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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 term, 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 himself, 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 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 5107. damages.

costs.

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., defendants, Gurney and Chitty.

(a) Counsel for the plaintiff, Marryat and Barnewall; for the

The defendants

being the amount of the costs in error.
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 (b).
[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 2107.
the defendant ought not to be required to pay costs occa-
sioned 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 auditâ querelâ (d), to restore you to what you had
lost in the present action.]

(a) See the argument in this Court upon the writ of error brought upon the special verdict, 8 D. & R. 514, and 5 B. & C. 720, and the motion to quash the writ of error, on the ground that it was returnable before judgment given in the Court below, 5 B. & C. 735, n.

(b) This objection seems to assume, that the inducement to the special traverse, was in issue.

(c) 5 East, 49.

(d) As to which, see Co. Litt. 100 a; F. N. B. 104 B., 223 A., 237 I., 239, 240 B.; Fitz. Brief,

pl. 638; Error, pl. 66; Proces, pl.
129, 160; Severance, pl. 23; Bro.
Damages, pl. 38; Executors, pl.
42; Dyer, 194 a, 297 b; 5 Co. Rep.
86; Fra. Moore, 536, 811; Cro.
Eliz. 4, 233; Cro. Jac. 29; Hob.
2, 383; 2 Bulstr. 97, S. C.; Finch
Law, 488, 9; Sir W. Jones, 90,
377, 378; H. 2 H. 4, fo. 17, pl.
28; Longo Quinto, 118; M. 2 R.
3, fo. 1, pl. 3; 1 Sid. 351; 1 Roll.
Abr. 306 (B) pl. 6, 7, 8, 10, (C)
pl. 1, 2, 4, 582, 604; 1 Salk 92,
93, 264; 1 Lord Raym. 439; 1
Mod. 111, 170; Gilb. C. B. 103,

1827.

NOWELL

บ.

ROAKE.

1827.

NOWELL

v.

ROAKE.

Lord TENTERDEN, C, J.-These costs are the consequence of keeping the plaintiff wrongfully 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.

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.

Highway Act,

The KING v. The INHABITANTS of the Township of
FYLINGDALES.

Under the THE presentation stated, that John Wharton, esquire, one of his Majesty's justices, &c., upon information upon oath of William Raine, the surveyor of the highways for 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 out of repair,

13 Geo. 3, c. 78, s. 14, a justice of the peace cannot

other surveyor

of highways

than the sur

upon the infor- from the township of Fylingdales, did present that on the mation of any 1st day of July, 1826, and long before, there was, and from thence continually had been, and still was, a certain comveyor 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 Scarborough, in the said riding, used for all the liege subjects of our said lord the king to go, return, pass, and repass,

ed for the particular parish, town

ship, or place, where the road lies.

3d edition; 4 Burr. 2287; 2 Stra.
1197; 1 Wils. 98; 2 Marsh, 37.
And see the proceedings on an
auditá querela, between Dr. Ban-
croft and Sir Edward Heron, Ball's
MSS. 139; 1 Burt. 296; and be-
tween Lord Porchester and Petrie,
2 Wms. Saund. 148, b. And see
the forms, Co. Ent. 87 a, 88, 91,
238; Aston, Ent. 136, 142; Herne,
52, 56; Towns. Judgm. 3, 6, 7;
Hans. Ent. 140, 156, 159; 3 Lord

Raym. 335; 2 Sell. Pra. 254.
And for practical directions, see
Lee, Dict. Pra. 125.1

(a) The words in italics were directed to be inserted by an order for amending the record, made at York, by Mr. J. Bayley; but the amendment having been omitted to be made in the Nisi Prius record, the motion in arrest of judgment proceeded upon the record in its original form.

on foot and on horseback, and with cattle, carts, and carriages, at their will and pleasure; and that a certain part of the said king's highway, situate and being in the township 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 (b), 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, Scarlett and Alexander; for the defendant, J. Williams and Starkie.

(b) This objection would not be

VOL. I.

N

removed by the amendment (ante,
176 note (a),) though it would as-
sume a somewhat different shape.

1827.

The KING

บ.

FYLINGDALES.

1827.

The KING

บ.

FYLINGDALES.

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.

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, justices of the counties Palatine of Chester, Lancaster, and Durham, and of the great sessions in Wales, shall have authority by this statute, upon his or their own view, and every justice of the peace, either upon his own view, or upon information upon oath to him given, by any surveyor of the highways, to make presentment, at their respective assizes or great sessions, or in the open general quarter sessions, of such respective limit, of any highway, causeway, or bridge not well and sufficiently repaired and amended, or of any other default or offence committed and done contrary to the provision and intent of this statute, and that all defects in the repairs thereof, shall be presented in such jurisdiction, where the same do lie, and not elsewhere; and that no such presentment, nor any indictment for any such default or offence, shall be removed by certiorari, or otherwise, out of such jurisdiction, till such indictment or presentment be traversed, and judgment thereon given, except where the duty or obligation of repairing the said highways, causeways, or bridges,

may come in question; and that every such presentment made by any such justice of assize, counties Palatine, great sessions, or of the peace, upon his own view, or upon such information having been given, to such justice of the peace, upon the oath of such surveyor of the highway as aforesaid, shall be as good, and of the same force, strength, and effect in the law, as if the same had been presented and found by the oaths of twelve men ; and that for every such default or offence so presented as aforesaid, the justices of assize, counties Palatine, and great sessions, at their respective courts, and the justices of the peace at their general quarter sessions, shall have authority to assess such fines as to them shall be thought meet: saving to every person and persons that shall be affected by any such presentment, his, her, or their lawful traverse to the same presentment, as well with respect to the fact of non-repair, as to the duty or obligation of repairing the said highways, as they might have had upon any indictment of the same, presented and found by a grand jury; and the justices of the peace at their

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