intention, however, of the framers of the rule was to render the practice of the King's Bench in this respect the same as that of the other Courts. Rule discharged. *BEASLEY v. CLARKE. April 28. [*705 Trespass. Plea, way used for forty years, by the occupiers of the defendant's farm, as of right, and without interruption. Replication, traversing the user as of right: Held, that under that issue plaintiff might give in evidence that the way had been used by leave and license only. TRESPASS qu. cl. fr. The defendant justified the trespasses complained of in the declaration under a right of way over the closes in which, &c. In his second plea, he claimed the way as having been used for twenty years without interruption by the occupiers of his farm; and in his last plea, as having been used for forty years by the occupiers of the same farm, as of right and without interruption. To the second plea, the plaintiff replied "that when the occupiers of the defendant's farm used the way, they used it with the leave or license, sufferance or permission, of the occupiers of the plaintiff's closes;" which leave or license was traversed by the defendant in his rejoinder To the last plea, the plaintiff replied by traversing that the occupiers of the defendant's farm had, for, and during the full term of forty years and upwards, as of right, had and used the way without interruption. Evidence was given by the plaintiff that a former occupier of the defendant's farm had applied for and obtained leave to use the way in question, and that he had paid an acknowledgment for such user. Gaselee, J., before whom the cause was tried, directed the jury, if they believed this evidence, to find a verdict for the plaintiff upon the issue raised upon the last plea, as well as on the second: and the jury having found for the plaintiff upon both the issues, Goulburn, Serjt., moved for a new trial on the ground of misdirection, and that the verdict was against the evidence. *The plaintiff ought not to have been allowed to give evidence of the leave and license under his replication to the last plea: that replication [*706 merely denies the right; and to entitle the plaintiff to rely on the leave and license, he ought to have replied it, as he did to the second plea. The statute 2 & 3 W. 4, c. 71, s. 5, is express-"in all other pleadings wherein before the passing of this act it would have been necessary to allege the right to have existed from time immemorial, it shall be sufficient to allege the enjoyment thereof as of right by the occupiers of the tenement in respect whereof the same is claimed for and during such of the periods mentioned in this act as may be applicable to the case, and without claiming in the name or right of the owner of the fee as is now usually done; and if the other party shall intend to rely on any proviso, exception, incapacity, disability, contract, agreement, or other matter herein before mentioned, or on any cause or matter of fact, or of law, not inconsistent with the simple fact of enjoyment, the same shall be specially alleged and set forth in answer to the allegation of the party claiming, and shall not be received in evidence on any general traverse or denial of such allega tion." A rule nisi having been granted, Adams, Serjt., and Humfrey, shewed cause in Hilary term. The defendan: having claimed the way in question as of right, it was competent to the plaintiff, under a denial of such right, to adduce any evidence which would establish that the right did not exist; and the paying an acknowledgment was streng evidence to that effect. After finding on the second plea that the defendant had enjoyed the way by leave and license within twenty years, the jury could not, on the last plea, find that he had a right to the way for forty years. *707] *In the Monmouthshire Canal Company v. Harford, 1 Cr. M. & R. 614, the plea alleged that the occupiers of the adjoining closes had for twenty years, as of right, and without interruption, used, and been accustomed to use, the privilege and easement of passing and repassing, &c., and laying down railroads across the plaintiff's railroad. Replication to that plea, traversing the claim as of right. Upon the issue with regard to the twenty years' enjoyment of the easement, it was held, that the defendants were bound to shew an uninterrupted enjoyment, as of right, during that period; that the plaintiffs might prove, under that issue, applications by defendants during the twenty years for leave to cross their railroad; and that it was not necessary for them to reply such license specially under 2 & 3 W. 4, c. 71, s. 5. So in Bright v. Walker, 1 Cr. & M. & R. 211, it was held, that the claimant must shew that he had enjoyed the way for the full period