*467] writ on the 28th of December *but having omitted to avail himself of it, he afterwards seeks to give it effect by altering and resealing it. If we were to allow that, we should abrogate the act. Rule absolute.

SIMPSON v. CLAYTON. Jan. 19.

Where the plaintiff's counsel, after a judge has begun to sum up, proposes to be nonsuited, he cannot move to set the nonsuit aside, notwithstanding the judge may have expressed a strong opinion as to effect of the plaintiff's evidence.

SIR W. CLAYTON being possessed of building-ground in St. George's Fields, under letters patent from the duchy of Lancaster for a term of ninety-nine years, determinable upon lives, underlet portions of the ground, and covenanted with the under-lessees and their assigns that when any cestuique vie should die within the term, he would apply for and use his utmost endeavours to procure a renewal of the letters patent, and that, without the under-lessees paying any portion of the fine for renewal.

The ground was built on and greatly increased in value by the under-lessees, and by 1834 the last cestuique vie died.

The duchy of Lancaster then demanded a fine for renewal upon a calculation of the actual value of the property as improved by the buildings.

This fine, amounting to 62,4007., was objected to as voracious, and the defendant, contending that the fine to be paid by him ought to be calculated according to his residuary interest in the land, and not according to the sublessees' improved interest in the buildings, memorialized the duchy, and offered 30,000l.

That sum being rejected, and a renewal refused, the plaintiff as assignee of one of the under-lessees, sued the defandant upon the covenant for exertions to *168] to procure a renewal, and alleged as a breach, that the defendant *did not upon the death of the cestuique vie use his utmost exertions to procure a renewal.

At the trial before Park, J., it was contended on the part of the plaintiff, that if the fine demanded by the duchy was reasonable, the defendant in rejecting it had failed to use his utmost exertions to procure the renewal, and the testimony of competent surveyors was offered to shew that, calculated upon the improved value of the premises, the demand was reasonable.

The defendant, not contesting the accuracy of that calculation as to the actual value of the premises, but disputing the principle on which it was proposed to assess the fine on the defendant, the learned Judge said the evidence as to value was immaterial, and that the question was, whether within the meaning of the covenant reasonable exertions had been used to obtain a renewal. The defendant put in various documents, to shew that the term had been granted by the duchy with a view to encourage building; and letters patent from the time of Charles the Second, (which were objected to by the plaintiff's counsel,) to contrast the fines upon successive renewals with the present demand.

The learned Judge proceeded to sum up the case to the jury, telling them the question was, whether the defendant had done his utmost to procure a renewal ;-for which he was not bound to pay an unreasonable fine;-and intimating a strong opinion as to the irrelevancy of the evidence offered on the part of the plaintiff, his counsel, after interposing, without effect, to obtain a direction as to the principle of assessment set up by the defendant, elected to be nonsuited.

Shee, in the last term moved to set aside this nonsuit, and was about to assign various grounds for his motion, when the Court asked him whether he could move to set aside a nonsuit which had taken place at the instance of the

counsel for the plaintiff. He relied on *Alexander v. Barker, 2 Cr. & [*169 Jr. 133, where it was held that, submitting to a nonsuit in deference to the opinion of the Judge at the trial, which opinion was incorrect, did not estop the plaintiff from moving to set aside such nonsuit. And Bayley, B. said, "I have heard Lord Tenterden say, over and over again, that, if he nonsuited upon an opinion intimated at the trial, in which the counsel acquiesced, and was wrong, the Court ought to set aside that nonsuit. It would be very hard if it were otherwise, because counsel must, in that case, at their peril, decide whe ther the Judge was right or wrong." In Vacher v. Cock, 1 B. & Adol. 145, the plaintiff's counsel insisted on being nonsuited; in the present case he only acquiesced in deference to the Judge. A rule nisi having been granted,

