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Full text of "Reports of cases argued and adjudged in the King's courts at Westminster. [1742-1774]"

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V- 








a^- 



REPORTS 



OP 



CASES 

ARGUED AND ADJUDGED 



IN THB 



jUttng's Courts at IKEteftminfter. 

« 

By GEORGE WILSON, Esa. 

SERJEANT AT LAW. ^ ^^ ja^ 

A^^^^ ^^ 

IM THREE VOLUMES. 
VOL. III. 

CONTAINING 

CASES In the Court of COMMON PLEAS, &c. bcrirtning 
' in Michaelmas Term in the loth Year, and ending in 
Easter Term in the 14th Year of the Reign of His prefent 
Majefty KING GEORGE the Third. 

THE THIRD EDITIONS 

With additional Notes of the Points determined; References to 
modern Cafes, and improved TABLES of the PRINCIPAL 
MATTERS, and of the NAMES of the CASES. 



PJttllTlO BY n. BALDWIN AND SON, NEW BBlDCB-tT&lZT, 

rOR I. AVD R. BKOOU AND J. RIDBR» J. BUTTBRWoaTHi 
W. CLARKE ANP 80V| AKD Rf rilBKBT. 



J799- 



iUL'23 1901 



ly^ 



f 



MICHAELMAS TERM. 

20 Geo. II. 1746, 



*^ Rawllnson versus Stone. In Error. B. R. . , 

* • ♦ 

THIS was an aQion upon the cafe, brought- in the C. B, ^ pitwniiTory 
againft Rawlinfon by Stone^ upon a promiflTory note, pay- ^.'^S^^* 
I able to A. B. or order, and indorfed by the adminifiratrix of hii order, 
A. B. ; Rawlinfon the defendant below demurred fpecially «>y ^ *»"' 
j to the declfration, and fhewed for caufes of demurrer ; 1/?, That Jffig,fed wer 
f Stone^ in his declaratidn, had not made a profert in^ curiam of byhiitdmU 
I the letters of adminiftration ; and 2dl)\ That it did not appear n»ft«tr«j 
' by whom adminiflrati<)n was granted ; a third obje£kion was 5"?^^ be? " 
» taken at ihe bar of the C, B. viz. That an executor or admini- piaintur, 
ftrator cannot by indorfement negotiate ot affign over a pro- »««^ «>* 
miffory note by the cuftom of merchants^ fo as to give the in- ?jf^*^*" 
I dorfee an a6lion thereupon in his own name. • riMof^ 

letters of i^« 

{ This cafe was argued in C. B. three times ; the laft time, in jj^jj]^^"' 

i Hilary term 18 Geo. 2i by Serjeant Prime for the plaintiff thtre 137)^64. 
I [Sl6ne\^ and Serjeant Birch for the defendant there [Rawliri/bn]^ » Stra. i»6o# 
when per totam curiam^ the two .firft objc3ions were over- ^"S* ^*'*^ 
ruIcS, becaufe the. letters of adminiilration cannot be fuppofed rsee ^i Terw 
to be in the cullody or power of the plaintiff 5/^Af the indforfee j Rcp» K. B, 
and upon the trial of the caufe, it would be incumbent upon him ^*^' ^^*^ ^^ 
to fliew to' the court and the juiy, that the perfon who* in- nabie pcrfonl 
dorfed the note to him was the legal and proper admin iftrator ally on fnch 
of 4' B' : and the third objeQion was likewife over-ruled, be- »o<J<»fc«wat] 
caufe it is well known to be the-conftant praftice and ufag# 
among merchants for executors and admlniilrators to indorfe 
and negotiate both promiffory notes and bills of exchange ; and 
the courts of juftice will always endeavour to adapt the rules 
of law to the ufage and courfe of trade, ad ea qu^ frequentius M«im» 
accidunt jura adaptantur :. and the courts ot Law are war-' 
ranted ini^^, by the words of the flatute 3 and 4 Ann. c, 9. 
y&?. 1 • which fays, that promifibry notes, pay^^ble to ?ny perfon 
. VoU 111, B or » 



Michaelmas Term 20 Geo. IL 1 746. 

or pcrfons, his, herj or their order, fliall be aflTignable or in- 
dorlable over in the fame manner as inland bills of exchange are 
or may be according to the cuftom of merchants. The court 
laid, that the equitable interefl in the note is converted into a 
legal intcfcft,' and the whole intereft is vetted in the admini- 
ibrator, who before the ftatute might have afligned his e({uitable 
snterell, and fmce the ftatute may now aflign his legal intereft. 
Judgment was given for the plaintiff" «S/©«^ below by the whole 
court of C B. whereupon Rawiinfon brought a writ of error, 
and afligned the general errors ; and in this term the cafe was 
argued b\' Sir Thomas BootU for the plaintiff* in error, and by 
}&. Foraiox the defendant in error. 

Sir TTiomas BootU objected, tfl^ That a promiflbry note pay- 
ad>le to aa inteftate or his order, is not aflignable or indorlable 
over by his adminiftratrix, fo as to enable the indorfee to bring 
an a£lion thereupon in his own name, and that it was incumbent 
u^n Sione the plaintiff* below to have al lodged and fliewn (which 
Ytt has not) in his declaration, that by the cuftom of merchants 
iftland bills of exchahge are affignable and indorr2d>le over by ad- 
miniftrators or executors ; for that the Statute oftht^(3\of 
Qwun Ann only makes noted of hand negotii£le ija the fame 
manner as inland bills of exchange ; and he faid, in an aQioa 
upon a bill of exchange, unlefs the plaintiff* declares upon a cuf- 
tom to fupport the ajumpjit according to the common form, the 
a£lion will not be maintainable, and cited i LordRaym, ft8i. 17^. 

s^, Sir Thomas BootU objefled, that the plaintiff* has not in 
his declaration made ^frojtrt in curiam of the letters of admini« 
ftration, for that perhaps the adminiftration in this cafe might be 
granted by ^peculiar, and if fo, the right of committing adx^ii- . 
liiftration by l\xc\i peculiar ought to be sJledged, and is a matter 
of fubftance and traverfable \ iox de ccmmunijurey here in En^^ 
land it bdon^i to the ordinary to ffrant adminiftration ; and in 
feipport of dus objefVion he cited Venham v. Steutnfon. 6 Mod. 
$41, d4d. and prayed that the judgment might be reverfed. 

Mr. /orrf for the defendant in error. Two objeftions are 
flftken, 1^, That a note of hand, payable to one or lus order, is , 
net indorfable by his adminiftratnx. ^d^ That every indorfee of 
ftich note being a plaintiff*, ought to bring the letters of admini- 
ftration into court. 

In smfwer to the tfl objedion, it muft be admitted, that jpro* 
miflbry notes w^re not amenable or indorfable in point ot law 
before \)xejiatuie oftht 3 £?4 ofQ^. Jnn, but bills ot exchange, 
by the law and cuftom of merchants, were always indorlable ; 
mA by that ftatute notes of hand were made indorfable in like 

manner 



MiCHABucAS Term 20 Gtbo. II. 1746; . 8 

Bi^nner afi hills of ^xctiange, to the inteoi to encourage trade 
and commerce, which, the preamble of the Aatute fays, will be 
much advanced, if fuch notes fliall have the fame eScB, as in« 
land l^ilk of exchange, and fhall be negotiated in the like man« 
ner: an adminiftiator of a merchapt, having the abiblute nro* 
perty of a note of hand or a bill of exchange may, by the cultom 
of merchants indorfe and negotiate the fame ; it he could not, it 
would tend to difcourage ramer than encourage trade and com- 
merce, contrary to the very pur\'iew of the ftatute ; for fuppofc 
a merchant in Holland has a bill, or a note of hand upon a 
merchant in London^ muft his executor or adminiilrator come 
here into England to fue for it, and Ihall he not be able to in* 
dorfe it o^-^er ? If this be law, it will go a great way towards ruin* 
ing, inftead of encouraging trade and commerce. A note of hand; 
payable to A. B. or order, is not fo afHxed to the perfon of A.Bi, 
individually, that nobody elfe can indorfe or negotiate the fame 
note ; for it has been determined, tliat a woman, while fole, 
having a note of hand payable to herfelf or order, and betn^ pof- 
fefled thereof marries, (lie cannot by law indorfe or afTign it over 
while Qie is covert; for it is the abfolute ible property of her 
hufband, and he alone can indorfe it. And as to what was faid. 
by Sir Thomas Bootlc^ that the plaintiff below ouglit to have al* 
Icdged and (hewn in his declaration, that, by the cuflom of mer* 
chants, bills of exchange are indorfablc by adminiilrators or exe* 
cutors, the cafe of Enjkinc v. Murray^ a Id. Jtaym. 1542, is att 
anfwer; for there the court rcfolved, that the law took notice of 
the cuftom of merchants, without fetting it out fpecially, and that 
if a bill, as fet out in a declaration, appeared to be within the 
cuftom of merchants, it was fufHcient. 

In anfwer to the a^objeflion : To be fure, he who brings an 
a^^ion by a particular authority, muft (hew tkat authority to the 
court ; but with regard to the prefent defendant in error, who 
has no ri^t to the po{re{Iton of the letters of adminiftration, 
the law will not require him to produce them to the court, be« 
caufe it is not in his power fo to do : And in order to (hew in 
what cafes a perfon in pleading is or is not obliged to (hew to 
tlie court a deed or writing, Mr. Ford cited, ,5 Rep, 74, 25" 
Wymarkes Caft. jo Rtp. 94. a* DoSor Ltyfield^s Cafe* tro* 
Car. 209. Gray v. Fielder. Cro. Jac. 70. Dag £3 KaU^ Vi 
Penkevon^ and prayed tliat the judgment might be af&rmed, 

Ixe Chief Jufttce ; Suppofe a plaintiff is afli^ee of a leafe 
aftignH to him by an admin iftrator, is he obliged to make a 
fr^itri in curiam ot the letters of adminiftration ? I am of opinion 
he is not. There hath been no cafe cited, on cither fide of tha 
qiieftion, .whether the prefent a£lion is maintainable or not : The 
ad cf parliament has znade promiffory notes indorfable and a(rign^ 

£ 2 able 



4 Michaelmas Term 20 Geo. IL 1746. . 

able in like -manner as bills of exchange, ^^n^ra//^/ and if the 
plaintiff in error would reftrun or confine this power of indorfing 
or ai&gning notes to the perfons only to whom fuch notes are 
payable, it lies .upon him to ihew that this is fo, by the true 
meaning and conftru&ion of the ftatute ; but that he has not 
done. 

Xhe whole intereft and property of this promiflbry note was 
in the adminiftratrix ; which note, in its nature, is made aflign- 
able by a£l of parliament ; and therefore I fay again, that it is 
incumoent upon the plaintiff in error to make it out that it is 
not aflignable in the hands of the adminiftratrix ; but why it 
ihould not be afOgnable in the hands of her who hath the whole 
property in it, I cannot tell ; and if inquiry was to be made into 
the ufaffe among merchants, I believe there would be found 
many inftances of thefe notes being affigned by Mminifirators. 

As to the 2d obje£lion, I think it has received a very full an- 
swer. In an a£lion brought by an adminiftrator himfelf, whofe 
power to fue is founded upon tne letters of adminiftration, it muil 
be alledged in the declaratioifi, that adminiftration was cohimittcd 
to him, and that thofe who granted it had a right to grant it ; 
but he who claims under an adminiftrator, has no occafion to 
make a profert in curiam of the letter* of adminiftration, bccaufe 
he has not the fame in his power or cuftody. Upon the whole 
}, am of opinioa that the judgment ought to be afiirmed. 

. Wright Juftice, fpoke to the like eSe£}, and was of the fame 
opinion, 

Denifon Juftice, fpoke to the like e&e£l, and moreover faid. 
That as this cafe came before the court upon a demurrer in law^ 
the queftion was, Whether this is not a good indorfemcnt in 
point of law ? And he was of opinion that it was good, and' that 
the a£l of parliament muft have a liberal conftruSion, ii being 
made for the benefit of trade and commerce. 

But Mr, JuHjce Denifon further faid ; That if it had appeared 
to the court upon a fpecial verdift, that there was no fuch cuftom 
among merchants, as for adminiftrators to indorfe or aflign bills 
of exchange, it would have been a very different cafe from the 
prefent ; but that no fuch thing appeared, and in truth that the 
cuftom is for adminiftrators to indorfe and aflign bills; that lie 
previoufly had fome notice of this cafe coming before the 
court, and therefore had inquired touching the ufage among 
merchants, and been well informed that it was the conflant 
ufage amonffft them, for adminiftrators to indorfe and afTign 
over bills of exchange made payable to their intcftatcs or order : 

That 



Michaelmas Tbbm 20 Gbo. II.' 1746. * 5 

That fuppofe a note of hand is made payable to ^femefoU before 
marriage, and fhe afterwards marries, being poiTefled of the note, 
payable to herfelf or order, flie, being covert, cannot indorfe A aotie pa^r- 
and affign over the fame. And to this purpofe he cited a cafe of ^^"^J^ ^ 
Connor and Martin^ in C. B, Eafitr^ 8 ^o* 1. which he himfelf wd^, ^ 
took a note of in that court ; it was an adion brought by the marries, it 
indorfee of a promiflbry note, payable to Sufan Connor or her ^"^"^.^ 
order, and given to her before marriage ; wnich note, alter her jj^p^/aad 
marriage, and while covert, fhe indorfed to the plaintiff: The Ihecanooc 
defendant pleaded that Sufan Connor was married at the time of *"*''^ 
the making the indorfement : The plaintiff demurred ; and the |^, cofeit. 
queftion upon argument was, Whetner the plaintiff could main- i Str. 516. 
tain the action upon a note indorfed by zfeme covert? The [«»^^«c iP. 
whole eourt were of opinion that the^^»i^ covert could not ai&gn *** *^^'^ 
the note, becaufe by act of law it became the fi>le ri^ and pro- 
perty of her hufband : This (hews that it was not an intereft 
fixed to her jperfon, becaufe if it had, (he might have indorfed 
it. He alfo (aid, that the 2d objection had been fully anlwered; 
and that he was of the fame opinion with the C. J. and Wright 
Jufticc. 

Fojlcr Juftice, of the fame opinion. 

Judgment affirmed per toiam curiam^ 



B 8 TRINITY 



TRINITY TERM. 

7 Geo. III. 1767. * 



Between Theodore Darky, Brother and Heir at Law 
<^ Viflcent Darlcy deceafed, PlaintifF ; 

AND 

Elizabeth Darlcy, Widow, George Vincent LaOff- 
worthy, Garland Langworthy and Eflex his Wife, 
Sarah Marfhalf, Wid6w, Robert Gould and ^&ry 
his Wife, and John Trehawke, Defendants. 

THIS cafe was made for the opinion of the judges of 
the court of Common PUas, by an prder of the court 
oi Chancery of the 10th oi December 1766 ; which ilates, 

A cafe feat That the plaintiff's brother, Vincent Darley deceafed, was 
from the fcifed in fee of the premifles in quefiion ; viz, the manor of 
chancery up- Trewithie^ the moiety of the manor of Relaton Peverell, Battens^ 
oncheqaef. AdacTofty Bowda, Tre/well, Trefellan^^ Lanxton^ Trewanet, and 

tion, whether t^^ twelve parts in Twelve Men's Moor. Winter alia) ex parte 
a common re- J ^ » i y r 

covcry fuffer- ^^terna. 

cd by tenant for lif«y with remainder to truftecs to jireferve contingent remainden ; remainder to 
yie Cune tenant fbr life in fee j is a revocation of his will f 



That Vincent Darleyi previous'to his marriage with ERzabetk 
Newton widow, by indentures of leafe and releafe, dated the 7th 
and 8th days of February 1743, 'he releafe being tripartite, and 
made between Vincent 'Darley of the firft Tpzii/fViUiam Archer 
Efa. deceafed, and John Trehawke, of the fecond part, and the 
hid Elizabeth Newton of the third part : The faid Vincent Darley 
in confideration of the marriage, and of joo/. paid as a marriage 
portion and provifion of maintenance for the faid Elizabeth^ in 
cafe fhe furvived him, and in bar of dower ; and in confideration 
of the yearly income' which he wbuld be intitled to have and 
receive, in right of the faid Elizabeth^ during their joint lives ; 

and 



TuKiTr TjEfiM 7 Gso. IH. 1767. r 

and for feitlii^ihe premifles in ^uefti<m as thereiiB and fasmn* 
after is mentioned ; did thenbym\^, grant and coov^, tmtD the Mamafe fee. 
faid WiUium Archer and Jt^^ irrAattMie; and'to tfanr heirs £cir tiemcac of 7 
ever, all tfaofe meiltiages, lands and premiifes, called BatitnsnnA *^^ ' ^^^ 
AdacTaft^ with die appurtenances, lying in NvrMl^ in the pof« ' 
feflton of the faid vincent Darlty deceafed; and all thofe twa 
other mcfluages and tenements, with the appurtenances, called 
or known by the name oiljinxtony otherwife lAngton^ in Nariluil 
eforefaid, late in the pofleffion tAPder Hurdon butcher, deceafed; 
and alfo all thofe two other mefiuages and tenements called bf ' 
the names oiJrezuithu and Lswame^ then alfo in the pafrefTioH 
of the faid Vincent' DarUy or his tenants, and the rev^en and 
reverfions, reinaiader and remainders, rents, duties, and fervice^ 
of all and lingular the faid premiircs, and all dbe eftate, right, 
title, intereft, ufe, poireflion, claim and demand whatfaever, of 
him the faid Vincent Barley^ of, in, and unto the laid premifles ; 
to hcdd the fame with the appurtenances unto the fatd WMimtn 
Archer and John Trehawke^ tlie.tr heirs and affigns for ever ; in 
truft to, and for the ufes, intents and purpoies, and with and 
under the conditions, powers, limitations and authorities, therein 
and herein-after mentioned, limited, appointed, expreffed, atid 
declared (that is to fay) ; to the ufe and behoof of the faid 
Vincent Dmriey^ his heirs and afligns, until fuch time as the faid 
intended marria^ fliall take ei&fl, and be duly bad and fo- 
iemnized; and from and immediately after the fblemnizatioa 
thereof, to the ufe and behoof of the faid Vincent Ikurley and 
his ai&gns, for and during the term of his natural life, wi&hotit 
impeachment of or for any manner of \fafte, and with full 
power for him or them to commit wafte ; and afterwards, and 
irom and after the deteimination erf that eftate, to the ufe and 
behoof of the faid William Archer and John Trduiwke^ and 
their heirs, for and during the* natural life of the faid ^tncniif 
Barley^ upon truft, and to the intent to preferve the contingent 
ides and eftates therein limited and appointed, from being 
barred, docked, defeated or deRroyed, and for that purpofe to 
make entries and bring a&i'ons as often as need ihall require ; 
but neverthelefs to jpermit and fufier the faid Vmoent Darky apd 
his affigns, peaceably and quietly to hold and enjoy all and (in* 
gular the aforefaid mefluages, lands, tenements and premifles, 
with the appurtenances ; and to liave, rtake^ receive and keep, 
the rents, ilfues and profits thereof, durii^ his natural life: 
And from and fcfter the death of the faid Vincent Uarley^ to this 
further ufe, intent and purpofe, that h fliall and may be law- 
ful to and for the;,faid Elizaketh Newton and her afligns, im- 
mediately from and after the folemnization of the faid intended 
marriage, and the deash of the faid Vincent Darky her in. 
tended faufband, to iiave, levy^ receive and take, for and dtu 
ring her natural life, one annuity or yearly xent-ch«rge, di 

a 4 fifty 



a TiiiNiTY Tebm 7 Geo. III. 176/. 

fifty pounds, of lawful money of Great Britain^ free and cleiau' of 
ana trom all and all manner of rates, taxes, impofitions, defaU 
cations, dedu£lions or abatements whatfoever, already impofed 
or to be impofed upon the faid premiles ; and the faid annuity 
to be paid quarterly^ by even and equal portions and payments ; 
the firft payment tnercof to be made on fuch feaft as ihall next 
happen after the death of the faid Vincent DarUy^ in lieu and 
full fatisfa&ion of .dower ; with a claufe of diflrefs for nonpay- 
ment of the faid annuity, and a claufe of entry in cafe the lame 
annuity is in arrear for three months, and no difirefs to be 
found : And after the death of the faid Vincent Darky and Eliza* 
betk Newton^ to the. ufe of the faid William Archer and John 
Trekawke^ and their executors and adminiftrators, for the term 
of two hundred years, for younger children's portions : And 
after the determination and expiration of that term, to the ufe 
and behoof of the firft fon of the body of the faid Vincent Dar-. 
iey^ on the body of the faid Elizabeth : And afterwards, and for 
default of fuch iflue, to the ufe and behoof of the fecond, and 
all and every other fon and fons of the body of the faid Vincent 
Darley^ on*. the body of the faid jE/ua^^/A lawfully to be be- 
gotten, and the heirs of tlieir bodies, lawfully iifuing, feverally 
and refpeftively, as they (hall be in priority of birth, and feniority 
of age ; the eldeft of fuch fon and fons, and the heirs of his 
body, being always to be preferred, and to take to the faid pre- 
miiles before the younger of fuch fon and fons, and the heirs 
of his body : And afterwards, for default of fuch iflue, to the 
ufe and behoof of the faid Vincent Darley^ his heirs and afligns, 
for ever. 

That the marriage, foon after the date aiid execution of the 
faid fettlemcnt, took effcft ; but there never was any child or 
children of the marriage either male or fepiale. 

The will da- That Vincent Darley, on the loth day of Otlober 1759, made 
r?59? ^^* ^^ ^*''' *"^ thereby devifed all his lands, tenements, and here- 
ditaments, ^in the counties of Devon and Cornwall, to the defen- 
dant Elizabeth Darley his widow for her life, with remainders 
over. . 

Lcifcandrc- That the faid Vincent Darley , afterwards, by indentures of 
aS and^ *** Icafe and releafe, dated the 28th and 29th days ot September 1763, 
Sept? 1763. niade between the faid Vincent Darley of the one part, and George 
ffomrmceat Grccn gcnt. of the other part, for the confideration of ten fliil- 
^tfr/iy to lings, did grant, bargrain,. fell, releafe and confirm unto the faid 
in*fcc, tThls George Green, his heirs and affigns, all that the manor of Tre^ 
ufe, in con- withte, lying in Northill, with the rights, members, and appur- 
i**«"wmi°^ tenances; and alfo, the moiety of the manor of Relaton Peverell^ 
£yLig*^U wai ^y"^g "^ Northill^ and linkinkam^ and all thofc lands, tenements,. 

and 



Tkinity Tebm 7 Geo. III. 1767. 9^ 

ahd hereditaments, called or known by the name or names of ^ «*'« 

Baiiens, Adacrrft, Bowda. Trefwell, Trefillam. Lanxton, and ^^^^ 

Trewannety lying in the feveral pariflies ot ff or tkill^ LiniinAam^ dpe. 

and Saint Juliot aforefaid, with the appurtenances ; and alfo two 

twelfth pans of Twelve Men's Moor^ with the appurtenances lying 

in Northill aforefaid, together with ail houfes, &c, and the re^ 

verfion and reverjions^ ranaindtr and remainders^ rents and fer- 

viccs of the faid premifes ; and, all the rights title^ interejl^ ufe^ 

poJfeJRon^ tlaim^ and demand wkatfoevcr^ of him the faid Vincent 

DarUy^ of, in, and to the fame manors, lands and premifes 

with their appurtenances ; To have And to hold, all and 

Angular the faid manors, meflliages, rents, lands, tenements 

and hereditaments, and all and fingular other the premifes, with 

their and every of their appurtenances, thereby granted, releafed 

and conBrmed, or mentioned or intended fo to be, unto the faid 

George Green^ his heirs and affigns for ever, io the only uft and 

behoof of the faid George Green^ his heirs and affigns for ever- 

more^ to be holden of the high and chief lord and lords of the 

fee and fees of the faid premifes, by the rents, fuits and fcr- 

vices thereof, (if any) aiuiently due and of right accuflomed to 

be paid for the fame. , 

There are the like deeds of leafe and releafe from Chrijiian 
Coad to the faid George Green^ of lands in Saint Ives^ which are 
likewife comprized in the recovery herein-after mentioned. 

That by indenture tripartite^ dated the firft day of November i Nov. 1763. 
1763, between the Cud Vincent Darley, Chrijiian Coad, and John J?^^"^" "' 
Coad oiHie firft part, the faid George Green of the fecond part, atoveieafe 
and Edmund Turner of the third part, after reciting the faia in- and releafe, 
dentures of leafe and releafe of the 28 G? 29 of September 176^, *°**n*"* M*to 
from the (aid Vincent Darley to the faid George Green ; and like- ^,J.° oreen** 
wife the faid indentures of leafe and releafe from tlie faid ChriJHan unant to the 
Coad to the faid George Green ; and that the faid feveral inden- P™^*^» .•"^ 
tures of leafe and releafe were fo made to the faid George Green, ■"recovery'' 
and his heirs, to the ufe, intent and purpofc, tliat he the faid and leading 
George Green wight become perfed tenant of the freehold of the faid ** **^J' 
manor, mejfuages, lands, tenements, and premifes, with the ap- *"** * 
purtenances, and (hould and might ftand feifed thereof until a 
good and perfpcl common recovery with double vouchers oyer 
might be duly had, fuffered and executed, of the faid lands and 
premifes, acc<)rding to the ufual courfe of common recoveries, 
for the aflurance ot lands and tenements, in fuch cafes ufed and 
accuilomed, it is vntneffed and agreed, by all the parties and 
their heirs, in manner following ; that the faid Vincent Dariey 
and John Coad, ihall and will, before the end of Mz'chaelmas 
term then next coming, permit and fufier the faid Edmund Tur^ 
ner to fue forth* and proiecute againft the faid George Green, one 
writ of entry, fur dlffeijin in le pofi^ returnable before his n»- 

3 jefty's 



lo Trinitv TfiJBiM 7 G«o. IH, 1767. 

je%*sjufticcsoftheC!(?;«m<7«P/Miat*F^wii;?«^, thereby demand* 
ing againft the faid George Grren^ t\ic (aid manor, fiieffuages, lands, 
tenements, hereditaments, and preifiifcstherein-before mentioned^ 
by fuch name and names, number of acres, <]uantittes, qualities* 
of land, and other certainties and defcriptions in the faid \mt to be 
contained, and in fuch manner and form as by the counfel of the 
(aid Edmund Turner (hall be advifed or required : Unto, and upon 
which tvrit (gentry, fo to be fued forth and profecuted, the faid. 
George Green (hall appear ^r^> in his proper peifon, or by his 
iaw^al attorney or attornies, and (hall vouch to warranty the faid 
l^ncent Darley and John Coad^yrho (hall likewife appear in their 
proper perfoiis, or by their attorney or attornies, and enter into 
ivarranty, and afterwards vouch to w^-nanty the common vouchee 
tvho (hall likewife appear and imparl, and afterwards make de- 
fault and depart in contempt of the court, fo that judgment may 
be thereupon had and given for the faid Edmund Turner to re« 
cover the faid« manors, me(fuages, lands, tenements, heredita-^ 
ments and premifes, againft the faid George Green ; and for the 
faid George Green to recover in value againn the faid Vincent Dar-^ 
ley and John Good: and for the faid Vincent Darky and John Coad ' 
to recover in value againft the common vouchee; to the end one 
good and perfeft common recovery, with double voucher, may 
be thereupon had, faflened, perfemd and executed, ^cording 
to the ufaal courfe of common recoveries, for the aflurance <^ 
lands and tenements, in fuch cafe ufed and accuftomed ; and the 
fame recovery (hall alfo be executed by writ of habere facias Jidfi^ 
nam^ accordingly: And that it was thereby covenanted and 
agreed, by all the parties and tlieir heirs, tlm the faid recover^', 
fo, or in any other manner to be had and fu£kredv of the fai4 
manors, meffuages, lands, tenem^ts, hereditapnents, and pre- 
mifes, with the appurtenances therein before-mentioned, (houl<l 
be and enure, and (hould be deemed, conftrued and taken, an^ 
is thereby meant and intended, and thereby declared to be arid 
enure ; and the {dhA Edmund Turner and his heirs, irom and im- 
mediately after the fuffering and perfe£ling the fame, (hall fbnd 
and be feifed of all and fingular the faid manors, me(f«ages, 
lands, tenements, hereditaments and premifes, and every pait 
and parcel thereof, with their and every of their appurtenances, 
to and for the feveral ufes, intents and purpofes, therein and 
herein-after mentioned, exprefied and declared, of and concern- 
ing the fame ; and to ^nid for no other ufe, intent or purpo£% 
whatfoever; (that is to fay), As for and concerning all and 
fingular the faid manors, me(ruage8, lands, tenements, heredi* 
laments, two twelfth parts of Ttvelve Men*s Moor, and all other 
the premifes, with their and every of their privile^s, commons^ 
and app^irtenances, thereunto relpeftivcly bctenging, (ituate, ly- 
ing and being, in the pariAes of Nortkiu^ Imiinham^ and Satn^ 
Juliot, and cou«>tv or CornzMii aforefaid ; to the- only ufe and 
Whoof ofthelaid/7wf«/ Dsrky, his heirs Mid «dSgns for ever • 

and 



Tkinitt Tkkm 7 Geo. III. 1767. 11 

tnd to and for no other ufe, behoof, intent* or purpofe, whatfo- 
ever. And as for and concerning all and Angular the faid manor . 
called CitfrZ^trn, and other the premifes, with, the appurtenances, 
lying in the parifii oi Saint Ives, and countyr aforefaid, to the 
only ufe and behoof of fhe faid Jfohn Coad, his heirs and affigns 
for ever; and to no other ufe, intent and purpofe, whatfoever. 

That in Michaelmas term 1763, a recovery was fuflered in hi« 
majefty's court oi Common Pleas, accordingly; wherein the fa^d 
Eamimd Twrntr was demandant, the faid George Grees tenant, 
and the faid Vincent Darley and John Coad vouchees, who 
vouched the common vouchee, againft whom judgment was had 
tathe ufual form. 

Thatthetruftees topreferve contingent remainders, never made 
any entry to avoid this recovery in the teftator's life time. 

That the teftator, Vincent Darley, died on the 8th day of 
February 1764, without rqiublishing his will. 

Thai the tenements called Battens^ Adacrcft, and two Lanx^ 
tous^ are cQnq>nzed in the fettlement and recovery ; And, 

That the manor of Trewitiie^ the moiety of the manor of 
Rtllaton, Peverell, Bowda, Trefwell, TrefiUam, Trewannet, ^and 
two twelfth parts in Twdve Hen's Moor, are comprized in d)e 
faid recovery, and are not comprized in the fettiement of the 
Ji\x and 8th of February 1743. 

And tliat TrewitMe tenement and Lewame tenement are com- 
prized in tlie faid fettlement, and not, by any particular naxne^, 
ta the recovery or deed, to lead^ the ii£bs thereot there. 

The quefiion is — ^Whecher the deeds executed and the rec0-. 
very fafiered by the laid Vincent Darley^ under the circumftances 
of thk cafe^ is a revocation of his will i 

Tfab cafe was argued ttv^ice at the bar; tlie firft time, in 
Eafterttrm laft, by Serjeant iVtfnri for the plaiotsir, (cbeheir at 
law) and SerjeaaC Leign for the defendants; and in tUs prefeiit 
term, by Serjeant Burtand for the plaintiff, and Serjeant Glytm 
iior die defendants. 

It was argued by the counfel for the plaintiff, that the deeds Cif«rscitfta 
execofied and the recovery futferwl by Vincent DarUj^ was a {J'^^^*^"'^ 
rovocatbn of his will ; that it is an. cftjAiKflved priitcijple, and ^\t^ri6S[,^ 
w«tt known, that if a mao be feifed of lands in fee, and nnkeih Parnament 
his: will thereof, and afoerwards nuketh a fieofiiittm or tsfA^t coa- «]J^'j'^^* 
ve^rtoce thereof in fee, and takes back a new eftate in fee, this ^^^ q. ^ ^^ 

is h 4i 5- 



la Trikitt Team 7 Geo. m. 176?- 

3 wmiams Jg a revocation of his will ; and that wherever a man puts the 

iflo.*! Wi- ^l^o'^ intereft of his lands out of himfelf, by any conveyante 

£>n 2, 66. whatfoever» after making his will, it will amount to a revocation 

39 Hen. 6, thereof, although he take the very fame eilate (which he had 

5*Bicon s»7 before) ^^^^ ^gain the very next day. 

That it cannot be denied, but mud be admitted to be certain 
beyond a doubt, that if Vincent Darky had been feifed in fee in 
pofleflion of the lands in quellion when he made his will, and had 
afterwards fuficred a recovery to the uf^of himfelf in fee^ this 
would have amounted to a^ revocation of his will ; or if the re- 
€x>very Iiad been declared to be to fuch ulesas he ihould direfi: or 
appoint, and for default of fuch direflion or appointment, to the 
u(e of himfelf in fee, that this would alfo have amounted to a 
revocation: and it is equally certain likewife, jthat if a man feifed 
in fee devifes lands, and afterwards conveys the fame away hy 
* any legal conveyance what foe ver, and takes back again a n^w 

eflate, this would be a revocation of the devife : and there are 
cafes which go further ; for it was faid by Lord Hardmcke^ iti 
the cafe of Parfons v. Freeman^ 3 Atkins 741. i Wilfon 310. 5. C* 
ibat if a man feifed in fee devifes^ and afterwards levies a fine to 
his own ufe in fee, this has always been held a revocation al- 
though the teftator is in of the old ufe ; the reafon is, [as he faid3 
that courts of juftice, in favour of the heir at law, will prefume 
the teftator had fome intention to alter or revoke his will in fa- 
vour of the heir, by fuch an a£l done after the will. 

That in the prefent cafe, when Vincent Darley made his will, 
and after fuffered the recovery, he was tenant for life in pof- 
fciEon with remainder in truft to preferve contingent remainoers. 
Qc» fi?r. with remainder over to nimfelf in fee; and by fuffering 
the recovery, he did thereby jpull the whole intereft in the land 
into himfeli, and got one intire fee ; a total new eftate in fee» 
which could not be defeated, but by the entry of the tmftees to 
preferve contingent remainders; his former eftate for life, with 
contingent remainders, &c. and remainder over in fee, were all 

Sne, until the truftees fhould enter for the forfeiture, which 
sy never did; fo that Vincent Darley died feifed of an eftate in 
fee, in pofTeffion of the lands comprized in the fettlement, being 
a different eftate from that which he had when he made his wilL 
But whether it was the fame or a different eftate, the counfel for 
the plaintiff concluded, that the will was revoked by the deeds 
cited fer and recovery.. 

defendaatit 

13? %ytm. The counfel for the defendants argued, that the deeds and re- 
•41. I Rep. covery did not amount to a revocation, the fame being executed 
c!fc*°Cro. *"^ fuffered by Vincent Darley, without any intention appearing 
c»/h. **P^^ ^^ ^^ ^f ^^ *^^^» ^ ^^^ or revoke his will. They 



Tkinity Term 8 Geo. III. 1768.. 



13 



feid, that a recovery by tenant for life, remainder to truftees, (3c. N. B. By aa 
was a nullity, an innocent recovery, and in this cafe nugatory; JhewW^the 
that Vincent DarUy\ eftate for life was not devifeabie ; that all he proceedtngtia 
could devife was his neverfion or remainder in fee; that he could Chsmtrj^ it 
not fuffer a recovery^ of his remainder or reverfion in fee ; that ^^^ ^* * 
the recovery only operated upon his life-cftate, which amounts cJied aIa 
lo nothing. ' f^alU^ (7 Bnw 

. WUmoi^ Chief Juftice, There are a great many determinations ^"^f* rl'pi. 
touching the revocation of wills, and very nice artificial difiinc- Caf.'sVo.p. 
tions are made in favour of heirs at law. It Teems to be clear, 359J) 'yins 
from the lateft determinations upon this fubjeft, that if a man be ^^^^f^^X^ 
feifed in fee, makes his wiU and devifes, and afterwards conveys fj, a ions 
by recovery, fine, feoffment, releafe, C3c. and takes back the tcrmofyttn^ 
fame, or a different eflatc, it (hall amount to a revocation; the "^ *•*.**.* 
reafon is, that it muft be prefumed he intended to alter his mil: tnift^forthe 
But we muft confider whether the right of the truftees (to pre- remainder of 
fervc, (3c.) in the prefent cafe to enter, will not prefer\'e the con- *^* ^^^^ 
tingent remainders, although the truftees did-not enter in the life ofVir/^j* 
of Vincent DarUy. We will confider, and give our opinion to the and nifo « 
court oi Chancery. — After fome time taken to confider, the court *^1"^*^*T'^ 
gave their opinion, that the deeds executed, and the recovery fuf- ftooiriaTe, 
iered by Vincent Barley ^ are a revocation of his will; but did not during her 
deliver their opinion^ur c i veany reafons to the bar in communibanco, ^*^^» ***.^ 

'^ * ^ ^ rents» iiTnei^ 

and profits of a!l teftator^i chattel eftatei, if (he fhojid chufe to refide it Bartcni tfotefaid ; and ihe wn 
alfo to have the ufe of all the houfliold goo^t, plate, and fomitare. at Batttns^ and the (lock on the 
prcmifcs, both quick and dead : Upon the further hearinf of this cauie in Chojicityt Lord Chancellor Cmm^ 
^ was pleafed to declare. That' the teftator having fuffered a recovery after the execution of hii will, 
the fame was thereby revoked, which made void, as well the bequeft of BonJt H^aih and of the other 
chattel efUtes, and the ufe o( the houthold goods, plate, and furniture at Batttnt, with the live an4 dead 
ftock, as the dsvifes of the real eftates, comprised ita the recovery* The Widow DarUj^ petitioned far 
a rehearing of the caufe, with refped to the whole d-cree, except as to the real eftatet ; whereupon 
the Chancellor affirming his former decree*, the faid widow appealed from both the decrees to the lordsy 
when their lordihips were pleafed ro reverfe them ia tMOf as to the matters complained of, and decla«jd» 
That the widow was intitted to the benefit of the faid bequefts, dtfcharged from the condition of llviag 
UjBMtUM^ which the common recovery had put out of her power. 

Chilton verfus Whiffin and CromweL C. B. 

T'HIS was a fpecial a£lion of trefpafs upon the cafe, wherein the In confider- 

plaintifF declared, that the defendants and one William "ri"^?^*' 

Hinuey were copartners in trade and merchandize; that HinUey would accept 

drew a bill of exchange upon the plaintiff, dated the 18th day of a biiiof ex- 

March 1766, for 63/. payable to one Robert Clay, or his order, ^J|"^ J"7^ 
fifty-five days after date; and In confuleration that the plaintiff fendms,^ ** 

would accept the faid bill, the defendants undertook and pro- theypTomifcd 

miled to find money to pay the bill, take it up, ?nd to fave the JJ|JJ*??J"'^ 

pontiff harmlefs and indemnliied, by reafon of his acceptance wwdsdie^de- 

thereof; that lie accepted the bill, which became due the 16th fendanttbe- 

of May 1766, and was indorfed by Robert Clay to Heathfield and J*"J« *»*^J^ 

Smth^ who on the 1 Ath of September 1766, fued out procefs [eTw'a'rlsthe* 

from B. R. and caufca plaintiff to be arreiled, and held to bail piainti/Fwat 

for the faid 6^/. that on the 24th of November 1766, he put in ^^^ 1^"^^ 

bail to tliat a6tion, and in January 1767, was furrendered to ^jhaJg'a in 

exeottioo. Refolrcdi the plaintiff could not come m at a crtditoTi under the commiifion* 

the 



14 Trinity Tb»i 8 Gio. IIL 1768- 

the marflial of the marflulfea, was charged in executioii Fer the 
debt of 65/. and coils, and hath remained in prifon there ever 
fince : There is another count like this, upon a note payable 
the 4th of Auguft 1766, which came to the nands olCartwright 
and Smithy by indorfements, who arrefled the plaintiff thereon* 
held him to bail; he put in bail to that a3ion« was furrendered* 
and charged in execution, and is ftill in prifon; there are other 
counts in the declaration: And that defendants, not regarding 
their promifes, have not indemnified the plaintiff, to his dami^e» 
&c. The defendants pleaded the general iffue, that they made ' 
no fuch promifes; and, tdly. That on the 16th day df^tf^|i^ 
1766, the defendants became bankrupts, and that the plaintiff *• 
caufe of a£lion accrued before they became bankrupts, and that 

the defendants obtained their certificate on the — — day of 1- 

1767 ; upon which ifl'ues were joined. Upon the trial it was 
proved, that the defendants promifed and undelrtook to indemnify 
plaintiff, from all cofts and damages he might be put unto, bj 
reafon of his accepting the faid bill, and note for payment, ancl 
that the defendants would find money to pay^ and take up the 
fame ; that both the bill and note became due and payable before 
. the defendants became bankrupts ; that afterwards they became 
bankrupts, and Heathjvdd and Snath proved their debts, under 
the commiffion of bankrupt, and have fince proceeded to judg-* 
n^nt, and charged the plaintiff in execution in the Kxng*j Menau 
The jury gave a verdifl: for the plaintiff upon the faid two firft 
counts, and 308/. 10^. damages, and cofts 405.; fubje£l to the 
opinion of the court, whether the plaintiff is intitled to recover, 
I did not hear the argument at the bar ; This is theftate of the cafe, 
and here follows the opinion of the court. 

t*. Ch. Juft.' Curia. We are all of opinion, that the pojlea muft be delivered 
Wilmou to the plaintiff, and he muft have his judgment : For no debt was 
due or owing, from the defendants to the plaintiff, until he was 
charged in execution, and his body being in prifon upon judgment 
and execution for i certain fum, we hold to be the veiy fame thing, 
as if theplaintiff had paid the debt and cofts, due on account of the 
bill and note; and then, and not before^ the defendants became in- 
debted to the plaintiff; which being after the defendants became 
bankrupts, the plaintiff could not come in under the commiffion. 

It was rlghtlv argued at the bar, whether the caufe of aSion 
was before the bankruptcy, and whether ttie plaintiff could have 
come in under the commiffion as a creditor, to receive this 308A 
aoj. and cofts ; if he could, he is barred; if he could not, he is 
not barred. 

We being all of opinion, that the plaintiff could not come in 
as a creditor, under the commiffion of bankruptcy, it would be 
abfurd to fay, that he is barred in this cafe ; but the cafe oi 
Tu/ly v. Sfarkc^and i/l^y% exccwtgrs of Donal/on, 2 Stra. %6j\ 

and 



Tmvnr Tbbm 8 Gbo. III. 1768. 15 

audi 8 U* Raj)tni^tS46^ 1549» ^57^* '^ ^^"7 clearly applicable to *riie Bank- 
the prefeat cafe : It was an aftion'of debt for 800/. wherein the ^^Ji/J^ 
plaintiff declared^ that WiUiam Donalfon in his Hfe» viz. 6th of nocdifdurxe 
jJtiy 17041 by his bond then dated, obliged himfelf, his heirs,, a.^p"** ***°* 
executors, and adminiftrators, to the plaintiff Tulhy and one J-^^ec^ 
Pbilif tUdfby^ whom the phamiff furvived* in 800/. with con- to de^aa aA* 
dition. that if thebeirs» executors^ or adminiftrators, of the faid npo^two 
WiUiam, fljould pay to the faid plaintiff Tully and Philip, or the ^^^^ 
furvivar of ihem, or the executors or adminiftrators of the * 
furvivor of them, 400/. within two months after the death of the ~ 
fiiid WiUiam^ in cafe one Martha iMimtr fliould marry the faid 
Wiliiam^ and fliould happen to furvive him, in truft for the be« , 
nefit and behoof of the laid Martha^ her executors, adminiftrators 
or afGgns, then the obligation ftiould be void, otherwife ftiuuld 
remain in full force; and the plaintiff averred, that after the 
making the faid bond, viz. 8th ^* May 1704, the laid Martha' 
narried the &id WiUiap^ Donalfon ; and that after the iaid mar- 
da^e, xiz. 17th of May 1727, the (aid Philip Rud/hy died, and the 
plaintiff furvived him; and that the faid Jrilliam, the fame day 
andyeart made his will, and the defendants, his executors; and 
afterwards, mz. 3d of January^ in the fame year, the faid zvili 
not being revdied, died, and the faid Martha furvived him, and * 
is yet alive : and that after the death of the f^id William Donalfon^ 
viz. on the lodiof ^j^n/ 1798, the defendant Sparkes proved 
the faid wiU in due form of law, and that the heir of W'lUtam 
^analfim, or the laid defendants, or either of them, did not 
nor did any other perfon pay to the plaintiff, the faid 400/. 
within two months after the aeath of the faid William, accord- ' 
ing to the faid condition ; and that the faid 400/. was ftill due 
to the plaintiff, whereby the {aid bond became forfeited, undt 
aQio accrevit to the plaintiff, to demand of the defendants the 
laid 800/.; but the defendants, though often requetted, have 
^not, nor hath either of ^em, yet paid the faid 800/. &c. The 
defendant May pleaded, that he never adminifiered, or^proved the 
xmlt; and the plaintiff, as to Iiim, entred a nolle profequi ; the 
other defendant Sparkes prayed oyer of the bond, which was fet 
out without the condition, and then pleads, that the obligor was 
a trader, and after entering into the bond, committed an a£l of ^ 
bankruptcy; whereupon we creditors petitioned, had a commif* 
lion, and ne was declared a bankrupt, and had his certificate, 
which was confirmed : To this, the plaintiff having inrolled the 
condition of the bond in hac verba, demurred ; and judgment 
was given by the whole court, on the merits, that the plaintiff's 
debt was not barred by the matter comprized in the plea, and 
was not within the 7 Geo. 1. c. 31. and that the nlaintiffs could 
not have come fit to prove their debt within that ftatute ; for that 
the 400/. in the condition was payable at a day after the bank<- 
raptcy committed, vii. within t^vo months after the death of 

William 



i6 



Trinity Term 8 Geo, III. 1768. 



Of. tmff. 
Hardw. Cb. 
J. %H» 

whcfe there 
IS an i€t of 
btakrcptcy 
becweeo the 
tiiiie of be- 
conuDgbtil 
inemor, 
aod the af- 
firmance, the 
party is not 
difcharged 
horn his re» 
cognisance. 



See Barnes 
113. 

IVhere the 
breach of a 
bond of in* 
demnity is 
after a bank« 
xuptcy, the 
bond is not 
difcharged. 



William Donalfon^ tbe bankrupt; and alfo, upon two contingent 
cie^, viz, if Martha Latimer married him, and furvived him. 
And this judgment was afterwards affirmed in the Exchequer 
chamber* 

The court alfo cited the cafe of Hockley v. Merry^ a Stran, 
1045. ** ^^^ applicable to the prefent cafe. Merry ^ the defen- 
dant t/ure^ on the 9th of May 17341 Y^as bail on a writ of error. 
On the 23d of OBober 1734, he committed an aft of bankruptcy ; 
and, after a commiflion, obtained his certificate. On the 12th 
oi'Noven^er 1735, the Judgment was affirmed. And in debt 
upon the recognizance of bail, he jpleaded his difcharge ; and 
that the caufe of aSion accrued before he became a bankrupt. 
And the Chief Jutfice (Lord Hardmcke), on the trial, held, 
that the defendant was not difcharged, according to the cafe of 
Tally V. Sparkes (above cited), for this was but a contingent debt, 
for which the plaintiff, Hociley^ could not come in under the 
commiffion ; the ftatutc of 7 Geo. 1. r. 31. only letting in thofe 
where the payment was cer^in^ though future. There was a 
verdift for the plaintiff. 

They alfo cited the cafe oiCrookJkank y/Thompfon^ s Stra. 1 i6o« 
where the defendant gave a bond of indemnity, and before any 
breach, became a bankrupt ; ,and being fued, moved to be diu 
charged on common bail : But the court compared it to the cafe 
of 7tt//y V. Sparkes (above cited), and ordered he ihould giye 
fpecial bail. 



ftKci.a39. The cafe of Macariy v. Barrow, 2 Stra. 940. was cited 
Sard! B^lr ^^^ ^^^ defendants ; and the Lord Chief Tuftice fVilmot faid, 
ftSi, 255.' that it was the only cafe which, at the firll blufli, feemed to 
S. c. & s. P. clalh with the cafes above cited. Sir 7ohn Strange has re- 
ported the cafe to this effeft ; viz, '' The dcfdhdant, Barrow, 
m January 1728, drew bills on Spain, which in March were 
returned prqtefted, for non-acceptance; between the drawing 
and return, he became a bankrupt ; and being fued to execution, 
as the drawer, he moved, on the aS 5 Geo. 2. c, 30. to be dif- 
charged.** Strange, contra, infifled, that, this caufe of a£lion 
arofe upon the non-acceptance and proteft,' which are both ne* 
ceffary to be averred, in order to maintain the a3;ion ; and the 
charges thereof are to be recovered. Sed per curiam, the princi- • 
pal is the drawing the bills, and therefore he muft be difcharged. 
{Q/iare tamen, fays the report). The Chief Juftice (IVilmot) 
faid, he had looked into his own note of this cafe, taken by 
himfelf at the bar, in Eqfier term, 6 Geo, 2. and that he, and 
other gentlemen his cotemporaries at the bar, ufed to confer and 
. compare their notes together ; and that therefore his note of 
this cafe was probably more accurate and full tban Sir John 

Strange*^ 



ITrinity Term 8 Geo. III. 1768. 17 

Strang€\ report of it. And that the cafe was thus ; viz. " The 
defendant, Barrow\ in December^ and until January 1728, drew 
bills upon merchants at Bilboa in Spain ; that after the drawing 
of thele h'lWs^'Barrow became a bankrupt; and afterwards, in 
February following, the bills were returned unaccepted and pro- 
telled ! Whereupon the defendant was arreiled ; arid being lued 
to execution, moved to be difcharged upon ihcjidt. 5 Geo. 2; 
c. 30. Strange infifte^^ that the caUfe of a£lion did not arife 
againft Barrow^ until the non-acceptance and proteft t But it 
was refolved by the court, x)aaxSarrow contraded the debts the 
very inftant when he drew the bills, which was before the a£l of 
bankruptcy^ and that the non-acceptance or proteft did not raife 
any debt, but was only notice to the party whp held the 'bills, 
that the drawee would hot pay the Tame ; and was as much as to 
fay, " I will not pay the bills, and yoi» may go back to the 
•• drawer, an4 he muft pi^r you." Tne court held the debts to 
be debita in p^efenti folvenda infuturo by the drawer ; and the 
Chief Juftice IVilmot faid, that ihtjlat, 7 Geo. i. c 31. extends 
to all fecurities given on good confideration ; that the drawer of 
a bill of exchange, inftantly upon his drawing the bill, con- 
tra3s a debt/ and a proteft is nothing but a notice that the 
drawee will not pay it. 

iJpon the whole ; no debt can be barred, but What was a 
debt contraded with certainty before the a£l of bankruj^tcy. 
Did the defendants owe to the plaintiff Cit/Z^^n, 308/. lox. and 
cofts, before he rendered his body in fatisfa£lion thereof 7 (which 
. we take to l^e the fame thing as if he iiad aflually paid the debt 
and cofts). They certainly did not. They had promifed to 
pay the money, to furnifli the money to tauce up the bill and 
note, and to fave the plaintiff, Chilton^ hartnlefs; they broke. 
their promife, Chilton was terrified and arretted. Here is an 
injury to a certain deme, but no debt owing by the defendants 
to Oaiton^ before his oody was in execution for the certain fum. 
How could the plaintiff, Chilton^ at the time of the commiifibn 
of bankruptcy iffued, have fworn to a debt, before he had ad-^ 
vanced a fliilling for the defendants? He certainly could not: 
But now his body being in execution, he has theraby paid the' 
debt. So the pojlea nmft be delivered to the plaintiff; and he 
knuft have j adgment . Per totam curiam* 



Vol. 111. • o :^TER 



18 



EASTER TERM 

g Geo. III. 1769. 



? . TiiWidgt verftts Wade. C. B. 

Trcfpiff for qpRESPASS againft the defendant, that he with force and 
Vsud^l^' ^^^ ^^^^ ^^ ^^^"'^ "P^» ^' ^' <laughtcr and fcrvant 
ter with ' of the plaintiff, ?ind got her with child, whereby he 16ft the 
chWdper benefit of her fcrvice for a certain fpace of time, and was put 
JJ^*^"* to great charge and expence in her titae of lying-in : The de- 
fendant pleaded not guilty. The caufe was tried before Mr.. 
Juftice Goulds at the laft aflizes ; when the jury found a ver- 
di£l for the plaintiff, and gave him jo/. damages. 

Dimagci so/. Serjeant Davy moved for a new trial« and grounded his mo- 

andl'^w ^' tion upoh an affidavit tending to fliew, that under the cirfcuiti. 

trial was re- ftanccsof the cafe appearing at the trial, the damages were ex- 

Mtd.jSte ceflive; and alfo» tnat evidence was given, at the trial, of a 

A^heU ^ prbmife of inarriage made by the defendant ioA. B. which ot^ht 

% Term JR^. not to have been permitted, becaufe fhe may have another fort of 

X. B. 4. and afiidn uiSon that promife. 
fee A/, p. 166. r r 

in fuch ac- WlieTcupon Mr. Juftice Gould made his report to the court ; 
tions will not and, after ,ftating the declaration as above, he faid, that A, B, 
rntw^trfaaoa the plaintiff's daughter was called as a witnefs at the trial, -and 
the ground of fwore that the plaintiff was a maltfter, and kept a public houfe ; 
exceiTive that flic was his (iaughter'and fervant, and Was about thirty years 
**®'6^*1 old; that the defendant w3tf an excifeman, made liis adrreffes to 
her as a lover, with an intention (as (he then thought}' to marry 
her ; that he was well received on that account by the j>laintiff 
her father, and very civilly treated by him and his family, and 
often ipcni the evening with them ; She alfo fwore, that he 
promifed her marriage, and got her with child. TTie brother 
of A. B. was alfo called, who depofed that the plaintiff 
was wholly deprived of A. jB.'s fervice and aflfiftance in his 
buGnefs, and paid foitie money on account of her lying-in. 
The counfel for the defendant, at^he trial, objefled to^he evi- 
dence gi^^en, as to the promife of marriage; upon which A. B. 

; offered 



Baster Tbrm P 6«o. IIL 1769. ^g 

offered to give the defeiulaiit a releafe as to that promife ; but 
the counfel for the defendant refufed to accept thereof. Upon 
fumming up the evidence to the jury, the Judge (Gould J was 
pleafed to (ay, that he told them over and over arain, that, in 

Siving dam^»» in tliis aftion, they muft not confider the injury 
one to A. S. as to the promji of marriage, but muft leave that 
matter quite out of the queliion, becauie A, B, might have her 
a6tion for breach of that' promife ; that he thought the plaintiff* 
A. B.'s father, was by nature bound tatake care of her while (he 
laidin^ and that, they (hould confider his expences on that ac- 
count, as well as his lofs of his daughter's fervice. Whereupon 
the jury gave 50/. damages, with which the judge faid he was 
not at all di(ratisfied; and that he thought, if the jury liad then , 
confidered the promife of marriage, they would have given fix 
times as mvbch damages. 

Lord Chief Juftic€ Wilmot. Aftions of this fort arc brought 
ibr example's »ke; and although the jplaintifF's lofs in this cafe 
^ay not really amount to the .value pt twenty (hilling, yet the 

I'ury have doneri^ht in^^iviitf liberal dam^^es;. and it A. B» 
. wrings another *a£liOn ^gainft defendapt for the breach of pro- 
mife of. marriage, fo mifch the better ; heoi^glit to. be pUtMihed ^ 
twice. A, B. .being of the.ageof op, is nothii^ to mitigate 
damages, or leflen the defendant's fault, and we will pay no re- 
^ pLxA to any affidavit read to .ius, iSr^ther Gpt^ld \mr^ fiitisfied 
' with tlie verdi£l ; if .much greater damages bad been ^ven, ^we 
(hould not have been diflausfied therewith; the plaintiff having 
'^received this^infiilt in^his ciwn Jhoufe; where he l^ad civilly x^^ 
.ceived the defendant, and permitted bim to^pake.his addr^es 
to Us daughter. 

Qive Juftice. If the juryib^d. given lOoA dama^, I fiiouli 
not have thought' them too • much. ^ 

^Bathirfl Juftice. To be fiire, the fi^ving the promife oC 
-nuorriage in evidence at the trial of this caufe,. was ytry inip^oper ; 
but as the jury were cautioned not to take notice -^f it, I.am in- 
clined to think they did not; for if they had, I think they 
.would have given more than 59A in damages. In a£Uon$ of this 
-naturet.and of aflaults, • the oirciMDftaoces ^f time .s^>d plac^ 
whca and where the tnfult is given, require different damages ; 
las it is a greater: infult to be beaten upon the Boyfl ExcAangt^ 
.than VI a, private room. I am of the fame opinioa.with.my 
Lord Chief Juftice and my brothers. 

Sei^^wtHatfy took nothing by ;lus ;D<btioa; fo.the plaiptiff 
dM judgment /ir /^/a», cttWf»- 

.c« MICHAELMAS. 



ao" 



MICHAELMAS TERM 



10 Geo. III. 1769. 



Decltntioa 
in trefpafs 
ft>r taking 
plaintiff's 
hog. 



Dye verjus Leatherdale and Simpfort. C. B. 

Norfolk, ^OHN Leatherdale, Jate of, &c. and Cornelius Simjf^ 
'" (to wit) J^ Jon, late of, &c. were attached to anfwer Jokn Dyi^ 
of a plea, wherefore, with force and arms, &c. rfie 
fai<t y. Z. and C, took a certain hog of the faid J. D. of the 
Valtie oC, &c. at Frenze in the county aforefaid, there found 
^nd being, and drove and carried away the fame, and converted 
and difpofed thereof to their own ufe, and there did other 
wrongs to the faid Jf. i>. to'the great damage oi the faid Jf. D. and 
^gainit th^ peate of ouf faid lord the now. king, &c. and there- 
;vpdo the faid 7. D. by Rabert Greenacre his. attorney coroplain^» 
that the faid j. Lt and C. on .the flrft day of September, in the 
veat-of^uT'L^vd t/fiS, -with force.-a;id. arms, &c, took a certain 
hog of the faid J. D, of the value of four pounds, at F, afore*- 
faid there found and being, and drove and carried away the fame, 
iwid converted and difpofed tl^ereof to their own ufe (^io wit J at 
F. aforefaid, and then and there did other. wrongs to the faid 
jf, p. to the great damage of the faid J, D. and againft . the 
f eace of our fajd lord. the now king, G?c. wherefore the faid 
>Jf. /D., faith, that he is injured, ana hath fufiained damage to 
the value of •4/. and thereupon he brings this fuit, &c. 

ift Pica, not \ And the^fald; J. L. and C. by Henry Browne their attorney, 

guilty; ifluc come and def<ehd%he force and injury when, &c. and fay^ that 

thereon. ^^^^ ^^^ not guilty of the trefpafs aforefaid, above laid to their 

charge, in madder and form as the faid- y. D. hath above thereof 

complained 'againft thjUTK £ind of this they put themfelves upon 

the country, and the faid J, D. Uke^yjfe. 

defend!ntl '^ ^« • An4 for further jilca; a^ to'the taking the faid hog, in the 
took the hog faid declaration mentioned, anddriying. and carrying jhe fame 
>^indTin. ^^^y* ^y ^^^' ^^^^ ^' ^* ^^ ^* *^^^ fuppofed to have been 

pounded it. * : ^ * ' . * • * ' done^ 



MicHARLMAs Term 10 Gbo.III. 1769.' 21 

ioric; they the faid J. Z. and C. by 'leave of the court here to 
them for this purpofe granted, according to the form of the 
ilatute in fuch cafe made and provided, fay, th^ the faid y, D. 
ought not to have or maintain his aforefara a6lion thereof againft 
them ; 'becaufe they say, that the faid C. lon^ before, and at the 
faritl laft time, when, &c. was lawfully polTefled of, and in a cer- 
tain cloie, called NtwfoiCs Lay^ lying and being kt F. aforefaid, 
in the county aforefaid. ' And becaufe the faid hog, at the faid laft 
time,* when, &c, was in the faid clofe of the faid C. eating up 
the wheat then growing there, and there doing damage to the 
faid C. He the &id C* in his^ own right, and the faid Jf. L. as 
his fervant, and by his command, at the faid laft time, when, 
&c. took the faid hog, in the faid declaration mentioned, fo be. 
ing; in the faid dole called N. L. and doing damage there as 
afprefaid, for and in the name of a diftrefs, and drove the fame ' 
away, and impounded the fame in the common pound there, fto • 
wit) at F. aforefaid and there left the fame, 'as it was lawful, for 
him to do, for the caufe aforefaid ; which are the fame taking 
the faid hog, in' the faid declaration mentioned, and driving and 
carrying the feme away, whereof the faid y. D. hath above 
xomplained againft them, and this they are ready to verify; 
wherefore the faid J* L, and C. pray judgment, if the faid J, 2). 
ought to have or maintain his aforefaid a£lion thereof againft 
ihem, (3c. 

Wm. Jtphfon. 

And as to the plea of the faid J. L. and C by them laftly Replieatioa 
above pleaded in bar, as to the uking the faid hog, in the faid *^'^'*^ 
declaration mentioned, and driving and carrying away the fame, Jf"j ^ 4k- 
by the faid Jf^ L, and C. above done, he the faid Jf* D. fays ing and im. 
that by any thing in that plea above alledged, he ought not to ^"i*"'* 
be barred trom having and maintaining his alorefaid a£iion thereof c^v€rted*tht 

'againft them; becauie the faid J. D. favs, that after the taking hog to their 
and impounding the faid hog, in the faia declaration mentioned, «^*» ^«» 
by the laid C. and J, L. in the name of a diftrefs, in manner 
and form a& they have in that behalf above pleaded (that is to 
idy) on the firft day of September ^ in the year of our Lord 1768 
aforefaid, they the laid C. and J, Z. converted and difpofedot the 
faid hog to their own ufe, to wit, at F. aforefaid, as the faid Jf. D. 
in that behalf by -his* faid declaration* above complains a^nft . * 

•them; and this the Taid Jf» D. is ready to verify, wherefore 
he prays judgment and his damages, by occafion of the fame 
treipais in this behalf done, as laft aforefaid/ to be adjudged to 
him, £?c, • , . 

.' George fVil/an^ 

And the faid J. L. and C as to the faid plea of the faid J, D. Geneni de- 
by him above in reply, pleaded to the Cud plea of the faid J. «»*»wer to ch* 

C3 jrwp »»«<«. 



32 MicHAEXMAs T^BM 1:0 Geo. III. 176$- 

L. and C. laftly a^ove pleaded iii bar, as to the' taking the bid 
hog, in the faid declaration mentioned, and driving and carrying 
thie fame away, above fuppofed to have been done, fay, thai the 
faid replication, and.the matters therein contained, are not {mU 
ficient in law for the faid J. D. to have or maintain his faid 
aflion thereof againft them ; to which faid replication, ill man-* 
ner and form as the fame is above pleaded, tne faid J. X. and 
C. are not obliged by the law of the land to anfwer, and diis 
the faid J. L. and C are ready to verify; wherefore, for 
want of a fufficient replication in this behalf, the faid J. X. and 

C. as before, pray judgment if the faid J. D. ought to hAve of 
maintain his faid a£tion thereof againft them, 67r. 

William Jfepkfan* 

joiiKUrin And the faid jf. D. fays, that fince in his faid plea, by him 

4c]parrer. above, in reply, pleaded to the faid plea, of the laid J. i. and 

C laftly above pleaded in bar, as to the iakiiig the (aid bog, in 

the faid declaration mentioned, and driving and carrying tb^ 

fame away by the faid 7. L. and C. above done, he the faid J^. 

D. hath alleaged fufficient matter, in that replidation, for. him 
to have and maimain |iis faid a£iion thereof againft them, 
which he the faid 7. Z). is ready to verify ; and which faid 
matter tlie faid J^. L. and C. have not denied, nor have in anjr 
manner anfwered the fame, but have wholly refufed to admit 
the verification thereof; he the faid J^. D. as oefore prays judg- 
ment, and his damages by occafion of the fame trefpais in this 
behalf done, as laft afofefaid, to be adjudged to him, &c. 

George Wilfon. 

It was argued by Serjeant Jepkfon^ for the defendants, that 
the replication was ill, becauie it difclofed no new matter, 
but only repeated what was before alledged in the declaration ; ' 
viz. that the defendants took the hog, ana converted and Jifpofed 
ikercofto their own ufe: which the defendants had anfwertd, by 
pleading not guilty to the whole declaration ; whereupon iffue is 
joined, iipoh which iffue (he mfifted) the faft might have been 
tried; viz. whether the defendants, after the taking and im* 
pounding the hog, converted the fame to their own ufe, or not. 

Convmmg For the plaintiff it was argUed bV Serjeant Wilfoni i^, that 

hJl^w'^thcde! this being an aftion oitrefpajs againft the defendants, for taking 
feodants* uic, thehog, and driving and carrying away the fame, and not trovet^ 
if only ag. for converting and difpofing thereof to their o'wn ufe ; therefore 
f n*Iaion of ^^ convtrjion thereof to their own ufe^ as laid in the declara- 
tfcfpafs for tibh, can only be confldered as matter of aggravation, and need 
takihgthc •r ^ot be juftified or anfwered in trejpafs;\ox the converfion is 
wfanfWer*ed totally independent of Ihe' t^ing^ and is not a trefpafs w 

by the gene- & Urmii. 

ft! UlUe. ^ 2aly^ 



Micj^ELMAs Teih 10 6£0. IIL 176q. 23 

tdiy^ He faid, that the defendants' fecond plea having fully 
anfwered and juftified the whole trefpafs in the declaration* 
which is only th^ takings -driving and carrying away ike hog^ 
(the convtrjion thereof being only aggravation) it then became 
neceflary for the plaintiflF to ihew and alledge, that (notwith« 
Sanding the taking the hog damage f caf ant ^ and impounding the 
fame, weiv lawful) the defendants afterwards converted and 
difppfed thereof to their own ufe, and thereby became trefpaflers 
ah initio: And of that opinion were the whole court. He cited, 
Gargrax^e v. Smithy i SalL S2i. Yelv. 06^ gy. znd Gates v* 
^yi^t ^ Wilfon 313. as cafes fomethin? rnnilar to that at the 
bar ; which were all allowed to be gooa law. And the court 
being about to give judgment for the plaintiff* Serjeant Jfepkfon 
moved for leave to withdranf his demurrer, which was gramed 
upon payment of coils. 

Goodright of the demife of Welch verjus Flood. C. B» 
November 7. 

e^ EjeAment 

of a meflttagt 
%j . .a Of tf nt uM n t. 

tenement: and mtffuage or tenement is \o uncertain, that the iheriff 
caiuiot tell of what he (hall give poflel&on ; for a tenement may 
be of an advowfon^ koufe or land of any kind : He cited, a Stra% 
834. 1 Barnes y 114. 3 Mod. 038. 

. Wilmot C. J. To be fure there are many old cafes where 
judgments rn ejeflment have been arrefted for this, fuppofed un- 
certainty, but I do not recoiled any very modem caie : There Butofanef. 
was a lat6 cafe in B. R. where the declaration was of a meffuage faaga ««/ te« 
and tenement, and that court gave leave to ftrike but the words J^JJJ^j}*'* , 
** and tenement^*' and to proceed for the meffuage. I think a i^etoft^e 
wffudge or tenement ^ in common parlance, means a meffuage; oscthc «^rtft 
' and, at this time of day, no mortal imagines that a tenement fSjj^STd!!' 
qieai\s any thing but a dwelling koufe^ for by long ufe it has ac- ^tZmny. 
quired that definite fignification. Hefitante curta^ a rule was X>wrM, s 
ipade to ihew cauiie why judgment Ihould not be arretted. ^'^ 'mba 

Nquemher the 20th, this matter came on again, and was de- H^Mitm^%Str. 
bated by counfel on both fides; vhen the court feemed inclined '34*] 
to get ovjer this objeflion, if poflible, and took further time to 
' confider, until the laft day of tne term : But at laft they thought 
themfelves bound by the cafes cited, and (againft their inclina- 
tion) arceiled the judgment. 

C 4 Blopd 




34 MicHABLMAs ITerm 'io Gfio. in. 17^9^ 



Blood verfus Lee. C. B. 

Tpuching ' ^TpHIS was an a£libn upon the cafe upon aJTumbJit^ com- 
to^frfoa" menced in the Pdact Court for about the lum of 9/. 

admitteVIJi ^hich the defendant removed into this court by habeas corpus: 
firmSfau^ The caufc being at i flue, and the plaintiff not having proceeded 
/"'*?• to trial in due time after iflue joined, the defendant gave him * 

notice qf motion for judgment, as in cafe of a nonfuit ; before 
the motion came on, the plaintiff (being a poor man) applied to 
be admitted, ^nd Was admitted, to proceed in his fuit mformA 
pauptns. Afterwards, tipon fhewing caufe why there fhould not 
oe judgment, as in cafe ot a nonfuit, the rule was made abfolute, 
becaufe the plaintiff or his attorney would not undertake to pay 
thji coftsof that applicatibrt to the court ;' whereupon judgment 
as in the cafe of a nonfuit, was entered the 3ifl day of May laft ;; 
and the plaintiff being now taken in execution upon that judg- 
ment, Serjeant G/ynn moved that he might be di (charged out of 
• cuftedy ; mfiftlng that a pauper was not liable to colls, in thii 
cafe : Whereupqn the court made a rule to fhew caufe. 

• Stta.878. At another day, before the defendant came to fhew caufe, 
l!T^i7c W^l^''^^ C- J- cited, from his own manufcript notes, the follow- 
S.*c/ ing cafes relating to paupers and cojls ; Winter v. Slow, Mich. 4 

Geo.. 2, B, R. was trox^er by a pauper: At the trial, the plaintiff 
proved a demand and refufal at the time of ferving the writ, Vvhich 
being after thfc commencement of the a£lion, he. became non- 
fuited; and having brought a fecond a3ion for the fame thing* 
it was moved that he might pay the cofls of the nonfuit in the 
former a£lion, before he proceeded in the fecond aftion; but 
the court refufed to grant the motion, becaufc they thought the 
ftStrt. 99|. plaintiff liad not been vexatious. — In Taylor v. Lowe^ Trin. 7 
^« ?• £5? 8 Geo. 2. B. R. the plaintiff being a pauper, and having given 

five or fix notices of trial and thereby vexed the defendant, it 
was moved that he might pay cofls of former notices, or be 
reflrained from proceeding to trial; but while the admiflion to 
fue m forma pauperis flood they would make no rule about cofls, 
but made a rule to fhew catufe why he fhould not be difpau- 
pefed, which was made abfolute upon* an affidavit of fervice 
thereof. In Oats v. Holiday^ Trin. 22 & 23 Geo. 2. B. R, it 
w>as a^ firfl doubted whether a plaintiff could be admitted in 
forma pcLuperis jafter the commencement of the fuit;. but at 
length It was refolved that he might be fo admitted at any time 
pf the fuit ; and the court refolved, that a pcrfon fo admitted 
v^foT^o, pauperis pendente lite^ fhall not pay colls from the be- 
ginning 



MiCHABLMAS ^EBM 10 GeO. III. ly^Q* 25 

ginning of the adion : This feems to be a cafe in favour of this 
motion to difcharge the plaintiff out of cuftody. Qu^e the 
cafe of Langley y.Blackeriy^ HiL 12 Geo, 2. B. R. which was 
a motion to difpauper the plaintiff. Adjoumatur. 

Parker, of the demife of Edward Walker, Efq. verfus 
X>>nfiable. In eje6lnient of lands in Dorking ia 
Suny. 



s. (a 



JiER Wilmot C. J. (3 totam curiam. It has not been doubted Half m ye«rt 

dee muA 

half an year's notice to quit poffefGon muft be given to a tenant at tenaLVat wiu 



•* of late years, (and it was now refolved in this cafe), that J^^" °*"* 



will, before the end of which time an ejeftment will not lie to o? hit cxecu. 
turn him out of the farm. In a cafe of the demife of Tajkcr ^^^^^^ "' 
V. Burr^ the fame point was refolved by the court of B. R. and cj^, S«" le. 
fer Lsigh Serjeant, in Eafler term 6th or 7th Geo,,^. the fame ISxmoHtbi* 
law was held in the c^fe of an executor of a tenant at will. In ^^^^ 
the cafe at bar, the plaintiff having been nonfuited for want of see i Ttrm 
giving fuph half year's notice to defendant ConJlabU^ a tenant at Kip, K, B. 
will,' to quit the premifes, moved to fet afide the nonfuit ; and, *^3«1 
on ihewing caiife, the rule to fet afide nonfuit was difcharged, 
for the realon above, 



Pally, Clerk, verfus Wells. C. B. 

QOVENANT by the plaintiff, as reaor of the parifh of Leffeeof 

Af^»t^^« in /fcmj5^2r^,againft the defendant; who is the af- "ij^^hi^ 
fignee ox James Whitmarjh^ the plaintiff's leffee of the ereat and andhitaffignt 
fmall tithes, (the jjrant and demife in the leafe thereotbeing to that be will 
James Wkitmarjh^ his executors, adminiftrators and afligns) : "f [J* fj,*^^^^ 
The declaration fets forth the leafe, which (inter alia) contains in che pariik 
a covenant on the part of the leffee and his affigns^ to find fuffi- h»va any part 
cient wheat-ftraw tor thatching the tithe-barn* and premifes be- ^[il^wenant 
longing to the re£tor; and alfo the following coveniint, xnzp runs with the 
•• And the faid Janies WhitmArJh^ for hirafelf, his executors, tithes, and 
" adminiftrators and ajfigns^ doth hereby covenant and agree, ^^J^^ ^^^t^ 
V not to let any of the farmers now occupying the fevcral eftates Jiom'thU " 
** at Monkjlon have .any pah of the tithes afonefaid, without the aaion ia 
" confent of the faid George Bally in writing firft had and ob- ^[^Jf^'J^ 
•• tained:" Whereupon the plaintiff affigns the breach in this ycnwt.** ^ 
manner; viz. That the defendant^ after the premifes came to him 
by ajfignment^ did let divers of the farmers then occupying fevered 
fftates ai Monkfton, fto xvitj one William Cooper, ana one Roger 
flutchins, have part of the tithes in the indenture of leafe men- 

, tioncd^ 



06 MicBA9i^As TfiBii 10 Orq. III. }7^ 

6Wi without thi plaintiff's ccoffint ; contrary to tke tovaumt of 
ikc/aidlzmcs Whitmarih; Uuleffee^ andhis a^ffhs^ in that kc- 
kagmais* The defendani pleaded won infregii convfndonan^ 
and a verdift wa$ fouad fotr the plaiotiff, 

^ It was moved in arrefi of judgment, Haft term,) that an aEUon 
does not lie againft the aflignee upon tlie covenant whereof the 
breach is afligned, for that is a covenant merely perfonal, 
collateral, binding the leflee only, and does not ai all affefi the 
aifignee; alfo that tithes are incorporeal, lying in mnt; and 
therefore fuch a covenant cannot run along with mem, as it 
would with lands which lie in lively. After th^s cafe ^ad been 
very well argued at the bar by Burland^ the King's ferjeant, for 
the defendant, and Glynn Serjeant for the plaintiff: The court 
took time, until this term, to confider; Vhen judgment for the 
Dlaintiff was given to the following effe£U in the abfence of 
Mr. JuIUce GoUild% who heard the argument at the bar. 

Curia* We are all of opinion (and fo is our brother Gould) 
^ that this-aC^ion may well be fupported, and th^t the intention of 
the parties to the leafe ihall have it's due effe£l, without break- 
ing through any of the cafes in the books concerning the many 
diyeriities of covenants : The intention of the piities cle^urly was 
' to keep the tithes continually in pernancy ; for the covenant i) 
(in eflfefi) that the leflee and his afligns ^all take them in ki(id, 
that they might continue in the fame flate as when the leafe 
thereof was made; that by temporary compofitions, and unity 
of poffelfion of the land and tithe thereof, modafts might not be 
let in, nor the manner of tithing be thereby obliterated ; but 
that the exiftence of taking tithes m kind might be preferved. — 
The leflee has alfo covenanted, for faimfelf and afligns, to find 
fuificient wheat-ftraw for thatching the tithe-bam, &c. and al- 
though ftraw might be got eliewhere, yet it is plain the leflbr'a 
' - eye was' upon the tithe of wbeat-ftraw for thatching, although 

it is not fo exprefled in words. 

This being the plain intention of the parties, and the end of 
the two covenants, in equity andiufiiu^ whereof the aflignee had 
full notice (the equity being moft tranfparent), he ought to take 
iht\e^i^ cum oneres for, qui/entit commodum^ JaUire deiet et 
onus : So that if we can poffibly make Uw and equity to flow in 
one channel, we will not leave the plaintiff remedilefs here^ and 
fend him away to the court of Chancery. Therefore let us fee 
whether this equity caon^t i>e got at, in a court of law? .and 
whether there is any difference between land and tithe, with re- 
gard to the covenant in this cafe ? 

Con» 



MtcRAxuiXB Tbim 10 Gfia IIL 176^ 

Concarning exprefs covenants^ and Govenants ia lair; anl 
which of them nm with the bmd, and whkk of tbcm are cdI« 
lat«rid and do not nio with the hmd; aad where the affignet 
flail be banfldwhhoat oamiiig hinkf and where not: and wnere 
Jie fludl aot be bound, ahfaoo^ that he be exprr&ly : 



Spencer's Cq/e^ j Rtp. 16. a. is a leading c^; wherein the J^«^ ><•«> 
court came to the following relbluiions, which lliall be ihortly ^ST^* 
flatcd. 

