Raym. 938; Buller, J., in Hodgson v. Todd, 4 T. R. 71, 73; Pindar v. Walsworth, 2 East, 154; Barker v. Green, 2 Bing. 317). Shee, Serjt., Peacock, and Pigott, contra.-First, in order to sustain an action in respect of a public nuisance, the plaintiff must allege a particular right, or suffer an individual special injury. (Fineux v. Hovenden, Cro. Eliz. 664; Co. Litt. 56. a.) As to the suggestion, that this may be a part of the river which the public are not in the habit of using, it is shewn that they could not pass if they wished to do so. In Paine v. Partrich, (Carth. 191, 194), "as concerning special damages, sufficient to maintain an action on the case, it was resolved, that, if a highway is so stopped, that a man is delayed in his journey a little while, and by reason thereof he is damnified, or some important affair neglected, this is not such special damage for which an action on the case will lie; but a particular damage to maintain this action ought to be direct, and not consequential; as, for instance, the loss of his horse, or by some corporal hurt in falling into a trench in the highway." This was not a particular injury arising from some accidental circumstance, but arising directly from the act complained of, and to all. The second, fourth, and sixth counts do not charge that the obstruction continued up to the time of the action being brought. Secondly, the seventh and eighth counts are not supported: a reversioner cannot sue for the obstruction of a right of way, unless the obstruction be such as either injures the estate or operates in denial of the right. (Hopwood v. Scholefield, 2 M. & Rob. 336). The defendants have not committed a public injury, so as to do any particular damage to the plaintiffs. [They cited Fay v. Prentice, (9 Jur. 877).] Thirdly, a verdict for general damages cannot be sustained if one count is bad. (Leach v. Thomas, 2 Mee. & W. 427; Empson v. Griffin, 11 Adol. & Ell. 187). Cur. adv. vult. Lord DENMAN, C. J., now delivered the judgment of the Court.-A rule was obtained for arresting the judgment in this case, on objections taken to eight counts: all of them complained of injury to the plaintiff from the unlawful stopping up of a public road; the first six alleging that his reversionary estate in six different houses, occupied by as many several tenants, had sustained damage therefrom: the seventh and eighth, that the like damage had been done to houses of which he was possessed. On the ninth count a nolle prosequi was entered. The objection to those counts, in which the plaintiff declared in respect of his own possession, was, that the unlawful act of stopping a road is a nuisance to all the Queen's subjects, and not the ground of action at the suit of an individual. But this objection in its general form was considered in the case of Chichester v. Lethbridge, (Willes, 71), and overruled, where the plaintiff sustains any special damage from the unlawful obstruction. Iveson v. Moore, cited in a note at the end of that case, is precisely in point; so is the case of Rose v. Groves, (5 Man. & G. 613; 6 Scott, N. R., 645); which explain, that special damage here means damage brought on the individual complaining, which might be, perhaps, more properly styled particular damage, or " special damage, more than to the rest of her Majesty's subjects," and not that sort of damage only which may or may not ensue from the act done, but entitles the plaintiff, where it does occur, to specific reparation in the form of damages. a The objection to the six counts was, that the unlawful act charged does not, per se, import any damage to the plaintiff's reversionary interest: the tenant in possession is abridged of his rights by the stoppage of a public road, and may suffer damage from it; but the landlord, who is out of possession, is in nowise damnified by his tenant's being prevented from enjoying his house in so ample a manner as he might otherwise have done. Each of the counts in question would be established, by evidence proving that the defendant had, on two different days, placed a bar across the road for five minutes only. In Baxter v. Taylor, (4 B. & Adol. 72), a greater obstruction was held to give a reversioner no cause of action. Even a more permanent nuisance may not continue till the end of the lease, when the plaintiff's right of possession would accrue, but might, in the meantime, be abated by one of the public, or by the sheriff on indictment. These counts* do not even aver (as in Rose v. Groves, 5 M. & Gr. 613; 6 Scott, N. R., 645) that the obstruction was continued to the time of bringing the action. If, indeed, an obstruction of a public road appeared to be of a permanent nature in its construction, or professed, either by notice affixed, or in any other way, to deny the public right, and