1833. PRICE v. HARRIS and Others. Nov. 23. THIS reversion. Two of the Defendants, namely, Norbury and Proctor, put in no plea; the others pleaded the general issue; and five of them pleaded also a special plea, to the form of which it is unnecessary, on this occasion, to advert. The Plaintiff joined issue on the two pleas; entered a nolle prosequi as to Norbury, and signed judgment by default against Proctor. The cause was tried at Guildhall before Gaselee J., when the jury found a verdict for all the Defendants except Proctor, who had suffered judgment by default, and assessed the damages against him at 9001. Wilde Serjt., on the part of the Plaintiff, moved, on several grounds, that the verdict found for the Defendants, Harris, Atkins, Smith the elder, Smith the younger, and Devey, and also the assessment of damages against Proctor, should be set aside, and a new trial and assessment of damages take place. A rule nisi having been granted, Jones and Bompas Serjts., who shewed cause in Easter term last, contended, among other matters, that such a seventeen Defendants: two ment by default; fifteen pleaded the general issue: Plaintiff en tered a nol. pros. against one of the obtained, upon a writ two; of enquiry, a verdict for 900l. against the other; and the jury found their verdict in favour of the fifteen. The verdict as to five of the fifteen being unwarranted, the Court granted a new trial against them, leaving the verdict against the others, and against the Defendant, who suffered judgment by rule, against some of several defendants, was unprece- default, undented, and, if established in practice, might be produc- disturbed tive of great inconvenience. There was also much discussion as to the effect of a deed, by which it was asserted the legal reversion of the premises in question was 1833. PRICE V. HARRIS. was out of the Plaintiff; but upon this point the Court pronounced no opinion. Wilde, in support of his rule, adverted to the practice of moving for a new trial on the part of one or more of several defendants, found guilty of a misdemeanor; Rex v. Mawbey and Others (a); but no authority was cited expressly in favour of an application such as the present. Cur, adv. vult. TINDAL C. J. (After stating the facts, as antè p. 331.) This case appears to be one of the first impression, as no authority has been cited in support of the application. The Plaintiff, by her own voluntary act, has included a great number of persons in the action, against whom there was no ground of complaint: indeed the very form of the application admits that, out of fifteen Defendants, for whom a verdict of acquittal has passed, such verdict ought to stand as to twelve. A motion, therefore, that a verdict should be set aside as to some of the Defendants, and not as to all, where the difficulty, in point of form, is one created by the Plaintiff herself, involves consequences which should be well considered before such motion is allowed. In the case of The King v. Marbey and Others (a), the new trial was granted, on the application of some of the defendants only, where such defendants appeared to the Court to have been convicted on improper evidence. Such an application, therefore, in a criminal case, on the part of defendants found guilty, can scarcely be considered an authority for an application, on the part of the Plaintiff, against some of the defendants, in a civil case, where such defendants have been found not guilty. At the (a) 6 T. R. 619. same . same time, looking at the consequences on the other side, it might, in some instances, operate as a great hardship, if the rule were laid down, that where the Plaintiff has, through mistake or inadvertence, improperly joined one single defendant, and the jury have acquitted all, such verdict of acquittal of all the defendants, against the clear evidence of the case as to some of them, must of necessity stand; because, as the verdict, if allowed to stand, would be a bar to any further action, such a decision might have the effect of depriving the plaintiff of a just remedy for his damages, however large the amount, upon no other ground than that of a casual mistake. A rule of practice, therefore, which might produce consequences so obviously unjust, ought to be shewn to be clearly and rigorously established by precedent, before it is applied. On the present occasion, the Court are dissatisfied with the verdict in favour of Harris, one of the Defendants, and think the case, as to him, ought to be submitted to the consideration of a new jury. But, feeling at the same time that the Plaintiff has brought herself by her own improper act of joining other defendants unnecessarily into the difficulty of applying for the present rule against some, instead of all the Defendants; they think they meet the justice of the case, if they put the Plaintiff, as nearly as possible, in the same situation as if she had been nonsuited at the trial, instead of having the verdict against her. And with this view they think the Plaintiff ought to pay the costs of the several Defendants (except Proctor, who has suffered judgment by default), as if upon a nonsuit; that she should enter a nolle prosequi as to all the Defendants except Harris and Proctor, and that she should then be allowed to proceed to a new trial against the Defendant Harris. At the same time they are of opinion, that Proctor, who has not joined in opposing this application, ought VOL. X. Ꮓ not 1833. PRICE บ. HARRIS. 1833. PRICE ข. HARRIS. not to be prejudiced by any new assessment of damages, but that the sum already assessed against him should be considered the maximum to which he can be made liable; so that, although he may be liable to less, if, upon the new trial, the jury find less against the other Defendant, he shall not, under any circumstances, be charged in execution for more. Upon shewing cause against this rule, considerable discussion took place as to the effect of a deed produced in evidence; the Defendants contending, that, by the operation of such deed, the legal reversion was shewn to be out of the Plaintiff. Whether such was the effect of the deed or not, will, as it appears to us, be better discussed on a second trial; for it seems, on the evidence, that the production of the deed was, to a certain extent, a surprise on the Plaintiff; and some of the uses declared by that deed being contingent, and others temporary only, the Plaintiff ought to have the opportunity of shewing, if she can, that they have either not taken effect at all, or have ceased. Upon the terms, therefore, above mentioned, we think the rule for a new trial against Harris, and for a new assessment of damages against Proctor, ought to be made absolute. Rule absolute. Nov. 23. Affidavit to hold to bail for 70l., the balance of principal and LATRAILLE and Others v. HOEPFNER. THE Plaintiff's affidavit to hold to bail, was follows: A. Hoepfner is justly and truly indebted unto this deponent, and to Henry Wood, and interest due on a bill of exchange for 100l., without distinguishing how much for. each, held insufficient. Nathaniel Nathaniel Dawson, in the sum of 70l. 11s. 6d., the balance of principal and interest due on a bill of exchange for the sum of 100%., drawn by one John Bucklee upon, and accepted by, the said A. Hoepfner, payable fourteen months after the date thereof, and by the said John Bucklee indorsed to this deponent, and the said Henry Wood, and Nathaniel Dawson; which said bill of exchange has been dishonoured, and, to the extent of the said sum of 70l. 11s. 6d., now remains due and unpaid." Andrews Serjt. obtained a rule nisi for delivering up the bail-bond to be cancelled, on the ground that the affidavit was uncertain in not distinguishing how much was due for principal, and how much for interest. Wilde Serjt., who shewed cause, contended, that the affidavit was in the form usually employed in such a Tidd's Append. 86. case. Sed per Curiam. The objection is of an extreme nature, but it must prevail. The Plaintiff could not arrest for interest unless reserved by the bill, and, by possibility, less than 201. might remain due for principal. Rule absolute. 1833. PRICE V. HARRIS. WETTENHALL v. WAKEFIeld. Nov. 25. from the JONES Serjt. obtained a rule nisi to enter a suggestion A barrister is on the roll, under the London Court of Conscience not excepted Act, 39 & 40 G. 3. c. 104., on an affidavit that the Plain- operation of tiff had recovered a verdict for no more than 41. 4s.; that, at the time of the commencement of the suit, the London Court of Conscience act. |