« ForrigeFortsett »
use the "public highway, they desisted, and now exhibited I"05. their carriages by opening the fronts of their shops. They T|,eK(N0 staled, that the sole object of the prosecution was to pre- against vent a repetition of the nuisance.
The Courf then said, That it should he fully understood that the defendant could not legally carry on any part of his business in the public street to the annoyance of the public. That the primary object of the street was for the free passage of the public, and any tiling which impeded %
that free passage, without necessity, was a nuisance. That if the nature of the defendant's business was such as to require the loading and unloading of so many more of his waggons than could conveniently be contained within his own private premisses, he must either enlarge his premisses, or remove his business to some more convenient spot: but the Court could not be parties to any compromise for his using the street as his own for any part of hi* business. That this was a species of nuisance to be found in many other places, and was fit to be suppressed; and, therefore, they directed that the defendant's recognizance should be taken for his appearance in Michaelmas term next, if called upon, to receive judgment; and that either party should be at liberty to make affidavits as to what had been done to abate the nuisance in the mean time.
The King against CogcAx. and Another. Saturday,
O May 25111.
n^IIE Solicitor General and Wood applied for a mania- A mandamus
mm to the lord and steward of the manor of Lakhatn TMA stewardTM
Billets to admit Mr. Williams to a copyhold tenement a "'"nor »° ad
.... 1 • 1 1 • ,• 1 , 1 1 1 . "li' one to»
within the manor, winch his lather,.to whom he was heir copyhold tere
at law, was entitled to as-a purchaser; but the father had me.n'; who '"**
j. , . , y prima facie
died before admittance (a). And they referred to Rex v. leiai tiiie, in
order to en ili!e him In try his tight, though equity had before refused to compel the lord to admit him, for want of hi* shewing an equitable right to the property; but if there he a claim of a previous line due to the lord in respect of the ancestor from whim the party claims, the rule will only be ■-ranted «a payment of such fiue or fines as shall be due.
(«) Where the ancestor had been admitted, the Court, in Rex u. Rennctt, 2 Term Rep. 197, refused a mandamus to admit the heir at law, since he had as complete a title without as with admittance, as against all the world but tee lord.
The Lord of the Manor of Ilendou (6), where it was grant, ed, and to the constant practice of- this Court in like cases, to enable a party to try his legal right.
Park and Marryat, on shewing cause now, referred to Williams v. Lord Lonsdale (c), where the same title was in dispute in the time of a prior lord of this manor; in which the right of this Court to grant a mandamus in these cases was much questioned: and where finally the Lord Chancellor refused to interfere on behalf of the party now applying, on the ground that his father was only a trustee, and and there was no person existing for whom he could claim to be admitted.
Lord Ellen Borough, C. J. said, That he was aware that the power of this Court to grant a mandamus to admit to a copyhold had been questioned on the other side of the hall; yet the Court having for many years past been in the habit of granting such writs upon a sufficient prima facie title made out on the part of the person applying, he could not doubt their power in that respect. That he had himself, when at the bar, frequently obtained such writs, in two or three instances, against the noble Lord who had been named (Lord Lonsdale) to compel him to admit tenants to copyholds.
The defendants' counsel then said, That they did not mean to deny the power of the Court (which had been exercised in a very recent instance (a) since the case of Williams v. Lard Lonsdale) to grant such a mandamus, where the party applying could make out a fair title; but this they denied could be done by Mr. Williams in the present case: and, therefore, there was no more reason for this Court to interfere than for the Court of Chancery, which had already refused a similar application on the ground of defect of * right; but at any rate, they observed, that there was a previous fine due to the lord in respect of the father, who ought to have been admitted under the terms of the surrender, in right of whom the present applicant claims.
(«) z Term Rep. 484.. (S) 3 Ve«. jun. 751.4.
■ (e) Tbii was a mandamus grauted to the Duke of Leeds to admit Mr. Conolly, for the purpose of enabling him to try his title to eertain customary tenements in the manor nf Wakefield in Yorkshire, for which he afterwards Draught an ejectment. Vidt Roe d. Conolly ». Vernon, 5 East, 51.
Lord Ellenborough, C. J. The case in Vtsey proceed- 1805. ed upon the ground that there was no equity in the party xj-e Ktirth applying to the Court of Chancery to induce that Court to agai/ut interfere; but it was there considered, that the legal estate ^jlmjj^ •waa in the trustee, whose heir now applies; and that is sufficient for us to act upon in giving him an opportunity of trying his title, which is all that the admission will enable him to do. Therefore,
Per Curiam, upon Mr. Williams undertaking to pay such f 433 ] fine or fines as shall be due to the lord,
Rule absolute for a mandamus.
Price, Bart, and Others against Woodburne. 2?^^'.
rT*HE venue in an action for goods sold and delivered, Though the ve
was laid in London, and was changed to Lancashire £"* he defend*
unon the usual affidavit, that the cause of action, if any, »«t upon a faiw
■ J • r J ii . c A »nldavit,yet tl»
arose there, and not in London or elsewhere out oj the plaintiff canoo*
eounty of Lancaster. The plaintiffs afterwards obtained a |h^',|,j|nl?"clc u
rale nisi to discharge the rule for changing the venue, upon where it wai
an affidavit that the plaintiffs received an order irom the out the u'«uai *
defendant at Lancaster to send goods to him thither from undertaking to
... . g've material
London by the first Lancaster ship;' in consequence of evidence in that
which, the goods which were the subject of the action, were '^"'J*
shipped on board the first Lancaster ship which lay oSGrif
Jin's wharf, in t he county of Surry; which goods were since
acknowledged to have been received.