Thesiger, and Platt, shewed cause. In Alexander v. Barker, the plaintiff's counsel merely acquiesced in the nonsuit directed by the learned Judge: here, he interrupted the summing up, and, in order to avoid the peril of a verdict, spontaneously prayed for a nonsuit. After such an election, he cannot move to set aside his own act. In Butler v. Dorant, 3 Taunt. 229, on a special agreement, made on the sale of a share in the secret of making Barkley's antibilious pills, whereon the defendant agreed annually to expend 10007. in advertisements, the breach assigned was, the not having expended that sum. Upon the trial of that cause, after the parties had closed their respective cases, the Judge was proceeding in his summing up, to direct the jury that the plaintiff, not having distinctly proved any special damage arising from the breach, was entitled to nominal damages only; whereupon Best, Serjt., for the plaintiff elected to be nonsuited. He afterwards moved for a rule nisi to set aside the nonsuit, and have a new trial, for misdirection of the learned Judge. But Lawrence, J., said, "His lordship *did not say you should be nonsuited, he directed the [*470 jury that you should have nominal damages only; but you did not choose to trust your case with the jury. If there were a misdirection, you should have abided the verdict, and have reserved the objection for a motion for a new trial. I believe this has never been done, that a counsel shall lie by until he hears the opinion of the Judge at Nisi Prius, and that if he thereupon chooses to be nonsuited, he shall come to the court to set aside his own act." That case is in point: but in Ward v. Mason, 9 Price, 291, Wood, B., lays down the rule, that "if the plaintiff chooses to submit to the opinion of the Judge, without letting the case go to the jury, he certainly may do so, and that will be binding on him; but no man is obliged to submit to be nonsuited, on the opinion of the Judge upon the weight or sufficiency of the evidence which he brings forward to support his case. The Judge may direct the jury on it, according to the opinion which he may have formed; and if the jury adopt it, the party is concluded by their verdict; or, in order to avoid that, the party may submit to be nonsuited. In that case, most assuredly, he would not be permitted to move to set the nonsuit aside.'

Shee, in support of the rule, contended that this case was not to be distinguished from Alexander v. Barker, being, in effect, a case of respectful acquiescence in the opinion of the Judge, and not a case of election. The treating the greater part of the plaintiff's evidence as immaterial, was in substance the same thing as directing a nonsuit; and if the plaintiff's counsel acquiesced in that, he was not precluded from moving to set it aside.

TINDAL, C. J. I am of opinion this rule must be discharged. The general rule is, that when in the *progress of a trial the counsel for the plaintiff [*471 withdraws the question of fact from the consideration of the jury and submits to a nonsuit, he cannot afterwards move to set aside a result of the cause which has been occasioned by his own act. There are, no doubt, excep tions to this rule, and if this cause fell within them, our judgment must be for the plaintiff. One exception is, that if the learned Judge who presides expresses a strong opinion that there should be a nonsuit, or gives the jury a wrong dires

tion, and the counsel for the plaintiff yields for the time, in deference to the Judge, the Court will afterwards deal out to the plaintiff the same measure of justice as if the cause had gone to an uninterrupted conclusion. That was the case of Alexander v. Barker, where the submitting to a nonsuit in deference to the opinion of the Judge at the trial, which opinion was incorrect, was held, not to estop the plaintiff from moving to set aside such nonsuit.

So far is that from being the case here, upon either of the particulars to which I have been referred, that the learned Judge never directed a nonsuit, but was proceeding in his summing up, when the counsel for the plaintiff, after one interruption, desired to be nonsuited, rather than allow the case to go to the jury. That course therefore was the voluntary election of the plaintiff's counsel. I have heard of no wrong direction; nor of any evidence having been improperly rejected; but only that the learned Judge from time to time expressed an opinion on the evidence, as he was bound to do. That would be no ground for the present motion, even if the opinion were a mistaken one. The Judge only states his own impression as to the evidence, leaving the jury to adopt it or not. If any authority were wanting for such a course, it is furnished by the AttorneyGeneral v. Good, M'Lell. & Younge, 286, where it was held, that the due degree of *weight to be given by a judge, directing the jury, to particular evi*472] dence, which had been properly admitted, must be left to his own discre

tion, and his direction in that respect could not be revised by the Court above. And Mr. Baron Hullock said, "I think that the evidence was admissible, and ought to have been left to the jury. If that be so, and the case were sent down again for trial, it would be again admitted. Therefore, the only ground remaining is, that too great effect was given to the evidence in the learned Judge's direction. I apprehend, that that would be a new ground for granting another trial, and would open a door to applications for that purpose to an extent incalculable. I am at a loss to know by what rule the precise quantum of force which should be attached by a judge to a particular piece of evidence on a trial is to be measured."