JUfohed, 
1. When the covenant extends to a thiiw in j^, parcel oF 
the demife, the thing to be done hf farce of the covenant is ia 
a inanner annexed and appurtenant to the thiiu^ demifed, and 
flail run with the land, and Ihail bind the aifonee, aUhougfai 
he be not bound by exprefa words; as if the le&e covenant tf» 
repair the hoiifes, tliis is parcel of the contrafi, and extends to 
the fttpporting of the things demifed. 

d. It was there refolved, that iC the leflee hath covenanted tor 
himfelf and his ajfigns to make a new wall upon part of the 
land demifcd, this flull bind the aflignee, becaufe named^ and he 
U to take the benefit of it: So if warranty be made to a man, 
his heirs and afligns, the ai&gnee Oiall take the benefit thereof, 
and (hall have a toarraiUia chartse. Fitz. N. B. 135. But aU 
though the covenant be for him auid his afligns, yet it is other- 
wife if the thin^ to be done be merfAy colUteral to the land, 
and not concemmg the tiling demifed m any fort, and tlie af- 
(ignee (hall not be -charged; as if the ledee <5ovenant for himfelf 
and his adigns to build a houfe upon the land of the leflfor 
which is not parcel of the demife, or to pay any collateral fum 
of money to the leHbr^ or to a ftranger, tins (hall not bind the 
aflignee. 

3. It was there refolved, if a man demife a ftock of cattle or 
goods for any time, and the lelTee covenants for himfelf and his 
afflgns^ at the end of the term, to deliver fuch cattle and goods» 
or a certain price for them, and tlie lelfee a(fign the cattle, &e. 
this covenant (hall not bind the affignee: for it is merely a thing 
in a&ion in_the perfonalty, and wants fuch^nVi'/y as is between 
the le{ror and leflee of lands, in refped of the reverlion. The 
fame law, if a man demife a houfe and lands for years, with a 
flock of cattle or fum of moneys rendering rent, and the ie(ree 
covenants for himfelf, his executon, adminiftrators and alEgns, 
to deliver the ftock of cattle or fum of money at the end of , 
the term, yet the afisnee flail not be chargea With this co« 
venant ; for although the rent referved was increafed in reipeQ 
of the flock or fum, yet the rdi/ ifliies out of the iawi <mljt 
and therefore as to the ftock or fum, the covenant^'^is porfonal, 
and fliall bind the covenanM^r. his exccvKoia and admini^ 

ftratorSk 



%b MiCHAELinAs Team lO Geo. III. 1769. 

firators, who reprcfent him, and not the ajjigntt: and becaiife it 
is not certain that the flock or fum will come to the hands 'of 
ihe affigneey for it may be wafted, or otherwife confumed or 
peridied, through the leflee; and therefore the ]:\w cannot de» 
termine, at the time of making the leafe, that fuch covenant 
• Ihall bind the lJ^^f^^lf. 

4. It was there refolved, that if a man make a feoffment hy 
the word dedij (which implies a warranty) the affignee of the 
feoffee (hall npt vouch ; but if a man makes a leafe for years, by 
>he word conceJR or Idendji^ (which intpoYt a covenant), if the 
j^gnee of theleflee be evi£led, he Ihall have a writ of covenant.* 

; j. It was there refolved, that tenant by the courtef)^, or any 
other who comes in in the poft, (hall hot vouch, (which is inftead 
of <in a6lion) , but if a wardfkip be granted by deed to a woman 
who takes a hufband, and the woman dies, the huiband (hall 
vouch, by force of this word grants although he come to it by 
•b3 in law. * So if a min demtfe or grant hni to a womarr for 
years, and the leffbr covenants with the leflee to repair the 
houfes during the term, the woman takes a hufband and dies, 
.the hufband fhall have an a£lion of covenant, as well upon the 
covenant in law, upon thefe words demiji or grants as upon an 
exprefs covenant. The fame law is, of tenant hy JiatuU mer^ 
chanty Jlatuttjlaplt or elegit of a term ; and he to whom a leafe 
^for years is fold by foree of an execution, fhall have an aftion of 
covenant in fuch cafe, as a thing annexed to the land, although 
he come to the land by a£l in law : As, if a man grant to a leflee 

• for term of years, fo much eflovers as fhall be fuflicient to re- 
pair his houfe, or as he fhall bum in his houfe, or the like, 
during the term ; it is as appurtenant to the land, and fhall run 
with It as a thing appurtenant to the land, into whatfoever hands 
the fame fhall come, 

6. It was there refolved, that a covenant by the lefTee iFor 
vears to repair, fhall bind all others ; as well thofe who come in 
b)r the aft of the party, as by aft in law ; and if it were other- 
' wife, it would be great prejudice to the leffor. 

.7. It was there refolved, that the affignee of an affignee, fhall 
h?ve an aftion of covenant; fo fhall iht. executors oi.the affignee 
of an affignee ; fo fhall the affignees of the executors or adminijira^ 
^torsot' every affignee; for they are all comprifed within this 
•word, affignees: For the fame right whichvwas in the ieflatar or 
inteflafe, fhall go to his executors or admini/irators. 

• » This cafe of Spencer was thus flatcd by the court, (with fome 
brevity) to fhew' what the law is, concerning covenants; which 

. .^*Stem i|fe* [fts* it'.wcre]. inlt^nt^ and run with the land, and 
' •~".'' . which 



Michaelmas T^rm 10 Geo. HI. 1769^ ^ 

which of them are only coUaUral^ or do not run vrith the land$ 
and where the affignee Ihall be bound without naming him» 
and where not ; and where he (hall be bound although he be 
not exprefsly named. 

There muft always be a privity between the plaintiff and de- 
fendent to make the defenaent liable to an adion of covenant ; 
the covenant rauft refped the thing granted or demifed ; when 
the thiog to be done, or omitted to be done, concerns the lands 
or dilate, that is the medium which creates the privity between 
the plaintiff and defendant. As if leffee for life, covenants for 
him, his executors, and adminiftrators, to build a wall within 
his term, and afterwards he affigns over his eftate, the grantee 
of the reverfion ihall have covenant againft the affignees^ and 
notwithftanding the covenant wants the word affigns^ yet every 
qffignet by accepting the poffeffion, hath made himfelf lubjed to 
all covenants concerning the land^ but not to collateral covenants; 
and covenants of repairs, and building walls or houfes, are co« 
venants inherent to the land, with which the affignee without 
fpecial words (hall be' charged. Alfo where the leffor for years 
covenanted in his leaf(^, that at the end of the term, he would 
make a new leafe to the leffee or his afligns, and afterwards 
granted over liis reverfion, and at the end of the term, the leffee 
brought covenant againft the mntee of the reverfion, it was 
Agreed, by all the juftices and ierjeants, that the a£^ion did well 
lie, Moore 159. c. 300. ■ For a covenalnt, which runs, and 
refts with the land, an a£lion lies for or againft the affignee at 
the common law, quia tranfit terra cum onere^ although the af» 
fignees be not named in the covenant. And covenant Ties acainft 
executors in every cafe, although they be not named, unlefs it 
be fuch a covenant as is to be performed by the fier/on of the 
teftator, which they (t&e executors) cannot oerform. Cro, Eliz. 
553. and fee 1 Ro* Rep. 359, 360. ^Cro. Lar. aai. 

A man being leffefe of two houfes and lands, covenants for 
4iim and his affigns, to repair the houfes ; leffee affigns one of 
the houfes, and parcel of the land to Jf. S, ; and the leffor for not 
repairing the houfe affigned to J. S. brought an aiSion of 
covenant againft y. .S., and adjudged that the afkion lies; for 
•this is a -covenant which runs with the term affigned; and al« 
though he be affignee oi parcel, yet covenant lies againft him for 
not repairing the faid parcel, and thereupon judgment was given 
for the plaintiff. fV. Jones 245. fL 3. 

'. Covenant againft the defendant affignee of Dalton, for that u]>* 
on an indenture of demife, Dallon covenanted for himfelf, his 
^ecutors, and adminiftrators, to leave 15 acres every year for 
^dSLmt aifquc cultura f and that he granted his eftate to the de* 
,^ ,,. . .. ,. .fendaoti 



:3^ 



Anfwer. 



Godbolt Hil. 
ft9 Elif . i&o. 
Hardr.t7,88. 
»Ld. Rayin« 
312. Salk. 
198. S. C. 



MicHA]^LMAs TuBM IoGeo. III. i76§. 

JeVDcrsCqfe 5 Rep. 3. has been objefted for the defendant ; 
where it is refolved, that if a leafe b6 made by a biihop of a 
Fair for' 21 ]^ears, rendering the ancient and accuflomed rent, 
the fucceflbr thall avoid it. But this has fmce been determined 
othei-wife. CTO.Jac, 111,112. and fee 2 5attW. 30^ 304. 

Thejlai^ 5 Gfo, 3/ cap. 17. has been objefted ; that the le- 
giflature thought a r^nt could not be referved upon a leafe of 
tithes, and therefore that ftatute was made : But in anfwer to 
this, it's plain from the. words of the ftatute, that they only 
had a doubt, and made. the ftatute to brufli away that cobweb of 
a doubt ; And the cafe$ before cited (hew,, that debt laid for rent, 
referved upon a leafe lor tithes, long before. 

fi Vern. 423. * That aflignees of an incbrporear inheritance are 
not liable at law to the rent, for that they have no privity oT 
ellate, was objefted fpr the defendant : — ^But this is only a diaupi 
of counfel at the bar, and would have had no weight, we think, if 
the court had faid it; fo that we thifik there is no difference be- 
tween lands atid tithes in this Cafe. As to the cafe in Moore 
tgg. mentioned before, that a covenant by the leflee to build a 
wall, ihall bind the aflignee although he be not named, and that 
the covenant is inherent iti the land ; we rather choofe to ad- 
here to Lord Coke's opinion, that fuch a covenant will not bind 
the q^gnee unlefs he be named, but we have no occafion to de- 
termme that point ; for in the cafe at bar, the defendant the 
qj^gnce is nained, and therefore this a^lion well lies againft 
him. 

What is this covenant ? It is a mode of occupation, prefcribed 
by the leflbr to the leflee of the tithes, that he ihall manage and 
take them in kind, to do which, he has agreed and covenanted 
for himfelf and his afligns ; it is like covenants to fpend all the 
muck upon the land, and falls exa£lly within the rules laid 
down by Lord Coke in Spencer's cafe as to land ; it concerns tlie 
thing demifed, and tends to fupport and ptiefer\'e the eftsute of 
tithes in kind; here is a reverfion in the leffor, and a privity be- 
tween him and the affignee. 

We do not mean to fliake any of the authorities in the books : 
In Purfrey^s cdik^ Moore 43. there is fomething looks againft us; 
the opinion there ti, that the covenant would not. run with the 
land ; but it mufl: be obferved, that it did not concern the thing 
demifed, nor is the word ajjigns there, fo it does not apply to, 
nor clafti with the cafe at bar. The covenant here is not, that 

Jrou fhall not aflign the leafe of the tithes, hut that {let the 
eafe of the tithes go where it will) they fliall be taken iti kind, 
they ihall. coatinue in the fame ftate; upon this we 'lay our 



Michaelmas Tom 10 6bo. III. 1769. 93 

freateft ftrefs. A covenant not to aiEgn generally, muft be per* Cra.]ac. 39S. 
fonal ana collateral, and can only bind the leflee himfelf, there ^""!"^ep. 
never can be any affignee ; whereas the prefent leafe grants to ex« 64. Snri. s65. 
ecutors, adminiftrators and affigns : Upon the whole, as there is Tbo. kajin. 
no care in point, we do not break through any of the authonliel ^^^^ ^^ 
in the books concerning collateral or perfonal covenants* 

Judgment for the plaintiff ^^ totam curiam. 

Cave verJUs Aaron. C. B. 

■pvEFENDANT had time to juftify his bail, tvhcreupon a After time co 
^^ rule was made (according to the common courfe of the ^^'^**"'» 
court) that he fhould plead iiiuably, and take fhort notice of ^^^ |^J* 
trial for the laft fitting within the term ; then the defendant ably, isu plea 
pleads a recovery in B. R. The court, upon motion, made a ?f » fwoynr 
rule to Ihew caufe why the plea fhould not be fct alide, and IJde with*' 
why the defendant's attorney fliould not pay the cofts of the ap- cofti. 
plication, which was afterwards made ablolute. Serjeant Narcs 
for the plaintiff. 

Darling, Knight, verJus Atkins. 

^TpHE defendant being indebted to the plaintiff in 50c/. Pwteaiw of 
* ■ paid him 2W. in part, and gave him a bond and jtidg- 3or**tohir 
ment for the rendue, with flay of execution for a certain time ; BosHft fecit* 
which beinff elapfed, and the defendant not having paid either tarywatdif. 
the principal or interefl, the plaintiff threatened to take out exe- ^^Sfe^t'ap-* 
cution againft him ; whereupon the defendant wrote a letter to peared be waa 
the plaintiff, deftring him to give him further time, and that apurferofa 
he would make it a point of honour to pay him as fbon as ^'P**^*^* 
poflible. The plaintiff having waited for his money a year 
longer, and not being paid, took out a writ dire6lcd to the flieriff 
of MiddUfex: whereupon the defendant was arrefled by one 
Dennis a meriff 's offiqer, who carried him to the lock-up houfe 
of one Norton another of the flieriff *s officers. Whilfl the defend- 
ant was in cuflodyat Norton'^ lock-up houfe, Baron Hetflang^ en* 
voy from the £le£lor of Bavaria and from the Eleftor Palatine, fcni 
a meffage to Norton the officer, dem^viding a difcharce of the de- 
fendant out of cuftody, inlifting he was the Baron's EngHJkfecrt- 
tary^ and was duly regiftered as fuch in the proper offices ; where- 
upon, and upon receiving a note of indemnity, Norton difcharged 
the defendant out of cuffody. Whereupon the plaintiff caufed 
the fheriff to be ferved with a rule to return the writ. 

And novr it was moved by Serjeant Nares^ on behalf of the 
Iheriff and defendant, that the rule to return the writ might 
be difcharged, upon an affidavit of the defendant, fbting the 
fiiAs and auefts as above, imd that he was jEfl^/^ fecretar^r to the 
. VoUJll. ji ambailador. 



3« MlCHASLMAS TiSBM 10 GfO* IlL 17^> 

ambafiador, and received a falary of 40/. per annum to' hfs own 
ufe, for copying all his Englipi difpatchcs, memorials, &c. that 
he is prpperly regiftered, and his name entered in the iheriff's 
office ; and upon another affidavit in confirmation of the above 
fa£b, and that the defendant has been conftantly attendant upon 
this miniiler, to copy memorials* letters and dilpatches, for fome 
years, except when he hkd leave of abfence for a few days at a 
time ; and upon another affidavit of Norton the officer, who 
fwears that Dennis brought the defendant to his houfe to be 
locked up, that he did^not then know he was a I'ervant to Baronr 
Haflang^ but that he (deponent) foon after received a demand in 
writing from the baron to difcharge the defendant out of hift 
cuftody, and to detain him at his peril, whereupon, being in fear 
of puniQiment, (having received a note ot indemnity under the 
hand of the Baron) he difcharged the defendant out of cuftody :. 
Rule to fliew caufe why the rule to return the writ fiiould 
not be difcharged. 

Serjeant Forfter^ for the plaintiiF, upon (hewing caufe, pro- 
duced an affidavit of the plaintiff, wherein he depofes, tli ' "^ 
defendant being indebtea to him in 500/. paid him 2J 
part, and gave him fecurity for tlie reft, as. above ftated 
after he luid received the letter as above, and waited f^ 
money above a year, caufed defendant to be arrefted ; th 
never before heard that the defendant was prote6led or cla ^ 
any prote£lion, or confidered himfelf as a (ervant to Baron Ha- 
Jldiig ; on the contrary he depofes, that he believes he is ^ot 
prote£led, nor is his fervant, becaufe he fays that the defendant, 
m the year 1761, was appointed purfer of the Triumph vazn of 
war by the commiffioners of the navy, and continued fuch till 
the year 1767, when he was appointed purfer of the king's fhSp 
called the IJew Grafton^ by warrant, and is ftill purfer thereof ; 
that, as fuch officer, he gets confiderable profits by buying in the 
provifions ; that he takes care and keeps an account thereof, and 
of the flops, G/c. belonging to the ihip, and accounts for the 
fame monthly ; that the defendant afts as a fa£lor for the fliip, 
and the deponent . apprehends he is liable to a commiffion of 
bankrupt, for that he receives ^L ter cenU for eveiy thii^ he 
buys in for the fhip : Whejeupon oerjeant Forfter fubmitted it to 
the court, that as the defendant was obliged to do conftant dutjr 
in regard to his office of purfer, he could not at the fame time 
be a fervant to Baron Hylang, intitled to prote£lion by thcjlai, 
7 Anna^ c. la. and cited 1 Burro. 401. £. /{. as a fnnilar cafe 
to this, where the court ref ufed even a rule to fliew caufe. 

In anfwer, by wiy of reply, it was admitted that the defend- 
ant was purfer of the New Grafton^ which in time of war is 211 
office of full employment, incompatible with that of fecretarj 
loan ambaflador; but it was faid, that in time of peace (as at 

• prcfent) 




MlCRAfiLMAs T£aM 10 Gso. IIL 1769. d& 

prefent) it is a mere fine cure^ and the defendant may well be 
fecretary to Baron tiling: and that the cafe in t Burro, 401. 
is not at all fimilar to the prefent cafe* 

Curia. To be fure courts of law will prote£l tlie ambafladors 
or public minifiers of foreign princes or fbtes> and their fer- 
vantSy from being arretted ; it is the law of nations ; but we 
muft not confound the right ol prouSion with the n^ti/i of that 
right. The queftion is, whether the defendant is bcni Jiic a 
fervant' of the ambaflador ? It is determined he need not be a 
domejtic fervant) (although the words of ihtjiat. 7 Ann, are do^ 
mtjhc ftrvants\ for many houfes are not large enough to contain 
and lodge all the fervants of fome ambafladors. But we are of 
opinion that the office of purfer» which the defendant has and 
enjoys, is incompatible with being fecretary to an ambaflador, for 
no man can ferve two mailers ; the defendant is a fervant to the 
King, fo cannot be a fervant to the ambaflador : the defendant 
himlelf feems to think this is but a flimfy prote6lion, by not 
having; claimed it until now ; as appears by the affidavit of the 
plaintiff*, with whom the defendant has had credit for fome years. 

The rule to fliew caufe why the rule upon the flieriff'to return 
the writ muft be difcharged, the proteQton being difallowed per 
totofn curiam. 

Pugh ver/us Curgenven. C. B. 

A CTION of <lebt, to recover certain penalties againft the Thedefend. 
"^^ defendant, upon the flat, 2 Geo. a. c. 24. for corrupting ■"**^^'»"i* 
and procuring certain perfons (voters) to give their votes in the lil^fygh^ 
l^ft ele£lion of members to ferve in parliament for the borough htry at an 
of Mitchell^ in the county of Cornwall. The defendant pleaded «leak», 
nil debet per patriam. The caufe was tried at the laft affiles, j^J^^t*' 
when a verdi£l was found for the plaintiff". on tbeTcrdia 

may be ftsTtd 
on tbe ftatnte s Ceo. 1. c. 14. he having made a difcovery of another perlbn offending againft ttuc 
ftatute, who had been convided thereof 00 his the defiBndant*a evidence. 

In the beginning of this term, it was moved by Serjeants 
Burland and Glynn^ on the behalf of the defeiylant, thatjuda* 
ment upon ihc^po/iea returned in this caufe, might be flayed ; 
they grounded their motion upon a claufe in the fame aCl oi par- 
liament, whereby it is ena£led, " that if any perfon offending 
'* againft that aft fliall, within the fpace of twelve months next 
" after fuch eIe£lion, difcover any other perfon or perfons 
*' offending againft that a3, fo that fuch perfon or perfons fo 
•• difcovered be thereupon convifted; fuch perfon. fa difcover- 
" ing, and not having been before that time conviSed of any offence 
** agaxnjl that a8^ (hall be mdemnified and difcharged from all 
^ penalties and difabilities which Audi then have incurred by 

D 2 any 



36 MxcHACLMAs Tkbm 10 Gso. III. 1769. 

" any offence againft that afi:" and alfo upon aiBdavks, thai 
the defendant Girgcnven did, within the fjpace of twelve 
months next after the faid election (by making an affidavit) 
difcover one Gary, who had offended againft the faid aft, hv re- 
ceiving and takms money to give his vote at the faid election^ 
who was convifted in an afiion at the fuit of one Lukej at the 
lafl aflizes for Cornwall, in the penaU)r of 500/- (as appears by 
the J^o/lea and judgment thereon, now in court) upon the finale 
teftimony of the now defendant CurgcnVin ; who made the dif- 
covery, and fwore he faw the bribe given to, and received by 
Cary, to give his vote at the faid eleftion ; the court made a 
rule to {hew caufe. 

Serjeant Davy, for the plaintiff Pw^ A, upon ftewing caufe, 
obferved, that from the circumftances in the proceedings in the 
a£lion of Luke v. Gary, there was great realon to believe the 
fame was collufivcly coinraencedi carried on and tried, with an 
intent to defeat and hinder Pugh, the now plaintiff, from recover- 
ing againft Curgenven; for that it appeared by affidavit, that 
Cary\ appearance was not entered by his attorney, but was en- 
tered by Luke^ attorney ; that Carys agent in town pleaded to 
the declaration, without taking out of the office^ and if the 
a£lion had not been a collufive and friendly a&ion, brought on 
purpofe to mdkt Curgenvm ?i y^'iiw^ky , LuHc\ attorney would, 
and might have regul^arly figned judgment againft Gary, accord- 
ing to the cafe of Swilland v. Limbrty executor, Eaflerttvm laft, 
in B, R, wherein the plaintiff, upon an affidavit of fervice of the 
writ, liad entered an appearance for the defendant, according to 
the ftatute, left a declaration in the office, and given the defend- 
ant notice to plead thereto ; the defendant limbrty pleaded two 
pleas, without taking the declaration out of the office, or paying 
the plaintiff's attorney for the fame, and for entering the defend- 
ant's appearance ; whereupon the plaintiff's attorney • figned 
judgment ; which the court, upon hearing counfel on both fides, 
held regular. Serjeant Davy alfo obferved, that the caufe of 
Lvke v. Gary was defended at the affizcs by one yotmg counfellor 
only, who made no objeftion to Ctfr^tf/ii;^/i's evidence; whereas 
caufes of this kind are ufually defended by more than one of - 
the feniors and mnft able counfellors upon the circuit ; and that 
it appeared by affidavit tliat Gurgenven himfelf gave the bribes to 
Carv, and to feveral other perfons to give their votes at the 
faid eleftion ; and that a verdi£l ^VBS found againft him at the 
2 wiifon - fumraeraffizes 1768, at the fuit of one Riggt for the penalties of 
39$. S. C. ^qq/^ jj^j ^qq/^ f^jj. corrupting Peier Buddie and William Hockin 
to give their votes at the faid eleftion ; whereupon a cafe was 
made for the opinion of this court, which was argued in Hilary 
term laft, when the court pronounced judgment lor the plaintiff 
^iS^ which is in the memory of the court, but fome means 
have been ufed to prevent that judgment from being entered 

upott 



Michaelmas TbIim 10 Geo. III. 1769. 37 

upon record ;. however Seijeant Davy infifted that the court knew 
that Curgenven had been convifted of offences againft the faid 
ilatute at the fuit of Riggy for whom they had pronounced judg- 
mcnt as aforefaid, and therefore they would not interfere to de- 
termine this matter upon a motion, but leave Curgenven to his 
remedy (if he had any) by an audita querela: befides he infifted, 
Curgenven ouffht to have pleaded the Ilatute and the matter of 
liis difcharge ipecially, that the plaintiff Pugh might have re- 
plied to it. 

For the defendant Curgenven it was faid in reply, that his 
having afted iniquitoufly in bribing the voters was no objedion 
to his being difcharged from the penalties in this a6lion at the 
fuit of Pugh^ accordmg to the faid ftatute ; it appeiu-ing clearly 
to the court, that, within a year after the election, Curgenven 
difcovered Cary offending againft the faid ftatutc, who hath been 
cohvi8cd thereof ; that the caufe of Luke againft Cary was as 
earneftly and ably defended by Mr. Hodgkins^ Cary*$ counfel, as 
any caufe tried at the affizes ; that the court will not prefume 
there was any collufion ; that Curgenven was a good witnefs, as 
all accomplices are who have a pardon, or are to gain by a difco* 
very; indemnity is no objeClionto a witnefs, or that he is to be 
rewarded for the difcovery, which happens every feffions at the 
Old Bailey: As to the obje3ion, that the convi6kion of Cary 
ought to have been pleaded in this cafe, it was impoffible to be 
done before judgment was entered upon the verdi£l againft Cary, 
which could not be done until the nfth dav within this prefent 
term ; befides it is not neceffaxy to be plcaoed ; for in this very 
term, in the cafe oi Sikley v. Comyn, B, R. a judgment having 
been given in evidence at the laft aflizes, in order to prove that 
Comyn was a difcovcrer within the faid ftatute, it was obje^ed 
bv the counfel lor Sibley, that the judgment ought to have been 
pleaded; but the court of B. R. all' inclined to be of opinion, 
that it need not be pleaded ; but faid they would riot give any 
certain opinion thereupon. Mr. Juftice Yates faid, that no judg- 
ment, in fuchan a£lionas this is, need be pleaded, except ajudg- 
mcnt of recovery againft the defendant himfclf, for the lame pe- 
nalty for the fame offence ; and Mr. Wallace (the King's couuiel) 
being afked his opinion by Mr. Juftice Yates, agreed with him. 
As to the objefiion, that Cary's agent pleaded without taking the 
declaration out of the ofiice, the plamtiff Ltiies attorney, Mr, 
Harris, having accepted the plea, has waived that matter ; and 
as to Mr. Harrises having entered an appearance for Cary, ac- 
cording to the ftatute, it is what is done in every cafe where the 
defendant doth not enter his own appearance. 

As to the obje£lion, that it appears to the court that Cur gen- 
ven has been 6<yavi£ted at the fuit of Rigg^ fo is not intitled to 

D 3 the 



38 Michaelmas Term lo Geo. III. 1769. 

the benefit of the faid claufein the ftatute, which he now claims ; 
it was replied by his counfel, that it doth not appear to the 
court that the Curgenven who had a verdift againft him at the 
fuit of Rfgg, is the fame identical pcrfon who is the now de^ 
fendant in the cafe at bar ; befides there is no judgment entered 
upon record in the cafe of Rigg v. Curgenven, ana Rigg may do 
as he pleafes, whether he will enter judgment upon the verdift 
or not. In the cafe of Sutton v. Bj/hop, B. R. it was determined 
there was no convi6lion until judgment be entered upon record ; 
fo in Rigg V. Cwr^^t/^n,, there being Ao judgment, there is no 
conviftion : Suppofe it was objeQed at the aUizes that a witnefs 
hscd been convicted of perjury, the judgment muft be produced 
in evidence, the fo/lea alone will not do; that is this very cafe: 
Upon the whole it appears, that within a year after the elfeftion 
Curgenven made affidavit before a proper commiffioner to take 
affidavits, that he faw Gary take money to give his vote at the 
ele£lion, who has been convifted, at the fuit of LuAe^ upon the 
fingle teftimony of Curgenven; that the verdift and judgment 
are compleatly entered upon record, and are now here in court ; 
that there is no evidence at all of any coUufion, fo the court will 
not prefume any ; that Curgenven was never convifted at the fuit - 
of Rigg, there being no judgment in that cafe entered on record : 
And for thefe reafons they prayed jhe rule might be made abfo- 
lute, to ftay the entry of the judgment in this caufe. 

Curia, We are all of opinion, that this is not a cafe wherein 
we ought to interpofe at all upon a motion : If Mr. Curgenven 
. has the law on his fide, he muft take his remedy in forae other 
way, as he (hall be adyifed. 

. The rule was difcharged per totam curiam, • 

Norris verjics Freeman. C. B. 



A new trial 
grantrd, al. 



"pvEBT upon a bond ; defendant pleaded a general relcafe \ 

-. . -*^ plaintifiF replied «(?n ^/a5tt«, thereupon i flue was joined ; 

was'^Tidence ^^^ caufe was tried at the laft affizes for the county of Worcefter^ 

on b(xh fidet, before the Lord Chief Baron Parker, when a verdift was JFound 

^caufe all Jq^ the defendant. Serjeant Nares moved for a new trial, upon 

rubftrib?ngVo ^^ affidavit that very ftrong circumftances of forgerj' and perjury 

areieafewrie appeared upon the trial, whereupon the court made a rule to 

not called and ftgw caufe. The Chief Baron reported, that at the trial the 

examine ,&c. jgf^j^^^ant produced a general releafe, fuppofed to be executed by 

the plaintiff the loth of 03ober 1768, to which Albert and 

Goff appeared to be fubfcribing witneffes ; Albert was called, 

and fworc, that in OSober 1768, he was fent for^ to go to the 

plaintiff's houfe to be a witnefs, tiiat he went thimer, and 

there 



MiCHABLMAS TbBM 10 GbO. III. 1769. SQ 

'there (aw the plaintiff feal and deliver the releafe produced in 
evidence, and alfo faw the defendant execute another general re- 
leafe to the plaintiff,, f that the other fubfcribing witnefs u-as a 
poor labounng man, but he was not called to prove the releafe), 
that this was done about one o'clock that day at the plaintiff's 
houfe, which is about thirty miles diilant from Worcefter. John 
Wiebb^ a clergyman, and Tfofepk Collins^ were called for the plain- 
tiff, who fwore they had often feen the plaintiff write, and that 
the plaintiff's name fubfcribed to the releafe, was not of his hand- 
wriang, as they believed ; and that on the loth and 1 ith of Odo- 
her^ the plaintiff and witneffes were at Worcefter all day : it was 
the mavor's feaft day. Then Thomas Homer was called (for plain-* 
tiff), who fwore he heard the defendant fay, he would let judgment 
go by default in tliis caufe, and file a bill in Qiancery againft the 

filaintiff for an account, and did not pretend he haa any releafe 
rom the plaintiff. It alfo appeared, that the declaration in this 
caufe was of Trinity term 1768, and that the releafe was not 

} pleaded uritil Trinity term laft. In reply, the defendant called 
everal witneffes, who fwore, they believed the name fubfcribed 
to the releafe produced, to be the plaintiff's hand-writing ; upon 
fumming up tne evidence, the Chief Baron acquainted the jury, 
that he thought the ftreugth of the evidence was with the plain* 
tiff, but they found a verdi£l for the defendant. 

Serjeant Davy for the defendant againil a new trial, infiAcd, 
that there never was a new trial granted, fingly, upon a judge's 
reporting, that the ftrength of the evidence was on the fide of 
the plaintiff or defendant ; that in this cafe, there was evidence 
on both fides, of which the jury are the only proper judges ; 
and although it is fwom (by the witneffes for the plaintiff), that 
the plaintiff and the witneflcs to the releafe were at Worcejter on 
the loth and nth of OBober 1768, yet the witnefs Albert did 
not fwear that the releafe was executed on the day it bears date, 
it might be drawn and written on the loth, and not executed 
tilj fome days after ; the alibi^ only goes to falfify it's being 
executed on the loth; the Chief Baron hath not reported, that 
the verdift is contrarj' to evidence. Serjeant Nares was about to 
reply, when the court, without hearing him, were of opinion, 
there ought to be a new trial. 

Curia. There are many cafes where the court will grant new There are 
trials, notwithftanding there was evidence on both fides, as where JjJ'*JJ[J5;*wUi 
ail the light hath not been let in at the trial which might and grant a new 
oudit to have been ; we think the other fubfcribing witnefs, trial althoHgh 
C(j^, ought to have been called and examined to the execution ^^!^* ^■» 
ofthe releafe, and he not having been called, we think it would Jwenonboih 
be hard the plaintiff fliould be bound by this verdifi, efoe- fidei. 
cially as the releafe is not in the. power of the plaintiff, ana fo 

D 4 he 



49 MiCHASUfAS Term 10 Gbo. Ill, 17^« 

be cannot prefer an indiflment for forgery. The Lord Chief 
Jfujlice faid, he thought the evidence was very ftrong on the 

Sart of the plaintiff, and that if the caiife had been tried before 
im, he would (under the circumftances appearing^ have called 
out for Goff the other fubfcribing witneU, and it he had not 
been produced, he (hould have thought it a very ftrong cafe for 
tlie plaintiff, and dire£le4 the jury to have found a verdi£l for 
bim. A new trial was granted; abftntt Gould Juftice. 

Dixon and others verfus Gx>per. 

A Mtm who CPECIA.L a£lion on the cafe, for 300 quarters of wheat fold 
fells for pliin. *-* and to be delivered to the defendant, at a certain day and 
km^ia*^ place, and the defendant then and there to take and receive the 
tlie pound, it lame for a certain price to be paid to the plaintiffs for the fame ; 
a |ood wit. hut the defendant, not regarding his contraft and promife, refufed 
rhe'cootrnft *^ receive and pay for the faid grain, to the plaintiff's damage : 
4n4laU. Upon the general iffue, this caufe was tried in London^ and 
a verdifl was found for the plaintiff. Upon the trial, one Morley^ 
a fafior for the plaintiff, wnomade the contract with the de- 
fendant, and was to have one Oiillingin the pound ior felling the 
300 quarters of wheat, was the only witnefs at the trial who 
proved the contra£t ; and it being obieQed he was not a com- 
petent witnefs, as being intercfted, that point was referved for 
the opinion of the court, who were now, upon debate, unani- 
moufly of opinion, that Morley was a good witnefs ; that as a 
fa6lor he was concerned both lor the vender and vendee, was a 
mere go-between^ and might be a good witnefs for either of 
them. A cafe in -B. /?. Scole^ v. Gambier^ Ea/ler^ 7 Geo, 1. 
yrherein it was held, that a Blackwell-hall faOor may be a wit- 
nefs to recover his own commiffion, was cited by the Lord Chief 
. Juftice. And fee the cafe of The King and Bray. B. -R. Hill. 
10 Geo. SL Ld. Hard. 358. wherein many diftinaions are made, 
between objeftions to the credit and competency of witneffes. 
'Judgment tor the plaintiff. 

Richards ver/ids. Simonds. C. B. Entered o£ laft 
Trinity term. R0II49I. 

fwr'^'rof ^^?/"^/^' CHARLES SIMONDS\2XtolRod€nhallwithHarlefion 
\ wtfTuJU (*^ ^*^') ^^ ^^^ county aforeiaid, blackfmith, was attached 
found, when to anfwer unto Henry Richardf^ the younger, in a 

ihc watUmc. plea of trefpafs on the cafe, &€. and thereupon the faid Sknty^ by 
Soberi Greenacrt his attorney, complains, that whereas he the 
laid Henry ^ on the 13th day of May^ in th? year of our 

Lord 



MlCHAELMAsTfiBM IQGso. III. 176Q. 41 

LotA 1769; to wit, at Tketford in the county of Norfolk afore- 
faid, bargained with the laid CkarUs to buy of him the faid 
Charles a certain mare of the faid Charles; and the faid Charles^ 
then and there well knowing the faid mare to be lame in the 
coffin joint of her off or richt fore-leg, and to be unfound, by 
then and there warranting the faid mare to be found, he the faid 
Charles then and there falfly and fraudulently fold the fi^id mare 
to the faid Henry for a ceruin larffe fum of money, to wit', the 
fumof £i/. then and there paid by the faid Henry to the faid 
Charles ; which faid mare was then and there, at the time of the 
faid warranty and fale thereof, lame and unfound 'in the faid 
coffin joint of her faid off or right fore-leg, and hath always from 
tiience hitherto there fo remained and continued: and fo 
the faid Henry faith, that the faid Charles, on the day and year 
aforefaid, to wit, at Thetford aforefaid, in the county aforefaid, 
falfly and fraudulently deceived him the faid Henry. And whereas %4 Cmoc 
the faid Henry afterwards, to wit, on the day and year aforefaid, 
at TXe^n/ aforefaid, in the county of Norfolk aforefaid, bargained 
with the faid Charles to buy of him the faid Charles a certain 
other mare of the faid Charles; and the faid Charles then and 
there, well knowing the faid laft-mentioned mare to be lame in 
the paftern of her off or right fore-foot; and to be unfonnd, by 
then and there warranting the faid laft-mentioned mare to be 
found, then and there faifly and fraudulently fold the faid laft. 
mentioned mare to the faid Henry, for a certain other large fum 
of money, to wit, the fum of other 21/. then and there 
paid by the faid Henry to the faid Charles; which faid laft- 
mentioned mare was then and there, at the time of the faid 
warranty and fale thereof, lame and unfound in the faid paftern 
of her off or right fore-foot, and hath always from thence 
hitherto therejfo remained and continued; and fothe faid Henry 
faith, that the faid Charles^ on the da^ and year aforefaid, at 
Thetford aforefaid, in the county aforefaid, falfly and fraudulently 
deceived him the faid Henry. And whereas the faid Henry s4 Coant. • 
afterwards, to wit, on the day and year aforefaid, at Thetford 
aforefaid, in the county aforefaid, bargained with the {dkACharles 
to buy of him the faid Charles a ceruin other mare of the faid 
Charles; and the faid Charles then and there, well knowing the 
faid lafi-mentioiied mare to be lame in her off or right fore-Ieff, 
and to be unfound, by then and there warranting the faid laft- - 
mentioned mare to be found in all refpe£ls, then and there falfly 
and fraudulently fold the faid laft-mentioned mare to the faid 
Henry, for a certain other large fum of money, to wit, the fum 
of other 21/. then and there paid by the faid Henry to the faid 
Charles; which faid laft-mentioned mare was then and there, at 
the itm^ of the laid warranty and fale thereof, lame and un- 
found in ber faid off or right fore-leg, and always hath f:f om thence 
a hitherto 



42 



4tliCcont. 



• Thriift 
miftake in 
putting the 
^entHntl 
noK inllead 
•/ the pUia- 



StkCounC 



t THi !• 

another mif- 
take in pttC- 
Cing the de- 
fendant** 
XMoe inftead 
•f the pfun« 
ti/F> oAine* 



6cb Comit. 



MxcRAXLMAs Tbam 10 G&0. IIL 1769* 

hitherto there fo remained and continued; and fo the {aid Hatry 
faith, that the hid Charles^ on the day and year aforefaid» at 
77<^//'^r^aforefaid, in the county aforefaid, falfly and fraudulently 
deceived the (aid Henry. And whereas the faid H^niy afterwards^ 
to wit, on the day and year aforefaid, at Tketfori aforefaid, bar* 
gained with the laid Ckarlts to buy of him the faid Charles a 
certain other niare of the faid Charles ; and the faid Charles then 
and there» well knowing the faid lafi-mentioned mare to be lame 
in her off or right fore-foot, and to be unfound, by then and 
there warranting the faid laft>mentioned mare to be {ound in all 
refpefls, then and there falfly and fraudulently fold the faid laft*^ 
mentioned mare to the faid * Charles ^ for a certain other large 
fome of money, to wit, the fum of other si/, then and there 
paid by the fatd Henry to the faid Charles^ which faid laft-men« 
tioned mare was then and there, at the time of the faid warranty 
and fale thereof, lame and unfound in her faid off or right fore^ 
foot, and hath always from thence hitherto there fo remained 
and continued ; and fo the faid Henry faith, that the faid Charles^ 
on the day and year aforefaid, at Thetford aforefaid, in tlie 
county aforefaid, talfly and fraudulently deceived him the faid 
Henry, And whereas the faid Henry afterwards, to wit, on the 
day and year aforefaid, at Thetford aforefaid, in the county afore-* 
faid, bargained with the faid Charles to buy of him ;^the faid 
Charles a certain other mare of the faid Charles ; and the faid 
Charles then and there, well knowing the faid lad-mentioned 
mare to be lame in her off or right flioulder, and to be unfound, 
by then and there warranting the faid laft-mentioned mare to be 
found in all refpefls, then and there falfly and fraudulently fold 
the laft-mentioned mare to the faid t Charles^ for a certain other 
large fum of moneVi to wit, the fum of other 21/. then and there 
I)aid by the faid Henry to the faid Charles^ which faid laft-men- 
tioned mare was then and there, at the time of the faid warranty 
and fale thereof, lame and unfound in her faid off or right 
flioulder, and hath always from thence hitherto there fo remained 
and continued ; and fo the faid Henry faith, that the faid Charles^ 
on the day and year iforefaid, at Thetford aforefaid, falfly and 
fraudulently deceived him the faid Henry. And whereas the 
faid Hehry afterwards, to wit, on the day and year aforeiaid, 
at The ford aforefaid, in the county aforefaid, bargained with the 
faid Charles to buy of him the faid Charles a certain other mare 
of the faid Charles ; and the faid Charles then ^nd there, well 
knowing the faid laft-mentioned mare to be lame in her off or 
right hind-leg, and to be unfound, by then and there warrant- 
ing the faid laft-mentioned marc to be found, he the faid Charles 
then and there falfly and fraudulently fold the faid laft-mentioned 
mare to the faid Henry ^ for a certain other large fum of money» 
to wit, the fum of other si/, then and there paid by the faid 

Henry 



Michaelmas T£BM 10 Geo. III. 1769. 43 

Henry to the faid Charles, which faid laft-mentioned mare was 

then and there, at the time of the faid warranty and fale thereof, 

lame and unfound in her faid off or right hind-leg, and hath 

always from thence hitherto there fo remained and continued; 

and 10 the faid Henry faith, that the faid Charles, on the day 

and year aforefaid, to wit, at Thetford aforefaid, in the county 

aforefaid, falfly and fraudulently deceived him the faid Henry. 

And whereas the faid Henry afterwards, to wit, on the fame 7th Cooc 

day and year, at Thetford aforefaid, bargained with the faid 

CharUs to buy of the (aid Charles a certain other mare as anil for 

a mare found in all refpeds, at and for a certain \zTge price or 

fum of money, to wit, the fum of 21/. and the faid Charles then 

and there, knowing tlie Taid laft-mentioned mare to be lame 

and unfound, then and there fold the faid laft-mentioned mare 

to the faid Henry, as and for a mare found in all refpe6ls, for a 

certain large fum of money, to wit, the fum of 21/. then and 

there paid by the faid nenry to the faid Charles for the fame; 

which faid laft-meptloned mare was then and there, at the faid 

time of the faid fale thereof, lame and unfound, and of little or 

no value, and hath always from thence hitherto there fo re* 

mained and continued, to wit, at Thetford diiorct^d ; and fo the 

faid Henry faith, that the faid Charles, on the day and year 

afdrefaid, at Thetford aforefaid, falfly and frauc^ulently deceived 

him die faid Henry: wherefore the i2i\d Henry faith he is injured. 

and hath fuftained damage to the value of 60/. and therefore he 

brings his fuit, &c. 

And the faid Charles Simonds, hy Charles Stainford the younger Heg, M«t 
his attorney, comes and defends the wrong and injury, when, ^■l**!* 
0c, and fays, that he is not guilty of the premifes above laid to 
his charge, in manner and form as the faid Henry Richards hath 
above thereof complained againft him ; and of this he puts him* 
fclf upon the country; and the faid Henry Richards doth fo 
likewile: therefore the flieriff is commanded that he caufe to 
come here, from the day of the Holy Trinity, in three weeks, 
twelve, &c. by whom, &c. and who neither, &c. to recognize, 
&c. becaufe as well, fi?r. 

• 
This caufe was tried at the laft affizcs for the county of Nor- After iver- 
foli, before the Lord Chief Juftice IVilmot, when a verdia was ^^'^^^ 
found for the plaintiff, with 3/. damages, which was taken ant*s Um?' 
generally upon all the counts in the declaration ; whereupon it » put in the 
was now moved by Serjeants Whitaker and Forfter, on behalf of ^^^ '"?*^ 
the defendant, that Judgment might be arrefted, they objefting tiff*/ namcl 
that the fourth and fifth counts were bad, becaufe it was alledged the cooit win 
in both thofc counts, that the faid (defendant) Charles fold the ^ j^„jl*/ "**" 
mare to the faid (defendant) Charles; but this l^eingafter a nune at being 

verdi£l farplMfage. 



44 Michaelmas Term 10 Geo. III. 1769. 

verdifl, the court reje3ed the words to the/aid Charles^ in both 
the counts* as furpiufage; and held them both to be good and 
fenfible without thofe words, and refufed even to make a rule to 
fhew caufe. So the plaintiff had his judgment. 

Com. Rep. See Skin. 591, 1 Sid. 135. 2 Barnes a. " i RoL Air. 199. 

557. S.P. pi^ gQ jj^g^ pi^ g ^jj^ ^^ the^a^. 16 y 17 Car. «. caf. 8. 
whereby it is ena£led, that judgment Ihall not be ftayed alter a 
verdid, by reafon of miilaking the name of the plaintiff or de- 
fendant, in the pleading, &c. 



4 Bur. Rep. On Wtdiitfday 17 January 1770, CharUs hoxACamden^ lord 
*5o6- high chancellor of Great Bntain^ refigned the ereat feal, which 

was the fame day delivered to the honourable Charles Yorke^ Efq. 

one of his Majefty's learned counfel, fecond fon to the late lord 

chancellor Hardtoicke. 



HILARY TERM 

10 Geo. III. 1770, 



3 Bttf. Rep. ry^ Saturday the 20th day of January 1770, the effoign 
asoe. Vz day of this term, the right honourable Charles Yorke, 

^fq. lord high chancellor of Great Britain^ died fuddenly at liis 
houfe vx Bkomfbury Square^ about five o'clock in the afternoon \ 
he had \i\%jiat to be created a peer, by the title of LordMorden; 
and his patent was made out, but he died before it could pafs 
under the great feal. On Sunday^ January 21, 1770, the great 
feal was given by commifilon to the honourable Sir Sidney 
Stafford Smythe, Knt. a baron of the Exchequer ; the honour- 
able Henry Bathurft, Efq. a juftice of the Common Bench, and 
the honourable Sn Richard A/lon, Knt. a juftice of the King's 
Bench; who took their feats in the court of Chancery on 
Tuefday the 23d of January^ the firft day of this term. 

Swain 



Hxi^ABT Tbsm 10 Gxo. IIL 1770. 4^ 



Swain verf. Hall. C. B. 

I^OVENANT upon a leafe made by plaintiff to defendant A new trial 
^^ of a houfc called the Oxford Arms, for the term of twenty- JJ^^**^^ 
four years, in confideration of 670/. in hand paid b;^ defendant ch."j«fttce 
to plaintiff, and of the yearly rent of 142/. wherein the de* reported tfait 
fendant (amongft other tnings) covenanted to lay out 400/. in ^ ^"T^ 
repairing the premifes, and alio covenanted to keep and leave wai^gai^ 
the fame in good and tenantable repair, at the end of the term, the verdia. 
Whereupon tbe plaintiff afligned two breaches ; 1^, That the 
defendant did not lay out 400/. in repairing the premifes ; 21/, 
That the defendant did not leave the fame in good and tenantable 
repair, at the end of the term. The defendant pleaded that he 
did lay out 400/. in repairing the premifes, and thereupon iffue 
was joined ; he alfo pleaded that he did leave the premifes in 
good and tenantable repair, at the end of the term, and there- 
upon iflue was alfo joined : upon the trial before Lord Chief 
Juilice Wilmot upon the firft iifue it was clearly proved, on the 
behalf of the defendant, that he had laid out 400/. in repairing 
the premifes, fo that the counfel for the plaintiff wholly gave up 
that iffue ; as to the fecond iffue, it feems there was a contra- 
riety of' evidence; and the Chief Juftice in fumming it up to the 
jury, waspleafedto intimate to them, that he thought the weight 
of evidence was with the plaintiff; but they found a verdi£l ibr 
the defendant upon both ilfues. 

Serjeants Davy and Burland for the plaintiff moved for a new 
trial, upon thisjeround, viz. that as to the fecond iffue, the ver« 
did was asainlt evidence ; for that in h& there was no di-> 
veEt or poiitive evidence given on the fide of the defendant, 
that he left the premifes in good and tenantable repair at the 
end of tlie term, and they appealed to the Lord Chief Juftice's 
notes; wherei^pon the court made a rule to (hew caufe,why 
there ihpuld not be a new trial. 

Upon (hewing caufe, the Chief Juftice made his report; after 
dating tl\f two iffues as above, he laid the firft entirely out of 
the cafe, as being clearly with the defendant. As to the 
fecond iffu^ he faid, the plaintiff called and examined three 
witneifes. 

Mr, Flight, the firft witnefs, (aid he was a furveyor, that in 
Afrii laft, a day or two after old Lady^iay 1769, when the lea(e 
e;qmed, hefurveyed the houfe and premi(es m c^ueftion; that 
He. found the roof mqch out of repau-; that it rained in; that 
there >rere ten loadU of rubbi(h in the garreUi diat there 



46 Hilary Tebm 10 Geo. III. 1770. 

was no fell, nor any glafs in fome of the windows ; and that the 
premifes were not left in tenantable repair; but he made no 
eflimate how much it would cqft to piit the fame into fuch 
tenantable repair, as a tenant after a leafe of twenty-four years 
ought to have left the fame. 

The fecond and third witneffes for the plaintiff were William 

Smith and IVood^ two furveyors, who faid, that in April 

laft, about the end of the faid term of years, they furveyed the 
premifes together, and made a particular eftimate in writing, 
|and figned it) how much it would coft to put the premifes 
in fuch tenantable repair as the defendant ought to have left the 
fame, which they eftimated at 105/. i%s.^d. and faid that was a 
fair eilimation between a landlord and a going-out tenant; that 
they were employed to furvey on the part of the plaintiff; that 
the defendant Hall was prefent, and refufed to employ a fur- 
veyor of his fide ; but that if they had been employea by him 
they fiiould have made the fame eftimate: they exadly agreed in 
their account of this matter. This is the whole of the evidence 
for the plaintiff. 

For the defendant iwo witneffes were called. Mr. Frazier^ 
the firft witnefs, faid he was a furveyor, and was employed to 
furvey this houfe; he fwore he thought that at the time of the 
defendant's quitting it, at the expiration of theleafe, it was in 
tenantable repair : his very words were, " That according to 
** the beft of his judgment, he (hould have been obliged to a 
** tenant to have left a houfe pf his fo well, and could not ex- 
•• peft to have one left in better repair." He faid, that there 
was a great difference between repairs as to a tenant's going out, 
and to a tenant's coming into a houfe. 

Mr. SonurtoHy the fecond witnefs for the defendant, fwore 
that he was a furveyor ; that he was recommended to the de- 
fendant /fo//, to furvey the premifes, in order for Hall to take 
a new leafe ; that he did njake a general furvey, and was in every 
room in the hqufe ; and faid, upon the whole, that he thought 
the landlord (hould have been contented, that if he had been the 
landlord he ihould have been contented, with the condition the 
premifes were left in when Hall quitted the fame. The Chief 
Juftice faid this was a very fair and candid witnefs ; that he 
gave both Wood and Smttk^ the plaintiff's witneffes, very good 
chara3ers: faid i\\^i Smith was a man of knowledge and capa- 
city ; and that Flight, the firft of the plaintiff's witneffes, was 
an eminent man in his bufinefs. This is the whole of the evi- 
dence as the fecond iffue. Whereupon the Chief Juftice faid, 
he ftill thought the weiglit of evidence was on the fide of the 
plaintiff; bu( notwithftanding his opinion, after hearing Serjeants 
f/ans 9nd Leigh for the plaintiff, and Serje^^ts Davy and Burland 

3 fo^ 



Hilary Teem 10 Geo. III. 1770. 47 

for the defendant, there being evidence on both fides, the court 
refufed to grant a new trial. The Chief Jufticc 'fpoke to the 
following efiefi. 

Wilmot^ Chief Juftice. Where verdifts have been given 
contrary to evidence, or where th$^re hath been no evidence at 
all to {upport fuch verdi£ls, the court hath granted new trials ; 
but if there hath been a contrariety of evidence on both fides, 
the court hath never granted new trials, liotwithAanding the 
judge before whom the caufe was tried hath been of opinion, 
that the ftrength and weight of evidence was againft the verdi3. 
In the prefent cafe there was a contrariety of evidence on both 
iides ; and altboueh I am ftill of opinion, that the weight of evi- 
dence was with the plaintiif, yet I difclaim any power to con- 
troul the vetdi£l of the jury, who are the' legal conftitutional 
judgesof thefa£L 

N. £, Some days after the court refufed a new trial in this 
cafe, the Chief Jultice faid, that it could not have been fent to 
be tried again upon one of the iifues, but it muft have ffone back 
on the whole record ; viz. upon both the iflues ; and that one 
iOiie being clearly with the defendant, there was no foundation 
or pretence for a new trial on that iSue: and he cited the cafe 
of /lowland v. Vanhalken^ C. B, Ea/ier term, i Geo. i. from 
y. Tracy\ notes, where it was fo determined. 



Linton, Affignee of a Bankrupt, verfus Bartlet. C. B. 

A Trader, inconfideration pfa loan of 120/. without intereft, AbiHo/r.Je 
^*^ bc'^ i^ infolvcnt circumftances, afligns one third part of "»*<*« *>y » 
all his eficSs to the lender, who is his brother ; and within two ^l]^^ 
days after the making the deed, the trader abfconds, and a com- he MwniH 
tniffion is fued out acrainft him, whereupon he is declared a »•('**»<*•« 
bankrupt. raptuw^ 

tnd void. 

Per Curiam. Although this may be a hard cafe upon the 
brother, who is a honajidt creditor, yet the giving him the pre- 
ference is a fraud upon all the laws concerning bankrupts, which 
proceed upon equality, and fay that all the creditors (hall come 
mjfari paffu. There is no cafe where ever fuch a preference as 
this was allowed. The fame fpirit of equality ought to warm 
the courts of juftice, which warmed the legiflature when they 
made the bankrupt-laws; and if we fliould let this deed ftand, 
we fliould tear up the whole bankrupt-laws by the roots; it is a 
bill of fale made by a trader, at a time when he was infolvent, 
and (plainly) had an a£): of bankruptcy in contemplation; it is 

partial 



4a HiLABT Term 10 Geo. III. 1770. 

partial and unjuft to all the other creditors. Judgment for the 
plaintiff, and t^e deed is void. 



Grofs verfus Fifher. C. B. 

A/rt-efre. ASSUMPSIT for goods fold and delivered; defendant 
2S"^i*de. pleaded a fet-off; and upon the trial, the plaintiflf proved 

mand under there was due to him from the AQknismU forty -three JhiUings : 
4o». doth and the defendant proved the plaintifFowcd \\\mjour Jlallings ; fo 
jUri^a^** that the balance due to the plaintiff was thereby reduced to 
of thiscottrt. thirty-nine Jbillings^ for which Turn he had a vcrdid. 

It was moved by the King's ferjcants/iVir^j and Burlat^d, for 
the defendant, that he might h^ve leave to enter a fuggcftion on 
the roll, that he (the defendant) was refident in the county of 
Middlejex, in order to tjJcc the benefit of the Xvi^Jlat. 23 Geo. 2. 
c, g.jC 4. touching the jurifdiftion of that county court, the 
ferjeants infiiling, that as it appeared by the verai£):, that no 
more than thirty-nine {hillings was due from the defendant to 
the plaintiff, he ought to have fucd the defendant in tlie county 
court, according to tht ^atute^ and not in this court; and 
therefore he was well intitled to makje fuch fuggeftion on the 
roll, as prayed, in order to obtain his cofts. Tne court made 
a rule to fhew caufe. 

Upon (hewing caufe, for the plaintiff, it was rightly xnfifted by 
Davy the King's ferjeant, that the plaintiff's caufe of adion be- 
ing for lorty-three (nillinffs, the county court had no jurifdic- 
tion, that it was in the defendant's own power and knowledge 
only, what fum he could or would prove to be due to him from 
the plaintiff, by way of fet-off; and if the plaintiff had gone to 
the county-court for this debt of forty -three (hillings, and the 
defendant had thought fit not to have proved any fum due to 
him bv way of fet-off, that court could not have entertained 
jurifdii^on of this caufe. And he cited Pitts v. Carpenter, B, R, 
1 Stra. 1191. X Wilfon 19.. 5. C. and Fitzpatrick v. Pickerings 
C B. 2 Wilfon 68. in point. 

Curia. There is a difference between the cafe of mutual 
debu fubfiiling where the plaintiff's demand is more than forty 
{hillings, the defendant's demand, at the time of ^ commence- 
ment of the af^ion, reducing it to a lefs fum ; and the cafe 
where the plaintiff's original demand was nx>re than 40^* uid 
the defendant, before the comoiencement of the afitton, hath by 
payment in part, reduced it to lefs tham forty (hillings. In the 
nrft cafe the plaintiff muft fue bere» or k^e part of his demand, 

becaufe 



HttABY Term 10 Gbo. III. 1770. 49 

becaufe lie doth not know whether the defendant can or will fet 
off any demand againil him; but in the latter cafe, the plaintiff, 
well knowing tliat he hath been paid fuch part of his original 
demand as reduces it to lefs than forty fhillings, hath no right to 
come to this court and demand more than torty (hillings, but 
muft go to the county-court. In the firil cafe, mutual debts are 
fubfilGng at the commencement of the a£lion ; in the latter cafe 
not; for payment of part by the defendant to the plaintiff him* 
felf, is not a debt owing by the plaintiff to the defendant, but 
a difcharge of the plaintiff's demand pro tanto. No fet-off is 
cifed or neceffary in fuch cafe, but payment of part is proved 
under non affumpfit. Benfon v. Hemming^ Trin. 18, 19 Geo. 3. 
C. B. 8 Barnes 28i2. We cannot allow the fuggeftion to be 
entered, fo the rule muft be difcharged. 

Roe on the Demife of Saul, vetfus Dawfon. C. B. 

'T^HE plaintiff in eje£lment, as tenant in common, recovered Bjf^tnentfbr 
* poileilion of five-eighths of a cottage, with the appurte- fi^«*«'ghth« 
nances ; and a writ of poffeffion was executed by thejhentt, who sher^'tlv^i 
turned the tenant out of poffeflion of the wholt^ and locked up pofieflioo of 
the door, as appeared by affidavit. the whole | 

Curia. This is wrong ; the writ ought to have purfued the 2ai/be*re- 
verdid. Let there be a rule upon the (heriff, and the leffor of ftored to bit 
the plaintiff to reftore the tenant to the poffeffion of three-eighth pofl*fffion of 
parts of the premifes, otherwife he would be forced to bring ofThrwe- 
another ejeElment for the fame. Forjier, Serjeant, for the defen- mifci. 
dant ; WnttaAer, Serjeant, for the plaintiff. 

Whefton ver/us John Packnian. C. B. 

'TT^HE defendant was rightly named Jokn^ both in the writ An ippeaj* 
•* of ca^s ad refpondendum^ and in the declaration delivered ; J"**,/;"^^ ^ 
the defendant not entering his appearance in due time» plaintiff's for defendftnc 
attorney made an affidavit of the fervite of the writ on the by » wrong 
defendant, by his right name; and entered an appearance for fj^*"^" 
him, according to iht Jiatute by the name of Jamts^ inftead of cUutioa. 
John* It was moved by Serjeant Dauy to fet afide the declara- 
tion, becaufe the defendant was not in court. Per curiam, 
i Chief Juftice Wilmot and Gould only prefent) this is a mere 
lip, and the affidavit is rijrht. So let the filacer alter the entry > 
of the appeairaac«i and infert the name John^ inftead of 
Jfames. 



Vol. III. s MryAty 



50 Easter Thrm 10 Geo. III. 1770. 



iBiiclcRep. February i«, 1770, WiUiam Blackfione^ L. L. D. Solicitor 
General to the Queen, was made a Serjeant at Law, and a jud^ 
of the King*s Bench ; in the room ot Sir Jofeph Yatts^ lately 
a Judge of that court, removed to the Common Pleas, in the 
room of Juftice Clivt^ ,who refigned upon a penfion of 1200/. 
per annunty tU audivi. The motto of Do3or £lacifion€*s ring 
was — Secundis dubiifque reSus. 



EASTER TERM 

10 Geo. III. 1770. 



Whiting and others, Churchwardens and Overfeers of 
the Poor of the.parifh of Cransford, ver/us Punchard. 
C. B. 



Bond with T^EBT upoii a bond, wjth condition, that iF the defendant, 
LFdlf^^'d *** '"^ heirs, executors, or adminiftrators, (hall hire one 

/hall hSc"ne Samuel Clarke as a fetvant, for fuch time as fliall gain him a 
c. fo ai to fettlement in the parifh of Saxted^ and Ihall permit and fufFer 
gun him a jjj^ ^q gj^j^ ^ fettlement in the parifh of Saxled; or if the faid 
1 ftTtra*** 5. dark fliall gain a fettlement, by the aflifiance of the defen- 
sood bpnd. dant, any where out of the parifli of Cransford^ then the obii- 
gation to be void, otherwife in force. 

• Upon the pleadings in this caufe two iflues were joined ; \fi^ 
Whether the defendant hired Clarke as a fcrvant, for fuch time 
as to gain him a fettlement in the parifii of Saxted? firf, Whether 
Clarke gained a fettlement, by the affiftance pf the defendant, 
any where out of the parifli of Cransfordf which were fotmd, 
for the plaintiff. 

It 



£ast£r Tbbh 10 Geo. III. 1770^ . 51 

It appeared by recital in the eondition of the bond, that Oarlie 
being diarged with begetting a bafiard child in the parifli of 
Cransfordy the plaintiffs took him up, and were carrying him to 

Sraol, by virtue of ajuftice's warrant, becaufe he could not find 
ecurity to that parim for the maintenance oi the woman and 
child; whereupon the defendant, who married the fifler of 
Clarke^ (at her requeft, and to fave him from a gaol) gave t}ie 
bond in queftion. 

The woman never had any baftard child by Clarke: but 
afterwards {he becoming chargeable to the parifli of Cransford^ 
tliis a£lioa was brought. 

It was moved by Serjeants Forfter and Jtphfon^ that judgment 
Slight be arrefted ; becaufe it appears upon the face ot the con- 
dition, that this bond is in-eafe of the parifli of Cransford; is an 
apparent fraud upon the parifli of 5^/^^, and all other pariflies} 
is a bond againft the law, and therefore void. 

But it was anfwered bv Wkitaker, the King's ferjeanti and 
refolved by the court, that the bond was a ffood bond ; that 
nothing '^XitpX appeared therein, nor was the lame obtained by 
the plaintiil^ through any unlawful or corrupt means* And 
judgment was given for tne plaintiffs. 

Hatch verfus Cannon* In Formedon. May Id^ 1770. 

T TPON the 12th of May^ the tenant pleaded antient demefne There maft 11 
^ without an affidavit to verify the faft ; the demandant ^f •» ■*?!•' 
confidering the plea without fuch affidavit as a nollity, ycfterday JJe ftaiS • 
moved for, and nad a peremptory rule to plead; whereupon Ser- pieaof ui- 
jeant Forjler now moved, tnat the peremptory rule to plead ^j^**** 
might be difcharged, infifting that an affidavit to verify the faft ^ "*' 
in the plea was not necelTary; and cited 2 lA, Raym. 141 8* 
where it was fo ruled. ' But, per Curiam^ an affidavit is neceflary 
wherever you plead tothe iurifdiSion of the court; and for any 
thing that appears to us, the lands in queflion may be parcel of 
the manor itfelf which is antient demeine, and fuch lands are 
pleadable at common law ; but if they are lands held of a manor 
which is antient demefne, then indeed they are not pltadable at 
common law. The peremptory rule to pleid muft fland. 



%% V^tx^ 



M, 



EjIsteeTexm 10 Geo. III. 1770. 



Debt upon a 
bond againft 
the f xecutors 
of an ezccu. 
trix of the 
obligor. 



Oyer of the 

obligation 
and condi- 
tion, defen- . 
~ dantt plead 
payment by 
the executrix 
after the day. 



Lockyer, Efq. vetfus Coward and another, Executors of 
Frampton, Widow, Executrix of Frampton, C. B. 

Somerfitjhir^ ^AMES COWARD, late of, &c. and Sirnof^ 
(to wit). J BartUtt^ late of, £s?r. executors of the lad will. 
and teftament of Hejicr Frampton widow, dc- 
ceafed, who was in her life-time executrix ol the laft mil and 
teftament of Richard Frampton^ her then late hulband deceafed, 
were fummoned to anfwer unto Thomas Lockyer^ Efq. of a plea 
that they render to the (aid Thomas 6ool. oflawful money of Gr^a^ 
Britain^ which they unjuftly detain from him, &c. And thereupon 
the faid Thomas, by James Upton his attorney, fays, that whereas 
the faid Richard^ by the name of Richard Frampton the younger, 
in his life-time to wit, on the i8th day of July, in the year of 
our Lord 1751, at Ytouil in the county afore faid, by his certain 
writing obligatory, acknowledged himfelf to be held and firmly 
bound to the faid Thomas, in the aforefaid 6oo/. to be paid to 
the {a^dTho?nas, when he the faid Richard in his life-time Oiould 
be thereunto required ; yet the aforefaid Richard in his life-time 
and the faid Ilr'/ldr in her life-time, after the death of the faid 
Richard, and the faid James and Simon, or either of them, after 
the death of the faid H^Jlcr, (although often requefted) have not 
rendered, neither hath any of them rendered the aforefaid 600/. 
to the faid ThoTjuis ; but the faid Richard in his life-time, and 
the faid He/ler m her life-time after the death of the faid 
Richard^ hevc denied to render the fame to the faid Thomas^ 
and the faid James and Simon, after the death of the faid Hefler, 
do yet deny Lo render the fame to the faid Ttiomas^ and unjuftly 
detain the fame ; whereupon the faid Thomas faith that he is 
injured, and hath damaj^e to the value of 20/. and therefore he 
brings fuit, £?c. And the faid Thomas brings here into court 
the writing obligator)' aforefaid, which teftifies the debt afore* 
faid, in fonn aforefaid, tlic date whereof is the day and year 
abovefaid, £?c. 

To this declaration the defendants, by leave of the court* 
pleaded four pleas : ijl. They craved oyer of the obligation and 
condition, and fet forth the fame ; whidi being read and heard, 
the defendants fay, that the plaintiff acTf^; non^ <S?c. becaufe, they 
fay, ' that after the death of the faid Richard Frampton^ and after 
the 18th day of ^fl««ary in the faid condition mentioned, and in 
the life-time of the faid Hejler, to wit, on the 15th day of July^ 
in the year of our Lord 1765, at Yeovil aforefaid, fhe the faid 
Hefler, executrix aforefaid, paid to the faid Thomas the faid 
principal fum bf 300/. mentioned in the faid condition, with 
1 'all 



Easter Tmm 10 Geo. HI. 177O. . . 53 

all intcreft then dye for the fame, according to the fomi of the 
ftatute in fuch cafe made and provided. And this, &c. where- 
fore, &c. 

%dV\cz, They fay, thkt plaint iff a^fi^ non^ &c. becaufe they tdPUa, 
fay, thjit after the death of the faid Richard Frampton, and after ^^^^^J^JJ^^f 
the faid 18th day of ymnuan^, in the faid condition mentioned, cutrUdid*ac- 
and in the life-time of the laid Hefter^ (to wit^ on the faid 13th cooDt toge- 
day of July^ m the year of our Lord 1765 aforefaid, at Yevvit '**"• 
aforefaid, there was due and owing from the faid He/itr^ as exe- 
cutrix as aforeiaid to the. faid Thofnas\' on the faid writing obli- 
gatory, by the condition thereof, the (kid principal fum of 300/. 
in the faid condition mentK)ned, and the fum of 94/. 73. qd. 
for interefi thereof to that day, and no more, making together 
the fum of 3$4/. js. gd. and that the faid Hr/ler in her life- 
time, and the faia Thomas Lockyer^ then and there accounted 
together* as well of and concerning the faid money fo diie and 
owing to the faid Thomas^ from the faid Hefler^ as executrix as 
aforelaia, upon and by virtue of the faid writing obligatory by , 
the faid condition, thereof, as of and concerning divers other, 
fums of money then due and owing from the faid Hefter ' in her 
own right, to the faid Thomas^ as alfo of and concerning divers 
other turns of money tlien due and owing froni the faid Thomas • 
to the faid He/ier^ in her own right; and that upon the faid ac- Andthtt'Ae 
counting together as aforefaid, Jhe the faid Hefter was then ^i^d ][^^.*^^*^^^'» 
there found to be in arrear and indebted to the faid ThomtLS^ in ^pU^ntiff in 
the fum of 466/. including therein the iaid principal and in- 466I. for 
tcreft then due on the faid writing obligatory^ by the condition. ^**^^.^®^ 
thereof, and being fo found in arrear and indebted as aforefaid, bond and 
(he the faid Hejltr in her life-time, afterwards; ^to mi) on the winantof 
fame day and year laft aforefaid, at Yeovil aforefaid, at ^he in- ^"*^"/^j^ . 
ibmceandreaueft ofthefard 7]%()max, finned, fealed, and as her ^„t, 'Jhich 
afts and deeas delivered to the faid Tnomas, a certain writing he reccWed i« 
obligatory called a bond, in the penal fum of 932/. bearing ^**»^'^***"* 
date the lame day and year lad aforefaid, with a condition there- 
unto fubfcribed for .the payment, to the faid Thomas^ of the 
faid fum of 466/. at a certain time therein ipentioned ; and a 
certain other deed or inftrument, called a warrant of attorney, 
to confefs judgment, bearing date alfo the fame day and year 
laft aforefaid, dire&ed to certain perfons therein named, as being 
then attomies of his M^efty's court of Common Pleas at lVeft» 
winfter refpeSively, or to any other attorney of the fame court,^ 
and thereby impowered them or any one of them, or any other , 
attomeV as aforefaid, to appear for her the faid Hefter y in his 
iaid Nu^efly's court of Common Pleas at Wejlminfter^ as of 
Trinity tferm then laft paft, and to receive a declaration againft 
her the laui HeJUr^ at the fuit of the faid Thomas^ in a plea of 

£ 3 debt 



54 Easteb Tsm/Lio Geo. III. 1770. 

debt on the faid bond for the faid 932/. in which faid fum the 
faid 394/. 7J. gd. was then and there included, and to fufier . 
judgment to go againft her in fuch fuit.for the faid debt, by 
default or otherwife; and then and there, at the faid inftance 
and regueft of the faid Thomas^ delivered the faid deed or infiru- 
xnent lo executed by her as aforefaid to the faid Thomas^ in full 
fatisfaflion and difcharge of the faid money fo then due. and 
owing to the faid Thomas^ on the faid boxld now brought here 
into court, and which faid writing obligatory fo made by the 
faid Hcfter^ and the faid deed or inftrument, called a warrant of 
attorney, to confefs judgment thereon, fo executed as aforefaid, 
he the faid Thomas then and there received, had and accepted, 
of and from the faid Hefter^ in full fatisfa£lion aild difcharge of 
the faid money fo then due and owing on the faid bond or 
writing obligatory now brought here inlo court ; and the faid 
Janus and Simon further fay, that the faid riew bond and deed, 
or inftrument called a warrant of attorney to confefs judgment^ 
fo being executed, delivered and accepted, in manner and on 
tlie occafion aforefaid, he the faid Thomas afterwards, (to wit) 
which jttdg- on the fame day and year laft aforefaid, at Yeovil aforefaid, 
rBr^cf ofre!"' ^^L^^f^d the faid judgment to be entered up of record in the faid 
fordj court of Common rieas of our lord the Kink at Weflmnfter^ 

againft the faid HeftcTy ^ of Trinity term, in Uie fifth year of 
the reign of our lord t|ie now Rinj;, for the faid 932/. debt, , 
and 50J« which were awarded to the faid Thomas in and by the 
faid court of Common Pleas, ^s for hi^ damages by him fufiained 
on occafion of detaining of that debt, ais by the record and pro* 
ixedin^ thereof, ftill remsiinin^ in the faid court of our lord the 
now Kmg of the bench aforefaid, at Wdtminjitr aforefaid, more 
fully appears ; and the faid Jamts zni Simon further fay, that 
the faid judgment (till remains in the faid court of the bench 
tnd a writ of siforcfaid, not fet afide, reverfed, or any way annulled or made 
Jieri/acias void ; and that he the faid Thomas^ for the obiainir^ execution 
tt*VT*^*^ of the faid judgment, afterwards, in the lite-time, of the faid 
foodtof*thc H^^% fued and profecuted out of his faid Majefty*s court of 
cxecu:rix for the bench aforefaid, at. Weftminfler aforefaid, as of the faid 
^be(4rbtaii4 Trinity term in the fifth year aforefaid, a certain writ of our 
^'*^'* lord the now King, called ^Jieri facias^ at the fuit of the fai4 
Thomas^ upon the faid judgment againfl the faid He/ier in hef 
life-time, dire£led to the then fheriflf of the faid county of 
^omrJtU gnd tefted the ssd day oi Junt^ in the fifth year afore- 
faid, being the laft day of that faid Trinity term, by which faid 
writ our faid lord the KiM commanded the faid then fheriff of 
the faid county of Somerjet^ that of the goods and chattels of 
the faid Htjltr in his bailiwick, he fhould caufe to be made the 
faid debt and damages fo recovered as aforj^faid, and whereof the 
jTaid Htjicr h^d been cpnvifledi a( i| appear^ in the laid ^omtof 



Eastbr Term 10 Geo. IIL 1770. 55 

the bench aforefaid, of record ; and that he fiiouid have that 
money before the faid Kiiig's juftices of the bench at fVe/imn^ 
fter^ on the morrow of All Souls then next coming, to fatisfy 
the faid Thomas his fald debt and damages; and that the fai J 
then flieriflf Ihould have there then that writ ; afterwards, and 
before the return thereof, (to wit) on the firft dav of SetUmber^ 
in' the year of our Lord 1765 aforefaid, ^a Yeovil aforeiaid» the 
fame writ was delivered to Pam Taylor^ £fq. who then and there 
and from thence until, and at and after the return of the faid 
writ was flieriff of the faid county of Somerfet^ to be executed in 
due form of law ; by virtue of which faid writ the faid then faid 
iherilFof the faid county of Somer/ct^ afterwards, and before 
the return of the faid writ, (to wit) on the 2d day of September^ 
in the year of our Lord laft aforefaid, within his bailiwick, (to 
wit) at Yeovil aforefaid, did'caufe to be made of the goods and 
chattels then of the faid He/ter in his bailiwick, the debt and 
damages aforefaid, in form aforefaid recovered, and this they are 
ready to verify; wherefore they pray judgment, if the faid 
Thomas ought to have or maintain his aiorelaid afiion thereof 
againft them, &c. 

The third plea is the fame as the fecond plea, except that the 3^ Plea like 
third doth not fct forth zjieri/adas iffued and executed. e»c»t"Sr*. 

By the fourth plea by leave of the court, the defendants fay, 4th Plea, 
tliat the plaintiff ailio non^ &c. except as to 10/. parcel, &c, PUMtdmm^ 
becaufe they fay that they the faid James and Simon have fully -Jj^TofAr 
adminifierea all and fingular the goods and chattels which were^alttcofioU 
of the faid Richard Frampton^ at the time of his death, which 
have ever come to the nands of the faid James and Simon, or 
either of them, to be admrniftered, except goods and cliattels to 
the value of io/. ; and that the faid Jamts and Simon have not, ' 
nor hath either of them, nor had they or either df them on the 
day of fuing out the original writ of the faid Thomas^ or at any 
time iince, any goods or chattels which were of the faid Richard 
Frampton, at the time pf his death, in their or either of their 
hands to be adminiftered, except the faid goods and chattels to 
the, value of the faid 10/. and this they are ready 'to verify; 
wherefore they pray judgment if the faid Thomas ought to have 
or maintain his aforefaid adion thereof againft them, except as 
to the .laid 10/. &c. 

J. Burland. 

And the faid Thomas, as to the faid firft plea of the faid Rrplkatioa 
James and Simon^ by them firftly above pleaded in bar, faith pi^^^ 
that he by reafon ot any thing in that plea ailedgcd ought not nmpvkf^ 
10 be barred frofn havmg his aforefaid a&ion thereof againft ^ *s. 

s 4 thein. 



56 



Ea8t»rTerm IOG«o. III. 1770. 



Heplication 
to the fecond 



Thtt the 
|>laiDciff' did 
not receive 
«nd acce^ 



tfecra, bccaufe he faith, that the faid Heftef did not pay to 
the faid Tfionuis^ the faid principal fum of 300/. mentioned in 
the faid condition, with all intereft then due for the fame« in 
manner and form as the faid James and Simon have above in 
that plea alledged," and this he prays may be inquired of by the 
country. And as to the plea of the faid Jams and Simon^ by 
them iecondly above plqaded in bar, the faid Thomas faith, 
that he, by reafon of any thing in that plea alledged, ouj^ht 
not ta be barred from having his aforefaid a£kion thereof againft 
them ; becaufc protefting that the faid Hdter did not deliver 
to the faid Thomas^ the faid writing obligatory and the faid 
deed or inilrument in that plea in that behalf mentioned in full 
fatisfa6fion and difcharge of the money due and owing to the 
faid Thomas on the faid bond now brought here into court, pro- 
teding alfo, that the faid (herifF, in that plea mentioned, did 
not caufe to be made of the goods and chattels of the faid 
Hefur^ the faid debt and damages in that plea mentioned : for 
replication in this behalf, he the faid Thomas fays, that he the 
faid Thomas did not receive and accept the faid writing obli* 
the bond and gatory and deed or inftrument, in that plea in that behalf men* 
cSnficfsjudg- ^ioned, of and from the faid HtfttVy in full fatisfaftion and dif- 
jnent in iatic* tharge of the faid money, due, and owing on the faid writing 
faaion. obligatory now brought here into court, in manner and form as 

the laid James and Simon have above in that plea alledged, and 
this he alfo prays may be inquired of by. the country. And 
as to the plea of the faid J^t^^ ^nd Simon by them thirdly 
above pleaded in bar, the laid Thomas faith, that he by reafon 
of any thing in that plea alledged, ought not to bt^ barred from 
having his aforefaid aflion thereof againft them, becaufe pro* 
^fting, that the faid Hefttr did not deliver to the faid Thomas 
the faid writing obligatory, and the faid deed or inftrurtient, in 
that plea in that behalf mentioned, in full payment, fatis- 
faflion and difcharge of the money due and owing to the faid 
Thomas y on the faid bond, now brought here into court ; for 
replication in this behalf, the faid Thomas faith, that he the faid 
Thomas did not receive and accept of and from the faid Hefter^ 
the faid writing obli^tory, and deed or inftrument, in that plea 
Mn that behalf mentioned, of and from the faid Hefier^ in full - 
payment, fatisf^3ion and difcharge of the faid writing obliga- 
tory now brought here into court, in manner and form as the 
faid James and Simon have above in that plea alledged ; and this 
he alfo prays may be inquired of by the country; £?c-. And 
as to the plea of the faid Jamis and Simon^ by them laftly 
above pleaded in bar, inafmuch as the faid James and Simon 
... - have not denied the faid aftipn of the faid Thomas; and inaf.. 
ro^kV^-*^- ^^^"^ 35 ^he faid James and Simon have therein confefled to have 
fendan^t * goodft and chattels in their hands* to the value of to/, to be 
'h*nd«. adminiftered. 



