1825. Nov. 17th. BROOKES V. DAVIES. A paper in the ASSUMPSIT on a bill of exchange against the acceptor. form of a receipt, After the formal proof on the part of the plaintiff; a wit if it is not given in evidence as a ness was called for the defendant, who stated, that after receipt does not require a stamp. the bill was due, he took twenty yards of cloth to the plaintiff's house, together with a paper in this form:— The cloth and the paper were delivered to a lady, who took them both up stairs; and, when she came down, said, that Mr. Brookes would see Mr. Davies. Vaughan, Serjt. objected to hearing what the lady said. They should call her as a witness. Wilde, Serjt. She is the plaintiff's wife. Vaughan, Serjt.-That is not proved. Wilde, Serjt.-We may prove what was said at the time. BEST, C. J., thought it might be proved as a fact. The witness told the lady, that, as the bill was receipted, he must take it back. Upon which she fetched it for him, but retained the cloth. read the paper. It was then proposed to Vaughan, Serjt., objected, that it did not appear that it had ever come to the hands of the plaintiff. BEST, C. J. was of opinion, that, under all the circumstances, it ought to be received. Vaughan, Serjt. then objected, that it had no stamp. Wilde, Serjt.—I do not offer it as a receipt. BEST, C. J.-I determined once upon the Oxford Circuit, and I believe my decision was never questioned, that a paper not put in as a receipt, does not require a stamp. Verdict for the plaintiff. Vaughan, Serjt., and Richards, for the plaintiff. Wilde, Serjt. for the defendant. [Attornies-Henson, and Abrams.] 1825. BROOKES v. DAVIES. BEFORE BEST, C. J., AND BURROUGH, PARK, AND TOOTH, Demandant, v. BAGWELL, Tenant. WRIT OF RIGHT.—On the jurors in this case being called, it appeared that two of the knights who had chosen the grand assize were absent; one in the country, and the other from indisposition. Nov. 21st. On the trial of the four knights who return the a writ of right, grand assize, must themselves attend and sit with twelve of The Court intimated an opinion, that the cause could the jurors whom not proceed without them. they return; a jury of sixteen, so constituted, being by law required for the assize are not Bosanquet and Taddy, Serjts., for the demandant, con- trial, and any tended, that it was sufficient if any sixteen of the jurors attended, and that it was not necessary for all the knights to form a part of the jury. The authorities referred to sixteen of the On an affidavit cumstances, age and expected death of witnesses, the Court will depart from their general rule, not to try a writ of right in an issuable term. If it appear, on the day appointed for the trial, that one of the four knights is so ill that he not only cannot then attend, but is not likely to be able to attend on a future day, the Court will order the sheriff to summon another knight to act in his stead; and it will not be necessary that any fresh selection of a grand assize should be made by the knights, in consequence of the alteration which takes place in their body. 1825. TOOTH v. BAGWELL. 1826. Jan. 27th. in the course of the argument, were Booth on Real Actions; Moore, 67; 2 Rolle's Abridgment, 674; Year Book, 22 Edw. 3, 18; Cro. Car. 511; 3 Wilson, 541. The Court thought, that all the four knights ought to form a part of the jury for the trial of the case, and were about to direct an adjournment for default of jurors, till a day in Hilary Term, when it was suggested that it must then be again adjourned on account of the practice of the Court never to try a writ of right in an issuable Term. Bosanquet, Serjt., submitted, that the rule was not po sitive. BEST, C. J.-I have consulted the officers of the Court, and find that it is a general rule. A case has been mentioned to me of the King v. Watson, for high treason, which was a trial at bar in an issuable term; but that was done at the application of the Attorney-General, who had a right to require it. Bosanquet, Serjt., then mentioned, that one of their witnesses, a very old person, had died during the progress of the cause; and that others of them were so aged and infirm, as not to be likely to survive much longer. BEST, C. J.-Let an affidavit be made of those facts, and we will relax from our general rule. The case was then adjourned to the quarto die post in the following Hilary Term. On this day the case was again called on, and it appeared, both from the return of the sheriff, and the evidence of a medical gentleman, that Sir George Alderson, one of the four knights, was so indisposed, that he was not only un able to attend then, but was not likely, from the state of his disorder, to be able to attend on any future day. Upon this, the counsel for the demandant applied to the Court either to strike out all that had been done, and direct a commencement de novo, or to order process to issue for the selection of a new knight to fill the place of the one whose attendance could not be obtained. The counsel for the tenant objected to both courses, and contended that the case must be adjourned till the knight should be able to attend. Awrit of right is a vexatious proceeding, and is not entitled to any favour from the Court. In Adams v. Radway, 1 Marsh. 602, L. C. J. GIBBS observes, "the rule which has been adopted, on consideration, is, that as a writ of right generally seeks to disturb a possession which has continued for a considerable length of time, the Court will not assist the demandant in getting over any difficulties that may occur to him." And in the same case Mr.Justice HEATH says, "that a writ of right is in general a very vexatious proceeding." The four knights must choose twelve or more, and there can be no other mode of trial except by the four knights themselves, and twelve of those whom they summon; at least, while the four knights are living. As to the case in Coke's Entries, it is very different from this; for there, the knights had not made their election. Before the statute, in the case of a special jury, a cause must have gone off on account of illness, pro defectu juratorum. BEST, C. J.-Suppose, before the statute eleven, of the jurors had died. The tenant's Counsel.-There is a distinction between a case of death and one of temporary incapacity merely. The party in this case has no right to favour, and ought not to have more ex debito justitiæ than the precedents 1826. TOOTH บ. BAGWELL. 1826. TOOTH U. BAGWELL. will clearly warrant. The passage in the Year Book, 22 Edward 3, 18 (a), does not amount even to an obiter dictum, but is only an idle discussion upon a collateral point. It may be very probable that Sir George Alderson may not be able to attend at a future day; but, notwithstanding, the Court should wait and see. GASELEE, J. And how many of the other fifteen might die in the mean time? The tenant's Counsel. The law never receives or acknowledges the excuse of temporary incapacity. That a party is too ill to be likely to be able to attend is too uncertain: it may be a ground of entering a continuance, but nothing more. In the absence of precedents, and considering the vexatious nature of the proceeding itself, it is to be hoped that the Court will not think it right to interfere. BEST, C. J.-It is said, that a writ of right is a vexatious proceeding; perhaps that is rather too strong an observation. Undoubtedly, the Court will give no assistance; but many cases may occur in which it would be against all justice to prevent a party from recovering after 20 years. I hope that it will not be long before the attention of Parliament is called to the subject, and that less than 60 years will be fixed; and that suitors will not be obliged to have recourse to a proceeding so seldom occurring, and consequently so little understood. It has been said, that, in a writ of right, a party ought not to receive indulgence; but that has been in those cases where the party's own laches has made his application necessary. "Actus Dei nemini facit injuriam,” is one of the maxims of the law; and the principle of not |
