1833.

Doɛ dem. SMITH against GALLOWAY.

would have admitted of considerable doubt whether such
a construction were admissible. But the interposition
of the word "and" precludes it altogether. It is con-
tended that the words "now in the occupation," &c.
are an essential part of the full description. If that
were so, the description would mean much more than is
suggested; for Smallbones occupied in Blenheim Park
much besides that which the lessors had the power of
passing. That which follows" the county of Oxford,”
is merely what is called false demonstration; and false
demonstration cannot restrict. Taking the words as
they are, it appears to me that all which is described in
the words following the description of the occupation,
will pass. Many cases have certainly gone upon the
circumstance that the particular description came first;
in which it has been held that the effect of such a de-
scription is not altered by words of suggestion, or false
demonstration, following it. Such are Doe d. Beach
v. The Earl of Jersey (a), and of Doe d. Ashforth v.
Bower (b). And, in the present case, it is contended
that as the first part of the description is sufficiently
certain, its effect cannot be destroyed by what follows.
But in Chamberlaine v. Turner (c), the later words were
held to enlarge a devise beyond the effect of the earlier
There the words were "the house or tenement
wherein William Nicholls dwelleth, called the White
Swan," and William Nicholls occupied only the entry or
alley and three upper rooms. But it was considered
that the words "White Swan," shewed that all the house
was meant. And the same argument would apply here,
even if we were to take the words "
now in occupation"

ones.

(a) 1 B. & A. 550.

(b) 3 B. & Adol. 453.

(c) Cro. Car. 129.

as

as referring to the word "part." Chamberlaine v. Turner closely resembles the present case.

PARKE J. I am of the same opinion. The question is, what passed by this demise. Now the rule is clearly settled, that when there is a sufficient description set forth of premises by giving the particular name of a close, or otherwise, we may reject a false demonstration: but that if premises be described in general terms, and a particular description be added, the latter controuls the former. Here is a grant of all that part, &c. in general terms; had it been a grant of all that part now in the occupation of Richard Smallbones, and lying on the north west side of the line, the occupation would have been a material part of the description, and nothing would have passed which was not both in the occupation of Smallbones, and on the north west side of the line. But if the terms "now in the occupation" apply, not to "part," but to "park," they may be rejected, for they can be no more than an additional description of the park; so that the meaning would be, "all that part of the park which is called Blenheim Park, and is now in the occupation of Smallbones;" and then follows the description of the part which is to be demised. Therefore, under the clause following, all the farm houses, &c. belonging to the part demised, pass also; so that we may reject the false demonstration which comes after this clause. It seems to me that this is the true construction of the early part of the grant, in consequence of the word "and;" and the minute description which follows, cannot be brought into doubt by the words which come after it.

Rule discharged.

1833.

Dor dem.
SMITH

against GALLOWAY.

1833.

Saturday, May 25th.

of a highway, which defend

to be liable to

repair ratione tenuræ, and verdict found for the defend

ant, a new trial was moved for

on the ground of misdirection,

and the improper rejection of evidence. The Court refused a new trial, but suspended the judgment, in order that a

The KING against JOHN HENRY MANNERS
SUTTON, Esquire.

On indictment THE defendant was indicted for the non-repair of Kelham Bridge, in the county of Nottingham, which, ant was stated it was alleged, he was bound to repair ratione tenuræ. Plea, not guilty. At the trial before Parke J., at the summer assizes for Lincolnshire, 1832, a verdict was given for the defendant. In the ensuing term Sir James Scarlett obtained a rule to shew cause why the verdict should not be set aside, and a new trial had, on the grounds, first, of misdirection, and, secondly, that the learned judge had refused to admit as evidence certain rules of court of the reign of Charles II., which were relied upon on the part of the prosecution, as shewing that, on an indictment preferred in that reign, the liability of an ancestor of the defendant to repair the bridge, by reason of his tenure of the same lands, had come in question, and he had been found liable. The objection made to the reception of these documents was, that they could only be admissible as secondary evidence of a judgment against the ancestor, and no ground was laid for the admission of such secondary evidence, inasmuch as the want of the original records was not accounted for, and it did not sufficiently appear that the ancestor was a party to the proceedings in question.

new indictment might be preferred.

Quære,

whether a new trial is grantable after ac

quittal in any criminal case, except a penal action?

The Solicitor-General, Adams Serjt., and Amos, now shewed cause. The court cannot grant a new trial after

after acquittal, in a case of misdemeanor. There is no
distinction, in this respect, between one kind of offence
and another, nor is there any authority for the practice.
[Parke J. May it not be granted for misdirection (a)?] .
By consent only, as in Rex v. Russell (b). It is against
the general rule, that a party shall not be twice in
jeopardy on the same charge. The case of a penal
action is different from that of a misdemeanor at com-
mon law, because in the first the punishment is limited,
in the other, discretionary. A quo warranto informa-
tion is excepted out of the rule (c); but that is a merely
civil proceeding. The practice where a defendant has
been acquitted on indictment is laid down in 2 Tidd 911.
The Court has, indeed, under very special circum-
stances, suspended the entry of judgment, to give op-
portunity for another trial, Rex v. Wandsworth (d); but
this is not, in its circumstances, a case for such interfer-
ence; and there was here neither consent of parties, nor
any point reserved at the trial. In Rex v. Reynell (e), and
Rex v. Mann (g), the court (relying upon the general
rule) refused to grant a new trial after verdict for the
defendant, notwithstanding the instances which had
occurred of such rule being granted, after acquittal, in
a penal action, and in a quo warranto. So in Rex
v. Burbon (h), a new trial was refused, when the de-
fendants had been acquitted on indictment for non-
repair of a highway, Lord Ellenborough observing that
the right was not bound. [Parke J. The same case is

(a) See (as to a penal action) the observations of Lord Kenyon in Calcraft v. Gibbs, 5 T. R. 20.

(b) 6 B. & C. 569.

(d) 1 B. & A. 63.

(g) 4 M. & S. 337.

(c) Rex v. Francis, 2 T. R. 484.

(e) 6 East, 315.

(h) 5 M. & S. 392.

1833.

The KING against SUTTON.

1833.

The KING against SUTTON.

mentioned in a note to Rex v. Cohen and Jacob (a), where the court is stated to have said that the rule might be relaxed in some cases, in which rights would otherwise be compromised.] Here it is not so; the verdict of not guilty might have been given on the ground that no want of repair was proved. In Rex v. Cotton (b), a prosecution for non-repair of a highway, evidence was offered for the prosecution, which Dampier J. rejected, and the consequence was a verdict for the defendant. That learned judge, in deciding upon the inadmissibility of the evidence, said, "I wish that my opinion upon it could be reviewed; but in the manner in which it arises, that is impossible." Lord Kenyon said, in Rex v. Mawbey (c):-" In misdemeanors there is no authority to show that we cannot grant a new trial, in order that the guilt or innocence of those who have been convicted, may be again examined into (d)." There two of the defendants had been acquitted; but the observation clearly must be applied only to those who were convicted. In Rex v. Cohen and Jacob (a), an attempt was made to distinguish between motions for a new trial, on the ground of misdirection, and on the merits; but Lord Ellenborough did not admit the distinction. And there is no instance, except in the particular cases which have been pointed out, where, after acquittal on a criminal charge, the court has granted a new trial. (They then went into an argument upon the evidence, which it is unnecessary to notice here, as the court pronounced no opinion on that part of the case.)

(c) 6 T. R. 638.

(a) 1 Stark. N. P. C. 516. (b) 3 Campb, 444.
(d) See Parke v. Godin, 2 Stra. 815. Bull. N. P. 326. b.