of twenty years, and that he had done so as of right and without interruption, and that such claim might be answered by proof of a license, written or parol, for a limited period, comprising the whole or part of the twenty years. Goulburn, and Amos, in support of the rule. The enjoyment of right which is to be alleged, by the party claiming it, pursuant to the terms of 2 & 3 W. 4, c. 71, s. 5, comprehends every species of enjoyment de facto; as well enjoyment by leave, as enjoyment by prescription; and any matter of fact on which the adverse party relies, not inconsistent with the fact of enjoyment, must be specially pleaded. Now, leave from the plaintiff's occupiers is not inconsistent with the fact of the defendant's enjoyment of the way, and therefore ought to have been set forth in the replica*708] tion. *Bright v. Walker was a decision on a declaration, not on a plea, and turned on another clause of sect. 5. And in the Monmouthshire Canal Company v. Harford, the point was only incidentally noticed in the course of the argument. Cur. adv. vult. Crowder, amicus curiæ, referred to Tickell v. Brown, then under consideration in the Court of King's Bench. TINDAL, C. J. (after stating the pleadings as antè, p. 705). The question comes before us on a motion to set aside the verdict, as well upon the ground of misdirection, as also that it is against the weight of the evidence. The misdirection complained of is, that the learned judge, upon the issue raised on the last plea, directed the jury to find a verdict for the plaintiff, if they believed the evidence that a former occupier of the defendant's farm had applied for and obtained leave to use the way in question, and that he had paid an acknowledgment for such user: it being contended on the part of the defendant that if such evidence was admissible at all under the fifth section of the statute 2 & 3 W. 4, c. 71, at all events it was not admissible under a traverse of the user for forty years; but that the plaintiff ought to have replied that the way was used by leave and license, as he had done to the plea which claims the way for twenty years. This objection, on the part of the defendant, rests on the fifth section of the act above referred to, by which it is enacted, "that if the other party intends to rely on any cause or matter of fact, or of law, not inconsistent with the simple fact of enjoyment, the same shall be specially alleged and set forth in answer to the allegation of the party claiming, and shall not be received in evidence on any general traverse or denial of such *709] allegation." The question, therefore, turns upon the construction and meaning of this clause; whether by the expression, that any matter must be pleaded which is "not inconsistent with the simple fact of enjoyment," the legislature intended to compel the plaintiff to reply in all cases the special facts and circumstances which shew the way was not used under a claim of right; or whether it only meant to compel the plaintiff to reply all collateral matters which may defeat the right of way. And whatever might have been our opin ion if the matter had been res integra, we think the interpretation which has been put upon this clause by the Court of King's Bench in the recent case of Tickell v. Browne, may be held to be the construction to be put upon the sta tute; and, according to that construction, we hold, that under a plea denying that the defendant had used the way for forty years, as of right and without interruption, the plaintiff is at liberty to shew the character and description of the user and enjoyment of the way during any part of the time; as that it was used by stealth, or in the absence of the occupier of the close and without his knowledge, or that it was merely a precarious enjoyment by leave and license, or any other circumstances which negative that it is an user or enjoyment under a claim of right; the words of the fifth section "not inconsistent with the simple fact of enjoyment," being referable, as we understand the statute, to the fact of enjoyment as before stated in the act, viz. an enjoyment claimed and exercised "as of right." The case of the Monmouthshire Canal Company . Harford and Others, in the Court of Exchequer, is another authority for the same construction of the act. We therefore think the evidence objected to was admissible under the traverse of the last plea and it *would certainly be extremely inconsistent if [*710 the defendant should be allowed to insist upon a verdict in his favour for the right of way, when claimed by him as of right and without interruption for the last forty years; whilst, upon the same record, the plaintiff should be allowed to retain the verdict in his favour upon the issue raised in the second