When the counsel for the plaintiff saw that the jury were following the learned Judge in his observations on the effect of the evidence, I do not blame him for the discretion he exercised; but it was his own act; and he has no right to impose upon his opponent the expense of a double trial, because he feared the result of a verdict.

BOSANQUET, J. I amof the same opinion. It was in the discretion of the plaintiff's counsel whether he should go to the jury or not; but having elected to avoid the chance of a verdict, he cannot now set aside his own act. No mis. direction has been alleged. It is true, the learned Judge may have had an unfavourable impression of the effect of the plaintiff's evidence, and the plaintiff's counsel may have done wisely in withdrawing the cause from the jury. But the Judge never withdrew it, and so far from it, put the very question in dispute between the parties; namely, whether the *fine demanded for renewal *473] was reasonable or not. Upon the impression which the learned Judge entertained as to the effect of the plaintiff's evidence, I offer no opinion; but, according to the Attorney-General v. Good, if those impressions were unwarranted, that is no ground for setting aside the nonsuit.

GASELEE, J., was absent, and PARK, J., pronounced no opinion.

Rule discharged.

BROGDEN v. MARRIOTT. Jan. 20.

1. To an action for not delivering a horse, under an agreement to sell him for 18. if he did not trot eighteen miles within the hour, within one month, to the satisfaction of J. N., with an averment that he had been tried in the presence of J. N., and had failed

defendant pleaded, that after that trial, and within the month, defendant gave notice of another trial, but J. N. did not attend: Held ill.

2. Defendant also pleaded that the first trial was interrupted by one acting as the plaintiff's servant:

Replication traversing the whole of that plea, held single.

The declaration stated, that the defendant, before and at the time of the making the agreement thereinafter mentioned, was possessed of a certain horse called Partington, and thereupon afterwards, by a certain agreement bearing date the 27th of February, 1835, then made between the plaintiff and the defendant, the plaintiff agreed to buy and the defendant agreed to sell his horse Partington to the plaintiff for the sum of 2007., provided he trotted eighteen miles within one hour, and that, to be done within one month from that day, and Joseph Norcliffe, of Ossett, to be the judge of the performance; if the task was not performed, the horse was thereby sold to the plaintiff for the sum of 1s., which the plaintiff that day paid to the *defendant; and thereupon after- [*474 wards, to wit, on, &c., in consideration that the plaintiff, at the special instance and request of the defendant, had promised the defendant to perform and fulfil all things in the said agreement contained on the plaintiff's part to be performed, the defendant then promised the plaintiff to perform and fulfil all things in the said agreement contained on his the defendant's part to be performed and fulfilled: and the plaintiff averred that he had always, from the time of making the said agreement, been ready and willing to perform and fulfil the same, and in part performance of the same did, on the 27th of February, 1835, pay to the defendant the sum of 1s. in the said agreement mentioned, which the defendant then accepted and received: that after the making of the said agreement, and within one month from the day of the date thereof, to wit, on the 16th of March, 1835, the said horse was tried by the defendant in the presence of the said J. Norcliffe to trot eighteen miles within one hour, but that the said horse did not then, in the judgment of J. Norcliffe, nor did in fact then, or at any other time within one month from the day of the date of the said agreement, trot eighteen miles within one hour; whereby the defendant became liable to deliver and ought to have delivered to the plaintiff the said horse, according to the true intent and meaning of the said agreement: and the plaintiff afterwards, to wit, on the 1st of May, 1835, demanded the said horse of and from the defendant, and required him to deliver the said horse to the plaintiff; yet the defendant, not regarding the said agreement, nor his said promise so made as aforesaid, did not nor would, when the said horse was so demanded by the plaintiff, and the defendant was required to deliver the said horse to the plaintiff, as aforesaid, deliver the said horse to the plaintiff, nor *had the defendant yet delivered the said horse to the plaintiff, but had hitherto wholly refused and neglected so to do, to the damage of plaintiff of 2007.