so led to an opinion that no road was there, the value of the house might be lowered in public estimation, and pecuniary loss might follow, for which we will not say that an action would not lie. But this is a peculiar state of things which ought to be distinctly set forth, and by no means arises from the naked fact, that, while the plaintiff's house was in the hands of his tenant, a public road had been obstructed by the defendant. Some of these counts being good and some bad, the damages might possibly have been severed, and judgment entered for the plaintiff on the good counts, and omitted on the others. But on referring to my note, I find, that, in answer to my question on the subject, the jury declared that the plaintiff had, in fact, sustained no damage whatever; and a verdict was taken for the plaintiff on the whole declaration. We have, therefore, no power to enter the verdict on any particular counts, but are placed under the necessity of arresting judgment generally.—Rule absolute for arresting judgment. EASTER TERM. DOE d. WILLIAM GROVES V. THOMAS GROVES.-April 22. On the Death of W. H. intestate, his Widow and Son, a Minor, resided in a Dwelling-house and Shop till her Marriage with Defendant in 1798, after which Defendant held and occupied the Premises in his own Name. J. H. the Son continued to reside there till 1805, when he left the Premises, but between that Year and 1841, he resided there occasionally two or three Weeks at a Time with Defendant and his Wife. In 1842 Defendant, having applied to Plaintiff for an Advance of Money upon a Mortgage of the Premises, in an Interview with the Solicitor of Plaintiff, produced the Title-deeds, and, upon its being stated that J. H. was Heir-at-Law and was the proper Party to grant a Mortgage, he said, that J. H. would execute the Mortgage, and on a subsequent Day he brought J. H., who executed the Mortgage-deed in his Presence, whereupon he received the Mortgage-money. In Ejectment, the Court having Liberty to draw such Inferences as they think a Jury ought to draw:-Held, that Defendant was Tenant at Will to J. H., and was estopped from alleging that he had acquired an Estate by virtue of Stat. 3 & 4 Will. 4, c. 27; and that the Tenancy at Will had been determined by J. H. coming upon the Premises. Ejectment to recover a dwelling-house and premises in the parish of Great Budworth, in the county of Chester. At the trial, before Williams, J., at the Chester spring assizes, in 1846, the following facts were admitted:-That William Hart died intestate in Janu *This remark applies to the second, fourth, and sixth counts. + In Leach v. Thomas, (2 Mee. & W. 427), and Empson v. Griffin, (11 Adol. & Ell. 186), the Courts appear to have adopted the practice of awarding a venire de novo under such circumstances. ary, 1798, seised in fee and in possession of the hereditaments in the declaration mentioned, leaving Martha Hart, his widow, and an only son, John Hart, who was his heir-at-law, him surviving; and that John Hart, at the time of his father's death, was aged about fifteen years, and Martha Hart was his sole guardian during his minority, and that no dower in or out of the said hereditaments was ever assigned to Martha Hart. That, on the death of William Hart, Martha Hart and John Hart inhabited a dwelling-house and shop, garden and other premises, part of the hereditaments in the declaration mentioned, and continued to inhabit them, and Martha Hart received the rents of the remainder of the premises in the declaration mentioned from the time of the death of William Hart till her marriage with the defendant, which took place in the month of December, 1798. That letters of administration of the goods and chattels of William Hart were granted by the Consistory Court of Chester to Martha Hart on the 13th May, 1798, and she took possession of the stock in trade, household furniture, and other personal estate of William Hart, and was possessed thereof, or of some part thereof, at the time of the marriage with the defendant. That the defendant, on his marriage with Martha Hart, went to live with his wife at the said premises, and that John Hart lived with the defendant and his wife at the said premises from the time of the said marriage till the year 1805, when John Hart left the premises. That, from the marriage of the defendant with Martha Hart, the name of the defendant had been painted over the door of the shop, and the license for selling tobacco and other articles on the premises had been taken out by and in the name of the defendant, and the defendant in his own name held, occupied, used, and enjoyed the dwelling-house and shop, &c., and let the remainder, and received all the rents and profits thereof. That, up to the present time, the defendant hath paid in his own name