plea, establishing the same way to have been used for the last twenty years, by the leave and licence of the plaintiff. Upon the other ground of objection, that the verdict is against evidence, we can only observe there was evidence on both sides for the consideration of the jury, and we cannot so clearly see that it preponderated in favour of the defendant as to induce us to disturb the verdict. Rule discharged. FINCH v. BROOKE. April 28. A rule for entering up judgment in a writ of false judgment having been made absolute, In this case a rule was made absolute to enter up judgment for the plaintiff in a writ of false judgment, and issue execution for the sum recovered, together with the costs in the court below, to be taxed by the prothonotary. Instead, however, of entering any incipitur, the plaintiff, upon taxing costs, only caused to be indorsed on the back of the above rule, "9th December, 1835. Allowed costs, 127. Ray," and then issued a fi. fa. for the amount. *Butt obtained a rule nisi to set aside this execution, on the ground that it was irregular, no judgment having been signed before it issued. [*711 It was essential to the defendant that the judgment should be entered, otherwise he could not contest the propriety of the allowance of costs. Stephen, Serjt., shewed cause. Judgment may be entered at any time, even after execution; and it is signed when the costs are taxed. The prothonotary's allocatur on the back of the rule is a sufficient signing here. The allocatur is usually written on the postea; but that could not be done here, for the proceedings below are no part of the records of this court, and it might be doubted, whether signing on the writ of false judgment would be a sufficient warrant for levying the costs incurred in the court below. There was great difficulty in ascertaining what course to take, and the entry of the officer on the rule is sufficient to authenticate the decision of the court. According to Styles, Pr. Reg., the signing of judgment is but the leave of the court for the attorney to enter judgment for his client. TINDAL, C. J. This case came before us on an incidental motion, in which the court authorised the plaintiff to sign judgment and issue execution; clearly intending thereby, that what is known in law as signing judgment, should take place and the rule was so granted, on the ground that if the plaintiff were not entitled to the costs of proceedings in the court below, his opponent might contest the validity of the judgment. : Instead of pursuing the terms of the rule, the plaintiff omits signing judgment, and issues execution forthwith. This is irregular, whether it be considered as a proceeding on the rule, or on the judgment pronounced for the *plaintiff. If it had been a proceeding on the rule, the regular course *712] would have been by attachment. Then it is regular as on the judgment? Every one knows that a writ of false judgement is analogous to a writ of error: and the universal course on a writ of error is to tax costs and sign the judg ment. Nothing of the sort has been done here and to sanction the proceeding would be to give an unfair advantage to one party, and prevent his opponent from contesting the validity of the judgment. The officer of the court says, that judgment is never signed except upon an entry of an incipitur. Rule discharged. HOULDITCH v. SWINFEN. April 28. Practice. Rule for setting aside proceedings in outlawry, will be discharged with costs, unless it appear that the application is made by an attorney authorised by defendant. PETERSDORFF shewed cause against a rule to set aside proceedings in outlawry, and as it did not appear by the affidavits that the application had been made by an attorney who acted at the instance of the outlaw, THE COURT, upon being referred to Plunkett v. Buchanan, 3 B. & C. 736, discharged the rule with costs. Bompas, Serjt., on the part of the defendant, urged that as the rule had been discharged on the ground that nobody was authorised to appear on the part of the defendant, it was inconsistent to fix him with the costs. Sed PER CURIAM. The attorney is here; and if cause had not been shewn, would have made the rule absolute. Rule discharged. *713] *HOLLIS and Wife, Executrix of DAVIES, deceased, v. PALMER. April 29. Declaration, that the defendant, sixteen years before, delivered his promissory note, payable on demand with interest, to the plaintiff, but neglected to pay, except interest, which he paid up to a day within six years. Plea, that the cause of action did not accrue within six years: Held, sufficient. THE declaration stated that the defendaut heretofore, and in the lifetime of John Davies, to wit, on the 26th of July, 1819, made his promissory note in writing and delivered the same to the said J. Davies, and thereby promised to pay to the said J. Davies, or his order on demand, the sum of 1277. 