credit of the teftator of the defendants; that upon a motion for a new trial, the whole court of B. R. were of the fame opinion, and refused to grant a new trial; that the cofts of the nonfuit have been taxed at 487. 10s. which (though demanded) have not been paid to the defendants or their attorney, by the plaintiffs or their attorney, which, by law, ought to be paid; that the plaintiffs have delivered a declaration upon the very fame contract, that they have not produced any affidavit to fhew the court, that they have any new cafe to make upon this fecond action; nor indeed have they produced any affidavit at all; fo that we must take it for granted, that no new cafe can be made upon a fecond trial; but it must be determined by the jury upon the fame evidence which has already been given at the former trial; I am therefore of opinion that the plaintiffs ought to be content with the judgment of B. R. and that the prefent action is vexatious, and upon that ground only, proceedings therein ought to ftay until the plaintiffs pay the cofls taxed upon the nonfuit: I would have it understood, that I lay the matter of the plaintiffs being foreigners quite out of the cafe, and think the rule ought to be made abfolute, for this reafon only (viz.) because the prefent action is vexatious. Gould Juftice-I am intirely of the fame opinion with my Lord Chief Justice, that the court ought to make this rule ab folute. The old law points out this to the court as a duty. The ftatute of Marlebridge, 52 Hen. 3. cap. 6. Lord Coke in his comment thereon, 2 Inft. 112. fays, there is no greater injustice "than when under colour of juftice injury is done." That multi litigant in foro non ut aliquid lucrentur, fed ut vexent alios, &c. Although the court will not oblige a foreigner to give fecurity for cofls, yet when he has had the merits tried and determined against him, and will not do juftice by paying the cofts, he becomes vexatious by bringing a fecond action to try the fame matter; and for that reafon alone, I think the rule ought to be abfolute I lay the circumftance of the plaintiffs being foreigners quite out of the cafe. 8 Blackftone Juftice-I lay plaintiffs being foreigners out of the cafe, and am exactly of the fame opinion with my Lord and my brother Gould. I will fay one thing for my felf only; that I think, in all cafes where the merits have been tried, plaintiffs fhould not be permitted to commence a fecond action to try the fame matter, before cofts paid in the firft; but this is not now before the court, vexation is now the fingle point we determine upon. Nares Juftice-I am of the fame opinion. Long 2 Ld. Raym.. 2 Black. Rep... 740. S. C. What is a fufficient affidavit to hold to bail. Long verfus Linch. C. B. THE plaintiff Long. did let upon leafe to one Rice Steven, lands in Ireland, for a term of years. The defendant Linch became bound to the plaintiff by bond, in the penalty of 5000l. with condition, that if. Steven paid the rent to plaintiff, at the days and times in the leafe, the bond fhould be void, otherwife in force. The plaintiff fued out a capias ad refpondendum against the defendant, and in order to hold them to bail, previously made, and filed an affidavit that the fum of 2300l. was due and owing to him for arsears of rent under the faid leafe. It was held by three judges, contra Blackflone Justice, that the affidavit was fufficient to hold defendant to bail. 2 Black. Rep. Henzell, Demandant; Lodge, Tenant; Lawfon Efq. Vouchee. C. B. 747. S. C. An extraordinary a mendment of a common recovery. 2 Black. Rep. 735. S. C. A declaration on a fei. fa. to revive a judgment returnable the laft return, may be in titled of the fame term generally. FORSTER and Sayer Serjeants moved, on the behalf of the tenant and vouchee, to amend a common recovery, by inferting the word Merfham (being the name of a parish) among the parishes named in the recovery, next after the parish of Brabone; and grounded their motion upon an affidavit made by the vouchee, that fome fmall part of the lands whereof the recovery was intended to be fuffered, extended into, and laid in the parish of Merfham in Kent. The affidavit fays, that one Robert Goddard was tenant of one intire farm, under the yearly rent of 581. the principal and moft part whereof is in the parifh of Aldington in Kent, but that fome part of the faid farm, as he believed, did extend into the faid parish of Merfham; and further fays, that the whole of the faid farm was intended to be comprized in, and paffed by the indenture of bargain and fale, and the recovery, although the faid parifh of Merfham was not mentioned, either in the recovery or faid deed, to lead the uses thereof: The court after taking a day's time to confider, ordered the proceedings in the recovery to be amended, by inferting the word Merfham. Ward verfus Ganfell. C. B. THIS fendant fendant having appeared, the plaintiff's attorney delivered a declaration, intitled generally of Michaelmas term laft; to which the defendant demurred, and fhewed for fpecial caufe, that the declaration was intitled generally of that term, and fo related to the first day thereof, which was before the fire facias was returnable, which was infifted to be wrong, (by Serjeant Jephfon for the defendant) who objected that the declaration ought to have been intitled, "From the day of Saint Martin, in fifteen days in the term of Saint Michael, in the 11th year of King "Geo. the 3d." But per curiam we will confider the whole term as one day, in this cafe, and fo the declaration is intitled right enough. Judgment for the