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REPORT

OF THE LATE

IMPORTANT TRIAL

IN

THE COURT OF KING'S BENCH,

IN WHICH

SIR CHARLES MERRIK BURRELL, BART.

WAS PLAINTIFF,

AND

HENRY JOHN NICHOLSON,

THE DEFENDANT ;

RESPECTING

THE PAROCHIAL RATES

CLAIMED BY THE

PARISH OF ST. MARGARET, WESTMINSTER,

FROM THE

INHABITANTS OF RICHMOND TERRACE.

Tried before the Right Hon. Sir Thomas Denman, Knt., C. J., and a Special
Jury at Westminster Hall, on Monday, the 9th of December, 1833.

TAKEN IN SHORT HAND BY MR. FRANCIS N. WALSH.

LONDON:

PRINTED BY AND FOR

J. B. NICHOLS & SON, 25, PARLIAMENT STREET,

AND SOLD BY W. PICKERING, CHANCERY LANE; J. & W. T. CLARKE,
PORTUGAL STREET; AND VACHER & SON, AND J. BIGG,

PARLIAMENT STREET.

CORRIGENDA.

P. 44, last line but three-instead of "answer of the record," read "

of the recovery."

BODLEIA

29 AUG 1960

LIBRARY

uses

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The following Gentlemen were sworn on the Jury. LIFE DACRE, Esq. Harley-street, Mary-le-bone. GEORGE MILLER, Esq. Cumberland-st. Mary-le-bone. WILLIAM HARVEY, Esq. Guildford-street, St. Pancras. ROBERT SMALL, Esq. York Terrace, Mary-le-bone. ANDREW GEORge BackoffneR, Esq. Monmouth-street. RICHARD HANCOCK, Esq. Lower Clapton. FRANCIS JAMES NUGEE, Esq. Bruton-street. WILLIAM ELMSLIE, Esq. York-street, Mary-le-bone.

Talesmen (pursuant to the Statute).

JAMES SMITH, Gerrard-street, Grocer.

JAS. WARNER STOPFORTH, Little Newport-st. Stationer. MELDREW SHEPHERD, Oxford-street, Baker.

JOHN WILDEY, Oxford-street, Hatter.

B

The Pleadings were opened by Mr. WATSON.

*

The Solicitor General.-I understand from my friend, Sir James Scarlett, that a question is to be submitted to your Lordship, as to who has a right to begin. I was not prepared for such a controversy, as it appeared to me not to admit of any doubt. My Lord, it is an action of trespass. There is no plea of Not Guilty; there is only one plea, which alleges that the dwelling-house in which, &c. before and at the time of making the rate and assessment, was within and parcel of the parish of St. Margaret, in the city of Westminster, in the county of Middlesex, and then alleges that a rate was made for the relief of the poor, &c. of the parish, going through all the various requisites for obtaining a distress-warrant, and that a distress-warrant was obtained, upon which the goods were seized in the plaintiff's house. The replication admits every allegation, except one. That is a positive allegation, and that positive allegation is denied. The plaintiff, by his replication, says that "the said dwelling-house in which, &c. at the said time when, &c. was not within and parcel of the said parish of St. Margaret," and this is the only issue upon the record. Now, upon whom does the affirmative of that issue lie? I say it lies upon the.defendant. If I were to withdraw, and give no evidence, my friend would be entitled to a verdict, for I have undertaken to shew this house is within and parcel of the parish. I affirmatively say it is. My friend negatively says it is not. The question is, who is to prove it?

The Lord Chief Justice.-Do you admit the amount of damage?

The Solicitor General.-There will be no question about the damages, my Lord. Your Lordship is aware that the Judges have laid down a recent rule, that in actions brought for damages, the plaintiff is to begin, but your Lordship will exercise a reasonable judgment on the subject, and see what is the object of the action.

The Lord Chief Justice. That rule was restricted to personal actions-actions for words and libels, and so on. The Solicitor General.-The old doctrine is, that the person on whom the affirmative lies, is to begin. This is not a question of damages, it is a question of right. Now, being a question of right, on whom does the affirmative

lie? It is clear the affirmative lies upon me, for I undertake to prove this house is parcel of the parish of St. Margaret. Is there any rule of practice more anciently established and more invariably acted on, than that the party on whom the affirmative lies is to begin? The recent decision of the judges applies only to personal actions. In the case of an action for damages, it may be hard upon the plaintiff, that the defendant should begin where there is a mere justification, but here the question to be tried is, whether this house is or is not within and parcel of the parish of St. Margaret? We say it is; they say it is not. Therefore, my Lord, it seems to me, with great submission, it does not admit of any reasonable doubt.

Sir James Scarlett.-We had a discussion of this sort, my Lord, before Lord Tenterden, in the Gray's Inn case. My friend was then for the plaintiff, and I for the defendant, and Lord Tenterden would not allow me to begin. The Solicitor General.-That was replevin with a plea of non cepit.

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Sir James Scarlett.-Which I proposed to withdraw, and to admit immediately that the goods were taken. My Lord, I apprehend the rule which has been made by the judges does apply to this case. This is an action for damages, and your Lordship cannot, by looking at the record, judge what evidence the plaintiff will give to support his claim to damages. I cannot take any admission from my friend, that the damages shall be settled, any more than he did from me on the non cepit, though no evidence was given on that subject. If your Lordship looks to the record, you will see how it stands. My friend says this is not a personal action-is not an action for taking goods a personal action? This is not an action for a trespass on the land; it is an action for taking away the goods of the plaintiff, and for that taking he is entitled to recover damages. That rule which has been laid down by the judges, was meant to apply to actions of every description where the plaintiff was to recover damages, but in this particular case the defendant cannot prevent the plaintiff from having the affirmative proof cast upon him, for I apprehend your Lordship is to look at the record to ascertain which party is to begin. You are to look to the record to see whether it be an action to recover damages, and having ascertained it is an action to recover damages, the plaintiff is entitled to begin. That is one of the

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