to Thomas Langford Brooke, Esq., and his predecessors, a certain chief rent in respect of the said hereditaments, or some part thereof; and that the said defendant hath been rated to the poor-rate charged in respect of the said hereditaments, and in the several assessments to the poor-rate he has been and is de scribed as the owner of the said hereditaments. That certain indentures of lease and release, bearing date respectively the 20th and 21st April, A. D. 1785, and respectively made between William Hough of the one part, and the said William Hart of the other part, and being a conveyance of the hereditaments in the said declaration mentioned to the said William Hart in fee, were in the hands of Messrs. Broadhurst & Co. as a security for a debt owing to them; and that the said defendant paid off the said debt by instalments, and that he paid the balance of the said debt in the year 1821, and the said indentures of lease and release were then delivered to him. That the said defendant never paid any rent, or made any acknowledgment to or in favour of the said John Hart for or in respect of the said hereditaments. That, between 1805 and the 31st July, 1841, John Hart occasionally resided two or three weeks at a time in the dwelling-house inhabited by the defendant and his wife, being part of the hereditaments in the declaration mentioned, as part of the family of the defendant and his wife, and that John Hart so resided with the defendant and his wife at the time of the death of Martha Groves, and remained at the said dwelling-house a short time, not exceeding three weeks, after her death. That a certain indenture, bearing date the 5th September, 1842, and made between John Hart of the one part, and William Groves, the lessor of the plaintiff, of the other part, was made and executed by John Hart; and that the signature of John Hart to the said indenture, and to the receipt of the consideration money thereupon indorsed, is the proper handwriting of John Hart; and that the defendant was present at the signing of the said deed by John Hart. That the hereditaments comprised in the said indenture of the 5th September, 1842, are the same hereditaments that are comprised in the said declaration. The mother died in July, 1841. Upon the occasion of attending the execution of the mortgage, in 1842, by John Hart to the lessor of the plaintiff, the lessor of the plaintiff having consulted his attornies as to an advance of money to the defendant upon the security of the premises in question, the defendant, accompanied by the lessor of the plaintiff, came to their office, and brought with him the deeds of the 20th and 21st April, 1783. Upon looking into the deeds, and inquiring from the defendant how they got into his possession, and whether William Hart had left any children, the defendant said that he had left a son, John Hart; upon which they said, that, upon his death, the property vested in John Hart, and that he was the proper party to join in making the mortgage. The defendant said that John Hart would sign the mortgage, and that he would bring him to their office for that purpose, if they wished, and directed them to prepare the deed. About a week after, the lessor of the plaintiff and the defendant and John Hart came to the office. The deed was read over in their presence, and John Hart signed it in their presence. The defendant received the mortgage money, with the knowledge and apparent sanction of J. Hart, and paid the bill for the expenses attending the mortgage. It was contended, on behalf of the lessor of the plaintiff, first, that, if any person had gained a title under the Statute of Limitations, it was the widow of William Hart, the late wife of the defendant, and not the defendant himself; and her estate descended on her death to her son, John Hart. Secondly, that the widow of William Hart was entitled to dower, and was legally in possession of the premises when she married the defendant, and could not be put forth until dower assigned. Thirdly, that the defendant and his wife occupied with the permission and on the behalf of John Hart, the heir-at-law of William Hart. Fourthly, that the widow was legally in possession during her life, and on her death in 1841 the defendant became tenant at will to John Hart. A verdict was taken for the lessor of the plaintiff, with leave to the defendant to move to enter a nonsuit, the Court to be at liberty to draw such inferences as they think the jury ought to have drawn. In this term*, Sir John Jervis, A. G., and Cole shewed cause.First, John Hart executed the mortgage deed in the presence of the defendant, and the defendant received the mortgage money upon the assurance from the plaintiff, that John Hart had title to mortgage the property. The defendant is, therefore, estopped to say