Littledale shewed cause against the rule, and objected to it, because it sought to bring back the venue to London, without the usual undertaking by the plaintiff's to give material evidence in that county (a).
Burrough, contra, mentioned Cailland v. Champion (b) as in point as to the plaintiffs' right to bring back the venue where it had been removed upon a false affidavit; and also referred to Collins v. Jacobs (c), nnd Herring v. Durans (d), to the same effect: but he said, That the plaintiffs could
(«) Vii* Watlcini v, Towers, 2 Term Rep. »7£. (4) 7 Term Rep. aos.
■"1805. not undertake (o give material evidence in London, where T. ^„„t the venue was first laid, because the cause of action arose in
and Others a third county, namely, Surry, tzaimt Lord Et.LENBORouGH, C. J. The plaintiffs have brought
this difficulty upon themselves, by having laid their venue at first in a wrong county, where n<> part of the cause of action arose; which prevents them from giving the usual undertaking always.required, to enable a plaintiff to bring back the venue after it has been changed: and such being the general rule, it is better to abide by it; otherwise we shall have to try every cause, on a motion to change the venue; and there must be a rule to shew cause, instead of a rule absolute in the first instance to change the venue. Therefore, as the plaintiffs cannot undertake to give material evidence in the county where the venue was first laid,
Per Curiam, Rule discharged.
Saturday, FORTY against IMBER.
Mhcreihede- Tn replevin, the plaintiff declared for taking hi* goods on
£«"■"£" the 29th February, 1801, in his dwelling-house at the
«**nizanrefor parish of St. Mary, Ruthtrliilht, in the county of Surry.
quarter's rent in The defendant, 1st, Made cognizance as bailiff of Thomas
arrear: nn;i ai- Anderson and June his wife: and because'the plaintiff for a
lesed that for ... ,
alongiim?, \lr. long space of time, viz. ' for t*o years and a quarter next
JnVa quarter, before «nd ending on the 25th^)f December, 1803, and from
endmeat thence until and at the said time when, Sec. held and en
iSoiltiiep'l.iin- joyed the said dwelling-house in which, &C. ' as tenant
tiff held aodea- tliercof to * the said 7'. A. and Jane his wife,' by virtue of a
joyed (he pre- ... „
jni«»csasteoaut ' certain demise thereof theretofore made,'at and under a tfj^riue'ofa8' certain yearly rent, viz. the yearly rent of SO/, payable certain demise, quarterly, viz. on 25th of Match, Sec.; and because 07/. 10s. iii« plaintiff of the rent aforesaid for the said space of two years and a pleaded io bar, quarter, ending on the said 25th of Deeember, in the year
tint he did not ...,,. .i
hold and erjoy aforesaid, Sic. were due and in arrear iroin the plaintiff to
!en?nuher~ra' lhe sakl T- A- ■«"• Jane llig wife> he distrained and avowed
10 A.b. by vir- the takine as a distress. The defendant, 2dly, Made cognimo of the wup- ° . '•" °
madurt forma, it it sufficient to entitle the defendant on a verdict no such issue, if be proved that theplaintiff held of A.B. from the 23d at October, itsi, aud to rewrir for two years' real.
• [ 435 j xance
zance as bailiff to T. Anderson alone, and avoyed in taking ISO*. in like manner for rent in arrear under a holding from him. yOR1T Sdly, The defendant made cognizance as bailiff to T. Jnder- agamttt son and Jane his wife; and because one M. Mitchell for a lxBK"* lon^ time, viz, for two years and a quaiter next before and ending on the said 25th of December, 1803, and from thence iiutil and at the said time when, 8cc. held and enjoyed the said dwelling-house, in which, &c. as tenant thereof to the said T. A. and Jane, by virtue of a similar demise from them to him ; and hecause 67 /. IOs. of the rent for the said two years and a quarter, ending as aforesaid on the said 25th December, 1803, &c. were due and arrear from the said N. Mitchell to the said T. A. and Jane, he avowed the taking as a distress. The plaintiff in his plea in bar to the first cognizance, pleaded That he did not hold and enjoy the said dweiling-house in which, Sic. as tenant thereof to the said T. Anderson and Jane, his wife, by virtue of the supposed demise thereof in the said first cognizance at and under the supposed yearly rent in that cognizance also mentisned, in manner and form as there alleged, See.; and pleaded like pleas in bar to the other two cognizances; on which issues were joined. At the trial before Heath, J. at the last Kingston assizes, it appeared that the premisses had been once holden by N. Mitchell mentioned in the third cognizanco as [ 435 ] tenant to one Standfast, under a lease for seven years from 17</8, at 351. a-year; and Mitchell underlet ta Forty the plaintiff, who was in possession before and at the time of the conveyance to Anderson and his wife. The title of Anderson and his wife to the premisses "was established under a conveyance to them in fee from Standfast, by lease and release, dated 22d and 23d of December, 1801, in which the premisses were described as then in the tenure or occupation^ the plaintiff as tenant at will. It was thereupon objected by the plaintiff's counsel, that the avowry for two years and a qu?rter's rent, ending at Christmas, 1803, upon an aliened tenancy of the plaintiff to Anderson and his wile for that period, was disproved by the evidence, which shewed 1 hat the holding under Anderson and his wile only com* menced two days before Christmas, J80I; and, consequently," the plaintiff could not be said to have holdeti and enjoyed uncier a demise from them for two years and a quarter, end