that the precise point which now arises, viz. whether this payment after a previous act of bankruptcy was or was not a real and bona fide payment, not being a fraudulent preference, has not been submitted to the consideration of the jury; and that the plaintiffs have the right to have their opinion upon that fact. We therefore think the rule for a new trial should be made absolute. Rule absolute (a). (a) See Cook v. Rogers, 5 Moore & Payne, 353; S. C. 7 Bing. 438. 1833. ROBSON v. ROLLS. KNIGHT v. BROWN. THIS was an action on the case, to recover the price of a gig which had been hired by the defendant of the plaintiff, and, through the negligence of the former, broken to pieces by running against a brewer's dray, and consequently never returned. The declaration also contained counts for the hire of horses, &c. The defendant pleaded the general issue to the whole declaration. At the trial before Mr. Justice Gaselee, at the Sittings at Guildhall during the present term, the first two counts of the declaration were abandoned, and a verdict was taken for the plaintiff for 167. 16s., on the counts for the use and hire of the horse and gig, and for the defendant on the others. taxation of the costs, the Prothonotary disallowed plaintiff the costs of the abandoned counts, but refused to deduct the costs of the issues found for the defendant from the plaintiff's costs, on the ground that distinct issues were not raised on those counts upon which he had a verdict, there being only a plea of the general issue to the whole declaration. On the 1833. KNIGHT ย. BROWN. Mr. Serjeant Coleridge, on a former day in this term, obtained a rule nisi that the Prothonotary might be directed to review his taxation in this respect. He referred to Reg. Gen. Hilary Term, 2 Will. 4, s. 74, by which it is ordered that " no costs shall be allowed on taxation to a plaintiff upon any counts or issues upon which he has not succeeded; and the costs of all issues found for the defendant shall be deducted from the plaintiff's costs." He also referred to the case of Cox v. Thomason (a), where it was decided that a distinct issue is raised upon each count by the general issue pleaded to the whole declaration. There, the declaration, which was in case, contained eighteen counts, nine for a malicious prosecution, and nine for slander. The defendant pleaded the general issue. The jury found for the plaintiff on three counts, with forty shillings damages; and for the defendant on the remaining fifteen; and the postea was entered accordingly. The Master in taxation disallowed the plaintiff's costs on the fifteen counts on which the defendant had a verdict, but did not deduct the defendant's costs on those counts from the plaintiff's costs. On motion to review the taxation, Mr. Baron Bayley expressed his opinion that each count was a separate issue within the meaning of the rule, so that the costs of the defendant on the fifteen counts ought to have been deducted from the plaintiff's costs: and, on a subsequent day, the learned Baron said that all the Courts agreed that the costs of the issues found for the defendant should be deducted from the plaintiff's costs: and that the true construction of the rule was, that the general issue raised a distinct issue on each count. Mr. Serjeant Wilde, contrà, submitted that the obvious meaning of the rule was, that, where the plea was general to the whole declaration, the plaintiff was only to be allow (a) 2 Cromp. & Jerv. 498; S. C. 1 Dowl. Pr. Cas. 572. ed the costs of those counts or issues that were found for him; but that the defendant was only to have his costs deducted in respect of separate and distinct issues raised on counts found for him. SED PER CURIAM.-All the Judges were consulted on the case of Cox v. Thomason, and the note referred to gives the substance of the decision to which they unanimously The point is therefore settled. came. (a) See Goodburne v. Bowman, post, Vol. 3, p. 69. In an action for a libel, the defendants pleaded the general issue and six special pleas of justification. At the trial, the jury found for the defendants upon the issues raised on five of the special pleas, and for the plaintiff upon the other issues. The plaintiff afterwards obtained a Rule absolute (a). rule for entering judgment non 1833. KNIGHT v. BROWN. WORLEY, Demandant, BLUNT, Tenant. Thursday, Jan. 31st. fused to allow THIS was a writ of right. The demandant counted as The Court renephew and heir of the person last seised, without setting out his pedigree, or shewing how he was heir. The tenant demurred. term, Mr. Serjeant Stephen, on a former day in this moved that the demandant might be at liberty to amend his count. The motion was founded upon affidavits which stated that the mistake which it was sought to rectify arose the demandant in a writ of right to amend his count, by the addition of a step in the de scent, although affidavits were produced, averring merits, and that the omis sion arose from an oversight of from an oversight on the part of the pleader, a gentleman of the pleader. 