The IHu'ra- 
plication to 
' the third 



Replication 
to the 4tb 
plea. 

The plaintiff 
prays judg* 



Eastbr Tehm 10 Gbo. in. 1770.^ S7 

adminiftered, the laid Thomas piws judgment as tothofe goods 
and chattels, and that the faid 10/. parcel of his faid debt majr 
be adjadged to him* to be levied of thofe goods and chattels, 
together with his damages by him fuftained, by reafon of the 
deuining of the faid parcel of the faid debt. And as to the 
refidue of the faid debt, the faid Thomas faith, that he by reafoa 
of any thing by the faid James and Simon in that plea alledged» 
ousht not to be barred from having his afbrefaid aiElion in that 
reipe6l againft them, becaufe he fays, that he the faid Thomas, 
on the 14th day of February ^ in the 9th year of the reign of 
our Lord the now King, fued out his original writ againil the 
faid Tames and Simon: and that the faid James and Simon, on And Uxdm 
the day of futng out the faid original writ, had goods and chat- f^yti that on 
tels which were of the faid Richard Frampton, at the time of ^f ^ **^ 
his death, to the value of the refidue of the (aid debt in their tblToriginai 
hands to be adminiftered, over and above the faid goods and wrir, the de- 
cluAtcls fo confefled as aforefaid, wherewith the {^kAjfames and ^'"^^** 
Siikon might and ought to have fatisfied the faid Thomas tht SJrtortodie 
lefidue ot the faid debt, to wit, at Yeovil aforefaid; and vitue'of the 
this he is ready tp verify, wherefore he prays judgment, **^"* ^ *^ 
and the refidue of his debt aforefaid, together witn his damages andaboH' 
by accafion of the detaining thereof, to be adjudged to him, the faid id* 

George Wilfon* 

Serjeant Burland moved to fct, the fourth replication afide, and Tji* 4* «- 
alledged tliat the plaintiff ought to have accepted of the 10/. ^gJIJ^*'^ 
confefled to be in the defendant's hands unadminiftered, and to goodoav* 
havie prayed judgment for the fame, and aSets infuturo qtiando 
acdderint, or ought to have replied fingly, that defendants had 
aflets in their hands ultra the 10/. and to have gone to iflue 
thereupon, whereupon the court made a rule to (hew caufe why 
the fourth replication fhould not be fet afide with cofls* 

Upon {hewing caufe, I infilled that the replication was a Raft. Sot. 
good one, founded in truth, juftice and good reafon ; that the ^*^*i^i^u 
defendant having acknowledged he had 10/. in his hands tin- ofkatr.s^* 
adminiftered, the plaintiff had an immediate right to have judg- a* 
ment for 4hat fum in part of his debt, and to repiv and fay 
further that the defendfant had affets ultra that lol. fufHcient 
to fatisfy the refidue of the debt, aAd cited the two entries int 
the margin exaQly in the point; and of that opinion was the 
court, and without hearing my brother Jephjon fully, who 
was on the fame fide .with me, the court called upon my 
brother jBtfrAi«^, afking him, what he had to fay in fupport of 
the nile, but he feemed to give it up ; whereupon tne court 
declared the fourth replication was a very good one in everv 

refpeSt 



58 Easteh T£Km 10 Gbo* III. 1770. 

refpeS, and faid, that if it had been doubtful whether it was 
fo or not, they would not have determined that matter upon 
a motion, but would have put the defendant to demur to it. 
The rule was difcharged with colls. Lord comimflioner Ba^ 
thurjl abfent. 



Bohoun and others PlaintiflB^ and Burton and others 
Deforcients. 

Afine amend. CERJEANT Burland moved, that a fine of lands levied in the 

tA in th« *^ reign of Queen Anne might be amended by a deed of marriage 

^Sh which Settlement (on the behalf of one Jfohn Smithy tenant in uii under 

wat levied that fettlement) by altering the name of a parifii in the fine 

timf, Mnst from Coxley to CorUy^ upon reading of the deea, the indenture of 

''T"** the fine, and an affidavit that there was no fuch parifli as Coxley 

in the county where the lands are. The court ordered the 

fine to be amended, without making any rule upon any perfon 

to ihew caufe. 



PeiTOt an Attorney ver/us Hclc. C. B, 

An attorney • ^T^HE plaintiff brought an aflion againft the defendant, and 

having fucd * fued by his writ of attachment of- privilege, which was 

^^ ^Ir'ltivi- (according to the courfe of the court) returnable upon a day 

Ir<M,wasm>n- certain, the plaintiff became non-fuited, and ws^ taken, and in 

fuited, ard cuflody upon a capias adfaiisfadendumy (for tfie colls upon the 

taken »P^^^ judgment of non-fuit) I'eturnable upon a general return, where- 

able on^a^gel upon fcrjeant Narts for the plaintiff mpved tp fet afide the Ca. 

aeni return, ja. infiftm^ that it was irregular, becaufe not returnable upon 

and heldtreil ^ j^y certain, and had a rule to fliew caufe; at the fame ume 

cnMgiu fcrjeant Burland for the defendant moved, that the return of 

. the Ca* Sa. might be ahiended, and had alfo a rule to ihew 

caufe : upon (hewing caufe upon both thefe rules at the fame 

time, the court were clearly of opinion, that the Ca. Sa, was 

well enough, the plaintiff being non-fuited had no dav in court, 

nor was he entitled to any privilege to have the Ca, Sa, return-* 

able on a day certain, that he being non-fuited feemcd to have 

abufed his privilege; befides, it was faid by JKa/^j Juilice, and 

agreed b^ the court, that ^ou cannot take any advantage of the 

irregularity of procefs, without having it returned, and before 

the court, which in this cafe it was not; that the pourt in 

this cafe would not, on a n^otion to have the writ retifpied, 

have made any rule for that purpofe. The reafon why prpeefs 

both for and againft an attorney is made returnable on a day 

certain, is becaufe of his daily attendance in court, but this at* 

tomey 




Easter Term 10 Geo. III. 1770. 59 

forney is out of court, and in cuftody in execution, has no day 
rn court, and fo canilot attend,, afid therefore in this cafe he 
lofes his privilege to have this procefs againft him returnable 
on a day certain ; fo the writ is well enough, and there is no 
occafion to amend it. 

The court difchargcd both the rules. Abfente Lord Com- 
miiBoner Batkurji. 

Nota. 
bail 

they are confidered as no^bail, and therefore pannot renacr inc atnobaU,tna 
defendant to prifon : but other frcfh bail may be put in, and cannot render 
before any exception taken to them, they may render him to ^^^ ^ 
prifon in difcharge of themfelves. Per totam curiam. 



Day an Attorney verfus Boiler. C. B. 

A CTION for flandering the plaintiff in his profeflion of siaoder* 
•^^ an attorney, by faying of him thefe words — tVhat does he ^J/|^"TV 
pretend to be a lawyer? He is no more a lawyer than the devil! ^J^^!^ 
Verdi6l forthe plaintiff. And now Serjeant Dauy moved an. ar- fpokmof aa 
reft of judgment ; alledging, that it was not a£lionable to fay of ^^Tj^ - 
an attorney he yras no lawyer, any more than to fay of an 
apothecary that he was no phyfician ; that it was no more ne- 
ceffary for an attorney to be a lawyer, than for an apothecary to 
be a phyfician. But per curiam^ to fay of an attorney, he is no 
lawyer, is a great reueSion upon him, and means that he does 
not underfland his bufinefs ; befides, (they faid) an attorney mull 
have a competent knowledge of the law, or he cannot draw a , 
common writ or declaration. And fer Yates Juftice, the words 
are as great a flander upon the plaintiff, and as injurious to him, 
as any words pofTibly can be. 

So the Yerjeant took nothing by his motion, and plaintiff hiul 
judgment. 



Fonereau ver/its . C. B. 

TN an aftion upon the ftatute againft bribery, there was a ver- a new trial It 
•* dift for" the defendant ; and now Serjeant Forfier movtd for a new grwued 
new trial, as being againft evidence. But per totam curiam, we ^!|ea2uwik 

JK^. r. M, vtL 49/. 7iS* «0^ 59/* 19 « y «<^ ^it* ^3*0 

never 



60 £AST£ftT£RM IOGeO. IIL 1770. 

nerer srant new trials in aflions on penal laws ; and it has been 
fo held for more than fifty years paft. The court condemned 
the cafe in 2 Keb. 226. 



Saycr qui tam^ &c. veffus Dicey & d\\ C. B. 

Ifthepwpri- AN aQion upon the Jlat. 8 Geo. 2. c. 13. Ji^. t. againft 
nessotiatD "^ ^^^ defendants was brought to recover the penalty given 
M other pr'mt by that ftatute, for copying and felling a print of the king of 
wUiiotitle Denmark. The ftatute ena£b, (amongft other things) "That 
^e'facnefit of " every perfon who (hall invent and defign, engrave, etch, or 
tke ftat % •• work in mezzotinto or chiaro ofcuro^ any hiftorical or other 
Geo. 1. cap. <« prints, fhall have the fole' right of printing the fame for 
h?i property? " fourteen years, to commence from the day of tke firjl publijhing 
bemuften*' " thereof^ which Jhall be truly engraved with the name of the 
grave boh hie •• proprietor on each plate, and printed on every fuch print 6r 
^bt7a^^ibe " Points; and if any other perfon (hall copy and fell, in the 
frft "^hfiing " wholc or in part, by varying, adding to, or diminilhing from 
thtrtofoti the " the main deugn, or (hall reprint or import for fale any fuch 
^li^Vbeame " prints, without the confcnt of the proprietor in writing; 
Silhe priflt. ** figned in the prefence of two witne{res, Qc. (fee the ftatute) 
•• fuchoflFcnder (hall forfeit the plates, and all (heets fo printed, 
•• to the proprietors of fuch original prints, who (hall forthwith 
*• deftroy and daraa(k the fame ; and every fuch offender (hall 
*• forfeit 55. for ever)' print found in his cuftody, contrary to 
*• the faid aft ; one moiety to the King's majefty, and the other 
•• moiety to any perfon who (hall fue tor the fame." By the 2d 
Je^. *• It (hall be lawful for any perfon who (hall purchafe any 
•* plates for printing from the original proprietors, to reprint 
" from the (aid plates." The defendants pleaded the general 
iflTue: and at the trial, before Lord Chief Juftice JVilmot in this 
term, the plaintiff proved, that Mr. Houfetowny amoft ejfcellent 
, artift in mezzoiinto or chiaro ofcuro^ fcrapcd a plate (in that man- 
ner) from a. pifture of the King of Denmark painted by the 
celebrated Mrs. Angelica ; that the plaintifif purchafed the plate 
of the proprietor thereof, and that the defendants had copied and 
fold the fame. The name of the proprietor of the plaintiff's 
plate, and the year of our Lord wherein the fame was publilhed, 
was engraved thereon, and printed on his prints ; but the day of 
the month oj the firfl publijliing thereof was not engraved on hts 
plate or printed on hs prints^ and thereupon it was objefted for 
the defendants, that the plaintiff could not recover, becaufe he 
had not complied with the aft of parliament. This point was 
referved for the opinion of the court \ and now it was faid by 
Serjeant Whitaker for the plaintiff, that the ftatute did not re- 
quire the day of firft publifliing the print to be printed thereon. 

But 



Easter Term 10 Geo. III. 1770- 6l 

But per curiam^ (without hearing Serjeant Burland the defen- 
dant's council), The words of the ftatute are as plain and certain 
as poflible : there are two conditions therein, viz, the day of 
the firft publifhing of the print,, and the name of the proprietor 
thereof, both muft be engraved and printed; that any perfon ' 
may know when the proprietor's cxclufive right ceafes ; and 
when, and againft whom, he may be guilty of offending con« 
trary to the ftatute. So the pojlea was ordered to be delivered to 
the defendants, and judgment of nonfuit to be entered againft 
jtbe plaintiff. 

Hally verjiis Tipping. C. B. 

npHE plaintiff (in liis own right) arretted the defendant PWntfff ftail 
^ upon a capias ad rtj^ondendum^ with an ac etiam thcrem, JjJ^^'jj'^ 
to anfwer the plaintiff (in his own right) in cafe upon promifes, daret differ-* 
to his damage of 200/. [which was marked for bail by affidavit cndyftoiaJiU 
for iso/.] whereupon the defendant's- attorney applied to the ''^ 

Klaintiff's attorney, and undertook. to put in Ipeciaf bail, which 
e accordingly did. The plaintiff havmg declared in this caufe 
as executor, and not in his own right; it was now moved by 
Serjeant Burland^ that the bail might be vacated and difchargecf, 
and a common appearance accepted; which was ordered ac- 
cordingly by the court, and that the plaintiff might then pro- 
ceed as executor. Serjeant Glynn for the plaintiff. 



Bruce verfus Rawlins and. others. C. B* 

'TpRESPASS for breaking and entering the plaintiff's hcmfe Trefptft 
^ at yf. in Efftx^ and opening and fearching fcveral boxes JJ^^^?*^ 
and drawers therein ; the defendants fuffered judgment to go officerafOT^ 
againft them by default. Upon executing the writ of inquiry of eotering - 
damages, jt Was proved, that tljc defendants were Cuftom-hoofe ^^^**x 
officers; that on the 4th of July lafi, in the day*time, they rearchinglbr 
entered the plaintiff's dwelling houfe with a writ of affiftance, nin-gooat 
withoutany conftable, in order to fearch for uncufiomed goods \ ^***7 ^'^'f ^ 
the plaintiff's wife and daughter being only at home, were jJJJy ,^f/ * 
frightened and much furprtfed, delivered to the defendants fat 100). dama,- 
their requeft) the keys ot feveral boxes and drawers, which tnc »".**" '.^"^ 
defendants levched, but found no uncuftomed goods. They cottr?re£fca 
ftaid in the houfe about an hour, broke no locks, bolts or doors, to fetalide 
aind did very little or no damage ; and departed, curfing and &y- ^« '"'^rif ^ 
ing, D^mn i/, there art no goods I Whereupon the jury found ^q^}, soit. 

IOOI0 damages. 1 Ttrm Ref, * 

if. A. 535 «I 
Serjeant 



6a Eastbr Tebm 10 Geo. 111. 1770. 

Serjeant BurlanJ moved to fet afide the inquifition for exceffive 
damages, under the circumftance of this cs|fe, and upon an 
affidavit that the defendants did little or no damage; that they 
had been informed that the plainti£F'$ fon was lately come home 
from Indian and had fecreted fome run-goods in the plaintiff's 
houfe, and that they verily believed fome of the jury were the 
plaintiff's friends and acquaintance, and had favoured him in 
giving fuch large damages: he cited a cafe in B. R, of Stringer 
yerfus Cu/lom-hoti/i Officers^ for flopping a waggon to fearch for 
run-goods, and found none : the jury on an inquiry gave looL 
damages ; the court fet afide the inquifition ; and upon the fecond 
writ of inquiry, the jury only found five guineas damages. He 
endeavoured to diftmguilh tnis cafe from RedJhaw verfus BrooA 
and others^ 2 Wilfon 405. which was 200/. damages given by a 
jury upon a trial of a like trefpafs ; becaufe an attaint lies upon 
a falfe verdi£l, but not upon an inquifition of office, as this is ; 
that this plaintiff was only a butcher, but RedJhaw was a flx>p«. 
keeper in London. 

Serjeant Leigh for the plaintiff, in (hewing caufe, produced 
an affidavit, wherein it was fwom, that the plaintiff knew only 
the face of one of the Jury, that he had no acquaintance with 
him or any of the reft of them ; that the defendants came to the 

{►lafintiff's houfe in July laft, faid they had received information^ 
but not from whom), that uncuftomed coods were fecreted 
therein, and that they muft fearch the houfe ; that the plaintiff's 
wife and daughter were much terrified ; that the defendants de- 
fnanded and received from them the keys of fevcral boxes and 
drawers in the houfe, wherewith they opened and fcarched the 
fame, but found no uncufiomed or prohibited goods therein, or 
in any other {>art of the houfe where they alfo fearched. The 
ferjeant infifted there was no difference between this cafe and 
that of RedJhaw verfus Brook: only that the damages there were 
ftoo/. ; for a like trefpafs to this now in queftion, wherein thwe 
are. only 100/. damages; and therefore he prayed the rule to 
ihew caufe why the inquifition (hould not be fet afide, might be 
difcharged. 

Wilmot Chief Juftice. This is an inqucft of office to inform 
the confcience of the court, who, if they pleafe, may the^ifelves 
affefs the. damages ; but I am of opinion we ought not to inter- 
pofe in this cafe, \chich differs widely from the cafe of ftopping 
the wagj^on. This is an unlawful entry into a man's houfe 
(which IS his caftle), in invafion upon his wife and family at 
peace and quietnefs therein, frightened and furprifed by thefe 
defendants ; who under pretence of information received, and 
2 colour 



Eabte&TabmioGeo. ni. 1770. 6d 

colour of legal authority, demand the keys of, and fearch all 
the boxes ana drawers in the houfe. I cannot conceive what 
thefe Cuftom-houfe officers mean, by afting in this unjuftifiable 
manner, after this matter has been (o often tried in Jreftndnfter' 
hall; they know the rifk they run by fuch condu3, and mtift 
take the confequence that may fall upon them by the verdi£l of 
a juiy> The plaintiff being a butcher, or inferior perfon, makes 
no difference m the cafe. The fufpicion of havmg run-goods 
in bis houfe is a very injurious imputation upon him; and 
though he is but a butcher, it is the (ame damage to him as if 
he was the greateil merchant in London. The defendants have 
invaded the plaintiff's houfe and property, and difturbed his 
family; they continue to go on and a£l againft the fubje6l in this 
illegal manner, and then come to this court, and fay — ** the da- 
" mages are too large, we pray you reduce them." For my own 
party I am very clearly of opmion, that this is one of thofe cafes 
wherein the court will not interpofe. 

Gould ]uMce, The entering the plaintiff's houfe under co- 
lour of legal authority, aggravates the trefjpafs committed by 
the defendants; and thougn they had a writ of affiftance, yet 
as they had no confiable with them, they would have been tref- 
paffers, notwithfiandlng they fliould have found uncfiftomed 

J roods in the plaintiff's houfe. See^at. 12 Car. a. cap. 19. 
c3. 1 & 4« and^a/. 13 & 14. Car. 2. cap. 11. A caufe M^as 
tried before me at Pool (which is a town and county of itfelf), 

Jagaunft a Cufiom-houfe officer and a conftable, for entering the 
plaintiff's houfe to fearch for run-goods; and though they tound 
uch ^oods in the houfe, yet becaufe the confiable was not a 
confiwle of the town of Pooi^ but of the county of Dor/it, they 
were trefpaffers, and the jury gave the plaintiff tool, damages. 

Yaies Jufiice. The cafe muft be very grofs, and the damages 
enormous, for the court to interpofe : here the defendants have 
afied under colour of legal authority, and we have no line or 
meafure to eo by. I ttoik the damages are not exceflive, and 
have no deure to fet the inquifition afide. Rule difcharged. 
Abfent Lord Gommiffioner Bathurft^ in Canc\ 

Doe on the demife of Mafon verfus Mafon. C. B. 

"P JECTMENT of copyhold . lands holden of the manor of A 6ngle ad- 

^^ Dcnkam-kall in the county of , tried before Mr. "*'"^^?* 

Baron Smyths at the laft affizes, when a verdift was found for ^iJIeMe to 

]Mt)ve the 
Cttftom of a nsnor for lands to defcead to the yottngcft nephew 1 which <OBtnididiog the e? idcnce 
oa the other Bdc, the court refufed a aew trial. 

the . 



64 Easter Tbhm 10 Gso. IIL 1770. 

the plaintifTy who claimed as being the youngeft nephew, an4 
heir by the cuftom of the manor, of the lail perfoa feifed of the 
lands in que&ion. 

On the part of the defendant it was contended at the trial» 
that the cuftom of the manor was, that the copyhold lands de- 
fcended to the youngeft fon ; or if no fon, to the youngeft bro* 
ther of the tenant laft lawfully feifed ; and that the cuftom ex« 
tended no farther. 

On the part of the leflbr of the plaintiff it was contended at 
the trial, that the cuftom of the manor was, that the copyhold 
lands defcended to the youngeft fon ; if no fon, to the youngeft 
brother; if no brother, to the youngeft nephew; if no nephew^ 
to the youngeft coufin of the tenant laft lawfully feifed. 

It was proved for the leffor of the plaintiff at the trial, that 
he was the youngeft nephew of the perfon laft feifed of the pre- 
mifes ; and it appeared, by the court rolls of the manor, tiiat a 

Jroungeft nephew, at a court leet and court baron held in and 
or the faid manor in 16571, was admitted tenant, as heir, by 
the cuftom, to the perfoa laft feifed of lands in this manor: 
this was the only evidence for the plaintiff. 

For the defendant it appeared, that at a court leet and court 
baron held in and for the laid manor in 1692, the jury had 
homage by a prefentmcnt found, and which was entered upon 
the rolls of the manor, that the cuftoip of defcent extended 
only to the youngeft fon ; and if no fon, to the youngeft brother, 
and no farther. Alfo two old witneffes fwore, that tlicy had 
heard and believed, that this was the cuftom of the manor, 
that the cuftom of defcent went no further than the youngeft 
fon and youngeft brother. 

Serjeant Lagh moved for a new trial, fuggefting that this was 
a verdia contrary to evidence ; and infifting that the Tingle in- 
ftance of admittance of the nephew in the year 16,57, ^^* "^ 
fufiicient evidence to fupport the cuftom contended for by the 
plaintiff; whereupon a rule Was made td fhew caufe why there 
fhould not be anew trial, and Mr. Baron S my the having reported 
as above, gave no opinion or\z way or other in the cafe. 

Sec 6 Mod. Serjeant Wkitaker for the pladntiff, fhewed caufe whjr thcne 
^xo. I. fttoula not be a new trial; and infifted, that herfe was evidence 

Scudamore. on both (ides, that the evidence given for the plaintiff wap legal 
The right of and admiffible, and contradicts the defendant's evidence, and in 
Son'^raaifcd ^^^ ^^^ ^ couTt ncvcr grants a new trial ; bcfidcs this is an 

in all cottn. CJeQmCllt, 

uki and na« ' - 



Easter Tbrm 10 Geo. fit. i?70; 65 

cje£lmeAt, and does not conclade the defendant from trying the 
cuftom again upon another ejeSment. And of this opinion was 
the court. And the Chief Juftice faid, he thought the admit- 
tance of the nephew in 1657, was ver)' material evidence, being 
done at a court leet and court baron> when it would certainly 
have been controverted, if the jury had not thought that to be 
the cullom. And they faid^ as this was an eje^ment^ there 
was no occafion (if they had doubted) to j^ant a new trial, for 
the defendant may try the cuftom again, if he thinks fit. Rule 
difcharged, and ^^poftta delivered to the plaintiff. 

Johns verjits Whitley & al*; C. fl. 

Cornwall 'T^HIS record is entered of laft Michaelmas tchni 
{to wit) * in the office of Prothonotary Dickens, roll — . 
Jofe^h Whitley, late of the parifhof Lanky irock in the 
county aforefaid, viftualler ; Edward tVhitley, late of the parifh of 
St Winnow in the faid county, hufbandman ; and Peter Bennet, late 
of the fame place, hufbandman ; were attached to anfwer to 
John Johns gentleman, in a plea, wherefore with force and arms 
they broke and entered the clofes of the faid John, in the parifli 
of St. Winnow aforefaid in the county of Cornwall, ana trod 
down, confumcd and fpoiled the grafs and corn of the faid John 
of the value of ten pounds, there lately growing, with feet in 
walking ; and eat up, trod down, confumed and fpoiled; other 
the grafs and com of the faid John, of the value of other ten 
pounds, there alfo lately growing, with certain cattle ; and reSip- 
ed, mowed, cut down and felled, other the grafs and corn of 
the faid John, of the value of one hundred pounds, there alfo 
lately ftanding, growing and being, and took and carried away 
the fame, and converted and difpofcd thereof to their own ufe ; 
and with the wheels of carts, waggons and other carriages, tore 
up, turned up, fubverted and fpoiled the foil of the faid John, 
in and of the faid clofes : and alfo,. wherefore with force and 
.arms they the faid Jofeph, Edward and Peter ^ at the parifli 
of St. Winnow aforefaid, reaped, mowed, cut down and ielled; 
other the grafs and corn of the faid ]ohn, of the value of 
other one hundred pounds, there lately growing, ftanding and 
being, and took and carried away the fame< arid converted 
and difpofed thereof to their own ufe : and alfo, wherefore 
the faid Jofeph, Edward and Peter, with force and arras, at 
the pariin ot St. Winnow aforefaid} feized took atid carried 
away other the ^rafs and corn of the falid John, of the value 
of other one hundred pounds, there lately found ; arid con- 
verted and difpofed thereof to their own ufe, and did other 
wrongs to the faid Jo}in^ to the great damage of the faid John, and 
Vol. IIL F againft 



0$ Easter Team 10 Geo. III. 177O, 

Count in tref- agaliift ilie peace of our lord the now King, &c. And there^ 
^f^f^* upon the faid Jfohn^ by John Kimbcr his attorney, conaplains ; 
'ruMtlZd'^ fortliatthe faid Jofepn, Edward SinA Peter ^ on the firlldayof 
trod down July^ in the. year of our Lord one thoufand feven hundred and 
Md confumcd Jj^^y eight, and on divers other days and times between that 
corn^"nd*° ^Y *'*<^ ^^^ ^^^ ^^ly ^^ OBobtr then next following, with force 
reaped, cut and arms broke ana entered the clofes, (to wit) one clofe called 
down and jfr^U Park^ one other clofe called Three Pieces^ otherwife The 
th!^aft^d '^^^^^ Pieces^ one other clofe called Dinny Bowl, one other clofe 
corn. - cailed Lane End^ one other clofe called Bove Tozvny and fix 
other clofes of the faid John, in the parifli of St. Winnow afore- 
faid, in the faid county of Cornwall, and trod down, confumed 
and fpoiled the grafs and corn, (to wit) wheat, barlpy and oats, 
of the faid ?l7A«, of the value of ten pounds, then there grow- 
ing, with feet in walking; and eat up, trod down, conlumed 
and fpoiled, other the grafs and corn, (to wit] other wheat, bar* 
ley and bats of the faid John, of the value of other ten pounds, 
th^re then growing, with certain cattle, (to wit) with horfes, 
mares, geldings and oxen, and reaped, mowed, cut down and 
felljsd other the grafs and corn, (to wit) other wheat, barley 
and oats of the faid John^ of the value oi one hundred pounds, 
there then ilandin?, growing and being, and took and carried 
aw^y the fame, and converted and difpofed of the fame to their 
' own ufe ; and with' the wheels of carts, waggons and other car- 
riages, tore up, turned up, fubverted and fpoiled the foil, (to 
wit) five hundred perches of the foil of the faid John, in and oi 
Id Count for the faid clofes ; and alfo for that the faid Jofepn, Edward and 
rSpJng'and ^^^^T, on the faid firftday qf July, in the year of our Lord one 
carrying away thoufand feven hundred and fixty-eight aforefaid, and on divers 
other grafs other days and times between that day and the firft day of (7c- 
^ °^" /(7/^cr then next following,^ with force and arms, at the pari(h of 
St. Winnow aforefaid, mowed, reaped, cut down and felled, 
other the grafs and corn, (to wit) other wheat, barley and oats 
of the idkcL John, of the value of other one hundred pounds, 
there then fianding, growing and beings and took aUd carried 
away the fame, and converted and difpofed thereof to their own 
3d Count to ufe; and alfo for that, the faid Jojeph, Edward, and Peter ^ 
the hke ef- q^ jj^g {^^^ f;,.{| jgy of July, in the year aforefaid, and on divers 
other days and times between that day and the faid firfl day of 
OElober then next following, with force and arms, at the parifli 
of St. Winnow aforefaid, feized, took and carried away, other 
the grafs and corn, (to wit) one hundred cart loads of other 
grafs, one hundred cart loads of other wheat in the firaw, one 
hundred cart loads of other barley in the firaw, and one hundred 
cart loads of other oats in the ftiaw, of the {d!iA, John, of the value 
of other one hundred pounds, there then found, and converted 

iind 



Easteh TfiftM 10 Geo. III. 1770. 67 

ftnd difpored thereof to his own ufe» and did other wron|[s to the 
iaid Jokn^ to the great damage of the faid ToAn, and aranll the 
peace of oar faid lord the now King; wherefore the faid John (ays^ 
that he is injured* and hath fuftained damage to the value of 
one hundred pounds, and therefore he brings his fuit, &c. 

And the iaid Jofepky Edward and Ptttr tenndtt^ by Francis 
John Hext their attorney, come and defend the force and injury, tft W**. 
when, &c. and fay, that they are not guilty of the trefpafs afore*- jfl-^JS'thc* 
faid, above laid to their charge, in manner and form as the faid whole dMk- 
John hath above thereof complained againft them, and of this ntion. 
they put themfelves upon the country, &c. And for further 
plea as to the breaking and entering the faid clofes, in the faid sd Plet \m 
declaration mentioned, in which, &c. and treading down, conv^^Ji^f* Jc 
fuming and fpoiling the grafs there lately growing, with feet in ciofe/bthe 
walking and eating up, treading down, coniuming and fpoiling the arciaratioo* 
iaid other grafs there alfo lately growing, with the faid cattle in the* ^»****!'°« J|^ 
faid declaration mentioned, and with the wheels of carts, wag^fons fa'ing'up 
and other carriag;es, tearingup, turning up,fubverting and fpoiling other graft* 
the foil of the faid clofes, by the faid jof^h, Edward and Peter ■•»<* ^jj^ 
Bennett y above fuppofedto have been done, they the idiAJofepk^ ^fngthe 
Edward and Peter Bennett^ by leave of the court here to them for foil of the 
this purpofe granted, according to t]*e form of the (latutein fufch ^^*^^^^'- 
cafe lately made and provided, fay that the faidJ^^Aw ought not foy/Jht°ont 
to have his aforefaid a£Kon thereof againft them; becaufe; they p. k. befert 

• fay, that before any of the faid times when, &c. one Peter Knight *« «*««» 
waj lawfully titled to the faid clofes, in which, G?f . for the re- ^„"e'ii!iii'ed 
mainder ot a term of ninety-nine years, determinable upon the to faid dofei 
death of him the faid PrfCT-Xw^^f; and being fo entitled thereto, ^^ the re- 
he the faid Peter Knight, before any of the faid times when, &C J^"^ JL * 
{to wit) on the fccond day of February, in the year of our Lord year*, de- 
one tboufand fcven hundred and fixty-feven, at the pariOi afore- terminable 
faid, demifed the faid clofes in which, 6?c. with the appurte- ^?/h*fi"* 
nances, unto the hiijq/edh; to have and to Jiold the fame un- p.k. who 
to the {aid Jp/eph, from tne'ncefbrth for the fpacc of one whole demifed the 
year then next following, and fo from year to year, for fo long J^'J^^^^^* 
time as it ihould pleafe the faid Peter Knight and the faid Jo- whitiey. 

Jiph^ and the eftate and intereft of the faid P^er Knight fliould To hoia dm 
continue therein, by virtue of which faid demife he the faid ^*^,^^' 
Jofeph afterwards, and before any of the faid times when, fro" year to 
&c. (to wit) on the faid fecond day of February^ in the year of year as long 
our Lord one thoufand fcven hundred and fixty-feven, at ^^'^\^^^^ 
pari& aforefaid, entered into the faid clofes in which, fi9c. with JiJa j.k! 

and defendant 
]. W. andthe etee and inC»reft of fnd P. K. ftoold continue thenln. By virtee of which demife 
the faid J. entered and waa poflfefled, the fa'td P. K. then being living, and hit intereft ftill continuing 
therein. And being £> uofle/red, the fiud J. before the timet when, arc ploughed and fowed the 
iaid cJefca with corn. And the faid P. K. after the fatd J. had fo ploughed and fowed, and before be 
bad reaped and carried away the cpm, and before the end of the Ciid 99 yeera, and before the faid time 
when, ftc. died. And fo the defendants joftify the entering into the dofct, and reaping and cairyuig 
wthff the con, and escofe themfolret for treading, ftc. a little grafs upon tbet occafion. 

? a the 



63 Easter Term 10 Geo. III. 1770. 

the appurtenances, and became and was poflefTed thiereof, Wie 
faid Peter Knight then being living, and the intereft of the faid 
Peter Kwght ft ill continuing therein, and being fopoffelTed thereof, 
and the faid Peter Knight then being living, and the intereft of the 
* faid Peter Knizht^ then continuing in the faid clofe, in which, 
&c, he the {^\& Jfofeph afterwards and before any of the faid times 
when, E3c. (to wit) on the twentieth day ^ of March, in the faid 
year of our Lord one thoufand feven hundred and fixty-eight, 
ploughed the faid clofes in which, &c, ^nd then and there fowed 
the iame with corn, (to wit) wheat, rye, barley and oats; and 
the faid Peter Knight, after the faid jofebh had fo ploughed the 
faid clofes in which, 6?c. and fown the lame with corn, and be- 
fore the faid Jofeph had reaped and carried away the faid corn, 
' and before the expiration of the faid ninety-nine years, and be- 
fore the faid time when, £?c. (to wit) on the firft day of July 
in the yearlaft aforefaid, at the'parifli aforefaid, (he the faid Pe^ 
ter Kmght) died ; and the faid corn, fo fown by the {^\A Jofeph 
as aforefaid, not being reaped, the (aid Jofeph in his own right, 
and the faid Edward and Peter Bennett as his fervants, and by 
his command, at the faid times when, &r. entered into th^ faid 
clofes in which, G?c. in and by the ufual way there, in order to 
reap the faid corn fo fown by the faid Jofeph as aforefaid ; and 
witn the faid carts, waggons and other carriages, drawn by the 
faid cattle in the faid declaration mentioned, did enter into the 
faid clofes in which, &c. in and by the ufual way there, in order 
to carry away the faid c6rn ; and on thofe occafions they the faid 
Jofeph, Edward and Peter Bennett did unavoidably a little tread 
down, confume and fpoil the grafs there growing, with feet in 
' walking ; and the faid cattle in Uie faid declaration mentioned, in 
pafTmg and repaOing for the purpofe aforefaid, by ftealth and 
againft the will of the faid Jofeph, Edward :jnd Peter Bennett, did 
. a little and by morfels, fnatch, eat up, tread down, confume 
and ipoil, other the grafs there alfo growing; and with the 
wheels of the faid carts,. waggons and other carriages in the faid 
declaration mentioned, on that occafion neceffarily and unavoid- 
ably did ^ little tear up, turn up, fubvert and ipoil the foil of 
the faid clofes, doing as little damage on that occafion as they 
%r tjltaim poffibly could ; which are the' fame breaking and entering the 
tran/greffii. faid clofcs in the faid declaration mentioned, and treading &wn, 
confuming and fpoiling the grafs there lately growing, with feet 
in walking, and eating up, treading down,' confuming and fpoil- 
ing other g;afs there alfo lately growing, with the faid cattle in 
the faid declaration mentioned, and .with the wheels of carts, 
wagijons and other carriages, tearing up, fubverting and fpoiling 
the foil of the faid clofes, whereof the laid John hath above com- 
plained againft them, and this they are ready to verify; where- 
fore they pray judgmerit, it the faid John ought to have his 
aforefaid aftion thereof againft them, (3c. 

J, Glynn. 



lal cavfet 
demuirer* 



Eastm Term lo Geo. III. 1770. 69 

And the faid John fays, that the (aid plea of the £iid Joftph^ Demvrrer. 
Edward and PtUr BtnntU^ above fecondly pleaded in bar, as 
to the faid breaking and entering the faid doles, in the faid de- 
claration mentioned,^ and in which, i3c, and treading down, 
coufuming and fpoiling the faid grafs there lately growing, 
with feet in walking, and eating up, treading down, con fuming 
and fpoiling the laid other grals, there alfo lately growing, 
with the faid cattle in the laid declaration mentioned, and 
with the wheels of carts, waggons and other carriages, tearing 
up, turning up, fubverting and fpoiling the foil of the faid 
clofes, by the faid Jfofeph, Edward and PeUr Bennett above done, 
and the matters therein contained, arp not fufficient in law to 
bar the faid John from having his faid afiion thereof maintained 
againft the laid Jofeph, Edward and Peter Bennett; to which 
faid plea, and the matters therein contained, tliat he the faid JT^^An 
is not under any neceflity, nor in any wile bound by the law 
of this realm to anfwer; and this he is ready to verify : where- 
fore, for want of a fufficient plea in this behalf, the faid John 
Erays judgment, and his damages by reafon of that trefpafs to 
e adjudged to him ; and for caufes of demurrer in law to that Sped 
fdea, he the faid John, according to the form of the flatutc in •^^^ 
iich cafe made arid provided, fhews to the court here thefe caufes }^nd^x$iu^l 
following, (to wit) for that the faid Jqfeph, Edward and Peter nocfetforU^ 
Bennett^ have not, in or by their faid plea, fet forth the parti- tbecom- 
cular commencement of the term of ninety-nine years, under JJ^^^^S*^ 
which the faid Jojeph^ Edward and Peter Bennett , in ^d by tennof99 
their (aid plea have attempted to derive a titfe in the faid Jo- yeari. 
feph to enter into the faid clqfes, in which, S3c, and to plough 
and to fow.the fame with corn and afterwards to take and 
carry away the faid corn; and alfo for that tbe faid Jofeph^ Ed- id.Tliatdc- 
ward and Peter Bennett, have not in or by their fajd plea fet fea*^tt^^^« 
forth or fhewn that the faid Peter Knight, at the time of the Jhatp*jc"jit 
making of the faid fuppofed demife of the faid clofes, in which, the time of 
&c. by the faid Peter Knight to the /aid Jofeph, or at any time f^J^I^^K^ 
before, was pojfejfed of the faid clofes, in which, 6?^. or any of or before^ wm 
them but only that he was intitled thereunto; .and for that poflefTedof 
the faid plea is vague, uncenain, infufficicnt, and wants J^ <^'°f"» 

£ CJ9 ^ ^ but only that 

form, &C. ^ ry J J hewwUiW 

Jt Bur land. thereunto. 

And the faid Jofeph, Edward and Peter fay, that the plea of Joinder in de- 
ihem the faid Jofeph, Edward and Peter ^ by them fecondly ™»«cr. 
above pleaded in bar, in manner and form above pleaded, and 
the matters therein contained, are fufficient in law to bar the faid 
John from having his faid afiion thereof maintained againft 
them the faid Jojeph, Edward mA Peter, which fame plea they 
ih^ faid Jojephy Mward^nd Peter are ready to verify and prove 

f 3 as 



70 Ea'5T£r Tesm 10 Gso. IIL 1770. 

as the couct-ihall dtrefi; andbecaufe the faid John bath not 
anfwered to the faid pica, Hor in any wife denied the fame, 
tliey the faid Jofeph^ Edtoard and PeUr pray judgment, and that 
the faid John may be banred from having bis iaid a£lion thereof 
maintained againft them. And becaufe the juilices here will 
advife amongft themf^lves what judgment to give in the pre- 
jnifes, before they give their judgment thereupon, day is there- 
fore given to the parties afoiefaia here, until in eight, days of 
Saint Hilary ^ to hear their judgment thereupon, for that the 
iaid juilices here are not yet thereof advifed, i3c. 

This cafe of Johns againft WhitUy and others, was well arjgued 
in the l^ft term by Burland one of the King's ferjeants for 
the plaintiff, and by Serjeant GLynn for the defendants ; and it 
was argued again, in this term, by Serjeant Itigh for the de- 
fendants; and Serjeant Dax>y was counfel for the plaintiff, 
ready to have argued* 

tiffh!^mf°' For the plaintiff it was argued, . iff, That the plea in bSir was 
terffl\aft. ^^^ becaufe the defendants have not fet forth therein the corn- 
It n ft rule in mencement of the term of ninety-nine years, viz. out of what 
SVoDm-****' ^a^ it was derived; that it 'i? an eftablifhed rule in pleading, 
aiMcementof ^^^^ ^ Commencement of all particular eftates ought to be 
all pnrelcuiar (hewn in pleas, avowries, replications, &c, and the reatbn why 
eftfttM muft ^j^ commencement of particular eftates muft be Ihewn in plead- 
pieatfng" *un- ^^^* ^^» bccaufe they aie created, by agreement, out of the pri- 
lefi in fomc mitive eftate ; and the court muft judge whetlier the primitive 
cafcf, where eftate and agre;6ment be fufEcient to produce the particular eftate 
aiicdged* as claimed ; and this is a fundamental rule, (per Holt Chief Juftice, 
tnaiiterof in the Cafe of Scilly verfus Dally, 2 Salk, ^62.) which ought not 
imiaceffleBL to be broken, upon fancied inconveniencies. 

2dly, It was infifted that the bar was ill, becaufe it (hew:s no 
title in PeUr Knight, to enable him to demife to the defendant 
WlutUy, whereupon a good iffue may be taken; or which may 
be well traverfed by the plaintiff: but the plea only alledges, 
that Peter Knight was lawfully iutitled to the faid clofes, in which^ 
(3 c. for the remainder of a term, which cannot be traverfed; be- 
caufe, whether intitled or not, is matter in law, not faft. See 1 Ld. 
y&z^w. 332. 2 Lutw. 1232. And if the plea had alledged that 
Peter Knight was lawfid^ po/p^^ it wopld ftiU have been ill in 
this cafe, according to 2 LA.Raym. 332, vhere the title, not 
the mere poffeffion, is the material pomt in queftion. Indeed, 
in the cafe of a perfonal trefpafs, where the title is not in queftion, 
it is otherwife ; as in the cafe of Shevill verfus Avery. Cro. 
Car. 138. which was trefpafs, aflault, battery and wounding; 



Bastee Tesm 10 Geo. III. 1770. 71 

ific defendant pleaded to the wounding not guf^y: to the 
aflauh and battery, he pleaded, that he was pojf'^ed oi an houfe 
Jot years^ that the plaintifT entered his houfe, and would have 
thraft him out of pofieflion thereof, whereupon he moltter manus ' 
impofuit^ to put him out; and the harm, if any done, was 
in dfefence of his own pofTeflion: hereupon the plaintiff* de» 
RiCHrred; and Goldfmith^ counfel for the plaintiff, (hewed for 
caufe, that the defendant had pleaded a leafe for years, not 
Oiewing who made the leafe, nor when it was made, nor for 
how many years,- whereas the fame ought to have been pleaded 
fpecially, dind {b&wn farticulatim ; for if it be traverfed there 
cannot be any good iflixe thereupon ; and he relied upon Cro* 

fai's Ca/it 8 Kep. 66- that dc injuria Jua propria is no plea : 
ut all the court held, that tlie defendant had well pleaded ; for 
faying that he v92& pofffjf td for years ^ is but an inducement and con- 
veyance to his juftification, and not i^efubftance thereof, which is, 
thai he offered to thrujl him out of the poffeffion of his houfe: and 
whatfoever title he hath, it is not material ; for if he was in 
pofleflion by virtue of a leafe, at will, or any other title, de in- 
juriafua propria is a good plea*: for the tule or intereft not 
coming in queilion, (and what was pleaded or alledged being 4 Mod* 4is« 
but an inducement to the plea) it needs not to be k) certain " ^*"* ^*P* 
as where it is pleaded by way of title to make a claim in ^'^* 
the defendant ; whereupon it was adjudged tor the defendant. 

' It was infilled for the defendants, that this was a good jufli. Fortbede- 
fication under a bare poffcffion, that he who ploughs and fows /endanti ia 
fhall reap, and take the emblements ; that it would be a great HU^tenn. 
bardOiip upon under-leffees, if they (hould be obliged to fet forth ,o o«o. j. * 
the original leafe in pleading; that Knight the Tate tenant for 
life is dead,^ and that tne original leafe being determined, is de- 
livered up and in the hands of the plaintiff y<;Anj, the owner of 
the inheritance, and not in the power of the defendants to fet 
forth in their plea. 

Upon this firft argument Wilmot Chief Juftice fpoke to this 
effeS, viz. I would try, if it be poflible, to fupport this plea; 
for it is very hard upon under-tenants, to be obliged in plead- 
ing to fet forth the original leafe; fince the cafe of Scilly verfus 
Daily ^ in Salk. and La. Raym, I am inclined to think' there 
have been fome diftin£lion$ uken between particular eftates de- 
termined^ and fuch as zxt Jiibfffting : the tenant Jofeph Whitley 
[the defendant] has an undoubted right to the euibicments, and 
the law gives him a licence to enter and take them. The ori- 
ginal leale being determined, belongs to the leffor [the plaintiff 
Johns'^^ and (probably) is delivered up to him by the executors 
of Knight; and now fays the plaintiff, \john5)^t original leffor, 

f 4 you 



7^ 



Easter Teem 10 Geo, III. 1770. 



In the prefent 
term. 

William 
Jonei, 453. 



Judgment of 
the courtt 



A role III 

picadii'g a 
panicttlar 



you muft fliew the leafe (which I have in my own power) in 
your plea; this matter would not ftand one minute's debate in^ 
court of equity; and I hope and wifli we may be able, upon 
further conlideration, to make this plea good: it we cannot, but 
are bound by the rules of pleading to lay it is bad, I muil fay 
that this is a very hard cafe. In Hilary term the reft of the 
couit were much inclined to fupport the plea if poflible; and 
adjourned it for fuitlier confideration until this prclent time, 

Serjeant Davy was ready to argue for the plaintiff, but thei 
court Hopped him, and called upon Serjeant Leigh to fupport 
the plea if he could. — He admitted the cafe of Sally and Vaify 
to be good lav^t, but endeavoured to diftinguifh this cafe from 
that J bv faying that the defendants here claim no eftate, no title 
or jjoffeffion m or of the clofes, in which, £?c, but a ri^ht 
only to enter and take the emblements to wnich Whitley i$ m- 
titled, and which is a matter collateral to the title of the land, 
and therefore, that they were not obliged to fhew the com* 
mencement of the original leafe in pleading, which was not 
in their power, the fame being now in the hands of the 
plaintiff. 

Curia. We were inclined, and wiftied to fupport this plea 
if poffible, we faw the inconvenience of obliging the defend- 
ant to fet out the original leafe which is not in his power, 
and therefore took time to confider, whether we might not 
legally deviate from the general rule of pleading in the cafe 
before laid down; but we are of opinion that we cannot de- 
part from it. The cafe of Scilly verfus Dally is good law, where- 
in this fundamental rule is laid down, that wherever a particular 
. eflatc is pleaded it muft be Ihewn, and derived out of, and from 
the fee ; but here it is not fhewn or known who is feifed in 
fee. Eftates in fee-fimple may be generally alledged, but the 
commencancnt of eftates tail, and other particular eftates, muft 
.Jbe alledged in pleading; unlefs, in fome cafes, where they are 
alledged by way of inducenient. Co. Lit, 303. b. One great 
reafon for this, is, that a fee may be proved by afts of owncr- 
fliip, or long poffeffion ; a fee may be acquired by wrong, but a 
particular eftate cannot be got by wrong ; io that no evidence can 
prove the exiftence of a particular eftate, without deriving it from 
the fee ; he who has the fee, has a right in trefpafs to call on 
any body, and fay, .** (hew me your particular eftate, either from 
•' me, or from fome ftranger;' for if a ftranger has diffeifed the 
plaintiff, and he enters and acquires bis eftate in fee again, that 
deftroys all clainiers under the diffeifor. And he can call upon 
them in trefpafs to fjiew title from the fee, TUe cafe in tra. 

Car. 



Easteb Tbbm 10 Gfio. HI. 1770. 73 

Car. 138. cited above, is the beft cafe to the point in que&ion, 
and agreeable to the rule of Co. Litt. 303. b. There is a great 
difference between a trefpafs quare daufumf regit ^ and aperional 
trefpafs of aflault and battery ; in the firft, the plaintiff calls it 
his cloje^ and if the defendant will difpute that^ he muft fet up a 
feifin in fee, or derive a title from the fee; which feifinin fee 
may be proved by afts of ownerihip, whereof the jury can 
judge, but a particular eftate may depend upon a great variety of 
matters, both of law and fa& ; and the more you try the ge- 
neral rule above laid down, the more reafon appears, that you 
muft, in pleading, derive the particular eftate from the tec. 
Judgment for the plaintiff, per totam curiam. '.< 

Godfrey verfus Saunders. C. B. [&» /. 94.] 

(. 
This record is entered of the term of Saint Michael^ in the tenth Dickint pro- 
year of the reign of King George the Third, in the 657, 658, «*»«««y 
659, 660, 66 1, & 662. Rolls^ ^t\d a RiJeri and was tran* 
fcribed from the J^olis by the Reporter, with his own hand, 
- as follows.' Elfewhere, of the terra of the Holy Trinity^ in 
the eighth year of the reign of King George the Third, upon 
the 472, 473, 474, 475 & 476. Rolls, it is thus contained : 

London, CTIIOMAS SAUNDERS, late of the parifti of Saint Dedantfoa 
(to wit.) "* George Hanover Square, in the county of Nbddlerex, \nsamm 

Efq. was fummonedtoanfwer Thomas Godfrey, Efq, 2n°aih^'* 
of a plea that he render to the faid 71 G. a reafonable account farvinns 
of the time in which he and one Solomon Salomons now deceafed, bailiff of the 
and whom the faid T. S. hath furvived, were the bailiffs of the f^Ts^' 
faid T. G. And thereupon the faid T. G. by Thomas life his UfUgmuit ^ 
attorney, fay?, that whereas the faid T. S. and the faid S. S, tb^tpU^dnigu^ 
now deceafed, and whom the faid T. 5. hath furvived, were for ^ ^^ ^/'^•J 
ia long time, (to wit) from the irft day of June in the year of 
our Lord 1754, until the firft day of May \i\ the year of our 
Lord 1755, the bailiffs of the laid T. G. (to wit) at London 
aforefaid, that is to fay, in the parifti of Saint Mary le Bow, in 
the w^i A oi Cheap : and during that time, had the care and ad* 
miniftration of divers goods and merchandizes of the faid 71 G. 
that is to fay, twelve chefts of coral beads, containing a large . 
quantity, (to wit} three thoufand pounds weight of coral beads 
of the (aid 7. G. of great value, (to wit) of the value of 12000/. 
of lawful money of Great Britain, to be merchandized and 
made profit of for the faid 7. G. and to render a reafonable ac- 
count of the fame to the faid 7. G. when tliey the faid 7. S. 
jindS. S. fliould be afterwards thereto required; yet the faid 
T* S. and S» S. in the life- time qi the faid 5. iS. or the faid T. 

S. 



74 



Eabtzk Teml 10 Geo* III. 1770. 



f ft Plea. 

Defendant 
pfotelbhe 
wat nerer the 
Mliffof 



And tnTCff- 
cth that he 
•ndS.S.were 
the bailiffs of 
the plaintiff. ^ 



Defendant's 
lecond p4ea 
is this ftatute 
pfliipiutJOAS. 



Third plea. 



S. Gnct the dcceafe of the faid S. S. (altheogh ofteti required) 
hare not, nor hath either of them» rendered a Ireafonable account 
^ the fame to the faid T. G. but ihe faid T. S. and the faid 5. S. 
in the lilc^me of the faid S. S. and the faid T. S. finee the de- 
feafe of the &id5. S. have akogether refufed, and the faid T. 5. 
iftitl doth refule ib to do to the iaid T. C his damage of 12000/. 
and therefore he brings fuit, (3c. 

And the faid T. 5. hy Rowland liekbarrow his attorneys comes 
and defends thie wrong and mjnry, when, S3c. and fays, that the 
faid 7. C. ourht not to have or maintain his aforefaid aftion 
againft him, becaufe^^^^ii^ that he the faid T. 5. never was 
the bailiff of the faid T. G. as m the faid declaration is above fup- 
pofed ; for plea, he the faid T. S. fays, that the laid 5. tS. in the 
laid declaration mentioned, was the fole hailiff of the faid 71 G. 
for the faid time in the faid declaration mentioned, and during 
that time had the care and adminiftration of the faid goods and 
merchandizes in the faid declaration mentioned, to be merchan- 
diaed and made profit of for the faid 7. G. and to render a reafon- 
able account of the fame to the faid 7. G. wh^n the faid 5. S. fhould 
be thereto required, (to wit) at London aforefaid, in the parifh 
and ward aforefaid; mthout this^ that the faid 7. S. and 5. 5. 
were the bailiffs of the faid 7. G. and had the care and admini- 
ftration of the goods and merchandizes of the faid 7. G. in the 
faid declaration mentioned, to be merchandized and made profit 
of for the faid 7. G. and to render account thereof when they 
&ould be thereto required, in manner and form as the faid 7. G. 
has above alledged in that behalf; and this the faid 7. S. is ready 
to verify : wherefore he prays judgment if the faid 7. G, ought 
to have or maintain his aforefaid action thereof againft him, &c. 
And for further plea in this behjilf, bv leave of the court here 
for this purpofe iirft had and obtained, according to the form of 
the ftatutc m fuch cafe made and provided, the faid 7. 5. pro- 
tcfting, that he the faid 7. S* never was the bailiff of the faid 
7. G, as in and by the faid, declaration is above fuppofed ; nor 
had any concerns or dealings with the faid 7. G, during any part 
of the time in the faid declaration mentioned, as a merchant, 
fafbor or fervant, in the trade of merchandize ; fays, that there 
was not any open or current account between the faid 7. C and 
the faid 7, S, and 5. 5. in the life-time of the faid 5. or be- 
tween the faid 7. G. and the faid 7. S. fince the death of the 
faid 5. as aforefaid, at any time within fix years next before the 
fuing forth of the faid original writ of the laid 7. G. in this be- 
half; and this the faid 7. S. is ready to verify : wherefore he 
pFays Judgment, if the. faid 7. G. ought to have or maintain his 
aforefaid aSion thereof againft him, &c. And for further plea, 
by leave of the court here for this purpofe firft had and obtained; 

1 according 



Ea8te« Tom 10 Gbo. III. 1770. 75 

according to the fomi of tbe fiatute in fuch cafe made and pro- 
vided, he the faid 7. S. fays, that the faid T. G. ought not to 
have or maintain his aforefaid a£kion againft,him, becaufe, he 
fays, , that long before, and during part of the faid time in the 
faid deciaration.mentioned, {to wit) frOm the faid firft day of 
June in the year of our Lora 17 j4, until the 14th day of Janu» 
ary in the faid year of our ^rd 1755* he the faid 71 5. was go- 
vernor of Fort Saint George, in the £«/? Indies ; that is to fay, the 
refident or chief fervant there, to the United Company of Mer- 
chants of England trading to the £^ Indies, by them appointed 
and fiaitioned there in conftant refidence, for the protedion and fe- 
cttrity of the trade of the faid company there, and of their rights 
and ]>rivilege8 refpe£kinff the fame; and that the faid S. S, in his 
life-time, and during all the faid tijne above fpecified and long 
before and after that time^ was a merchant and fa6lor there, and 
a correfpondent of the faid 7. G. and 9 perfon remarkably well 
(killed in buying and felling of coral and coral beads, and in 
the knowledge and purchafinff of diamonds, and well known to 
the faid 7. G. fo to be, (to wit) at London aforefaid, in the pariih 
and w^d aforefaid : ana the (aid 7. 5. further fays, tliat accord- 
ing to the ufage and cuftom of the trade of the faid United Com- 
pany of Merchants of England trading to the Ea/i Indies, and by 
the rules and orders of the faid company, which, before, and at 
the time of the exportation of the laid goods and merchzindizes 
in the faid declaration mentioned, were, and from thenceforth 
hitherto^have been, and fiill are in force and obferved by the faid 
compaoiy, and thofe who trade under their leave and permiflion, 
every perfon exporting coral or coral beads from England to Fort 
Saint George aforefaid, ought and is obliged to make the returns 
lor the fame in diamonds; and in order the more effeSually to 
entree fuch returns, to confign the faid coral and coral beads 
to the faid governor or prefident of Fort Saint George zioreidiiA, for 
the time being, and to any other perfon or perfons fuch exporter 
(hall think fit to entruft or employ on his own behalf; i^nd that 
the faid 7. G. well knowing the premifes, and being po(feflred 
of the faid goods and merchandizes in the (aid declaration men- 
tioned, (to wit) the faid twelve chefts of coral beads, and being 
defirous to export the fame from England to Fort Saint George 
aforefaid, according to the ufage and cuftom of the trade of 
the faid company, and in obedience to the faid rules and orders 
of the faid company, refpefling the fame ; he the faid 7. Gp 
before the faid (irft day of 7un€ in the faid declaiation men- 
tioned, (to wit) on the firft of January in the faid year of 
our Lord 1754, by and with the leave of the (aid company. 
for this purpofe firft had and obtained in confeauence of a 
petition xx^it to them, according to the ufage and cuftom of 

the 



76 . Easter Term 10 Geo. Uh 1770. 

the faid company in this behalf, by the faid T. G. at London afore- 
faid, in the parifh and ward aforefaid, {hipped the faid goods in the 
faid declaration mentioned, on board divers ihips or veflels em- 
ployed by the faid company in their trade aforefaid, to be ex- 
ported and carried therein from England to Fort Saint George 
aforefaid, in the Eafi Indies, and dire^ied and configned the fame 
goods to the governor of Fort Saint George, and to the faid 5. 5. 
m his abfence, to the governor and one John IValfli : abfent the 
faid John IVai/k, to the governor and one Henry Vanftttart; to 
be by them received and difpofed of to the molt advantage of the 
faid T.G, at Fort Saint George aforefaid, for ready money as the 
faid T. G. hoped; but if any refpite or credit was necefFary, that 
it Ihould be given only to folid buyers, where no rifque was run; 
and when the fame were difpofed of, to fend the account of the 
fales to him the faid T. G. and to make him returns in diamonds 
moft proper for the market at London; which faid goods and 
mercnandizes fo ihipped and exported by the faid Tl G. as afore- 
faid, afterwards, (to wit) on the firft day of September, in the 
faid year of our Lord 1754, at Fort Saint G^^r^d aforefaid, were 
received by the faid 5. ,S. in his life-time, and by the faid T. S. 
as the then governor as aforefaid, whilft he fo remained and con- 
tinued governor of Fort Saint George aforefaid, and were then 
and there delivered over to the cuflody, care and management of 
the faid 5. S, by the faid T. S. the then governor as aforefaid, to 
be fold and difpofed of by the faid S. S. according to his fkill 
aforefaid, and the tmft repofed in him by the faid T. G. for the 
tnoll advantage of the faid T". G. (to witj at London aforefaid, 
in the parifh and ward aforefaid ; and the (aid T. S. further fays, 
that the greater part of the faid goods and merchandizes afore- 
faid, and whilfl the faid T. S, fo remained governor as aforefaid, 
(to wit) on the 31ft day of 03ober^ in the year of our Lord 1754, 
were fold and . difpofed of by the faid S. 5. at .divers places in 
the Eafl Indies, to the mofl advantage of the faid T. G. to folid 
buyers ; and that the money or produce arifing from the faid fales , 
was paid to the faid S, S. and by him wholly received, to be laid 
out and invefled by him in diamonds at the proper markets for 
that purpofe in the Ea/i Indies, which faid markets lie at a great 
diftance up the country from Fort Saint George ^iore{M, ac- 
cording to the befl of his faid fkill therein, and for the mofl 
benefit of the faid 7. G. and all the refidue and remainder of the 
faid goods and merchandizes fo (hipped by the faid T. G. and 
configned as aforefaid, afterwards, (to wit) on the i Qth day of 
January, in the year of our Lord 1755, was alfo fold and dif- 
pofed by the faid S. 5. for the mofl benefit of the faid T. G. to 
folid buyers, and a reafonable and neceffary refpite or credit (to 
wit) the fpace of three months, was given to fuch buyers tor 
the payment to be by them refpe£lively made for the fame to the 

faid 



Easter Teem 10 Geo. III. 1770. 77 

faid S. 5. that is to fay, at London aforefaid, in the parifli and ward 
aforefaid : and the faid T. S. in fa£l fays, that he the faid T. S. did 
not interfere or intermeddle with the faid S. S. in the condu£l or 
management of the faid fates, but left the fame entirely to the 
Hull and judgment of the faid 5. 5. to whom the faid manage- 
ment ought and was intended to be fo left by the aforefaid con- 
fignment of the faid T. G. and that he the faid T, S. never re- 
ceived any part whatfoever of the tnonies or produce arifmg or to 
arife from the faid fales, or of any of them ; and that he the faid 
T, S. left the condu£l and management of the invefiment of all 
the faid money and produce in diamonds to the faid S. S. pur- 
fuant to the intent and meaning of the faid T, G. and of his 
confignment aforefaid, and according to the truil by him for 
that purpofe repofed in the faid S. S. and that he the faid T. S, 
never received, nor was intitled to receive, any part of the profit 
or commiflion which the faid S. S. received or was intitled* to 
receive, upon the invefiment of the faid money and produce in 
diamonds, according to the ufage and cuftom of the faid trade 
at Fort Saint George aforefaid, and in the Eaft Indies, (to wit) at 
London aforefaid, in the parifh and ward aforefaid ; and the laid 
T. S. further fays, that the faid S. 5. in his life-time, and the 
faid T. S. whilft he fo remained and continued governor as afore- 
faid, (to wit) on the 14th day of January, in the faid year of our 
Lord 1755, rendered, fent and tranfmitted, from Fort Saint 
George aforefaid, to the faid T. G. a true, full and juft account 
of all the faid fales of the faid goods and merchandizes, and of 
the whole produce then arifen and to arife from fuch fales ; and 
that afterwards, on account of the bad ftate of health of him the 
faid J*. 5. and in purfuance of a refolution on that account taken 
long before, and whereof the faid T. G. before the time of the 
making of the faid confignment of the faid feveral goods and 
merchandizes in the faid declaration mentioned, or of any of 
them, had notice, he the faid T. S, (to wit) on the faid 14th 
day of January, in the faid year of our Lord 1755, refigned 
and totally quitted the* faid government of Fort Saint George 
aforefaid, and ceafed to be governor thereof, and was then and 
there fucceeded in his government aforefaid, by one George Pigott^ 
Efq. who was. then and there appointed and became governor of 
Fort Saint George aforefaid, in the room of the faid T. 5. and 
the faid T. 5. at the time he fo ceafed to be governor as afore- 
faid, then and there, (to wit) at Fort Saint George aforefaid, left 
in the hands of the faid 5. S, the whole money and produce then 
arifen and by him received, and all the fecurities for the future 
money and produce to arife and to be received, from the faid 
fales and each of them, for him the faid 5. S. to make returns 
thereof to the faid T. G. in diamonds, according to the afore- 
faid Ikill of the faid 5. S. therein, and according to the truft re- 
pofed 



78 Easter Term 10 Geo. III. 1770. 

pofed in him by the faid T. G. in that behalf as aforefatd; and 
the iaid S. S. then and there had and kept the fame money, pro- 
duce and fecurities in his hands as aforefaid, and undertook the 
care, adminiftration and management thereof, for the purpofe 
aforefaid ; and tlie faid T. 5. further fays, that he the faid TL S^ 
afterwards, (to wit) on the faid 14th day of J^anuary, in the faid 
year of our Lord 1755, failed and departed from, and left Fort 
Saini Qeorge iifoTthidt amd retnmcd to England ; and that whilft 
he remained and continued governor as aforefaid, of Fori Saint 
Georgp aforefaid, he never interfered or intermeddled, of was re- 
quired to interfere or intermeddle, by the iaid T, G. or by the 
laid S. S* or any other pcrfon, in or about the fales or produce of 
the faid goods and merchandizes, or in or about the returns to be 
made thereof by the faid S* S. to the laid 71 G. as aforefaid, 
further or in any other manner than as an official and temporary 
confignee or fa^or, as fuch governor as aforefaid, and as the duty 
of his office or ftation as fuch governor required ; and that he 
the faid T-S. never after the day and year laft mentioned, when 
be failed fiom Fort Saint George as aforefaid, nor at any time 
after he fo ceafedtobe governor as aforefaid, at all interfered or 
intcnneddled, in any manner whatfoevcr, with the faid fales or 
produce of the faid goods and merchandizes, or any part thereof, 
or with the faid r^urns^ to be made thereof by the laid 5. 5. to 
the faid T. G. and that at the time he the faid T. S. fo failed 
from Fort Saint George as aforefaid, the faid S. S. was then and 
there in the firil and principal repute and eilimation as a fa6lor; 
in fuch way as afose&id, both with refpefi to the fortune and 
ciscuaiAances of the faid 5.«S. and to his rkill, care and integrity; 
and the bid T. S. further fays, that he the faid 71 S. afterwards, 
(to witj pn the 25th day of J^une^ in the year of our Lord 1755, 
arrived in England; and tliatthe faid 7. G. afterwards, and after 
the faid 7. G. had received the faid account fo tranfmitted to 
him by the faid S. S. and; the faid T* S. whiift he remained go* 
vernor of Fort Saint George as aforefaid, and after the faid 7. G. 
had notice of, and well knew all the premifes aforefaid, (to wit) 
on the 30th day of J^unc aforefaid, in the year laft aforefaid, and 
on divers other diys and times betwc^en that day and the firft 
day oi September in that year, had divers interviews with the faid 
T. 5. and divers converfations with him concerning the premifes ; 
at which faid interviews and converfations, or at any other time 
before the faid firft day of September^ and before the news arrived 
in England of the failure pt the faid S. S, in his circumftances, 
he the faid 7. C. never, in an)r manner, intimated a difapproba«- 
Uon of the conduft of the faid 7. S. with refpeft to the faid 
. confignment, or the leaving the whole management thereof to 
the faidtS* S. as aforefaid, or that he looked upon of confidered 
the faid T. 5. as anfwerable to the faid 7. G. for the condu£l of 

the 



Easter Tbbh 10 Gbo. IIL 1770^ 79 

Ute faid S* S. with refpeft to the faid configmnent, or for tfat 
produce or returns thereof; and that the firft news of the failure 
of the faid S, 5. in his circumfiances, arrived in England long 
after the faid feveral interviews and converfations of the faid 
T. S. with the (aid T. C. (to wit) on the oth day of Septcmhr 
in the year laft mentioned, and not before ; and that h^ the 
faid T. S. before the day laft mentioned never heard of, nor had ^ 
the leaft fufpicion of the faid failure* or likelihood or proba* 
bility thereof ; that is to fay, at London aforefaid, in the parifh 
and ward «aforefaid ; and this he the faid T, S. is ready to verify : 
wherefore he prays judgment, if the faid T. G, ought to have or 
maintain hisaiorefaid aaion thereof againft him, &c. 

G. Nates. 
» 

And the faid 71 C as to the faid plea of the faid 71 5. by RcpnctttoB 
him firft above pleaded in bar, faith, that he, by reafon of any to «fce iiA 
thing in that plea alledged, ought not to be barred from having ''^^ 
or maintaining his faid a£lion againft the faid 7. 5. becaufe he 
as before faith, that the faid 7. $• and S* 5. were bailifis of him 
the faid 7. C and had the care and adminiftration of the (aid 
goods and merchandizes of him the faid 7. C. in the faid de- 
claration mentioned, to be merchandized and made profit of, for 
him the (aid 7. C and to render account thereof when they 
(hould be thereto required, in manner and form as the 7. (rL 
hath above alledged in that behalf; and this the faid 7. G. 
prays may be enquired of by the country, and the faid 7.S. doth 
the (ame likewiie. And the (aid 7. G. as to the faid plea of Re pCcig aa 
the faid 7. S. by him fecondly above pleaded in bar, faith, that 2^^*''^ 
he, by reafon of any thing therein alledged, ought not to be ^^ 
barred from having or mamtaining his aforefaid aflion a^inft 
him; becaufe ^r^/^if?^, that /i^/ plea, and the matter tbereiii 
contained, are wholly infufficient in law to bar or preclude him 
the faid 7. C from having or maintaining his aforeiaid a6lioa 
againft the faid 7. S. yet, for replication in this behalf, the faid 
7. G. faith, that he ttie faid T, G, during the time in the faid 
declaration mentioned, and before, was, and vet is a merchant, 
that is to fav, at London aforefaid, in the pari(n and ward afore* 
faid; and tnat the faid 7. S* and S. 5. during the time in the 
faid declaration mentioned, were the fa£lors of him the faid 
7. G. and during that time, as fuch faiBors of him the faid 7. G^ 
had the care and adminiftration of the faid goods and merchan** 
dizes in the faid declaration mentioned, to be merchandized and 
made profit of for the faid 7. G. and to render a reafonable ac« 
count of the fame to the faid 7. G. when they the faid 7. & 
and 5. iS. (hould be thereto required ; and that the account de* 
mauded by the (aid afiion now Drought, and profecutcd by the 
faid 7. G. againft the (aid 7. tS. concerneth the tsade of mer* 

chandizc 



iO Eastbr Te&m 10 6so. IIL 1770. 

diandize between hxm the faid 71 C as a merchant, and thd 
iaid T. S. and S. S. in his life-time, as fa£lors of him the 
iaid 71 G. that is to fay, at London aforefaid, in the parifli and 
ward aforefaid ; and the faid 7. G. further faith, that no account 
or accounts whatfoever of the faid goods and merchandizes in the 
faid declaration mentioned, or any part thereof, or of the profits 
' thereof, or any part thereof, was or were ever adjufted or fettled 
betweea him the faid 7. G. and the faid 7. S. and S, 5. or either 
of them, in the life-time of him the faid S. 5. or between him the 
faid 7. G. and the faid 7. S. fince the deceafe of the faid 5. S. and 
this the faid 7-G. is ready to verify ; wherefore he praysjudgm'ent, 
and that the faid 7. S. to account with him the (aid 7. G. of the 
time in which he and the faid 5. 5. were the bailiffs of him the faid 
T. G. and had the care and admin iilration of the faid goods and 
merchandizes, to be merchandized and made profit of, for the 
Replication faid T.G. may be adjudged, £^c. And the faid 7. G. as to the 
to the third faid plea of the faid 7. 5. by him laftly above pleaded, with 
^ai«ei*o?the ^^'p^^ ^^ P*^^^ of ^^^ ^^^^ coral beads in the faid declaration 
goods. mentioned, that is to fay, i8oo pounds weight of the faid coral 

beads, parcel of the faid goods and merchandizes in the faid de- 
claration mentioned, faith that by reafon of any thing by the 
faid 7. S. above in that plea aliedged, he the faid 7. G. ought 
not to be barred from having or maintaining his aforefaid a3ion 
thereof againft him ; becaufe proteiUng, that that plea, and the 
matters therein contained, are wholly infufficient in law to bar 
or preclude him the faid 7. G. from having or maintaining hi^ 
aforefaid a£lion thereof againft the faid 7- 5. yet, for replication 
in this behalf,. the faid 7. C. faith, that the faid 7. S. before 
he became governor oi Fort Saint George in the Eaft'^ Indies 
aforefaid, and during all the time he was and continued go- 
vernor thereof, was a faflor there, and well {killed in the 
buying and felling of coral and coral beads, and in the know- 
ledge and purchafing of diamonds, and well known to the 
faid 7. G. fo to be, and had been, as well before as after he be- 
came^ovcrnor of Fort Saint George aforefaid, employed by the 
faid IT G. and fundry other perfons as a faftor, as well folely as 
jointly with other faftors there, in felling of coral and coral 
beads, and in the purchafing of diamonds for commifl!ion or re- 
gard, (to wit) at London aforefaid, in the parifli and ward afore- 
- faid ; and that by the ufage and cuftom of trade and fa3orage at 
Fort Saint George aforefaid, during all the time the faid 7. S. was 
governor there, and long before he became governor thereof, 
upon all confignments made to the faid governor as a fole 
faftor, or joint faftor with any other faftor or faflors, to be in- 
vefted in diamonds there^ fuch governor hath received and been 
intitled unto commiffion as a fafior, over and befides a certain 
fum, due and payable to him as governor there^ commonly csdled 

and 



Eastbr Tcbm 10 Geo. III. 1770. 81 

iaad diftinguifhed by the name of confula^e ; and the faid T, 6. 
further faith, that on the faid firft day oi January^ in the year 
of our Lord 1754* at London aforefaid, in the pariih and ward 
aforefaid» hedtdmipthe faid 1800 pounds weight of coral beads, 
parcel of. the faid goods and merchandizes in the faid declaration 
mentioned, to be exported and carried to Fort Saint George afore« 
faid, and dire6ied and configned the fame to the governor of Fort 
Saint George, and to the faid S* S. in his abfence to the governor 
and one John Walfh^ abfent the faid JValJh^ to the governor and 
one Henry Vanfittart^ to be by them received and difpofedof to 
the moft advantage of the faid 71 G. at Fort Saint George afore- 
faid> for ready money, as the faid 7*. G. hoped ; but if any re(pite 
or credit was neceflary, that it ihould be given only to (olid 
buyers where no rifque was run ; and when the fame were dif- 
pofed of, to fend the account of the fales to him the faid 7. G. 
and to make him return in diamonds moil proper for the market 
oi London; which faid confignment was made by the faid 7. G. 
to the faid* 7. 5. governor of Fort Saint George ^' 2Lnd to the faid 
S, S* as aforefaid, as joint fa£lors of him the faid 7. G. and 
upon their joint credit to be by them received and difpofed of as 
joint fafiors in manner aforeiaid ; and the faid goods and mer- 
chandizes (to wit) on the firft day of J^une^ in the year of our 
Lord 1754, were received and accepted at Fort Saint George afore^ 
faid by the faid 7. £. then being governor thereof, and the faid 
S, S. as joint fa£lors, to be fold and difpofed of as aforefaid by 
them as joint fa£lors, for'commiffion to be therefore paid to the 
faid 7. S. and S. S, as joint fa6lors, by the faid 7. G. and the 
faid coral beads were afterwards, and whilft the faid 7. S. was 
and continued at Fort Saint George aforefaid, fold by the faid 
7. S> and S. S^ as joint fa£tors of him the faid 7. G. upon cre« 
dit, (to wit}r three months, which expired before the faid T. S. 
left Fort Saint George^ and the produce thereof might, and was 
or ought to have been inveftea in diamonds, before the faid 
71 S. leGt Fort Saint George as aforefaid ; and the faid 71 S. ac* 
cepted and received in account with the faid S, S. and as co- 
fatlor with him a part, (to wit) one moiety of the comzhiflion, 
then payable to them as joint fa6lors, in reipe£l of the faid con- 
fignment ; and the faid 71 G. avers, that the manner, trouble 
and management of the faid confignment, after the fame was fo 
received by the faid 71 S. and S. S. as aforefaid, was left and 
intrufted by the faid T, S. to the faid 45. S. by agreement be- 
tween them as joint fafiors as aforefaid, without the dire£lion, 
confent, privity or knowledge of him the faid 7. G. and this 
the faid 7. G. is ready to verify ; wherefore he prays judg- 
ment, and that the faid 7. S. to account with him the faid 
7. G. of the time in which he and the faid S. S, were the 
bailiifs of him the faid 7. G. and had the care of the faid 
coral beads, parcel of the faid goods and merchandizes, in 
Vol. Ill; G the 



6% Eastek TiRM 10 Geo. III. 1770. 

tl\0 faid declaration meniioncd, to be merchandized and made 
Replication profit oi tor the Dud T. G. may be adjudged, &c. And the (aid 
to third plea, j; Q' ^ ^^ (j^^ {^[^ pi^ of th3 faid T. S. hj him laftly above 
Sf the'Sooda' plcadcd, with refpeft ta the refidue of the faid goods andmer- 
in the decla. cbandizes in the faid declaration mentioned, laith, that by rea(an 
ration. of any thing by the faid T. S, above in that plea alledged, he the 

faid i . G, ought not to be barred from liaving or maintaining 
his aforefaid amon thereof againft him; btcsLiAte prcU/ling^ that 
that plea and the matters therein contained, are wholly infuffi* 
cient in law to bar or preclude him the faidxT. G. from ha'fixig 
or maintaining his aforefaid a^ion thereof againll the iaid Z*. Si 
yet for replication in this behalf the laid T, S. faith, that the 
laid T, S. before he became governor of Fori Saint George^ in 
the Edl Indies aforefaid, and during all the time he was and caa^ 
tinued governor thereof, was a fa£lor there, and well ikilled m 
the buying and felling of coral and coral beads, and in the 
knowledge and purchaling of diamonds, and well known to the 
faid T, G. fo to be, and had been, as well before as after he be« 
camejffovernor of Fort Saint George aforefaid, employed by the 
faid i . G. and fundry other perfons as a fa£lor, as well folely 
as jointly with other fa£tors there, in felling of coral and coral 
heads, and In the purchaling of diamonds for commiflion, to 
be therefore paid to him, (to wit) at London aforefaid, in the 
parilh and ward aforefaid ; and tlutt by the u(age and cuflom 
of trade and fa£lorage at Fori Saint George aforefaid, during all 
the time the faid T. 5« was governor there, and long befor.e he 
became governor thereof, upon all confignments made to the 
faid governor as a fole faElor, or joint ia£lor with any other 
fador or faftors to be invefted in diamonds there, fuch governor 
* hath received and been intitled unto commiflion as a faSor, over 
and befides a certain fum due and payable to him as governor 
tliere, commonly called and diftinguiflied by the nameof c^n/iu 
la^e; and the laid T. G. further faith, that on the faid firft day 
of Jaiuiary^ in the year of our Lord 1754, at London aforefaia^ 
in tiie parilh and ward aforefaid, he did ihip the faid refidue ot 
the faid goods and merchandizes in the (aid declaration 'men* 
iioned, to be exported and carried to Fori Saint George aforefaid, 
and diiefted and conligned the fame to the governor of Fort 
Saint George, and to the faid S. S, in his abfence, to the governor 
and one John JValJh ; abfent the faid TfohnWalfli^ to the gover- 
nor and one Henry.Vanfittart ; to be by them received and dif- 
pofed of to the mod advantage of the fiid T. G. at Fort Saint 
George aforefaid, for ready money, as the faid T, G. hoped ; but 
it any refpite or credit was necefl'ary, that it (hould be given only 
to folid buyers, where no rifque was run ; and when the fame 
were difpofed of, to fend the account of the falcs to him the 

faid 



£aSTS£ T£SM 10 0£0. tit. l^^O. 83 

ikid T. G. and to moke him returns in diamonds moft proper Cor 
tlie market of Landon: which faid confignment was made to the 
laid r. S. gavtmor of Fert Smnt George, and to the faid S. S.^t 
aforeiaid, as joint fa6U>rs of him the iaid T. G. and upon their 
joint credit to be by them received and difppfed of as joint fa£lor$ 
in manner aforefaid ; and the fatdgoodsand merchandizes afore« 
faid, (to wit) on the fir ft day of j^ne^ in the year of our Lord 
1754, were received and accepted at Fort SairU Geor;ge aforefaid, 
by the faid ST. 5/ then being governor thereof, and the faid 5. 5. 
as joint fafiors. to be (bid and difpofed of as aforefaid, by them 
^ as joint fadors for commiflion, to be therefore paid to the faid 
' 71 ^. and the (aid S, S. as joint fa&ors by the faid T. G. and the 
faid T, 6. avers» that the manner, trouble and management <^ 
the faid confijpnment, after tlie fame was fo received by the faid 
T.S.sai^S. S. as aforefaid, was left and entrufled by thei faid 
T. jS. to the faid S. S. by agreement between them as joint fadora 
as aforefaid, without the aire£lion, confent, privity or know^^ 
ledge of him the faid T. G. and this the faid T« G. is ready to 
verify ; wherefore he prays judgment, and that the faid Ti S. to 
account with Hi^ the laid T. G. of the time in which he and the 
faid S. S» were the bailiffs of htm the faid T. G. and had the care 
of the faid refldue of the faid goods and merchandizes in the faid 
declaration mentioned, to be merchandized and made profit of, 
-tor the faid Tl G. may be adjudged, &c. 

