The Sun.
London, England, 1835-01-27 00:00:00

JONES V. BROWN AND OTHERS.

This was an action of trespass tried at the last Warwick
Assizes before Mr. Justice PARK. It was brought to
recover damages for breaking and entering the plaintiff's
house and taking his goods. Judgment was suffered by
default as to the breaking and entering, and as to that the
Jury gave a farthing damages. To the remainder of the
declaration not guilty was pleaded, as also two special
iz., that the goods were net the goods of the
pleas,—v
plaintiff, and that the defendants seized goods under an
authority from the assignees of one Metcalf, a bankrupt,
to whom they belonged. To this there was a replication

that the goods did not belong to Metcalf, but to the plain-
tiff. To prove his case the plaintiff called various witnesses,
who deposed to his having given Metcalfe several hundred
pounds for his business (that of a grocer in Birmingham)
and stock in trade ; but it appeared, upon their cross-
examination, that Jones had been a bankrupt shortly before
the alleged sale ; that he bad been heard to declare himself
a ruined man ; that lie had passed by other names ; and
that the sale only took place a week before the second
bankruptcy of Metcalfe. As the breaking and entering
were admitted, the Jury was directed to find for the plain-
tiff on that head. The Jury accordingly did so ; but they
found for the defendants on the other issue. On a preced-
ing day a rule had been obtained calling upon the defend-
ants to show cause why the verdict should not be set aside,
and a new trial had.

Mr. Sergeant GOLTLBURN now showed cause against the
rule.

Mr. M. D. HILL showed on the other side.
Rule discharged.

EXCHEQUER COURT.

BERESFORD V. NEWTON.

This was a case sent by Mr. Baron Alderson from the
equity side of the Court, to take the opinion of the Learned
Barons on certain points arising in a suit instituted by the
Rector of St. Andrew's, Holborn, against the occupiers of
certain houses in Gray's Inn-lane, for the non-payment of
dues in respect of such houses. The case stated that certain
clues had been invariably paid for the last 100 years by the
occupiers of these houses to the Rector of St. Andrew's,
Holborn ; that if payable for the land it was a right modus ;
that they were not payable in respect of all houses in that
district, nor were any of them charged in proportion to
the rent. The questions for the opinion of the Court were,
whether, from the statement of facts, a custom from time
immemorial should be inferred ; and, if not, whether any
reasonable foundation could be assigned for such custom ?
Mr. BOTELER, for the plaintiff, maintained that it should
be presumed from the admitted existence of the custom for
one hundred years that it had existed from time immemorial.
Sir C. WETHERELL contended that the payment in
question could not be considered either as made in lieu of
personal tithes or as a modus for a house. It must have
originated in an agreement between the parson, the occu-
pier of a house, and the ordinary. But how could the occu-
pier of a house bind his successors to pay tithes, if such
successors were not liable by law ?
Lord ABINGER could not doubt but that any Jury would
infer from these payments having been made for a hundred
years, that the custom had existed from time immemorial.
With regard to the second question it would be doing vio-
lence to many decisions if the Court were to overturn them
all because there was no legal origin for these payments.
It was the duty of the Court to find a legal origin rather
subvert so many decisions. He thought that whether this
was a modus or not,it was a payment from time immemorial.
The other Barons concurred.