what weight it would have had with the jury. It is a mistake to say that a conspiracy must be proved before the acts of the alleged conspirators can be given in evidence. It is competent to prove insulated acts as steps by which the conspiracy itself may be established. ROLFE, B.-I am of the same opinion. This has been put upon the footing of a mere declaration by a stranger; but it is clear that a claim may be manifested by words as well as acts. Whether it be by words or otherwise, it seems to me to be perfectly immaterial. Perhaps, where a party lays hold of the goods and says, "These are mine," it might be a stronger act; but, in either case, whether by a manual act or by words, a claim may be made. It is an act. PLATT, B., concurred. POLLOCK, C. B.-I entirely concur with the rest of the Court in thinking that there ought to be a new trial. I think that the inquiry was stopped too soon at the trial; but upon that I say no more; but I entirely defer to the authority of the rest of the Court upon the matter. This is by no means an unimportant question. The rule, therefore, must be absolute. Rule absolute. 1849. FORD v. ELLIOTT. VOL. IV. G EXCH. 1849. June 12. A writ of auditâ querelâ founded should be ob DEARIE . KER. THIS was an action on a bill of exchange, in which the upon a release plaintiff had recovered judgment. The defendant had obtained a writ of auditâ querelâ, and had issued a supersedeas thereon. tained by mo- fendant obtains the writ with out such affida vit, the Court will set it aside. Lush, on a former day in the present term, obtained a rule calling on the defendant to shew cause why the writ of auditâ querelâ issued and the allowance thereof, the supersedeas, and all subsequent proceedings, should not be set aside, and why the defendant should not pay the amount of the bill in the original action into court. It appeared by the plaintiff's affidavits, that the writ was founded on a suggestion that the plaintiff had released the defendant for a good and valuable consideration; and that the writ had been sued out, and allowed in open court, but without any affidavit in verification, and without the production of any release. Lush. It would seem that the present writ had been sued out under the supposition that the case of Giles v. Hutt (a) authorised the step without affidavit; but in that case the writ had been previously allowed, and, in such case, the supersedeas might follow as a matter of course. It appears from the authorities collected in 2 Wms. Saund. 148 a, and from Burton's Exchequer Practice, 289 and the following pages, that the Court ought to have the matter before them upon which the writ of auditâ querelâ is founded, and that this ought to be shewn by affidavit. The Court having granted a rule nisi, Hurlstone now shewed cause.--There is a complete an (a) 1 Exch. 59. court. swer to the last part of this application; for, as the defendant is in custody, the plaintiff cannot retain the body of his debtor in custody, and at the same time call upon him to pay the money into court. The real objection raised by the plaintiff to this writ having issued is, that it was sued out without an affidavit; but no affidavit was necessary, as the writ issues as a matter of common right; and for this the case of Nathan v. Giles (a) is an express authority, where it is reported, at page 571, that, "All the Court now, and repeatedly in the course of the preceding arguments, held that a writ of auditâ querelâ need not be moved for, but was a proceeding of common right and ex debito justitiæ." The writ is analogous to a writ of error. There is no rule in this Court, or the Court of Common Pleas, which requires the writ to be moved for in open In the Court of King's Bench, a rule of Court (9 Jac. 1) required the writ to be moved for in open court. The case of Torrey v. Adey (b) gave rise to that rule; but there is no such rule to be found in this Court. It is also said, that, as the release here was by deed, the Court ought to have an opportunity of inspecting it; but it does not appear that this release was by deed. The authorities on this subject are collected in Co. Litt. 100. a.; Corbett v. Barnes, 2 Wms. Saund. 148 f; Com. Dig. (L., I.) [Alderson, B.How is the Court to decide upon the matter to their satisfaction, except by affidavit, and motion in open court?] The case in Bulstrode shews that there was no necessity for an affidavit before that rule of Court. [Rolfe, B.—If the writ is, as you contend, of common right, the rule of 9 Jac. 1 in effect altered the law. Now the Court of King's Bench did not make a new law, but that being the law, they merely ordered that a notice to that effect should be put up in court. The rule was purely declaratory. Alderson, B.— 1849. DEARIE v. KER. (a) 5 Taunt. 557. (6) 1 Bulst. 140. (c) Sir W. Jones, Rep. 378. 1849. DEARIE v. KER. The meaning of the writ being moved in open court is, that the Court is to be informed of the matter. And how is that to be done, except by affidavit? The passage cited from Nathan v. Giles is a mere obiter dictum; no authority was given, and it is altogether very vague. It would be productive of mischievous consequences, if a different rule were to exist in the different Courts.] Hurlstone referred to Lampton v. Collingwood (a). [Alderson, B.-Peters v. White (b) was the case of an application by petition, to the Lord Chancellor. Rolfe, B., referred to Scriven v. Wright (c). Alderson, B., referred to Vin. Abr., Auditâ Querelâ (D.), 60, and Markham v. Turner (d).] POLLOCK, C. B.-The first part of this rule must be made absolute, viz. to set aside the writ and supersedeas. ALDERSON, B., ROLFE, B., and PLATT, B., concurred. T. Jones, in support of the rule, was not called upon. (a) 4 Mod. 306. Rule absolute accordingly. (c) 2 Bulst. 10. LUMB V. SIMPSON. 1849. June 11. AN action for injuries to a watercourse, by the deposit In an action on of acids and other noxious materials, had been referred to arbitration. The Master, on the taxation of costs, had disallowed all costs which the plaintiff had claimed as incurred by certain of his witnesses in viewing the lands of the respective parties, and in selecting and taking specimens of earths and of damaged trees and plants from the lands of the parties, for the purposes of analysation, and to be produced in evidence in the cause and on the reference, and which were produced on the reference. the case for an injury to a wa tercourse by the deposit of noxious materials, taxation, disal the Master, on lowed costs in curred by the plaintiff in obtaining specimens of earths and plants from the lands, for the purposes of analysation and production at Pashley now moved for a rule calling on the defendant the trial: to shew cause why the Master should not review his tax- disallowance was right. ation, and contended that the costs in question ought to be allowed. He cited Bastard v. Smith (a), Holmes v. Holmes (b), Whitehurst v. Penn (c), Johnson v. Lawson (d). [Rolfe, B.-In Ormerod v. Thompson (e), it was held, that the expense of surveying and taking levels, in order to ascertain whether a weir had been improperly raised, to the prejudice of the plaintiff's water-mill, were not allowed to the plaintiff on taxation. Alderson, B.-We do not allow the expenses incurred by witnesses being sent to view the place.] POLLOCK, C. B.-In this case we are all of opinion that there ought to be no rule. We adhere to our decision in the case of Ormerod v. Thompson, which is of recent date. ALDERSON, B., ROLFE, B., and PLATT, B., concurred. Rule refused. (a) 10 A. & E. 213. (d) 2 Bing. 341. |