W. Davy. . 

And the (aid T.S. as to the aforefaid plea of the faid T. C, ^*Jj;"f^/^f 
by him above pleaded, by way of reply to the faid fecond plea tion'to the' 
^ the faid T. 5. above fpecificd, fays, that th^ feid T. G. ought .fecond pie* 
•not', by rcafon of any thing in his faid rcplicatign above alledgcd, 
to have his faid aaion maintained againft him the faid T. S. 
becaufe protefling, that the faid T. S. was not, during the time in 
-the faid declaration mentioned, the fa£lor of the faid T. G. nor 
during thait time as fuch fa6lor liad the care and adminiftratic»i 
of the faid goods and merchandizes, in the (aid de(;Iaratian 
mentioned, to be merchandized and made profit of for the faid 
r. G. tod to render a reafotiable account of the fame to the faid 
71 G. ^hen he (hould be thereto required, as the faid T. G. 
hath in his replication aforefaid above (uppofed : for rejoinder in 
this behalf* he the faid T. 5. fays, that the account demanded 
by the laid aftion now brought and profecutcd by the faid T. G. 
-againft the (aid T. S. doth not concern the trade of merchandize 
l^ween him the faid 71 G. as a merchant* and the faid T. S. as 
fafior of him the faid^TVG. in manner and form as the faid 
71 Chath above in his*faid replication alledged in that behalf; 
imd of this the faid T, 5. puts himfelf upon the country, and tho 

o 8 biA 



84 

« 

Rtr joinder » 
the replica- 
tion t9 third 
plejy as to 
parcel of the 
goods in the 
decUrauoa. 



Easter Tjeem 10 Geo. III. 1770. 

faid r. G, doth the like. And the faid T. S. as to the aforc- 
faid plea of the faid T.G. by him above pleaded by way of re- 
ply to the faid laft plea of the faid T. S. above Ipecified, with 
refpe£l to part of the faid coral treads in the faid declaration 
mentioned, that is to fav, 1800 pounds weight of the faid coral 
beads, parcel of the faid goods slnd merchandizes in the faid de* 
claration mentioned, fays, that the faid 7*. G. ought not, by rca- 
fon of any thingj in that replication above alledged by hihi, to 
have his laid aftion maintained againft him the faid T. S. becaufe 

firotefting that that replication is infufficient in law, and no an- 
wer to the. aforefaid. plea of the faid T. 5. by him laftly above 
pleaded, and that he the faid T. S. has no pccafion nor is abound 
by the law of the land to anfwer to the aforefaid replication of 
the faid T. G. in manner and form as the fame is above made, 
&c, protefting alfo, that the faid goods and merchandizes in the 
faid declaration mentioned, were configned to him rnerely as 
governor of Fort Saint George aforefaid, that is to fay, as the 
aforefaid preCdent or chief lervant there, to the United Com- 
pany bf Merchants of England trading to the Eafi Indies, for 
the proteftion and fecurity of the trade of the faid company^ 
and of their rights and privileges refpeSing the fame; and tliat 
he was never, after he became governor of Fort Saint George 
aforefaid, employed by the faid T. G, or any oth^r perfon, as a 
faftor, eitlier folely, or jointly with other tattors, in felling of 
corol and coral beads, and in purchafmg of diamonds for com- 
miffion or reward ; protefting alfo, that the faid confignment in, 
the faid replication mentioned, was not made by the faid T. G. 
to the faid T". S. and the faid S. S. as joint fa£iors of the faid 
T. G. and upon their joint credit, to be by them received and 
difpofed of as joint factors ; and that the laid goods and mer- 
chandizes were pot received and accepted by the faid T, S. and 
the faid S, S. as joint faftors, to be fold and difpofed of by them 
as joint faflors, for comraiffion to be therefore paid to them as 
joint faSors, by the faid T, G. and that the faid coral beads 
were not fold by the faid T, S, and 5. S. a^ joint faflors of the 
faid T. G. and that the produce thereof was not nor could have 
been inyefted in diamonds, before the faid T. S. left Fort Saint 
George as aforefaid ; protefting alfo, that the faid T. S. did not 
accept and receive in account with th« faid 5. 5. as a co-fa3or 
with him, a part of, (to wit) one moiety of the commiffion pay- 
able and to become payable to them as joint fa£lors, in refpecl of 
the faid confignment; and that the manner, trouble and manage- 
ment of the faid confignment, was left and intrufted by the &id 
T. S, to the faid S,S» as aforefaid, m purfuance of the intent and 
meaning of the faid 7'. G. and of his confignment aforefaid, ana 

, according 



Easter Tebm 10 Geo. III. 1770. S5 

according to the truft by him for that purpofe repored in t1)« 
iaid 5. S. and not by agreement between the Taid 71 S. and the 
faid S. 5. as joint fafiors, as the faid T> C hath, in 'and by his 
replication aforefaid in that behalf, above fuppofcdand allcclgcd. 
For rejoinder, neverthelefs, in this behalf, the faid T. S. fays, 
that upon the faid delivery over of the faid goods and mcrchan* 
dizes m the faid replication mentioned, (to wit) the faid i8oo 
pounds weight of the faid coral beads, and the produce theret>f, 
to the faid S* S. to make returns thereof to the faid 71 C in dia- 
monds, according to the tnift repofed by him iii the faid S. S, 
and upon rendering the aforefaid account to the faid 7. G. of the 
laft-mentioncd goods and merchandizes as aforefaid ; and upon 
his the faid 7. 5. leaving the Eajl Indies'^ and ccafing to be go- 
vernor as aforefaid, and being fucceeded in the faid government 
by the faid George PigoH as atorefaid, all concern whatfoever of 
the faid 7. 5. as to, of and in the care, trufl or management of 
the faid goods and merchandizes lafl-mentioncd, or the produce 
thereof, or the returns thereof to be made in diamonds to the 
faid 7. G, entirely dropped, ceafed and was at an end, that is to 
fay, at London aforefaicl, in the parifh and ward aforefaid ; and 
this the faid 7. S, is ready to verify : wherefore, as before, he 
prays judgment, if the faid 7. G. ought lo have or maintain his 
aforefaid a£lion again 11 him. And the faid 7. S. as tp the afore- Rejoinder to 
faid plea of the laid 7. G. by him above pleaded, by way of **^« replica- 
reply to the faid laft plea ot the faid 7. S. with refpea to the 1^"/^,^^,' ., 
refidue of the faid goods and merchandizes in the faid aeclaration, to the refiduj 
fays that the faid i . C. ought not, by reafon of any thing in that o^^^e goodi 
replication above alledged, to have or maintain his aforefaid ac- ^^^^^^^ ***^^*" 
tion againfl the faid Thomas Saund(^rs, becaufe protefling, that 
that replication, and the matter therein contained, are infufticicnt 
in law, and no anfwer to the faid lafl plea of the faid 7. S, and 
that he hath no need nor is bound by 'the law of the land to an- 
fwer to the fame replication, in manner and form as the fame is 
above made and fet forth ; protefling alfo, that the faid goods 
and merchandizes in the faid declaration mentioned, were con- ' 
figned to him the faid 7. S. merely as governor of Fort Saint 
Gforge aforefaid; and that he was never, after he became gover- 
nor of Fort Sdint George aforefaid, employed by the faid 7. G. 
or any other perfon, as faftor, either folely or jointly with other 
faSors, in felling of coral and coral beads, and in purchafing of 
diamonds for commiffion therefore paid to him ; protefling alfo, 
that the aforefaid confignment was not made to the faid 7. 5. 
and the faid S. S. as joint faftors of him the faid 7. G. and upon 
their joint credit, to be by them received and difpofed ot as 
joint fa£lors, and that the fame goods and merchandizes were not 
received and accepted by the faid 7. 5. and S. S. as joint faftors, 
to be fold and difpofed of as aforefaid by them, as joint fa£lors, 

G 3 for 



86 E;aster Teem 10 Geo. IH. 1770. 

for CpinmiQioii to be therefore paid to the faid T. S. and the faid 
S* S. as joint favors, ^y the laid T. G. and tliat the manner* 
trouble and management of the faid conGgnment, was tcft and 
intrufted by the wid T. S. to the faid^* S. in purfuance of the 
intent and meaning of the faid T. 6. and oi his configntneni 
aforefaid, and according to the tfuft by him for that purpofe re^ 

?ofed in the faid 5. 5. and not by agreement between the faid 
". S. and <S. $. as joint fa£lors, as the faid T. G, hath in and by 
his replication in that behalf above fuppofed andalledged; for 
rejoinder neve4thcle{3 in this behalf, he the faid T. S. fays^ 
that upon the faid delivery over of all the faid goods ^ad mer* 
cliandizes in the faid declaration mentioned, and of the produce 
pf the faid part thereof fo fold as aforefaid to the iaid >S. S. to 
make returns thereof to the faid T. G. in diamonds, according ta 
the truid repofed by him in the faid 5. S. and upon rendering 
the aforefaid account to the faid T. G. of the fata fale and pro- 
duce as aforefaid ; and upon his the faid 71 S. leaving the Eqfi 
Indies^ and ceafing to be governor as aforefaid» and being fuc- 
ceeded in his faid government by the faid George Pigott as afore-i 
faid, all concern whatfoever ot the faid 7*. S. a3 to, of and ia 
the care, trud or management of the faid goods and merchan<p 
dizes, or the produce thereof, or the returns to be made thereof 
in diamonds to the faid 7. &• intirely dropped, ceafed and was 
at an end; that is to fay, at Z^n//t7n aforefaid, in the parifli and 
ward aforefaid ; and this the faid 7. 5- is ready to verify : where^ 
fore, as before, he prays judgment, if the faid T, G. ouffht to 
have or maintain his aforefaid a£lion thereof againft him, &c. 

G. Nare^ii 

•ur-re]oinder And the faid 7. C as to the faid rejoinder of the faid 7. 5. to the 

d« w thfrel '^i^ replication of him the faid 7. G. to the faid plea of him the 

ptotion to " ^^^ '^- S. laflly above pleaded in bar, with refpcS to part of the faid 

the third plea, coral beads in the faid declaration mentioned, that is tp fay, 

thrwdTla^ l8oo pounds weight of the faid coral beads, parcel of the faid 

the dcclara- goods and merchandizes in the faid declaration mentioned, faith^, 

tiofl. that he, by reafon of any thing therein contained,, ought not to 

be barred from having or maintaining his aforefaid a6lion in 

that refpefl, againft the faid 7. 5. becaufe protefting, that that 

rejoinder, and the matters therein contained, are wholy infuf- 

ficient in law to bar or preclude him the faid T. G. from having 

or maintaining his aforefaid aftion thereof againft the faid 7. S. 

nevenhelefs, for a fur-rejoinder in this behalf, the faid 7. G. 

faith, that all concern or the faid 7. S. as to, of and in the 

care, truft or managementof the faid part of the faid coral beads, 

or the produce thereof, or the returns thereof to be made in 

diamonds to the faid 7. G, did not drop, ceafe, nor was at an 

end, in manner and form as the faid 7, S. liath in that rejoinder 

above 



EAfitEA Term lO Geo. IIL 1770. 87 

aibovealledged; and this the faid T. G, prays may be inquired of 
by the countxy ; and the faid T. S. doth the fame iikewilc. 

And the faid T. C. as to the faiH rejoinder of the faid T. 5. to TheUke fur 
the (aid replication of him the faid T. G. to the faid plea of the J^J^^'^.^fi^^, 
faid 71 S. laftiy above pleaded in bar, with refpe6l to the refidue of the goods 
of the faid goods and merchandizes in the faid declaration men- in the dccU- 
tioned, faith, that he, by reafon of any thing therein contained, ^^'^ 
ought not to be barred from having or maintaining his aforefaid 
a&ion in that refpefi againft the faid T. S. becaufe proteftin?, 
that thai rejoinder, and the matter therein contained, are wholly 
infafficient in law to bar or preclude him the faid 71 C. from 
having or maintaining his aforefaid a£lion thereof againft the faid 
71 S* neverthelefs, for a fur-rejoinder in this behalf, the faid 
71 Gm faith, that all concerns of the faid 7. 5. as to, of and in the 
care, truft or management of the faid goods and merchandizes, 
or the produce thereof, or the returns thereof to be made in dta- 
monds to the faid 7. G. did not drop, ceafe, nor was at an end, 
in manner and form as the faid 71 5. hath in that rejoinder 
above atledged ; and tliis the faid 7. 6. alfo prays may be inquired 
of by the countrv; and the faid 7. 5. doth the fame likcwife : 
therefore, as well to try this iflue as the faid feveral other iffues 
above joined between the parties, the fheriffs are commanded that 
they caufe to come here, in three weeks of the Hoiy Trinity^ 
twelve, &c. by whom, £?r. who neither, £?f . to recognize, &?c. 
becaufe as well, &c, the fame day is given to the faid parties 
here, &c. ' 

JV. Davy. 

After\^ards the proceedings were continued .between the pai*- Nj/ifthn^ 
ties aforefaid, in the plea aforefaid, by the faid jury thereof bci rig Mich. 9 - 
refpited between them until the morrow of Ait Souls, unlefs Sir ^'** ^* 
John EardUy Wilmoi Knight, his Majefty's chief juftice of the 
bench here, affigned by the form of the uatute, £3c, on the 2/^i\\ 
day oljunt next enfuing, (hould firft come at Guildhall, London. 
And now at this day, (to wit) on the morrow of All Sau/s^ 
comes as well the faid 7. G. as the faid 7. 5. by their attomies 
aforefaid; and the aforefaid chief juftice, before whom,£7r. has 
fent here his record had before him, in thefe words; afterwards, Thc/e/w, 
that is to fay, on the day, in the year and at the place within 
mentioned, /comes as well the within natntfd 7. G, as the within 
named 7. S. by their attomies within named, before Sir Tohn 
Eardlty Wtlmot Knight, the chief juftice within named, andcer- 
fainof the jurors, of the jury whereof mention is within made, 
fumtnoned to be upon thai pry, thait is to fay, Uu^k Atkim^ 
William Ncat^ William Hanjon^ Silvanus Grove, John Wilcox, 

^i John 



88 Eastek Term 10 Geo, III. 1770- 

7ohn Vernon^ John Walter^ JoknWkiimore, dind Thomas Elf s^ 
being required come, and on that jury are fworn ; and becaufe 
the reft of the jurors of the fame jury do not appear, therefore 
three other perfons of the by-ftanaers, being by the iheriffs 
"vviihia written hereunto elefted, at the requeft ot the faid T. G. 
and by the command ofthe faid chief juftice, are now newly fet 
down, whofc names arc affiled in the within written panncl, ac 
cording to the form of the ftatute, &c. which faid jurors fo 
newly fet down, (that is to fay) Jeremiah Percy ^ Stainfifury Stib» 
Uy and John Town^ being alfo required, come likewife, and to- 

?;ether with the faid other jurors before impapnelled, are tried and 
worn to fpeak the truth of the matters within contained ; who 
thefifiUflu^i upon their oaths fay, that as to the firft iffue within joined, the 
faid Tho?nas Saunders and the within named Solomon Salomons 
were the bailiffs of him the faid Thomas Godfrey^ and had the 
care and adniiniftration of the goods and merchandizes of him 
the faid T, G. in the within declaration mentioned, to be mer- 
chandized and made profit of for him the faid 71 G. and to 
render account when they fliould be thereto required, as he the 
at to the fe- faid T. G, hath In pleading within alledged. And as to the fe- 
«>n<* * »>«> ^.Qnj jflyg v^ithin joined, tne faid jurors on their faid oath further 
fay, that the account demandedf by the a£lion within brought 
and profccuted by the faid Tl G. againft the faid T S. concerneth 
the trade of merchandize between him the faid T. G. as a mer- 
chant, and the faid 71 5. as a fa£lor of ' him the faid 7. G. as he 
attothechix^ the faid 7. G. hath alfo in pleading within. alledged. And as to 
iffuc, tij^ ^ii-j jfl\jg within joined, the faid jurors on their oath fur- 

ther fay, that all concern of the faid i. 5. as to, of and in the 
care, truft or management of the part of the within coral beads, 
or the produce thereof, or the returns thereof to be made in dia- 
monds to the faid 7. G. did not drop, ceafe nor wa$ at an end, 
as he the faid 7. G. hath alfo in pleading within alledged, 
tt to the And as. to the laft iffue within joined, the faid ]urors on their faid 
Uft'iffue ""* oath fiirther fay, that all concern of the faid 7. 5. as to, of and 
in the care, trufl or management of thp faid goods and merchan- 
dizes, or the produce thereof, or the returns thereof tb be made 
in diamonds to the faid 7. G. did pot drop, ceafe nor was at an 
end, as he the faid 7. G. hath alfo in pleading within alledged. 
. Jodgmcnt Therefore it is confidercd, that the faid Thomas Saunders account 
^Ld^oT' ^^'^ *^® '^^^ Thomas Godfrey of the time aforefaid in which he 
1^1 1768. ' a^nd the faid Solomon Salomons were the bailiffs of him the faid 
Micb. 9. Thomas Godfrey^ and had the care and adminiftration of the 
Ceo. 3. aforefaid goods and merchandizes, (3c. to be merchandized and 
made profit of for the faid Thomas Godfrey ; and the faid Thoinas 
Merc^. Saunaers in mercy, becaufe he hath not before accounted, &c. 

Afterward?;^ 



Easter Term 10 Geo. III. 1 770. 89 

Afterwards^ (to wit) on Men Jay the fixth da)' of Fdrmry^ 
in the term of Saint HtLry^ in the ninth year of the reign ot our 
lord the now King, comes here into court as well the laid 71 C. 
by his attorney aiorefaid, as the faid 71 <S. in his proper pcrfon ; 
. and thereupon the faid 71 5. freely offers himlelf to account 
with the laid 71 G. for the goods and merchandizes aforeraid": 
whereupon by the confent of the faid 7. 6. and 71 5. JVxlliam Hli. Trrm 
Mainwaring Efq. Ltwis Jones Efq. and Anthony Dickens Efq. '''^- * •»■• 
prothonotaries of the faid court here, are by the faid court here A^nii,J* 
affigned auditors to take and declare the faid account between the aifi^nr^ 
faid r. G. and T. S. And hereupon the faid /K M. L. J. and £-"" ^« 
A. /). the auditors aforefaid, not having afli^ed any day to ^„^,7, * J^^ 
take the account between the faid 71 G. and 7. S, the laid court j.oth.r .nudU 
here, on this day, (to wit) on TueJUay the iSth day of Aprils in ">»• *t5i4nca| 
the term of Eafier^ in the 9th year of the reign of our faid 
lord the now King, by and with the confent otthe faid T. G. 
and 71 .S. aflign the faid J^. M, and A, D. and alfo John Flayer 
£fq. the prothonotaries of the faid court here, auditors to tiike 
and declare the faid account between the faid 71 G. and the faid 
r. S, which faid auditors, (to wit) JV. Af. A. D. and J. F. who ifriftn • 
aflign Friday the ninth day of June, in the ninth year of the *^*y '" ***** 
reign of our faid lord the now King, to take the faid account be- ^ * *««'»*»'*'• 
tween the laid T. G. and the faid 71 S. in the Serjeant's Room, 
near the court of Common Pleas in Weftmxnjler-nall : at which 
da)' comes here the faid 7. G. by his attorney aforefaid, and {he 
faid T. 5. cometh not. And tnereupon the auditors aforefaid Another day 
affign Saturday the tenth day of June^ in the ninth year afore- *fl*»f o«^- 
faid, to take the faid account between the faid 7. G. and 7. 6\ 
at the Serjeant's Room, neai* the court of Common Pleas in 
Wefimrifier^haU; at which day cometh the faid T. G. by his 
attorney aibreiaid, and the faid 7. 5. cometh not. And Another a^r 
thereupon the auditors aforefaid aflign Monday the 12th day ■^**'*^* 
of June^ in the ninth year aforefaid, to take the faid account 
between the faid 7. G. and 7. 5. at the Serjeant's Room, 
near the <;ourt of Common Pleas in WeflminJlerJiaU : at 
which day cometh as well the faid 7, G. ' by his attorney 
aforelaid, as the faid 7. 5. in his proper perfon ; and the faid 
auditors aflfigned by the faid court of our faid lord the King of 
the bench before his jullices aforefaid, to take the account 
aforefaid, (to wit) JV. M. Efq. A. D. Efq. and J. F. Efq. 
being. the prothonotaries of the faid court, likewife then and 
there come. And thereupon the faid 7. S. as to the faid goods The defen- 
and merchandizes whereof by the faid court of our faid lord the ^»"'** m'" 
King, of the bench before his juftices aforefaid, he is adjudged J^,"*' j^-^^ 
to render account to the faid 71 G. for the time in which he the 9 Geo. s. 
faid T. 5. and S. S. were the bailifis of him the faid 71 G. and 
had the care of the faid goods and merchandizes to be merchan- 
dized 



00 Easter Tjsam laGso. HI. 1770. 

Jised and made profit of for the faid T. G. prays allowance df all 
the profit and produce thereof, and fays that be ought to be 
difcharged thereof; becaufe, he fays» tlrat lonn; before, and du- 
ring part of the faid time in wliicn the faid 71 S, and S, S> are 
alledged to have been bailiffs as aforefaid, (to wit) from the firft 
day of J^une in the year of our Lord 17^4, until the i4th day of 
January in the year of our. Lord 17551 he the faid T. 5. was go- 
vernor of Fort Saint George ^ in the Eaji Indies : that is to &y, the 
prefident or chief fervant there, to th£ United Company of Mer* 
chants of England trading to the Eq/l Indies^ by them appointed 
and ftationed there for the prote£lion and fecurity of the trade of 
' the faid company there, and of there rights and privileges re- 
ipeQing the fame ; and that the faid S. S. in his life-time, and 
during all the faid time above fpecified, and Ions before and after 
that time, was a merchant and fa6lor there, ana a correfpondent 
of the fai'd T. G, and a perfon remarkably well ikilled in the 
buying and felling coral, and coral beads, and in the know* 
ledge and purchafing of diamonds, and well known to the faid 
T, G. fo to be, (to wit] at London^ in the pariflt of Saint Mary 
k Bow^ in Ihe ward ot Cheap ; and the faid T, S> funher fays» 
that according to the ufage and cuflom of the trade of ttie 
United Company of Merchants of England trading to the Ec^ 
indies, and by the rules and orders of the faid company, (which 
before, and at the time of the exportation of the laid ^oods and 
merchandizes were, and from thenceforth hitherto nave been 
and ftill are in force and obfervcd by the faid company there, 
and thofe who trade under their leave and permiffion) every 
perfon exporting coral or coral beads from England to Fori 
Saini George aforefaid, ought and is obliged to make the returns 
for the fame in diamonds, and in order more effefhially to 
enforce fuch returns, to conflgn the faid coral and coral beads to 
the faid governor or prefident of Fort Saint George aforefaid for 
the time being, and to any other perfon or perfons fuch exporter 
ihall think fit to entruft or employ on nis own behalf ; and 
that the faid T. C well knowing the premifes, and being 
poiTeffed of the faid goods and merchandizes, (to wit) twelve 
chefis of coral beads, of the weight of 2311 pounds, so 
ounces, tg penny- weights and 18 rarains, and being defirous 
to export the fame from England to Fort Saint George aforefaid, 
^ccordibg to the ufage and cullom of the trade of the faid 
company^ and in obedience to the faid rules and orders of the 
faid company re(pc8:inff the fame» be the faid T. G, before the 
faid firfl isfjr of June, (%o wit) on the firfl of January in the 
faid year of our Lord 1754* By and with the leave of the faid 
compaoy, for this purpofe firft had and obtained in confeqnence 
of a petition made to them, according to the ufage and cuftom 
of the faid campkky in this behalf, by the faid T^ G. at London 
. ' ' aforefaidt 



Eisxxn Tsuc la Gsa HI. I770w 91 

afareCaict, in the pariih and want aCorefatd* fliif ped the aforelai j 
goods and merchandizes on board divers ihips or vefleb em* 
ployed by the laid company in ibeir trade aforefaidt to he ex* 
ported and carried therein from England to Fort Saint George 
sifarefaid, in the Ea^ Indies^ and dire&ed and configned the fame 
^oods to the governor of Fort Saini Giorre^ and to the ftid 5. S. 
m his abCence, to the governor and one jokn Waljk ; abfent the 
£ttd J^vhn fVaiflk^ to tte governor and one Henry Fafj/btart ; to 
be by them received and difpofed of to the moft advantage of the- 
£ud T, G. as Fort Saint Gwrge aforefaid, for ready money as he 
iiODed^ hot if any credit or refpite was neceflary, that it 1>e given 
only to folid buyers, where no rifque was run; and when 
the fame were difpofed of, to lend the account of the fales to 
kim the liud T. C and to make him returns in diamonds moft 
proper ior the market at London ; which faid goods and mer* 
chandizes fo Slipped and exported by the faid T. G\ as afore- 
boAt afterwards, (to wit) on the firft day of September^ in the 
bid Year of our Lord 1754, at Fort Saint George aforefaid, were 
received by the laid S. S. in his life-time, and by the faid T. S. 
whiift he fo remained and continued governor of Fort Saint 
Ceorge aforelaid ; and that part of the faid goods and merchan- 
dizes, (to wit) 1318 pounds, 3 ounces, 18 penny- weights, and 
s8 grains, of the faid coraK beads, parcel oithe fame goods and 
merchandizes, afterwards, and whilft the faid 7. S. remained 
governor as aforefaid, (to wit) on tpe i3th day of OQober^ in the 
year of our Liord 1754» were, foM and difpofed of by the faid 
S. S. and the faid T. 5. to tlie moft advantage of the faid 71 G. 
to folid buyers, for the fum of 14686^^^^ and ^9^/onams^ 
being the current money in the Ea/i Indies and ^ at Port Saint 
Ceorge aforefaid, amounting in the whole to the fum of 5385/. 
4J. and tliree-farthings, of lawful money of Great Britain ; 
and realbnable and neceSaiy refpite or cre«ht, (to wit) the fpacc 
of three months, was given to fuch buyers for the payments to 
be by them rcfpeftivcly made for the fame. And all the rcfidue 
. and remainder of the faid goods and merchandizes fo fhipped 
by the laid 7. G. and configned as aforefaid, amounting to 
.993 pounds, 6 ounces, and 15 penny. weights, of the faid 
.coral beads, afterwards, (to wit) on the 13th day cli January^ 
in the year of our Lord 175^» was alfo fold and difpofed of by 
the faid 5. S. and the faid 7. 5. for the moft benefit of the laid 
7. G. to folid buyers, for the fum of 11387 pagodas and 19 /a. 
nams^ being the then current money in the EoLJi Indies^ and at 
Fort Saint George aforefaid, amounting in the whole to the fum 
pf 4175/. &r. 6a. 'farthing, of lawful money of Great Britain^ 
and a reafonable and neceffary refpite or credit, (to wit) the fpace 
of three months, was given to fuch buyers for the payments to 

be 



92 Easter Te&m 10 Gbo. IIL 1770. 

be 1>y them iierpe£lively made for the fame, (to wit) at LonaUm 
aforefaid, in the parifh and ward aforefaid. And the faid 71 S. 
further fays, that he and the faid 5. S. in his life-time, and 
whilft he the faid T. S. remained and continued governor as 
aforefaid, (to wit) on the 14th day of January^ in the faid year 
of our Lord 1755* rendered, fent and transmitted from rort 
Saint George aforefaid, to the faid 71 G* a true, full and juft ac- 
count, which came to the hands of, and was received by the faid 
7. G. of ail the faid fales of the faid goods and merchandizes, 
and of the whole pix)duce then arifen and received, and to arife 
and be received from fuch fales ; and afterwards, on account of 
the bad flate of health of him the faid 7. S. and in purfuance oi 
a refolution taken long before, and whereof the faid 7. G. be- 
fore the time of the making of the faid confignment of the faid 
foods merchandizes, or any of them, had notice, he the faid 
"1 5. (to wit) on the 14th day of January ^ in the faid year of 
our Lord 1755, rcfigned and totally quitted Fort Saint George 
aforefaid, and the Eajl Indies^ and all his concerns there, and 
returned to England^ where he hath ever fince rcCded ; and he the 
faid 7. 5. was, immediately on his refignation aforefaid, fucceeded 
in his government aforefaid, by one George Pigott^ Efq. who was 
appointed and became gov txnox ol Fort Saint George aforefaid, in 
the room of the faid 7. S. and the faid 7. S. afterwards, and when 
he fo ccafed to be governor as aforefaid, and fo quitted Fort Saint 
George and the Fiafl Indies aforefaid, and all his concerns there, 
(ta wit) on the faid 14th day of January^ in the year lall men- 
tioned, with. the conjent of the faid 7. G. delivered over to the 
faid 5. 5. and left m his hands the whole money and produce 
which had then arifen and was received, and all the fecurities, 

f papers, vouchers, authorities and powers for the receipt of the 
urtlier money and produce to arile and to be received from the 
faid fales, or any ot them, to enable the faid 5, iS. to receive all 
fuch money andf produce which was then to arife and be received 
pn that account, and tp inveft the fame, together with all the 
money and produce which had then arifen and had been then re- 
ceived on the account aforefaid ; and to make returns thereof in 
diamonds to the faid 7. C. according to the confignment afore- 
faid, (to wit) at London aforefaid, in the parifh and ward afore- 
faid ; and this he is ready to verify : wherefore he prays allowance 
of all the profit and produce of the faid goods and merchandizes, 
and that he may be wholly difcharged thereof. 

G. 'Nares. 

And hereupon the faid 7. G. prays leave to iraparle tathe faid 
pica of the faid 7. S, until the morrow of All Souts^ and then to 
reply to the faid plea of the faid 7. S. and it is granted to him, 
C^c. The fame day is given to the faid 7. S, here, &c. At 

which 



Demurrer to 
the pica be- 
fore auditors, 
after impar. 
lance, until 
the morrow 
of All Souls, 
anno 10 Ceo, 
3. 



Easteu Tbbu 1 Geo. III. a 7 70. 93 

vhich day comes ,bere as well the faid T. G. by his attorney 
aforefaid, as the faid T. 5. in his proper perfon ; and the faid 
auditors afligned by the £add court of our faid lord the King of the 
bench before hb juftices aforefaid, to take the account a^refaid» 
(to wit) the fsLii IV. M. Efq. A. D. Efq. and J. F. Efq. then 
and there alfo come. And the (aid T. G. faith, that the afore- 
faid plea of the faid Tl S, by him above pleaded in his difcharge 
of the profit and produce of the faid goods and merchandizesi 
and the matters therein contained, are not fufiicient in law to dif- 
charge him the faid T. S. of the profit and produce thereof ; to 
which faid plea, in the manner the fame is above pleaded^ and 
the matters therein contained, he the faid 71 G. is not under any 
neceflity, or obliged by the law of the land, to anfwer; and this 
the faid T,G. is ready to verify: wlierefore, for want of a fuf- 
ficient plea in this oehalf, he the faid 71 G, piays judgment, 
and that the faid 7. J». may not be difcharged of the profit and 
produce of the faid goods and merchandizes, &c, 

'W. Davy. 

And the faid 7. S. faith, that the aforefaid plea by. him Joindeitin 
above pleaded, in difcharge of the profit and produce of the faid demurrer. 
goods and merchandizes, and the matters therein contained, 
are fufficient in law to difcharge him the faid 7. S. of the 
profit and produce thereof; which faid plea, and the matter 
therein, the faid 7. S. is ready to verify ind prove, in fuch 
manner and form as (hall be awarded in this behalf ; and bccaufe 
the faid 71 G. doe^ not anfwer the faid plea, nor has hitherto 
in any wife denied it, the faid 7. S. as before, prays judgment 
and tnat be the faid 7. S. may have allowance of all the pro-, 
fit and produce of the faid goods and merchandizes, and that 
he may be wholly difcharged thereof, £?c. 

C. Nares. 

And becaufe the judices here will advife themfelves, of and Cunaa^l" 
upon the jpremifcs, whereof the faid parties have put themfelves /^'.*«J'» 
upon judgment of the court, before they give judgment, ^oOeJt. 
thereupon day is given to the parties aforefaid here, until in eight 
days of Saint Hilary, to hear their judgment thereupon ; for 
that the faid juftices here are not yet adviied thereof, &r. 

At which day, before the juftices here, come as well the 
faid 7. G. by his attorney aforefaid, as the laid 7. 5. by his at- 
torney aforefaid: but becaufe the juftices here will advife them- Tbel!ke»n* 
felves of and upon the premifes, day is given to the parties ^^ Rafter lo 
aforefaid. here, until from the day of Ea/Ur in fifteen days, ** ^' 
to hear their judgment thereupon ; for that the faid Juftices 
are not yet adviied thereof, 0c. At which day, before the 
juftices here, come as well the faid T. C by his attorney afore- The like ua- 
fiud, as the faid 7. S# bv his aitornev aforefaid ; but becaufe the ^ Trinity 

juftices '^Q~- 3. 



94 ' EAnsR Tfiftu 10 Oso. lit. i77d. 

juftices here will advife themfdves, of and tipon the premifeSt 
day is ^v^en to the parties aferefakl here, until on the morraw 
' of the Holy Trimly^ to hear their judgment tfaereupovi, for that 
the faid juftkes here are not yet advif^ thereof, &r. At which 
day before the Jaftices here come as well the f^id T. C by his 
attorney aforelaid, as the laid 71 S. by his attorney al'orefaid ; 
whereupon all and fingular die premifes being feen, and by the 
jufttces here fully underflood, and maiure deliberation bring 
the^pon had, it feemeth to thejuftices nowhere, that the 
plea Ot the fidd 71 S. by fahn above pleaded in his difchargeof 
the profit and produce of the faid goods and merchandizes, and 
the matters therein contained, are not fufiicient in law, to dif* 
charge hxm the faid 7. iS. of the profit and produce thereof; 
joagment therefore it is confidered, that the nid 71 G-. do recover againft 
irgned %i ihe laid T, S. the aforelaid twelve thoufand pounds for the value 
June i77o» ^^f the^oods and merchandizes aforefaid, and alfo two hundred 
and feventy -eight pounds feven ihillings and nine pence for hi& 
damages, as well by reafon of the inter-pleading aforefaid, as for 
his cofts and charses by the faid 7. G. in and about his fuit in 
• that behalf expended, to the faid 7. G. by the court here ad- 

judged with his aflent, and that the faid 7. S. be in mercy, &c. 
Sadiftakni Afterwards, (to wit) on the eighteenth day of SepUmber^ in the 
i!j"7'' eleventh year of the reign of our Sovereign Lord George the 
^^ * Third, now King of GruU Britain^ &c. came the faid Tnomas 

Godfrty by Henry Barnes his attorney, xonAituted by fpeciaS 
warrant to him in that behalf dire£^ed, before Sir Henry Gould 
Knight, one of his Majefty's juftices of the bench at his cham- 
bers, fituate in Serjeants Inn^ Oiancery Lane^ and acknowledged 
that he is fatisfied of the faid twelve thoufand pounds, and of 
the damages aforefaid ; therefore, let the faid Tnornas Saunders 
of the fame be acquitted, &c* 

Henry Gould, 



Godfrey verjus Saunders. C. B. 

[Intivtaion ^T^HE plaint! ff(C<7</^<ry, being a merchant in London^ zxA^^i- 
of iccount X fefledof a confiderable quantity of coral beads, in January 
IV^^Im }75i* fliypped the lame on board the veffels employed by the 
before aodi- Mji India Company, to be exported end carried therein from 
*®*«» «>"^»nr England to Jtori Saint George in the Eiifi Indies; by the nfage 
tee^ ^hiZd ^ cufiom of the trade, and the rules and orders of that eom* 
to dieaaion, pany fiill m force, every perfon exporting coral beads from 
f°** d^kj 2«^/a«i to Fort Saint George is obliged to make Ac returns for 
d°at dTcrer ^^ ^'^^^ ^^ diamonds, and to confign the lame to the ffovernor. 
fore/ when a of thai JEort ioT the time being, and to any other pWfoa &cli 
itrchdaot^ 1 exporter 



£a$tbr Ter&c 10 Geo. in. 1770* gS 

exporter fiiall think fit to intruft or employ on his own behalf, charsed as 
The dcEendant Sawndtrs^ \n January 1754, l*cing ffovemor, the ^yg^V^^" 
plaintiff configned his coral bead$ to Saunders^ ana one Solomon l^^J^^ 
Salomons, to be by them received and difpofed of, for the mod him and hit 
advan^ge of the plaintiff, at Fort Saint George^ and to fend to ^o-baitiff; 9 
him the accounl of the fales, and to make him returns in ^ixS^Md^* 
diamonds moA proper tor the markets at London ; in SeftewJf€r render an ac* 
1754, the coral beads wctc received by Saunders and Salomons : «»ot, soei to 
and between Oaobcr 1754, and 13th January 175 r. fold and J^nihe! 
difpofed of 'by them in xhtEafl Indies, for about €)s6ol. t2s, yd. therupon his 

deUTering 

On the 14th of January 1755, the defendant Saunders ceafed ^XimI^^ 
to be governor of fort Saint George, and then failed from thence ceafed bailiff; 
to England, where he airrived fome months afterwards, leaving Ae defend. 
Simons in India, who is fincedead; neither Saunders or Salo^ Ul^^^^^ 
mons having accounted witlt, or made any returns to the plaintiff thereof 
for the coral beads, he exhibited a bill in <^hancery againft ceafed» which 
Sojunders, for an account, which hath been fruitlefsly depending f^'xnl ^m 
tfure, for moce than twelve years. be cannot ir 

termda plead befiue audiron that he delivered the goodt to hit co-batlifT with the plaiotiff*a confentt 
Iw this might have been gjven in evifience on the iHus ; and the coofeqnence of putting it in iflfue 
afaia before auditors would be either two vcrdida the fame way and thus nugatory ^ or contradi^ory» 
which would entangle the court.] 

At length, in Trinity term 1768, the plaintiff Godfrey brought 
a writ of acc^un/, in this (fourt againft the defendant Saunders, 
tp- render to the plaintiff a .rcafonable account of the time in 
which the defendant and one Solomon Salomons, now deceafed, 
were the bailiffs of the plaintiff; whereupon the plaintiff de- Declaratloa 
clared, that the defendant and 5, 5. from the firft day of June («»>"dged.) 
1754s until: the firll day of May 1755, were the bailiflSf of the 
plaintiff at London, and during that time had the care and 
adminiUiration of divers goods of the plaintiff, that is to fay, 
liwelve ohefts of coral beads, containing, (to wit) 3000 pounds 
weifht, {to wit) of the value of 12,000/. to be merchandized and 
made pmfit of for the plaintiff, when they T,S% and 5. S. ihotild 
he thereto required.; yet T. S. and 5. 5. in the life-time of S. S. 
or T. 5. finc.e the death of S, S. have not, nor hath either of 
them reuidered an account of. the fame to the plaintiff, hut both 
of them have refufed, and the defendant Saunders ftill doth re« 
fufe fo tQ do^ to the plaintiff's damage of 12,000/. 

The defcaidant ple^ddd three pleas in bar to. the.a£lion. 

Firft plea-^-That,5.5, in the declaration mentioned, was the '^^-P*"*^!*** 
fole bailiff of the. plaintiff for the time mentioned, and. had the ^^^*" ^"^^^ 
care and adminiftration of the coral heads to be made profit of 
for him« and to render him account of the fame at Londoni 
tvithout this^, that* defendant, and^ S. S. were biuliffs of the Tnveffe. 

plaintiff. 



§6 EiisTER Teem 10 Geo. III. 1770. 

praintiff, and had the care and adminifiration of the corat 
beads to be made profit of for him, and to reader him account 
of the fame. 

ftdPiea, the Second' plea — ^That there was not any open or current 

ftatute of li- account between the plaintiff and defenoant, and S* S, in the 

miauoDs. life-time of 5. S. or between the plaintiff and the defendant Tl S* 

fince th^ death of S, 5. at any txrae within fix years next be- 

fore the fuing forth of the original writ oi the plaintiff. 

3d Pica. Third plea — That before, and during part of the time in 

the declaration, viz, from the firfl of June ^75^* "^'^^ '^^ ^4*^ 
January 1755, the defendant was governor of Fori Saint George; 
and that S. S. during all that time, and before and after, was a 
faftor there, and a correfpondent of the plaintiff, well fkilled 
in buying and felling coral beads, and in the knowledge and pur- 
chafing of diamonds ; and that according to the ufage and cullom 
of the trade of the Eaft India Company, and by the rules and 
orders thereof, which ftill are in force, eveiy perfon exporting . 
coral beads from England to Fort Saint George^ is obliged to make 
returns for the fame in diamonds, and to confign the coral beads . 
to the governor oi that Fort for the time being, and to any other, 
perfon fuch exporter fhall think fit; that the plaintiff, before the 
iftof June 1754, viz* on the ifl of January 1754, fhipped the 
coral beads on board the (hips of the company, to be exported 
from England to Fort Saint George^ ^nd conngned the fame to 
the governor thereof, and to S, S. to be by them received and 
dlfpofcd of to the moft advantage of the plaintiflF, and to fend 
the account of the fales to him, and to make him returns in 
diamonds ; which coral beads afterwards, xnz, the firft of Septem- 
ber 1754, at the fort were received by S, S, and the defendant as 
governor, and were then and there delivered to the cuftody, 
care and management of 5. 5. by the defendant to be fold and 
difpofedof by S. S, for the moft advantage 6f the plaintiflF: 
and the defendant further fays, that the greater part of the coral 
beads, whilft he was governor, in OSioier 1754, were fold by 
S. S. in the Eaft Indies, and that the money arifing from the 
fales was paid to him, and by him wholly received to be in- 
veiled by him in diamonds tor the plaintiff; and all the refiduc 
of the coral beads afterwards, xnz. on the 13th of January tysSi 
was alfo fold by S. S. to folid buyers, and three months credit 
given to them ; and the defendant in faft fays, that he did not 
intermeddle with S. S. in the fales, but left, the fame jn- 
tirely to him, and that he. the defendant never received any 
part of the monies or produce arifing from the fales ; that he 
never received, nor was indtled to receive any part of the com- 
miffion which S. S. was intitled to receive, according to the 
ufage of the trade ; and the defendant fays, that while he was 
3 governor 



Easter Teem 10 Geo- III. 17,70. 97 

governor, viz. on the 14th of January 1755, 5. S. fent to the 
plaintiff a juil account of all the fales oi the coral beads, and 
of the produce then arifen and to arife from fuch fales ; and that 
the defendant on the fame 14th of January 1755 ceafed to be 
governor of the Fort^ and was fucceeded by George Pigott Efq. 
and then and there left in the hands of 5. S. the whole money 
received by him, and all the fecurities for money to be re- 
ceived from the fales, to make returns to the plaintiff in 
diamonds; and that he the defendant on the fame day failed 
from the Fort; and returned to England: and that while he was 
governor, he never intermeddled in the fales in any other man- 
ner than as an official temporary affignee, or faftor, or governor; 
and that he never afterwards at all interfered with the fales 
or produce of the faid goods, and that when he left the Fort^ 
S. S, was in the firft repute as a faftor, both in fortune, fkill, 
care and integrity; that the defendant on the s^th of June 
1755 arrived in England, and on the 30th oi June, and on divers 
other days, had * interviews with plaintiff, and converfations 
about the premifes, at which, or at any time before the ift 
of Septeruber, and before the news arrived of the failure of 5. 5. 
the plaintiff never intimated a difapprobation of the conduft of 
the defendant, with refpeft to the leaving the whole manage- 
ipent of the confignment to S. 5. or coniidered the defendant 
as anfwerable for the returns thereof; and that the firft news 
of the failure of 5. 5. arrived here after the faid interviews of 
the plaintiff and defendant, viz. the 9th of September 1755, 
and not before ; and defendant never before heard of the failure 
of 5. S. and this he is ready to verify, &c. 

The plaintiff replied to the firfl plea, ^That the defendant Rfplication 

and 5. 5« were bailiffs of the plaintiff, and had the care and to the firft 
adminiftration of the coral beads, to be made profit of for him, ^ *** 
and to render him account of the fame ; and thereupon iffue was ift ifTue. 
joined. 

The plaintiff replied to the fecond plea, - That he, the Replication 
plaintiff, during the time in the declaration, and before, was and ^^^ ^^^^ 
ftill is a merchant, and that the defendant and 5» S, were his ^"* 
fa£lors during that time, and had the care of the goods, to ren- 
der an account, and that the account concerneth trade and mer- 
chandize which was never adjuftcd or fettled between the 
plaintiff and defendant and 5. S. and this he is ready to 
verify, &c. 

The plaintiff replied to the third plea (inter alia JThdX the con- Reojication 
fignment was made to, and accepted by the defendant and 5. 5. as ^^^^^^'^^ 
joint faftors, and upon their joint credit; and avers, that the ma^ parcel of the 

Vol. III. ♦ H nagemcnt p>9iu 



98 Easteb Tmm 10 Qfio, m, 17 TO. 

nagment of the confignment was kfiandinirujlti by the (jkfendani 
to%. S. by agreement between them^ as joint jaBors^ without the 
dire3ion, fon/ent, privity or knowledge of the plaintiff ; and this 
he 15 ready to verily, £?c. 

^doD M to There i§ the liHe replication tq the third plea, as to the re- 
the refidae. fidue of the goods in the declaration. 

therepUca^ The defendant rejoined to the replication to the fecond plea, 

tiontothe ie- that the account doth not concern trade and merchandize ; 

*T?ff ^*** and thereupon the fecond iffue is joined. 

Rejoinder to The defendant rejoined to tlic replication to the third plea, as 

the replica- jq parcel of the goods, drotefiing^ (among other protellations) 

t^^plea M '^^^^ ^'^^ management oftne confignment was left by the defendant 

to parcel. S. S . m purfuance oftne intent and meaning of the plaintiffs and of 

the [aid confignment ^ and according to the trufi by the plaintiff re- 

fofed in S. S. and not by agreement between the defendant and S. S. 

for rejoinder fays, That upon delivery over of the goods to S. S, 

all concern whatfoever of the defendant ^ as to^ of and in the care^ 

trujl and management of the faid goods, ceafed and was at an 

end, 

TheUkcre. There is the like rejoinder to the replication to the third 
thc"refiduc!° plea, as to the refidue of the goods in the declaration. 

Sor.rejoinder The plaintiff fur-rcjoined to the rejoinder of the defendant 
"*op*JJ«lo^ to the replication to the third plea, as to parcel of the goods 
**^ " in the declaration, That upon delivery over of the goods to S. S. 
all concern of the defendant as to^ of and in the care^ trtifi and 
management of the faid goods ^ did not cea/e, nor was at an end^ 
jdlfliie. in manner and form as the defendant hath alledgedj and there- 
upon iffue is joined. 

'^ndlL^'M^o There is the like fur-rejoinder as to the refidue of the goods 
the refidue of in the declaration, and the like iflue joined thereupon. 

tlbe goods. 

4th Iffue. Upon the trial of this caufc^ the jury found for the plaintiff, 

upon all the four iffues ; indeed the fecond iffue upon the ftatutc 
ot limitations, was given up by the defendant's counfel, and 
the two laft iffues are, in eflfeft, one and the fame ; fo that it 
may be properly faid there were only two material iffues, and 

Verdia. both found for the plaintiff. Upon the firft iffue, they found 
that the defendants, Saunders and Salomons, were the baibffs of the 
ptoMi^ff-* oni had the care and adminijiration of the goods and 
inerciandizes of the plaintiff, in the declaration mentioned, to be 
merchandized and made profit of for him, and to rendef aceouni 
when they fhould be thereto required. And upon the laft iffue 

they 



Eastejr Term ip Geo. III. 17/0. 99 

they found, that all concern of the defendant as to^ of and in the care 
truft or management of thefaid goods and merchandizes^ or the pro- 
ducethereqf or the returns thereof to bemadein diamonds to the plain - 
6ff^ did not drop^ ceafe^ nor was at an end^ as the defendant in plead- 
ing hath alledged: t. e. when defendant ceafed to be governor of 
Fort Saint Georse^ and pleads he then delivered over to Salomon 
all the goods, fire. Whereupon, in ASchaelmas term, 9 Geo. 3. Judg-ncnt 
the court gave judgment, that the defendant Saunders account T^^^^p^^f^f- 
with the plaintiff, of the time aforefaid, in which he and Salo- 
mons were the bailiffs of the plaintiff, and had the care and ad- 
miniftration of the faid gooas and merchandizes, 0c. to be 
merchandized and made profit for the plaintiff; and the defend, 
ant in mercy, becaufe he hath not before accounted. 

In Hdary term, 9 Geo. 3. the three prothonotaries of the Aaditon 
court were afligned auditors, to 'take and declare the account •^'^s***^' 
between the plaintiff and defendant, who not having affigned 
any 4ay to take the account and one of the prothonotaries 
having rcfigncd his office ; 

In Eafler term, 9 Geo, 3, the then three prothonotaries of 
the court, William Mainzvanng, Efq. Anthony Dickins^ Efq. and 
yohn Floyef^ Efq. were affigned auditors, to take and declare ' 
the account between the plaintiff and defendant, who affigned 
the ninth, tenth and twelfth of June^ in Trinity term, in the 
Qth year of Geo. 3. at the Serjeant's Room, near this' court in 
Wefiminfler-hall^ to take the account between the plaintiff and 
defendant. 

At which 12th day of June^ the defendant Saunders comes Plea before 
before the auditors; and as to the goods and merchandizes aj*^*':*"*" 
whereof he is adjudged to. render account to the plaintiff, for oCeo^s!'"* 
the time in which he the defendant and Salomons were bailiffs 
of the plaintiff, he, the defendant, prays an allowance of all the 

Erofit and produce of the faid goods and merchandizes, and fays, 
e ought to be difcharged thereof; becaufe he faj's, that before, 
and during part of the time in which he, and Salomons, had 
been bailiffs of the plaintiff, the defendant was governor of 
Fort Saint George, and that Salomons during all that time was a 
merchant, faftor, a correfpondent of the plaintiff, and well 
/killed in the trade; and further fays, that according to the 
ufagc and cultom of the tradq, and the rules and orders of tjie 
Eafl India Company, ftill in force and obferved by them, every 
perfon exporting coral beads to Fort Saint George, ought to make 
the returns in diamonds, and to confign the coral beads to the 
governor of the Fort, and to any other perfon the exporter fliall 
think fit; and that plaintiff exported 2311 pounds, 10 ounces, 

H s 13 penny w ' 



100 



Mich. 10 
Geo. 3. 
Demurrer 
to the plea 
before au« 
ditorsa 



Hilary term» 
10 Ceo. 3. 
ift Argu- 
ment* 



Easter Term 10 Geo. III. 1770. 

13 pennyweights, and 18 grains of coral beads, and configned 
the fame to defendant and Salomons ^ which were received by 
them both, and that on the 15th of Odober 1754, they fold 
part thereof for 538^5/. 4^. and three farthings, and on the 13th 
January 175,5, they fold the refidue for 4175/. 8 J. 6d, farthing, 
and that Salomons fent an account thereof to the plaintiff, and 
that the defendant on the J4th January 1755, quitted the Ea/l 
Indies t and all his concerns there, and returned to England^ 
where he hath ever fince refided ; and that when he left the Eaft 
Indies, he, with the con fent of the plaintiff^, delivered over to %?l' 
lomons, the whole money and produce then received and all the 
fecuri ties for the further produce to he received, for tliefaid coral 
beads y to make returns thereof in diamonds to the plaintiff ; and 
this the defendant is ready to verify ; wherefore lie prays allow- 
ance of^ all the profit and produce of the faid goods and mer- 
chandizes, and that he may be wholly difcharged thereof. 

The plaintiff imparls until Afcc/zat'/wwj term, 10 Geo, 3. and 
then demurs to the plea before the auditors, and the defendant 
joins in demurrer ; which was argued twice at the bar, viz. in 
Hilary tcinit 10 Geo, 3, by Serjeant Jephfan for the plaintiff, 
and Serjeant Leigh for the defendant ; and in this prefent Eajler 
term, by Serjeant Burland for the plaintiff, and Serjeant Glynn 
for the; defendant. 

Serjeant Jephfon for the plaintiff The whole fubftance of 

this plea before the auditors is, that while the defendant Saun- 
ders was joint bailiff with Salomons, and when he quitted India, 
he, with the confent of the plaintiff, delivered over to Salomons 
all the effefts, and therefore prays an allowance thereof before 
the auditors ; this plea doth not materially differ from the third 
plea in bar to the aSion, wherein the defendant hath alledged, 
that when he ceafed to be governor of Fort Saint George, and 
quitted India, he left in the hands oi Salomons the whole money 
and produce of the goods and merchandizes to be by him re- 
turned in diamonds to the plaintiff; the only difference is, that 
in this plea before the auditors, it is' alledged that the effefts 
were delivered over by the defendant to Salomons, and left in his 
hands xcilh the confent pf the plaintiff ; which words are not ma- 
terial, for by making them jomt bailiffs^ the plaintiff gave fucli 
confent originally. 

I ^cannot find any fuch plea as this in the books, which is an 
argument that the like was never pleaded ; indeed if the delivery 
of the effefts over had been by the command of the plaintiff, to a 
ftranger, it would have been a good plea in dii'charge of the 
account before the a4ditors; but it is pleaded to be with the 

plaintiff's 



Easter ITerm 10 Geo. III. 1770. 101 

plaiittiflf's confent^ and not by his command; and if confcnt be 
evidence of a command, it ought to have been pleaded by com- 
mandf according to the operation of the law. 

There are other objeAions which appear to the court upon 
the face of this record: the declaration charges, that the defend- 
ant and Salomons were joint bailiffs of the plaintiff, from the 
firft day of June 1754, until the firft day of May 1755. The 
defendant, by his firit plea in bar, allcdges that Salomons was 
the fole bailiff of the plaintiff; and traverfes, that defendant and 
Salomons were his joint bailiffs; whereon iffue is taken, and 
found for the plaintiff, that they were his joint bailiffs, to ren- 
der account to the plaintiff, as he hath in pleading alledgcd ; 
that is, for the time they were his bailiffs, from the firft of 
Jfune 1754, until the firft of May 1755; whereupon judgment 
is given and recorded, that the defendant Saunders account 
with the plaintiff of /A« time aforejaid, in which he and Salomons 
were the bailiffs of the plaintiff. But the prefent plea before the 
auditors denies and contradids the finding of the jury, and the 
judgment to account for the time aforefaid ; for the defendant 
thereby infifts, that on the 14th of January 1755, when he 
ceafed to be governor of Fort Saint George, and quitted India^ 
he quitted all his concerns there, and that he was difcharged : 
the jury have alfo found, upon the laftiifue, that all concern of 
the detendant Saunders, in the care, truft, and management of 
the goods for the plaintiff, did not ceafe when he quitted India^ 
and ceafed to be governor of Fort Saint George, therefore he is 
accountable to the plaintiff for the whole time in the declaration^ 
according to the verdift of the jury and the judgment of the 
court; and was not difcharged on the 14th of January 1755, as 
he infifts in the prefent plea before the auditors, which is tliere* 
fore ill. 

The time is rnaterial ; for when the plaintiff charges the de* 
fendant as receiver from fuch a time to fuch a time, he muft 
anfwer that time pfecifely. Sir Tho. Raym. 57. This is in point, 
to (hew this plea before auditors is bad ; befides, this matter 
fliould have been pleaded in bar as to part of the time in the 
declarzaion, and that he was difcharged as to the reft of the time 
therein mentioned, by confent of the plaintiff, when h& left the 
£q/l Indies. 

JVilmot Chief Juftice— It is a firft principle, that if a matter 
can be pleaded in bar to an a£lion of account, it cannot be 
pleaded before auditors ; might the defendant not have pleaded 
in bar, that he was bailiff from the firft of June 1754, until the 
14th oi January 1755, part of the time in the declaration; and 

H 3 travcrfcd. 



102 Easter Term 10 Geo. IIL 1770. 

traverfed, that he was bailiff at any time after the i^^th of ji- 
nuary 1755? It is alleJg^d ami averred by the plainuff, in the 
replication to the third plea in bar, that the management of the 
conjignment was left and intrufied by the defendant Saunters, by 
agreement between them as cojaaors^ without the diredion^ con/ent, 
privity or knowledge of the plaintiff; this ftrikes me as the very 
point of the cafe, and ought, 1 thinki to have been anfwered 
m the rejoinder ; but inftead of anfwering it, the defendant takes 
it hy proteftatioHy in this manner; viz, *' that the management 
•* of the faid confignment was left and intrufted by the defendant 
•* to Salomons^ in purfuance of the intent and meaning of the plain- 
" tiff, and of his confignment aforefaid, and according to the 
•• trull by him for that purpofe repofed in the {aid Salomons^ and 
•• not by agreement between the defendant and Salomons as 
•* joint laftors, as the plaintiff in his replication hath in that 
'* behalf above fuppofed and alledged." Now this being, in my 
mind, the moft material point in the cafe, it feems to me (but 
I give no opinion) that it cannot be taken by proteftation. 

Serjeant Jephfon — ^The rejoinder protefls againft every faft 
alledged in the replication to the third plea; and if the court 
thinks the protefbtion mentioned by your lord(hip to be bad, 
there is an end of the matter, and it is not neceflary for me to 
fay any thing more. 

Serjeant Leigh for the defendant — ^The defendant in his plea 
before the auditors, avers, that when he left theJEa// Indies^ he, 
with the confent of the plaintiff ^ delivered over to Salomons the 
whole money and produce then received, and all the fecurities, 
for the further produce to be received for the coral beads to 
make returns thereof in diamonds. 

The queflion is, whether this be a good plea before the au- 
ditors ; I contend that it is, and could not have been pleaded ia 
bar, notwithflanding there are fome fafts mentioned in it, the very 
fame that are alledged in the third plea in bar; the defendant 
could not plead in bar, that he, by confent of the plaintiflF, de- 
livered the effc£ls over to Salomons, becaufe the defendant was 
certainly the plaintiff's bailiff, and mud account to him; and it 
is therefore proper matter to be pleaded before the auditors. 
1 RoL Abr. 121, 122, 126. Bro, Account, pi. 31. If a man 
was once accountable to the plaintiff, and he delivers over to 
another by order of the plaintiff, .it is no plea in bar to the ac- 
count, but it is a good plea in difcharge of the account before 
auditors. Bro. Account, 43. See StyL ^30. As to delivery over 
bv confent, the opinion o\ Roll, Chief Juftice, that it is a good 
plea before the auditors. 

The 



Faster TsBk it) Gfio^ IH. 1770, 103 

The defendant, by the prefent plea, admits he was the plain- 
tiflp's bailifi*, and To the verdi£l and judgment fay ; if a delivery 
over to a ftranger by confent be a good plea before the auditors, 
furely the like delivery by confent to a co-fador, is a good plea 
before them ; it is a fair plea, the plaintiff may take iuue upon 
it, and if we cannot prove it, he muft fuccced. 

It is objefled, that it is found by the jury, that the defendant . 
was bailiff from the firft of June 1754, until May 1755 ; where* 
as he now pleads, that he was only bailiff till the \/^\oi Janu- 
ary 1755 : I anfwer that this goes upon the idea that the de- 
fendant ^was bailiff for the whole time in the declaration ; and 
fuppofinff it true, as it certainly is, the jury having found it true, 
yet by this plea the defendant accounts, or xlifcharges himfelf of 
the account, for the whole Ume ; by delivering over the cffefts 
to bis co-faflor^ by the exprefs confent of the plaintiff. 

It is obieQed, the defendant ought to have pleaded in bar as 
to part ot the time, and that be was difcharged as to the reft of 
the time, when he left the Eafi Indies; I admit this to be fo, if 
the defendant was now pleading in bar, but this plea is before 
auditors. 

Jephfon Serjeant, in reply — If the defendant receives money 
of the plaintiff to deliver over to a third perfon, it is a good 
plea in bar to the aftion, to alledge, that he did deliver it over 
accordingly, for he never was receiver as bailiff; fo in the pre- 
fenl cafe, if the defendant did receive the goods to be delivered 
over to Salomons ^ by the plaintiff's order ^ confent or command^ , 
the defendant ought to have pleaded that matter in bar. 

C/tW Juftice — Have you any cafe, brother ^/^«, as to a 
co-faftor ? 

Jephfon Serjeant — Every bailiff, in point of law, iraniwerable 
for his co-baihff^ and my orother Ltigh admits, that the defend- 
ant Saun^i was bailiff, after January 17551 until May 1755. 
and fo he ought to account for the whole time he was bailiff. 
The defendant's plea before the auditors is, that he ought to 
have an allowance for all the produce of the effefts whatfoever, 
but if he is dill our fa3or and bailiff, he ought to account to the 
plaintiff for himfelf and the other \i2iX)S (Salomons) alfo. 

Wilmot Chief Juftice — But I pray you, brother, is not a re- 
leafe a plea in bar to the aftion ? and aoes it not admit that the 
defendant was once accountable ? 

H 4 J^pkfon 



104 ^AStEH Term xo Geo. III. 1770. 

7ephfon Serjeant — By the relcafe, the plaintiff releafcs the 
defendant from all a£lions, why then Ihould he have judgment 
againil him to account ? 

Where one is charged in account, as bailifT for a certain time^ 
the time laid in the count is material ; and the right way of 

fileading it, is, to alledge " for a long time;" that is to fay ^ trom 
iich a time until fuch a time ; and it is material, although it is 
under a videlicet. Raft, Entr. 

The defendant in an account need not plead at all to the a£lion« 
but may come into the court and fay to the judges here, " I ani 
" wilhng to account with the plaintiff, and pray that auditors 
" may be affigned to take and declare the account between me 
" and the plaintiff." 

In the prefent cafe (as I faid before) "the defendant ought to 
have pleaded in bar, that he, from Jfune t, 17549 until 14th 
January 1755, was bailiff, and ready to account during /Aa^ time,- 
and to nave avaTcd, that after that time he was not bailiff. 

Wilmot Chief Juftlce — Let this caufe fland over for further 
argument. I would have this proteftation in the rejoinder to 
the replication to the third plea, [which I have before obferved 
upon] well confidcrcd upon the next argument; for, as at pre- 
fent advifed, I think it is a bad one, even if it had met the 
replication in the very words thereof, which it doth not ; it 
Hides over a fafl:, which to me feems very material ; however, 
I give no opinion, but have fome doubt. 

If it had been pleaded in bar, that the plaintiff did confent 
that one faftor Ihould have the care and management of the 
whole, at, and from fuch a time, and from that time the other 
faftor ihould be difcharged, I think it would have been a good 
plea in bar to the aftion, for the fadlor fo difcharged, by confent 
of the plaintiff; and am clear, -if it could be pleaded in bar, it 
cannot be pleaded before auditors. 

We mufl; take the. whole record into confideration ; and al- 
though there was no evidence of any confent given at the trial, I 
will not let that affeft my mind. 

As to the time laid in the declaration, from the ill oi June 
1754, until the ift ofMflfy'1755, the defendant Saunders has 
pleaded, that he and Salomons were not joint bailiffs, but ceafed 
to be joint bailiffs on the i.j^th of January 1755. The finding 
of the jury on the firft iflue is, that they were joint bailiffs 
during all the time laid in the declaration ; this feems to me to 
8 determine 



Easter Tbrm 10 Geo. III. 1770. 105 

determine the quellion. On the laft iiTue the jury have found 
that ail concern of the defendant did not drop, ceafe, nor was 
at an end when he was no longer governor, and quitted the Eaft; 
Indies: the prefent plea before the auditors di redly contradifis 
the finding of the jury ; for the jury in effe£l find there was no 
conftnt of the plaintiff for defendant to deliver over the effe£ls to 
Salomons ; the defendant ought to have given evidence of fuch 
confent (if it might have been given) at the trial, but no evi- 
dence of any l^z\!LConfcnt was given. 

Clivt Juftice — ^There is a difference between a bailiff and a * 
receiver; when the a£lion of account is againff a bailiff, who has 

Jrofit, he is accountable for the time, which he muft anfwer ; 
e may fubmit to account for part of the time, and plead as to 
the reft of the time that he was not bailiff. If we fuffer the 
prefent plea before the auditors to ftand, and iifue be taken 
thereon, and it ihould be found contrary to the former verdift, 
it would be attainting the fir (l jury. 

Bathurft Jullicc — Spoke to the like effeft of wliat Clivt Juftice 
faid. 

Gould Juftice — My Lord Chief Juftice has pointed out the 
doubts and difficulties to be fpoken to, on the next argument, 
to I Ihall fay nothing at prefent. 

Serjeant Burland for the Plaintiff Second Ai^. 

neaty Eafter 

1. The matter pleaded before the auditors is no plea. 3. 

2. If it Is a plea, it ought to have been pleaded in bar to 
the aflion. 

3. It contradiSs the verdlft of the jury, 

4. The defendant is concluded, upon the face of the re- 
cord. 

1. This is no plea at all, becaufe italledges that matter which 
is implied in the verv nature of the tranfaflion, and confignment 
of the effeSs to the defendant and Salo?nons ; for every appoint- 
ment of, or confignment to joint bailiffs, imports a confent that 
one of them may deliver over to the other, and that either of 
them may take into his poffeffion the whole, but both of them 
are (notwithftanding) anfwerable in account. 

Therefore, 



106 J^ASTEfi Term 1g Geo. til. 1770. 

Therefore, if iffue were to be taken upon delivery over ty 
confintj it wouW be immaterial; being no matter of faS to be 
tried by a jury, but a matter arifing by implication of law : and 
indeed no evidence would have been neceflary to prove fuch con^ 
Jint on the part of the defendant ; nor could the plaintiff have 
denied it ; becaufe by making them joint bailiffs he gave fuch 
€on/ent originally. 

Nothing therefore is to be concluded from this plea, tmlefs it 
IS meant to be pleaded by way of difcharge; now thai which is 
implied in the contrafl: itfelf, can never be pleaded in difcharge 
of that contraS. 

The defendant and another perfon are intruded with goods to 
merchandize, a confidence is placed in both^ they accept the 
truft jointly, and jointly confide in one another ; they are an- 
fwerablc one for ihe other; the receipt of one is the receipt of 
the other ^ ^ach of them has an authority to intermeddle with the 
whole: how then can the delivery over by the defendant Saun^ 
ders to Salomons^ though with theexprefs confent oi xhit plaintiff, 
the confignor (which content being no more than the law im- 
plies, operates nothing) difcharge the defendant Saunders from 
oeing liable to account? who has undertaken to account, as well 
for his companion's afls and receipts as his own. 

Befidcs, if there be two joint bailiffs, one cannot be difcharged 
without the oth^r, for a difcharge of one is a difcharge qf both ; 
fo is Bro, Charge^ pL 49. and a releafe to one Joint -obligor may 
be pleaded by the other. Co. Lit. 232. a. Therefore, if the 
defendant Saunders was difcharged at the time when he left the 
Eqft Indies, Salomons muft then be alfo difcharged; and it would 
be a new and extraordinary mode of difcharge, if the very receipt 
of the whole effefts by Salomons, fi'om the defendant Saunders^ 
was to operate as an exemption to both, from all obligation to 
atpcount for them. 

This differs widely from a payment or delivery to the plaintiflT 
himfelf, or to a firan^er ty his command, whicn is a good plea 
in difcharge before the auditors ; becaufe that is in reality ac- 
countinff with the plaintiff himfelf ; but where one joint bailiff 
pays or delivers over to liis colnpam'on, for whofe receipts he was 
always anfwerable, it is no accounting with the Principal, and 
therefore, of courfe, that one joint bailiff remains equally ac- 
countable as he was before. 

2. But if this confent operate at all, and be any plea, it ought 
to have been pleaded in bar to the aftion,^ it amounts to plene 

. computavit; 



Eastek Tbkm 10 Geo. III. 1770. 107 

c^mpuiauit; for the defendant by infilling that he delivered over 
all the goods, merchandizes, produce, &c, to Salomons with the 
€on/int of the plaintiff, at fuch a day he [defendant] infifts, that 
he was no longer accountable to the plaintiff, which is, in effed, 
faying, that he has accounted. 

Although a plea by a defendant in account^ admitting himfelf 
once chargeable, which goes in difcharge, is to be pleaded be- 
fore auditors, and not in bar to the a£lion, yet inai is only 
where he is charged as receiver to account; but where he is 
charged as bailiff ^ir ftW, then, by a plea of this fort, he doth 
not admit himfelf to have been ever chargeableyir the refidue of 
ihe timey after the delivery over, and therefore is a plea in bar, 
as to fo much of the time ; if therefore he had pleaded it in bar, 
and it had been found for him, he could not have been found 
bailiff to account for any part of the time after ; and where one 
omits to plead in bar, a matter which goes in bar of the account^ 
he Ihall not afterwards plead it befor^ the auditors. 1 Rol. 
Abr, 126. 

3. This plea before the auditors contradiSs the verdifl of the 
jury. Suppofe a delivery over by the defendant Saunders to his 
co-bailiff Salomons^ with the confent of Godfrey the plaintiff, 
might in Tome cafes, be a good plea, in difcharge of (he account 
before the auditors, yet it cannot be fo in any cafe where it is 
contradi£lory to the verdi3, which hath been found upon the 
plea, that was pleaded in bar to the a£lion. 

Now here, it diredly attacks and impugns the finding of the 
jury, upon both the firft and laft iffues: on the firfl, it is found 
that the defendant and Safomons were joint bailiffs, from the ift 
tA June i7/)^f until the ift of May 1755 (and here the time is 
material ; for where the defendant in account is charged with 
having been bailiff or receiver ^ from fuch d time until fuch utime^ 
he muft anfwer the time precijily. Southcot verfus Rider. T. 
Raym. 57.} but now the defendant Saunders claims to be dif- 
charged from accounting, from the time he ceafed to be gover- 
nor of Fort SAint George in the Eqfi Indies ^ which he alledges 
was in January 1755 ; fo that although the jury have found him 
to be bailiff, and liable to account until May 17^5, he now 
fays, and inlifts, he ought not to account for any longer or fur* 
ther time than until the 14th of January preceding. 

This plea before the auditors (if poffible) is more direftly con- 
trary to the finding of the jury on the laft iffue ; for the defen- 
dant, in his rejoinder to the replication to the third plea in bar, 
alledges, that on delivering over of the goods to Salomons^ &c. 

all 



108 Easter Term 10 Geo. IIL 1770. 

all his (the defendant's) concern in the truft ceafed and wa5 n€ 
an end ; tills is denied by the plaintifF in his fur-rejoinder ; and 
the jury have found, that on fuch delivering over to Salomons by 
the defendant Saunders^ all his concerns in the truft did not ceafe 
nor was at an end : and now, in his plea before the auditors, he 
prays to be difcharged from the time of fo delivering over the 
goods. Why ? becaufe (as he fays) by delivering them over 
with the confent of the plaintlflF, all his (the defendant's) con- 
cern did at that time, ceafc and was at an end. The only dif^ 
ference in the two pleas is, that b^ the plea in bar he infifls, 
that by the bare delivery over, all his concern in the truft ceafed; 
and by his plea in difcharge before the auditors, he infifts, that 
by the delivery over with the confent of the plaintiff , all his con- 
cern in the truft ceafed : but the jury have found, that his con-^ 
cemin the truft did not then ceafe ; fo that if an iffue was to be 

. joined upon this confent, either the fame, or a cbntradiftory ver- 
dift, muft be the confequcncc ; i, e. the jury muft find, that his 
concern in the truft did or did not ceafe, on the delivery over of 
the goods to Salomons : but fuch an iffue, which will endanger 
a contrary verdift if found one way, and will be nugatory (by 

.being the fame)* if found the other way, 'will not be endured by 
the court. 

If the plaintiff's confent was material in the deliver}' over, and 
upon fuch confent the defendant is intitled to be difcharged from 
accounting ; it would have been proper evidence to have been 
given upon the trial of the former iffue, and if fuch conj'ent had 
been proved, it would have proved the iffue for him ; i.e, that 
the defendant's concern in the truft ceafed upon the delivery over; 
but the verdi£l having found it did Jiot then ceafe, it hath found 
there was no fuch confent, 

* 

This is like the cafe of Hughes verfus DrinAwater, Hutt. 133. 
which was an a£lion of account by Hughes againft Drinkwater, 
for receipt of 18/- by the hands of one William Appowell^ to the 
ufe of the plaintiff; the defendant pleaded, ne ungues receivor 
per manus, &c. and found for the plaintiff: and the defendant 
before the auditors pleaded, that he^ by the appointment of 
William Appowell, had paid it to one John Marjh, for the debt 
of the plaintiff ; and, upon demurrer, adjudged a bad plea, and 
againft his former iffue. 

So in the cafe of Trejham verfus Ford, Cro, Eliz. 830. ac* 
count, fuppofmg him receiver of 120/. of his monev, by the 
hands of Pavafor, to render account ; the defendant pleaded, ne 
unquesfon receivor, &c. and the jury find, that he was receiver 

of 



Easter Tebm 10 Geo. III. 1770. log 

of fuch a fum. The defendant, before the auditors, pleaded 
that he ^\'as poffcffed of divers obligations, wherein Francis Tre^ 
Jham, fon and heir of the plaintiff, was obliged unto him in 
400/. and that the faid Vavafor paid unto him this 120/. in 
fatisfa£lion of thofe bonds; and thereupon he delivered unto him 
the faid bonds to the ufe of the plaintiff, which he accepted : 
and thereupon the plaintiff demurred, and it was held by the 
whole court to be no plea; for it is contrary to the vcrdift which 
found him to be receiver to render account: and the plea 
amounts to no more, but that he was not receiver to account. • 

Here the defendant Saundtrs pleaded in bar, not to his bailiffs 
but is found to be fo for the time mentioned iit the declaration ; 
and now would plead, that at a certain period, within that time, 
lie delivered over with the plaintiff's affent. If fo, and this plea 
could avail him at all, then, after fuch delivery over, he was no 
longer his bailiff; which is contrary to the verdift, which has 
found he was bailiff for the whole time laid and mentioned in 
the declaration. 

In Lutw. 58. the plea before auditors contradi£led his owa 
admiffion in point of quantity of wheat ; here it contradi3s the 
finding of the jury in point oltime. 

4. The defendant is concluded: for an iffue was tendered to 
the defendant, upon this very matter of confent^ by the plaintiff 
in his replication; which was negle6led to be taken by thede- 
fendant, and therefore he is now concluded, notwithilanding 
the proteftation taken .in his rejoinder. 