plaintiff. Anonymous. C. B. Snowden v. 2 Black. Rep. 248. S. C. duced, not a writ of in now refer it to a Mafter to fee what is PLAINTIFF declared in cafe upon two counts, 1, upon A note of a promiffory note; 2d, for money laid out for the defend- hand need ant, who pleaded a fet-off in bar to the whole, but afterwards only be prowithdrew his plea, and agreed to let plaintiff take judgment by proved, on default; upon the execution of the writ of inquiry, the clerk the executing to the defendant's attorney attended, and offered in the hearing quiry on a of the jury to confefs the damages, if plaintiff's attorney would judgment by give the defendant fome further time to pay the debt and cofts; default. which being refused, the writ of inquiry was then executed; [The courts the note was produced but no witnefs to prove it; the jury found damages to the amount of the note; and upon fhewing caufe why the inquifition fhould not be fet afide, the court were of opinion the jury had done right; for the plea of fet-off executing amounted to an acknowledgment of a debt, and the clerk to the writ of indefendant's attorney had offered to confefs damages in the hear- quiry. See ing of the jury. Ánd per Gould Justice, upon a judgment by Rep. C. P. default in an action upon a promiffory note, or a bill of ex- 252, 529, change, the fum due thereon is admitted, and need not be 541: Term proved upon the execution of a writ of inquiry. The rule to iv. 275, and Thew caufe why the inquifition fhould not be fet afide was vii. 473.1 discharged. Gerrish verfus Rodman, alias Rodborne. due, without I H. Black. Rep. K. B. [See poft. p. 164.1. Gloucefler fhire, GEORGE RODMAN, otherwife Rod- Replevin for White's bill, borne, was fummoned to answer to Samuel taking his Gerrish of a plea, wherefore he took the cattle of the faid cattle in Samuel, and unjustly detained them against fureties and pledges, entered upon c, and whereupon the faid Samuel, by John Powell his attorney, record of Michaelmas complains, term laft. 1. Cognizance made by the de fendant as sveed, Efq. because he fays, the place in which, &c. is a waste or common of 40 acres in nor of W. from time mon called W. D. of complains, that the faid George, on the thirty-first day of Janu ary, in the ninth year of the reign of his prefent majefty King George the Third, at the parish of Winterbourn, in a certain place there, called White's Hill, in the county of Gloucefter aforefaid, took the cattle of the faid Samuel, (to wit) thirty-five fheep, and unjustly detained them againft fureties and pledges, until, &c. wherefore the faid Samuel fays that he is injured, and hath fuftained damage to the value of 100l. and for that he brings his fuit, &c. And the faid George, by Thomas Brooke the younger his attor ney, comes and defends the wrong and injury, when, &c. and as bailiff of John Withers Sherwood Efq. well acknowledges the bailiff to bn taking of the faid cattle, in the faid place in which, &c. and Withers Sher- juftly, &c. because he fays, that the faid place, called White's Hill, in which, &c. is, and at the faid time when, &c. was a certain wafle or common, containing forty acres of pafture, lying and being within the faid parish of Winterbourn, and within the manor of Winterbourn aforefaid; and that within the faid manor there now is, and from time whereof the memory of man is not to the the parish of contrary, there hath been also another wafle or common, called W. and ma- Winterbourn Down, otherwife Winterbourn Common; of which and that with- faid manor, with the appurtenances, the faid John Withers Sherin the manor wood long before, and at the faid time when, &c. was feised in his demeine as of fee; and that the faid John Withers Sherwood, whereof, &c. there has been and all those whofe eftate he hath, of and in the faid manor with another com- the appurtenances, from time whereof the memory of man is not to the contrary, have had, and have used and been accuftomed to have, and ftill of right ought to have, a certain court leet or view of frankpledge of the refants within the faid manor, to be held twice in every year; (that is to fay) once within a month after the Feast of Eafter, and once within a was feifed in month after the Feaft-day of Saint Michael the Archangel, in fee, and pre- every year; and that within the faid manor there is, and from a que eftate for time whereof the memory of man is not to the contrary, hath been a certain ancient custom there used and approved of, (that is to fay) that the jury of the faid court leet, from time to time, for and during all the time aforefaid, have been ufed and accuftomed at the fame court leet, by and with the confent of the greater part of the commoners having right of common on the waftes of the faid manor, to make reafonable bye-laws and ordinances, for the better prefervation and regulation of the commons within the faid manor, and the grafs and herbage growing mons within in the fame; and to impofe fuch reafonable penalties on any fanmer or tenant of the fame manor, that fhould infringe or break fuch penalties on bye-law or bye-laws, as they from time to time thought proper; which manor the faid J. W. S. at the faid time when, &c. fcribes in a court lect. And that there has been a cuflem for the court leet to make bye lars for the prefervation of the com the manor; and to impofe the farmers and tenants of the minor, for breach thereof. and breach there to diftrain within the Michaelmas and the faid George further fays, that the faid John Withers Sher- And that the did which is fet of, and for all former breach of the |