1819. LAUNOCK against BROWN. determination of the present case. It is reasonable that. the law should be so; for if no previous demand is made, how is it possible for a party to know what the object of the person breaking open the door may be? He has a right to consider it as an aggression on his private property, which he will be justified in resisting to the utmost. BAYLEY J. The present verdict is quite right; because, even in the execution of criminal process, you must demand admittance before you can justify breaking open the outer door. That point was mentioned in the judgment of the Court, in the case of Burdett v. Abbott. (a) HOLROYD and BEST Js. concurred. Rule refused. (a) 14 East, 163. Tuesday, May 18th. It is not necessary, in case of a trial by proviso, after a lapse of four terms, without any proceeding, THEOBALD against CRICKMORE. THIS was an action of trespass tried at the Essex Summer assizes, 1817, when the plaintiff obtained a verdict. The defendant, in Michaelmas term following, obtained a rule nisi for a new trial, which was made to give a term's absolute in Hilary term, 1818. No further proceedings notice. were had until the 23d February, 1819, when the de. fendant served the plaintiff with a rule for a trial by proviso; and on the 28th February, the defendant also served the plaintiff with notice of trial for the ensuing assizes. The record was taken down by proviso. The plaintiff did not appear, and was nonsuited. The defendant had not given a term's notice of his intention to proceed. A rule having been obtained for setting aside this verdict for irregularity, on the ground that the defendant had not given a term's notice of trial, Walford now shewed cause. The rule requiring a term's notice, after a lapse of four terms, does not apply to the case of trial by proviso. In fact, there is no written rule of Court on the subject. It is certainly the practice as against plaintiffs. The practice of applying for judgment, as in case of a nonsuit, has, in modern times, been substituted for the trial by proviso; and in Doe v. Moses (a), and Manby v. Wortley (b), it was decided that the rule, requiring a term's notice of proceeding, does not extend to a motion for judgment as in case of a nonsuit. Chitty, contrà. It is laid down in 1idd's Practice, 820., that the defendant, on a trial by proviso, must give the like notice to the plaintiff, as the plaintiff would have been obliged to give to him, and Hachell v. Griffiths (c), Ashwin v. Corbill (d), are authorities to this effect. The reason assigned for the rule by Lord Ellenborough C. J. in May v. Wooding (e) is, that while the matter is still in controversy, the party should, after so long a lapse as four terms, without any proceedings, have notice that he may prepare himself; and that reason applies as well to a plaintiff as to a defendant. ABBOTT C.J. The practice of moving for judgment, as in case of a nonsuit, is now generally substituted (a) 5 T. R. 634. (d) 2 Salk. 650. (b) 2 Black. 1224. (c) 2 Salk. 045. for 1819. THEOBALD against CRICKMORE. 1819. THEOBALD against CRICKMORE. for that of trial by proviso. It has been decided, that Tuesday, May 18th. An affidavit to hold to bail, stating that defendant was indebted to plaintiff, for goods sold and delivered by the plaintiff for the defendant, is insufficient ; because it did BELL against THRUPP. THE affidavit to hold to bail stated, that the defendant was indebted to the plaintiff for goods sold and delivered, materials found and provided, and work and labour done and performed by the plaintiff for the defendant. Chitty had obtained a rule nisi for discharging the not appear that defendant out of custody on filing common bail, on the goods were account of the insufficiency of the affidavit; which stated that the goods were sold and delivered for instead of to the defendant. sold and delivered to the defendant. Littledale shewed cause, and distinguished this from Cathrow v. Hagger (a), where the affidavit stated that the defendant was indebted to the plaintiff for goods sold and delivered to him the defendant, and it was. omitted to add by the plaintiff; but here the words are, "goods sold and delivered by the plaintiff for the defendant," which is an immaterial variation. But the Court said, that an affidavit to hold to bail, which was to have the effect of depriving a party of his liberty, should be framed in most precise and positive words; and they held the objection well founded. Rule absolute. (a) 8 East, 106. 1819. Tuesday, The HIGHGATE Archway Company against May 18th. NASH. THE plaintiffs having brought an action against the defendant upon a bond, all matters in difference between the parties were referred to an arbitrator; and by the rule of reference, the costs of the cause were to abide the event of the award. The arbitrator awarded, that the verdict should finally stand for the plaintiffs for 3000l. damages; but he further directed, that the plaintiffs should not take out execution for that sum until they should have paid the defendant a sum exceeding both the damages and costs, which plaintiffs were indebted to the defendant, upon other account. The plaintiffs' attorney entered up judgment and issued a fieri facias for the debt and costs, but indorsed to levy the costs only, although the By rule of Court a cause and all matters in difference were referred to an arbitrator, and the costs of the cause were to abide the event. The ar bitrator directed the verdict to be entered for the plaintiffs; but that they should not take out execution for the the debt until an 15,000l. had not been paid. Upon these facts, disclosed in affidavits, a rule nisi had been obtained for setting aside the execution with costs. And Scarlett and Walford now shewed cause. By the rule of reference, the costs were to abide the event; and whatever the award might be, the costs followed as a necessary consequence of the event. If the action had proceeded, and the plaintiff had recovered judgment, the Court would not allow the debt and costs to be set off against the judgment obtained by the defendants until the attorney's lien was satisfied, Middleton v. Hill. (a) If this application were to succeed, the attorney might be altogether deprived of his costs. VOL. II. (a) 1 M. & S. 240. Rr F. Pollock, they had paid fendant: Held that the plain tiff's attorney might still take out execution for the costs. 1 1819. F.Pollock, contrà. The costs are part of the damages, Deacon v. Morris. (a) Execution, therefore, cannot Archway Com- be taken out for the one without the other; and as the HIGHGATE pany against NASH. arbitrator has expressly prevented the plaintiff from taking out execution for the debt, it follows that he cannot take out excution for the costs, and therefore this is a breach of the award. The execution, too, is for the debt and costs, which is a direct breach of the award; although the indorsement, it is true, is only to levy the costs. That will be an irregularity, because the execution will not correspond with the judgment. ABBOTT C. J. The costs follow as a legal consequence of the award; and the writ of execution, though taken out for the debt and costs, is only indorsed to levy the latter, and is, therefore, no breach of that award. For although in case there had been crossactions the defendant would have been entitled to have set off one judgment against the other, he would still have been liable to the costs of the plaintiffs' attorney. (a) Ante, 393. Rule discharged. Tuesday, May 18th. The assignee KEY against HILL. of a bail-bond, A RULE having been obtained on a former day, without any in this term, to stay the proceedings in three sufficient reason actions on the bail-bond, taken in this cause, upon pay for so doing, brought sepa rate actions against each of the bail. The Court, upon payment of the costs of one action only, stayed the proceedings in all. Dissentiente Abbott C. J. ment |