[*475

The defendant pleaded, first, that the horse was not tried in the presence of J. Norcliffe, as alleged in the declaration. Secondly, that at the said trial in the declaration mentioned, the said horse could and would have trotted eighteen miles within one hour, but one A. B., then being the servant of the plaintiff, and who was then present at the said trial, after the commencement of the said trial in the declaration mentioned, and during the progress thereof, to wit, on, &c., wrongfully and wilfully, as the servant and agent of the plaintiff, interrupted the trotting of the said horse, and hindered and prevented the horse from trotting the said eighteen miles within one hour; and that the defendant was ready to verify, &c. Thirdly, that, after the making of the said agreement in the declaration mentioned, and after the said trial therein also mentioned, and within one month from the date of making the said agreement, to wit, on the 25th of March, 1835, the defendant was ready and willing to try the said horse in the declaration mentioned to trot eighteen miles within one hour on that day,

and the said horse could and would have done the same; and the defendant within a reasonable time next before the day and year last aforesaid gave the plaintiff and the said J. Norcliffe notice of such intended trial, and of the time and place at which the same was to take place; and the said J. Norcliffe was then requested by the defendant to be the judge of the performance of the said horse at the said trial; but that the said J. Norcliffe then, and at all times afterwards during the said space of one month, refused to attend, and did not attend to be the judge of the performance of the said horse at the intended trial, *476] whereby the said horse was prevented from trotting in the *presence of the said J. Norcliffe, as judge, eighteen miles within one hour, within one month from the day of the making of the said agreement; and that, the defendant was ready to verify. Fourthly, that the said trotting and performance in the declaration mentioned was meant and intended to be a trotting race or match against time on a certain public highway of our lord the king, for all the liege subjects of our lord the king to go, return, pass, and repass on foot, and with cattle and carriages, at all times of the year, at their free will and pleasure, to the great nuisance, danger, hindrance, and obstruction of all such liege subjects of our said lord the king as were or might be passing and repassing in, by, and along the said common king's highway; by means whereof the said agreement in the declaration mentioned was and is void and of no effect, and contrary to law; and that, the defendant was ready to verify.

:

The replication, after joining issue on the first plea, alleged that the said person, in the second plea in that behalf mentioned or referred to, did not, as the servant or agent of the plaintiff, interrupt the said trotting of the said horse, or hinder or prevent the horse from trotting the said eighteen miles within one hour, in manner and form as the defendant had above in his second plea in that behalf alleged and that, the plaintiff prayed might be inquired of by the country, &c. And as to the third plea, the plaintiff said that the same was not sufficient in law, and shewed to the Court the following causes of demurrer: that the said J. Norcliffe having once judged of the trotting of the horse therein mentioned, it was the duty of the defendant, if he again wanted him, to have secured the attendance of the said J. Norcliffe; at all events, that, by the agreement in the declaration mentioned, the said horse became the plaintiff's for 18. if he did not trot eighteen miles within one hour as therein mentioned; and *477] that if the defendant wished the plaintiff not to have the horse for that sum, he should have secured the attendance of the said J. Norcliffe to judge whether the said horse trotted that distance within the time prescribed; in which case the defendant would have been entitled to the larger sum: that the attendance of the said J. Norcliffe being for the benefit of the defendant, he was bound to have enforced it; and that the horse, not having in fact trotted the prescribed distance within the prescribed time, belonged to the plaintiff. As to the last plea, the plaintiff said that the agreement in the declaration mentioned was and is a certain agreement in writing, bearing date the 27th of February, 1835, signed by the plaintiff and the defendant respectively, and containing therein the matters following, and no other, that is to say,- Agreed to sell my horse Partington to Mr. John Brogden, of Manchester, for the sum of 2001., provided that he trots eighteen miles within one hour; and that, to be done within one month from this day; and Mr. J. Norcliffe, of Ossett, to be the judge of the performance; if the above task is not performed, the horse is hereby sold to the said John Brogden for the sum of 1s., which he has this day paid to me. Witness our hands this 27th day of February, 1835. Thomas Marriott, John Brogden :" without this, that the said trotting and performance in the declaration mentioned was meant and intended to be a trotting race or match against time on the said public highway in the last plea mentioned, to the great nuisance, danger, hindrance, and obstruction of all the liege subjects of our lord the king passing and repassing along the same: and that, the plaintiff prayed might be inquired of by the country, &c.