Page:The English Reports v1 1900.pdf/436

The defendant, an attorney of the Court of Queen's Bench, without any authority from, or with the consent or privity of the plaintiff, caused an appearance to be entered in his name, to an action of debt for 100l. brought against him in the Court of Common Pleas, at the suit of one Hugh Rodd, and afterwards confessed a judgment thereon; and be, in like manner, filed a bill [66] in Chancery in the name of the plaintiff, praying relief against such judgment; which bill, having no sort of equitable foundation, was dismissed with costs; and the plaintiff, without being at all apprised of these proceedings, had process served upon him in the county of Hereford, where he lived, for payment of the costs of such dismission, amounting to 28l. and which he was accordingly obliged to pay.

The plaintiff being justly incensed at such unwarrantable proceedings of the defendant, commenced an action against him in the Court of Queen's Bench, in Hilary term 1709; and laid the venue in the county of Hereford, where, by paying the costs, he sustained the damages.

On the 20th of August following, this cause was tried at Hereford, before Mr. Justice Powell; when, after a full defence made by the defendant, and an examination of near twenty witnesses on both sides, the jury found a verdict for the plaintiff, with 28l. damages, and 40s. costs.

The defendant however, in the ensuing Michaelmas term, thought proper to move the Court of Queen's Bench in arrest of judgment; and that Court being of opinion, that as the Court of Chancery was held in Middlesex, and as the proceedings by which the damages accrued, were had there; the action was brought in the wrong county, and therefore gave judgment for the defendant.

To reverse this judgment, the present writ of error was brought; and, on behalf of the plaintiff, it was insisted (A. Kettleby, J. Girdler), that his cause of action arose in two counties; the defendant's contrivance, and actual damages to the plaintiff, in the county of Hereford, where they both lived; and the exhibiting of the bill in the county of Middlesex; and therefore, the plaintiff was at liberty to bring and try his action in either county. That by the strict rules of the common law, judgment ought not to be arrested, or given against the plaintiff, after he had obtained a verdict; but if any doubt should arise upon this point, the plaintiff was entitled, if necessary, to the aid of the several statutes which had been passed for the amendment of the law; particularly the 16th and 17th of Car. II. c. 8. which enacts, that after a verdict, judgment shall not be stayed, because there is no right venue, so as the cause be tried by a jury of the proper county or place where the action is laid; and the 4th and 5th Ann, c. 16. whereby it is provided, that the judges shall give judgment, even in eases upon demurrer, according as the very right and matter in law shall appear to them; without regarding any imperfection, &c. in the declaration; so as sufficient matter appear in the pleadings, upon which the court may give judgment, according to the right of the case. And, that if the plaintiff should be obliged to bring a new action, in the county of Middlesex, the expences of a trial there, and of bringing his witnesses out of Herefordshire, would be too great for his circumstances, and therefore he must sink under his misfortune, and lose all the charges he had hitherto been put to in obtaining justice.

[67] On the other side it was said (E. Northey), that the plaintiff might have had justice done him at first, by bringing his action in the proper county; and that, since the judgment was arrested, he might have tried a new action there, at much less expence, than by the present mode of proceeding.