1833. WORLEY, Demandant, BLUNT, Tenant. 66 considerable experience at the bar; and that the demandant's title accrued within thirty years. The affidavits also set forth the nature of the demandant's title; and merits were sworn to. He referred to Webb, dem., Lane, ten. (a), where, in a count in a writ of right, blanks were left for the name of the demandant's attorney, and for the word esplees," and the count was indorsed in the name of an attorney in the country, without reference to the London agent, and, the tenant having signed judgment of nonpros., the Court set it aside for irregularity, and allowed the demandant to amend, on payment of costs: and Goore v. Goore (b), where, in a writ of right brought in the Common Pleas at Lancaster, in 1820, after demurrer to the count, because the words "as of right" were omitted, upon application to amend, and argument before Mr. Justice Bayley and Mr. Baron Wood, leave was granted; Mr. Baron Wood observing that he could not agree that writs of right were to be discouraged by the Judges, while they remained part of the law of the land; and that he was not for holding it so strict, but that the rule to amend was sometimes to be allowed. [Mr. Justice Bosanquet.-The late Lord Tenterden, when at the bar, was misled, in drawing a count in a writ of right, by a precedent in Rastall, and omitted the words "as of right," and the Court refused to allow the count to be amended (c).] The learned Serjeant submitted that there could be no substantial reason why, so long as the law allowed of this sort of proceeding, amendments should not be permitted in writs of right as in other actions; that, in refusing it, the Court would be acting extrajudicially, and beyond the scope of their authority, and casting a degree of discredit upon a species of remedy sanctioned by the law; and that the affidavits disclosed a case entitling (a) 2 Moore & Payne, 478; S. C. 5 Bing. 285. (b) Roscoe on Real Actions, 179. (c) See Slade v. Dowland, 2 Bos. & Pul. 570; S. C. 5 East, 272; 1 Smith, 543. the demandant to the favour of the Court, no laches being imputable to him. A rule nisi was granted, Lord Chief Justice Tindal observing that the fact of the demandant's right having accrued within thirty years afforded some colour for the motion. Mr. Serjeant Goulburn now shewed cause.-All the authorities except one are adverse to the application. In Williams's Saunders it is said (a): "It is an established rule, that, in all real actions brought by an heir on the seisin of his ancestor, the demandant must shew how he is heir; it is not enough to say he is heir to such a one generally, but he must set forth specially in what manner and how he is heir; and that too with accuracy and correctness, otherwise it will be bad on demurrer, or after judgment for the demandant by default, or on demurrer”—citing Slade v. Dowland (b). And the same author again says: "It is an established rule in the Common Pleas not to suffer the demandant to amend the count or to discontinue the action"-citing Charlwood v. Morgan (c), Dumsday v. Hughes (d), and Maidment v. Jukes (e). In Charlwood v. Morgan, the Court refused to allow the demandant to amend the mistake of a Christian name in the count, though an affidavit accounting for the mistake was produced; or to give leave to discontinue the suit. Lord Chief Justice Mansfield said: "Had not this been a proceeding by writ of right, the Court would have been willing to amend the mistake that has arisen, and into which the most careful pleader might have fallen. But, considering the nature of this proceeding, how much it has always been discouraged, how much tenants have been per (a) 2 Wms. Saund. 45 g, n. East, 272; 1 Smith, 543. (c) 1 Bos. & Pul. 64. (e) 2 New Rep. 429. 1833. WORLEY, Demandant, BLUNT, Tenant. |