1 • For that the proteftation is not againft the plaintiff's averment 
in his replication, which averment is, that the management of the 
confignment was left by the defendant to Salomons^ without the 
conftnt of the plaintiff; but the proteftation is, that the manage- 
ment of the confignment \f^^Jo left by the defendant to Solo- 
mons, in purfuance of the intent and meaning of the plaintiff, 
and of his faid confignment, and not by agreement between the 
defendant and Salomons, 

Now this is juft what I faid at firft, [namely] that by the 
very nature of the confignment, the plaintiff confents to either 
one or the other of them tranfa£ling the whole bufinefs ; but 
doth hot exempt either the one or the other of them from ren- 
dering an aca)unt thereof* 

2^/y, But if the proteftation did meet and extend againft the 
plaintiff's allegation and averment, that the management of the 

confignment 



lia Easter TtRM 10 Geo. IIL 1770.* 

configmnent was left by the defendant to Salomons, without the 
confent of the plaintrff; yet it would not avail the defendant to 
fave him from being concluded, by [his] not taking iffue upon that 
The cffva of allegation or averment ; for a protellation only faves the party who 
a protcfta- ^ai^^s it ffom being concluded by a matter alledged on the other 
***^* fide, on which matter the party protefting could not take iffue: but 

fuch matters as are effeaual, either iix the defendant s bar, or 
in the plaintiff's repilication, and which, if relied on, would put 
an end to the fuit, ought not to be taken by protefta^ion. Plowd. 
676. b. Finch 359, 360. And there the cafe was^ an a£lion 
oi detinue by one as executor; the defendant, proteftando that 
the plaintiff was not conftituted executor, pleads in Kar, that ad- 
miniflration of t!-c effefts of the deceafcd was committed to an- 
other perfon, who fold the goods (for which the a£kion was 
brought) to the defendant ; et hoc paratus ejl verificare : unde petit 
judiciumJiquerensaSionemfuampradiSam verjus cum habere de^ 
beat^ fi^c, here it was faid by Wal/he Serjeant £and affented to 
by the court] '* that the matter taken by the pfoteftation, viz. 
•' the making of the plaintiff executor, might have been denied 
♦' by the plea, and an iffue joined upon it ; for it is the ground of 
" the fuit, and entirely defiroys the plainhff's aBion; and fuch 
*• maiter which is the effea of the fuit of the party cannot betaken 
•* by proteftation:' 

So in the prefent cafe, if the plaintiff's confent to the delivery 
by the defendant to Salomons was material at all, the iffue ten* 
dered in the replication might have been taken by the defen- 
dant, and if found for him, would have de&royed the plaintiff's 
gftion : but the defendant avoids taking iffue upon thts^ or ^ny 
other part of the replication ; and taking this by proteftation, 
(not vjtrbatimy but feemingly) rejoins that upon the delivery 
over of the effefls to Salomons^ [without faying with or without 
plaintiff's confent'] ail his concern in the XxmSl ceafed and was at 
an end. So that this protefation is againfl the very ground and 
gijl of the replication^ which ought not to be, and cannot avail 
the party protefting. 

Another reafon why the defendant cannot have any advantage 
from his proteflation, is, bccaufc the iffue is found againfl him; 
for then it avails- not the party taking it, but only prevents a 
conclufion where the iffue is found for him, unlefs it be a mat- 
ter which cannot be pleaded, or on which iffue cannot be joined. 
IHowd, 2-^6. b. Co, Lit. 124. b. Tinck 359. As an aftion 
by a villain a^infl his lord, and the lord makes proteflation that 
he is his villain ; and pleads the other matter in bar. And if they 
be at ifll(e, and the iffue be found for the lord, then the villain 

3 « 



,£as.t£r Tbbm 10 6£o. III. 1 770. I U 

IS a villain* as he was before; but if the iflue be found for the 
villain, then the villain is free ; becaufe tliat the lord took not 
at the beginningy^r his pUa^ that the villain was his villain, but 
took this by proteilation. The lord might have pleaded that he 
vras his villain, and iffiie might have been joined thereon, lit* 
JeB. 193, Co. lit. 126. a. But where the matter cannot be 
pleaded, or iflue taken upon it, it fciall be faved by him pro- 
telling, though the iflue be found againfl him, . As, if an in. 
fant bring an a£lion againft bis guardian, and appear by attor- 
ney (which none but of full age fliould do) there if the guar- 
dian takes the nonage by proteilation 1, it (hall fave him from 
all mifchief, becaufe he cannot plead it. Finch 359. So where 
one enters into warranty, and taketh by proteilation the value of 
the land, this fliall fave him from being concluded as to the va-» 
lue, although the plea be found againfl him. Co. Lit. 126. a, 
3ut if a man makes proteilation of a thing that is material, if 
the plea be found a^nfl him, he fhall be concluded of all tliat 
is material in the recbrd. 

Now In this cafe, not only the defendant hi mfelf infills, that 
the maucr of the confent is material, but certainly an * iflue • ^«rr, 
might have been taken upon it; and therefore, the iflue he "' .".i, 
tendered in his rejoinder being found againft him, his protefta- bl^tj" Je, 
tion doth not fave him, but he is concluded from all advantage porter, 
pf fuch coTifcnt now. 

Another objeftion to this plea is, that it means to difcharge 
the defendant, and yet is accompanied with a prayer of an al- 
io wance, which feems abfurd ; for if there be any claim for 
an allowance, it muft be made by the auditors upon taking the 
account ; but if he is difcharged from accounting, no allowance 
can be made. 

Serjeant Glynn for the defendant. 

1. It is objefled, that this plea before the auditors is no 
plea, becaufe the confent is nothing more than what the law 
will prelume: the plaintiff originally gave his confent by. 
making the defendant and Salomons joint bailifis ; but this ple^ 
goes further, and infifts, that by exprefs confent of the plaintiff, 
the defendant Saunders was difcharged from accounting, the 
moment he delivered over the whole effeSs to Salomons^ fo is 
intitled to an allowance before the auditors, the confent in the 
original contra6l'or confignment to the joint fa£lors, means^ 
^ that they fhould tranfaft the afiair as they pleafed between them-, 
felvcs ; but this fubfequent confent^ given by the plaintiff to the 
^ ' ' defendant 



3 12 Eastjer Term 10 Geo. III. 1770. 

defendant Saunders, to deliver the effefls over to Salomons^ is in 
the nature of payment or accounting to the plaintiff. 

2. It is objeQed, that if this is any plea it is a plea whicb 
ought to have been pleaded in bar to the aftion : but I fubmit 
it to the court, that it is not a plea in bar; the common pleas 
in bar are, '* / never was bailiffs a releafe, or plene compuiavit ;'* 
but this is neither of thofe pleas : it, appears that Saunders the 
defendant, was once accountable, fo he could not plead in bar 
this matter; but he now accounts to the plaintiff, by delivery, 
over of the effeSs, with his exprefs a^eni to Salomons, and- 
the defendant has a legal right to have a judicial account fettled 
before the auditors ; both the plaintiff and defendant are afiors in 
account, and the defendant may have a balance due to him ; it 
is therefore a proper plea before the auditors, becaufe the defen- 
dant is, by law, to render an account. ^ 

3. It is objeSed, that this plea is contrary to the vcrdift of 
the jury ; but I fubmit it to the court, that the time men- 
tioned in the declaration is not material, it being laid under a 
videlicet/ the matters in iffue before the jury were to tr)', whe- 
ther the defendant was or was not liable to account witli the 
plaintiff, and it is determined that he was liable to account, and 
judgment has been given accordingly quod computet, and now 
he offers to account before the auditors, and prays an allowance 
for the money and effe£ls he has delivered over to Sjulomons, by 
the exprefs order and confent of the plaintiff. I cannot find any 
determination in the books decifive, touching this matter ; but 

. the opinions on this fubjeft are many, and variant ; there are 
many cafes, notes and hints« in the books which clafh wnth one 
another. If a faftor is robbed, it is a difcharge before auditors. 
Where one delivers a thing to another to account for the fame 
and afterwards byvthe order and confent of the plaintiff, he de- 
livers it over to another, it is pleadable in difcharge before the 
auditors ; and fpecial bailee for a particular purpofe may plead 
in bar, that he never was bailiff. The confent of the plaintiff 
given to the defendant, to deliver over the effects to Salomons^ 
within the time mentioned in the declaration, is the great point, 
and we have, in this plea before the auditors, tendered an iffuc 
thereupon ; but the plaintiff hath demurred. 

4. As to the proteftation, it is objefted, that if an iffue had 
been taken upon the averment in the replication, it would have 
ended the matter ; but I fubmit it to the court, it doth not con- 
tain matter fufficient to have ended the caufe. 



Burland 



EAstEH Tkam 10 Geo. III. 177a 113 

Burtand Serjeant — My brother Glyrm admits that the confcnt 
"Would be a nugatory ifiue, if it went no further than the ori« 
ginal contraQ or coniignment. After fome davs conf]deration> 
the judgment of the court was given, to the following effeft. 

Lord Chief Juftice W17^^/-— judgment o# 

tbc«oait. 

After hayinc fully ftated the declaration and pleadings, the 
Yerdia and judgment ijuod computet; the aflignment of auditors 
and the plea before them, to which the plaintiff hath now de- 
barred, the chief jullice proceeded as followeth. 

The general queftion is, wliether this is a good plea in dif« 
charge before auditors ? from whence I fliall deduce three 
queuions. 

1. Whether abftraQed from the proceedings, with refpeft to 
the laft iflue, and the verdift thereon ; this plea before the 
auditors would be good after the verdi£l on the firft iflue ? 

ft. Suppofe it would be good when fo abftrafledly confidered^ 
whether the fafts now pleaded, have not been tried on the 
third plea in bar ? ^ ' 

3. Whether they do not fland admitted oh this record ? 

It was faid by my brother Glynn^ that there are matiy cafes, 
notes and hints in the books,* which clafh with, and con* 
tradi£l one another, which is certainly true ; and the more we 
look into the books, the more difficult it feems to reconcile 
them ; but out of this chaos fome material lights may be ftruck 
out, to guide us in this cafe ; and although we cannot reconcile 
them all, yet we will draw fome rules out of the whole, which I 
will mention, 

1. The firft rule is, that whatever matter can be pleaded in 
bar to the aftion, muft be yS pleaded ; and that whatever matter 
which 'may be pleaded in bar, cannot afterwards be pleaded be- 
fore the auditors, the reafon is plain, given in Styl. !ju. and iA 
a MS. note oi HotU, which 1 have, it muft be fo pleaded, to 
uvoid trouiU and charge to the partus. 

fi. Rule. £xcept in cafe of a releafe, or pUne comptaavits if 
the party is once chargeable and accountable, he cannot plead 
in bar, but muft pleacf before auditors ; thefe exceptions arc 
becaufe a relealV, and having fuller accounted, are total ex» 
un£lions of die right of a£lion ; wluch the court is to judge 

Vol. III. I of. 



114 EastbrTerm 10 Geo. III. 1770* 

ef, and even in thofe two cafes, they miift be pleaded fpecialljr, 
and cannot be given in eviednce on ne ungues rcceivor. Brownie 

24.25-. 

3d Rule'. Nothing can be pleaded before auditors, contrary 
to wliat has been pleaded before, and which has been found by 
verdift ; becaufe it would introduce either contrary verdiSs, or 
two verdifts of the fame, which is abfurd. All the cafes where 
the pleas have been rejefted before auditors, were, becaufe they 
might have been pleaded in bar; you fliali not lie by and 
plead before auditors what you might have, l>efore, pleaded 
• in bar. 

If a defendant has paid over as a truftee, he has executed a 
truft, and then it is a bar to the aftion, he never was 
accountable. 

This being fo, if the faft in this cafe had been relevant and 
material, (which we think it is not) it would have been a good 
plea in bar; becaufe it could not be given in evidence on the 
general iffue of ne ungues bailiffs for it would contradi£l that idue, 
and bcinconfiflcnt with it. 

We are of opinion the plea is bad, and that the reafons given 
by my brothers Jephfon and Burland have received no anfwcn 

The plea is, that the defendant delivered over the effeQs to 
Salomons \i\\ki the conj'ent of the plaintiflF; the confent is nothing," 
unlefs the plaintiff had difcharged him of the account ; if the 
plaintiff had confented zmX agreed that. the defendant fhould be 
no longer chargeahlet it would have been material ; but the con^ 
Jent is nothing more than is implied in the confignment ; for 
every confignment. to two faftors jointly, imports ^ r^/i/Jn/ by 
the confi'gnor for them to truft one another, but both are an- 
fwerable and accountable for tl.c whole ; they have a right, bjr 
41 Ed. 3. 3. the contraft, to deliver over to one another. Joint faflorsare 
co-obligors, and are anfwerable for one another, for the whole ; 
and if none were anfwerablc but the faftor who imbezzlcd the 
effefts, it would be juft the Tame as if tKat one was only intruft- 
ed : perhaps the confignor has a better fecunty by configning 
his goods to joint fa61:ors, which (ecurity ought not to be lellenca 
or in?paii:ed without the moft clear intention of the confignor • 
it is to guard ?igalnft the chance of a fmgle perfon heing fii6ior» 
therefore the confent is nothinff more than tlie confignment im-, 
plies, and the whole record admits ; they afted as they thought 
proper themfelves ; and it would be very abfurd to infer that one 

of 



Easter Term 10 Geo. Itl. 1770. 115 

of them was difcharged from ^he truft, by their afling togefhct* 
in the common mode of joint fa£lors, and according to the na« 
lure of the tranfa£lion which creates the truft. 

My brother Lsigk^ to (hew that the tonfent was maCeriaU cite<l 
Kirk verfus Lucas^ Sty. 430. where it is fdid by RolU Chief Juftice, 
that payment by conftnt is a good plea before Auditors ; that is 
only a diil^m^ and the judgment was, that it was not a good plea; 
and when the cafe is (^onfld^red, it ha^ nothing to do with con* 
Jcnty or the di&um : the defendant received money of the plain^* 
tiff to deliver over, and accordindy he had delivered it over; 
but pleaded ne unques receptor^ and there was a verdift for the 
plaintiff, and judgment quod computet againft the defendant; 
"whereupon auditors being afligned, he pleads before them, in 
difcharge of the account, that he received the money of the 
plaintiff to deliver over, and that accordingly he had delivered it 
over; and the quellion wa*^, whether this plea before the auditors 
was a good plea in difchargc of the account ? and it was over« 
rulled^ and held ill, becaufe it was .a plea proper to have been 
pleaded in bar; fo the didum doth not apply to /^/ cafe ; but in 
the cafe at bar, there could be no confent by the plaintiff G(7^^^ - 
after the original conflgnment, the time would not admit of it ; 
but we lay this fa£l out of the cafe* 

2. We will confider the proceedings on the third plea* taking 
it to be a good plea in bar, that the plaintiff confented for the 
defendant to deliver over the effects to Salomons; and be this 
ever fo material, can it be pleaded after the verdi£l„ or as it 
Hands on this record ? If we (hould allow this plea, we fliould 
admit a matter to be pleaded again, which hath already been liti*^ 
gated and tried, and which would contradict the verdid of th6 
jury, and what appears on records 

The merits of the queftion have been tried upon the defen- 
dant's plea, which is, that the governor oi Fort Saint George 
muft be confignee; he fays, when I was governor there^'this 
truft attached in me as governor;* fo when! ceafe to be gover- 
nor, there was an end. of this truft, and I was no longer ac- 
countable : thefe are the defendant's merits. "Wliat fays the 
plaintiff to this? — He replies, that the management of the 
confignment was left and intrufted by the defen^nt Saunders to 
Salomons^ without the dtreflion, confcnty privity or knowledge 
of the plaintiff. — Then the defendant rejoins, that upon hi^ 
leaving the Eajl Indies^ and ceafmg to be governor of the Tort^ 
all his concern in the truft or management of the goods, &c. 
ceafed and was at an eqd. — The pljiintiff fur-rejoins, and takes 
liTue upon that fa£^,. which is found againft the defendant. — If 

z a the 



na EastkrTebm 10 Gtx). in. 1770. 

the defeifduit had ^iven this matter in evidence upon that itfuet 
viz. that the plaintiff had a3ually difchargal him from the truft 
when he ceafed to be governor, this evi&nce mud have been 
received, and the verdifl muft have been aeainft the plaintiff ; 
but no fuch evidence was offered at the trial, but the delendant's 
counfel relied upon the nature of the'confignment; foihat if we 
were to allow the prefent plea before the auditors, and iffue 
(hould be taken upon it, the confequence would be, that there 
muft either be two verdids the fame way, which would be nu- 
gatory; or contradi3ory verdi6ls, which would enta^gle the 
court, infomuch that they could not know how to give 
judgment. 



dctci 



Upon this record it*appears, and ftands admitted by the 
fendant, that the care of the confignment was left and intrufted 
by him to Salomons^ without the aireffion^ corifent^ privity of 
knowkdge of the plaintiff; this the plaintiff exprefly alledges, 
which meets the defence of the defendant in his third plea, and 
frights and ftartles him when he comes to rejoin, and make his 
proteflando; which is artfully done, but docs not reach the con^ 
Jint^ privity^ knowledge or dtreSion of the plaintiff; thofc words 
(I fay) frighten him : but fuppofe iht proteflando had met, in- 
cluded and reached the very words pleaded by the. plaintiff in- 
reply ; then there are two rules whicn exclude the favingeffefls 
What cannot of a protefiation : tjl^ That which is material, iffuable, and may 
**roteftaSom ^^ pleaded, cannot be taken by proteftation. Flowd. 276. Do3. 
Placit. 296. The ground and effeft of the fuit cannot be taken 
by proteftation. Itid, — ^Thc defendant is now concluded from 
faying, that the conjint^ &c. of the plaintiff is not material and 
iffuable; for in this pica before the auditors he relies upon it, 
that with the confent of the plaintiff he delivered the cffefts over 
to Salomons; and in his rejoinder he protefts, that the manage- 
ment of the confignment was left by nim to Salomons^ in pur- 
fuancc of iht intent and meaning or the plaintiff and his con- 
fignment, and not by agreement between the defendant and 
Salomons ; but doth not deny in his rejoinder, that the care of 
th^ confignment was left and intrufted by him to Salomons. 
without the confent of the plaintiff, which he might have denied ; 
and therefore that averment Handing upon the record, not an- 
' fwered or denied by the defendant, he has in effeft admitted the 
fame to be true, and is therefore now concluded thereby, ^dfy. 
A proteftation will not avail the party taking it, where the iflue 
is found aeainft him ; (except in a few fpecial cafes men- 
tioned in Co. Lit. 126.) here the iffue is found againft the 
defendant. — Wc arc all of opinion, that this plea before the 
jiuditors is bad. 

. I will 



Easter Team 10 Gso. III. 1770. ' 1 17 

I will now fay a few words of what we at firft thought' was 
a hardfhip upon the defendant; who» as governor^ was, by the 
ufage, rules, and orders of the Eajl India Company, d}liged to 
accept of thefe confignments ; but we have now changed pur 
opinion upon this head. Becaufe, if a man accepts a con« 
fjgnment, he is fuppofed to knbw the confequences ; and fup- 
pofing the accepting the government obliges him to accept the 
confignments, yet he is not obliged to accept the government, 
and he knows the confequences of fo accepting thereof : befidea 
here are great emoluments accruing to hinxby thefe confignments, 
j/. per cent, confulage, and other fees and profits. When a 
man accepts a truft, he muft ffo through with it. When he 
left India^. he ought to have taken care of it. He might have 
checked hisi co-fa£lor Salomons by putting the fucceeding go- 
vernor in his (the defendant's) (lead; but if he chofe to repofe 
the whole truft and confidence in his co-bailifT, he muft be an* 
fweraMe for him ; and here he received the profits of the 
confignment. 

So the demurrer muft be allowed, and the plea be over-ruled, 
and judgment muft be entered for the plaintiff. 

We have fome doubt how the judgment muft be entered, and 
about the damages, [See thefe cafes cited by the chief juftlce, 
to be looked into, in order to enter the judgment rightly, but 
he gave no particular dire£lions how it was to be entered. 
1 Leon. 302. a Leon. 150* 102. 1 Brovml. 25. Cro. £liz. 
84. 806. Winch. K. Allevn 85. Luiw. 58. After citing thefe 
cafes, the chief jufticefaid that] 

This plea \n truth is as much as to fay, " / will not account 
mih^ou;" and therefore is equal to making default, or faying 
nothing, nil didt. It feems to us the judgment fhould be for 
the v^lue laid in the declaration ; but vou will confider of this, 
becaufe the plaintiff is very old, andf if he dies, it is faid in 
fome of the books, the whole is at an end, and you muft be- 
^in again; but whether this be fo, we do not determine, but 
It is proper to be expeditious ; for this caufe has been depend* 
ing tourteen years (tnough there has been no delay in this court) 
and it is high time it ihould be ended. 

I am glad to fee this a3ion of account is revived in this [%ttBac.4Ar. 

court. . Gwiilims^tvo. 

Judgment for the plantiff, per iotam curiam^ which was not 
entered until the next Trinity term, as appears by the record. 



118 Easter Tebm 10 Geo. III. 1770. 

5 BurRep. In the vacation after Eafter term, lo Geo, 3. Sir Jofiph 

honeft man, a raoft learned and rigliteous 
at church, on Whitfunday, June 3d 1770, 



I 



• Buik Re Yaits, Knight, an honeft man, a raoft learned and rigliteous 

Ji^* * '^ judge, was taken ill ^ , ., ^, ^ ^ ,, . 

and died on Thurfday following fut audtvtj about four o'clock 



in the afternoon, at his houfe in Joci'^y -fields, Bedford-row^ to 
the great lofs of the public, and of this court in particular, 
wherein he fit one term only. HeuI nequeo quiN fleam. 



TRINITY TERM. 

10 Geo. III. 1770. 



Goodtitle ver/us Tombs. C. B. 

One tenant in ^TpHE flainiif[ Goodtitle^ on the demife of Ins leffor, who was 
***vert°" 'jUnft tenant in common of the lands in queftion, with the now 

wo*£er*in defendant Tombs, recovered judgment and poffeflion in ejeft- 
cjeament by nient againft a cafual ejeftor by default, and afterwards brought 
Tr^efpafi for ^^'^ aflion of trcfpafs, tor the recovery of damages fuftained, by 
thf inefne being kept out of pofleflion by his companion Tombs from the 
profiu lie*, time of the demife laid in the declaration in ejeSment, until the 
time of the exception of the writ of poffeflioni Upon the ge-- 
neral iffiie pleaded, there was a verdift for the plaintiff, damages 
i^L and 40J. cofts, fubjeft to the opinion ot the court, upon 
this queftion, viz. Whether one tenant in common can main- 
tain this a6Hon againft the other, to recover damages for the ex- 
pulfion and mefne profits ? 

Obie^*-^ Tor Serjeant Glynn for the plaintiff— It was objefled at the trial 

the' defend- of this' caufe, that although a. tenant in common may maintain 

»»t. an ejeftment againft his companion, upon an aftual oufter, yet 

he cannot have this aftion of trefpafs againft him to recover 

damages, and the mefne profits ; and in fupport of the obje&ion 

was 



Trinity Term 10 Geo. III. 1770. lip 

was cited Ut.fc&. 322. and Cokeys comment upon it;, who fays, 

'• That albeit one tenant in common takes the whole profits, the 11 Mod. 567, 

V other hath no remedy bv law againft him, for the taking of 

" the whole profits is no ejcftmcnt : but if he drive out of the 

♦^ land any of the cattle of the other tenant in common ; or do 

•• not fuffer him to enter or occupy the land, this is an ejeft- 

•* ment or expulfion whereupon he may have ^xiqcSioneJirmet 

•* for the one moiety, and recover damages for the en^ry, but 

•* not for the mcfne profits". 

I admit he could not recover the mefne profits in the very Anfwer. 
a£>ion of ejeftment, for that is only brought to recover pol- 
feflion, and damages for the a6lual trefpafs ; this mufl be Lord 
Cokes meaning : the prefent ^ftion of trefpafs with a continuando 
forlhe mefne profits, is confe^uential upon the judgment in 
ejeflment, whether againfi the caiual ejeftor by default, or againft 
the Qthcf tenant in common himfelf after a verdiS, makes no* 
difference; the ground of this aftion is the keeping the plain- 
tiff (that is to fay, hi& leffor) out of poffeflion, and if he can- 
not recover in this a£lion, he muft be driven to feek remedy in 
a court of equity, which this court will prevent, if they can 
poffibly to do it by law; 1 rely upon the cafe in 2 Burro. €68. 
where the whole doftrine in thi^ matter is well reported, that 
tins aSion well lies, as well at the fuit of the nommal plaintiff 
in eje£lmeot, as of his leffor. 

Burland King's Serjeant for the defendant, — The principal 
qu'eftion is. Whether one tenant in common can have trefpafi 
againfl another, to recover the mefne profits ? I admit this is 
to be confidered as the a£lion of the leffor of the nominal 
plafntiff, although brought in the name of the nominal plain- 
tiff, but infift that one tenant in common cannot have trefpafs 
quare claufum f regit againil the other, for their poffeffion is iS9ak«39i. 
one dXidi intire^ the poffeffion *of one is tiie poffemon of both, 
fo tliey cannot be trefpaffcrs upon one another, for each of them 
may enter and occupy in common per my & per tout^ the lands 
ana tenements which they hold in common. JJt, fed, 322. 
"and Co. Com. andfeSl. 323. Bro. Tenants in Common^ pi. 14. 
Nota per touts Us jujlices^ that one tenant in common (hall 
not have an adion of trefpafs againfi his companion. In Salk. 4. 
Haywood verfus Davies et al* it was agreed, that in trefpafs the 
defendant cannot plead in abatement that himfelf is tenant in 
common with the plaintiff, becaufe he may give it in evidence, 
and that will prove him not guilty. • Tenant in common cannot 
be a diffeifor without an a^ual oufter of his companion. 2 
Salk, 391, 302. and in 2 Salk. 423. ft is faid, a tenant in com- 
mon cannot be diffeifed on an undivded moiety. 

Without 



Jao TbikittTebm 10 Geo. III. 1770. 

Without an aflual ou/ltr trefpafs will not lie, a bare tabinc 
the whole profits is not an oujUr ; but to drive the cattle oC 
and not to fufFer him to enter, is an a£lual ou/Ur. 

Tenants in common mud fever in real and mixt a6lions, fhey 
cannot join in making a leafe in eje6lment. 2 IVilfon 232. but 
they mud joix^ in debt for rent and in trefpafs, becaufe they are 
to recover damages jointly. Two tenants in common of a tree 
and one cuts the whole tree; though the other cannot have an 
a6lion for the tree, yet he may have an a3ion upon the cafe for 
the fpecial damages by cutting* as where one tenant in com. 
mon defiroy? the whole flight of pigeons. 2 Ld. Raym, 737^ 
738. — ^Trover doth not lie for one againft the other, becaufe* 
the pofTeflTion of one is the poffellion of both. 1 Salk. 2^0. 
-7-Two tenants in common of a (hip, a3ion lies not for carr)'ing 
It away; but it was held upon a fecond trial, that for deftroying 
it the a£Uon laid. Cafes mtime of LordX?^, touching chat, 
tels real, Ju lit.feB. 323. By thtjlat. 4 Ann, cap. \6,Je3. 27. 
^£lion of account may be brought and maintained by one tenant 
in common, his executors and admtniftrators, ajgainit the other 
as bailiif, .for receiving more than comes to his jufl (hare or 
proportion, andagainlt the executors and adminiflrators of fjicii 
tenant in common; this feems to be a declaration by the le. 
giflature, that before that fiatute an a£lion of the prefent kind 
would not lie. 

Wilmot Chief juftice — Before the time of Hen. 7. plaintiflPs in 

S'e£lment did not recover the term; but until about that time, 
e mefne profits were the meafure of damages. I brufh out of 
xay mind all fi£lion in an ejedment, the nominal plaintiff, and 
nominal defendant, the cafual ejeftor,. the dranuitis perfona or 
aQoresfabiUa.^ and confider the recovery by default, or after a 
verdift, as the fame thing, viz, a recovery by the Icflbr of tlie 
plaintiff, of his term agamil the tenant, in the a£lual wrongful 
poffeflion of the land. By the old law and pra£lice in an action 
of ejeftment (as I before faid) you recovered nothing but da-- 
mages, the meafure whereof was the mefne profits ; no term 
was recovered ; biit when it became eilablifhcd that the term 
ihould be recovered, the ejeftment was licked into the form of 
a real aftion ; the proceeding was in rcm^ and the thing itfelf ; 
the term only was recovered, and nominal damages, but not the 
mefne profits ; whereupon this oUier mode of recovering the 
mefne profits in an a£lion of trdpafs was introduced, and grafted 
upon the prefent fiftion of ejeftment; and I take it, that the pre- 
fent aft ion is put in the place of the ejeftment at common law, 
which was indeed a true, and not a fiftitious a6lion, and in which 
the mefne profits only, and not the term, were, recovered, for it 

was 



Tbinitt T«bm 10 Geo. Ill, 1770. 181 

no other than a mere afUon pf trefpsjs. You have turned 
me out of pofleQion, and kept me out ever fince tlie demife laid 
in the declaration, therefore I defire to be paid the damages to 
the value of the mefne profits which I loft therehy; tliis isjuft, 
and reafonable. See ylfiin and Parkin, s Burro. 688. 

Gauld Jufiice — It mufi be taken for granted in this cafe, that Bre. TicC; 
there was an a£lual cufier^ and that the defendant kept him out P^^S* 
from the time of the demife till the judgment in the eje£lment } 
the plaintiff in this cafe is not confined to the very mefne profit^ 
only, but he may recover for his trouble, &c, I have knowa 
four times the value of the mefne profits given by a jury in this 
fort of a3ion of trefpafs; if it were not to be fo fometimes, com* 
pleat jutlice could not be done to the party injured. This ac* 
lion may be brought either in the name of the nominal plaintiff 
in the eje£kment« or by his leflbr ; it follows the ^jeftment as % 
neceflary confequence: the judgment in eje£lment by default i| 
of the very fame effe6l in this cafe as if it had been after a ver« 
dif^ ; and the court will intend every thing pollible againft tht 
defendant, that there was an aflual ouRer^ if that were neceflary 
in this caie; but I think, proof of the judgment in ejeftmeot, 
and the writ of pofleffion executed, was fumcient in tlus cafe to . 
warrant a verdi& for the mefne profits. 

Chief Juftice Wilmot — Damages are not confined to the mert 
f-entofthe premifes; but the jury may give more, if they pleafe, 
as my brother Gould hath truly obfsrved. 

Judgment for the plaintiff; abftnte Lord Commlffioner Ba* 
thurj, inCanc\ 



Sir William Blackftone Xnight, late on^ of the Judges of the Sec 5 Bmr, 
King's Bench, being appointed a judffe of the Common Pleas, ^*P* *3^ 
in the room of Mr, Juftice Yates ^ lately deceafed, took hit 
place in court. 

Bafiett verfus Godfcball Efq, and others^ Jufiices of 

Peace for the county of Surry. C. B. Roll 829, ^"^fe 

iftinft the 

'T^HE plaintiff declares in a fpccial aSion of trefpafs upon ^^^i^^^f 
* the cafe; and thereupon complains, that, whereas the de- refafingto 
fendants for divers years faft paft have been ^nd ftill are juftices oneaiicsoct 
of our lord the King, afligncd to k/cep the peace of our faid ^J^^^^ *". 

lord houft.* ' 



l«a Trinity Term 10 Geo. IIL 1770. 

lord the King in the county of Surry, and alfo to hear and de- 
termine divers felonies, trefpafles and other mifdemeanors, com- 
rnittcd within the fame county; and whereas the fame plaintiff*, 
for divers years laft paffed, hath dwelled, and ftill dweileth, in 
the parifh of Ha/comb in the county afbrefaid, within the weftem 
divifion and hundred of Dlackheatk in the faid county, he tlie 
' faid plaintifT, on the 13th day 61, September y in the year of our 
Lord .1769, at Guildford in the county aforefaid, did make ap- 
plication to the defendants, (being then and there met and 
affembled together at a general meeting of his Majefty's juftices 
of the peace for the faid county, afting for the faid wefteni di- 
vifion and hundred of Blackheath in the faid county, for licenf- 
\ ing perfons to keep common inns and alchoufes) to grant to him 
the plaintiff a licence to keep a common inn and alehoufe at the 
faid parifh of Hafcomb: fuch common inn and alehoufe being then 
grcativ wanted at the parifh of Hafcomb ; and then at Guildford 
aforefaid was ready to produce, and. offered to produce to the 
defendants fo met and affembled together, a certificate under the 
hands of JB. R B, J B. J B. WG. TW. WS. J L. 
JfP. HL. CE. ES. JS. and IFM. then being reput- 
able and fubibntial housekeepers ctf the parifh of Ha/comb 
aforefaid, fettmg forth the plaintiff to be a perfon of good fany?, 
T1>«r»y«- and of fober life and converfation ; yet the defendants, well 
coontlire. l^nowing the premifes, but not regarcling their duty as fuch 
fofing plain^^jwftices as aforefaid, and wrongfulJy and malicioufly contriving 
tiff a licence, and intending to opprefs and injure the plaintiff, on the faid 
13th day oi September^ in the faid year, at Guildford ^forcfdii, did 
mofl unlawfully and unjuflly, and agamfl their duty as fuch 
juftices as aforefaid, refufe to' grant to the plaintiff fuch licence 
»dC(Ruit. "^ as aforefaid. And whereas alfo the defcndeinCs, for divers years 
lafl p^fl, have been and flill arc jufliccs of our lord the King, 
affigned to keep the peace of the faid lord the King in the faid 
* . county of 5ttrry, and alfo to hear and determine diyers felonies, 

trefpaffes and other mifdemeanors, committed within the fame 
county; and Avhcreas the plaintiff, for divers years laft paff, hath 
dwelled, and ftill dwelleth, in the faid parifh of Hafcomb in the 
. county aforefaid, within the weftern divifion and hundred of 
Blackheath in the faid county, he the faid plaintiff, on the faid 
13th day oi September f in the fard year, at Guildford aforefaid, 
did make application to the defendants, (being then and there 
met and affembled together at a general meeting of his Majefty's 
juftices of the peace for tlie^ faid county, a£ling for the faid 
weftem divifion and hundred of Blackheath in the faid county, 
for ricenfing perfons to keep common inns and alehoufes) to 
grant to him the plaintiff a licence to keep a common inn and 
alehoufe at the faid parifh of Ha/comb^ fuch common inn and 
alehoufe being then greatly wanted at the faid paiifb of Hc^fl 

combs 



. Trinity Tekm 10 Geo. III. 1770. 123 

comb; and then, at Guildford aforefaid,. was ready to prodiic^, 

and offered to produce to the defendants, fo as (aft aforefaid 

being met and aflemblcd together, a certificate under the hands 

oiJfB. RB. JB. JB: WG. TJV. W S. J L. J P. 

H L. C E. ES. JS. and fFM. then being reputable and 

fubfiantial houfeholders of the parifh of Hafcomi aforefaid, fet- 

ting forth the plaintiff to be a perfon of good fame,, and fober 

life and converfation ; yet the defendants, well knowing the Tbegriva. 

premifes, but not regarding their duty as fuch juftices as afore- J*^" •" ^« 

ikid.^and wrongfully and malicioufly contriving and intending to i^^Jreft^ng 

opprefs and injure the plaintiff, ort the faid 13th day oi S^ptem- tor^?ivea 

ter^ in the faid year, at Guildford aforefaid, did moft unlawfully "•5"'^5*',* ^ 

and unjuftly, and againft their duty as fuch juflices as afc refdid, glj^^fjni 

refufe to receive from the plaintiff the faid laA*mentiontd cer- andclunacsi 

tificate under the hands of the faid '7 A R B. 7 B. J B. 

WG. TJV. WS. JfL. J p. HL. CE. ES. JS. and 

WM. to -the damage of the plaintiff of 500/. and therefore 

he brings fuit, &c^ To this declaration the defendants «demur 

generally; and the plaintiff has joined in demurrer. 

Serjeant Lagh was pVejI^ed to fupport the demurrer for the 
defendants; but the court called upon Serjeant Glynn^ of coun* 
fel for the plaintiff, to fupport this a6lion if he coiild : where- 
upon he faid, that as this was an injury laid in the declaration to 
be done to the plaintiff wrongfully ana malicioufly, and with an 
intent to opprefs and injure him, he thought the a6lion well 
]aid» and that the fa£ls alledged an the declaration were very 
proper to be laid before a jury; but cited no. cafe to prove any 
fucn a£lion as this had ever been brought againff juftices of the 
peace. So without hearing Serjeant Leigh for the defendants^ 
the court gavejudgment for them. 

Wilmot Chief Juftice — ^The legiflature hath intrufted the 
juflices of peace with a difcretionaiy power to grant or refufe* •[Sc^R.r. 
licences for keeping inns and alehoufes ; if they abufe that power, "^JjJJJ^Jj,^ 
or mifbehave themfelves in the execution of their office or au- jc /r. 691.] 
thority, they are aiifwerable criminally, by way of information, 
in B. R. I cannot think a juftice of peace is anfwerable in an 
a£Uon to ^very individual who a(ks him for a licence to keep an 
inn or an alehoufe, and he refufes to grant one ; if he were fo, 
there would iye an end of the commiffion of the peace, for no 
man would aft therein. Indeed he is anfwerable to the pub. 
lie if he mifbehaves himfelf, and wilfully^ knowingly and ma- 
licioufly injures or oppreffes the King's fubjeds, under colour of 
his office, and contrary to' law : but be cannot be anfwerable to 
every individual, touctiin^ the matter in queftion, in an a3ion* 
£very plaintiff in. an a£lion' muft have an antecedent right to 

bring 



104 Tejnitt Term 10 Geo. III. 1770. 

bring it ; the plaintiff here has no right to have a licence, unle& 
the juftices think proper to ^rant it, therefore he can have no 
right ot a6lion againft the jufbces for refufing it. 

Gould Juftice — I am of the fame opinion. There have been 
great abufes committed by inn-keepers and alehoufe-keepers, and 
therefore the legiflature have wifely given the juflices a dif- 
cretionary power to grant licences to fuch perfons as they 
ihall judge proper. 

Black/lone Juftice — This matter, I think, is wholly in the 
difcretion of the juftices; there muft be a right of aBion, before 
a man can bring it; here is no right, therefore no aSion lies in 
this cafe. 

Judgment for defendants ; abfent Lord CommilEoner Baihurfi 
in Cane' 



Anonymous. 

'T^HIS was an aflion againft the huftjand and wife, for a 
-^ debt contrafted by her dum/ola. After judgment a^injl 
them, they werq both rendered to prifon in difcharge oftheir 
bail ; and not being now charged in execution, it was moved 
that the wife might be difctiarged out of cuftody on common 
bail. 

Hofband ina Ptr curiam. The rule and prafiice is, thiu where there is 
wife rendcreii judgment and execution againft both the hulband and wife, fixe 
awnVln^dif- '^^'' ^^^ ^^ difchargcd ; but if they be both ia cuftody upon 
charge of mtjkt proctfs^ the wife fhall be difcharged upon common bail: 
kail, the niit in the prefent cafe they are rendered to prifon in difcharge of 

•*on*«fltioB. ^^"^ '^^^'^ ^^^ "^^ ^" '"^ ^^xtit, fituation as if bail had never been 
' put in for them ; fo are really in prifon for want of bail to the 
nrft procefs; and not being charged in execution, the wife muft 
be aifcharged out of prilon. See 2 iS/ra. 1167, 1237, 1272. 
1 Wilfon 149. In Trin. 1750, Coffin^ Executor ^ vcrfus FeU & 
Ux. B. R. huft)and and wife were rendered in difcharge of 
their bail; before execution, it was moved that fhe mignt be 
difcharged on common bail, which was ruled accordingly. In 
Trin, 1754, Wilmot verfus ButUr & Ux\ B. R. huft>and and 
wife weie both in execution; Pratt obtained a rule to ftiew 
caufe why the wife (hould not be difcharged out of cuftody,: 
but per curiam^ where judgment and execution are againft 
huftMind and wife, flic ffiall not be difcharged, but only wh^n 
Die is in cuftody upon nujac procefs. 

Frogmortoa 



TaiNiTY TfiBM 10 Geo. III. 1770. 125 



Frpgmorton* on the demife of Robinfbn verfus • [Thwg. 
Wharrcy. C. B. . ^;i^"^ ^ 

P^JECTMENT of one meffuage, one cottage, twenty J.R.farrw- 
*-' acres of land, twenty acres of meado^, and twenty acres ^V^ ^" 
of pallure, with the «ppurtenances, in Htmingbrough^ otherwife t^e uftTof M. 
Hcmbrougk^ in the county o{York, Upon the general ifitie, this a. (whom ha 
caufe was tried before Mr. Juftice Gould at the laft aflizes, when *"^J™l^J^ 
a verdift was given for the plaintiff, fubjeft to the opinion of JheTcirior 
this court, upon a cafe dated in the words following, viz, cheir two 

bodies, feeim 

That Jfohn Rolnnfon^ being feifed in fee according to the j„fp^**J 
cullom of the manor of Hemingbrougk^ of the premifes in uii in M. A* 
que(lioh in this caufe, being copyhold held of the faid manor, executed, 
on thejffi/! dayoiAugiift 1720, lurrendered the fame, according gut fee in &• 
to the cuftom of the faid manor, to the ufc of Mary Arnall next term . 
(whom he then intended to marry) and the heirs of their two bodies (t^^- PJ* 
Uxtfully to be begotten; and for default offuch ijue, to thtufe ^^jJiJJ! a 
the right heirs of the faid John Rohinfon. only took an 

eftate for \Jk^ 

That the faid marriage tookeffeS; and afterwards, (to wit) at'^j^^ J^^*^^^ 
a court held for the faid manor, on the 2 id day oiOBober 1720, den to the 
the faid Mary was admitted tenant to the faid premifes, accord- *>^'^ ^^^ 
ing to the (aid furrender, to the ufe of the faxd Mary, and the J^her**L«f^ " 
htxrs of their two bodies lawfully to be begotten^ and for default of band. 
fuch ]ffuey to the ufe and behoof of the right heirs' of the Jaid}oha 
Robinfon, according to the ciylom of the faid manor. 

That £hc faid Mary died in 1735, leaving John hereldefi fon, 
begotten by the faid John Robinjon her hu/band^ which fon was 
born in the year 1722. 

That the faid John RobinfoUy the Ton, died in 1745, leaving tht 
leflbr of the plaintiff his only fon and heir, born in that year, 
who was duly admitted tenant to the faid premifes in the year 
1769. 

That by the cuftom of the faid manor, hujbands are entitled 
for life to the inheritance of their tmves^ in the nature of tenants 
by the cu^tefy^ whether the xvife is feifed before the coverture or 

atterwards. 

That John Robin/bn the furrenderor, furvived his wife, and con- 
tinued in poffeffion until the year 1746, when he furrendered the 
premifes m qaeHion, to the deiendant in lee ; who was admitted, 

1 and 



126 Trinitt Term id Geo. III. 177a 

aitd hath b^cn in poffeflion ever fincc; and that the faid John 
Roiinfon^ the furrenderor, died in the year 1767. 

That John Rolnnfon^ the furrendtroi;, conceiving himfelf 
tenant'in tail, under the furrcnder and admittance in 1720, did 
the proper a6l to bar an eilate tail, provided fuch ellate was 
veftcd in him, according to the cuftom of the faid rOan6r, pre- 
vious to the furrender to the defendant fVhdrrey, 

This cafe, was argued lad Eajltr term, by Serjesfnt Lngh for 
the plaintiff, and Serjeant Qlynn for the defendant : it was argued 
again in the prefent terra, by Serjeant Narts for the plaintifiF, 
and Serjeant Jf^^phfon for the defendant. 

1 Roll. Rep. For the plaintiff it was. contended, that this was an eftate in 
43*- fpecial tail, executed in Mary Arnall, the wife of Jokn Robinfon . 

Pannd"* the fettler ; on the other fide it was infifted, that.ftic only took 
Dyer 90,' ^n eftate for life, with a contingent remainder to the heirs of 
Style jij, their two bodies ; that a contingent remainder mull veft eo in^ 
Jlante the particular eftate ends, or never can ; that^flie dying in 
her hufhao^'s life-time, no eftate could ever veft in their U>n ; 
for nemo eji hares viventis. Upon both the arguments the coiirt 
had great doubt, no cafe being cited on either fide that dircfily 
applies, fo as to govern the prefent cafe : the court ^dve no 
opinion upon either of the arguments, but feemcd inclined to 
ihink, as this was a" fettlement on marriage, with intention of 
the parties to provide for the wife and the iffue of the mar- 
riage, that the wife took an eft:ate in fpecial tail executed in her; 
but ordered the cafe to be argued again. 

Ulierius Concilium, 



Anonymous. 

TT was faid by Bathurft Juftice, and not denied by the reft of 
** the court, that if a man who has a right of common upon 
the iord*s wafte, for cattle levant ^nd couchant on his land, liir- 
char^e the commori, the lord cannot for that caufe diftrain, 
for the lord cannot judge thereof. It was alfo faid by Wilmot 
Chief Juftice, that it a man turn his cattle into Blackacre^ where 
he has no right, and they efcape and ftray into ray field for want 
of fences, he cannot excufe himfelf, or juftify for his cattle 
trefpafling in my field. And it was faid by Black/lone Juftice, 
that where a man turns in his cattle, under fome colour of 
right of common, the lord cannot diftrain; but if it appears he 
has no right at all, he may diftrain. 

MICHAELMAS 



127 



MICHAELMAS TERM 

11 Geo. HI. 1770. 



Johns verfiis Whitley and others. C. B* 

Cornwall 'JOSEPH WHITLEY, late of the parifh of Lanh^.Txti^tmi^ 
(ioyf'it) J drock, in the county aforefaid, viftualler, EJj ^co»tiMMSMj» 
ward WkitUy, late of the parifli of 5^^/ Winnow, V^I^J^ 
in the faid county, hufbandman, and Feter Bennett late of the cZmm V 
fame place, hulbandman, were attached to anfwer io John Johns, t&rtmmuMi^ 
gentleman, in a plea, wherefore, with force and arms, they 
broke and entered the clofes of the faid John, in the parifli of 
Saint Tf^nnow aforefaid, in the faid county o{ Cornwall; and trod 
down, con fumed and fpoiled the grafs.and corn of the jaid John, 
of the value of ten pounds,, there lately growing, with feet in 
walking; and eat up, trod down, confumed ana fpoiled other 
the graJs and com of the faid John,, of the value of other ten 
pounds, there alfo lately growing, with certain cattle ; and 
reaped, mowed, cut down, and felled other the grafs and corn 
of the faid John, of the value of one hundred pounds, there 
alfo lately Itanding, growing and being, and took and carried 
away the fame, and converted and difpofed thereof to their own 
ufe ; and with the wheels of carts, waggons and other car- 
* riages, tore up, turned up, fubverted and Ipoiled the foil of ihe 
faid John, in and of the faid clofes ; and alfo wherefore with 
force and arms, they^the faid Jofeph, Edward and Ptter, at the 

frariih of Saint Winnow aforefaid, reaped, mowed, cut down and 
elled, other the grafs and corn of the faid John^ of the value of 
other one hundred pounds, there lately (landing, growing and 
being, and took and carried. away the lame, and converted and 
difpofed thereof to their own ufe ; and alfo, wherefore the faid 
Tfqfeph, Edward and Peter, with force and arms, at the parifh of 
Saint Winnow aforefaid, feized, ^ook and cau-ied away, other the 
grafs and corn'of th^ iidd John, of the value of other one hun- 
dred 



130 MipBASLM^ TsBM 11 Gso.'iH. HZO. 

whereby J. fubfifling of and in the &id purcmifcs ; by virtue thereof, the UA 
iitiiSd toTthc /^^^* ^S^^ became iptitlcd to the &xd clofcs in which, &x^ 
(aid ctofrty ^^^ ^^^. 'i^^^ ^^11 lo deinifi^d to him a& aforefaidt expeflant on 
expcdint oa the death of the faid EdWard MiUhel/^ or other determination of 
E.^^M^^fta^ the eftatc then fubfifting of and in Uie faid clofes in which^ £?r. 
That after- and determinable as aforefaid: and the &Id Jofiph Edward 
wardf.indbc- Whxtl(y^?iyAPcUr BtnuctU further fay, that afterwards, and long 
^he *°V^ before any of the (aid times when, S?f . (lo wit) on the 17th day 
when,"2t, ^f November, in Uic year of our Lord one thoufand feven hun* 
tlfe' raid B. dred ajid fortT^ at the parifli oi Saint Wmnow aforefaid, the faid 
^'^^\ *^* KdwardMUchdl died; and tliercupon the eftate fubfifting of aad 
. in the faid. clofes in which, &?c« at the time of the making of tlie 
And T K ^^^ demife, ceafcd and determined; and the faid John Kntjgki^ 
aftefwlrX by virtue of the prcmifes, afterwards (to Wit) on the firJft day 
Atfred upon of Dcumb^r^ in tlie faid year of oUr Lord one thoufand feveii 
Indtb^^^^f*^* hundred and forty, entered upon the tiid clofes in which, £?r. 
r<Ted-*am!" ^^^ ^^ poffeffcd tliereof for the faid term fo demifed to liim as 
Mtitii ib pof- aforeJhid, determinable as aforefaid ; and the faid John KmgJu 
m^i, being fo poflcflcd thereof as aforefaid, the faid Mary Kmght 

the faid M. afterwards, and before any of the ftiid times when, 6?c. (to wit) 
K. jjuffwitii on the firfl.day of Marchj in the year of our Lord one thoulao4 
".* . leven hundred and forty-five, at the parifh of Saint Winnow 
AodtKede- aforefaid/ died: and the faid Jop.ph Edward JVliitUy^ and 
Srtf'^^It* ^^^''^ ^fnncfty further fay, tliat the faid Jahn Knight, being fo 
J. K.^ter,- polfelfed of the faid clofes in which, £j?t . for the term aforefaid, 
wardi,and determinable as aforefaid, he the faid John Knight afterwards* 
. ^^7\^'*^ ^^^ before any of the laid times when, &c. (to wit) on the firft 
wj^n'r&c. ^y ^^ -^firitf in the year o£ our Lord one thoufand feven 
siftde His willy hundred a(ui fifty -four, at the parilh oi Saint Winnow aforefaid, 
jnrfihc faid July TjiaAt his laft unll and teftamcnt in, writing, and thereby 
tor, anVdwd conftituted and appointed the faid Peter Knight executor thereof ; 
poffcttd of and afterwards, and Uefure any of the faid times when, &c. (to wit) 
thcfiidciofa. oathe famc^day and. year aforefaid, at the parifh oi Saint Winnov 
aforefaid, died fo pofleffed. of the faid clofes in which, G?f . by 
^ «^Wch P. mean5 of which laid premifes, the faid Peter Kjnoht afterwards, 

wa^sp^cffS} (5? ^^^^) ®° *^^ ^*"*^ °^y ^^ y^^ 1^ aforefaid, entered. into the 
and before ' faid clpfes in which, &c. and. was poffelfed thereof for tlie 
any oi the rcfiduc of the term aforefaid, determinable a$ aforefaid; and be- 
Sd uTe ^"^ f^ pofTcfTed thereof, ie the faid Peter Knight afterwards, and 
faitttfttf de-^ before any of, the faid times when. &c. (to wit) on the fecond 
w!?rt * • ^*^ °' FebnuiX)\ in. the year of our Lord one thoufand feven 
oMytlT^ hundred and fixty.feven, at the parifh of &i»/ Wiunttw Sifore^ 
foftomyeier f»id, demifed tlie faid clofes in which, 6?r. . with the appurte- 
^'i'^^Vf * nances; to the -faid Jojiph; to hold, the fame to him the faid 
i^ng a? the ^?A^* ^^"? thenccfoith, for the fpace of one whole year then 
cftKt of p. «eiU following, and fo from year to year, for (0 long time, as 
K. Oionii . •' ,...;* tbo 



coauaue* 



Ml<l!UiL>M8T£Il« tinted, in. 17 fb. 131 

Ite fatd Peter Kmigkt and thi! fatd Jpfefk fliould pleaje, and tltb 
eftatc ^nd inccreft of the faid Peter Km^ht in the ftmc premifes 
ihoold comimie; by virtue trbei^of €he faid Jofifh aftenvard^, Bt v)rM 
<to wit) cm the third day of- FiktgMfy, ih the teid jt^t of ouir ^J?^ 
L©rd one ihoufand fcven hundred and fi5ity-fe\'en, entered into ^^^ Md^at 
the fatd dofes itt which, &<:. viib the appurtenancei^, and wis ponfeitniy 
paffeifcd thereof; and being fo ^offcflcd, thereof < he the faid •/«> ;f«^"f 
Jefi^, before any of the feid limes when, &c. ixii during the k. pj«^^* 
hfe.time of the iaid Ptter Knifkt, (to wit) on the firll day of and iwttA 
^ehumy m the year of our Lord one thoubnd feven hundred tbecklct 
and fixcy>efghtt pleughed du5 faid elofcs in which, &c. and J**,^J^. 
fowhl the feme with corn, (to wit) wh^at, rye, baHey and oats ; focethe fiime 
and the farxd Jlofeph ' Edward tf^kitky^ and Peieir jfe««^//, ^m "?«.««» 
further fay, that after the faid Jo/if k had fowedthe fatd clofes f„gfV.X 
in Which, &c, with corn as aforefaid, and before the faid corn dted, wherr« ' 
was ripe, and fit for reaping and cutting, (to witj on the twcn- »!»« *»» ^^ 
ticth day o4 March, in the faid year of oar Lord one thoufand ^^^ * 
feven hundred and fi?CCy-cidk, the faid Peter Knight died, fto ceafed,nia . 
wit) at tlic parib afioref^irf ; and thel-eupoh the faid demifie, fo bcdeiiftred 
made by the faid Peter Knight to the faid fo/epk as afoVefaid, JT S^tw** 
ceafed and determined ^ and (he faid Joftphy on the fatne day and pUmtiff; w 
year laft aforefaid, quitted ahd delivered up the poffeflion if thie wiiomdw 
faid clofa, in which, ^c. to the faid John Johns, to whom the ^^ 
fame tlien belonged; arid the faid J^fepk Edward Whitley, a d h 
and Peter Bennett^ further fay, tliat in the time of harveft then tbcc«n*"it 
next following, and as foon as the faid corn was ripe and fit for ripe, the 
reaping^ (to wit) at tlie faid fcveral times when, 0c. He th^ dcfcndann 
faid jMifk in his own right, and- the faid Edward Whitley ahd ^"^X^JJT 
Peter Bennett, as bis fervants, and by his command, entered into andfoexoiifo 
the &id. fev^^l cloC^f ill which, &c. and by the ufual WiVs theife J|*'*'^^KV 
in order to cut down, inoW and reap the faid com, and did eLbteoeiiui 
ttien cut down; mow and reap the fame ; and alfo did enter 
into the faid fevensil clofeai in which, &c. with the faid' cattle, 
carts, waggons asid other carriages, in the faid dechu*ation men- 
tioned, in and by the ufual way there, in order to carry away 
the feme com, and did carry. aWay the fame; and, iti fo doin^, 
they the f«d Jofeph Edward WHtley, and Peter &nnetf, ^ 
neceflarily and unavoidably- did tfead down, fpoil atld con'fume a 
little of the grafs there tnen gk-owinj;, with their feet in walk* 
ing, and with the faid cattle in the faid declaraffotl mentioned ; 
and the faid cattle did by ftealtb, and againft the will of the faid 
Jo/eph Edward IVJiitiey, and Peter Benmtt, foatth and eat 
Up a little other of the ^afs tfaexe then alfo growing; and the 
[mA Jojeph Edward fvhitlr^, and Peter Bemiett, on tliait 
occafion, with the wlieeh of 'the faid carts, wa^^ns and oth^ 
carnagies in tfao faid deibtltioniftentioiied; necefiitfily and un- 

& % avoidably 



132 Michaelmas Tbrm ii Gbo. UL 1770^ 

.avoidably did a mtletear up, turn up, fubvert and fpoil, the foil 

of the faid clofes^^ doiu^ as littie damage, on that occafioo, as 

. . , they pofTibly coulfl : wl^ich are the fame breaking and entering, 

f!m- imak! ^^^ ^^^^ ciofes in the faid declaration mentioned ; and treading 

sag, *c. down, confumin^ and fpoiling the gra(s there Jately growing* 

With feet in walking; and eating up, treading down, confaming 

and fpoiling the other grafs there alfp lately growing,- with the 

. faid cattle m the faid dcclaratioh mentioned; and with the wheels 

of carts, wagsons and other carriages, tearing up, turning up» 

fubvertingandfpoitingthe foil of the faid ciofes, whereof the faid 

yokn Johns hath above complained againft them ; and this tliey 

are ready to verify: wherefore they pray judgment, if the 

. faid John Johns ought to have bis atorefaiu adionr thereof 

againii them, £i7r. 

J. Glynn. 

XrpKcation And the (aid John Johns^ as to the faid plea of the faid 
to Che plea Jojtph Edward Whxilty and Pttcr Bennett^ fccondly above 
bi^ w'ttywut plc^^cd *" ^^^* 2is to the faid breaking and entering the faid 
ofthctrff. ciofes called Wall Park, and Three Pieces^ otberwife The Three 
pafti ti«. Pieces^ parcel of the faid ciofes in the faid declaration mentioned, 
S^tbrthitc ^"^ *" which, 0c. and treading down, coniuming and fpoiling 
piecM. the grafs there iatc;y growing, v^ath feet in walking; and eating 

up» treading down, confuining and fpoiling the faid other 
' ^grafs there alfo lately growing, with the faid cattle in the laid 
declaration mentioned; and with the wheels of carts, waggons 
and other carriages, tearing up, turning up, fubverting and 
fpoiling the foil of thole ciofes above . done, fays, that he, by 
any thing above . in that plea alledged, ought not to be barred 
from having his aforefaid a£lion thereof mayitained agatnft them ; 
ConfHT'-t bccaufe he fays, that true it is, that, the faid Chrijlopher Harris 
w!i*srviV"*m ^'^' ^** feifed in his demefne, as of fee, of and in the faid 
fee* and all clofcs in this replication above paiticularly mentioned, parcel , G?f . 
the reft of the and in which, 6?c. and demifed the fajne to the faid John 

? Vo/de. ^^^S^^* ^^^ ^^^ ^^^^ ^^^'^ ^^ ^^^^ '^^^^ P'^* ^^ ^^^ behalf men- 

iiv«?ring up tioncd, commcncin^ and determinable as therein is mentioned; 

poireflion to and that the faid Edward Mitchell afterwards died, and that, 

of^thiltefft "^o" '^»^ ^^^}^^ ^*ie faid eftate fubfilling, of and in thofe ciofes, 

in which, fcc. P^ccl, £j?r. in which, G?c. at the time of the madcing of the 

faid deraife to the faid John Knight .ceafcd and determined ; 

and that the {a\^ John A/tight entered upon thofe faid -ciofes, 

parcel, G?c. and in which, ©c. and was poffefled thereof for the 

laid term, fo. thereof demifed to Iiim as aforefaid, determinable 

as aforefaid ; and being fo thereof poffeifed, the faid Mary Knight 

died; and that the"faidr^<?/i« /Cw^gA/ being fo poffefled of the 

faid ciofes above intliis replication particularly mentioned, for the 

♦ . * ' term 



MiCHAEXMAs Term 11 Geo. III. 1770! 133 

term aforefaid, determinable as aforefaid, he the faid John Knight 
made his lad wiU and teftainent in writing, and thereby confti- 
tuted and s^pointed the faid PeUr Knight executor thereof, and 
afterwards there died, fo poffclfed of thofe clofes, parcel, (3cl 
and that by means of the faid premifes the faid Peter Knight entered 
into thofe clofes, parcel, G?f . and in whidi, £?r. and was poffefled * 

tliereof for the refidue of the faid term, detevininable as aforefaid ; 
and being fo poffeffed thereof, he the faid Peter demifed the faid 
clofes above in this replication particularly mentioned, in which, 
{Se. parcel, G?c with the appurtenances, to the faid Joftph ; and 
|h^t, by virtue thereof, the faid /^/^/^^ entered into thofc clofes, par- 
cel, 0c, in which, &c. with the appurtenances, and was thereof pof- 
feffed; ajid being fo poffefled thereof, he the faid Jofeph^ during 
die life-tirae of the tiiAPeler Knight^ ploughed thofe clofes, and - 
fowed the fame with corn ; and that after the faid Jojeph had 
fo fown the fame with corn as aforefaid, and before the ifaid corn 
%vas ripe and fit for rjeaping and cutting, \\\^ faid Peter Knight 
4ied ; and that thereupon the faid demife, fo made by the laid 
^etcr Knight to the (aid Jofeph as aforefaid, ceafed and deter- 
mined ; and the f^id Jofeph quitted and delivered \ip the poflef- 
lion of thofe clofes to the faid John Johns, to whom the fame 
then belonged, as thp faid Jofeph Edward Whitley ^ and Peter 
Bennett^ have above in the .faid plea in bar aHedged : but the faid B«t piaimiff 
Johniohus further fays, that m and by the laid indenture of |jl^;^'jjj^** 
Jcafe from the faid Chrijlvpher Harris to the faid John Knight ftj'a Uafe 
above mentioned, it is amongft other things provided^ that if the from o. H. 
iaid John Knight, his executors, adfniniftrators or affigns, (hould J^'jjJ^ "{^^^ 
Jit or Ut the Ikid premilcs thereby demifed, or any part thereof, \f^ ^ 
to any perfon or perlons, otherwife than from year to year, (and J.K* AonW 
that only to pafture^ and not to tillage) without licence in writ,. *^?*Qjher. 
inc from the laid Chriftopher Harris, his heirs or affigns, nrft ^(^ th^n 
had and obtained, that tnen and from thenceforth it fliould and inmyearto 
njfght be lawfulto and for the faid Chriftopher Harris, his heirs 1^*^^^^^^ 
or affigns, into the faid thereby demifed premifes with the ap- ?^re,and*not 
purtenancres, to rtrenter, and the fame to have again, retain, to titiag'^, it 
re-poffefs andei^oy, as in his and their former right and eftate ; *°^^^ ^^ ^ 
the faid indentore, pr ^ny thing therein contained to the con- k. Md hit 
truy in any wife notwithftanding ; as by the faid indenture heirs, Scc. to 
(relation being thereunto bad) may at large appear. And the «•«»»'• 
laid John further fays, tha^ the bid Chriftopher Harris^ after tlie Aaddit 
making of the faid indenture, and long before any of the faid ^^f^ ^5* 
times* when, &c» (to wit) on the fecond day of Offoher, in the {heiJdcl^H! 
' year of our lord one thoufan4 feyen Hundred and twenty-two, after nakinf 
at the {lariih aforefaid, being feifed iq his demefnc as of fee, ^Jj^^^J^I^'* 
af and in the reverfton of ^nd in the faid feveral clofes in which, ^^ ^^l 
&c» with, the appunenances, fubje£l to the faid demife therof, timci whrn, 

fciredwrMoftfaerefcrfioiifiiudthawiU, •adaeTifeathflfunc^ODcW. ^ AodaftAwaNf 

4ki6ita&di « ^ 

, KS duly 



I9i lVf|^|[AKLMA8 T«ii^« U Gto. III. 1770. ^ 

duly ppade his Ia& will and teftam^nt in writiag, and therAy 
' gaye an4 dfivikd the faid rtv^rfton of and in the faid cIoTes in 
l^hich, 0ir. «^mon^(l oUier 0>tngs, with the appurtenances, to 
one IViUiap^ Harris, to hold the fame with the appurtenances^ 
^o him the laid WiUiam Harris^ and his heirs and afligns for 
ever; and afterwards, and l^ng before the faid firft time when, 
c?c. (to wit} pn the firft day of May^ in the year of our Lord 
5>ne tbouf^nd feven hundred arid twenty-three, at the parifia 
aforefaid, he the faid Ckriftopher Harris died fo feiied ot fuch 
]\i^ (kid efiate of and in the (aid revtrfion^ whh the appur. 
wlicrcbyW. tenances, Y^^^ut revoking or altering his faid will: upon whofe 
feifed^*^ death, the faid rcverjion^ with the appurtenances, by virtue of 
before th* the faid devifc, came to the faid Wmiam Harris^ and the faid 
Utd firfttime IVUliam Harris thereupon became and was feifed in his demcbe 
wbcAyftc ^ of fee, of and in the faid rcver/ion, with the appurteiianccs ; 
^d being fo feifed thereof, he the faid William Hams afterwards, 
«nd long before the fs^id firft time when, &c. (to ^it) on the 
-48th day of September^ in the year of our Lord one thoufan^ 
feveii hundred and twenty-fix, at the parifh aforefaid by a cer- 
tain indenture oibarga^n andjalt^ then and there made between 
th(? faid If^i/AVi/A Harris of the one part, and the faid John Johns 
^f tl\e otl^er part, (one part of which faid laft mentioned fnden- 
ture, fealed with the fcal of the faid JVtlliam Harris^ hq ^he (aid 
^ ^(?A« ToAnsn^w brings be;;ci into court, the date whereof is the 

fame d[ay and year laft aforefaid} for and in confideration of a 
tarfiinea . certain^;n of money therein mentioned to have been paidto hiia 
2Jf **'? !1 ky the faid John Jfohns^ bargained and fold the aforefaid revcr^ 
tohSd^ .A^» (apfH)ngll other things) with the appurtenances, to the fai<l 
©vyfiw* Joh^ J^hns; to hold th^ ftme to him the fiiid j^hn Johns, and 
Eis a.frigns, from the day next before the day of the date of the 
^i4 iBdentv|ri;.of ba^gajin a^d fale, for and during, and unto t}ie 
fulV^.4a,B4.'te[¥w of on^ whole year, from theace next enfu-. 
ingy 2^4 fully t<> be comploat-ana endedi as by the fatd ind^iw 
tm:^ oi bfirg4a$t and fal^^ (rdatian bern^.tlicreto had) may more 
by.virtQft fully and a^ lacgc appear- ; hy virtue of which faid bargain a»4 
T'^^ftall *^ -^* ^^ **- ioTi:^ ot tlK ftatutc made for transferring nfes into 
uf«, thc^^ poil^ffip^, Mif Ja;d John J^kw, then and ^be^e became and wa« 
pij^intift'wai fojftfjf^d oi the laid r^crfion-^ with the appurteaances, for ^iio 
thfr^^CTfiL f»*^ ^n^i tp him thereof b^gained and fold as aforefaid, tte 
forthaTfntat fii^tktf Ktvafion tbejcof, with th^ apifcuncivmces, bdonginj; io 
and beogfii ti^ faid JVjiiliafJiHarnist his be]r9 ai>aaiigns; aad tht hid Ji^d 
S?w^h!" ^ife/^j fo being thereof poffeflfcd* and thp faid^/*er rsvafion^ 
re^fadtfae Yt'ithjbe a^ppi^rtcnances^ fo. belonging as aforefaid, a£iepwar<ls„ 
r^cnUetto an4 long b^tQ the fa^d -firft. time wteo, £9c» (tewit) on the 
thejrfaind^ g^tl^ 4^y oi Sefitfrn^r^ xrt tko^yeac laft aforefeisd, at. the parifli* 
^ * ifowf^it by .ft cert^n indenture ofrtkajk thejji and tber&mada 

hptwef^ix 



MichaeLma^ Tiirt !1 Gfett, III- 17^6. 135 

'b^uv^ifcn tfte faid William Harris b£ the oitt to)m, and tie* feid 
^A« John's <^f the other part, (one J)art bt which faid latl 
mentioned jndeifture^ fcalcd with the feal of the laid JVilli^m 
Harris, he tlie Ciid John Johhs now btings here irtto court, the 
d^te :iArliereof » the fame day and year la(l aforesaid) for and in 
jco^Qde^tion of a certain fuhi of money therein mentioned to ' * • • ' 
have fcecn paid fey the faid John Johns to the faid WiH^^ni ' 

Harris^ he the faid William Harris did reteafe urito hiwi the faid 
John Johns^ hi« heirs arid afligns, the \d\A further reverfion- 
(anion^ other things) with the appurtenances; to have and to 
hold the fame imto him the faid jt>hn Johns ^ and his heirs Ukd 
^ffignsjhr wer^to and for the only phupfer nfe and bfchotsf of the 
laid John Jchns^ his hrirs andttffignsjor tver ; as by die ftiid ih- 
denture of teUafe, (relatioa being thereto-bad) rtiay more fully 
and at lar^ appear; by virtue whereof, and b^r tdtce of the byvlrtve 
DatQte for trans terring ufes into poffeflion, the (kid John Jdh^s whereof, «nd 
became and waV feifed as of, fee, of iind ih thd feid whdt rrt/^ir- ?!-*,^*7aj^dff 

jfow, with the appurtenances ; sttid from thence, ufttll and^t the J^w^^Sn 
time of the determination of the faid demife of th^ fiid ffe^ei^l ftc j and 9ai 
clofesin which, ©t^. to the faid John Knrgbt, wa'sand eoiitinu^d ^^^[^ 
fo i"eifc<! thet^of, immediately fronl and alter the dHel-minatiOn enafng Jr ^c 
of the drrhife of th6 faid leveral clofes in which,' fi?c. tbtlie faid itifc tetlie- 
^^Ti?^^ /C»;^/:/ became and wa^, anci yet is feififed in Msdemefne /"""<* J«^f [ 
as of fee, of and in the faid fcvetal clofes in whicHi ^r. and tlie tniltfiati^.K, 
faid John John's furthfer fays, tiiat tht faid Pehr-Knight^ at the hid^io r.cci^ce 
time of rhe^makrng of the (^d demife by the 4aid Peter -ktii^ht '^!^J!;i^^ 
to the hidjo/ephi in the faid plea mentioned, or at any ti*fhe to defendant* 
before br aK^f^va^ds, had nbt any licence in writing ffoik^the faid Whitley to 
Chrifldpher Harris, his hfeirs or affigiis, to fit ot />/ thfe ftid ^^'•^^'f®, 
fcveral ctefts in Whith. fc?r. or any pto ther^bt, to thi Aid /<7- w^'ngfoUy ^ 
/^A, or iif^ dA\^ p^rfon or^peVforf^, tp tillage!; imh thaltheffe. ploughed, Arc. 

' lore the faftf yofeph, St the Hid tftni in thti faid pida in that f J «»;« ^^\ 
behalf Ihe^tiofied, at the parifli immid, wrofi^fuHy arid ih- S!ef"oir" 
jurioufly ^loiiglied tb^ faid ji:loles' irt which; &t. and fowid wrong did 
the fame with corn; and that h^ the Pdih Jojeph, a*id P«« «^^*>« . 
the faid Edward WhUley arid Pet^ Bennett, aft^r futH foW- i^d^tiHli! 
ing, and after the deatt 6f the fiifl Reter Knight, (to wit) at 
th^ faid ftvtral times' when, &c. of their 6wn y^^rong broke 

. anJ entered into the faid fcveral fclbfes in which, &c. ana trod 
^'wn, cohlBihed and fpoii^d tlie ^ft thdre crowing, with feet 
in walking; and eat up, trod doi^n, c^hiumcd and fpoiled 
thi faid oth^ grafs riiere itfo growing,' wi^li the faid catfle 
in the faid detrlsfraiibii m^itti6n^d ; and with the wh^ds of 
drifts, i^akgons inA difher cvitri^cs^ tort ' \\p, ttirned up; fub- 
verkrf attdl5f>bikt! the fold f6H of thofe ctefes, ift Which, &c. 
it lAAiiHt^ ^ dim «s die faitf ^hn Johh ha^h tbbve in 

iL 4 " and 



ia6 M^OHAELMAS Teim 11 Geo. IIL 1770. 

fiihoCfSic. artd by his faid declaration complained againft them; arid 
this he is ready to verity : wherefore, in as much as the 
faid J^q/iph £,dward If^hitley^ and Peter Bennett^ have 
above acknowledged that trefpafs above done, he the faid 
Joht^ Johns prays judgment and his damages, on occafion 
And as to the of that trelpafs, to be adjudged to him, &r. and as to the 
^^1 -"/*" faid plea of the faid Jpfeih Edward WliilUy, and PeUr Ben^ 
RepiKirion*'* *^'^» fccondly above ple§idcd in bar, as to the faid breaking 
M to break- and entering oF the refidue of the faid cities in the faid declaration 
'"fid**'f^hl mentioned, and which, (Sc. and treading down, confuming and 
Swcteftu f?o*"ng the grafs there lately growing, with feet in walking; 
and eating up, treading down, confuming and fpoiling the faid 
other grals there alfo lately growing, with the faid cattle iu the 
faid declaration mentioned ; and with the wheels of carts, waggons 
and other carriages, tearing up, turning up, fub verting and 
s " V fpoiling the foil of thofc clofes above done; ftys that he, by 
■ any thing above in that plea al lodged, ought not to be barred 

' from having bis aforefaid a3ion thereof mainuined againft them ; 
, Waiatiff con- bccaufc he lays, that true it is, that the faid Chnflopher Harris 
" H^ww^eifed ^^' ^^ feifcd in his demefne as of fee, of and in the faid clofes 
. ioVee, and in this replication above particularly mentioned, refidut^ 0<. jn 
the reft of the which, {^c. and dei^ifed the fame to the faid John Knight^ foe 
dlSwerin^up ^^^ '^^ ^^^^ ^^ ^^^ ^**^ P^^* in that behalf mentioned,' com- 
poficffioa of . mencing and determinable as therein is mentioned \ and that the 
cbere£dae of faid Edward Mitchel Sihevwdivdu died; and that uporv bis dfath, 
ih! Wotlff *^® '^^^ eftate, fubfi fling of and in thofe clofes, r^due^&c, and 
*^ 'in which, £^c. at the time of the making of. the faid deinife to 
.V the faid John Knight^ ceafed and determined: and that the faidi 
John Knight entered upon thofe faid clofes,, rf^^tte, &c, and in 
M^hich, &c. and was pofieli'ed thereof for the (aid term, fo there- 
of demifed :to him a$ afctefaid, determinable as aforefaid ; and 
being fo thereof poifefledt the kid Mary Knight ^ti^ and that 
the laid John Knight being fo poffeifed of the faid clofes above 
in this replication mentioned, for the term aforefaid* determinable 
as aforefaid, he the faid John J^night made his lail mil and 
teflament in writing, and thereby conilituted and appointed the 
' ' faid Peter, Knight executontbcreof, and afterwards there died, fo 

.poffcffcd of thofe clofes, parcel, ii?c. and that by means of the 
faid premifes, the faid P^^^rr /C^t^^// entered into thofe clofes, 
rsfdue^ £?c, and in which, fi^c. and waspofleffed thereof for the 
refidue.of the faid term, determinable as aforefaid ; and being fo 
. polfeifed thereof, he the bSA Peter Knight denjifcd the faid clofes 
above in this replicatioti particularly mentioned, in, which, ^c. 
^ refidue^ S3c. with the- appurtenances, to the laid Jofaph; and 
that by virtue thereof the faii} Jofeph ^ntercjd inta thofe clofes, 
^ ' and Mff|s ^herepf poffefTed; and; that the faid Peier Knight died ; 

and 



Michaelmas Terx 1 1 Gso. III. lylft. 137 

and that tb«rcupon the faid diemife, fo made hy the Dud P^ier 
Knighl to the laid Jofcph as aforelatd, ceafed and determined, 
ami the ikid Jofiph quitted 9Bd delivered up the poflcOion of thofe 
ciofcs to the 'laid John Johns^ to whom the fame then belonged, 
as the faid JoJ'cph, Edward Whitley, and Pettr Bennett, have 
above in their faid plea in bar alledzed ; but the faid John Johns but th«t the 
further fays, that the faid John Jonns^ before and at the time of pla»ntift', be- 
the end and determination of the faid term of ninety-nine years, ^^^^f^y^^ 
s»id alfo before and at the time of the faid Jofeph'& faid quitting faid kafeof 
and delivering up of thofe clofet above in this replication par- 99 y«^*> »<1 
jicularly mentioned, parcel, 0c. and in which, &c. was and jh[**^*,^^f ^ 
ilill is ieifed in his demefne as of fee, of and in tKbfe clofes^ defendant 
refidue^ &c. and in which, &€. and that the faid Jojeph, Ed- whitiey^s 
TvardWhitUy, and Peter Bennett at the faid feveral times when, J.^^*^' 
^Cf of their own wrong, broke and entered thofe clofes in this and^muu**' 
rephfiftipn above particularly mentioned, tefidue of the faid clofes feifed la fee \ 
in the And declaration mentioned, and in which, &c, and trod !",f^^^^ 
down, cpnfumed and fpoiled the faid grafs there then growing, imjurmjiui 
^uriih feet in walking ; and eat up, trod down, confumed and frofris, did 
fpoiled the faid other grafs there alfo then growing, with the ^ twfpaft, 
laid cattle in the (aid declaration mentioned ; and with the 
wheels of the faid carts, waggons and other carriages, tore up, 
turned up, fubverted and fpoiled the faid foil of thofe clofes m 
i^hich^ &<:• in manner and form as' the faid John Johns hath ^ ^ . 
above thereof complained againll them; without this, that the p.*^ ^ ^ 
faid Peter Knight was living at the time when the faid Jojeph fo living at the 
ploughed 'thofe clofes, and lowed the fSme with com, as the ^* J'^*" 
laid Jofeph, Edward Whilky and Peter BewHtt, have above J!^^^u^ 
in pleadincr, .in that behalf alledged ; and this he is ready to 
verify: wherefore, in as much as the faid Jojeph^ Edward 
Whitley, and Peter Bennett^ have above acknowl^ged the faid 
trefpafs above done, he the IdiA^John Johns prays judgment and 
bis damages, by reafon thereof, to be adjudged to him, &r. 
* . '/ J.Burland. 