that John Hart had no title. (Pickard v. Sears, 6 Adol. & Ell. 469; Gregg v. Wells, 10 Adol. & Ell. 90; 2 P. & D. 296). It is clear that J. Hart himself could not say that he had no title. (Doe d. Ogle v. Vickers, 4 Adol. & Ell. 782; Doe d. Hurst v. Clifton, 4 Adol. & Ell. 813). The defendant ought not to be allowed to hold both the land and the money. Secondly, the widow entered in right of her dower, and not as guardian in socage, and was entitled to retain possession till her dower was assigned; therefore, her possession till her death was consistent with the right of the party ultimately entitled. [They cited stat. 9 Hen. 3, c.7; Parke, J., in Roffrey v. Harbrow, (3 Adol. & Ell. 67, n.); Lord Den. man, C. J., in Doe d. Hickman v. Haslewood, (1 Nev. & P. 352); Doe d. Bennett v. Long, (9 C. & P. 773); Gould, J., in Goodtitle d. Newman v. Newman, (3 Wils. 516, 519). Watson and Welsby, contra. -The lessor of the plaintiff must prove his title to the land, and that he himself, or the person from whom he claims, was in possession within twenty years. If John Hart really * April 15.—The argument was continued on April 22nd. PATTESON, J.-I am of opinion that a jury would be perfectly justified in finding that the defendant was tenant at will. I do not say, that a man standing by can convey his own legal estate without the proper formalities; but here the defendant never had any estate, except that which would be acquired by virtue of the Statute of Limitations, and his admission might waive that; although, perhaps, the conduct of a party in standing by and permitting another to execute a conveyance would not pass, as by estoppel, any estate actually in him. WIGHTMAN, J., concurred. had no title, the lessor of the plaintiff can have none. and, therefore, it is immaterial whether the property be From the marriage in 1798 the defendant was in actual real estate or chattels. If the defendant had said to his possession in his own right; (Culley v. Doe d. Tayler-son-in law, "I am your tenant under such a deed," son, 11 Adol. & Ell. 1015); whether adversely or not that, according to Slatterie v. Pooley, (6 Mee. & W. is not material under stat. 3 & 4 Will. 4, c. 27. (Doe |664), would have been sufficient evidence against him d. Nepean v. Knight, (in error), 2 Mee. & W. 894). as an admission; and when he allowed another party In Doe d. Roffery v. Harbrow, the wife survived, and to advance money to him upon the security of a mortthat case was before stat. 3 & 4 Will. 4, c. 27. The gage deed executed by the son-in-law, it appears to me right of the widow is to remain in possession for forty that the act of putting the money into his pocket under days only; if the heir neglects to assign dower within an assumption that that person was the heir-at-law, that time, she must bring a writ of dower. She has no and entitled to the property, is quite as strong as an estate in the land in right of dower until it is assigned. admission. (Litt. s. 36; Co. Litt. 31. a.; Litt. s. 39). No title can be acquired by standing by or assenting to a deed. Pickard v. Sears and Gregg v. Wells apply to chattels only which pass by a mere parol gift or by delivery, and in those cases the party was asserting his title as plaintiff; here he is defendant. The title to land depends upon and must be evidenced by deed, or some other assurance known to the law. [Patteson, J.-A party may expressly admit that another person has title, and that will conclude him.] Before stat. 3 & 4 Will. 4, c. 27, the facts in this case might have been evidence of non-adverse possession, but sect. 14 of that statute requires payment of rent or an acknowledgment ERLE, J.-The question is, whether the estate of the in writing within twenty years. If what was done by heir-at-law was extinguished by the acts relied on. the defendant on the occasion in question operated as an They were all acts in pais, the effect of which it would admission that he held as tenant at will to John Hart, be for the jury to consider; and there is a recognition the 8th section would defeat the estate of John Hart. in an express manner by the defendant of the estate The estate acquired by the defendant by long possession being in his son-in-law, as the heir-at-law. Then, were could not be transferred by what was done. The mort-there any other facts which can prevent the defendant gage by John Hart is not an act in pais, which binds acquiring an estate? There is this fact, that the real by estoppel. In Lyon v. Reed, (13 Mee. & W. 285, owner came from time to time and resided with the de309), which overrules Thomas v. Cook, (2 B. & Ald. fendant on the premises, and the defendant permitted 119), it is said, "acts in pais, which bind parties by way that. These facts amount to evidence negativing any of estoppel, are but few, and are pointed out by Lord title in the defendant, and the right of the heir-at-law Coke, (Co. Litt. 352. a.). They are all acts which an- is not barred. If I had been on the jury I should have ciently really were, and in contemplation of law have presumed a tenancy at will, and we may presume it.