10s. 8d. for value received for goods, with interest for the same from the day of the date of the said promissory note. And the defendant then, in consideration of the premises, promised the said J. Davies in his lifetime, to pay him the amount of the VOL. XXIX.-47 said note according to the tenor and effect thereof; yet the defendant disregarded his promise, and did not pay the amount of the said note and interest or any part thereof to J. Davies in his lifetime, or to the said Thomas Hollis and Charlotte his wife executrix as aforesaid, or either of them since the death of J. Davies, except interest on the said note at the rate of 57. per cent. from the day of the date of the said note up to a certain day within six years next before the commencement of this suit, to wit, the 26th of April, 1830; and which interest was within six years next before the commencement of this suit, to wit, on the said last-mentioned day, paid by the defendant to J. Davies in his lifetime. : Pleas 1st, That the said cause of action in the declaration mentioned did not, nor did any part thereof, accrue at any time within six years next before the commencement of this suit, in manner and form as the plaintiff had above thereof complained; and that, the defendant was ready to verify, &c. 2ndly, *That the defendant did not pay the interest in the declaration men[*714 tioned, or any part thereof, within six years next before the commencement of this suit to the said J. Davies in his lifetime, in manner and form as the plaintiffs had above in that behalf alleged; and of that, the defendant put himself upon the country, &c. Demurrer to the first plea and joinder. Peacock, in support of the demurrer. The plea does not deny that the promissory note was payable with interest from the day of the date; and interest having been paid within six years, the statute of limitations does not operate on the debt: if it does, it is not by way of extinguishing the debt, but only as a bar to the remedy; and the remedy for the principal may be barred without affecting the remedy for the interest, which accrues de die in diem, and is a continuing, or constantly renewing cause of action. The debtor may go on paying it for ever, unless he discharges the debt; for it is in the nature of an annuity. It is like the case of a lien on goods which a bailee may have sold to the bailor: the lien may remain for ever, though the remedy for the price of the goods may be barred by the lapse of six years. In Higgins v. Scott, 2 B. & Adol. 413, it was held, that the statute of limitations bars the remedy only, not the debt; and, that therefore, where an attorney for a plaintiff had obtained judgment, and the defendant was afterwards discharged under the Lords' Act, but at a subse quent period, a fi. fa. issued against his goods, upon which the sheriff levied the damages and costs; the attorney, though he had taken no step in the cause, or to recover the amount of his bill of costs, within six years, had still a lien on the judgment for his bill of costs; and the Court directed the sheriff to pay him the amount out of the proceeds of the goods. So, in Spears v. Hartly, [*715 3 Esp. 81, it was held that if by the custom and usage of trade, a party was entitled to a lien on goods for a general balance, and he got possession of the goods of his debtor, he might hold them till his whole demand was satisfied, even though part of it was barred by the statute of limitations. If the plaintiff is entitled to interest de die in diem, and the plea is bad as to any part of the debt accruing within six years, it is likewise bad for the whole. And Burleigh v. Stott, 8 B. & C. 36, Pease v. Hurst, 10 B. & C. 122, and Bealy v. Greenslade, 2 Cr. & J. 61, shew that payment of interest by one of several parties to a joint and several promissory note, takes the whole demand out of the Statute of Limitations as to the other parties. If so, admission of debt as to a part of the demand on a note of a single individual, ought to retrieve the whole from the operation of the statute. A continuing security is not open to the objection of being liable to the equities between the parties, on the ground of being overdue; Gascoigne v. Smith, 1 M'Lel. & Younge, 338. Stephen, Serjt., contrà. The defendant can only be called on to pay interest in respect of the original contract to pay the principal; the interest is only an accessory; and if the contract fails as to the principal, the accessory must share the same fate. When the remedy for the principal is barred, there is no continuing accrual of right with respect to the interest. No authority has been |