. Williams obtained a rule, calling upon the prosecutor to shew cause why the judgment should not be arrested, on the following grounds:—first (6), that the presentment did not allege that the surveyor's information upon oath, was made before the presenting justice ; secondly, that the

(a) Counsel for the prosecution, removed by the amendment (ante, Scarlett and Alerander ; for the de- 176 note (a),) though it would asfendant, J. Williams and Starkie. sume a somewhat different shape. (6) This objection would not be VOL. I.

N

1827.

The King

surveyor of the highways, upon whose oath the presentment was founded, was described as the surveyor of the highways in the North Riding of Yorkshire, and not of any particular parish or township.

V.

FYLINGDALES.

Alexander (with whom was Scarlett, A. G.), now shewed cause. The question intended to be raised is, whether the surveyor of a parish, township, &c., has a right to present a highway lying out of such parish, &c. The books contain no case upon the subject, and the question, therefore, depends upon the construction of the 24th section (a) of the Highway Act, (13 Geo. 3, c. 78). Now

(a) “Every justice of assize, jus- may come in question; and that tices of the counties Palatine of

every such presentment made by Chester, Lancaster, and Durham, any such justice of assize, counand of the great sessions in Wales, ties Palatine, great sessions, or of shall have authority by this statute, the peace, upon his own view, or upon his or their own view, and upon such information having been every justice of the peace, either given, to such justice of the peace, upon his own view, or upon infor- upon the oath of such surveyor of mation upon oath to him given, by the highway as aforesaid, shall be any surveyor of the highways, to as good, and of the same force, make presentment, at their respec- strength, and effect in the law, as tive assizes or great sessions, or in if the same had been presented and the open general «quarter sessions, found by the oaths of twelve men; of such respective limit, of any and that for every such default or highway, causeway, or bridge offence so presented as aforesaid, not well and sufficiently repaired the justices of assize, counties Paand amended, or of any other de- latine, and great sessions, at their fault or offence committed and done respective courts, and the justices contrary to the provision and in- of the peace at their general quartent of this statute, and that all ter sessions, shall have authority to defects in the repairs thereof, shall assess such fines as to them shall be presented in such jurisdiction, be thought meet: saving to every where the same do lie, and not person and persons that shall be elsewhere; and that no such pre- affected by any such presentment, sentment, nor any indictment for his, her, or their lawful traverse to any such default or offence, shall the same presentment, as well with be removed by certiorari, or other respect to the fact of non-repair, wise, out of such jurisdiction, till as to the duty or obligation of resuch indictment or presentment be pairing the said highways, as they traversed, and judgment thereon might have had upon any indictgiven, except where the duty or ment of the same, presented and obligation of repairing the said found by a grand jury; and the highways, causeways, or bridges, justices of the peace at their

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