— always continued to be, acts of notoriety, not less Rule discharged. formal and solemn than the execution of a deed, such as livery, entry, acceptance of an estate, and the like." [Lord Denman, C. J.-The mortgagee got the money upon the security of the estate being John Hart's; is not that as much an act in pais as any other?] The lessor of the plaintiff may have a remedy in equity, or a court of equity may compel the defendant to execute a proper mortgage deed. [Erle, J.-The defendant was in possession as tenant at will to the heir-at-law. Did not the presence of the landlord determine the will? The entry of the landlord, whatever was his intention, would amount to a determination of the will only where the act is of such a nature as if not excused would be a trespass. (Turner v. Doe d. Bennett, 9 Mee. & W. 643). [Erle, J.-If the owner was invited by the tenant to visit him upon the premises, and when there said that he determined the will, that would be enough.] Only if the tenant had notice of the words spoken? There must be an adverse act by the landlord. [Patteson, J.-When do you say that the twenty years began?] At all events in 1805. [Erle, J.-Suppose the landlord left the premises for a fortnight, and then came back again.] The admission is general; it does not appear how often he came back, or whether he came back within twenty years. [Wightman, J.-He may have come back every year.] Nothing was left to the jury upon that point. Lord DENMAN, C. J.-Both parties have left the whole case to the Court, and I am of opinion that we ought to presume, and that a jury ought to be directed to presume, that the defendant was only tenant at will to his son-in-law, otherwise we must find that he and his wife were guilty of a gross fraud upon their son-inlaw: and when it is said, that a decision against the defendant would introduce a new head of estoppel, the answer is, that estoppel gives no interest in any case, EXCHEQUER CHAMBER. MICHAELMAS TERM. [Error from the Queen's Bench.] STEWART and Others v. TODD and Another.-Nov. 11. Debt for 4001. First Plea, as to 431. 6s. 9d., Payment; third Plea, as to the Residue, (3561. 13s. 3d.), that Plaintiff impleaded Defendant for the Residue of the said Cause of Action, and that such Proceedings were had that Plaintiffs recovered in the said Action 3141. 88., as well for their Damages in the said Action, and in respect whereof Plaintiffs had impleaded Defendants, as for their Costs. Replication, that the Residue of the Causes of Action in the Declaration mentioned were not the Causes of Action in the third Plea mentioned in respect of which the Judgment was recovered. The Jury found, that the Residue of the Causes of Action in the Declaration mentioned, were the Residue of the Causes of Action in the said Plea mentioned, and for and in respect of which the Judgment was recovered:-Held, on Motion for Judgment non obstante Veredicto, First, that the Plea must be taken to mean that Plaintiff had a Judgment of the Court in respect of all the Damages which he sued for; that is, the same Causes of Action as constituted the Residue of the Causes of Action, and which was the same as the ordinary Plea of Judgment recovered. Second, that the Plea was good in Substance, whether the true Meaning of it was, that, as to Part, Plaintiff recovered, and, as to the Residue, it was found that no more was due, the Omission to plead the latter Part of the Judgment by Way of Estoppel being Matter of Form, or that Plaintiff, having once sued for the same Debt, and having had the Amount assessed and adjudicated on, could not sue again for the same Debt. Judgment having been given for the plaintiffs in the Court of Queen's Bench, (see 9 Jur. 326, where the pleadings are set out), a writ of error was brought, and was argued in Easter Vacation, (May 9, 11*), by Butt, for the plaintiffs in error, (the defendants below), and by Peacock, for the defendants in error, (the plaintiffs below). The same arguments were urged on both sides as in the Court of Queen's Bench; and in addition to the cases there cited, 1 Wms. Saund. 325, note, was referred to by Peacock. Cur. adv. vult. and that such proceedings were had that the plaintiffs recovered in the said action 3147.8s., as well for their damages in the said action, and in respect whereof the plaintiffs had impleaded the defendants, as for their costs; but the plea does not plainly and distinctly aver that the recovery was for the residue of the same causes of action; and it would probably have been bad on special demurrer, for the want of such positive averment. If the plaintiffs had recovered 1s. in the former action for part of the cause of action, and had entered a nolle prosequi for the remainder, and recovered 3147. 