And the faid Jojeph Whitley^ Edward and Peter Bennett^ Rejobder/ 
as to the plea of the faid John Johns, by hini above pleaded in 
reply, as to the faid plea of the faid 'J^tfh Whitley, Edward ^nd 
JPeter Bennett, fecondly above pleaded in bar, as to the break- 
ing and entering the- faid clo(es, called Well Pari, and Three 
. Pieces, otherwife The Three Pieces, parcel of the faid clofes in 
the faid declaration mentioned, and in which, £?c. and treading 
down, confuming and fppiliag the faid other grafs there lately 
growing, with feet in walking, and eating up, treading down, 
confuming and fpoiling the graft there alfo latelv growing, with 
the laid cattle in the. Udd declaration mentioned, and with the 
liirheels of carts, wafggon$,.and other carriages, tearing up, turn. 

ing 



138 Mr^HABLMAS Ti£RU 1 1 KsBO. III. 17^6. , 

in^up, rubTeitihg and fpoiling the foil of thofe elofes, by thefn 

Confeflea thei abovc fuppofed lo be done, fay, that true it is, thai in and by 

I'^th!''^^ the faid. indenture of leafe from th« faid Chnfiophtr Harris to 

years ; 'and ^^^ ^^^^ Johfi Knight^ it IS pTovided in manner and form as m 

that c. H. the faid plea of the /iud John Johns firft above pleaded, by way of 

tcJct? ^^ "^^P'y " alledged, and that the faid Chriftopher Harris did devifq 

-^.V."nd ^^^ "^^ reverficH of and in the faid clofes in which, &c, to the 

thtt V^.il. faid JViUiam Harris and ht& heirs^ and afterwards died feifed 

fci?"7^' of the faid revetfion^ v^n whofe death the faid revtrjion^ by 

leaf^"thr" virtue of the faid devife, came to the faid WiiiiAm Harris ^ mA 

rame to the that the (aid WilUdm Harris thereupon became feifed of the faid 

pWntiff: r«Af(yf{wi in hi^ detnefne as of fee^ and bei^g fo feifed thereof, 

the reft rfSe b^rsained^ fo/di and relm/kd ih^ (kid rev^Jton to the faid John 

firft ^art of y^hns and his hetrt, and that the faid John Johns by virtue 

riic f^ca- thereof, and by force of 'the ftatutb for transferring ufes into 

y^^ poiTeilion, became and was feifed rfs of fee* df and in the faid 

whole rtvtrjion^ with the sppurteiiances, and frofn tb«^ce tfnti]« 

amd at the time of the dSlermttiation of tlie faid demife 6f the 

faid fcvenil ciofes, in which, (3€. • to the faid Jt^n Kkight^ Mr9&^ 

dnd continued fo (eifed chere«»f< vtni immediately fr&tH ^d aft^r 

the determinatidn t>f tte faid'de)f>ife of the faid' fev^fail ck(f«<s, 

. in wbkh, &c. tcvthe fnid J^ka Kntght^ becapfMf, ailct 'i^as, Md 

yet is feifed in hi^ demefne, afs 6f fee of and in the faid ftfveral 

xlofesy' in which, &c. and (hat the faid /V/^fi* Knights at the 

time of the making of the faid demiie, by thef filid Piitr^ 

Knight td the faid J^0h, \ti the faid plea ftientbued, 6f ai atny 

time belbre or after, liad iicnMy UcetH:^ ki ^#iting fronv tlie 

&id Cknfhpker Harris ^ Kis heirs or aifigh^, fd/r/ ot kt thd faid 

. feverat^cbfas, in which, &r. or aify part thenftbf td the feld 

jfofiph. Of my other pe^ffon or fierfeil^ w ulhgt, in nfartiter and 

But defend, farm as in the faid plea firft advicM: ^teaded kt r6[^is ailedged, 

. WIS f-y, that bar tint the MA J^kpk Whiiky, Edtt^ard and Pe^r BtHtUii 

tl nltTt!^ f ur*^ bifr dfat the (m >A* >**^ did ndf «fc any tiitt€ dufii^g 

enter during ^^ f«^ ^^V^i fo demifed, bv the faid Chrijlotker Harris^ to 

the term fub. the faid John Knight as aforelaid, re-fnter into the faid demifed 

**'»»«- premifej, t^kb life appatt^affc^Sy or arty ^rt-tlifcrao*, afiAthis 

the fafd 7^/>A WhiVliy^ idtoardtai Pettt A^hhM sWt* r**ly 

to verify; n^herefdrt? they pmy JAidgiA^rit if^thefeid Ji^kn 

fi tf',?^' >»Artj ought to hat«e or miimatrr hii» faid a«i<Wrf th^Vebf. ^fnsxtktL 

«hcrpirt%f thtm,«r. ^drh6imd^Thf€phmilUy,Edtva^d^Ni^A^ 

the replica, ncti, ss to tlw faifel pilex 0* lh<f f*d Johri^J^hfis,^ by Kim aboVe 

tioi,, defend, pleaded ii»»eply, as fo the feidf leip<rf^tlrftf fold 5^^ tl^hitley, Ed. 

Sit atVhc «^^ "^ iWr^««iw«,fecbftdl>'^bow^I(!»fedriw bttr, « to the f^d 

tiine of breakiw asid eiimtefg of tlM^ r^ii? ^f tW^ faM rfofa, in Ac 

^^nl^^^L ^^ dftcltfawfr OMmttontA}, a^d iti* i^WAv S"^. A* t*^kd}#g do\vh, 

Pete. KiUihf C<>«f<«irtr»«^'*iP<>»Kflf ttaf g<««ith)ll^^b^ gi-<^l«g, Withfcfet 

wM living i m^ ^'#ftn{p> ami Mtogi «p,.tri«dltf9 ddO^n; ddftfttftrilii'^ild'fedfl . 
?rti^ wuttN"'^ ^^^ faid other grafs there alfo lately growing, witb the faid cat- 
try. tU 



MiCfrA&L&TAs Tjkbm 1| Geo. Ill, 1^70^ 13$ 

tie in the fajd declaration mentioned ; and with the wheeh of carts^ 
vraigifoiis and other carriages fearing up, turmng up, fubverting 
and fpoiling the h'lV of tl^fe clofes, by them nbovz fnppofed to 
be done, as betorc, fay, that the faid P€(€r Knight was 
living" at the time when the faid "Jojkpk fo p!oughed thofc 
cloies, and fowed the fame with com, as the faid Jofepk Andiflue 
Whitley, Edward and PtUr Benmih *«vc above alledged, and of JJ^]""^"^';?^ 
this tney put theinfclves upon the country, C3c. ind the faid ^^^^^ 
John Johns doth tlie like. John Gtyftn. 

And the faid Jchn Johns, as to the faid plea of the faid Jo- Gencni de- 
fiph Whitley, tdward mi PeUr Jfenn^W, * above pleaded by """*X,^2;* 
way of rgoinder to the bid plea of the faid John Johns^ ^^e dofes 
above pleaded^ in reply to the faid plea of the faid joftph oUedWaii- 
\VhitUy, Edwards and Pder Bennett, fecondly above pleaded in ff^^J^* 
bar, as to the breaking and entering the faid clofes, called WM ** ****** 
Park, and Tkrte Piua, otherwife ilu Three Pieces, parcel of the 
feid clofes, in the faid declaration mentioned, and in which, 
&r* and treading down, confuming and fpoiiinjg the grafii there 
lately growing, with feet in walking, and eatinr up, treading 
4ow4i, confuming and fpoiling the faid other grais, there lately 
growings with the faid cattle, in thefoid declaration mentioned, 
and with the wheels of carts, waggons and other carria^s, tearing 
up, turning up, fubverting and fpoiling the foil of thole clofes, by 
tbem above done, fays, that tkai pica fo jpleaded by way of re- 
joinder^, and the matter therein opntained, are not fufficient in 
law to bar tlw laid John Johns, bom hsvinf his aforefiiiid adion 
thereof, matntained e^gainft the find Jojipk Wkiikv, Edward 
and Peter Bennett^ and to which iaid ple» fo pleaded, . bv 
way o£ rgoinder^ is manner and form at the Cme U above pleacU 
•d, hedm faid Jfokn Johns has no occafion, neither is he bound 
by the law of this zeahn to xnfwer, and tbi» he is ready to verify : 
wberefove^ fpr wasit of a fuiSciem rejoindiP ia this bc^sdf, he the 
^ Jokfn Johns, s» before, prayi judgmant and bis damages, on 
occafion of that trefpafs, to be adjudged to him, &c. 

J. Burland* 

And di» (aid Jojiph tFHtlnr^ Edtoantf^tti Peter Bemeti, JtHttietln 
for that tke* matter afon&id, by them above by rejoining at- i^^"^^- 
kdged (wluck>they ace rsacfy ta verify, at the court here (hall 
order^ la fottccenfe in latw, to bar the find John Johns from 
baying hS £siid a^oa aganoft themr the /aid ^J^^f 
Edward and Peter Bennett, which faid matter. the faia John 
-Johns hath not denied, nor any ways anfwered thereto, but en- 
tirely refiifeth to admit the verifying the CuMi yf9ff judgment, 
and that the fame; John Johns may be barred trom havmg his 
faid afiion againft them, &c. And becaufe the juftices here will CWw «/. 
f^ytftthemlelves of, and upon the prexxiifes before they giv.e •i^**^. 
ft judgment 



140 Michaelmas T|K5M 11 Geo, III. 1770, 

judgment thereon^ da\r is given ta the faid parties here, Until in 
eight days of Saint Martin^ to hear their judgment, for that tbcr 
faid julliccs lure are not yet advifed thereof , fSc* • 

This cafe was argued Naotmbtr aad, J770, by Serjeant Bur^ 
lanJ{oT the plaintifi, and Serjeant Glynn was prepared and readyt 
to have argued for the defendants. 

The queftion upon tiie pleadings,' for the eonfideration of the 
court was, whether the defendant Whitley had a right to enter, 
after the determination of the term of 99 year^, by the' death of 
Peter Knight^ and take the emblements of thofe clofes which he 
(Whitley J had ploughed and fowed, while his intereil at mllfub^ 
filled, and in the life-time of Peter Knight^ notwithftanding the 
/?rc[i;r/J that it (hould be lawful ior Chrijbpher Harris (theleflbr 
of the 99 years term) his heirs and affigns, to re-enter into the 
clofes in which, (3c. if the fame fhould be let to tillage^ without 
licence in writing from the faid Chrijlopher Harris^ his heirs or 
afligns, firft had and obtained ; as neither the faid Oirijlopker 
Harris^ his heirs or afligns, (or the plaintiff) entered before the 
determination of the faid term of 99 years, for the breach of the 
faid proxnfo or condition therein, by ploughing and lowing tli^ 
clofes in queftion. 

Ct. lit; SIS'. It was faid by Serjeant Burland^ that if the leflbr, his heir or 
aflignee (the plaintiff) bad entered for breach of the conditiou. 
be^re th^ determiaation of the' 99 years term, the defendant 
would certainly have had no right to re-enter and take the 

^ tmblementss and that although the plaintiff did not enter during 

the term for the condition broken, but entered only at the de- 
* termination of the term, it (hall have the fame effe£l as if he 
had entered for the condition broken, and he, being in by law, 
fhall take advantage of the breach of the condition, and tne de. 
fendant fhall qot have the emUements^ and take advantage of hif 
own wrong. ... 

AproVifoTn CuHa. The drovj/b could only operate during the continu- 

aie^fetore. ance oi the leaie; when Ma^ was determined, fhe provifq was 

condition* vanifhed and gone; and the plaintiff having never been in. pof. 

broken,can fcfGon by right &f re-entry for the condition, broken, can have 

only opefate «© ad vanUge thereof; and the defendant who ploughed and 

^Vm^nli' fowed thejand, has in law and juftice, a right to reap and uke 

yanjies ihc cmiUflients. 

when tbst ' ' . 

*n^«* Judgment for the defendant. 



MicHABLMAs Tebm 1 1 Geo. III. 1770« 141 

■'^ ' 

Lloyd verfus Williams. C B. 

' ftBbck.Rep. 

2^0 HN LLOYD (in his, own name only) fued outa com- puiatifrde- 
mon cafnas ad re/poruUndum quart cUu/wnf regit zpxnSiXhQ ^^l}^ **^ 
iendant, who being ferved therewith* entered his appearance; J^Ticc? 
and being now in court, the plaintiiF declared againft him» in an updi a »- 
a£lion qui tarn fro domino Rie quam fro/ei^o^ &c. and not in jg**^/*- 
any a£bon at hxs own fuit oniy^ %uo^in 

his own name 

It was moved by Serjeants Narts and Glynn^ that the declara* only^and 
tlon might be fct aJTide lor this (fuppofed) irregularity, or variance ^*' enoojh. 
between the capias and declaration. 

Serjeant Davy for the plaintiff infilled, that after the defend- 
ant had entered his appearance to a common capias^ and was in 
courts the plaintiff mi^ht- declare againft him m an a£lion qui 
tam^ &c* or in any other perfonal action ; that if a plaintiff 
fues out a capias with an ac etiam^ in order to hold the defendant 
to bailf in an a£lion upon the cafe upon qffump^: if he will 
waive his bail, he may declare in any other aQion againft the sS(nii«ii]]:« 
defendant, after he is in court: and of that opinion was the ^Wiite. 
court ; and held that the dieclaration in this cafe, in an action ' 

qui tam^ &c. was well enough, the defendant being in court, 
and having appeared to a capas fued out in the plaintiff's name 
only^ jiot qm tam^ £?c. 

Gulliveri on the dcmife of JefTcreys Efq. verfus Poyntz. Df^erf • 

C. B; with lU 

houiei, barns 

PJECTMENT of three mcffuagcs, fix acres of land, and tc^S^alSi 
^ fix acres of meadow, with the appurtenances, in the parifli upon or he- 
of Thackham in Bcrkfhirc. tried at the laft affizes, when a vcrdift f^^'^^^**' 
was found for the plaintiff, fubjefi to the opinion of this court fn,g^. 'the 
upon the following cafe; which ftates, laadi hcloofr 

^ O . ioglothc 

That William Smitk of Midgkam In com' Berks, oti the 27th JJ^"^ 
day of March 1706, purchafed the meffuages and tenements, ftBiick.Rcp. 
With the appurtenances in the declaration mentioned, all together 7a*« *• C- 
at the lame time, (as appears by the purchafe deed) in fee ; and 
being fo feifed thereof, by his will, dated the 24th day of iUov, 
1707, famongft other thin«} devifed in thefe words, viz. •• As 
" touching fuch worldly eftate wherewith God hath bleffed me, 
'* I give and dilpofe of the fame in the fql lowing manner and 
^' fonn; imprims^ I give and •bequeath to EhMcth, my well 

" beloved 



U^ MtCRASKHA* TiSBI II GfiO. lit, 177<1 

*' belored wife (whom I likewife conftitutCy make and or<laifl 
** my only and lole executrix of this my laft wilt and teftanient} 
" all and fingulkr Ay gO€fd» and ekattets, ready money, boo); 
** debts or other debts^^my debts being paid and funeral 
*' charges dircharged,» aapdl likewife thofe three aefluagesy <nie 
** ]y}^S '^^ being in the aboveiaid Midghafitj in the pariih of 
'' Thackhamt tl^ other two in Htnwtck^ in the faid pariih, 
" both in the faid county of Berks^ tviih all kouJisy darns^ 
'^JabUs.JlaUs^ &c. tk^fianis upon^ or belong ioAf/kid mtf- 
*^ fudges^ during htrnatural djc t 'mi I allb give hereby thitm 
*' that (he Ihall give to, or affign what (he leaves at her death 
V upon the (a^d mtffua^s^ the terta of thirty' days« to rid off 
*' and take away» ail gaodH> chattels^ £^c. that are or were proti 
•* perly her's) and afUr tkedeccaji of my faii tajfty Igsoe and 
•* oequtath the fame to Johh Jefiercys, and to the heirs male qf 
•• his body for efJer* 

William Smitk the teftalor died fiioife afterwards, in the jipsr 
1707 ; whereupon Elizabeth his widow entered uponthepreinifes 
in que(Uoii« aiHLhBvtni;iiiarriiedane JVorMnii, iheandher hufband 
Jiorman jpined wiib Join Jt^sr^s^{{ixfformg faimto haivethe ec- 
iHairidef' in/ee ia him* whnseaf be had only a remainder in tail J in 
conveying the ptemifesi in queftioain fee, (without kcv^ixxg or 
iujSering any fine oc rtcoYcry) whick by fevccal me/iw convey- 
.an/ces came to the deCsndant^s £id)er ki fee, crpon whofe deaTk 
the defendant enteroiL 

John J<lfftreys the remainder-man in tail died a few years ago ; 
and a bill being depending in the court of Chancery, between 
Benjamin TeffepeyslM heirin tail, (the \Q^t of the j^latrinffjand 
the defendant Poyntz^ that Court directed this ejefl/nent to be 
brought, in order to have the opinion of this court upon this 
(ingle quefti<ui, uiz^ whether by thewords* of the a^r// above 
plated, the lands and meadows (hall pafs, a^ well as the me^nager; 
no lands or mk^^^c;* being mentioned in the devif^ but only Mr<^ 
mffuages^ with aU koufes^ barns^JUbks^fialls^ et caieraf * 

This cafe was argued by Serjeant Nares for the plaintiff, 
and Serjeant Jj^hfon- ft^r. the defendant* Many cafea wete cited 
on both i^^y but a& none of tfaenv apply dire31y to therpoin^t, 
the 'court iaid no firfiGs. upon any orlthem^ and thefefoile I do 
ao^ (et them dowji here. After fome time ukea to conflder, 
tba cpurt g^ve judgment for the plaintiff^ thai tbe lands and 
mctidotifjf^jjkd by. the zoilli, as> well af the mefmges* 

Curia^ CaCtt ia the hook^ upon unlt^ maey (ttvt to gutde ns 
ymk xnoiftSk to gpQ€falrHileft«ui>^o.€ODftru£UQi»ofL^ in 

tinlls. 



woilis^ but linlefs a cafe cited be in everv refpeA direfily in noint, 
and agree in every circumllance with that in queftion, it will have 
litde or no we^ht with ihe court ; who always look upcm. the in- 
lention of thf teilator as the polar ftar direding ihea in the 
conftruGlion of anV/j. 

The teftator,. in the prefent devife, has clearly manifeftod his 
intention to difpofe of hi$ wkoU efiatc; for thus Ke begins, " As 
*' touching fuch worldly eilate wherewith God hath blefled me, 
** I «ve, c?c." And therefore, \i the woFds of the will will 
bear it, we muft determitie that he has therjcby diTpofed of his 
whole worldly eftate; by the word5, **fuch worldly tflattwhcre^ 
** with God hath bUjfed mt^^ means, ** I intend by this my mill 
•• to give everything I have in the world j-' and are more ^ora-i 
prehenfive, expreflive and forcible to take in the whole thing 
intended' to be given,, thsui any particular eilate or intereft in th^ 
Chingintended to be given* 

Ijf the mefluages and hnds had been purchafed at diffitrent See Cm. it. 
times, or had been occupied and enjoyed in feverai and diftinA 5]^^^ 
farms, it might have been doubttult whether the lands, (in ^^' ^ 
that cafe) would have palitd ; but as it appears, by the ilate of 
the cafe, that the teftator purchafed the whole together^ about 
one year and tM'o months before he made his will^ ai|d (we mull 
take it) was in pofleflion of the whole at the time of makiiig his 
willy (as nothing appears to the contrary) it feems very clear, • 
that he intended to devife the whole, both meffuagcs and lands, 
Weiay no ftre£i upon the words et cater a,: fpr i^ would b^ 
dangerous to fay, that &c» means lands ; however, taking the 
other words along with the &r. and all the circumftances above 
fiated together, they manifeft the tjcflator's. intention^ that thcv 
lands am meadow^ as well as the fnfffuag^s^ ihould pafs by the 
devife ; and we are all of opinion, that they did pafs thereby, 
as one integer or whole farm ; as much as if the teftator had bid^ 
** I give and devife all that my /arm, with the appurtenances, 
" which I purchafed of A. 5." which, \<ithout doubt, would 
have pafled the whole, both mejfuages and lands. 

Judgment for the plaintiff. 



•purogmortox^ 



144 MicjHiiBLMAs Tmm II Geo. UL I7f<l 



aBiacicRep. Throgmorton, on the dcmife of Robinfon, 'verfui 
7a8. s. c. Wha^rey. C. B. Ante, Ter, Trin. 10 Geq. III. 

[See ante p^t T^ ujisterm the cafe was argued the third time, by Serjeant 
i»5.] ,-* Bufland for the plaintiff, and Serjeant Forfler for the defend^ 

ant. See the full and cxa£l Hate thereof in the laft term. 

J. R. being Serjeant 5tfr/<a77i/ — ,7p^^ Rohinfon being feifcd in fee of th« 

feifedinfcc, copyhold lands in que^ion, on the ^xViA^y o[ Augufl 1720, fur- 

furrendered rendered the fame to the life of ^^ary Arnall (whom he then 

JwwLtoM.A. ^"tended to marry), and the lieirs of, their two bodies lawfully 

whom he in- to be begotten ; and for default of fuch iifiie, to the life of tlie 

tended to fight heirs of the f^\A John Robinfon, The marfiage afterwards 

€^Seiraof *^^^ effea, and Mary was accordingly admitted tenant of the 

their two prcmifcs in queftion. 

bodiei; and . ^ 

fv defiiolc of fuch iiTae to the itfe of fhe HgHt hein of the £iid J. R. RefoWed, that M. A. took U 

cAate for Ufe, with conciogent reniiunder to the heirs of the body of her and her hu(hjui4« . 

The queftlon Is, what eftate the wife took by the furrender? 
I am to contend, that fhe took an eftate in fpecial tail executed* 

It is laid down In BtTesfori\ cafe, 7 Rtp. 42. a. that fuch 
conftruclion of a'deed (hall be made, as to produce three effefts; 
1. To (land with the rule of law ; 2, With the intention of the 
donor; 3. That all the parts of the deed may ftand together, 
if this may be by the rule of law. 

In confideration of the marriage, the friends of the wife were 
bargaining with the intended hutband, for the benefit of her and 
. her children ; and it was never meant, that It fhould be in the 
power of the hufband and wife to bar the iffue ; which it cer- 
tainly would be, if (he only took an eftate for life, with a con-* 
tingent remainder to the heirs of their two bodies, as i& con- 
1 teo. pi. * tended on the other fide ; and therefore, to caiTy the intention 
133. Dyer of the parties inta execution, the wife muft take an eftate in 
8oi Lie* a6. fpecial tail : and in fuch cafe all the perfons will take the eftate 
Poiiex. 461. which was intended for them ; therefore the court will go as far 
^Rrfi r'* ^ poffible to effeSuate the deed of fiirrfcnder ; and will not 
*39i43'-^* favour a contingent remainder, if it clearly appears that the 
3 Leon. 4* intention of the parties was to create a better eftate for the wife 
and her ifiue. 

Serjeant F«w^^r for the defendant — ^Af^iry Arnall tooV. an eftate 
for life, with a contingent remainder to the heirs of the bodies 
•f keip and her huflMui^ It could not be the intention of her 

huft)and. 



MichaeLShas Term il Geo. III. I77(i. 145 

kifband, that (he fhould have an eftate tail executed; for in that Cn>.Car. 
cafe, if (he had furvived him; it would have been in her power '®*' 
to crive away the eftate from hi» chiWren by her; and he cited 'j^* ^*^^' 
Gofage veiius Tdytor, StyU 325. as in point, that the wife took 
only an eftate for life, with a contingent remainder to the heirs 
ofilieirtwo bodies ^ and after a few days taken to c^nfider, 
the court weie of that dpiniont and gaVe judgment for the 
dcicndant* 

t)o\vgall verjus Bowman. . C B. * Black. 721 

s.c. 

t^ERJEAKT Burland moved for leave to plead feveral pteas Thedeftod- 
^ u> K declaration in cafc^ upon promifcs ; viz. non (tffumpjit *?' """^ 
to all the, counts , and a tender ; which was oppofed by Serjeant lm,mp£e to 
Lcighy who infifted, that the conrfe and practice of pleading a all the county 
tender^ is, to plead it to party and non ajfumpfit as to all the rejb. ^^^ * **""<*" 
And of that opinion was the court; and refilled to give leave to fsle^AftfrW- 
plead ffi^ff a^umpfittoHtit whole declaration, and a tender as to ian^Mnoerd* 
part. 4jr«ri«ii«3p. 

'^ ' K.S. 194. 

S.P.] 

• Strithorft verfus Graeme £fq* C. Bv aBiack.7M. 

S.C; * 

/^ASE upon feveral promifes. The defendant pleaded, non Theftamtei^ 
^ ajfumpjil infra ftx anno s. The plaintiff replied, that he was " 
abroad at the time of making the* feveral promifes in the 



^ ajfumpjil infra fix annos. The plaintiff repliedv that he was l»m''tatioin 
oad at the time of making the* feveral promifes in the 1*" ^1011 
declaration, m. at A* in the kingdom of 5. and that he hath againft a 



ever (in'ce bQen, and ftill is, abroad out of this kingdom^ The pl«ntiff who 
defendant demurred, and the plaintiff joined in demurrer.. umilhe"o«Bi 

btothii 
Serjeant Glynn, for the defendant^ objeSed that the replica- "«*«• 
lion was ill ; but gave no reafon why it was fo, that I heard» 

Cufia. If the plaintiiT is a foreigner fas it (ejems he is), and 
doth not come to England in fifty years, he ftill liath fix years * 
after his coming into England, to briilg his adion ; and if h'e 
never comes to England himfelf, he has always a right of aftion 
while he lives abroad^ and fo have his executors or adminiftra- 
tors after his death* ^ An infant may fue before he comes of age, 
if hepleafes; but if he does not, he has fix years after he com\;s 
of age to bring tiis a£iion-. While any of the difabilities men* 
tioned in the (Utute of limitatioQS continue, the party may, but 
is not ob]ige<l to commence his aflion : the ftatute doth not run, 
while any of thofe difabilities continue. 

Judgmebt foe the plaintiff. 

VoL.III, L Tinkler 



U4 MlCBABLMAS TXAM It GsO. Ul. l^fd 



aBiacicRep. Throgmorton, on the demile of Robinfon, ver/us 
,18, s. c. Wharrcy. C B. Ante, Ter. Trin. 10 Geo. III. 



[See ante 



EWfc TN tbis term the cafe was argii^d the third time, by Serjeant 
,^ Bufland for the plaintiff, and Serjeant Forfler for the defend* 
ant. See the full and cxatl Hate thereof in the laft term. 



T.R. being Serjeant 5tfr/jw</ — ,7pf^^ RoMnfon being feifcd in fee of th« 

feifedinfce, copyhold lands in que^ion, on the firftday o\ Auguft 1720, fur- 

furrcndercd rendered the fame to the ufe of Afary --fr^j// (whom he then 

Jan<u^^^^ intended to marry), and the heirs of, their two bodies lawfully 

whomhein-' to be begotten ; and for default of fuch iifue, to the ufe of the 

tended to rjglit heirs of the faid John Robinfon, The marriage afterwards 

the'iieiraof *^^^ effeS, and Mary was accordingly admitted tenant of the 

their two premifes in qiieftion. 

bodies; and . ^ 

fof defimlt of fuch Miie to the itfe of the Hght heirs of the iaid J. R. Refolded, that M. A. took ka 

cftate for life, with comiogcot remainder to the heirs of the body of her and her hu^bW* . 

The queftion is, what eftate the wife took by the furrender? 
I am to contend, that fhe took an eftate in fpecial tail executed. 

It IS laid down in Beresford\ cafe, 7 Rep. 42. a. that fuch 
conftruQion of a'deed (hall be made, as to produce three eflefls; 
1. To (laud with the rule of law ; 2. With the intention of the 
donor ; 3. That all the parts of the deed may ftand together, 
if this may be by the riJe of law. 

In confideration of the marriage, the friends of the wif^ were 
bargaining with the intended hulband, for the benefit of her and 
. her children ; and it was never meant, that it fhould b^ in the 
power of the hufband and wife to bar the ifTue ; which it cer- 
tainly would be, if (he only took an eftate for life, with a con- 
tingent remainder to the heirs of their two bodies, as is con- 
1 teo. pi. ' tended on the other fide ; and therefore, to carrj' the intention 
133. Dyer of the parties inta execution, the wife muft take an eftate in 
8oi Ut! ft6, Special tail : and in fuch cafe all the perfons will take the eftate 
Poiiex. 461. which was intended for them ; therefore the court will go as far 
^£11 r'* ^ poffible to effeSuate the deed of Airrfender ; and will not 
*39i43''^' favour a contingent remainder, if it clearly appears that the 
3LraD. 4* intention of the parties was to create a better eftate for the wife 
and her ifiue. 

Serjeant F«w^^ for the defendant — Mary Arnall took an eftate 
for lite, with a contingent remainder to the heirs of the bodies 
•f keip and her hufl)an4i It could fiot be the intention of her 

huft)and. 



MiCHAiLkAS T£RM II CrEO. III. 1776. 145 

}i\](banH, that (he fliould have an eilate tail executed; for in that Cio.Car. 
cafe, if (he had furvivcd him, it would have been in her power »o** 
to (rive away the eftate from lii» chiWren by her; and he cited ',^ ' ^*^^' 
i^offagt vertus Tdytor, Style 325. as in point, that the wife took 
only an eftatc for life, with a contingent remainder to the heirs 
uftlieirtwo bodies 4 and after a few days taken to c^^nfider, 
Che court were of that opinion, and gaVe judgment for the 
defendants 

Dowgall verfi4s Bowman. . C B. t Black. 7*5 

tERjEAKT Burland moved for leave to plead fcveral pteas Thcdefend- 
^ to a, declaration in Ctf/r, upon promifes \ viz. non affumpfit *!****""** 
10 all the, counts, and a tender ; which was onpofcd by Serjeant Ijim^to 
high, who infifted, that the coiufe and practice of pleading a aiitUccounis 
tender, is, to plead it to part, and non ajfumpjit as to all the rejl\ *"'^ * **^°<*«' 
And of that opinion was the court ; and refiifed to give leave to f 5^* ^^^f/-/- 
plead nc^ff affuTn^fitioiitit whole declaration, and a tender as to lan^MfnoarL 
part. 4j«ri» Btf. 

* . ' K.B. 194. 

S.P.] 

• Strithoril verfus Graeme lEfq* C Bw ibucIcjij. 

s. c- 
f^ASE upon feveral promifes. The defendant pleaded, non Theftatvtecf 

can never be- 



^ ojfumpjil infra [ex annos. The plaintiff replied, that he was l*«m«tttioni 
abroad at the time of making the* feveral promifes in the gjUjomn 



declaration, m. at A, in the kingdom of S, and that he hath againft a 
ever firice b^n, and ftill is, abroad out of this kingdomv The plaintiff who 
defendant demurred, and the plaintiff joined in demurrer. untiihe'camM 

Into this 
Serjeant Glynn, for the defendant^ objefied that the replica- '«•*«• 
iion was ill ; but gave no reafon why it was fo, that I heard* 

Cufia. If the plaintiff is a foreigner (as it fejems he is), and 
doth not come to England in fifty years, he fiill liath fix years ^ 
after his coming into England, to bring his adion ; and if h'e 
never comes to England himfelf, he has always a right of aflion 
while he lives abroad, and fo have his executors or adminiftra- 
tors after his death* , An infant may fue before he comes of age, 
if hepleafes ; but if he does not, he has fix years after he comV^ 
of age to bring his af^ion*. While any of the difabilities men* 
tioned in the (tatute of limitations continue, the party may, but 
is not obliged to commence his aftion : the fiatute doth not run, 
while any of thofe difabilities continue. 

Judgmetitfot the plaintiff. 
V0L.IIL L Tinkler 



144 MlCRABLMAS TtAM 11 GeO. UL IjfA 



» Black. Rep. Throgmorton, on the demiie of Robinfony ver/iiS 
718, s. c. Wharrey. . C. B. Ante, Ter. Trin. 1 Geo. III. 

[See ante p^gt T^ ujis term the cafe was argii^d the third time, by Serjeant 
125.] v-*" Butland for the plaintiff, and Serjeant Forfter for the defend- 

ant. See the full and cxa£l Hate thereof in the laft term* 

T.H. being Serjeant 5tfr/tfh</ — John Rohinfqn being feifcd in fee of the 

feifeiinfcc, copyhold lands in que^ion, on the firftday of ^^/^Wy^ 1720, fur- 

rurrcndered rendered the fame to the iife of Mary Arnall (whom he then 

lanitoM.A. ^^^^^^^^ to marr}'), and the heirs of. their two bodies lawfully 

wbocnhein. to be begotten ; and for default of fuch ilfue, to the ufe of tlie 

tended to Ti^xt h^irs of th^ i'^xA John Robinfon. The marfiage' afterwards 

^Hiknoi *^^^ effeS, and Mary was accordingly admitted tenant of the 

their two prcmifes in queftion. 

bodies; and \ 

h^ defkolc of fuch iflTae to the tfTe of the Hght betrt of the iatd J. R. RrfoWed, that M. A. took ia 

cAate for life^ with coniifigeoC remainder to the beira of the body of her and her hufband* • 

The queftion Is, what eftate the wife took by the furrender? 
I am to contend, that ihe took an eftate in fpecial tail executed* 

It is laid down in Btrtsfori\ cafe, 7 Rep. 42. a. that fuch 
conftruflion of a'decd fhall be made, as to produce three effeflsj 
1. To ftaud with the rule of law ; 2. With the intention of the 
donor; 3. That all the parts of the deed may lUnd together, 
if this maybe by the rule of law. 

In confideration of the marriage, the friends of the wife were 
bargaining with the intended hu{band, for the benefit of her and 
. her children ; and it was never meant, that it fbould be in the 
power of the huft>and and wife to bar the ifliie ; which it cer- 
tainly would be, if (he only took an eftate for life, with a con- 
tingent remainder to the heirs of their two bodies, as is con- 
1 teo. pi. ' tended on the other (ide ; and therefore, to cairy the intention 
133- ^yer of the parties inta execution, the wife rauft take an eftate in 
So! LSc! ft6. fpecial tail : and in fuch cafe all the perfons will take the eftate 
Poiiex. 4^1. which was intended for them ; therefore the court will go as far 
^Rdi r'" ^ poffihle to effeftuate the deed of furrfender ; and will not 
»39»43''^* favour 4 contingent remainder, if it clearly appears that the 
3 hwa. 4* intention of the parties was to create a better eftate for the wife 
and her iffue. 

Serjeant jR^fyZ^ for the defendant — Mary Arnall took an eftate 
for lite, with a continffent remainder to the heirs of the bodies 
<»f be( and her huflMn^i It could not he the intention of her 

huft)and. 



MicHABLkAs TenM 11 CrEo. III. 1776. 145 

iiliKband, that (he fliould have an eilate tail executed; for in that Cit>.Car« 
cafe, if (he had furvived him; it would have been in her power '°*' 
to (rive away the eilate from hi» children by licr; and he cited l^^' ^*^^' 
Oojfage verlus Tdyior, Stylt 325. as in point, that the wife took 
only an eftate for life, with a contingent remainder to the heirs 
oftlieirtwo bodies 4 and after a few days taken to c^^nfider, 
the court wei*e of that opinion, and gaVe judgment for the 
dcfendantk 

Dowgall verjus Bowman. . C B. t Black. 725 

^ERjEA^^T Burland moved for leave to plead fcveral pteas Th«defcnd- 



^"^ *t\ 9 



to i^. declaration in ctf/?, upon promifes ; viz, non offumpfit 
t4) all the counts^ and a tender ; which was oppofcd by Serjeant \jLmpJtto 
Logh^ who infifled, that the courfe and practice of pleading a aiithccoDnis 
Under ^ is, to plead it to part^ and non ajfumpfit as to all the rejb, *"'^ * *"<*" 
And of that opinion was die court ; and refiiled to give leave to [see ^^^cW- 
pieadf}£»/i ajjumffit xxiiSxt whole declaration^ and a tender as to lan^.u^nonrd. 
part. \7Kr^' 

* . . ' K. S. 194* 

S.P.] 

• Strithoril vef^ Gr®me lEfq* C Bv aBitck.7i3. 

s. c- 
/^ASE upon feveral promifes. The defendant pleaded, non Theftatutecf 
^ Mjfumpjil infra fix annos. The plaintiff replied-, that he was limitttiont 
abroad at the time of making the* feveral promifes in the liJJtrrun 
declaration, viz. at A. in the kingdom of 5. and that he hath againft a 
ever firice been, and ftill is, abroad out of this kmgdomv The pl^ntiff who 
defendant demurred, and the plaintiff joined in demurrer*. untUh«cS»!a 

bto this 
Serjeant Glynn, for the defendant> obje&ed that the replica- «•*«• 
iion was ill ; but gave no reafon why it was fo, that I heard* 

Curia. If the plaintiff is a foreigner Tas it fe^ems he is), and 
doth not come to England in fifty years, lie ftill liath fix years ' 
after his coming into Eneland^ to briilg his adion ; and if h'e 
never comes to £fl^/a»^ himfelf, he has always a right of a£lion 
while he lives abroad, and fo have his executors or admin iftra- 
tors after his death* ^ An infant may fue before he comes of age, 
if he pleafes ; but if he does not, he has fix years after he comV^ 
of age to bring his af^iom While any of the difabilities men* 
tioned in the (Utute of limitations continue, the party may, but 
is not oblige<l to commence his a6lion : the fiatute doth not run, 
while any of thofe diiabilities continue. 

Judgmetitfor the plaintiff. 

VoL.IIL L Tinkler 



144 .MlCRi£LMAS TtAM II GeO. tIL 17^6. 



» Black. Rep. Throgmorton, on the demiie of Robinfon, ver^ 
718, s. c. Wha^rcy. ^ C. B. Ante, Ter. Trin. 1 Geo. III. 

[See ante m« T^ tbis term the cafe was argued the third time, by Serjeant 
125-] , Butland for the plaintiff, and Serjeant Forfter for the defend- 

ant. Sec the full and exa^l ibte thereof in the laft term. 

T.R. being Serjeant 5 tfr/flWi/ — yphn Robinfon being feifcd in fee of the 
frifed in fee, copyHold lands in quc^ioi), on the firft day of ^/y^w^ 172b, fur- 
rurrendered rendered the fame to the ixfe of Mary Arnall (whom he then 
iwd^ttoM.A. nitended to mexry), and the heirs of, their two bodies lawfully 
wbocnhe in.* to be begotten ; and for default of fuch iffue, to the life of the 
tended to right hcirs of th^ faid John Robinfon. The mari^iage afterwards 
S^SdrTof *^^ effeft, and Mary was accordingly admitted tenant of the 
their two premifcs in qiieftion. 

bodiei; and . v 

lor. defiralc of fuch iflUe to the tffe of the HgHt beirt of the 6td J. R. Refotved, that M. A. took ka 

cftate for Ufe, with coniifigcnt remainder to the beira of the body of her and her bufband* ■ 

The quellion Is, what eftate the wife took by the furrender ? 
I am to contend, that (he took an eftate in fpeciai tail executed. 

It is laid down in Beresford\ cafe, 7 Rep. 42. a. that fuch 
conftruftion of a'deed fhall be made, as to produce three effefls ; 
1. To Hand with the rule of law ; 2. With the intention of tho 
donor ; 3. That all the parts of the deed may fland together, 
if this maybe by the rule of law. 

In confideration of the marriage, the friends of the wife were 
bargaining with the intended hufoand, for the benefit of her and 
. her children ; and it was never meant, that it Ihould be in the 
power of the huft>and and wife to bar the ifliie ; which it cer- 
tainly would be, if (he only took an eftate for life, with a con- 
tingent remainder to the heirs of their two bodies, as is con^ 
1 Leo. pi. ' tended on the other fide ; and therefore, to cany the intention 
133- ^«' of the parties into execution, the wife rauft take an eftate in 
St Lk! »6. fpepial ^ai' -. ^uid in fuch cafe all the perfons will take the eftate 
Poiiex. 4(1. which was intended for them ; therefore the court will go as far 
^Rdi S'* ^ poffible to effeftuate the deed of furrfender ; and will not 
*^|jjg7* favour 4 contingent remainder, if it clearly appears that the 
3 lA». 4. intention of the parties was to create a better eftate for the wife 
and her ifTue. 

Serjeant /W/l«^ for the defendant— Afary Arn&U took an eftate 
for lite, with a contingent remainder to the heirs of the bodies 
<»f kc( and her huflMn4i It could tsot be the intention of her 

huft)and. 



MlCHAELkAS T^RM 11 6eo. III. 1776. 145 

111] (band, that (he fliould have an eilate tail executed; for in that Cio.C<r. 
cafe, if (he had furvivcd him, it would have been in her power '®** 
tn CTive away the eilate from lii» chiWren by her; anci he cited '^^ * ^*'^^' 
Gojfagt verluis Tdyiory Style 325. as in point, that the wife took 
only an eftatc for life, with a contingent remainder to the heirs 
ufiJicirtwo bodies i and after a few days taken to ctfnfsder. 
the court wete of that bpinion* and gaVe judgment for the 
dciicndantk 

t)o\i*gall verfi4s Bowman. C. B^ t Black. 723. 

s.c. 

^ERJEAKT Burland moved for leave to plead feveral pteas Tbedefeod- 
*^ to a, declaration in cafe^ upon promifcjs ; viz. non affumpfit *!***""** 
to all the. counts, and a tender ; which was oppofcd by Serjeant l^mp/ltto 
Laghf who infifled, that the courfe and practice of pleading a aluhecoontty 
tetider^ is, to plead it to fart^ and non ajfumpjit as to all the re/h *"*^ » *«^°^«' 
And of that opinion was the court; and refuled to give leave to fsee^Ai^W- 
plead non aff'uvfjpfit to iht whole declaration, and a tender as to ian^M^^wrd^ 

part. t?'^'"*3P- 

'^ . ' K,B. 194. 

S.P.] 

• Strithoril verfus Graeme lEfq. C Bv aBitcic/ij. 

s. c. 
/^ASE upon fe%'eral promifes. The defendant pleaded* non Theftatvtecf 
^ ajfumpfil infra fex annos. The plaintiff replied*, that he was l»m«ttriont 
abroad at the tinie of making the* feveral promifes in the g*" toron 
declaration, viz. at A. in the kingdom of S. and that he hath againft a 
ever fm'ce bqen, and ftill is, abroad out of this kingdom^ The plJindff who 
defendant demurred, and the plaintiff joined in demurrer. L^tlih«e»«w 

Into thif 
Serjeant Glynn^ for the defendant^ objefied that the replica- »«•*«• 
tion was ill ; but gave no reafon why it was fo, that I heard* 

Curia. If the plaintiff is a foreigner (as it fejems he is), and 
doth not come to England in fifty years, he fiill liath fix years ' 
after his coming into England^ to bring his a^Uon ; and if h'e 
never comes to England himfelf, he has always a right of a£lion 
while he lives abroad, and fo have his executors or admin iftra- 
tors after his death* , An infant may fue before he comes of age, 
if he pleafes ; but if he does not, he has fix years after he com^ 
of age to bring his a£iiom While dxvy of the difabilities men* 
tioned in the (tatute of limitations continue, the party may, but 
is not oblige<l to commence his a6lion : the fiatute d(Hh not run, 
while any of thofe difabilities continue. 

Judgmetitfot the plaintiff. 

VoLMh L Tinkler 



146 MiCHAStMAS Tbxm 11 Gbo. ni. 177^ 



Tinkler verfus Poole and another ^r B. R. 

TKweriiei cf ROVER, for twenty-three iarr^tr of kerrines. Upon not 
•gairtftofficen -£ guilty pleaded, this caufe was tried at Wtfiwinfltr^ before 
tent^, for ^o^^ Mansfield. Verdia for the plaintiff. Damages 28/. 15X- 
makiog a cofts 40J. fubje£l to the opinion of the court, upon thefe ibort 
wroiigfoi fafts: viz. 
iazare of 

[5 Bum The defendants, being officers of the Jolt duties, tortioufly 

»057. S. CJ fcifed the /i2/rti(y.//zrtf^ barrels of herrings ; -the plaintiff demanded 
the herrings to be reftored to him which was refufed, and 
they were condemned by the commiffioners of the^^ duties: it 
appeared at the trial, there was no legal foundation for fuch 
condemnation. 

Mr. Dunning, for the defendants, objefled that /r^txrr did not 
lie againft the defendants ; for that the feifure of the herrings, 
and putting them into the Cuftom-houfe warehoufe, could not 
be faid to be a converfian to the ufe of the defendants, the 
Kind's officers, but trefpafs,. or trefpafs on the cafe : and he cited 
Bund. 67, 68, 8a. 

But per curiam: — ^The King had m> property ; fo the goods 
were tortiouflv feifcd by the defendants, which was a converfion 
in the defenaants, the officers^. And the cafe in Bunb^ 67. is 
not law. 

Judgment for the plaintiff. 

Bufcall and others, Affignees of Thickpenny a Bank-' 
rupt, ver/iis Hogg. C. B* 

A new trial ^ ROVER for a great many goods, to the value of 700/. 

^Smiff^ Upon not guilty pleaded, this caufe was tried at the laft 

vrithout^ofts, affizes for the county of Norfolk, before Lord Chief Baroii Par^ 

he haying ker. Whereupon it appeared on the plaintiffs 'evidence, by 

been impro- fevcn witneffes, that Ttnckpenny was an inn-keeper; and that hie 

foitcdT""' ^^^ °"'y f^'^ liquors to hiigatA^fho^tantibusJ in his inn, biit 

^ alfo fold diveis quantities of wine, rum and brandy, by four, five 

and fix gallons at a time, to feveral perfons living two And three 

miles diftant from his inn, for them to retail out and fell again, 

and had done thus for fome years; whereupon it was infifted by 

the counfel for the plaintiffs, at the trial, that this fort of trading 

by, an inn-keeper, made him liable to acommiffion of bankrupt : 

but 



MicipiStius Ttfm 1 1 Geo. lit. l77o. )47 

but the Cki^Bar^, without Itearing any other £videDce,%v'as 
9f adiflferent opinion ; and ordered tlie plaintiGTs to be nonfuitcd. 
with leave to move the court for a new trial, without cofU, in 
cafe he wai miilaken io bis opinion. 

And now upon the motion of Serjeants tiliitai^ and TorJUr^ 
to fc;^ afide the nonfuit, the court was clear of opinion, that the 
plaintiff ought not to have been called, but the matter ought 
to have been more fully fifted and gone into at the trial ; that 
it not appearing to the court here, what proportion Thickpcnny'% 
track in bi« inn bore to his trading abroad and out of doors, 
they could not judge whether he was liable to be a bankrupt 
or not ; and therefore they fet afide the nonfuit^ and granted a 
new trial without Cofis, 

Nota. It was faid by l^Um^ Chief Jullice, that if Thicks 
penny % trad6 and profiu in his inn was much larger than his 
trade and profits abroad out of the inn, he fliould inchne to think 
that he was not liable to he a bankrupt. Jf it ihould come out 
in evidence that Thickfenny ffot 600/. per annum in his inn, and 
not 600^. per annum by fending out and felling liquors abroad ; 
be feemed clear in opinion, that he could not be a bankrupt. 
However, as there was general evidence that he was a trader out 
of bis inn, the plaintiffs ought not to have been nonfuited* 



U 



SlmrnQOS v^f^ Shannon. C. B. aBUek-Btp^ 

7ft5. S. C. 
PON a motion on behalf of the defendant, to fet afide the 



Judgment in debt on a bond for irregularity, it was fwor» J^^« ?'• 



by the defendant's attorney, that he had put in bail for her, b^jny^, 
but that he bad never received any declaration, or any notice of whether ne. 
a declaration being left in the protbonotaries office ; which upon J^V^ ^"J 
Ihewinff caufc was admitted to be true, but at the fame time it ^■'^"'■* 
was infilled on behalf of the plaintiff, that tlie judgment was 
regular; for that, by the known praftice of the court where 
fpecial bail is put in by the defendant's attorney, there is no oc* 
cafion to give him notice of a declaration being entered and 
filed in the office, but he ought to fearch for It there. There 
being a variety of opinions among the protbonotaries andfe- - 
conoaries, touching this point of pra£lice, the court fet afide the 
judgment upon payment of cofis to plaintiff*! attarney^ and /aid 
they would make a rule tojittu this point of pra£lice. Nota, the 
capias was returnable, the firft return (November 3d) declaration 
lett in the office de benerffe^ November oth, bail wa^put in on the 
8th, on the 10th exception was made- to the bail, on the 13th 
the bail juftified; on the 14th plaintiff !s attorney found plea ot 

X. a xovertiiie 



i48 Michaelmas Teem 11 Geo. III. 17 70. 

coverture in abatement in the office, and To figned judgment « 
the plea being put in after the four days. Per (Jhiei Juffice, k 
is a good defence. Per Gould Juftice^ Let it not be underftood 
by our fetting afide the judgment under the ctrcnmilances of 
this particular cafe, that the court means hereby to enlarge the 
time for pleading dilatory pleas beyond four days. 



HILARY TERM. 

11 Geo. III. 1771. 



ifilack.Re|i. '^fAKVARY 23<f, 1771, Mr. 9aron Smytht and Mr. 
734- J' ^M^ic!^ AftoHy x\wo of the lords commiilioners of the great 

a69i[ *^ feal, fat in the court of Chincery this morning: at noon the 
lords commiflioners 'refigned the feal to the King, when his 
majefty was pleafed to give it to the lord commiflioner J^^Mut^?, 
one of the juftices of his majefty *s court of the bench, with the 
flyle and dignity of Lord High Chancellor of Great Britain^ be- 
ing lately created a peer of the realm, by the ftyle and title of 
Henry Lord Apjley^ Baron of A^ty^ in the county of Sujftx. 

January 25th Sir George Nares^ knight, one of the King's 
ferjeants at law, was appomted by \\\t majefty a juftice of his 
court of the bench, in die room of Lord ApJUy, 

Jdniiary n&ihi, Sir JVilliatn deGrey^km^U the King's attortie)it 
general, was called to the ftate and degree of ferjeant at law. 
and appointed by the King lord chief juftice of his majefty 's 
Court of the bench ; tod 

On Monday, January 28th, the right honourable lord chief 
juftice de Grity^ and the honourable Mr. Juftice Nares took their 
reipe£livt places id coUrt. 



IlaARY Tebm 11 Geo. III. 1770. 14$ 

On Monday^ February the 4th, Richard Leigh ferjeanC at law 
iwifTed Iiands, on being appointed one of the king's ferjeants ; he 
was fwom in the 510, and took pl^ce in the courts on the 6ch 
i^ February. 



Melchart and others verfusY{v\(ty and others, Executors. *^.'*^1'^'- 

C.B, '"'•'•'^ 

^HE plaintiffs brought an a£lion upon the cafe, in the la what cafe 
•■'. court of King's Bench, figainft the defendants, upon a ^*^f^"^ 
contrticl made between the plaintifis and the tefiator of the until coftiV 
defendants, for forage found and provided by the plaintiffs, for • Donfuit in n 
Ihe Briiijh troops in Germany^ in the laft war, at the inilance f"|^ *^^ 
and rcquelt of the faid tellator. to the amount of 10,000/. amcMrtJct 
which was tried before Lord Mansfield^ at the fittings after laft be pn^. 
Eqfter term, when his lordfhip being of opinion (upon the evi- 
dence then given) that the contra^ was made upon public 
faith and credit of the government, and not ,upon the credit 
of the teftator of defendants, fo the plaintiff were nonfuited' 
upon the merits. 

In Trinity term laft, the plaintiffs moved the court of King's 
Bench for a new trial, which was refufed ; the. whole court 
being of opinion (upon Lord Mansfield's report) that the cpnXTzt\ 
w^s made upon the credit of the government, and not of the 
teftator of defendants. 

In Michaelmas terra laft, the plaintiffs brought another (the 
prefent) a£t ion upon the cafe againft the defendants, and have 
declared upon the very fame contraQ ; the plaintiffs have alfo 
filed a bill in Chancery. 

In the prefent term. Serjeant Burland^ on behalf of the de- 
fendants, moved, that proceedings might be ftaid in this aflion, 
until the plaintiffs ihall have paid to the defendants, the cofts of 
tiie noufuit in the former a&ion in B. R. which had been taxed 
by the matter at 48/. tos. He made this motion upon two 
grounds ; i/f, he produced an affidavit of all the fa£ts above 
ftated, and that the plaintiffs were foreigners, refiding in Gcr* 
fnany^ out of the reach of the procefs of the courts here. 2^/)', ^ 
Th^ it appears from the fa£l ftated in the affidavit, that this 
fecond aUion is vexatious, the court of £. i?^ having unani* 
moufly given their opinion, upon the motion for a new trial, that 
the plaintiffs have nd right of a£Uon upon the above contra£l, 

L^ and 



isb RaAfit Tebm 11 0»x IIL 1771. 

and thcfefore upon .that ground alone (tlio' the plaintiffs had not 
been foreigners) ht fubmitted, that this court would fiay the 
plaintifT^ proceedings in this aAion, until they pay the coiU 
taxed in the former; that ahhough the court will not oblige 
foreigners in the firft inftance to give fecurity for cofls, be(^aufe 
of the difficulty they may be under to do it n^e, and on account 
of trade, jret when foreigners are vexatious (a^ the plaintiffs ap- 
pear to be in this cafe) the court will oblige them to do juiiic6, 
and pay the cofls taxed, or flay the proceedings in this afiion. 
Crtfcnof V. He cited Gravenor verfus Cape^ Eafter Term, g G^q. 3. C B. 
twe, Safttf which was irover to try Whether A. jB. was a bankrupt, whereia 
9 Geo. 3. jjjp plaintiff was nonfuited upon the ttierits, and alter a whole 
year s acquiefcence, the plaintiff^ not having paid the defendant 
the cofls of the nonfuit, brought another aiiion upon the cafe en 
frOmiftSy to try the very fame faft, and the court Wayed the pro- 
ceedings in the latter a£lron, until the cofls of the nonfuit in 
the former ihould be paid to the defendant Cdpc, upon thi$ 
ground, viz. that they thought the fecond a£tion was vexatious* 
>, Serjeant Burland alfo cited 1 Lord Raym. 697. Bqfs verfus #)>- 

jw'ff, wherein it was moved, that the plaintiff might not pro- 
ceed bcffore he had paid the cofls of a former nonfuit, which 
(indeed) was denied by the court, becaufe the merits did not 
come in queftion upon the trial- upon which he was nonfuit ; 
but he fubmitted to the court, that it the plaintiff Bafs had been 
nonfuited upon the merits; the court of B* R. in that cafe, 
yrould have flayed the proceeding until he paid the cofls of the 
former nonfuit. Whereupon this court made a rule for the 
plaintiffs to (hew caufe, why proceedings fliould ilot be flayed 
m the prefent a£lion, until they ^fliall pay the cofls taxed upon 
the nonfuit. 

Upon fliewing caufe, Serjeant Jepkfpn for the plaintiffs faid, 
that this was a motion of the firfl impreffion, thaC the cafe in 
Lord iZoyi^. 697, is not a determination in the prefent point; 
that thi^ rule is generally grantable oidy in ejeSment; and that in 
the cafe of Gravenor and Cape, the plaintiff had acquiefced 4 
whole year, and a dividend of the bankrupt's efiefis had been made, 
before the plaintiff commenced the fecond a£lion, and that all 
the fa3s material had been fully gone into» and difculfed upon 
the former trial, fo that the court thought the fecond aEtian 
vexatious ; that the plaintiffs, in the prelent cafe, commenced 
the aftioh recently after the court of king'i Bench had .refufed 
a new trial ; fo that he ftibmitted to the court, that the cafe of 
Ctaroenor and Cape, wa$ not like the cafe at bar, he cited x 
fiarnes 99. Lazarus verfus Pritchard, jUii 1 1 Geo. 2. in trover ^ 
a rule to ibew caufe, why proceedings ifaeuld not be flaid till 

after 



HiLABY Tbbm U Geo. III. 1771. 151 

mfter payment of cofis allowed^to defendant in a former a£tion for 
tlie fame thing, was difcharged as unprecedented : for the court 
never make fuch rule in any ^ cafe except geQment : he al fo cited 2 
Sira. 1206. Real & al' verfus Mafky^ where the plaintiffs were 
Swedes^ and brought an adion for freight ; Sir 7. Strange moved 
to SUy. their proceedings till they fhould give Security for coft^, 
as is done in ejuiment where the leffor oi the plaintiff is an in* 
fant, . Sed per curiam^ this has never been carried further than 
actions qui tarn; and it may affe£l trade, in (hutting up our couru 
from foreigners, who perhaps cannot find fccurity m a ilrange 
countr)'. The cafes in geiiment are confidered as more under the 
j>ower of the court than other proceedings, and the court flay a 
i'econd, till the cofts are paid of the firft, which they cannot do in 
sther cafes. So that Serjeant Jephfon fubmitted, that it appeared 
from this cafe of the Swedes; the courts never make tins rule 
for coils, but ia. cafe of r;>^m^/. . * 

Serjeant Davy for the defendants, in reply^->It was faid by 
Ix)rd Chief Juftice Wilmot^ in the cafe of dravenor verfus Cape^ 
that, generally, the court will not interfere touching this matter, 
except in the cafe of ejeSl merits becaufe that one recovery in 
€jeSment cannot be pleaded in bar to another ejeSnunt for the 
{ame lands; but though this is generally true, yet in other 
aflions where the court can fee that the. fecond afiion for the 
fame thing, or to try the fame point is vexatious^ they will in- 
terfere and ftay the proceedings in the fecond a£lion until the 
cofts in the firft be paid, as they did in Gravcnor verfus Cape^ 
where the rule was made abfolute by the whole court : the Ser- 
jeant fubmitted that this is a ftrongpr cafcj the jplaintifis being 
ibrei^ers, and out of the reach oi tlie procefs of the court, and 
if this rule be not made abfolute, it will condemn the dcter*- 
inination in Gravenor verfus Cafe^ 

$erjeant Burland alfo for the defendants, in rejply — ^The plain- 1 Borr. 1177. 
tiffs being foreigners, it is not in' the power of the defendants to 
obtain their cofts in the former afiion, wherein the merits have 
been determined, unlefs the court will interfere, and make this 
rule abfolute. The cafes of Bafs verfus Firtnin, and Gravcnor 
and Ci^, are in point; but if they were not, the comt will not 
require a precedent.to do juftice* but will diipenfe with a.gene- 
nl rule, in extraordinary cafes, for the fake of doing rtffht. 
The ftakehere contended for by .the plaintiffs, is no lefs than 
ao,ooo/. fo that it is well ^orth their while to try the opinion 
of every court in the hall ; but if they will come here £or jiufticeL, 
ibey Ihall do juftice, and -firft pay the cofts of the fosmer nonfuit. 

t4 ftpjenp 



J 52 HxiaryTbrm 11 Geo. III. 1771* 

Serjeant Ltigk alfo for the defendants, in reply — My brothef 
J^phfon^ for the plaintifls, infiits this Is a cafe of the firft im- 
preflion, and that there is no cafe in point ; but whetlicr there 
IS or not, juftlce rcc|uircs that this rule be made abloiute, or 
foreigners may be as vexatious as they pleafe to the King's fub- 
jefts, without being liable to any puniflimerit whatfocver. 
Courts do not require foreigners in the firft inftanqe to give fe- 
xurity for .cotts ; not only on account of trade, and the difficulty 
they may be under to get fecurity ktrt^ but alfo b^caufe it is un- 
certain whether they will ever be Hable to cods. 

Gould Juftic6, cited i Vtnt. loo. Lord Biron's cafe. Tlic 
Lord Biron was plaintiff in an aftion ; and, upon a nonfuit, five 
pounds cofts were taxed againft him : and he brought another 
a6Hon for the fame matter, which was faid to be merely for 
vexation: and th^t he rcfufed to pay the cofts; neither could 
he be compelled, being a peer, and in pailiament time : where- 
fore the court gave day to fhew caufe, why this aftion fhould 
not flay until he had paid the cofts in the former. It doth not 
appear, whether any thing was afterwards done, upon this rule 
to fliew caufe; but the cale (hews, that the court made the rule 
upon this ground, that the fecond a^Uon was faid to he merely 
for vexation. The court took fome days to confider of the cate 
at bar, and gave their opinion in fubftance as follows. 

Opinion of Lord Chief Juftice de Grey^-^li the court can be warranted 

(heoNirt. by law to make this rule abfolute, they ought to do it; the 
rule in Lord Biron' s cafe, t f'ent, loo. was made upon this 
ground, that tlie fecond a£tion was alledged to be vexatious^ 
and fhews that the court would have interpotd in thaf cafe, if, 
•tipoii (hewing caufe, it had been fufficientiv made appear to the 
court that it was brought for vexation; hy the cafe in Lord 
Raym. 607, it feems to me, the court would tJiere have inter- 
pofed, if the plaintiff had been nonfuited upon the merits at 
ihe trial. The cafe of Gravenor verfus Cape^ was well con- 
fidered by the late Lord Chief Juftice IVHlmot and the court, and 
the rule was made abfolute upon this ground, viz. that they 
were of opinion the fecond aaion was vexatious ; therefore if 
this fecond a£lion be vexatious, we are fufficiently warranted 
hy law and precedent to interpofe, and make this rule 
aiifolute. ' • , ■ 

It appears to the court by affidavit, that the former a6li.on 
hath been- fairly tried before Lord Mansjield^ that the whole 
merits of the caife were entered into, and difcuffed at the triaU 
that his lordfliip was of opinion the contrail was macle upon 
public faith, and the credit of government, and not upon the 

credit 



HiLART Tkrm 11 Geo. III. 1771 • 1«3 

credit of the tedator of the defendants ; that upon a motion for 
a new trial, the whole court of 5. R. were of the fame opinion, 
and refufcd'to grant a new trial ; that the colU of thenonfuic 
have been taxed at 48/. los. which (though demanded) have 
not been paid to the defendants dr their attorney, by the plain-. 
tiffs or their attorney, which, by law, ought to be paid ; that 
the plaintHTs have delivered a declaration upon the very iame 
cotitra8, that they have not produced any affidavit to (hew the 
court, tliat they have any new cafe to make upon this fecond 
a€iion ; nor indeed have they produced any iiHidavit at all ; fo 
that we muft take it for grantee!, that no new cafe can be made 
upon a fecond trial ; but it mull be determined by the jury 
upon the fame evidence which has already been eiven at the 
former trial ; I am therefore of opinion that the plamtiffs ought 
to be content with the judgment of B, R. and that the prefent 
a£lion is vexatious, and upon that ground only, proceedings 
therein ought to flay until the plaintiffs pay the cofts taxed 
upon the nonfuit : I would have it underltood, that I lay the 
matter of the plaintiffs being foreigners quite out of the cafe, 
and think the rule ought to be made abfolute, for this reafon 
4wfy fuiz.J becaufe the prefent a6Hon is vexatious* 

Gould Jufiice — I am intirely of the fame opinion with my 
l^rd Chief Juftice, that the court ought to make this rule ab« 
iblute. The old law points out this to the court as a duty. The 
ftatute of MarUbridge^ c2 Hen, 3. cap. 61 Lord Coke in his 
comment thereon, 2 Infl. 112. fays, there is no greater injuftice 
** than when under colour of jufiice injury is done.'.' That 
mutti litigant in for non ut aliquid lucrentur^fed ut vacent alios, £?c. 
Although the court will not oblige a foreigner to five fecurity 
ioi cofts, yet when he has liad the merits ti-ied ana determined 
againft him, and will not do juftice by paying the coils, he be- 
comes vexatious by bringing a fecond a^on to try the fame 
matter; and for tnat reyon alone, I think the rule ought to be 
abfolute : I lay the circumfiance of the plaintiffs being foreigners 
quite out of the cafe. 

Blackjlone Juftice — I lay plaintiffs being foreigners out of tlic 
cafe, and am exa£lly of the fame opinion with my Lord and my . 
brother Gotdd. I will fay one thing for my felf only ; that I 
think, in all cafes where the meriu have been tried, plaintiffs 
Ihould not be permiued to commence a fecond afiion to try 
the fame matter, before cofts paid in the firft ; but this is not 
now before the court, vexation is now the'fingle point we deter- 
mine upon. 

Nares Juftice^^I am of she feme opinion. % w. Ray* 

865* 

Long 



154 HlLABY TjSBM 11 GrBO. IIL 1771* 



aBiack-Rcp. Long i;^ Lincb. C. B. 

Wbatist 'T^HE plainiiir Long did Ut upon leafe to one Rice Steven^ 
foAcientaf. ^ lands io Ireland^ for a term of years. The defendant 
faoU to baiL ^^^ became bound to the plaintiff by bond, in the penalty o€ 
goooL with condition, that ii Steven paid the rent to plaintiS^ 
at the days and times in the leafe, the bond ihould be void« 
otherwife in force. The plaintiff fued out a capias ad re/hon^ 
dtndum againft the defendant, and in order to hold them tQ bail, 
prev'ioufly made, and filed an afHdavit that the fum of 2300/. 
wa!s due and owing to him fur arrears of rent under the faid 
leafe. It was held by three judges, contra Blacijlone Juilice, that 
the affidavit was fufficient to hold defendant to bail. 



ftBiacicRrp. HeDzell^ Demandant; Lodge^ Tenant; Lawibn ^(q. 
w. S.C. Vouchee. C. B. 

Anextraof. rpO/JSTjE/f. and 5izyfr Serjeants moved, on the behalf of thfe 
dina^ a- A ^gnant and vouchee, to amend a common recovery, by in- 
^^^^^1^ ^ ferting the word Merjkam (being the name of a parifli) among 
recovery. the pariflies named in the recovery, next after the parifh ot 
Braione ; and grounded their motion upon an afHdavit made by 
the vouchee, that fome fmall part of die lands whereof the re- 
covery was intended to be fuflfered, extended into, and laid ih 
the parifh, of Merjham in Kent. The affidavit fays, that one 
Robert Goddard was tenant of one intire farm, under the yearly 
rent of 58/. the principal and moft part whereof is in the parifti 
of Aldingtori in kent^ but that fome part of the faid farm, as he 
hdieved^ did extend into the faid parifh of Merjkam ; and further 
fays, that the whole of the faid farm was intended' to be com- 
prized in, and pafTed by the indenture of baivain and fale, and 
the (ecovery, although the faid parilh of Merjham was not men* 
tioned« either in the recovery or faid deed, to lead the ufcs 
thereof: The court after taking a day's time to confider, ordered 
the proceedings in the recovery to be amended, by inferting the 
word Merjham* 

% Black. Rf p. 

A^deetamioo Ward ^'^C/Jtf Ganrdl. C. B. 

on ^fn,fa» 

^ttd'ml^** 'TpHIS was ^Lfcire facias returnable yr^^wi the day of Saimi 
iurnawrthV Martin inj^teen days in the laft term, to revive a judg. 

Jaiiftturn, Rient in debt for 2ooo/« and a/. 191. cofts, to whjtch tte de- 

may bei.. fcnd^t 

titled of the 
fame tern 
generally. 



HitART Tk«M 11 GkO. III. 1771. 166 

fendant having ap]>eared« the plaintifT's ztiornry delivered a de« 
claraciotiy intitted generally of Michaelmas term laA ; to which 
the defendant demurred, and (hewed for fpccial caufe, that the de« 
claration was tntitled generaliy of tAai term, and fo related to 
the firft day- thereof, which was befojre the /are facias was re- 
tumable, which was inrifted to be wrong, (by Serjeant Jtphfon 
for the defendant^ who objeQed that the declaration ought to 
have been intitlrai ** From the day ^ Samt Martin^ in fifteen 
** days in the term of Saint Michael^ m the 11th year of King 
** Gto. the 3d." But^r curiam we will confider the whole term 
as one day^ in this cafe, and fo the declaxation is intitled r^ht 
enough. 

Judgment for the plaintiff. 

Anonymous. C. B. T^^!^. 

PLAINTIFF declared in ccft upon two counts, i^f, upon Aaoccof 
apr6miffory note; s^, for money laid out for the defend* luwaaecd 
ant, who pleaded ifet-^offin bar to the whole, but afterwards J^J^^^*** 
withdrew his plea, and a^eed to let plaintiff take judgment by p!U«d, oa 
default; upon.tbe execution of the writ of inouiry, the clerk tfaecxecodnf 
to the defendant's attorney attended, and.offered in the hearing •^««^»»* 
of the jurv to confefs the damages, if plaintiff's attorney would jl^^emiw 
give the defendant fome further time to pay the debt and cofts ; drfauit 

which beinfir refufed, the writ of inquiry was then executed ; [Tfie conrti 
« o til • T' * ..in facb caTet 

the note was produc^ed but no witnels to prove it \ the jury oow reftrlr 
found damages to the amount oftbe note; and upon (hewing loaMafterro 
caufe why the inquilition Ihould not be fet afide, the court J« ^*?!£L 
were of opinion the jury had done right ; for the plea oifet^off ewcJSig^' 
amounted to an acknowledgment of a debt, and the clerk to the writ «r in- 
defendant's attomev had ottered to ccmfefs damages in the hear- ^^'., ^f^ 
ing of the jury. And per GouU Juftice, upon a judgment by R^p* c.*p/ 
default in an a£lion upon a promiffory note, or a bill, of ex- *5»,V9t* 
ctenge, the fum due thereon is admitted, and ne^d not be 54i : Tem 
proved upon the execution of a writ of inquiry. The rule to w!»75,'i«id 
lliew caufe why the inquilition fliould not be fet afide was vii. 473.] 
diTcfaaiged. 

