ARGUED AND DETERMINED

IN THE

Court of COMMON PLEAS,

AND

OTHER COURTS,

IN

Trinity Term,

AND THE VACATION ENSUING,

In the Second Year of the Reign of WILLIAM IV.

1832.

GRISSELL and Others, Executors of W. PETO,

v. J. PETO.

THE Plaintiffs sued as the executors of W. Peto, who had directed his property to be distributed among

certain of his relations in five portions.

There had been, on the subject of this distribution, a suit in Chancery, in which the Plaintiffs' attornies had appeared for the parties interested in three fifths of the property, and Luke and Wilkinson, the Defendant's attornies, for the parties interested in the other two fifths. Upon affidavit of these facts, and that the Defendant in this action had not been interested in the Chancery suit,

May 26.

The Court restrain the

fused to re

Defendant's attornies from acting in the

cause, on the

ground that they had ob

tained a know

ledge of the Plaintiff's case

in the course

of a Chancery

suit, in which they had been

acting in conjunction with the Plaintiff, and in which the Defendant had no interest; the Defendant's attornies deposing, that, in that suit, they acted also for the Defendant.

VOL. IX.

B

Wilde

1832.

GRISSELL

V.

PETO.

Wilde Serjt. obtained a rule nisi to restrain Lake and Wilkinson from acting as attornies for the Defendant in this action, upon the ground that in the Chancery suit they had obtained a knowledge of the Plaintiffs' case, of which they ought not now to be permitted to avail themselves.

Coleridge Serjt., who shewed cause, relied upon an affidavit in which Lake and Wilkinson deposed, that in the Chancery suit they had acted for the Defendant as well as for others, and had obtained little more information than would have been furnished by the Plaintiffs' bill of particulars. He deprecated depriving the Defendant of the assistance of an agent who was best acquainted with the whole of the transactions.

Wilde. It is not deposed that the Defendant was interested in the Chancery suit; and it would be prejudicial to the administration of justice, if his agents should be permitted to turn against the Plaintiffs, knowledge obtained in a matter in which the Defendant was not a party interested, and in which his agents were acting in conjunction with the Plaintiff.

TINDAL C. J. I am far from saying that a case of this sort may not arise, in which the circumstances may be sufficiently strong to induce the Court to interfere; but the circumstances disclosed in this case would not authorize us to interpose in the manner required. The attornies depose that in the Chancery suit they were concerned for the Defendant, and if we were not to give them credit for proper conduct in the business of the suit, we should be meting out too nicely the modes by which they are to obtain the information necessary for the interest of their client, particularly when they state that they have obtained little more than would have

been

been furnished by a bill of particulars in this action. Without any allegation of misconduct, the application for the interference of the Court is at least premature. And it could not be of any great advantage to the Plaintiff if another attorney were named for the Defendant, since nothing could prevent his present attornies from communicating the knowledge they possess.

PARK J. The motion is a novelty, and the Court ought not to interfere prematurely; particularly as the attornies are amenable to the jurisdiction of the Court if any improper conduct be alleged against them.

GASELEE J. So many persons attend the Master's office and take copies of proceedings in the course of a Chancery suit, that it would be difficult to draw any line to interference on the ground suggested.

BOSANQUET J. I am of the same opinion: but I by no means wish it to be thought a case may not occur in which the Court may think it right to interfere.

Rule discharged.

ALSTON and Others v. SCALES.

May 28.

highway is

liable in case

CASE for injury to the reversion. The Plaintiff's Surveyor of property was separated from a carriage highway by a ragged bank, with elder bushes growing on the top. The highway, which led to London, was not twenty for subtraction

feet wide.

to reversioner,

of a portion of his bank by

The Defendant, surveyor of the highway, pared the the road side,

although the

property is the better for what the surveyor has done.

1832.

ALSTON

v.

SCALES.

bank, the whole of which belonged to the Plaintiff, and made it straight in divers places; but in so doing, took away a little of the soil. The occupier, however, stated that the premises were the better for what had been done. And the Defendant relied on this, as well as on the 13 G. 3. c. 78. s. 15., by which it is enacted, "That the surveyors of the highways shall, and they are hereby required to make, support, and maintain, or cause to be made, supported, and maintained, every public cart-way leading to any market-town, twenty feet wide at least; and every public horse-way or drift-way, eight feet wide at the least, if the ground between the fences inclosing the same will admit thereof."

Alderson J., before whom the cause was tried at the last Middlesex sittings, told the jury that the question was, whether permanent injury had been done to the land; that, in his opinion, the removal of soil was a permanent injury; and that the projecting sides of the bank formed a portion of the Plaintiff's fence, as well as the bushes on the top.

A verdict having been found for the Plaintiff, for nominal damages,

Taddy Serjt. moved for a new trial, on the ground that the jury had been misdirected on the subject of damage, and the boundary of the Plaintiff's fence; contending that injury to the land could not be occasioned by that which improved the property, although it might remove a portion of the soil; and he put the case of a drain: and that, at all events, the Defendant was justified by the highway act, according to which he had a right to cut away the soil as far as the bushes, which must be taken to be the proper fence.

The Court, however, held that the direction to the jury was correct on both points; that the removal of the

smallest

smallest portion of soil must, in general, be esteemed an injury to the land, because it tends to alter the evidence of title; and that, as to the supposed case of a drain, it was so foreign to the question before the jury, that it was not necessary to caution them on the subject. Taddy, therefore,

Took nothing.

1832.

ALSTON

V.

SCALES.

DAVIS V. BLACKWELL, Executor.

May 29.

who pays

COVENANT. Breach, non-repair of a house de- An executor mised to testator by a lease which expired in December 1831.

legacies six months after

probate, cannot plead such payment in discharge of

The testator died in March 1829. Probate was taken out in May 1830, and this action was commenced in November 1830. The Defendant pleaded, plenè administravit; plenè administravit before notice of the covenant; plenè administravit before notice of breach of covenant. On which pleas issue was joined.

Covenant.

At the trial it appeared that the Defendant, after discharging some debts, made over the residue of the assets to the residuary legatee within six months after the date of the probate. No notice had been given to him of the state of the house in question, which had never been occupied by the testator.

A verdict having been found for the plaintiff,

Spankie Serjt. obtained a rule nisi for a new trial, on the ground that the Defendant was discharged by having paid over all the assests to the legatee before notice of the Plaintiff's claim. He cited Brooking v. Jennings (a), where, on plenè administravit, it was held that the Defendant might give in evidence that he was ad

his testator's liability on a