78. for costs, it is clear the recovery would have been no bar for the whole; and yet it might be said in such case that the plaintiff had, by judgment of the PARKE, B.t, now delivered the judgment of the Court. Court, recovered a sum of 3141.8s. for his damages in -The question in this case arises on a writ of error the said action, and in respect whereof the said action from a judgment of the Court of Queen's Bench non had been brought as for his costs, though it would obstante veredicto, on a plea in an action of debt on have been the correct course to have said in such a case simple contract for 4007. As to 431. 6s. 9d., there was that he recovered for part of the damages, in respect a plea of payment. As to the residue, (3567. 13s. 3d.), whereof the action had been brought: the nolle proa plea, (the third), "that heretofore, to wit, on the 3rd sequi having the effect of withdrawing the part as to June, A.D. 1840, in the court of our lady the Queen, which it is entered from being a subject of dispute in before the Barons of her Majesty's Exchequer at West- the suit. But after pleading over, the whole plea must minster, in the county of Middlesex, the plaintiffs im- be understood in the sense which would make it a good pleaded them the said last-named defendants upon, for, answer to the declaration, and must be taken to mean and in respect of (amongst other things) the said re- that the plaintiff had a judgment of the Court in residue of the said cause of action in the declaration men- spect of all the damages which he sued for; that is, tioned, in an action on promises, to the damage of the the same causes of action as constituted the residue of said plaintiffs of 400%., and such proceedings were there- the causes of action; and so the jury have found on the upon had in the said last-mentioned court in that ac- issue on this plea. Upon this state of the record, the tion, that afterwards, to wit, on the 7th June, A. D. 1843, plea must be taken to be the same as the ordinary plea the said plaintiffs, by the judgment and consideration of judgment recovered. On the argument before us, it of the said last-mentioned court, recovered in the said was contended on the part of the plaintiffs in error, that action against them the said last-named defendants, this judgment was erroneous, as it proceeded upon a 3144. 8s., as well for their damages in the said action, mistaken analogy between payment of a lesser sum in and in respect whereof the plaintiffs had impleaded the satisfaction of a greater, and recovery by judgment of a said last-named defendants as aforesaid, as for their lesser sum, in an action for a greater, which recovery, costs and charges by them about their said suit in that it was contended, was binding and conclusive, and prebehalf expended, whereof the said last-named defend-vented the same cause of action being litigated again. ants were convicted, as by the record and proceedings thereof still remaining in the said last-mentioned court fully appears, and which said judgment hath not been reversed or made void; and this" &c. There was a replication to this plea, that the residue of the causes of action in the declaration mentioned were not the causes of action in the third plea mentioned, in respect of which the judgment was recovered; and on this issue the jury found for the defendants, that the residue of the causes of action in the declaration mentioned were the residue of the causes of action in the said plea mentioned, and for and in respect of which the judgment was recovered. There was another similar plea, stating the payment of the sum recovered, with a similar replication, and a verdict thereon for the defendant, and several pleas the issues on which were found for the plaintiff. On a motion for judgment non obstante veredicto, the Court of Queen's Bench thought the plea was not a good answer to the part of the declaration to which it was pleaded, because a debt certain to the amount of 3567. 13s. 3d. being admitted, the difference between that sum and the amount for which judgment was recovered, viz. 3147. 