G^niih ver/iiS Hodman, alias Hodborne^ [f^f^'^' 

Gtottcefterflire, f>EORGE RODMAN, otherwife Rpd. Ktpitnn tot 

V iome, was fummoned to anfwer to Samuel ^*^^,^* 
Getrip^ of a plea, wherefore he took the cattle of the f^d ^^^^"^//^ 
S^muelt and unjuftly detained them againft fureties and pledges, entered upon 
&c* wd whereupon the faid Samii^, by y^^AitP^^a^// his attorney, !^ Y 
s complains, ^^ ST' 



15(5 Hilary Tebm 11 Geo. III. 1771. 

complains, that the faid George^ on the thirty-firft day of Jfanu^ 
ary^ in the ninth year of the reign of his prefent majefly King 
George the Third, at the parifii oi If^nlertourn^ in a certain place 
tliere, called JP^hitc*s Hiit^ in the county of Gloucefter aforefaid, 
took the cattle of the faid Samuel^ (to wit) thirty-five flieep, 
and unjuftlv detained them againft fureties* and pledges, until, 
&c* wherefore the faid Samuel fays that' he is injured, and hath 
• fuftained damage to the value of ioo/« and for that he brings 
his fuit, (^'c^ 

t. Cogni- And the faid George^ by Thotnas Brooke the younffer his attor- 

siince ma^e nev, comcs and defends the wrong and injur)% when, &c. and 
fcndiM M ^ '^^''iff ^^ J^^^^ Withers Sherwood JiLia. well acknowledges the 
hnVxIfxoJpbn taking of the faid cattle, in the faid place in which, £^c, and 
Wttbtri aktr^ jufily, (3c^ becaufe he fays, thai the faid place, called JVkiie's 
Vcaufe be ^'''' ^" which, C3c. 15, and at the faid time when, &c. was a 
hyt, the place Certain zvafte or common^ containingforty acres ofpajlure^ lying and 
in wbkh, &c. b^ing within the fmd tarijli oj Winter bourn ^ and within ike manor 
^^^^^^^ of f^tnieripnrn iiorelAid; and thai within th^ faid manor there 
40 acres in oow is, 2XiAfrom time whereof i\it memory of roan is not (o ttie 
fhe f arifti of contrary, there hath been alfo another wajle or common^ called 
»»f of wf**" Winteroourn Down, otherwise Wmterbourn Comfifon; of which 
and that with- ^^Z manor ^ with the appurtenances, the {-diAJohn Withers Sker^ 
in the manor wood long before, and at the faid time when, £?f. wasfajed in 
wfcmor&c. *"* dcniefne as of fee ; and that the faid John Withers Sherwood^ 
there haabeea ^^id all thofe whofe e&ate he hath, of and ii\ the faid manor with 
•aocher conwtlie apportenances, from time whereof the menvory of man is 
^D*of* not to the contrary, have had, and have ufed and been ac- 
which maner cufiomed to h^ve, and Aiil of right ought to have, a certain 
the faid J. couri Itfit or view of frankpledge of the refiants within the faid 
^atJmc*^ inanor, to be held twice in every year; (that is to fay) once 
wheR,«c. witliio a monti) aft^ the Fea/l of Eafler^ and once within a 
waifeifedin month after the Feaftday of Saint Michael the Archangel^ in 
iwibeVio'"' ^y^^y y^^\ ^»4 that within the faid manor there is, and from 
a fM^«r< for ^^^ whereof the memory o( map is not to the contrary, hath 
a iMirf Ua. been a certain ancient cuftom there ufed and approved of, (th<»t 
is to fav) that iht jilry of the faid court Uet, from time to urac, 
Aodthac for ancf during all the time aforefaid, h^ve been ufed and ac- 
zfuSmh^^^ cuftorocd at the fame couri leei, b)^ and with the coi)f€nt of the 
xJtvtnunktt greater part of the commoners having right of common on the 
to make hu- waftcs of ifae fs^id ixianor, to make reafondble bye Jaws and ordt- 
p^htnfwi "^'^^^•^» for the better prefervation and regulation of the cora- 
of the com. Hions Within the faid manor, and the grafs and herbage growing 
inoni within in the fame ; and to impofe fuch reafonable penalties on anvfar^ 
•ad toim' Vc ^*^ ^^ tenant of the fame manor, that ftiould infringe or break fuch 
piioaiiiM^i^^ bye-law or bye-laW^, as they from time to time thought |>ropcr ; 

the ^merg and 

and tenants of 
(he manor, fo 
breach ihcre-- 



Hilary Term 11 Geo. IIL 1771^ 157 

and the (BidGcorge further fays, that the faid J(7A» Withers Shh And that the 
zvooJ^ and all thofe whofeeftate he hath, and at the faid time ^'"^J'Jlrf*' 
when, &c. had of and in the faid manor, with the appurte- J^clfowi * 
nances, from time whereof the memory of man is not to the time wbrreof, 
contrary, have demanded^ received and taken, and have ufed and **• ^"^^ ^«- 
been accuflomed to demand, receive and take, from cveiy tenant "J"^^ ^^'^J*" 
or farmer of smy lands or tenements within the fame manor, ttken from 
offending againft fuch bye-law or bye-laws^ the feveral and re- *^ perfom 
fpeftive penalties or forfeitures impofed on or incurred by fuch aMrnft'fuch 
tenant or farmer, by the breach or breaches of fuch bye-law or hyi-Uwst Ihe 
bye Jaws ^ and in cafe of refufal or non-payment thereof, after pcn*itic»io- 
reafonable rec^ueft and demand thereof marie, have, during all ^"J^^ thi^fr. 
.the time aforeiaid, diftrained, and have ufed and been accuf- of; and ou 
iomed to diflrain the beafts and cattle of fuch tenant or farmer «»•» payment 
for the refpeAtve penalty or penalties, forfeiture or forfeitures by JJr^^I^tiTof 
him incurred as aforefaid, in any pUce within the fame manor : fuch hxmtr 
and the faid George further fays, that at the court leet or view ^^ortenmt, in 
frankpledge of the faid John Withers Sherwood, holdcn at Win^ w'ljhi!!^ 
terbourn m and Tor tlie faid manor, within one month after the manor : and 
Feaji of Saint Michael^ in the year of our Lord one thoufand «*»« «t the 
feven hundred and fixt>'-four, (to wit) on the ftxteenth day of )j^*^J|^*" 
OQober in that year, )i^iox^Chrijlopher Grijffith Centleman, thert ,^1^^ 
Jleward of the faid court, the jury impannelled, charged and 
fworn to ferve at and for the fame court leet, in purfuance of the 
faid cuftom, did, by and with the confentof the greater part of 
the commoners then having right of common upon the wafte of 
the faid manor, in due manner make and ordain a certain bye^ zhytUw 
law for the better prefervation of tlie commons within the fame ^jj*. ^^l^ 
manor; by which fiid bye-law the faid jury did then and there forth, iiih a 
0rder, that no perfonor perfdnsjhould depajlureanyjlieep^korfes, penalty for 
caitle, or any otlt^r be^ whatfoever, ^ Wintei bourn Down, ^^^^J^*^' 
i^Mrriw^ Winterbourn Coihmon, or any other common belonging aamgco*- 
io the ty thing ^Winterbourn within the faid manor, from Saint trary t» that 
Thomas's day to Lady-day, early in every year ^ from thenceforth ^n'jf^* *^ 
Jor ever thereafter, on pain of forfeiting twenty /hillings for every J^/J^!^. 
Jheep, beaftorany other cattle, of what nature or kind Joever, which 
fboxddbe dtbajlured thereon contrary to the faid by f -law, and all 
former hye-laws ; of which faid /'^^-Aia; the bid Samuel Gerrijk 
afterwards, (to wit) on the fame day and year laft aforefaidf • at 
lyinierbourn aforeiaid, had notice: and the faid George further and that the 
faith, that after the making of the faid bye-law, and between ^^*^"''^/*'** 
Saint Thomas! 5 day and Laay-dayr and a little before the faid SeacVof dia 
time when, &r. (that is to fay) the faid thirty-firll day ol hfi-lan, 
January 1769^ at Winterbourn aforefaid, the faid Samuel Gerri/h 
did put the faid cattle in the faid declaration mentioned, into the 
faid common^ called Winterbourn Down, otherwife Winterbourn 
Common^ the fame then being a common belonging to the faid 

tything 



158 HltARY TWM U GzOi ttt. J77t# 

tything of WitUcrbottm within the faid manor to«depailure there, 

y^txthj • whereby tl)C faid penalty or forfeiture oUw^nty Jhillings for each 

'^rlwi^for ^^^ ^^ depaftured by the faid Samuel^ on the faid place in 

feicerto rbft which, &c. amounting in the >^hole to the fum of ihirty-fixH 

iaidj. W. s, pounds^ then and there accrued, and became forfeited^ d^^ an4 

payable to the faid John IVithcrs Sherwood^ then lord of the faid 

and the Uxnt manor for. breach of the bye-law aforefaid; and the {aid penalty 

xiQf being pr forfeiture being fo forfeited, due and payable as aforefaia. 

leque'ir'* *"^ reihaining unpaid, he the faid Samiul afterwards, (to wit) 

on the fame day and year in the faid declahition mentioned, at 

Winterboum aforefaid, was requefled by the faid John Withers 

. . . . Sherwood to pay the fame; but the faid •SawWthen and there 

arrear, the whoHy refufed to pay the fame ; and becaufe the faid fum of 35/* 

defendant IS at the faid time when, &c..was in arrear and unpaid, he the laid 

jfw s^. George as bailiff to the faid John Witlurs Sherwood, well ac- 

diftni'ned the knowledges the taking of the faid cattle ip the faid place, in 

^atdeinthe vrbich, &r. being within the manor, and juilly, &c. tor and in 

thidi^^&c name of a diUrefs for the faid penalty of .forfeiture fo due 

' ' and in arrear as aforefaid, and this the . faid George is ready to 

verify; wherefore he prays judgment, and a returii of the (aid 

cattle, together with nis damages, cofts and charges, according 

to the form of the ilatute in that cafe made and provided* to be 

The Iccond adjudged to him, &c. And the faid Oeorge, for further cogni* 

fvusaoce. zance in this behalf, by leave of the court here for this purpofe 

firft had and obt^tincd, ac<:ording to the form of the .fiatute io 

that cafe made and provided, 3sbailiff of the hid John Withers 

Sherwood well acknowledges the taking of the faid caule, in the 

iaid place in which, &c, and juRly, Qc, becaufe he fays that the 

faid place, called White's Hill, in which, (3c, is, and at the faid 

time when, &c. was a certain large wafie or common, containing 

forty acres of pafture, lying and being within the faid parifii ^ 

Winterbourn, and within the mapor of Winterbourn, aiid that 

within the faid manor there now is, and from time wliereof the 

memory of man is not to the contary, there hath been alfo another 

wafie or common called WinterbournDown, oihcrvfikWinterboum 

Common, of which faid manor, with the appurtenances, the faid 

John Withers Sherwood, long before, and at the faid time when, 

&c. was feifed in hi^ demefne as of fee; and that the iaid John 

Withers Sherwood, and all thofe whofe eftate he hath of and in 

the faid manor, witb the appurtenances, from time whereof the 

memory of man is not to the contrary, have had, and 'have ufed 

and been accuftomed tp have, and ftill of right ought to have a 

certain court leet and view of frankpledge of. the refiants within 

the faid manor to be hold twice in every year (that is to fay} 

C»nce within a month after the F^aft ofEaJler^ and once within 

li month after the Feqft of Saint Michad the arch-angel in 

every year; and that within the faid manor there is, and front 

time whereof the memory of man is not to the x:ontrary, hath 

been 



HixjLAT TasM 11 Geo. III. 1771. 1^9 

b e e n a certain ancient cuftom there ufed and approved of, (that 
is to fay) that the Jury of the faid court leei from time to time, 
for and during ail the time aforefaid, have been ufed and ac- • 
cuftomcd at the fame court Ud^ b)r and with the confent of the 
greater part of the commoners having right of common, Qn the 
Mraftes of the faid manor, prefcnt at fuck court Icet^ to make rta^ Thefeword^ 
JonabU iyeJaws and ordinances for the better prefervation and re- ^' *' f^^ 
gulation of the commons within the faid manor, and the grafs !< ^^^ ^^ 
and herbage growing in the fame, and to impofe fuch reafonable a dtft'ercoce . 
penalties on any farmer or tenant if the fame manor ^ that Ihould ^jTf*"^^ 
infringe or break fuch bye Jaw or oyeJaws^ as they from time to ^lai^^^j^. 
time have thought proper : and the faid George further lays, that 
the faid fohn Withers Sherwood^ and all thofe whofe eftate he 
hath, and at the fame time when, ^c. had of and in thei faid 
laanor, with the ^puitenances, from time whereof the memory 
of man is not to the contrary, have demanded, received and 
taken, and have ufed and been accuftomed to demand and re- 
ceive, and tskt, from every tenant or farmer of any lands or te- 
aiements within the fame manor, offending againft fuch iye-Jazo 
oibye^latvs^ the feveral and rcfpe£Uve penalties or forfeituret 
impofed on or incurred by fuch tenant or farmer, by the breack 
or breaches of fuch^^c^aa; or bye-laws; and in caie of refufal 
€>r non-payment thereof, after a reafonable re^ueft and demand 
thereof made, have during all the time aforefaid diftrained, and 
Jiave ufed and been accuftomed to- diftrain the beafls and cattle 
of fuch tenant or farmer, for the refpe£live penalty or penalties, 
ibrfeiture or forfeitures by him incurred as aforefaid, in any • 
place within the fame manor ; and the faid George further fays, 
•that at the court leet or view of frankpledge of the faid John 
Withtrs Sherwood^ holden at Irinterboum^ in and for the faid 
.manor, within one month after the Feafi of Saint Mckael in 
the year of out Lord 1764, fto wit) on Uie i6:tt day of OSober 
ill that year, before Oirijtopker Griffith gentleman, then fteward 
.of the faid court ; the jury impannelteJ, charged and fworn to 
feve at and for the fame Court leet^ in purfuance of the faid 
.croftom, did, by and. with the confent of the greater part of 
the commoners, then having right of common upon the wafles 
^f the (aid manor,- who were prefent at the fame court leei^ in 
due manner iHake and ordain a certain byeJazo^ for the better 
prefervation of the • commons within the fame manor, by which 
jiud.hye^LuD the faid jury did theti and there order ^ thai no per fon 
or perjons fhouli depaflure any Jheep^horfes, cattle^ or any other 
ieafi whatfoever, on Winterboum pown, othcrwi/e Winterbourn 
Common, or any other common belonging to the tything of "Win* 
terbourn withn the find manor, from Saint Thomas's Day to Lady- 
day, yearly in every year^ from thence^ fordi for ever thereafter^ 
on pain pfforfattng twenty fliillingsyi;r eachfheep,, beaft,^ or any 



other cattle, pf what nature or kindfoever^ which Jkould^ he 

pajlured 



i6o Hilary Tubm 1 1 Geo. HI. I77i'. 

pajtured thereon, contrary to the /aid byc-lwv, and all formed 
pyc-Iaws, of which faid bye^law the faitl Samud Gerrijk aiVcr- 
trards, {to wit^ on the fame day and year lad aforefaid, al: W^/ir- 
terbourn aforeiuid had notice : and the faid Gtorge further faith» 
that after llie making of the faid bye4aw^ and between Saint 
Thoitfdi's day and Lady -day, and a little before the faid time 
when, £s?c. (that is to fay) on the faid thirty-firft day of January, 
in the faid vear of our Lord 1769 at JVinterbourn aforefaid, the 
hid Samu'et Gsrri/h did put the faid cattle in the faid declaration 
mentioned, into the faid common, called Wi nterbo urn Down ^ 
othenWfc Wtnterbourn Common^ the fame tlien being a common 
belonging to the faid tything of Wtnterbourn, within the faid 
manor, to depafture there ; whereby the faid penalty or forfeiture 
of. twenty (hillings for caph beaft fp depalhired by the faid 
Samuel, on the faid place in which, £?c. amounting in the whole 
to the fum of 35/. then and there accrued and became forfeited, 
due and payable, to tl^c {diAJokn IVithers Sherwood, then lord of 
the faid manor for breach of the bye-law aforefaid; and the faid 
penalty or forfeiture being fo forfeited, due and payable as . 
aforeiaid, and remaining unpaid, he the faid Sammel afterwards, 
(to wit) on the fame day and year in the faid declaration men- 
tioned, at Winterbourn aforefaid, was reqaefted by the faid John 
Withers Sherwood to pay the fame, but the faid Samuel then 
^and there wholly ^efuiea to pay the fame; and becaufe the faid 
fum of 3^/. at the faid time when, &c, was in arrear and un- 
paid, he the faid George, as bailif oi the faid Jfohn Withers 
Sherwood, well acknowledges the taking of the faid cattle in 
the fiiid place in which, &?f. and being within the faid manor; 
and jutlly, £?r. and for and in the name of a diftrefs, for the 
penalty or forfeiture fo due and in arrear as laft aJForefaid ; and 
this the faid George is ready to verify : wherefore he prays judg-- 
ment, and a return of the faid caale, together with his da- 
n\agcs, cofls and charges, according to the form of the ftatute 
in that cafe made and provided, to be adjudged to him, &c. 
TheTbird and the faid George, for further, <:ognizance in this behalf, by 
cogoisaflce. leaye of the court here for this purpofe firft had and obtainea, 
according to the form of the flatute in that cafe made and pro- 
vided, as bailiff of the faid John Withers Sherwood, well acknow* 
ledges the taking of the faid cattle in the faid place in which* 
&c. and juftly, &c. becaufe he fays, that the laid place, called 
White's aill, in which, &c. and at the faid time when, S3c. was 
a certain large Vafte or common,, containing forty acres oi 
paftare^ tyiog ^^^ bcin^ .within the faid parifli of Winterbourn, 
and within the manoi; ol Winterbourn aforefaid ; and that within 
the faid manor there now is, and from time whereof the memory 
of man is not to the contrary, there hath been alfo another 
wafteor common, called Winterbourn Down, otherwife Winter^ 
bourn Commn^ of which faid manor with the appurtenances, the 

faid 



ttiuiEY TjtttM 11 Geo. 111. 177I. iCl 

ftrid Jfohn Withers Sherrvpodj, long before, and at the time vhert, 
&r. was feifed in his demefne as of fee; and tliat the faid John 
Wuhers Sherwood^ and all tbofe whofe eftate he hath of aiid in 
the £iid manor, with the appurtenances, from time ^vhereof the 
memory of man is noc to the contrar)', luvc. had, and have 
uied and been accuftomed to have, and ftill of ri^ht ought to 
have, a certain court icet^ or view of frankpledge^ ot the refiants 
-ttrithinthc faid manor, to be held twice within every year, (that 
is to fay) once within a month after the Feajl ofEaJier^ and 
bnce within a month after the Fe^l of Saint Michael^ in e\^ 
year; and that within the faid manor there is, and from time Thecaftnm 
whereof the memory of man is not to the contrary hath been, ^ n»*^« h'" 
•a certain ancient cultom there ufed and approved, of, (that is to i^xhUtT- 
fay,) that the jury of the faid court leet, from time to time for niianc*; is for 
and during all the time aforefaid, have been iifed and accuflom* the jury of the 
ed^ at the fame court leet^ to make rcafoaable bye-laws and ordi- ^^l^JJ^ 
nances for the better prefervation and regulation of the commons the regulation 
within the faid manor, and the grafs and herbage growing in of the com. 
the fame, atid to impofe fuch reafonable penalties on any farmer JJ^J^JI*^'*^^^ 
ar tenant of thz fame manor ^-A Ihould infringe or break iuch hye» coafemofthe 
law or byt^laws^ as they from time to time have thought proper : commoner*, 
aiid the faid George further fays, that the faid John mthtrs Sher^ ol'^S'^fif'"* 
cc'W, and all thofewhofe cftate he hath, and, at the faid iitnc %eftnfnm 
when, &c, had' of and in the faid manor, with the appurte- both the Ut, 
nances, from time whereof the memory of man is not to the "*"«••**• 
contrar)', have demanded) received and uken, and have ufed *"* 
and been accuftomed to demand^ receive and uke, from e%'ery 
tenant or farmer of any iartds or tenements within the fame 
manor, offending againit fuch bye^-Uw, or bye-laws; the fcvcral 
and refpe£M9t*^ penalties or forfeitures impofed or incurred by 
fuch tenant or farmer, by the breach or breaches of fiich bye-law 
or bye-lawt : and in cafe of refufal, or non-payment thereof, 
after a reafonable reauefl and demand thereof made, have, during 
all the time aforefaia, diiliained, and have ufed and been ac- 
cuftomed to diftrain, the beafts and cattle of fuch tenant or far- 
mer, for the refpefiive penalty or penalties, forfeiture or for- 
feitures; by him incurred as ^9refaxd, in any place within the 
fame gianor : and the faid George further (ays, that at the court 
ieet at viiw ^frankpledge oi the faid John IVithers Sherwood^ 
hAAtmtWinterioum m and for the faid manor, within one 
month after the Feaft of Saint Michael^ in the year of our Lord 
oncthoufand fcveii hundred and fixty-foui', (to'wit) on the fix- 
tccDth day of OBober in that year, before Chriftofher Griffitk 
Gentleman, then fteward of the faid court ; the jury impannelled, 
charged and fworn to ferve at and for the fame court Icet^ in 
purfuaiice of the faid cuftem, did ia due manner make and or« 
Vol. IlL M daia 



162 Hilary Term 11 Gm. III. 177 K 

dain a certain bye-law for the better prefervatbn of the common^ 
tv'ithin the fame manor, iy which Jaid bye'latu ike foxd jury did 
then and there order^ that no per/on or perfons JhovLd debiylure any 
Jheep^ horfes^ cattle, or any otker beajk whatfoever^ on Wintcrboura 
Down, otherunje Winterbourn Common, or any other common bt^ 
longin^to the tything g/*Winterbourn ttntkin the Jaid manor^from 
Saint Thomas's day to hdiAyAzy yearly in every year ^f torn thnce* 
forth for ever thereafter^ on pain ofjorfeiting twenty fliiUines for 
cachjkeep^ beaJi or anv other cattle^ of what nature or iindfoevcr^ ' 
Ufhichjfiould be depajtured thereon contrary to the Jaid bye-taw^ and 
all former bye4axv$; of which faid bye^law the faid Samuel Gerrijh 
afterguards, (to wit) on the fame day and year U(l aforefaid, at 
lyinterbourn aforefaid* had notice: and the faid C^^r^^ furdicr 
faith, that after the making of the faid bye-law^ and between Saint 
Thomc^'s day and Lady -day ^ and a little before the faid time when, 
&c. (that is to fay) on the faid thirly-firft day of January^ in the 
year of our Lord i76(), ^iWinterboum aforcfaid,,the faid Samuel 
Gerrijh did put the faid cattle in the faid- declaration mentioned 
into the faid common, catted Winterbourn i}&&;ff, othervife Win- 
terbourn Common, the fame then being a common belonging to 
the faid tything of ^r/ii/^r^aaifn, within the faid* manor, to de- 

Safture there, whereby the faid penalty or forfeiture of twenty 
lillings, for each beau fo depaftured by the faid Samuel on the 
faid place in which, &c. amounting in the whole to the fum of 
. tliirty-five pounds, then and there accrued and became forfeited, 
due and payable, to the faid 7ohn Withers Sherwood^ then lord 
of the faid manor, fo/ breach of the bye-law aforefaid ; and the 
faid penalty or forfeiture bein^ fo forfeited, due and payable as 
aforefaid, and remaining unpaid, he the faid Samuel afterwards, 
(to wit) on the fame day and year in the faid declaration men- 
tioned, at Winterb(]furn aforefaid, was requeAed bv tlie faid John 
Withers Sherwood to pay the fame, but the faid iamuel then and 
there wholly refufed to pay the fame; and bccaufe the faid fum 
of thirty -five pounds^ at the faid time when, ^c. was in arrear 
and unpaid, he the feid George^ <;$ bailiff of the faid Tohn Withers 
Sherwood^ well acknowledges the taking of the faid cattle in the 
faid place in which, fi?c. and juftly» G?f. the fame being within 
the laid manor, for and in the 'name of a diftrefs, for the faid 
' penalty or forfeiture fo due and in sprrear, as laft aforefaid ; and 
this the faid George is ready to verify : wherefore he prays judg* 
m^vXj and a return of th^ faid cattle, together with his damages, 
cofts and charges, according to the form of the ftatute in that 
cafe made and provided, to be adjudged to bixn, G?r. 

£. Nares. 

Demarrew. And the fajd Samufl^ as to the faid cognisance of ihc fai4 

George^ by liim firft above mad^, fays^ that the faid George, by 

2 .. reafon 



Hilary tdRM i 1 Gso. tIL 1 7t t- l63 

reafon of any thing in that ccHpiizance allcrljjed, ought not to 
acknowledge the taking of the laid cattle in tlte faid place, in 
which, &c. becaufe he fays, that the faid cognizance^ and the 
matters therein contained, are not fufHcient in law for the faid 
Gtorgt^ to acknowledge the taking of the ftid cattle, in the 
faid place, in which, &r. to. which (aid cognizance, in the man- 
ner the fame i$ above made, he the faid Samuel is not under 
'any 'neceflity, nor obliged by the law of the land, to anfwer; 
and this hfc is ready to verify : wherefore, for want of a fuf- 
ficient cognizance in this behalf, the feid Samuel prays judg*^ 
ment, and his damages, by reafon of the taking of the faid 
cattle, to be adjudged to him, ^c. And as to the faid cogni- 
zance of the fard George, bv him fecondly abov^ made, the faid 
Samuel fays, that the laid George^ by reafon of any thing in that ^ 
cognizance alledged, ought not to acknowledge the taking of the 
iaid cattle, in the faid place, in which, ^c. becaufe he fays, that 
the faid cognizance, and the mailers therein contained, are not 
iuflicient in law, for the faid George to acknowledge the taking ' 
of thfe faid cattle', in the faid place, in which, t?c. to which 
faid cognizance, in manner the fame is above made, he the faid 
Samuel is not under any neccfTity, nor obliged by the law of 
the land, to anfwer; and this he is ready to verilv : wherefore, for 
Vant of a fufficient cognizance in this behalf^ the faid Samud 
prays judgment, and his damages by reafon of the taking of the 
laid cattle, to be adjudged to him, (^c. And as to the faid cog- 
nizance of the faid George^ by him laftly above made, the faid 
• Samuel faith, that the faid George, 'by realoh of any thihg in that 
cognizance alledged, ought not to acknowledge the taking of 
the faid cattle^ in the faid place, in which, lie, becaufe he Fays, 
that the faid cognizance, and the matters therein contained, are 
not fufficient in law for the faid George to acknowledge the . 
taking of the faid cattle, in the faid place, in which, &c. to 
vbich feid cognizance, in manner the lame Is above made, he, 
the faid Samuel is not under any neceflity, nor obliged by the 
law of the land to anfwer ; and this he is ready to verity : where- 
fore for want of a fufficient cognizance in this behalf^ the faid 
jStfTBtt^/ prays judgment, and his damages, by reafon of the taking 
of the (aid cattle to be adjudged to him, He. 

JV.Jepkfon. .^ 

And th« faid George fays« that the faid cognizance by htm firfl J6in4eri in 
above made, and the matters therein contained, arc fufficient in <*^««"«'- 
law for the faid George to acknovsrledge the taking o^ the faid 
,cattle, in the faid place, in which, £?r.,to be juft, which laid 
cognizance, and the matter therein contained, he the faid George 
is ready to verify and prove, as the court here ihall order ; where- 

M 2 fore. 



i64 Hilary Tbrm 11 G^o. III. 177 !• 

fore, in as much as the faid Sttmucl doth not deny the fatct 
matter, nor in any wif(f make anfwer thereto, but hath wholly 
rcfufed to admit the verification thereof, he the faid George prays 
judgment, and a return of the faid cattle^ together with his da- 
mage.S', Qc. accoitling to the form of the ftatute in fuch cafe 
anade and provided, to be adjudged to him, Qc. And the faid 
Ceorge fays, tliat the faid cognizance by him fecondly above 
' made, and the matters therein contained, ^ fufEcient in law 

for the faid GeorgCf to acknowledge the taking of the faid 
C4ittle, in the faid place in which, &ci tobejuft; which faid 
cognizance, and the matter therein contained, he the Faid George 
is ready to verify and prove, as the court here Ihall order: where^ 
iorc^ in as mudi as the faid Samuel doth not deny the faid 
matter, nor in any wife make anfwer thereto, but hath wholly 
refufed to admit the verification thereof, he, the faid George^ 
prays judgment, and a return of the faid cattle, together with 
4iis damages, &c. according to the forjrn of the ilatute m fuch cafe 
made and provided, to be adjudged to him, &c. and the faid George 
fays, that the faid cognizance by him thirdly above made, and the 
matters therein> contained, are fufficient inlaw for the faidG^^r^^to 
acknowledge the taking the bid cattle^ in the faid place in which, 
C3c, to be jufl ; which faid cognizance, and the matter therein con- 
tained, he, the faid George^ is ready to verify and prove here, as the 
court ihall order: wherefore, in as much as the iaid 6amud 
doth not deny the faid matter, nor in any wife make anfwer 
thereto, but hath wholly refufed to admit the verification thereof, 
he, the faid George^ prays judgment, and a .return of the faid 
cattle, together with his damages, £t?c. aci cording to ilie form 
of the ilatute in fuch cafe made and provided to be' adjudged to 
him, £?<:. and beCaufc the juftices here will advife themfclves 
of and upon the prcmifes^ before they give their judgment 
thereon, day is given to the faid parties heroi until eight day* 
oiSatni Hilary^ to hear tlicir judgment; for that the faid jufticc* 
here are not yet adyifcd thereof.- 



X55!]" ^ ^ • Gerrifli verfus Rodman alias Rodbomc. C. B. 

V 

RepieWn. J^EPLEHN by Gerri/Ii againfJ Rodman ; the plaintiff declared 

. of taking and detaining thirty -five fheep, at the pariih of 

Winterbourn, in a certain place ther^, called White's Hili, on the 

ihirty-firfl day of January ^ in the ninth year of the reign of the 

prefent King. 

Cagnlxance. The defendant, as bai/iff' of John Withers Sherwood Efq. made 
three cognizances, by leave of the court. He fhcwcd, by bis 
,firft cognizance, that the place in which, &c. is a certain wallc 
or common, containing forty acres of pafture within the parifli 

of 



HiLABT Team 11 Oho. III. 1771. 163 

fiff Winterhcum^ and within the manor of Winterbourn ; and that 
within the manor there is, and from time whereof, &c. there 
hath been alfo another waAe or common, called IVinterbourn 
Dowm^ otberwife IVmterbourn Common: of which manor tHc 
4aid Jfohm Withers Sherwood^ long before, and «/ the time when, 
&c, was feifed in his demefne as of fee; and that the idxA.' John. 
Withers Sherwood^ and all thofe whofe eftate he hath in the 
manor, from time whereof, &r. haVe had, and ftill of 'right 
ought to have, a court leet of refiants within the manor, to 
^e held twice in every year; (viz.) once within a month 
after Eafler^ and ^once within a month after Michaelmas : and A eoftom 6r 
that within the manor there is, and from time whereof, &c. ^^^^ 
hath been an ancient cujiom there ufed ; (that is io [xy)that the jury ^^ ^^^^ 
4)fthelaid court lect^Jrom time to time for and during all the time lsws\ miht 
if ore/aid^ have been ufed and accuftomed, at the fame court leet^ by ^"^!^*^2^ 
^nd with the conjent of the greater part of the commoners having pe^^fwi 
right of common on the wajles (fthejaid manor ^ to make reafonaJne any farmer 
hye-Uuvs and ordinancesfor the better prefervation and reguiaiion T^?*°V^- 
^'the commons within thefaid manor ^ and the grafs and herbage Jj..oa to* 
growing in the fame; and to impofe reqfonable penmies on any far --^ 4Ubain. 
mer4>r tenant of the fame manor that Jhould infringe or break fuck 
bye-law^ as they from time to time thought proper. And the 
'defendant further (hewed, that the faid John Withers Sherwood^ 
and all thofe whofe eftate he hath, and at tlie iaid time 
when Qc* had in the manor, from time whereof &r. havtt 
^manded, received and taken, and have ufed and been ac* 
ciUlomed to demand, receive and take, from every* tenant or 
farmer of anv lands or tenements within the lame manor, 
offending agamft [nc\i bye Jam. ok .bye Jaws ^ the feveral and pet* 
fpe£live penalties or forfeitures impofed on or incurred by fuch 
tenant or farmer, by the breach or breaches of fuch byeJaw or 
byeJaws; and. in cafe of refufal or non-payment thereof, after 
realbnable re(}ueft and demand thereof made, have, during a^l 
the time aforefaid, diflrained and have ufed and been ac- 
cuftomed Cq diflrain the beafts and cattle of fuch tenant or farmer • 
for the relpe£live penalty or penalties, forfeiture or forfeitures hy 
bin incurred as aforefaid, in any place within die fame manor. 
And the defendant furtjier (hews, that at the court Uet of the 
laid 7^n Withers Sherwood^ holden at Winterbourn in and for 
the laid manor, on the focteenth day of Prober 1764, before 
JChriJloph^r Griffith Gentlemaii, then fteward of the laid courts 
thejury ifnpannelled, charged and fworn to ferve at and for 
the fan^e court ieet, in purfuance of the fatd cuftom, did, by and 
mth the conjent of the greater Jpart of the commoners then having 
fight tf common upon the wane of the faid manor ^ in due manner 
make and ordain a certain oyeJaw for the better prefervation of 
^e commons within die fame manor; by which fiiid byeJaxo the 

M3 laid 



l66 HiLABtTjBBM 11 Gficin, 1771- 

ThMije-Uvf. faid jury'* did then and there order, ikai no fcrfim or jberfcHs 
jhoM depajlure anyjhetp, horfts^ cattle or any other bcafi wkai^ 
foever^ on Wimerbourn Down, £>^^rn;j^ Winterbourri Com* 
mon, or any othfs common belonging to the iything of Winter- 
bourn within the faid manor^ from Saint Thomas's day t9 
Lady-day, yearly tn every year^ from thenceforth for ever there^ 
after ^ on pain t>/ forfeiting twenty fhillinas for every fheep^ l^^tifl^ 
S>r any ether cattle^ cf what nature or kindfoever^ wliichfhotdd 
ie depaflured thereon ccnirary to the faid iye^aw, and all for- 
mer BYE-LAWa; oi which faid bye-law th« plaintiff Gerr^ 
afterwards, (to^wit) the fame day and year, at IVinterbourn^ 
The breach had notice. And the defendant iurther ibews^* that after the 
L^'^b^i makin^r the faid bve-law^ apd between Saint Thomas's day 
fiShJff* ^ and LaJy-day, and a little before the faid time when, 63c. 
(that is to fay) the faid thirty-firft day of January 1769, 
at Winterbourn^ the plaintiff did put the cattle in the de- 
claration mentioned, into the faid.common, c^Wft^ Winter bourn 
Down, othtrw'itc Winter bo urn Common^ the fame then being a 
common belonging to the faid tything of Winterbourn within the 
faid manor, to depafture there, whereby the faid penalty or 
forfeiture ot iwcfttyjinllings for eaqh beaft fo depaftured by the 
•plaintiff, on the iaid place in; which, &c^ jamounting in the 
,whole to the fum of thirty fixK.poUinds^ then and there accrued, 
•and became forfeited, .Hue and .payable, to the faid John 
^Withers Sherwood, then lord of .the faid manor., for breach 
of « the bye-Jaw afore&id; and the faid penalty or forfeiture 
being fa forfeited, due and payable, and remaining unpaid, 
^he unci plaintiff afterwards, (to wit) on the dame day and year 
ih the declaration meniionca, at Winterbourn aforefaid, was 
ifequeftfed by thp faid J^hn Withers Sherwood iq pay the fame ; 
but the plaintiff then and there wholly refufeid to pay the 
fame; and becaufethe fum of 35/. at the faid tiine when, &c. 
vas in arrcar and unpaid, he the faid defendant, as haibff of the 
iaid Johii Withers Sherxo6od% well acknowledges the taking of 
ihe; faid caule in the place in yhich, &c. being within the 
tnanor^ and juftly, ^c* for.and in ^e name of a diftrcfs, for 
the penalty^ or forfeiture fo due and in arrear as aforefaid ^ 
^nd this the defendant is ready to verify: wherefore he prays 
judgmcnti and a return of the faid cattle, together with his 
damages, cofls and charges, according to .the form of the 
ilatutc in that cafe made and provided, to be adjudged to 
him, t£c* ' • 

»d CognU Tlie fecpnd cognizance made by the defendant is nearlv verha- 

, tim.tb^ faaae with the firft, and is variant tQ a few words only, (that 

15 tofay) when the defendjnt in bis fecond cognizamre fbews the 

cuAom-^of the leet ta make byelaws^ bo pleads thus; — That 

byithin the manoiT, there is,, afd from iiii^e whereof, i:fc. hath 

been 



uace 



Hilary Tuttc U Geo. III. 1771. 1^7 

been m ancieat ctifiom there ufed, (that is to fay) fliat the jury 
of the faid court Uet^ from time to time for and dih-ing all the 
time aforefaid» have been ufed and accuftomed, at' the fame 
court* by and with the confent of the greater part of the com- 
jnoners having rij^ht of common on the wailes of the faid manor, 
prefaU at Juck court leet^ to make reafonable bye-laws^ &c. — 
And when the defendant goes on in his fecond cognizance to 
fliew the rhaking the bye-law , he alledges, that the fame wai 
made by and with the confent of the greater part of the com- 
monen, then having right of common upon the Waftes of the 
' iaid manor, who were prefcnt at the fame court teet, &c. whereas, 
in the firft cognizance nothing is faid about the commoners being 
frejent at the court leet. 

The third cognizance made by the defendant, only varies 3<)Cogm. 
. from the firft and fecond in jthis^ viz. that In {hewing the cuf- ***'*^ 
torn of the ieet to make byeJaws, and the fa3 of making the 
prefent ^^-/tf IV in queftion, this cognizance isTilent as to the 
<onftnt of the major part of the coikimbners to the making bye^ 
latoSy and aifo is filent as to their being prejint at the Ieet when 
iMc\i bye^l&ws vet, made; and is general, viz. that the- jury, of 
the kit make the bye-laws^ not making mention of the com- 
moners confent or preftnce. 

To each of thefe .cognizances the plaitititF hath demurred Demamrp 
generally, and the defendant hath joinea in demurrer. 

In this term the caufe was argued by Serjeant Jfephfon for the 
plaintiff, and Serjeant Glynn tor the defendantp 

Serjeant Jfephfon made the following objeftions to the cog- 
nizances ; — 

tft. The cufiom alledged, is, for the jury of the Ieet to make OHjeaioni i 
tytJaws^ and to impofe penalties fori the breach, thereof on arty '^^g^"*" 
farmer or tenant of the manor ; but the bye Jaw made in the pre- ^ ° * * 
ferit cafe is not confined to the fanners or tenants of the manor, 
but is general^ viz^ '* That no perfon • or perfons (hall de- 
** pafiure, f^c." tlxerefore the bye-law is not \)rarranted by the 
cujlom. 

sd Obje3ion. It is not fliewn that the plaintifiPat the time 
when, ^c. was a farmer or tenant of the manor, or of any lands 
.within the manor; vhich ought to be (hewn, to bring him 
. within the cuftom^ and fubjed him to the penalty for breach 
oftjie by€4aiw;'%)i\% is very < material; becaufe, lor. any thiog 
tbgt appears to the court to the contrary, the plaintiff might be 

M4 auef^ 



l68 Hilary Tzm 11 Gbo. HI. 177 !• 

a irefpanTer upon the common, orjnight hkve, or claim to hsve^ 
a rigtit of common in the place in which, &r. as belonging X9 
lands lying out of the m«inor. 

3d Obje£tion. The cuilom dated is to make reafonabU hye^ 
laws and ordinances, and to impofe reafonabU penalties on fuch 
farmers and tenants of the manor who ihould infringe or break 
fuch bye-law \: but here is no averment that i\\t bye-law in quef«> 
tion is reafonabU^ or that the penalty for the breach thereof is 
reaf»nable^ fo that the plaintift coujd not ^ake an iifueto try the 
reafonabieoefi thereof ; twenty (hillings i* the value of a meep, 
and therefore feems to be an unreafonabU ^m\xY for dtepafluring 
every flieep contrary to tlic aye Jaw ^ and therefore it is moft ne^ 
ceflTary to al ledge that thCriyeJaw is reafonabU; befides, the 
penalty is for a£ling contrary to this and aHjarmef bye*laws : 
without ftating wliat thofeyirw^r bye4aws are, 

4th Objcclion. It is not flatcd tliat the plaintiff v?a? 4 refiant 
within the manor, which ought to have Dccn fiati^ ; for the 
jun' is compofed of tlie re/iauts; apd if the plaintiff i4fa$ not 
refiant^ be was not bound to attend the Utt^ nor could hq be 
called thither by any procefs of the court ; therefore the' ^K* 
law was made in his ab fence, and it cannot be prefumcd tliat 
he had anv opportunity of knowing this bytUaw^ or of objefUiig 
to the malcing thereof, ^ 

5th Objcftion. The cuflom alledged is, to diftrain the beails 
and' cattle of fuch tenant or farmer, for the penalties incurred 
for the breach of the bye Jaw in any place within the manor ; 
this is nnreafvnabU ; the cuflom ought to be, to take a reafon^ 
able diftrefs^ or at leafl to have been CQn&ned to diihrain the 
cffender^s cdttle on the common^ and not all his beajis and cattU in 
any place within the manor; for< by this cuflom^ it feems that all 
the cdulc of a tenant or farmer offending againft the ^j^e-Zazzi, may 
be diflrained in any place within the manOr, 

6[h Objeflion/ It is not ftate4 that there has been any/r^- 
Jen/ merit mi^dc of this offence, and it is,very hard, and improper, 
that the lord (hould dillrain witlK)ut a previous prefentment of 
tlu'/)irence: in all the cafes in the books, as to this matter, the 
que II ion was, whether fuch prefentment be traverfable, but not 
whether any prefentment be neceffar}'* 

7ih Objeclion. That the Uetjury have no power, even by cuflom^ 
to make fiich bye-laws^ touching civil rights ; ioriheUei is a court 
of trimif^al jurifdiilion^ and this is the cafe of a aw/n^A(;-the leet 
jii ry are only QXre/iants^ they m^y not have any right pf conimon, or 
iany intereft in the common; and fuch bye Jaws can only be made 
by. the commoners, and ougnt to be made at the' court baron^ 

whicH 



HjtAnV Totm U Geo. III. J77i. i6q 

nrhich is the proper court for the dtfil Hfine/s of the manor.-^ 
|n the cafe of Jre/ls verfus ^CoUerd, 3 L^. 48, in refievin^ 
it was held a bad cufiom^ for the Jleward of the manor, with the 
confcnt of the homage, to make byeJatvs^ and impofe penalties 
for good government within Oie manor, to be forfeited to the 
lord of the manor, and to difirain for fuch penalties ; for facli 
^Jaws ought to be made by the homage only. 

8th Objefiion. If the confent of the commoners be ne- 
ceflary for making bye-laws^ it ought to be ftated that thofe com* 
inpners were refianis^ becaufe otherwife they are not bound to 
attend the Uet; and no law can bind them, if abfent, and npt 
bound to attend. Refiancy onfy obliges attendance at the court 
ket: but all the tenants of the manor muft attend the court " 
bAron^ whether they be refiants or not ; and the right of commoi^ 
\% in refpe£l of lands, and not of refiancy. 

9th 0bje3ion. It is not ftated in the third cognizance, 
that xkn^trefence or confent of the commQUcrs to the making 
the byeJav) was neceflary. 

Serjeant Glynn for the defendant, in anfwer to the fevenil 
objedions taken bv Serjeant Jephfon to the cognisances, fpoke to 
ihefolimmge&fiy vi>« 

It is obiefied by my brother Jephfon^ that the bye Jaw Is not 
warranted by the culiom; for the cujtom is'td make lye Jaws obli- 
gatory on the fyrmers and tenants of the manor only, and that 
the tyeJaw^ in the prefent cafe, is general, and not confined to 
A^/armers and tenants of the manor, but extends to all perfons . 
whatfoever.' In anfwer to this, I fumbit it; there is no mate- 
rial yariance between the cufiom ftated, and the byeJaw made in 
jmrfttitoce of the cuflom: the law i$ only to bind the owners and 
tenants 6i lands in the manor; it doth not affis€i to bind //rtf;». 
gers: the bye-law is general, but who will be bound by it? 
only thofe that are fuDJe£l to it ; namely, i}c» owners and occu^ 
piers of land within the manor ; for if %Jlr anger was to ptH his 
cattle on the common within the time prohibited, he would not 
be thfc objeft of the byeJaw. 

It does not lie in the plaintiff's mouth to fay be is a trefpafler, 
but the court will take it, that- he put in his Uieep under a right 
and claim of common ; and though there may be a cafe where a« 
man may have a rightof common, in refpe£l of lands, in a place 
out of the manor, yet the court will not prdume or intend 
(uch a right, without it be fpecially pleaded and fet foith; but 



iyO HltAB^TEBM 11 GbO.IU. 1771. 

the court will intend this to be the common law right of 
common* 1 

As to the objeftion, that there 1$ no averment that the tre^' 
law and penalty for breach thereof are rcafonabU: I anfwer tnat 
Ai^h an avertntnt is not neceflary ; for if (in UEi\ it be unreafonahU^ 
then it is void : .but by makinfr the law^ it Joes, in eftefi* lay 
^ that it is reafonabU ; becaufe if it be unreafonable it is no law ; 
k is of the eflehce of a bye-law that tube reafonabU ; ii need not 
be exprefifed to be foi| and it is fully open to the plaintiff to 
put the reajonablentjs thereof, and of the penalty, in iffue. 

As to the obje£lion, that it is not ftated, that the plaintiff 
was refiani in the manor, it- is not material; and my anfwer to 
the lafl objeflion, will be a direfl anfwer to this. 

And as to the offence being contrary to former byt^avfs as 
.well as this, it is fufficient that it is contrary toiiis; but there 
isnoobfcuritv, yfhaAXheformtr byeJawf are; they muft nece£- 
farily be fiicn as prohibit the depaftucing of cattle on ^he com- 
mon, within the time prohibited by the prefent bye-law. — ^The 
words ** all former tye-lavt,'* are iurpluiage, and maybe left 
out ; the prefent bye-law b good, mdepehdent of the former iye^ 
laws; as to the magnitude of the penalty* ai^d difbraining all the 
cattle, the law will reduce it to a reafonable diftrefs, thej^nii- 
eiple of lliw fi'\Wi\xf/^y ihe cure* 

As to the objeQion concerning a prtferUmaii of the ofience 
being neceflary, previous to the diftrainii^ £or the penalty ; I 
anfwer, that a pr^/intmefit^ in this . cafe^ is mere matter of in^ 
formation and inftru£lion^ is unneoeflary, and does not give the 
right to diili^n ;- but where the bye Jaw provides that there fliaU 
j>e a previous pre/entmentj then it is matter of title, andnecelEuy \ 
^vt the bye^law is good' without fuch proviiion* 

As to the objefiion againft the power of the cauri teet to 
make fuch zbye-law^ I admit, that, of common right, they have 
' no fuch jurifdi£lion to interfere, or make.^tf-/tswj concjpming the 
regulation or ri?ht of common ; but .yet, by Of^ovt^ fuch a power 
may be in the Teet : the court leet perliaps may be coeval with 
the manor, the' rtfianis perhaps were the commoners when the 
/M waa firft j^omted; and where is the abfiirdity, to fuppofe, 
that at the original inftitntion of the cvurt leet^ a pow^ might 
be given to the lord and jury at the /»/, to regulate the right of 
CMMBon-withtt the manor? The commoners in general mnft 
beat Mr leet.; as r^ifiajitr, they muft be there, therefore maft 
}ra prefumed to be there, and to be bound by the laws made there. — 

As 



. Huart-Teruu Geo. IIL 1771 • 171 

As toth^ calie of flails verfus Coilerel, in 3 Lev. 48. if thai cafe was 
of a (vurf ket^ it would in a great decree be decifive in favour of . 
the defendant, but being of a court Far on, the Jleward is not iht 
judge, but merely an officer ojthat court; l\\e homage are thcju^;^ 
iJure^ mi, therefore.t&ihg the power from the homage, and 
placing ii in the Jkward, is fubverfive of the jurifdi£lion of the 
AatMge : but in the prefent cafe, the tvflom will warrant tht 
making tlie bye-law in the leet. This is not a new cafe ; for in 
\ Molt, Akfl 3Ej. pL io. there had been a court (called 
curia kgdUsJ held by the lord of the manor imffiemonaliy, in a 
large moor, parcel of the manor, (wherein many men liad com. 
jnon) for the better ordering of the common there; at which 
coitrt all the commdners 6ught to appear bv the cuftom; and 
there had ufed to be a homage fwom by ibt^etaard, which Ap* 
fnage bad ufed to prefent all oppreflions and offences in the com- 
mon, and to make bye4aws ana ordinances for the better ordering 
of the common: which ordinances the commoners ought ioobc)S 
umler a reafonable penalty, to be afieffed upon them, to be 
' forfeited to the lord, &c. And the homage being fworn, made 
a bye Jaw, that no commpner (hould. put liis iheep within one 
part of the moor, under the penalty of 3i. 4^. to be forfeited 
to the lord, and this bye Jaw was publifhed and proclaimed in 
icoart ; thi^ is a ftodd byeJaw^ ^nd ihdll bind all the cotmnonerit 
becaufe the bye Jaw arifes out ot the cufiom^ which commenced 
by confent of the parties. This cafe in RoUs Mr. is very ap- 
plicable to the cafe at bar, it is there called curia legahs; the 
C^uri leei is (uria legalis^ an4 is only a tranflation of the name of 
ahe court. 

In ^he cafe of the Earl of Exeter verfus Smih^- a Keb. -367. 
this very queftipn now before the court was determined ; that 
fhc caurt leei might hy cuftom make bye-lcms for ufing and re« 
plating their common, and judgment was given accordingly: 
the (ame cafe is more fully iind clearly reported in Carter* s lUpm 
tjy. where judgment is given accordingly by two judges 
0gainftone* 

Lord Chief Jufiice de Grr^^^The principal objection which The priactpi) 
fiicks with us, is, that the bye Jaw flates, that no perfon or perfons obje^M to 
^1 depafturc any Iheep, &c. on pain of forfeiting 20s. for [n* j^tSU 
i^very fiieep whicn fliould be draailured, &c. contrary to the ofdtccovitu 
idi\^ bye4aw and all former bye-laws; how^ranthe court judg6 
whether the offence fet forth be contrary to all former bve^ 
laws\ when thofe byeUaws are not fet forth? For thofeotner 
-f^ws niiay (perhaps) modify and qaaUfy the o&nce,. or 
«xcttfe from the penality, forany'ihing we khow to the 
foaMry. 

/ GoMld 



172 HilahyTerm IJ Geo;IIL 1771*. 

. Gould Juftice — ^The byc4aws niay be good, but not being fe| 
forth' and difclofcdi' the court can give no judgment ^bout 
ibcm, 

Bhckjlone Jufticc — ^Thc hytJUao itfelf is uncertain, for the 
penahy is given for an offence aeainft all former bye-Ums. and 
^ iherefore they muft be fet forth tor the court to judge of them* 

^ Lord Chief Juftice-^—Suppofo the plaintiff had offended a|^nft 
^his bye4aw^ yet no. penalty is incurred unlels he had offoide^ 
gainft ^Wformer byc4aws. 

The caufe was ordered by the court to ftand over for further 
argument, with liberty for the defendant to coniider, whether 
he would not move for leave to amend his cognizances ; but I 
never heaird that tliis cafe ever came again before the court ; and 
^ believe it did not. 

' ^^aumatur. 

»Blaek.Rep. ' Wood's Cafc. C. B. 

745S.C. 

TlMcoortof Y^EORGL WOOD having married A. B. and cohabited 
C«i»«» ^^ with her for fome fliort time, and flic being detained, and in 
r ^tai'kirif- *^ private cuftody of C D. Wood made an affidavit of this matter ; 
aiaion to ' whereupon mv brother Whitaicr mo v^d tot a writ of luJfi4is corpus 
snot writs of to be dire.£led to C. D. commanding him tohav^ the body of A. 
\n^c^* 5. before the King's juftices ziWeftmin/Ury by whatfoever name 
whatibever. * &e was called, together with the day and caufe of her being 
taken and detaiinea, (on fuch a day) that the juftices, feeing tbe 
caufe, might do that which of right, and according to the law 
and cuftom of England^ ought to be done; and further to do and 
receive what the fame juftices here (hall then confider in that 
behalf. He cited Bu/lid's cafe ; and faid, that if, upon the return 
of the writ of kaHeas corpus^ it ihpuld appear to the court that 
A. B. was in cuftody of C- /). for any criminal maiitr^ they 
wpuld not take cognizance thereof ; but if it fiiould appear, that 
Ihe was in cuftody under colour of dvjl procefs^ pr for other fup. 
pofed civil cauji^ contrary to la%v^, they would difcharge her out 
of cuftody; or if (he was in legal cuftody in a citnlcafe^ they 
would remand her. The court having taken a few days to con- 
fider granted the writ, and feverally fpoke to the following 
effefl. 

Lord Chief Juftice De Grey^^l wondered, when this matter 
was moved, how there could be the leaft fccuple againft iffuing 
a habeas corpus by this court, for prote£ling the liberty of one 

. fubje^ 



HtLART TzbU U Geo. III. I7fi. 1$^3 

fubjed againft another: I had no dotibt at allmyfelf; lioweiref, 
I have looked mto the books, to fee what is therein laid touch^ 
ing this matter. 

The firft inflance of .this kind is upon the ftatute of magfut. « Hale, H« 
charta^ sl In^. jj. a. where Lord Cokt in his comment lays,-^-^* '^ 
** If a man be taken or committed to prifon againft the law of *^^* 
the land, what remedy hath the party grieved ?" It is there 
anfwered, that ** he mav have an aBion, or he may caufe the 
party It be indiAed at tne King's fuit ; or he may have an habeas 
corpus out of the King's Bench or Chancery^ though there be no 
privikge ; or in the couvtoi Common Pleas or Exaiequer^ for any 
officer or privileged perfon there ;. and if it appears upori the re- 
turn of the writ, thar his imprilbnment be juft and lawful, he 
fliall be remanded ; but if h ihall appear to the court that he 
was imprtfoned againft the law of the land, they ouffht by the 
force of this flatute to deliver him r if it be doubtful, he msiy 
be bailed. 

So in 4 /lu?. 290. if a man be imprifoned by a judge of the 
foreft for killing or chafing deer, and afterwards offers fufficient 
pledges, it may be demanded, what remedy is there for the 
party ? The anfwer is, he may have a habeas corpus out of tlie 
King's Bench ; or if he have privilege, out of the Common Phas, 
or of the Exchequer^ or out of the Chancery without any prii-i- 
lege, either in the term or vacation, and may be bailed to ap- 
pear at the next £yr^. 

In Dier 175. Scroggs verfus Co//ehili, the office of exigenter of 
JLonJoH and other counties, became vacant by the death of 
NenmngSf in the year 1558 ; and afterwards Sir R. Brooie^ the 
Chief juftice of the Common Bench died; and in the time of the 
vacancy of the office. Queen Mary granted the office of exigenter 
to one Colfihill, by letters patent; and aftenvards, by letters 
patent of the fame date, ffranted the office of ch^ef juftice to An^ 
ihony Brown^ who was admitted juftice, and fworn ih^Jirfl day ' 
of Michaelmas term in the vear abovefaid; who refufed ColfehiK^ 
and admitted his nepliew ocroggs to it. And now in this term, 
(Mich, t & t Eliz.J maxima lis mota fuit inter ipfos pro officio 
pr^dxQo^ et domina Regina nunc mandavit Nicholao Bacon militi 
£uftodi magnijlgilli^ aaexaminandumjus ettitulum diih Colfehill, 
et inde relattonem faciendum eidem Regina. Q^ui quidem cvRospofi 
Jinem hujus termini^ convocatis omnibus juftiaariis Band Regm^f 
videlicet^ Catlyn, Whyddon,'Rafiall et Corbet, ac'Saunders Capi^ 
iaUBarone^ ac Genrard Attornato Generah^ ac etiam J. Caril At* 
tomaioDucatus (exclufts omnibus juftiaariis deCommumBancoJaC'^ 
cepit refolutionem planum poft longam deceptationem et hafitaiionem 
\ 4fmnium 



174 Hii^AJiT Tjum 1 1 Ceo. III. 177 i. 

0mfiium pradiSarumy \juod tiiulus CoKthill nuUusfmi, H qu^ di 
domnain Rcgtnam dom^ojoficii fradiSi, nulio modaei nuUo tm- 
pore per/inetj aut pertintat^ fed tantummodh ad difpofiti^iitmmc^pi^ 
talis jtifliciarii pro tempore exiftentis^ ut inddehs infeperabUt ad 
perfanain diBi capiialisJpeSans: ei hoCy raticne frefcrif turns d 
u/us* Ex quofequitwr quod Rtgitta ipfamet non poiejteffe eapiuUfs 
jufticiarim in banco pradiSo. And notwithftanding the b\A re. 
folution of the juflices afarefaid, the Qaeen, upon importunate 
fuit dire^ed her coromiiBon to the Earl o{ Bedford^ and nine 
others, of whom were Juftice Corbet^ Juftice Weflon^ Sit Roger 
Ckolmel^ Sir W. CordeiMaSutr of the Rolls, and Ibchatd Good^ 
rike; ^ivin? to tliem full authority to hear and determine tht 
intereS and tide of the faid office, betwyeen the parties aforefaid, 
and to place Col/ehill in the office, if, &c. and that if Scrog^s 
refufed to make anfwer before them, that they tftight commit 
him to prifon^ 0r. And afterwards, in Michaelmks term 'fol- 
lowing, Col/ekiU exhibited a bill of complaiiit to the fatdcom- 
miffioners againft Scroggs, comprehending all his title as above, 
and that he was difleifed and deforced of it by Scroggs; and 
Scroggs came and demurred upon the bill and junfdi3ion of the 
fomt by the faid commiflion, and would not make other anfwer; 
and for this contempt he was committed by them to the prifon 
olih^ Fleet y and there remained for two weeks; and then the 
court of Common Bench was moved by threeferjeants to grant a 
habeas corpus cum cau/d to be direded to the warden of the Fleet. 
And upon good deliberation of the court, »wr. Ja, Dier^ A. 
Browne and 72. Wefton^ the motion was held reafonable, and was 
granted, becaufe he was a pcrfon in the court/ and a necelEuy 
member thereof* 

In 2 ./fa&*J Hxft. PL Cor on. (before the habeas corpus afl) 
it is laid down that this writ of habeas corpus is a writ of 
a high nature; for if perfons be wrongfully committed, they 
are to be dif charged upon this wifit returned; or, if bailable, 
they are to be oailed, if not (>ailable| they are to be com- 
mitted. 

'This writ [fays that book] iffues out of the great courts of 
JVefimin/ier, but hath different ufes and eflfcas. It may iffue 
out of the court of Common Pleas or Exchequer ^ but that is or 
ought to be always, where a perfon hjmvilegedy or to charge him 
vithan afiion. But by the Jtat. it Car. %. cap> lo. they have 
an original jurifdi£tion to bail, difcharge or commit upon an 
aabess corpus^ one committed by the Council Tal{le, as well at 
thfi King's Bench^ akbough there be no priWlege for the perfon 
conimttted. 

Ido 



Hijw^Y TsBM 11 G«o. IIL 177U ;17S 

I do not find vthat this matter hath come much in queftion 
until a few years before the habeas carpus a£t. Eujhets cafe, Sir • 
Thomas Jtmts 13. 2a Car. a. anno 1670. The cafe was, that 
Bnfkd^ amongft others, jurors in London^ upon the trial of a 
traverfe, npon an indi£lment againft divers perfons for conventi* 
pling againft the form of the ftatute lately made, were* fined and 
imprifoned at the fefiions of the Old BaiUy, becaufe they gave 
their verdi£l contra pUnam evidentiamet dire3ionem curitt in ma^ ^ 
terra ImSi and fo acquitted the prifoners. In this cafe it was 
debatcn^i^ the bar and the bench, whether the Common Bench 
could zyfixA^z habeas corpus in this cafe. Wild, Archer and Tyrel^ 
Juftices — ^Tbis court may well award it ; and for this purpofe 
thqr cited t Anderfon 297, 208. 2 Injl. 615. Moor 839, x 132. 
s Brownie 83,—rtfa^Atf«. Chief Juftice, to the contrary : and 
h« faid, tlial {omt habeas carfufes are gramedof courfe, others 
not without motion ; that this court had not power of granting 
the writ in peoeral, but only in cafes oipHwUge^ or excefs ot 
jurifdi3ion by an inferior court ; in which cafe every one )|ad 
privilege to be difchar^ed by the courts of Wefimnjter. This 
court does not grant it becaufe they have conufance of the 
caufe, hut becaufe that there is a probable fuggeftion that this 
coMtt may deliver the party. If, upon the return, the caufe be 
exjprefsly jufl, the party ought to be remanded ; if exprefsly un-^ 
juft, difcharged ; if doubtful, bailed. The writ is, adjuhjiden^ 
dum et recipiendum quod Curia confideravtrit^ et ut curia nofira vifa 
caufa iUay oiauoddejure& con/uetudine regni no^rifuentfaden* 
dum^&c. -Now this court, in cau/es criminal^ cannot i flue this 
writ. — He urged that the want of precedents in this court is a 
ftrong argument tnat fuch writs are not grantable here. The ; 

writ alfo requires that the body una cum die capt\pnis haiecU^ 
whereby the court may be certified how long the .party hath 
been in cuftody ; becaufe, if for a long time, and no proceeding 
againft hiro« the court ought to bail the prifoner, fihhough he 
was committed for felony or treafon; which is improper for this 
courts which hath not conufance of crimes ; for this court is 
for common pleas between fubje£l and fubje6l ; but in the cafe 
of a crimi^ the plea is between* the King and his pri/oner* He 
cited 2 hfi. 53. in margincy &»S5' ff^^' »• ^^P* i5« And 
to the authority .cited on |he other fide irom j4nder/on, he faid, 
that all the four caufes there mentioned are of perfons under |he 
protefiion of this; court; an(f concluded, that the epUrt ought 
Boi to grant the writ in this cafe. But, upon the Qpinton of 
the three other judges, the writ, was granted. And at a future 
day, the (heriffs pf £mi^m, to whom the M^itwas direfied, re* 
turned it with the czuk/upra. And upon argument .of the 
fufficienqy or infufficiency of the return, the prifoner was 
^fehftrged. 

Jn 



176 fiitAHY TekM 11 Geo. lit 177L 

In Vaughan 154, 155, there are feveral cafe* upon habeas' cor ^ 
fns, where the court oT Common Picas hath difchar]^ed perfons 
imprilbned by other courts upon, the infuffidency of the return 
only, and not for privilege; whether the prifoner is privileged 
as an officer of this court, or is a ftranger, it is all one, in my 
opinion,. and if the r^urn be bad he mall never be remanded^ 
bec^ufe contrary to magna charta* 

The next cafe is in Eafier term, z^Car. 2. C. B. Carkr 221* 
Jf> S. parTqn, libels for tithes againft 7./). he \s certified caniu^ 
tnax: the bifhop, according to 27 Hen. 6. cap. 20. certifies to 
two juftices to imprifon him, without bail or raainprife: they 
do fo. Baldwin Serjeant moved for an habeas corpus in the 
(Common Bench; and it was granted, by three judges, but the 
chief juftice was againil it. n^tld^ one of the judges, fays — ►•? In 
^ Queen £/7za^£M*s time there was no diftin6lion, but an ha- 
" beas corpus was to be allowed in the Common Bench or King's 
•• Bench: and I cannot fee, [fays he] how we can deny this 
" habeas cor pus Jalvojuramenio. Thefe writs have gone bej'pnd 
•* fea. Doclor Prujean wa^ tb cure a madman ; (Sir Robert Larr's 
•* brother) this court lent a habeas corpus for him beyond fea." 
And fee 2 VenL 22. Thomas Rudyari*s cafe inC. B. 1 Mod. 2^5' 
and 2 Mod. i^%. Jones'^ cafe in C* B. toucUngth^ granting ia* 
Seas corpus by thi^ court in various cafes, a little before the kaieas 
corpus a£l. Pra£lice, of late years, has carried this matter of 
fuing for habeas corpus into the King's Bench ; but now the writ 
being indorfcd to jjffue by thejlaiutt^ may be granted in any cafe of 
impriibnmenty by any court in the Hall. 

By the llatute of 16 Car. 1. cap* lo. it feems to me that the 
legiflature then thought that this court bad the very fame jurif* 
di^ion with refpc£l to granting writs of habeas corpus^ that the 
court of Kxn^s Bench had ; for the words of the ftatutc are, 
" that the judges of the court of J&V^'s Bench^ ot Common Pleas 
V .(hall, . for the ordinary fees ufuaUy paid for the fame, grant an 
•• habeas corpus ;" fo;they took it toteihe courfc and pra3jce of 
the Common Pleas as well as the King's &»(rl,-tojafrant writs of 
habeas corpus^ i^ order to be certified whether a lubjc^ impri- 
foned was imprifoned contraxy to magna charta^ or not. 

This is a matter between fubje£l and fubje£l» and I cannot fee 

[as was faid by Wild Juftice] how we can deny this habeas 

- corpus^ falvojuramento; as at prcfent advifed, I think we are 

bound by law to grant it, and that it ouglit to liftte ac« 

cordingly. 

Could 



Hilary Tsbm 1 1 Geo. III. 1)^71. 177 

Gotdd Julbce — ^I am of the fame opinion with my Lord Chief 
Jufiice. I have heard Lord Ap/ley fajr, when he fat in this court, 
that he had feme doubt touching this matter; but for my own 
party 1 have no doubt at all» and think that this court has a gene- 
ral jurifdidion to gr^nt writs of hajkeas corpus in all cafes; but 
when the prifoncr is brought here» it then becomes another quef* 
tion, what we Ihall do. 

Blackftom Juftice — I am of the fame opinion with my Lord 
and my brother Goiddm 

Narts Jufticc — I am oi the fame opinion. I have well con- 
fidered t}iis matter, and have nodotibt^ but that we are bound ta 
grant the writ, 

Tlie writ was granted accordingly j^ totam curiam* 



EASTER TERM 

11 Geo. in. 1771. 



Onilow Eib. T^^y)^ Home^ Clerk. C. B. iBhck.Rcp. 

750. S.C. 

A CTION upon tlie cafe, wherein fix counts are laid, in 5^^^^ 
-^^ the declaration; the firft four counts are upon feveral Two cQaat% 
libels, fuppofed to be written and publifhed bv the defendant, »(>*« d«. 
of and concerning the plaintiff; theJg/iA ann^xrt c^ia/jarc ?[JJJ^^^ 
fof certain, faife« (candalous, and defamatory words^ fuppofed to amfted, be* 
be malicioufly fpoken by the defendant at Epfom^ in ourry^ of cmCb ch« 
and concerning the phuniiff. The defendant pleaded Not JJJIjJ |j^^^ 
ffiiilty; whereupon ilTue was joined, and tried before Lord ai^aotiaion* 
mansfuld^ at the laft affiles for the county of Surry^ when a iUe. 
verdifi was found for the plaintiff on the la/t counts for the words, ^,^^^ ^^ 

tiMMUc wlpca frokta of t Member of PArluBeat 1 
Vol.UL u and 



178 Eastkk Term il Gbo. III. 177 li 

and J^ool. intlre damages, and a verdifi for the defendant as (#' 
the refidue^ And now it is moved that the judgment may b# 
.arrefted, becaufe the words in the two laft counts, or in the 
latter of thofe counts are not a6Honable; it is therefore only 
neceffary to write down here corrcftly the J^ftA and^y£cM counts 
Upon which the plaintiflf obtained the verdifi, which are as 
follows. 

The fifth * And whereas lie the faid Gtargt (hjlvw^ at the time of fpcak* 
count, for ing and publifliing the fcveral falfe, fcandalous and defamatory 
fui^d^oos words herein-after mentioned, and before, was, and yet is knight 
and dafama- 6f "the fliire to fefve in parliament for the faid county of Surry, 
tory words and always condufted and behaved himfplf in his faid charader 
ttc^Vof* ^"^ Ration with fidelity, integrity and honour, (to wit) at Ep/om 
pariiameDt aforefaid ; and vfhereas before tne fpeaking and piiblifliing the 
for Surry, by jfervcral falfft) fcandalou* and defamatory words herein-after men- 
frtebddlV *at ^io^ed, (to wit) on the 26th day of June, in the year of our Lord 
'a meeting of 1769, at j^^m aforefaid, a great number of freeholders of the 
the fieehoid. faid county of Surry, having^ right to vote in the ele3ion of 
county'at' k^iights ot the fhirc to ferve in parliament for the faid county, 
£pfofs. affembled and met together to confider of meafures to be taken 
in fupport of the right of ele&ion ; and it was then and there 
at the /aid meeting or aflembly propofed to inftruft the faid 
George On/low, and Sir Frauds Vineeni Bart, the other kniglit 
of the (hire for the faid county, to take meafures, as reprc- 
fentatives of the faid county m parliament, in that behalf ; at 
which faid meeting or aflembly, the faid John Home, under pre- 
tence of beinff a freeholder of the faid county of Surry, attended, 
(to wit) at Effom aforefaid; yet the faid John Home well know- 
ing the premifes, but contriving and wrongfully and malicioufly 
devifing and intending to injure, defame and fcandalis^e the faid 
George On/low, as one of the knights of the .(hire to ferve in par* 
liament for the faid countjr, and to ruin him in the opinion 
and efteem of the freeholders of the faid county fo aflcmbled as 
aforefaid, and the other freeholders of the faid county, on the 
faid 26th day of June in the year aforefaid, at Ep/om aforefaid, 
at the aforefaid meeting or aflembly, and in the hearing of divers 
of the faid freeholders of the faid county fo affembled, falfly and 
malicioufly faid, fpoke, and, with a loua voice, publilhed ot and 
concerning' the faid George, as knight o^ the inire to ferve in 
parliament'for the faid county, and refpefting the faid propofal, 
which had been fo made as aforefaid, thele falfe, Tcandalous 
The word! and defamatory words following; (that is to fay) / (meaning him- 
Wdinthe feir the faid John Horjie) expeBed to have met George Onfiaxa 
fifth count, ("nieaning the laid George Onflow), but Jind he (meaning affain the 
faid George Onjlow) is not herei^or which I (pieanirtg himfelf, 
*• the iM'jfohn H0m^am rather forry^ as I (meaning huofd f.the 

* • *• -tid 



faid ^(^ Hcfme) came iete with an iaUrUiim to h^e told him 
(meaning the faid George OiJUm) my opimpn ^Jkim (meaning tbe 
laid George Onfloxp); andijhe (meaning the faid George jdylow) 
voouldhave waived his privilege^ 1 (meaning himfelf the faid jfohn 
Home) would have tumued my gown. I (m^amkig again hiiiifelf 
the faid J^ohm Home) know him (meaning the fi^d George On- 
Jlow)very weU; I have carried kiieri/rpm Mr, On/low (meaniitf 
the faid George Og/lofv) lo Mr. Withes ^ jvH rfpro/eMons of friend^ 
jkp'eaul Jervue^ zohich wen -netuer itepi; nor ititdu^ is if 4o ie 
UHmdered ai^ Anee ii is notorious^ he (meaning the faid George Ou" 
fioyif) never kefit his (meaning the {aid fkorge Onttows) wordt 
unUjs where his (meaning the faid George Oytoyjy) own . ir^re/l 
was concerned. As to the inftruSing our numbers (meaning the 
laid George Oijflow^ end the faid Sir Francis yincmt) to oitiun re* 
dr^St J (meaning himfelf the faid Tohn Home) am totally ^aifijl 
that plan; for as to intruding mr. Onfifm (meaning again the 
faid George Onflo%u)t we might as wellinfiru3 the winds: andjhould 
he (meaning the faid George Onflow) even fromife his. (meaning 
the faid George (h/low's) ajifian^e^ I (meaning lumfelf the Xaid 
John Horne)Jhould not etcfdl him (meaning the iaid George. Qi^^ 
Jiow) to giv€ it us. ... 

And the faid John Horne^ of his farther malice ajgainft the The fixtb 
laid George^ and cohtriving, and wrongfully and malicioufly de- **^'*^* 
yifing, and intending as lalt aforefaid, afterwards, (to wit) on the 
fame day. and year laft ahove.mentioned» at Efifom aforefud, at 
the aforcfaid auembiy or meeting; and in ihe hearing of divers 
of the faid laft mentioned freeholders, fo met and a0embled» 
falfly and malicioufly faid* fpoke, and» with a loud voice, sub- ^ 
lilbedy of and concerning the faid George On/low^ 'amd refpeaing 
the iaid propofal which had been fo made as aforelaid^ th^Ie 
other falfe, fcandalous and defamatory words fdloMring, that is 
to fay, jIs to inJlruSing our members (meaning the faid George, The wordi 
and the faid Sir Francis Fincent) to obtain reArefs^ I (meaning gj^^^^. 
himfelf the faid John, Home) fim totally againA that plain: * *** 
for as to inftruSing Mr. Onjlop) (meaning the faid Ceorge Orfiow)^ Ai to io^ 
we rmght as well inflruS the uinds: andjhould he (meaning the ^^^ ®" 
faid George Onjlow) even prondfe his a^Jlanu^ I (meaning hitn- ^\^^ re-* 
felf the laid John Home) Jhomd not expeS him (meaning.the faid dreft, i am 
Georfe Qjifiow) to give it us* By rcafon of the (jpeaking and JJJ^^^jjJ**^ 
publifhing whieh faid fa^fe, fcandalous and defamatory words, fg*^,^ f^ in. 
he the faid George Oilflow is very much injured in his char^£ker ftruabg jAr^ 
and fiation of knight of the (hire, to fcrvc in parliamept for the ^-J^® ?"«*»* 
(aid county of Surry ^ and brought into gseat fcandal, infamy and ^^^^ ^^ 
dilgrace, and very much prejudiced in the efiteem and opiaKm of windi ; and 

Ihottld be 
^ • crenpraiBifii 

• bis iff ftiMe, I At«M iwt ei^^ftbiiii to givt It «f . Kot aaionable. 

N 2 - the 



186 Eastek Term 11 Geo. III. 1771. 

^ the freeholders of the faid county of Surry ^ to the faid Qet^ge 
Onflow^ his damage of ten thottfand pounds, and thereof be bringv 
fuit, &c. 

On the ipth day of NavanbeTy Mn Michadmas term laft, Ser- 
jeants Glynn and Jephjon^ on behalf of the defendant, moved in 
arrefl of judgment, that neither of the fets of words are afiion- 
able^ and mor.e efpecially the latter are not : the verdi3 is taken 
generally y and the damages are given upon both the counts 
jointly ; fo that if the court (hall be of opinion, that either of 
thefe fets of words are not in themfelves aClionable, they will . 
art eft the judgment. 

It appears by the declaration, that the word's wer^ fpoken by 
a freeholder, at a meeting or affembly of freeholders of the 
county of Surry ^ for a lawful purpofe> to confider of meafures 
to be taken in fupport of the right of ele&ion; and that it 
was then propofed to inftrufl the plaintiff, and the other mem* 
ber of /A^/ county, to take meafures in ^^a/ behnlf; wher4:upon» 
a debate arifing, the defendant Mr. Home eavehis opinion againft 
inftruAing the plaintiff Mr. Onjlow^ and Ipofce the words in the 
declaration, concluding, *' that he was totally againjl th<U plan : 
** for astoinjlrulling mr,OnJloWy we might as weU inftrufl the 
" winds ; andjliouldhe even pronvfe us hts qlfijiance^ 1 Jkould not, 
•• expeS htm to give it us.' If words of opinion like thefe» 
fpoken at a public meeting of a county, or at a meeting of any 
eprporate body, to confider and inquire into the condu6l of 
their fervants, arc to be adjudged actionable, and for which 
large damages are to be given, there will be an end of all free- 
dom of debate in e\^ery public affembly in the kingdom met 
together for lawful purpofes; whereupon the court made a rule 
to fliew caufe, why judgment fhould not be arretted. 

^ovemher the 26th, in the fame Michaelmas term, Serjeant 
Jnitaker fhewed caufe for the plaintiff, why the judgment fliould 
not be arretted. 

Serjeant Tf^taier — It is an univerfal principle laid down in 
the books, that any words whatever fpoken malicioufly againft 
the integrity of a perfon in an office of trutt, are, in themfelves, 
a£lionable; a member of parliament is an office of the greateit 
trutt, and his integrity is of the utmoft confequence to the fub- 
jeft. I admit the freeholders of the county have a right to in- 
ftruft their members to take meafures in fupport of the right of 
elcftion, but they haye no right to fpeak malicioujly againft the 
integrity of their members; and to fay they might as welltnJlruS 
the mnds^ as in/lrud a certain member; that he never kept his 
2 word^ 



Easter Tebm 1 1 Geo. IIL 1771. 181 

foord^ uhUJs where his own iniereft was concerned: or anjr fcanda* 
Lous and defamatory words of like import to thoje laid in the 
declaration, which the jury have found to be fpoken nudiciou/ly 
by the defendant upon this occafion. 

Applicable to this^ is the cafe of Richatd Afhn Efq. againft 
jfojepn Blagrave^ Mich, ii Geo. B. R, 2 Lord Haym. 1369. In 
an a£liun for words, the plaintiff declared that, he was a juftice 
of the peace for the county of Berks^ and that the defendant, 
intending to fcandalizehira, and bring him into difrepute, faav« 
iiig a difcourfe with divers of the King's fubjefls, at iVant^t in 
Berks ^ concerning the faid Richard^ and concerning his exccu« 
tion of bis office of a jufiice of the peace, in the prefence and 
bearing of many of the King's fubje£)s, fookeand publiOied of 
the faid Richard and of bU. execution oi his faid office, thefe 
, falfe, fcanddlous and defamatory words; viz. '* Mu Afion 
(meaning (he plaintiff) *' is a rafced^ a viUain, and a liar.** On 
not guilty pleaded^ a verdi£l was found for (be plaintiiT, damages 
2/. loi. And after feveral motions, that theic words were not 
afliondble, becaufe thev were general words of uncertain fignifi* 
cation, it was refolved oy the whole court— ^Pra//, Powys^ For* 
ie/cue and Redmond — that the words were a3ionable, they being 
laid to have been fpoken of the plaintiff in the execution of hs 
office^ and fo found : fo that it is the fame as if the defendant 
]iad (aid, that the plaintiff is a villain in the execution of his 
office^ a rafcal in the execution of Us office^ and a liar in the exe- 
c-ution of his office; which carry with them a great fcandal, and, 
in common underftanding, import a great imputation aj^inft the 
plaintiff's integrity and beliayiour in that office. And judgment 
was ffi ven for the plaintiff. This cafe of JJlon verfus Blagrave^ 
is alio reported in 1 Stra. 617. and 8 Mod. 270. So, in the cafe 
at bar, the words are laid to be i^oken with an intention to de« 
fame and fcandalize the plaintiff, as one of the knighti of the 
ttiite, for Surry ^ (an office of ^reat truft, as I before faid) and 
import a great imputation agamft his integrity and behaviour in 
A/it office. 

In the cafe of Sir Tliomas Qarges verfus Roue^ Mick. 30 Car, 2. 
3 Lev. 30. the plaintiff declared, that he was a prote^ant de- 
puty lieutenant of the county of MiddUfex; and one of the priyy 
council of Ireland^ and, at the time of fpeaking.the following 
words, ftood to be a member of parliament for ChrifljChurdi 
in H^//^2r€, the defendant falfly and malicioufly, andfto make 
him lofe his faid offices ; and alio his ele£lion, faid to one >f. 
and divers others of the elefiors; he is a jbafnfi;* by i^hich he 
tfame within the law» made againft papifls, and had loft hit 
(offices, and been put to great ^xpence to prove his innocence. 

N 3 And, . 



181 Easter Tesh li 6bo. m. irfit 

Aiid, vpoa nai gviity pleaded, and a Terdl£): for tool. dsftne^« 
it was moved in arrefl of judgment, that the words are not ao 
tio^iable: bat aft^r divers motions pro and con. judgment was 
given for the plaintiff by the whole court; zad Wtndkam an<i 
Lharlton Juftices, .held, that to call a common perfon a pcfnjt is 
a&ionad)Ie, in refpefl oT the penalties of the law sigainft papifts; 
aodd efpeciallyat /iLi^ hike^ after the popifh plot; for it is danger- 
ous to be calkd papift, as to their perfons, in refpeSl of aff^ults 
hy- the rabble; and wor<ls are aftionable in rerpe£l of fcandal, 
Sciieifft,i3, damage and danger, which they bring to perfom. But Iforlh 
3^3- Het. ^j LBmiBZ held, that it is not a3:ionable to call a common per« 
EHs! ily fon a papiji^ but to call o^trs pii^fis it is^ in refpeft of their 
Cro.jac. 56, dignity, and the danger of lofing their offices, of which ^o^x 
51**61 ^^' ^^ ^^*^"y c^f^ ^^ ^^^ caprf)le. And in cafes of officers of dig^ 
' ' nity, aod who aie intereitedin the adn^iniftration of gox^ernment, 
words are a£lionable which are not afiionable in the cafe of com- 
mon perfons. So in the cafe at bar« if the word^ ivadbeen fpokca 
cf a common perfon, perhaps th^ would not have been a^ion« 
9d>k ; bm beiT\g {poken'of the defendant dfS a member of parlia- 
ment, and an officer of dignity, (with groat deference to the 
court) I fubmit it, they are a&ionable. 

In the cafe of offices of frt^tj words that iin|iut(B either defeS 
of underfiand^fj^^ of Mity or integrity^ are aelionable; bat in 
offices of i:rA£^<, words that' impute want; ^»Af of a%'A()', ard not 
aftionahle, As^ of a juftrce of peace—** He a juftict oj peace? 
" he u (ttiqfs. and a be^tle-heajed jufiice!''^ are not aQionable : 
the reafon* is, oecaufe a man cannot help his want of aMiff^ as 
^ Salk. 694. he rmy hi&vf^anioihone/fyoxintegrit)^\: as in the cafealb^r, inhere 
IfQWTPriAa. the omce of member of parliament is an office of credit, and the 
party fplaisitiS} is charged with inclinations and {Hrinciples which 
Iheiw kts want of in^grr/y, and conf^qnently unfit for fo> high 
an office of truft and cremt. Surely the words in the declaratk>n^ 
^n bo£h counts, are'aftibnable. 

Serjeant ^gh, of the fame fide with the plaintiff, Ipoke* 
much to the .fame tScQ, as brother /^>ai^r; and further faid, 
that fifrdy theire is a gre^t difference between freedom of ddaie, 
9nd freedom of ^ai^ and malicio^ finder} of the iaft of wkic/h 
tkn iiiry hav>e certainly found the defendant gu^hy s that the de- 
^ncbnt ifir. H^rne^ might liav^ juAificd in pleading the word» 
he &okein public to tte pls^ntiff, if they \fere true; but he 
dgutil not; weU knowing, that the words lai^ in she decIaFation 
iitere falfe, and couM not be juftifred;' fo he hath ples^ed Ibat 
he never (jxike the words: ana now he comes to this courts and 
by. hei council (in ^SaBt) fays, thk although *^ i fpoke the 
^^ ifjKds maficioufiy of 4ie hpnourdsie |etitlemaai (tHe pl^ffiiiff) 

3 ** yet 



SawbkTebk U GficuIH. 177 >( 189 

• 

^ yet he has fuflaincd no prefent* nor is likely to fufiain- aijy / ^ 
^* future jdamage, nor has he fuffered, or 1$ Hkely to fuffer anjr ' 
** damage or injury, in his high chara£ler ot member for 
^* Surry;' th^ jury have by their verdift found the contxaryan^ ' 
400/. damages. 

Serjeant Gfynn for Mr. Home the defendant — Words of d^^ 
paragcmaU or want of ability to ferve you, are not a£Lionabte 
when fpoken of a man fn an office of credii; to make .words ac% 
tionable, there muft be an apparent lofs and damage ; they muft 
be tnch Words as may draw the cenfure and animadverHon of the 
law upon the perfon of whom they are fpoken; if the peribn be 
in office^ the words muft be fuch as may fubje& him to the I0&' 
of his office; if the perfon be of any trade or profeffion^ th^ 
words muA be fuch, as tend to his apparent lofs and damage in 
fuch his trade orprofellioo, or they will not ueadionable; mere .• • « > 
is not the leaft word or allegation in either count, that.Mn 
Ojt/low loft his (eat in parliament hy reafon of the fpeaking of 
the words ; or that Mr. Hornc foUcited ^voftes at £^j» acamft 
hiro, whereby he might be likely to. lofe any future dciftion j' 
the wprds are laid to be fpoken at a meeting of the freeholders 
oiSi^rry to confider of meafurcs to be taken In fupport of thp 
right of eleflion, and to inftj u£l their members to take meafures 
as reprefeotatives of Surry ^ in thai behalf, which was a lawful > 
meeting of the freeholders, aflembled together at E^orn^ uptm^ 
lawful and moft laudable occafion. 

Serjeant ^^A/5n for the defendant — Anafilqn of.flanderis U> 
recover damages, for words fooken of a perfon who is thereby 
injured p his reputatioji, and {or words fpoken of a perfon which 
aneA liis life, office, profeflion or traoe, or which tend to his 
lofs^ QT occafion any particular or Ipccial damage to him; th^ 
pr^Ienx aElion is brougnt for a fuppoied general damage* which 
the plaintifi' has fuflaincd by the defendant's fpeakiog thefe 
words ; for there is not the leaft pretence to fay, that the plaintiff 
has had any. fpecial damage thereby,' nor is any fpecial dapiage 
laid in the declaration ^ Thefe words are fuppofea fo be fpokeiy 
of the defendant in regard to his office, as being a member of par- 
liaiTient; but whether a feat in parliament is an office or not, muft 
he fubraitted to the court; with great deference, Ixhink it is not; 
it Is not grantable by the crowd, or any other perfon ; it is not for 
life, or during plealure; a njember is a legiflator, or a part of the 
legiflature; but 1 think, he cannot properly be fliled an qficer 
for the execution of juftice, or any other officer whatfoever. 
The cafe in n Tali, 694. Jfo^f. v, rrinn is ratter for me than 
dgainft me, 

N4 If 



184 EastbrTerm 11 Geo. lit. 1771- 

If a nan fays of a juftice of peace and judge of the court of 
Marckts of JvaUs^ Hi is a Uood-ftuker^ andkeks after Hooi^ if a 
nan wxUgvot him a coupU of capons^ or half a /core rf xvcathtrs^ 
he vnll take themtyex, no afiion lies, for the words can have no ill 
fenfc. Mic. 37 © q8 Biz. B. R, between Sir Ckri. HiSiard 
' udged. 1 Roll. Air. ^6. ffl> 2^. Afo(7r 418. 

for the'dffsiendant. 



and ConftaUc^ adjudged, i RoB. Air. 56. pl^ 20. Moot ^.^. 
pL 574. S. C, adjudged. Cro. EHz. 306. S. C. adjudged.^ Cro. 
Elxz. 433 .Judgment in S. C* by the major part oi all the judges 



So alfo, if a man fays of a juftice of peace. Thou art a Uood^ 
Jucker\ and art not worthy to live in a common wealthy the child 
not bam vnll curfe thee ; no aftion lies fof thefe words, Mich. 38 
(3 39 Eliz. Pinchbank v. Warwick. 

S«e % Veae. Jhe cafe of PaJmtr v. SAx James Edwatd's^ Sir Geo. Cooke's 

6il!^^lV. R^P^^ *6o. was an afiion for words fpoken of a juftice of 

6A.Cro.jM. peace, viz. 1. You robbed the poor ^ and are worfe than a high^ 

^S. SMod. wayman. 2 Sett. You villain^ you robbed the poor ^ and are worjk 

•^^ than a highwayman, jjd Sett. You villain^ you robbed the poor. 

