Andrews Hickman against colley the damage find be under S the defendant be  allow to enter a suggestion of the party be citizen of London to entitle he to  cost on James c though the damage lie be above S SC stram action on the case  upon several promise one of which be for five pound for repair a house of the  defendant upon a special contract and the damnum be lie to be above forty  shilling but the plaintiff recover a verdict for one pound five shilling only  and l e c j before who the cause be try report the case to be this the  plaintiff who be a bricklayer at the defendant request send his servant to a  house belong to the defendant to take a view of it and be order to bring a  estimate of the expense to which the reparation will amount which he accord do  and a large ladder and also some lime be carry to the house by the plaintiff  under a expectation of do the work but he be countermand by the defendant from  proceed far therein and the c I say that there be no contract prove between  the party and that he be not dissatisfy with the verdict upon this case it be  move that the plaintiff may file the plearoll and bring in the postea that the  defendant may enter a suggestion on the roll in order to entitle by myself to  cost upon James c the party be citizen of London of which a affidavit be  produce and the debt for which the action be bring be under forty shilling and  solicitor general strange in support of the motion cite the follow case in  most of which such suggestion have be allow pennil and Wallis a stram a mich W  Marsfield and soam Trin g Brandon and crab b stram b hill g king and Polland c  Poland stram c Trin g Catherell and Cooper d Barnard Kely d walker and sir  Philip Egerton e stram e Devenish and marton east g in this court Devenish and  marton east g a discontinuance have be pray to be enter tip in a action of  trespass for take away the plaintiff gun the defendant apply for leave to  enter up a suggestion that he be a justice of peace and in the execution of  his office in order to have double cost but the court say that as by the  discontinuance both party will be out of court such suggestion will not be  proper and therefore they grant a rule that on payment of double cost the  plaintiff may discontinue a SC stram Kely bull n p V Grindley Holloway Doug  Andrews and it be urge that such a suggestion can be of no prejudiceto the  plaintiff because be may plead or demurrer to it and so it be do in some of  the abovecited case on the other side it be object by sergeant urling Mr  denison and other that it do not appear that either of the party be within the  description of the statute of James in the affidavit produce the plaintiff be  say to be citizen and bricklayer of London without show that he be so at the  commencement of the action or that he be then resiant within the city and as  to the defendant it appear that he be a large trader and considerable merchant  whereas the Act attend only to inferior tradesman such as victualer c which be  mention in the body thereof and the title speak only of poor debtor this  application can now be make because it be too late the judgement be enter as  take by default and in Marsfield and soam cite contra it be hold that if  default be at the trial this motion can be make this matter do not indeed  appear in the present case by the distringa but this be alter without the  plaintiff consent and the postea be contrary thereto and show that the  judgement be take by default and a affidavit be produce to show that the  judgement be at first enter in this manner although the damage here give be  under forty shilling yet as the plaintiff have a probable cause for the  recovery of more this be not a case within the statute for the word thereof be  debt to be recover whereas if the meaning Andrews er p be that the court ought  to be determine by what appear upon the trial or by the verdict it will have  be so express as it be in the statute of I W m sess c where it be say which  upon the trial shall be find c those word to be recover mean only the cause of  action and so statute of a like nature have be construe so where the statute  of glouc c Andrews enact that none shall bring trespass before justice unless  the good take away be worth forty shilling this must appear in the plaintiff  count bro jurisdiction pl Inst the James c which be contemporary with the  statute now under consideration against remove action out of the inferior  court where the valudis under five pound say if it shall appear or be lie in  the declaration c which last word show the meaning of the precedent one and  upon the g c which enact that where the cause of action do not amount to ten  pound the proceed shall be in English the court have always refuse to set  aside proceed where the damnum be ten pound though the jury find the damage to  be under that sum in the present case one of the count be for five pound upon  a special contract and though the work contract to be do be countermand yet a  action may be bring for the whole sum lev it be reply by Mr solicitor general  and Mr commonsergeant Garrard that it be swear that the plaintiff be a citizen  and bricklayer of l and this be not deny on the other side and as to the  defendant it appear that he be a trader and consequent this be a case within  the Act which be make for the benefit of defendant as to the time if the  defendant have apply soon it will have be irregular for in Marsfield and soam  the first application be make before the verdict and it be hold to be too soon  the other part of the objection that there be a default at nisi prius will if  true be a fatal objection and upon this objection the suggestion be refuse in  Branclon and Crabb but in the present case it do not appear by the distringa  that the verdict be take by default and though the postea be different yet the  distringa which be the warrant for that be only to be regard and in fact there  be no default and Mr solicitor say that the practice of enter a verdict as  take by default where it be not so be not to be endure and the only reason for  do it be because there Andrews be a fee to be pay for it in answer to the last  objection the case of pennil and Wallis as it be state in Prandon and Crabb be  in point that be upon a quantum to deserve and the verdict be for thirty  shilling and though it be incertain in point of damage a suggestion be there  allow for these reason the court overrule the two first objection and lee c j  say in relation to the first of they that as it be swear the plaintiff be a  citizen and bricklayer of l and it be not swear on the other side but that he  be so at the beginning of the action this be to be intend and as to the other  part of the same objection though the preamble of the statute mention only  poor debtor yet the enact clause mention tradesman in general and upon this  the construction must be as to the last objection the c I say he shall give no  opinion thereupon and that if it be plain the defendant be not entitle to cost  he shall be against allow the suggestion but that he be very far from be clear  of this opinion and the case of pennil and Wallis be to the contrary and  therefore as there be no case in point on the other side it will be hard to  refuse the defendant leave to enter up the suggestion especial as this be his  only remedy and may be traverse in every part and such suggestion have always  be allow and the rest of the court seem strong incline to think that the lie  the damnum above forty shilling be not alone sufficient to draw the case out  of the statute because this may be always do and consequent the Act whole  evade but that the word to be recover must be understand of such damage as the  plaintiff shall have a good and effectual verdict for and upon which he shall  be entitle to final judgement the rule be therefore now make absolute per  totan curian for enter up the suggestion S p Weston Donnelly sayer see  Fitzpatrick Pickering will barn it appear from strange report of the principal  case stram that the plaintiff demurrer to the suggestion and the defendant get  judgement and be hold entitle to his cost of this application as well as of  the trial and former Andrews er p proceed in tailor Blair term Rep b r it be  hold that a defendant live within the jurisdiction of the court of request of  Westminster if sue in a superior court for a debt under S must to have the  benefit of geo c plead the statute in bar and if he do not the court will not  allow he to enter a suggestion or stay proceed see Woolley Cloutman Doug wase  Wyrtird Doug Aylway burrow Doug Wiltshire Floyd Doug