8s., was wholly unanswered. It is to be observed, that the plea is not in the ordinary form of a plea of judgment recovered, which states that the plaintiff impleaded the defendant for the same causes of action in the declaration mentioned, and such proceedings were thereupon had in that plea, that afterwards the plaintiff recovered so much for the same causes of action in the declaration mentioned, and for his costs. This plea to the residue states the impleading for the residue of the same causes of action, * Before Tindal, C. J., Parke, B., Alderson, B., Maule, J., Rolfe, B., Cresswell, J., Erle, J., and Platt, B. † Tindal, C. J., died in Trinity Vacation. On the part of the defendants in error it was contended that the judgment was right, for the plea was bad, and no answer to the whole debt, the existence of which at one time, as a debt certain, it admitted. That a judgment recovered was a bar on the principle of merger in the superior remedy, only with respect to the part recovered, and that as to the residue which had been litigated and not recovered it was an answer on the ground that so much of the debt was not due, and that the plaintiff was estopped from saying that such residue was due, and that as the plea did not in express terms rely on the estoppel in this case, the plea was bad in substance. Supposing this argument to be well founded, and that the true meaning of the plea is, that as to part the plaintiff recovered, and as to the residue it was found that no more was due; the omission to plead the latter part of the judgment, which was in effect a judgment for the defendant as to that part, by way of estoppel, was mere matter of form, and could only be taken advantage of on special demurrer. The plea was a perfectly good answer in substance as to that part, as a plea amounting to the general issue would have been, though it was pleaded by way of confession and avoidance. It is not, however, to be understood that we consider this to be the true construction of the plea of judgment recovered where the amount is less than that claimed in the subsequent action. If it be so, the answer is good in substance; but if the true meaning is, as there is good ground to contend that it is, that the plaintiff having once sued in indebitatus assumpsit for the very same debt now claimed in an action of debt, and having had the amount assessed by the jury and adjudicated on by the Court, has had all the benefit which could be given by a judgment, and cannot again sue for the same debt, then, unquestion ably, the plea is good in substance. It is, however, unnecessary to decide the point, on which ground the plea is good in the present action. It was argued by Mr. Peacock that the plea was bad, because it did not appear that the former recovery may not have been for less, by reason of part of the debt not being due at that time, but that it is now due. The answer is, that the jury have found the former recovery to have been for the same causes of action, and, consequently, that the question in this suit is the same as in that, viz. whether at the date of the former writ the defendant was or was not indebted to the plaintiff. This objection, therefore, cannot prevail, and we are all of opinion that the plea is good in substance, and therefore the judgment non obstante veredicto erroneous, and consequently the judgment for the plaintiff must be reversed. Judgment reversed. on Terms. BAIL COURT.-EASTER TERM. JAMES v. ASWELL.-May 8. Where an Appearance had been entered for a Minor, and interlocutory Judgment obtained against him by Default, the Plaintiff having no Knowledge of the Fact of Minority, the Court will set aside the Proceedings This was an action on a bill of exchange; interlocutory judgment by default against the defendant and a rule absolute to compute had been obtained. The plaintiff alleged in his affidavit that he was not aware that the defendant was a minor, as he had the appear ance of a man of twenty-three or twenty-four years of age, and lived apparently in a house of his own, with his name upon the door. No intimation to the contrary had been given to him. ried on the Business of a Law Stationer, and also had been Sub-distributor of Stamps and Collector of Assessed Taxes, stated an Agreement for the Sale to the Defendant of the said Business and his Goodwill for 3007. The Declaration then stated that it was further agreed that the Plaintiff should not carry on such Business, or collect any of the Assessed Taxes, within a certain Distance, but that he would use his utmost Endeavours to introduce the Defendant to the said Business and Offices, and averred mutual Promises :-Held, that the Agreement was entire, and related to the Sale of an Office touching the Receipt of the Revenue, and was, therefore, void by the Stat. 5 & 6 Edw. 6, c. 16. Assumpsit. Declaration recited an agreement made between the plaintiff of the one part, and the defendant of the other part, whereby, after reciting that the plaintiff had for a long time past carried on the business of a law stationer, and also had been sub-distributor of stamps, collector of assessed taxes, and agent for the Birmingham Fire Office, for the town of Stourbridge nually received, on an average of five years previous to and neighbourhood, from which business he had anthe 25th day of December then last, the sum of 1871. 12s. 11d., inclusive of expenses, and that the plaintiff, being desirous of giving up his said business, had agreed with the defendant for the sale of the said business, and of all his goodwill and interest therein, to him at the sum of 3007., in the manner and by the instalin consideration of the sum of 300l. to be paid as therements thereinafter mentioned, it was witnessed, that, inafter mentioned, the plaintiff did thereby agree to all the said business of a law stationer so carried on by sell, and the defendant did thereby agree to purchase, the plaintiff, and all his goodwill and interest therein, ant did thereby promise and agree to and with the and in every part and branch thereof, and the defendplaintiff that he the defendant would pay and secure to the plaintiff the said sum of 3007. in manner following, that is to say, &c. [The declaration here set out the different times and manner of payment.] And it tiff and the defendant, that the plaintiff should not, at was thereby further agreed by and between the plainany time after the 1st day of March next after the making of the said agreement, carry on the business of a law stationer, or collect any of the assessed taxes, or accept the office of an agent to any fire and life assurance company in the town of Stourbridge, or within ten miles thereof, but would use his utmost endeavours, defendant, to the said businesses and offices, as by the at the expense of the defendant, to introduce him, the said agreement fully appears. And the said agreement being so made, afterwards, in consideration thereof, and that the plaintiff at the request of the defendant had then promised the defendant to perform the said agreement on his the plaintiff's part, he the defendant undertook and then promised the plaintiff to perform the of performance by the plaintiff of his part of the agreesaid agreement on his the defendant's part. Averment after or since the said 1st March, 1845, carried on the ment, stating, inter alia, that he had not at any time sessed taxes, or accepted the office of an agent to any fire business of a law stationer, or collected any of the asor life assurance company, in the town of Stourbridge, or within ten miles thereof, and had always from the time of making the said agreement used his utmost endeavours to introduce the defendant to the said business and offices, and assigned as a breach the nonpayment of pleaded, that, before and at the time of making the said the first instalment of the 300l. The defendant secondly supposed agreement and promise in the declaration mentioned, the plaintiff held, exercised, and enjoyed the office of sub-distributor of stamps for the town of Stourbridge and neighbourhood, the same then and still being an office touching and concerning the receipt of The Declaration, after reciting that the Plaintiff had car- her Majesty's revenue; and further, that by the said of his father as to the date of the defendant's birth. Lush obtained a rule nisi to set aside the appearance and all subsequent proceedings, on the ground of the minority of the defendant at the time the bill was given and the appearance entered. He moved on an affidavit Petersdorff shewed cause. The regular course of practice was not applicable in this case; as, under the circumstances, the plaintiff could not have conjectured that the defendant was a minor; and, in fact, might well contest the fact. And, when the fact was contested, the Court would not interfere summarily; it would be a question for the jury. The cause had now reached its final stage; many expensive proceedings had been taken since the appearance was entered, and as the defendant had been thus misled into taking those proceedings, the Court would, on that account alone, refuse to interfere. The case of Nunn v. Curtis (4 Dowl. P. C. 479) was apparently on the other side, but there there was some warning of minority, as the defendant was at college. In Stephens v. Lowndes, (12 Law Journ., N. S., 229), the Court laid down that they would interfere to save a writ of error, as that might be had. But that was not a sound principle, and the doctrine could not be upheld. Lush, contra.-This was precisely a case for summary interference. The affidavit of the defendant's father put the fact of minority beyond doubt. The case of Nunn Curtis was a clear authority in favour of the defendant, and shewed that the application was made in sufficient time. COLERIDGE, J.-I think the rule ought to be made absolute, but upon the following terms:-if the plaintiff ultimately succeeded, he should be paid the costs of the cause; but if he failed, he should not be liable to pay them.-Rule accordingly. COURT OF COMMON PLEAS.-TRINITY TERM. |