4th Sett. You are worji than a highwayman. A general verdid 

was given for the plamtiff, and j/. damages. And upon motion 

in arreft of judgment, the court held the %vords, You viBmn^ 

' you robbed the poor^ not adionable; and they faid the words, Yoh 

are ptoffe than a highwayman^ are very uncertain, for a napift "will 

fay fo of any proteftant ; and the judgment was arrefted. See the 

cafe at length, for it fccpis well reported by that very able chief 

prothonot^ry of the C. B« 

If a feat in parliament is an office, it is an office of cre£i^ 
^nd not of prtfit^ fo he can fuffer no damage by lofing fuch 
office t but luppofing it was an office oi profit^ (hall Mr. unficw 
be liable to loie it, becaufe Mr. Home is of opinion, that if he 
ihould prpmifp, he would not keep his word ? Certainly nor. 
This is the firft a&ion of the kind, for I cannot find one caf^ 
in the books for words fpoken of'a perfon, merely as a member 
of parliament; as if fuch aQion would- lie, furely we Ihould 
find many fuch cafes, for there are noperfons in the common* 
wealth, upon whofc condu£l mankind io freely fpcak their opi- 
nions, as of members of parliament: and as this' is the firft, i 
hope it will be the laft caie of the kind, and that freeholders 
fhall have free liberty of fpeaking their thoughts and opinions, 
with refpc£l to the condu£l of their reprefentatives in parliament, 
vpoQ which every thing that is dear and valuable to the fubje{^ 
depends, and that this court will arreft the judgment, if either 
pf the cpunts be not aClion^blCt 



Easter Tbsm 11 Gxo. IIL 177U 185 

This cafe was ordered to ftand over until Hilary term laH, on 
the firftday whereof Lord Chief Juftice Wilmot fat, but refigned 
his patent that day ; and Lord Chief Juftice Dt Grey being that 
day appointed to fucceed him, the cafe was fpoken to again by 
the fame ferjeants, who repeated their arguments to the like efie& 
as above, when the cafe was ordered to itand over till this term, 
forthe opinion of the court. 

Lord Chief ]n9dceDtGr€y-^\i is moved that judgment in this Jodgfnciitcr 
cafe ought to be arrefied upon two grounds, ift, That no caufe ^ <^"^ 
of a6lion for ^ords appears upon this record, in ei^er of /the 
counts. 2dly, That tbe words in the laft count are clearly not 
af^ionable, and that intire dances being given upon both the 
counts Jointly, the court cannot pronounce judgment for the 
plaimiflf, upoft this record. 

As we are all of opinion, that the words In the laft count are 
not afiionable, it is not neceflary for us now to determine, whether 
the words in the other count are, or are not afiionable, fo that 
the judgment muft be arretted ; for we cannot feparate or divide 
the mtire damages of 400/. (which the jury have eiven upon both 
the cdunu jointly) and fay how much thereof they intended to 
give upon each count. 

A declaration may confift of as many counts as a cafe requires* 
and the jury may affefs intiTe or diJHnS damages on al 1 the counts ; 
in this cafe they have found intire damages on both counts; if 
the damages' had been diftinS^ we might have given judgment 
upon either of the counts (fuppofing that count to be aaionable) 
pier9j&^* b. 5 Rep. 108. l nolL Abr. F.pl. 8, 3. And words 
infumcicnt may be rejefied, where they are laid to be fpoken at 
one time with other words that are afiionable, and jud^ent may 
be given on the words which are aAiooable; for the mfufficient 
words, coupled with the a&ionable words, are only aggravation; 
but if at one time the defendant call the plaintiff /rax/^r, and at 
uiother time he call him arrani knave and cozener^ and the plain- 
tiff brings his a£Uon upon the cafe, and alledgetb the faid feveral 
words to be fpoken at feveral times, as feveral caufes of afiion $ 
there, if not upon guilty pleaded, the jurors afiefs damages 
ktirdy^ judgment (hall be arnficd for the whole ; for he^rounded 
his attion upon two feveral fcandals, where one of them is 
Qota&ionable. loiZf/. igi.a. This is, 9ndoubtedly, good law, 

Thefe are the words in the bft count, viu *< As to in/iruSing 
'* our numbers to obtain redrefs^ lam totally agaitfU thai plans 
^ fvrasto infiruSin^ Mr* Onflow, toe mighi as toil infirud tie 

*« taiudsf 



I8tf Easter Tbbm II Geo. HL I77li 

** winds: and Jhould he evenpramifc hu t^jifiance^ I Jhtmid not 
** expeci him to give it us.** This is a civil fuit for a reparatiofl 
or fatisfa^ion in damages for a fuppofed private injury; but if 
.every imputation like this^ fpoken upon fo public and popular an 
occafion, was to be deemed a£lionable» public bufiocls would be 
MDpra£licafole. 

As far as I can col]e£l for determinations in a£lions for words, 
there feems to be two general rules whereby courts of juitice 
have governed themfe'lves, in order to determine words ipoken 
of another to be adiontble* 

The (irft rule is, That the wordb mufi contain an exprefs im* 
putation of fome crim« liable to punifliment, fome capital of- 
lence« or other infamous crime or mifdemeanor; and the charge 
upon the perfon fpoken of, muft be precife. In the cafe of 
lurnet v. Ogden. i^ali. 696. the words arOk " Tk^u art one of 
^ thofethatJioU my lord ShaftiburyV deer;* held not a£kionable} 
for though imprifonment be the puniflunent in thofe cafes» yet 
per Holt Chief Juitice, it is not a fcandalous puntihrnent; a man 
may be fined and imprifoned in tre%)afs, k>r (fays he) there 
muft not only beimprifonment, but an infamous punifliment. I 
think Holt there carries it too far, as to precifion ; for it is laiA 
down in Finches Law 185, if a man malicioufly utters any falfe 
flander, to the indangerinff one in law, as to f^. He' hath 
" reported that money ts /aBen:/or he fiioU be puni/ked for Jkck 
^ report.'* Here is the cafe oTa crime and the paniihmeiil pel 
infamous ; and yet finck feems to &y* an aSion lies for thefe 
words. 

The fccond j^^eral rule is, That words aiv afiltonable.wheii 
Ipoken of one m an office of profit, which may probably occa* 
tton the lofs of his eftce, or when fpoken of pecfons touchisg 
dieir refpe6liv*e profeffions, trades and btifinelS| and 4q or may 
probably tend to their damage, 

It was objeded at the bar, on the fide of the defendant, thai 
, words fpoken of an officer or magiftrace are not aiEtionable, isnicit 
they carry an imputation of a criminal breach of duty ; I will not 
give this my fan£Ht>n; becaufe I thiiA, for imputation of ^^- 
raftce to one in a profeflion, or an office of prom« ao action will 
certain)^ lie, though fier HUh ^ Sa(k^ 694. for inrntttalion of 
ignorance to a juftice of peace, being only an office of credit, an 
afHon will not lie : Holt carried it no fartber, iJaiib iguoratUi as 
^ajufcceof peace, 

ThW 



Bastea Tbbk 1 1 Qmo. HL 177 1« 187 

There are a great variety of cafes in the books very coAtra^ 
didory, touchiqg wor<is fpoken of jufiices of peace, and other 
perfons in offices of credit, and therefore 1 fiiall not give any 
opinion concerning words fpoken of fueb perfons, norconcera** 
iiig calling a nan a papift. 

Thefe are the two general rules, which I have mentioned, 
and which have generally governed cafes for fcandalou^ worxh« 
There mull be fome certain or probable temporal lofs, or da« 
mage,, to make the words a3ionable; as, to £iy, a woman if 
a wkari in London^ where (he is fubjefi to be whipt for uJiore* 
dom: or to impute to a woman want of chaftity, who holds ad 
tfUie^dumJoia & cafia Juerii^ i Lev. 134, * But to impute to 
any man, the mere defefl or want of moral virtue, moral du« 
ties or obligations, which render a man obnoxious to mankind, 
is not a£lioDabIe. 

To apply what has been laid to the laft count in the decTa« 
ration, which we hold not to be a£lionable, (here doth not ap- 
pear to the conrt the leaft prefent damage, or probability of dia- 
nage likely to happen to the plaintiff, by fpeaking the \^ords 
in the laft couni, " as U inftruSing our numbers to ^kdn redrefs^ 
*' lam Maify againfi that flan/' the de£endant dothnot point 
ont any mode of mftru&ion for redrefs, or what kind of re- 
drefs be wUhes or defires; whether he defires an* appKcatioa 
to the King, the parliament, or to a court of jufttce for 
redreft, doth not appear: whether it was intended to bo 
endeavoured to be obtained by vote, petition, motion, or bill in 
parliament, doth not appear; fo we think thefe wordr injurr 
no body} the next words, other part of the laft count are^ 
** For as to infimSing Mr» Onflow, we might as well infirufl ikt 
" winds :^ the defendant was of opinion, that the plaintiff was 
waverinj^ as the winds, whereby he meant, that inftru£lions to 
him Would be ineffefiual, or that he would have no goad will 
to ferve the caufe of that public meeting of the freeholders of 
Surry: this is mere opinion, not imputing any thing to Mr. 
Siijowj whereby he fufiains any prefent damage, nor can wt fee 
any probability of his fuffering any future damage thereby; the 
remaining part of the words in the laft count are, ** AndJhoM. 
** he (meaning Mr» Qnjiow) even promfe his ajjiftance, 1 Jkouli 
*\not expe^ him to give it us** Mr. Home's declaring his opi- 
nion of Mr. (7)n^ff;'s proraifes, cannot be any pofiible damage 
to Mr. Onflow; to be lure, the words cannot be underftood to 
be fpoken in honour of Mf • Onflow: but I will fuppofe them to 
be fpokenmoft M^z^^'^i^, yet. we are alt of opinion, they are^ 
not aQionable, let the malice of the defmdant have been ever 
to great on that occafion. In the cafe of a malicious pro/tcution. 

.let 



1 as Easter Tebm 1 1 Geo. IIL 1 771 • 

let ihe^nahce^ on that occafion, be ever fo great, yet if there was 
a reiffonable ViAprobabU caufe for tht prq^cution, noafiion lies. 
The arreftinf the judgment, in this cafe, doth not contradifi the 
jury; they thought this 9l popular^ ungauleman like refUBion upon 
the plaintiff; but every popular reju&on upon a gentleman, is 
not fuch a fcandal, for which the law will give him an a&too. 
The words do not relate to Mr. Onfloitys paft condud in par- 
liament; they do not charge him with breach of his duty, his 
oktb, or any crime or mifdemeanor, whereby he has fufieredany 
temporal lofs, in fortune, office, or in any way whatfoever* 
There is no occafion to fay any thing concerning any future pre- 
fumptivc contingent damages, which Mr. Onflow may pombly 
fuftain, at fome future time (no body knows when) oy reafon 
of Mr. Horne*% rcfle£lion upon him : I know of no caie where 
^ver an a£lion for words was grounded upon eventual damages, 
which may poQibly happen to a n^an in a future fttuatioo, not- 
withilanding what the Chief Juftice throws, out in a yknt. 966. 
where he is made to fay, ** That where a man had been in an 
" office of truft, to fay that he behaved himfelf corruptly in it, 
*' as it imported great fcaodal, fo it might prevent- his coming 
*' into that^ or the like office a^in, and tnerefore was aftion- 
*' able.*' I think the Chief Juflice went too far. And I think 
my Brother Ltigh at the bar, went a little too far, when he 
iaid, that the words in the lad count imported, that Mr. Oitflaw 
would betray his truft; would, as member for Surry ^ betray his 
conftituents; we think they mean no more, than that Mr. 
Home was of opinion Mr. OrJlow would break his word: but to 
£iy, ^^ he has broke his word;* is not a£lionabIe, a fortiori^ the 
words in this count are not a£lionabl.e : therefore, whether the 
words in xhe former count be actionable or not, the judgment 
muA be arrefted; and fo it was, per totam curiam. 



sBiaclcRep. The cafe of Brafs Crolby, Efq. Lord Mayor of I^on* 
754.S.C. don. C.B. 



frhi 
of c 



>: Coort 'T^HE lieutenant of the tower of London was commanded 
La' **" ^o have before the juftices of the bench here, th^ body 

difchaTge^ ^^ ^^^fi Crojhy^ Efq. lord-mayor of London^ by him detained in 
prifoner,coii]« the King's prifon, m the tower of London^ by whatfoever name 
ttittedby he was called, together with the day, and caufe of his caption 
rtfeS^toof *"^ detention, on Monday next, after three weeks from £^^- 
the Houfc of-^^/ that the iaid juftices feeing tlie caufe, mieht do that which 
commont, for of right, and according to the law and cuftom of England^ 
pri^^weof ough^ ^o be <lon«J andftirther, to do »id receive what the iame 
that Hottfe, juftices here ihould then confider in that behalf. And now here, 

•xprcMiA AtWamot] 



Easter Teem 11 Geo. III. I771. I89 

at this day, (to wit) Monday * next^ after thl-ee weeks from Eafier^ The entry of 
day^ in this term cometh the fai<} Brafs Cro/by^ in his proper perfon, J^l^^^' 
under the cuftody of Charles Raxn^onC £fq. deputy-lieutenant ibm'thereof; 
of the tower of London^ brought to the bar here ; iind the faid >«) the k- 
deputy-lieutenant then here retumeth, that before the «^<>roing "f^"^*** 
of the faid writ, (to wit) on the 27th day of March laft, the 9^^^%%^ 
bid Brafs Crq/by was committed to the tower of London^ by i77>* 
virtue of a certain warrant under the hand of Sir FUtcher Nor^ 
t<m^ Knt. fpeaker of the houfe of commons, which follows in 
thefe words : " Whereas the Houfe of Commons have this day ad^ 
*^ judged^ that Brafs Crofty Efq. lord mayor 5/* London, a member 
" of this houfe^ haxnng figned a warrarU for the commiiment of the 
** i»^^<r of the houje^for having executed the warrant of the 
^^Jpcaker^ jjfued under the order of the houfe^ and held the /aid. 
" tneffenger to bail^ is guilty of a oreack of privilege (f the houfe; 
•• and whereas the fmd houje hath this day ordered^ that the faid 
•* Brafs Crofby Efa* lord-mayor of London, and a member oftki.i . 
" houfe^ be for his faid offence cdmrmtted to the Tower of London : 
** ihyi are therefore to require you to receive into your cvftody the 
" body ofthtfaid Brafs Crofby Efa, and him fafchheep duru^ the 
" pUafure of^ the faid houfe^ for which this ffim he your fu^cierU 
" warrant. Given under my hand^ '. the twenty fifth day of March, • 
** one thoufand feven hundred and feveniy-one.' And that this 
was the caufe of the caption and detention of the faid Brajs 
Crofh in the prifon aforefaid ; the body of which faid Brafs 
Cro/py he hath here ready, as by the faid writ he was command- 
ed, (Sc. Whereupon, the premifes being feen, and fully exa- 
mined and underfiood by the juftices here, it feemeth to the 
faid juilices here, that the aforefaid caufe of commitment of the' 
laid Brafs Crofby Efq. to the King's prifon of the Towef of 
London aforeiaid, in the return above ipecified, is good and fuf- 
ficicnt in law to deum the faid Brafs Crofby Efq, in the prifon 
aforefaid ; therefore the faid Brafs Crofby Efq. b by the court 
here remanded to the Tower of /!<^n^0ii, &c» 

Serjeznts Glynn znd Jfphjon argued, 'that it appeared by the Thearsv- 
return of this habeas corpus^ that the caufe of commitment of tnttthrxht 
the lord-mayor to the Tower of London was infufficient in law ^^^^, 
for the detention of him there; and therefore this court ought ^^\ ^' 
to difcharge him out of the cuftody of the lieutenant of the 
Tower of London. • 

Here follows the fubftance of Serjeant GlynrCi argument, afte' 
the writ and return were filed. 

Serjeant Glynn — ^The queftion now before the court, is, 
wheiLer it does not appear by the return of this writ, that the 

lord. 



lord-xnayor ought to bedifcharged? «n4 is H vmy iiiip<Mrt|ot tai 
conftitQUooal queftion iadeedi 

The return fiateft, ih^t the imprifWinent of bis lord(hip is by 
virtue of a certain warrant under the ha^d of Sir Fletcher NarM 
Knt« fpeaker.of the Hpufe of Commons, reciting^ that whereai 
the houfe had adjudged^ that his lordihip haying Ggned a war« 
rant for the commitment, of a meflenger oi the houfe» for having 
executed the warrant oi the fpeakeo iOued under tJne order <» 
. the lioufe, and held that meifenger to bail, is guilty of a breack 
of privilege of the bouCe; and alfo reciting) that the houfe l»d 
ordered, t!iat his lordfhip^ a member of the houfe, fiioald Cor 
his faid oGTence be committed. So that it appears what ikai 
breach of privilege is. 

When any perfon is brought to this bar by the King's .writ of 
habeas corpus ^ the judges mud look into, fee and confiderthe 
caufe of his <ietention, and are bound to do M<z/ which of right, 
and according to the law and cu^om of EngUndt ought to bf 
done* 

AQs done by the higheft authority are fubjea to the inquiry 
of the courts in U^ejlnunjler-Hall : whofe jurifdi3ion extends not 
only to inquire into, control and correal the a&s of inlierior} bat 
alfo of co-ordinate and fuperior powers. 

A breach of privilege of the Houfe of Commons is Sated, 
and alfo in what manner, and by what fa£l their privilege was 
broken ; therefore this court muft determine, whether the fa& 
charged is by law a qpntempt or breath of privilege. When k 
is returned, that a perfon was committed by any other court ia 
this Hall, for a contempt generally, without fpecifying the faS 
or nature of the contempt, this court cannot inquire into the 
matter, but muft remand the prifoner. Every court of juftice 
of record in the Hall, muft neccffarily have abfolule power 
to enforce obedience to their own orders, or, juftice could not 
pofTibly be adminiftered to the King's fubjefts. The Houfe of 
Commons is not a court of juftice of record, for k caanot 
adminifter an oath ; it has a certain limited JuriCdiSion ; and this 
court muft judge, whether it has n<»t tranlgreffed, andgotie be- 
yond the bounds of it's jurifdiSion, and mult pronouQce upon it. 
If the King doth exercife any power which is not conformable 
to law, this court will remedy it 5 the aid writ de bondne refU- 

fiando did not comprehend the mandates of the Ring; but the 
abeas corpus extends to them, and to all aSs of power not con- 
formable to law. If the court of Chancery, which is a fopcriof 
court '}Xk civil cai^fes, fliould exceed it's jurifdiftion, and interfere 

by 



Easter TxRM il Gbo. III. 177 i« 191 

by injandion in crimina] cafes^ the inferior court would deter* 
mine againft the Court of Chancery, and would difchar^e any one 
from imprifonment whom that court fhould commit for dif- 
obedience to fuch injun£lion. 

This court muft inquire, whether the tioufe of Commons has 
not exceeded it's lawful jurifdifiion. The lord-mayor- is 
charged with a contempt : the queflion is, whether he is guilty 
of a contempt ? that is to fay, whether the fa£l charged upon 
him, amounts by law to a contempt ? The Houfe of Commons 
makes an order tor committing a printer, and that order exprefles 
who fliall take him into cufiody, namely, the Serjeant, or deputy 
ferjeant at arms of the houfe: the printer is taken into cuftody 
by a meflenger, within the City of Loudon : he complains ta 
the lord-mayor; who examines into his complaint, proceeds 
judicially and according to law ; and after fuch examination^ 
according to the beft 01 his judgment, is of opinion^ that xhe 
warrant of Sir Fleicker Norton does not juilify the ukin^ ihtf 
printer into cuftody by a meflenger of the houfe, in the city of 
London^ . How does ttiis interfere with the lawful jurifdi^lion of 
the Houfe of Commons ? And how does it exceed the bwful 
jurifdi£lion of the lord-mayor, within the city of London? 
The JurifdiAion of the houfe muft be limited to iome particular 
objeus: the claim of an unlimited power in thU country is 
abfurd, and deilroys itfelf. In the great quefiion, in AJkby and 
Wkite^ about the Ayk&ury men, we find, that in a conference 
between the lords and commons, it was agreed, that the com^* ' 
foons cannot, by any vote or relblution of their own, aflume or # 

acquire any new jurifdi^on or priyilqpe. Here is a. warrant 
under the hand of Sir Fletcher Norton^ fpeaker, Sir Fletcher 
Norton lias no perfonai authority to commit whom h^ pleafes*- 
The fpe^ker, as^ iuch, has no official authority; whatever au- 
thority he can have, muft be merely as the inftrument oi the 
Houfe of Commons : hi& a£l can be valid only by the order of 
the lioufe ; but that the wan^nt is made contrary to the order of 
the houfe, aq>pears to this court by the retwm of the habeas cor fuss 
eonfequentir, the fpeaker having no authority of his own, and 
Ae warrant being contrary to the ocder, the £ime is invalid. The 
neSenjger executed the warrant in the city; the fpeaker hadna 
tetbority to impower him to execute it in the city of LoMdoM* 
The Houfe of Commons have not an unlimited iiurtfdiAion ; tht 
k>rd*mayor was therefore obliged to examine, whether the aft of 
Ppwer exerted by them within the city, was within their jurif^ 
diOion. The printer had been charged with printing ibe 
%eeches of fome members of the lioufe, tor Which he was oroeseA 
to be taken into cuftody; the lord-^mayor thoeght the Houfe of 
Commons bad no right to onder the prmter to be tak^n isst^ 

cuftody 



ig2 Easter Tbbm 1 1 Gxo. III. 177 1- 

cuSody by their mefTenger in the' city of London^ and that thc^ 
printer ought not to be committed for the aft with which he wj« 
charged. There is nothing to be pretended in favour of this 
proceeding of the Houfe of Commons, but their aiTumed tran- 
fcendent power : now it would totally deftroy all the benefit, 
and the very end of the habeas corpus^ if the tranfcendencv of 
any power whatever could blind the eyes of a court of juttice, 
and prevent their inquiry into it's ads ; fuch a decifion by judges 
fworn to adminifter faithfully the laws, would be faul to every 
thing that is worth preferving in our boaftcd conftitution, and 
Would leave the unhappy fubje3s of this country in a ftate much 
worfe than a ftate ot favage nature. The great Chief JuAice 
HoU was dearly of opinion, and held it for good law, that if it 
appeared upon the face of the return of a habeas corpus^ that 
what the Houfe of Commons called a contempt, was not by lav 
a contempt, the perfon committed for it mud be difcharged; 
that the privileges of the Houfe of Commons are part of the 
law of the land, and therefore the courts here muft uke notice 
of them incidentally ; and though this was the opinion of a 
fingle judge againft three others, yet it was agreed to and fup^* 
ported by the Houfe of Lords, who, in thofe £iys, remembered 
ft La. Raym. that they were the hereditary guardians of the people. Again-* 
95^ HoU held, that the order of the Houfe of Commons forbidding 

any one to feek or purfue a legal remedy againft their orders, was 
illegal andnauffht ; and boldly faid fo: and accordingly he was of 
opinion, that the perfons committed for contempt ot that order 
:% URsyn* ought to have been difcharged; though the three other judges 
^in« were of a contrary opinion ; and the perfons were remanded to 

Newgate. Upon petition to the Queen, a writ of error was 
allowed, and Drought; and before it was argued, thie parliament, 
for good reafons, was diflblved : but I will venture to (ay, if it had 
been argued, there would have been judgment given by the Houfe 
of Lords according to HoW^ opinion. If the lex et confududopar^ 
hamenti^ of which we hear fo much and knowXo little, be indeed 
a part of the law of the land, the judges are bound to take notice 
ot it, and to decide upon it, as they do upon every other part of 
tlie law. It has been faid, that Lord Chief Jui^ice Holi was 
fingle. id his opinion ; neverthelefs, I may venture to fay, that 
his opinion, in the judgment of every honeft and unprejudiced 
mind, will not be found light in the fcale, againft that of the 
three other judges. He was fmgle: but he had truth and in- 
tegrity with him, as well as the ftrongeft arguments on his fide, 
• which' the conference with the lords demonftrated ; arguments 
ivhich have never yet been, and which cannot now be anfwered. 
The other three judges differing in opinion from him, there was 
a writ of error (as I faid before) granted, returnable in parlia- 
ment } and if the temper of the times would have permitted it 

to 



Easter Term li Geo. III. l?71i 19^5 

to have been proceeded in, and the parliament had not been 
then diffolved, it may eafily be collefted, from the arguments 
above referred to, that it would have had from the lords a moft 
folemn and juft deciGon. 

Lord Chief Juftice De Grey — Brother Glyrtn! that writ of 
error you mentipn, was neverbrought before the lordsi 

Serjeant G/^nn — It \t true, my lord! it was never brought 
direftly in quellion before them; becaufe doubts were ftarted, 
whether it w^as a writ of right, or of favour, which mi^ht be 
refufed by the particular officer. This occafioned a petition to 
the Queen, who in anfwer to the petition faid, (he was come to 
a rcfolution to grant a writ of error, becaufe fhe was defirous 
to have the matter of law fettled for the good of her fubjefts ; 
but unhappily for us, the particular circumftances of thofe times 
prevented it ^ and the parliament was diflblved. 

Lord Chief Juftice Dc Grey — In all cafes, except trcafon and 
felony, I think a writ of error is grantable of right ; the two 
houfcs addreffed the Queen for different purpofes, the lords faid, 
it was time enough to dedide upon the writ of error, when ii 
came before them. 

Serjeant Glynn — My lord! it is for that reafon I faid, I coU 
left it from other arguments, which make it very reafonable to 
fuppofe, that the fubjeft would have had fatisfafiion and redrefs 
from the decifion of the Houfe of Lords* 

The queflion at prefent is, Whether this court has not powef 
to examine into the jurifdifiion of the Houfe of Commons ? I 
fubmit it, with deference to the court, that you have lawful 
power to inquire, whether the Houfe of Commons had any jurif- 
di^lion in this cafe, and that their privileges are not to be fup*. 
pofed fo tranfcendent and myfticai, as to exclude all inquiry. 
My lord! I deny that the mayor's aft is a breach of privilege of 
the Houfe of Commons, the lord-mayor was in full poffeflion of 
jurifdiftion in the cafe; he was obliged to decide upon the quef- 
tion before him; he was obliged to form an opinion upon a 
cafe within his jurifdiftion: {hall his opinion be adjudged a 
contempt ? Is this the law of the land; that when different courts, 
having jurifdiftion of the fame nature, differ in their decifions, 
they are guilty of contempts one againft the other, and may be 
puniflied for fuch contempts? It is no contempt in me, a pri- 
vate man, to have an opinion different from the greateft autho- 
rities in this kingdom; it was the lord-mayor's opinion upon 
the cafe before him, he was bound by his oath to aft purfuant , 
to that opinion, it was his boundcn duty to aft accordingly : he 

Vol. in. O ' would 



1^4 Easter Tbbm 11 Geo. IIL 1771. 

would have been perjured, if, out of refpeQ forany perfons, he 
had not obeyed the call of his confcience. It was no crime for 
l^im to entertain the opinion; entertaining it, he was bound to 
declare it, and it was his duty to aEt in confequence of it. The 
confcientioHs a£l of a magiftrate, witliin the limits of his jurif- 
diflion, can never be a contempt, or punifliable; unlefs a magif- 
trate a3s wrong from corrupt motives, he cannot be punifiied. 
But fuppofe for a moment, the lord-mayor did not a6l from his 
opinion, but from fome corrupt motive, it is not the Houfe of 
Commons, but a jury, that muft judge of it. The duty of a 
magiftrate differs widely from that of an officer; from the latter, 
a full and ready obedience is required to be paid to the orders 
of the court, whofe officer and minifter he is, and fuch orders. 
rightly purfued and executed by him, are his fufficient jufti* 
fication; but the magiftrate is bound by his oath, and has an 
opinion and judgment of his own which he muft follow ; and 
he is anfwerable to the law, and cannot bejuftified for the breach 
of his oath and the law, by any order or refolution of the greatefl 
authority. 

Your lordfliips are now called upon to fay, whether the lord- 
mayor of London^ in a cafe where he had indifputable jurifdic. 
tion, a3ing by his ppinion, and according to his oath, is guilty 
of a contempt of the Houfe of Commons, and can by law be 
imprifoned. 

Serjeant J^phfon — My lords ! as I fliall not have an oppior* 
tunity of anfwering any argument from the bench, nor can pof- 
fibly know the obje£);ions your lordfliips Imay have, to difcharging 
the lord-mayor out of cuftpdy, 1 {hall endeavour to anticipate 
and anfwer fuch obje£lions againft drfcharging him, as occur to 
me, and may poflibly be made by the court. 

The queftion is, whether fufficient caufe appears to the court 
upon the return of this writ, to imprifon the lord-mayor? if 
no legal caufe appears for detaining him in cuftody, he muft be 
difcharged. 

I fliall confider the nature, the return, and the confequence of 
the writ of habeas corpus. It is a prerogative writ of right, to 
inquire into the caufe of the imprifonment of any of the ICing's 
fubje£ls ; if a legal caufe of detention doth not appear upon the 
return of the writ, the fubjeft muft be difcjiarged, and fet at 
liberty: therefore, if a legal caufe does not appear upon the re« 
turn of this writ, the lord-mayor muft be difcjiarged out of cut 
tody; this pofition cannot be denied. 

It 



EastkbTerm 11 Giio. lit, 1771. 195 

It appears from the cafes of Sir William Tliickn^e^ 4 Inft, 4^4. 
Sir William Ckanc^y 12 Rep. 83. and from BuJheTs caft^ Vaugn, 
135, &c. that the caufe ot iraprifonment ought to be as fpcci- 
fically returned to thofe who judge upon the writ of habeas 
corpus^ as it did to thofe who firft committed the party. Again* 
BnhcWs cafe^ 1 Salk. 348. where the commitment is not to the 
legal and immediate officer, it is naught. Again, Searches cafe^ 
1 Lton, 70. where the Queen had taken a perfon into her pro* 
tedion, who, notwithftanding, was arrefted, and the perfon ar* 
refting committed, and on 2^ habeas corpus was difcharged. See 
again Do3or Alponfo's caje^ 2 Bulft. 1259. where the return was 
bad, no caufe being therein (hewed; alfo, Thomas Barkham's cafe^ 
Cto.Cat. 507. the like tafc^ ibid, 579. 1 Rd. Rep. 192, 218. 
Apfley*s cafe, and RufzveWs cafe^ ibid. 245. Codde's cafe. The^e* 
termination in all the cafes the fame; if the legal charge is not 
returned, the perfon muft be difcharged: the court muft judge 
of the caufe of commitment returned; if not, why fliould the 
writ command the return of the caufe? the caufe is returned, 
that the court may judge, whether the perfon is intitled to his 
liberty, or not. It is no objeQion in this cafe, to fay, that the 
Houie of Commons having a power to commit, therefor^ this 
court muft not judge of the cauie of commitment returned ; for 
this would prove too much; bccaufe it would go to ^\txy other 
court having juTifdi3ion to commit. Suppofe the court of King's 
Bench, which is equal, and perhaps fuperior in fome refpe£l to 
this court, (hould commit a perfon ; and the perfon committed 
fhould be brought here bjr haheas corpus; this court would cer* 
tainly take notice, and inquire^ into the caufe returned ; and if 
tliis court thought it not a fufficient caufe, would difcfaarge the 
perfon; otherwife how would the end of bringing the writ of 
habeas corpus be anfwered ? 

It is no objection in this' cafe, to fay, that the court cannot 
examine the caufe as ftated In the return, becaufe the court would 
then determine upon the privileges of tlie Houfe of Commons : 
the court muft, and doth frequently determine upon the pri- 
vileges of parliament, when they come incidentally before them. 
Seethe Earl ol Banbury's cafe^ 2 Ld. Raym. 1247. Salk. 512. 2 
Stra. 987. 8- This court made no fort of hefitation to determine 
in Wilkes'% czity upon the privilege of parliament. 2 Wilfon i«i. 
Why then ftiould they not now enter into this queftk>n, touching 
the privilege of parliament ? In Lor4 Shafujbury'% and Mr. Afar- 
rays cafes^ the returns were general, for contempts of the houfe, 
Mnthouc fiatinff the particular fa6ls; but the {ads of the fuppofed 
contempt in this cafe appear, which we contend cannot by any 

o 8 legal 



1 96 Easter Term 1 1 Gbo. III. 1771. 

kgal conftruftion amount to a contempt, and therefore that the 
lord-mayor muft be difchargcd. Tlie Houfe of Commons having 
determined it to be a contempt does not alter the cafe : a faS 
does not become a contempt by being recited to be fuch. The 
court nmft confider, whether the warrant for my lord-mayors 
commitment is the warrant of the fpeaker as fpeaker of the 
Houfe of Commons, as Sir Fletcher rforton may ad in a douHe 
capacity; (whereupon a loud laugh.) 

Lord Chief Juftice De Grey — %\x Fletcher Norton CgnshimfcU 
fieaker. 

Strjtzni Jephfon — His figning himfelfjj^^fliftfr will not help tha 
warrant, if the caufe is not fumcient ; and the court may rather 
fuppofe, the miftake committed by Sir Fletcher Norton^ in h!> 
private capacity, than by the Houfe of Commons. Suppofr 
fome future fpeaker, of fome future Houfe of Commons, fhould 
recite in his warrant, that the Houfe of Commons had adjudged 
it a breach of privilege, and contempt, to fuc out a ftatute cf 
bankrupt againft one of their members, which by aft oi parlia- 
ment any one is permitted to do ; and ftiottld, in confequcnce, 
commit a perfon for fuch legal aft ; if the perfon was brought 
by writ ot habeas corpus beiore this court, would not the court 
take cognizance of the commitment ? Would they not determine 
it no breach of privilege? Are a£h of parliament of lefs force 
than fuch a recital in a fpeaker's warrant? Suppofe a perfon is 
committed by a finiilar warrant, for proceeding according to aft 
of parliament againft a member of the houfe in an aftion of debt; 
Ihall he have no remedy from the law, which led him into the 
fuppofed tranfgreffion ? Suppofe a juftice of peace ihou Id com- 
mit a member of the Houle of Commons, for treafon, felonM 
or breach of the peace, and the fpeaker*s warrant Qiould recite 
it to be a contempt, will this court fay, they can take no cog- 
nizance of fuch a commitment by the Houfe of Commons'^ 
Suppofe all the officers of this court (hould be recited in the 
fpeaker 's warrant, to be in contempt, for executing the procef* 
of this court, will this court give no remedy ? and maft this and 
every other court of juftice be annihilated, whenever the fpeakcr's 
warrant declares all it's officers in contempt? .How is it pof- 
lible to diftinguifh the prefent cafe from thofe I have men- 
tioned, if you muft not exa?niiie the caufe returned, but fay it is 
fufficient, if a contempt is charged? Serjeant /foa.'i/flj, in his 
2 vol, 110. gives us clearly enough his thoughts upon this fub- 
jeft; he fays there, (among other things) that if a fubject 
fhould be committed by either of the Uoufes of parliament, it 
chnnot be imagined thai the law^ which favours nothing more 

than 



Easter Term 11 Geo. HI. 177 1. 197 

than the liberty of the fubje3, fliould give us a remedy againft 
commitments by the King hlmfelF, appearing to be illegal, and. 
g ve us no manner of redrefs againft a commitment by our fel- 
low-fubjeds, equally appearing to be unwarranted. 

I think I have now fufficiently cleared this cafe from all the 
objedions that can be brought againft it's being inquired into. 
The queftion therefore is, Whether on the return there appears 
fuflicient caufe of detention? Three caufcs are mentioned, and 
all urged as breaches of privilege, i. For difcharging a printer; 
2. For having figned a warrant for the commitment of the mef* 
fenger; and 3. For holding him to bail- 
To make the lord-mayor guilty of the firft fuppofed contempt, 
it ouj^ht furely to appear to the court, that milUr the printer 
was m the legal cuftody of the meffcnger: now, MilUr never 
was in the legal cuftody of the meflenger; for the warrant to take 
up MilUr was direSed to the ferjeant at arms of the Houfe of 
Commons, or his deputy, and not to the meflenger, fo that 
Miller was in the illegal cuftody of the meflenger, tnerefore the 
lord- mayor did right. — MilUr was ordered into the cuftody of 
the ferjeant at arms, or his deputy, but the contrary appears upon 
the return, in tlie recital of the order; for Mo/ intimates, that 
he was taken into cuftody by the meflenger, by virtue of the 
^\•arrant of the fpeaker of the houfe, ilFued under the order of 
the houfe. MitUr was taken into cuftody by the meflenger in 
the city of London^ neither the ferjeant at arms or his deputy 
being prcfent; the meflenger, I fay, was guilty of falfe impri. 
fonment, having no warrant dire£led to himfelf, nor afling in 
aid and-afllftance of the ferjeant at arms, or his deputy, to whom 
the warrant to take up Miller was direfled, for neither of them 
were prefent; fo that if an aflion of falfe imprifonment was to 
be brought againft the meflenger, he could not juftify what he 
las done; and if he cannot ji'itify in an aftion of falfe imprifon* 
ment, how could he juftify before the lord-mayor? As for the 
other fuppofed contempt, of figning a warrant againft the mef- 
fcnger and holding him to bail ; the mcflcngei* had been guilty 
of an aflault and lalfc imprifonment, in taking Miller the printer • 
into cuftody, in the city of London^ without any legal warrant 
or authority ; what contempt is it to fign a warrant againft the 
meflenger? 

Gould Juftice — ^The meflenger was committed for having cxc» 
c'Jtcd a warrant of the (peaker, 

Serjeant J^phfon — ^That does not appear; your lordfliips canno:^ ?"/'** '«^"*"» 

know that; for the return only fays, for figning a warrant againft " ,'* JJ'^^' 

O ^ the m'^t^mentofchii 

meiTengef. 



198 Easter Term 11 Geo. III. 1771. 

ihe mefftnger. For thefe reafons, I pray the lordwnayor may be 
difcharged out of the cuftody of the lieutenant of the Tower of 
London* 
PpmioB of i^rd Chief Juftice De Grey — If either inyfelf, or any of roy 
c couru brothers on the bench, had any doubt in this cafe, we fttould 
certainly have taken fome time to confider, before we had given 
our opinions ; but the cafe feems fo very clear to us all, that we 
have no reafon for delay. 

The writ by which the lord-mayor is now brought before us, is 
9 habeas corpus at common law, tor it is not figncA per^atuium: 
it is called a prerogative writ for the King; or a remedial writ; 
and this writ was properly advifei by the counfel for his lord- 
fliip, becaufe all the judges (including Holt) agreed, that fuch a 
writ as the prefent cafe required, is not within the ftatute : this 
is a writ by which the fubjeft has a right of remedy to be dif. 
charged out of cuflody, if he hath been committed, and is de- 
tained contrary to law; therefore the court muft confider, whe- 
ther the authority committing, is a legal authority; if the com- 
mitment is made by thofe who have authority to commit, this 
court cannot difcharge or bail the party committed, nor can this 
court admit to bail, one charged or committed in execution. 
Whether the authority committing the lord-mayor, is a legal 
authority or not, muft be adjudged by the return of the writ 
now betore the court ; the return flates the commitment to be 
by the Houfe of Commons, for a breach of privilege, which is 
alfo ftated in the return ; and this breach of privilege or con- 
tempt is, as the counfel has truly defcribed it, threefold ; dif- 
charging a printer' in cuftody of a meflengcr by order of the 
Houfe of Commons ; figning a warrant for the commitment of 
the meffenger, and holding him to bail ; that is, treating a mef- 
fenger of the Houfe of Commons as aSing criminally, in the 
execution of the orders of that houfe. In order to fee whether 
that houfe has authority to commit, fee Co. 4 In/l. 23. Such an 
aflembly muft certainly have fuch authority, and it is legal be- 
caufe neceflary: Lord Coie fays they have a judicial power; each 
member has a judicial feat in the houfe, he fpeaka of matters of 
judicature oi the'Houfeof Commons. 4 /?//. 23. The Houfe 
of Commons, without doubt, have power to commit perfons ex- 
amined attheirbar touching eleflions, when they prevaricate or 
(peak falfly ; fo they have tor breaches pf privilege, fo they have 
in many other cafes. Thomas Long gave the mayor of Wejlbwy 
jd. to be elefted a burgefs ; he was elefied^ and the mayor was 
fined and imprifoned, and Lon^ removed. Arthur Hall^ a mem- 
ber, was fent to the Tower, tor publifhing the conferences of 
^he houfe. 4 Injl. 23. This power of committing muft be in- 
herent 



Eastsr Tebm 1 1 Gjbo. III. 1771* 199 

herent in the Houfe of Commons, from the very nature of its' 
infiitntion, and therefore is part of the law of the land ; they 
certainly always could commit in many cafes : in matters of 
cledions, they can commit (herifTs, mayors, officers, witnefles, 
(3c. and it is now agreed that they can commit generally for all 
contempts. All contempts are either punifliable in the court 
contemned, or in fomenigher court; now the parliament has 
no fuperior court; therefore the contempts againll either houfe 
can only be puniihed by themfelvcs. Thcjlat. i Jac, i. ca^. ig. 
JtB. 3. fufficiently proves, that they have power to punifh, it 
is in thefe words, mz. " Provided always, that this aft, or 
'* any thing therein contained, (hall not extend to the diminilh* 
'* ing of any punifhment to be hereafter by cenfure in parliament 
'* inlifted upon any perfon which hereaher fliall make, or pro* 
'* cure to be made, any fuch arreft as is aforefaid." So that it 
is moft clear, the Legiuature have recognized this power of the 
Houfe of Commons. In the cafe cA \!i\<c AyUJbury men, the 
counfel admitted. Lord Chief Juftice /fi^/if owned, and the Houfe 
of Lords acknoweldged, that the Houfe of Commons had power 
to commit for contempt and breach of privilege. Indeed, it 
feems, they muft have power to commit ior any crime, becaufe 
they have power to impeach for any crime. When the Houfe of 
Commons adjudge any thing to be a contempt, or a breach of 
privilige, their adjudication is a conviSion, and their com* 
mitment in confequence, is execution; and no court can dif- 
charge or bail a perfon that is in execution by the judgment of 
any other court. The Houfe of Commons therefore having an 
authority to conmiit, and that commitment being an execution, 
the queftion is, what can this court do ? It can do nothing when 
a perfon is in execution, by the judgment of a court having a 
competent jurifdi6lion; in luch cafe, this court is not a court of 
appeal. 

It is objefied ; \ . That the Houfe of Commons are miftaken, 
for that they have not this power, this authority ; 2. That fup. 
pofing they have, yet in this cafe they have not ufed it rightly 
and properly ; ana 3. That the execution of their orders was 
irregular. In order to judge, I will confider the praftice of the 
courts in common and ordinary cafes. I do not find any cafe 
where the courts have taken cognizance of fuch execution, or of 
commitments of this kind; there is no precedent oiWeJIminJIer'- 
hall interfering in fuch a cafe. In Sir J* PaJlon*s cafe, 1 a Rep* 
there it a cafe recited from the year^book^ where it is held that 
every court (hall determine of the privilege of that court ; befides, 
the rufe is, that the court of remedy muft judge by the fame [law! 
as the court which commits : now this court cannot take cog- 
nia;ance of a commitment by the Houfe of Common;^ becaufe it 

o 4 cannot 



2PQ EastehTerm 11 Geo. III. 17/1. 

cannot judge by the fame law; for the law by which the com. 
mons judge of their privileges is unknown to us. If the couit 
of Common Pleas (hould commit a perfou for a contempt, the 
court of King's Bench would not inquire into the legality or 
particular caufe of commitment, if a contempt was returned; yet 
in fome cafes the court of King's Bench is a court of inquir}% 
but in this cafe is only co-ordinate with this court. In the cale 
o{ Chambers, Cro. Car, 168. Chambers was brought up by habeas 
corpus out of the Fleel ; and it was returned, that he was 
committed by virtue of a decree in the Star-chamber, by reafon 
of ceitain words he ufed at the Council- table, &c. for which he 
was cenfured to be committed to the FUet, till he made his fub- 
mtilion at the Council-table, and paid a fine of S009/. and at the 
bar he prayed to be delivered, becaufe the fentence was not war- 
ranted by any law or llatute : for the ftatute 3 Hen. 7. which is 
the foundation of the court of Star-chamber, doth not give them 
any authority to punifli for words only. But all the court in- 
formed him, that the court of Star-chamber was not ereftcd by 
tYizJlat. ^Hen, 7. but was a court many years before, and one 
of the raoft high and honourable courts of juftice ; and to dc- 
liver one who was committed by the decree of one of the courts 
of juftice, was not the ufage ot this court, and therefore he was 
remanded. The courts of fl, R. or C. B. never difcharged 
any perfon committed for contempt, in not anfwering in the 
court of Chancerj', if the return was for a contempt; if the 
Admiralty Court commits for a contempt, or one be taken up 
^ . and committed on an excommunicato cabiendd, this court never 
difcharges the perfons committed. Formerly, when many 
abufes were committed, and the people could not obtain a remedy, 
the fubjefl was not contented with the ancient habeas corpus, 
but did not complain of the courts for refufing them what they 
could not by law grant them; inftead of that, they fought 
redrefs by petition to the throne. In Chief Juftice Wtbnofs 
^. time, a pcrion was brought by habeas corpus before this court, 

who had been committed by the court of Chancery of Durham : 
that court being competent, and having jurifdiclion, the man 
was not difcharged, but recommitted. How then can we do 
;iny thing in the prefent cafe, when the law by which the lorH. 
mayor is committed, is different from the law by which he 
feeks to be relieved ? He is committed by the law ol parliament, 
and yet he would liave redrefs from the common law ; the law of 
parliament is only known to pari iacment- men, by experience in 
the houfe. Lord CoAe fays, every man looks for it, but few can 
find it. The Houfe of Commons only know how to aft within 
their own limits; we are not a court of appeal; wc do not 
jtnow certainly the jurifdiaion of the Houfc of Commons; 
we cannot judge of thp laws and privilege$ of the houfc 

becaufe 



Easter Term 1 1 Geo, III. 1 7 7 1 . 20 1 

becaufe we have no knowledge of thofe laws and privileges ; we 
cannot judge of the contempts thereof, we cannot judge of the 
punifliment therefore. 

I wifli we had fome code of the law of parliament ; but till 
we have fuchacode, it is impoflible we fliould be able to judge 
of it. Perhaps a contempt in the Houfe of Commons, in the 
Cliancery, in this court, and in the court of Durham^ may be 
very different; therefore we cannot judge of it, but every court 
rauft be fole judge of it's own contempts. Bcfides, as the court 
cannot go out of the return of this writ, how can wc inquire 
into the truth of the faft, as to tlie nature of the contempt ? 
We have no means of trying whether the lord-mayor did right 
or wrong: this court cannot fummon a jury to try the matter ; 
we cannot examine into the fa£k ; here are no parties in litiga- 
tion before the court : we cannot call in any body ;' we cannot 
hear any witnefles, or depofitions of witneffes ; we cannot 
iffue any procefs ; we are even now hearing ex parte, and with- 
out any counfel on the contrary fide. Again, it wc could deter, 
mine upon the contempts of any other court, fo might the other 
courts olWeftminfter-hall ; and what confufion would then enfue! 
none of us knowing the law by which perfons are committed by 
the Houfe of Commons. If three perfons were committed for 
the fame breach of privilege, and applied fcvcrally to different 
courts, one court perhaps would bail, another court difcharge, 
a third re-commit. > 

Two obje£lions have been made, which I own have great 
vcight; becaufe they hold forth, if purfued to all }}oiribIc cafes, 
conlequenccs of moU important mKchicf. i^. It is faid, that if 
the rights and privileges of parliament are legal rights, lor that 
very reafon the court muft take notice of them, becaufe they are 
kgal. And 2^/y, If the law of parliament is part of the law of 
the land, the judges muft take cognizance ot one part of the 
Uw of the land, as well as of the other. But thcfe obje£lions will 
not prevail. There are two forts of privileges which ought 
never to be confounded ; perfonal privilcije, and the privilege 
belonging to the whole collettive body ot that alfembly. For 
inftance, it is thfe privilege of every individual member, not to 
be arretted ; if he was arretted, before ihejlat. la G? 13 ?^. 3. 
the method in IVeflmnJler^hall was, to difcharge him by writ of 
privilege under the great feal, which was in the nature of zjuper- 
Jpdtas to the proceedings ; and a3 foon as it came into the court of 
B» R» and was pleaded there, then it became a record, and the 
pleading concXuAeA, fi curia Jomini Rezjs plaatumpradiBujn co^- 
ncfcere velit aut debeat. Thcjlat, 1 1 £^ 12 W^. 3. has altered this, 
aild ther.e is now no occaGon to plead the privilege of a mem- 
ber 



9(» Eastbh Term 1 1 Geo. m. 1771- 

bcr of parliament. 2 Stran. 985. Holiday & al, verfus Colond 
Pitt. There is a great difference between matters of privilege 
coming incidently before the court, and being the point itfclf 
direftly before the court; in the firft cafe the court will take 
notice of them, becaufc it is neceffary, in order to prevent a 
failure of juftice; as in Lord Banbury's cafe» where the court of 
. King's Bench determined againil the determination of the Houfe 
of Lord's ; but in that cafe they confidered the legality and va- 
lidity of the letters patent, without regarding the other right of 
a feat in the Houfe of Lords, with which the court did not con- 
cern themfelves. The counfel at the bar have not cited one cafe 
where any court of this Hall ever determined a matter of privi- 
lege which did not come incidentally before them. If a quef- 
tion is to be determined in this court touching a defcent, where- 
by property is to be determined, and which depends upon 
legitimacy: that is, whether the father and mother were married 
lawfully; this court muft determine by the biOiop's certificate; 
but in iome cafes, where the legitimacy of marriage does not come 
in queAion, but cohabitation only for a great length of \imc, 
which is evidence of a marriage, comes in queftion, this court 
will determine according to' the verdift of a jury, although the 
courts of Wfjlminflcr-km go by a different rule from the Spin* 
tual Courts. But the prefent cafe differs much from thofe 
which the court will determine ; becaufe it .does not come in- 
cidentally before us, but is brought before us dire6l1y, and is 
the whole point in queftion ; and to determine it, we muft fupcr- 
fede the judgment and determination of the Houfe of Commons, 
and a commitment in execution of that judgment. 

Another objeftion has been made, which likewife Iiolds out 
to us, if purfued in all it's poflible cafes, fome dreadful con- 
fcquences; and that is, the abufes which mdy be made by 
jiirifdiftions from which there is no appeal, and for which abufes 
there is no remedy : but this is unavoidable ; and it is better to 
leave fome courts to the obligation of their oaths. In the cafe 
of a commitment by this cou^ or the King's Bench, there is 
no appeal. Suppofe the court of J?. /?. fets an exceflive fine 
upon a man for a mifdemeanor ; there is no remedy, no appeal 
to any other court. We muft depend upon the difcretion of 
fome courts. A man not long ago was fentenced to ftand in 
the pillory, by this court of Common Pleas, for a contempt. 
Some may think this very hard, to be done without a trial hy 
jur)'; but it is neceffarj% Suppofe the courts fliould abufe their 
jiirifdiftion, there can be no remedy for this; it would be a 
public grievance; and redrefs muft be fought from the Legifla* 
lure. The laws can never be a prohibition to the Houfes of 
Parliament ; hecaufe, by law, there is nothing fuperior to them, 

Suppofo 



ExsTBR Tbrm ] 1 Gbo. ni. 1771- SOB 

Suppofe they alfo, as well as the courts of law, fliould ahufe 
the powers which the conftitution has given them, there is no 
redrefs, it would be a public gr'evance« The conftitution has 

Erovided checks to prevent it s happening; it muft be left at 
LTge; it was wife to leave it at large: foroe perfons, fomc f 

courts, muft be' trufted with difcretionary powers ; and though* 
it is poflible, it is in the higheft degree improbable, that fuch 
abufes fliouId ever happen, and the very fuppofal is anfwered bjr 
' Serjeant Hawkins^ in the place cited at the bar. As for the caic 
of the Chancery committing for crimes, that is a different thing, 
becaufe the Chancery has no criminal jurifdi£lion ; but if that 
court commits for contempts, the perfons committed will not 
be difcharged by any other court. Many authorities may be 
drawn from the reign of CharUs^ but thofe were in times of 
comeft. At prefent, when the Houfe of Commons commits for 
contempt, it is very neceflary to ftate what is the particular 
breach of privilege; but it would be a fufficient return, to ftate 
the breach of privilege generally: this dofirine is fortified by 
the opinion of all the judges, m the cafe of Lord Shafte/bury^ 
and I never heard this decidon complained x)f till 1704: though 
they were times of heat, the judges could have no motive m 
their decifion, but a regard to the laws : the houfes difputed 
about jurifdi3ion, but the judges were not concerned in the dif- 
pute. As for the prefent cafe, I am perfeftly fatisfied, that if 
jL-ord Holt himfelf were to have determined it, the lord-mayor 
would be remanded. In the cafe of Mr. Murray^ the judges 
could not hefltate concerning the contempt by a man who re- 
fufed to receive his fentence m a proper pofture: all the judges 
agreed, that he muft be remanded, becaufe he was committed by 
a court having competent jurirdi6b'on : courts of juftice have no 
cognizance ot the acls of the Houfes of Parliament, becaufe they 
belong ad aliud examen. I have the moft perfe£l fatisfadion in 
my own mind in that determination. Sir Martin Wright^ who 
felt a generous and diftinguilhed warmth for the liberty of the 
fubjeS; Mr. Juftice Denijon^ who was fo free from connexions 
and ambition of every kind ; and Mr. Juftice Fofter^ who may 
be truly called the tnagna charia of liberty of perfons, as well ai 
fortunes; all thefe revered judges concurred in this point: I 
am therefore clearly and with ft;ll fatisfa£iion of opinion, that the 
lord-mayor muft be rern^nded, 

GoiUd Juftice— I entirely concur in opinion with my Lord 
Chief Juftice, that this court hath no cognizance of contempt! 
or breach of privilege of the Houfe of Commons: they are the 
only judges of their own privileges ; and that they may be pro- 
perly called judges, appears in 4 Inji. 47. where my Lord (Me 
fays, an alien cannot be eleded of the parliament, becaufe fuch 
a perfon can hold no place of judicature. Much ftrefs has been 

laid 



^4 Easter Term ii Geo, III. 1771- 

laid upon an objeftion, that the warrant of the fpeakcr is not 
conformable to the order of the houfe, and yet no fuch thing 
appears upon the return, as has been pretended. The order 
fays that the lord-mayor fhall be taken into the cuftody of the 
fcrjcant or his deputy ; it does not fay, by the ferjeant or his 
deputy. This court cannot know the nature and power of the 
proceedings of the Houfe of Commons ; it is founded on a 
different lavsr; the Ux et confuetudo parliamintiy is known to parli- 
ament-men only. Trewynnard's cafe, Dier 59, 60. When raat- 
vnikrs'scafe, ^^^.^ ^j- privilege come incidentally before the court, it is obliged 
* * ®° ^^'' to determine thera to prevent a failure of juftice. It is true 
this court did, in the inftance alluded to by the counfel at the 
bar, dotermin? upon the privilege of parliament in the cafe of a 
libel; but then that priviJe^^e was prom ulged and known; it 
exifled in records and law-books, and was allowed by parlia- 
ment itfelf ; but even in that cafe, we now know that we were 
miftaken, for the Houfe of Commons have fince determined, that 
privilege does not extend to matters of libel. The cafes pro- 
duced refpcfting the High CommifTion Court, 6?c. are not to the 
prcfent purpofe, becaufe thofe courts had not a legal authority; 
the refolution of the Houfe of Commons is an adjudication, and 
every court muft judge of its own contempts. 

Elaciflone Juftice — I concur in opinion, that we cannot dif- 
chargc the lord-mayor; the prefent cafe is of great importance, 
becaufe the liberty of the fubjcft is materially concerned. The 
Houfe of Commons is a fupreme court, and they are judges of 
their own privileges and contempts, more efpecially with refpeft 
to their own members : here is a member committed in execution 
by the judgment of his own houfe. All courts, by which I mean 
to include the twohoufes of parliament, and the cokMs oK Weft min- 
JlerJiall, can have no controul in matters of contempt. The 
iole adjudication of contempts, and the puhilhmcnt thereof, in 
iiiiy manner, belongs exclufively, and without interfering, to 
vr\c\\ refpeftive court. Infinite confufion and diforder would 
follow, if courts could by writ of habeas corpus^ examine and 
determine the contempts of others. This power to commit rc- 
fiilts from the firft principles of juftice; for if they hare power 
to decide ; they ought to have power to punilh ; no other court 
iiiail fcan the judgment of a fuperior court, or the principal feat 
of juftice; as I faid before, it would occafion the utmoft con- 
fufion, if cver)^ court of this Hall ftiould have power to examine 
the commitments of the other courts of the Hall, for con- 
tempts; fo that the judgment and comnr.itment of each refpec- 
tive court, as to contempts, muft be»final, and without controul. 
It is a confidence, that may, with perfefct fafety and fccurity, be 
repofed in the judges, and the houfcs of parliament. The Le- 
3 giflature 



Easter Term 11 Geo. III. 17/1. 305 

giflature fince the revolution (fee ()& loW, 3. f. 15.) have 
created many new contempts. The obje6lions which are brought 
of abufivc confequences prove too much, becaufe they are appli- 
cable to all courts of dernier report: et ab abufu ad ujum non va^ 
UnJt conftqutntia^ is a maxim of law as well as of logic. General 
convenience muft always outweigh partial inconvenience ; even 
fuppofing (which, in my confcience, Lam far from fuppofing) 
that in the prefent cafe the houfe has abufed its power. I know, 
and am fure, that the Houfe of Commons are both able and well 
inclined to do juftice. How prcpoftcrous is the prefent murmur 
and complaint! the Houfc of Commons have this power only in 
common with all the courts of Weftminfter-halt: a.nd if any per- 
fons^may be ^fely trufted with this power, they muft furcly be 
the commons, who are chofcn by the people; for their privilcffes 
and powers are the privileges and powers of the people. There is a 
great fallacy in my brother C/y««*$ whote argument,when he makes 
the queilion to be, whether the houfe have aftcd according to their 
rights or not? Can any good man think of involving the judges 
in a conteft with either houfe of parliament, or with one another ? 
and yet this manner of putting the qucftion would produce fuch 
a conteft. The Houfe of Commons is the only judge of its own 
proceedings: HoU differed from the other judges in this point, 
but we muft be governed by the eleven^ and not by ih^. Jingle 
one* It is a right inherent in all fuprcmc courts : the Houfe of 
Commons have always exercifed it. Little nice objeftions of par- 
ticular words and forms, and ceremonies of execution, are not to 
be regarded in the acls of the Houfe of Commons; it is our 
duty to prefume the orders of ihaX houfe, and their execution, 
are according to la\v. The habeas corpus in Murray*^ cafe was at 
common law. I concur intirely with my Lord Chief Juftice. ' 

Nares Juftice — I (hall ever entertain a moft anxious concern 
for whatever regards the liberty oi the fubjcft; I have not the 
vanity to think I can add any thing to the weight of the argu- 
ments ufed by my Lord Chief Juftice and my Brothers : I have 
attended with the utmoft induftry, to every cafe and argument 
that has been produced, and moft heartily and readily concur 
"with Hay Lord Chief Juftice and my Brothers. 

The Lord-Mayor was remanded to the Tower. 



Blaney, Aflignee of Bradney a bankrupt, verfus Hen- «BUck.iteir. 
drick and others. C. B. 7^'- ^- ^• 

INDEBITATUS ojfumpftt for money lent by the bank- Imnajiumyu 
rupt to the defendants, and upon an account ftated between **'^° *"/**j 

, » . , \ t j'a f -I • r c«ttttf» Rated 

them; judgment by «?/ ^?n/; and upon executing the writ of betwcfn mer- 
chant and mercbajity the jury may give incersH fioa the day the account wm ftatcd, 

inquiry. 



k6 Easter Tebm ll Geo. III. 1771* 

inquiry, the plaintiff proved an account flated, and a balance due 
to the bankrupt Bradncy of 3597/. 4^- %d. figned by the dc- 
iendams» whereupon the jury save that Turn, and 81/. 6j. &/. 
for inteceft (at the rate of ^, per cent, per annuMy from the 
time of fettling the account til) the bringing the a£lion) in da- 
mages. And now Serjeant Whitaker moved to fet the inquificion 
afide, obje£ling, that the jury had done wrong in giving iotereft 
Banb. 119. ^° ^^'^ ^^^^* ^^^ ^^^ ^ ^^^^ ^^ ^^^ caufe; upon mewing caufe, 
2 Baroct 149. Serjeant Burland for the plaintiff cited ^e/iy's Reports, and Burro. 
where it was laid down, that upon an account ftated between 
merchant and merchant, it (hall carry intereft from the time it 
was liquidated; and of that opinion was the court, viz. Gould, 
Blacijione ^nd Nares Juftices; [abfente Chief Juftice De Grey) 
They faid that when a note is due, it carries intereft from that 
time, fo like wife, when money lent becomes due, it carries in- 
tereft from the day it becomes payable; but for money owing for 
goods fold and delivered, no intereft Ihali be allowed. 

The rule was difcharged. 



ft Black. Rep. Scott verfus Pcrry. C. B. 

^58. s. c. 

lo firmtdm J'iJ formedoTtf Serjeant Burland moved for leave to difcontinuet 
the pUiniiff ± ^^^ payment of cofts, there being a miftake in fetting out the 
amen<i*aai Hit cflatc-tail in the writ; and had a rule to fliew caufe. Upon 
proceedin|s Ihewing caufe Serjeant J^phfon for the defendant alledged, that 
on paying he had been ferved with an ejeftment for the fame lands by the 
©f M*'ejeft- plaintiff, and had been thereby put to cofts and charges which 
meoc. ue could not get, unlefs he fhould now be allowed them; and 

that upon payment of all the cofts in the qeflment and ihtjor- 
mtdon^ he had no obje£lion to the plaintiff s difcontinuing. 

Per curiam. The plaintiff comes to aflc a favour, and mud 
pay both the cofts in the ejeSment and ikitformedon ; which was 
confented to by Serjeant Burland, upon being permitted to 
amend all the proceedmgs in i\it forTmdon: and a rule was made 
by confent, that the plaintiff ftiould be at liberty to amend ac- 
cordingly. 



TRINITY 



207 



TRINITY TERM 

11 Gfio. IIL 1771. 



John Dawkes and Mary his Wife verjus Lord De Lorane. 

l&ddkfcx.l^e^ It remembered, that on the agd dajr of Januarv^ fADnft^y, 
in HUar^ term, in the 11th year of our lord the particuiaT * 
now King, John Daw(es and Mary his wife, came here into court fund tt not a 
by jFohn Rayncr the younger their attorney, and brought here n««'«'«^'c MM 
into his Majefty's court, their ceruin bill again^ the right honour- though *tbc*' 
able Htnry Earl a( De Lorane^ having privilege pf parliament, of acceptor ac« 
a plea of trefpafs upon the cafe, G?c. And there are pledges of **P* ** ««■«- 
profecution, (10 vf it) John Doe ^ni Richard Roe, which faid bill rJp.* s;a]* 
follows inthefe words; (to wit) To the juftices of our lord the j^^^ \ 
HOW King of the bench, MidJle/ex, (to wit) Jahn Dawkes and .^0^2**- 
Mjary his wife, by Jfohn Rayner the younger their attorney com- ring fuppofea 
plain of the right honourable Henry Earl of De Lorane having pri- ^^ ■ ^^ ^ 
vilege of parliament, of a plea of trefpafs upon the cafe, Qc, for Igiinft?i 
that whereas the laid Earl, before the intermarriage of the faid member of 
John with the faid Mzry, (to wit) on the 8th day of January in ^^'^*J^"^^ 
the year of our Lord 1768, at Wejlndnjler in the faid county of j^iLdinTti 
MiddUJex, according to the ufage and cuftom of merchants, made the uTige uni 
his certain bill of exchange in writing with his own hand there- ^^^^^ •f 
unto fubfcribed, bearing date the fame day and year aforefaid, "*"* *"^* 
2uid then and there direfled the (aid bill of exchange to one 
Timothy Brecknock^ by the name and dcfcription ot TimotJif 
Brecknock^ Efq. St. Mary U Bone, and thereby required the faid 
Timothy, feven weeks after date, to pay to tlie faid Mary before 
her intermarriage with the faid John by the name and defcrip« 
tion of Mifs Read, thirty-two pounds, and feventecn (hillings 
out of William Steward^s money, as foon as he fliould receive it 
for the faid earl, and then and there delivered the faid bill to 
the faid Mary, which faid bill of exchange afterwards, fto wit) 
on the. fame day and year aforefaid, at Wejlmnjler aforefaid, in 
the county aforefaid, according to the ufage and cufiom of mer- 
chants, was fliewn and prefented to the laid Timothy, for his 
1 acceptance 



108 Tkinity Term 1 1 Geo. IIL 1771* 

acceptance thereof; and the faid Timothy then and there, accord* 
ingto the ufa^e and cufloin of merchants, accepted the fame; 
and the faid bill of exchange afterwards (to wit) on the firft day 
of March in the year aforefaid, at Wrjlminfter aforefaid, in the 
county aforefaid, was fliewn and prefented to the faid Timothy 
for payment thereof, but the faid Timothy then and there 
wholly refufed to pay the fame; of all which faid premifes, the 
faid earl afterwards, (to wit) on the fame day and year lad afore- 
faid, at H^e/lminjidr aforefaid, in the qpunty aforefaid, had no- 
ticc ; by reafon whereof, and by force of the ufage and cuftom of 
merchants; the faid carl became liable to pay the faid Idary be- 
fore her intermarriage with the {dHAJohn the faid fum of money 
in the faid bill of exchange contained, when he the faid earl 
fhould be thereunto afterwards requefted; and being fo liable the 
faid earl^ in confideration thereof, afterwards, (to wit) on the 
fame day and year aforefaid, at Wejlminjler aforefaid, in the 
county aforefaid, undertook, and to the faid Mary then and 
there faithfully promifed to pay to her the faid fum of money in 
the faid bill of exchange contamed, when he the faid^^r/ (hould 
be thereunto afterwards requefted. , 

^d Count. An indebitatus affumpfu for 50/. for goods fold 
and delivered by the faid Mary (before her faid intermarriage) to 
the earL 

^d Count. A quantum valebant for other goods, wares and 
merchandizes, fold and delivered by the faid Mary (before her 
faid intermarriage) to ihc earl; and the plaintiffs aver, that the 
fame were worth other co/. 

Ath Count. An indebitatus ajfumpfit for the further fum of 
<o/. lent and advanced to the earl by the faid Mary before her 
faid intermarriage. 

^h Count. An indebitatus djfumpfit for the further fum of 
50/. paid, laid out and expended to and for the ufe of the ear/, 
by the faid Mary^ before her faid intermarriage* 



Bre4cb» 



Yet the faid earl (although often requefted by the faid ilfflry 
before her mtermarriage with the faid John, and by the fai'd 
7fA« and Mary fince their intermarriage) hath not yet paid the 
faid feveral fums of money, or any part thereof, to the feidMa7 
before the faid intermarriage, or to the faid John and Man, 
^^cr^r , ^"'' ^*"^^ ^'^^^"^ intermarriage ; hut hath whollv 
retufed fo to do, and ftill doth refufe to pay the fame to the fai^ 
John and Mary; whereupon the {M John and Mary fav tliev 



TWNiTY Term 11 Geo. III. 1771. aoQ 

are injured^ and have fuflained damage to the value of jo/. atid 
therefore they bring fuit, 6?f • 

To this declaration, the earl firft pleads the general ifltie, ncn 
ojfumpjit^ to the whole declaration, and thereupon iQue is joined. 
Secondly, by leave of the court, the tarl pleads in bar, as to the 
firfl count in the declaration, that the faid John and hlary 
ought not to have their aforefaid adion thereof maintained againft 
him ; becaufe he fays, that the faid Timothy Brecknock in the 
faid declaration mentioned, hath not at any time hitherto re* 
ceived any value of the faid W. Steward'% money mentioned in 
the faid bill, or any part thereof, for the faid ear/, but the fame 
is ilill wholly unpaid : and this he is ready to verify : wherefore 
he prays juagment, ii the faid John ana NLary ought to have 
their atoreiaia a£lion thereof maintained againfi him, &c. 

W.Davy. • 

To this plea the plaintiffs demurred generally, and the defend* 
ant joined in demurrer. 

Copy of the writingjuppofed to be a biil of exchange^ Jit forth in the 
f^ count of the above declaration^ 

•• January 8, 1768. 
" OEVEN weeks afterdate, pleafe to pay Mifi /i^ji thirty^ 
*^ " two pounds and feventeen (hillings out of W. Steward'^ 
•• moncy> as foon as you receive it, for 

'• Your humble fervant, 
£ 32. ip» *• De Lorane^ 



^•» 



" ''°?'?if;Xj:l^'''^lAcceptei. nmoify Brecknock:^ 

This demurrer to the plea in bar to the firft count in the de« 
claration; was argued by Serjeant Lei^h for the plaintiff, and 
Serjeant Davy for the defendant, in this term^ 

Serjeant Leigh for the plaintiff— This is an afiion againft thd 
drawer of a bill of exchange ; and it is alledffed in the declara- 
tion, that the bill was prefented to Tiniotny Brecknock^ the 
drawee, who.accepted the fame on the 8th day oi January 1768; 
and that afterwards, on the ift day of Marcn 1708, the bill was 
prefented to Mr. Brecknock for payment thereof, but he then 
refufcd to pay the fame ; fo that Lord De Lorane^ the drawer, is 
liable to pay the fame, by the ufage and cuftom of merchants* 

Vc^LIlL p Icxpea 



210 TRiNitT Teum 11 Geo. III. 1771. 

I expefl it will be objeSed, that this is not a bill of exchan^i 
but only an appointment, or an authority, or an order for Mr. 
Brecknock to pay the money out of W. Steward'^ money, as 
foon as he Ihouid receive it; and that the drawer Lord D^ 
Ijorant never intended to make himfelf chargeable by this bill, 
for that it is not faid to ht.for value received: but in anfwer to 
thisi the cafe of Macileod vcrtus Snee and others^ in 2 Ld. ^f^^* 
1481. and 2 Stra. 762, is like this c^fe, where the plaintitt de- 
clared, that ji, B. drew a bill of exchange, dated 25tli May, 
whereby he requefted the defendant one month after date, to 
pay to the plaintiff or order, 9/. 10 J. " as my quarterly half-pay 
" to be due, from the 24th of June to the 27th of SepUmber 
** next by advance ;" and the a3ion was againft the defendant 
upon his acceptance. It was obje£led| that this was no bill of 
exchange, becaufe it is not to pay in all events; and it was 
compared to the cafe of Joceline verfus Leferre^ Eqfter 1 Geo. 1. 
1 Scri. 591. B, K. '* Pray, pay out of my growing fubfiflence, &c" which 
Was adjudgea no bill of exchange, and which is cited in 2 Ld, 
Raym. 1362. in the cafe oi Jenny verfus Herie^ which was upon 
a bill of exchange thus, *' Pray, pay to H, igisl* upon de- 
" mand out of the money in your hands, belonging to the pro- 
'* prietors of the Devonjkire mines, being part of the confide- 
•' ration money for the manor of Weji Buckley ;" which was ad- 
judged no bill of exchange. But in anfwer to thefe cafes, it 
was urged on the other fide (in the cafe of Mackleod verfus Snee 
and others J that the bill, in that cafe, was a good bill of ex- 
change, for that it was not payable upon a contingency, nor out 
of a particular fiind, but was payable in all events, and payable 
to order, and was drawn upon the general credit of the drawer 
not out of the half^pay ; for it is payable as foon as the quarter 
begins, for the half^pay mentioned in the bill, which was not 
to be due till three months after ; and of that opinion was the 
whole court, and the judgement of the C, B. in Mackleod verfus 
Snee^ that the bill was a good bill of exchange was affirmed. 
[Nota^ the reporter did not underftand how this cafe oi Mackleod' 
verfus Snee^ was in favour of the plaintiff in the cafe at bar, 
for it feems to him to be a cafe againft the prefent plaintiff. 
Sedquare.'\ 

Serjeant Dai^y. for the defendant. This is not a bill of ex- 
change, for three reafons ; ift. It is not negotiable, not bein? 
made payable to order. 2dly, It is not drawn for value recawM, 
And 3dly, It is to pay out of a particular fund, viz. out of 
William Steward" % money as foon as you receive it, which is 



\!OX.'di\y uncertain. 



1. According 



Teinity Teum U Geo, IIL 1771. 411 

1. According to the ufage and cuftom o( merchants it is of 
the very effence of a bill of exchange, that it be made payable to 
feme certain per/on or his order ^ or to the order of Joint ccr- 
tain pcrfon (for a bill of exchange may be, and very often is 
made payable to the order of the drawer himfelf) but this bill is 
not made payable to the order of any perfon, is ijot negotiable, 
fo cannot be faid to be a bill of exchange, drawn according to 
the ufage and cuftom of merchants. See Mr. Cunningham's trea* 
tife on bHls of exchange, (3c. and 2 Stra. 1211. 

2. Accordinff to the ufage and cuftom of merchants (efpccially 
where you would charge the drawer) the bill muft be drawn for • 
value received^ and to ihew this there are many cafes in the 
books, 10 Mod, or Lucas's Reports 294, 316. and in Mr. Cun* 
ningham's book many cafes cited* 2 Stra. 1212. 

3. This is a bill made payable out of a particular fund, which 
is held not to be a bill ot exchangei according to the ufage and 
cuftom of merchants, 2 Ld. Raym, 1361. jenny verfus Herle. 
1 Stra. ^91. S.C, 2 Ld. Raym. 1563. Haydock vtx{\xs Lynch. 
See 4 Finer 241. Pearfe and JVheatley, reported in no other 
book. 

Serjeant Davy further faid, That fuppofe this could be ad- 
judged to be a good bill of exchange, yet the drawer is not 
liable upon the drawing of the bill, nor until the acceptor has ' 
failed in performing his undertaking ; Mr. Brecknock the accep* 
tor has undertaken to pay the 32?. 17J. out of William Stew* 
ard'i money as foon as he fliall receive it for Lord De Lorane^ 
who has pleaded that Timothy Brecknock hath not at any time 
hitherto received any value ot the faid William Steward's money 
mentioned in the bill, or any part thereof for the earl ; but the 
fame is wholly unpaid, whicn is admitted by the demurrer to be 
true, fo that Brecknock hath not failed in performing his un- 
dcnaking; and therefore the drawer is not yet chargeable, fup- 
pofing this be a good bill of exchange, which the ferjeant by no 
means admitted, but infifted it is not. 

Serjeant Leigh in reply, infifted, that the plea was ill, becaufe, 
by not denying that Brecknock accepted the bill, the plea tacitly 
admits he did accept the fame for payment, as alledged in the 
declaration. 

Lord Chief Juftice De Grey — It is true, Brecknock did accept* .> 
the bill to pay out of William Steward's money as foon as he 
Qiould receive it; but is this a general acceptance to pay in 
all evenu ? 

*" . p a Serjeant 



212 Trinity Term 11 Geo. IIL 17?!. 

Serjeant Leigh anfwered — ^That the acceptance is a proof that 
Brecknock had received IVilliam Steward's money; if he had 
not received the money of Steward^ why did he accept the 
bill ? And if this is only a partial, or a conditional accept- 
ance, it mud beconfidered as no acceptance at all, and then the 
drawer is liable. He gave no anfwer to the two firft objeftions. 
that the bill was not payable to order^ nor was made for value 
received^ that I heard, but only faid, that his brother Davy had 
got all his cafes out of Mr. Cunningham's book of bills ot ex- 
change, &c. Whereupon Gould Juftice faid, that Mr. Cumdng^ 
ham's book was a very good book. 

Lord Chief Juftice De Grey — ^The court ought to be very 
careful how they lay down the law, in cafes of bflls of exchange, 
which fo highly concern trade and commerce ; and therefore I 
ihall take a tew days for further confideration. 

Gould Juftice — I was prefent at the Old Baily when a perfon 
was indi6led for forging a bill of exchange ; and it appeared by 
the bill fuppofed to be forged, that it was neither made pay- 
able to order ^ ^^f^/ value received: all the aldermen then prefent 
at the Old Baily laid, it was no bill of exchange ; fo the prifoner 
was acquitted. In a little book called Lex Mercatoria, there are 
various precedents of bills of exchange, fome with value re* 
ceived, and fome without thofe words ; but there is not one that 
is not made payable to order. 

Judgment for After fomc days taken to confider this cafe, the Lord Chief 
the defend- Jufticc delivered the opinion of the whole court for the dcfend- 
***** ant to the following efi'eft. 

LorJ Chief Juftice De Grey — ^The pleadings in this caufe, 
having before been fully ftated, are welt underftood ; the qucftion 
arifes upon the firft count in the declaration, viz. whether the 
bill therein fet forth is a bill of exchange, made according to 
the cuftom and ufage of merchants, fo that an a6lion will He 
thereupon. 

It was objefted at the bar for the defendant, that this is not a 
bill of exchange, made according to the ufage and cuftom of 
merchants, for three reafons ; ift, Becaufe it is not made payable 
to order; 2(lly, That it is not drawn for value received; and 
la/lly, That it is payable out of a fuppofed fund, at a future 
time, which was uncertain, and might or might not happen. 

We fay nothing upon either of the two firft obje£lions, be- 
caufe our opinion that this is no bill of exchange, is grounded 
upon the laft obje£lion only. 

The 



. Trinity Term il Geo. III. 1771- 213 

The inftniment or writing, which confiitutes a good bill of 
exchange, according to the law, ufage and cuftom of merchants, 
is not confined to any certain form or fet of words, yet it muft 
have fome eflential qualities without which it is no oill of ex- 
change; it muft carry with it a perfonal and certain credit given 
to the drawer, not confined to credit upon any thing or Jund; 
it is upon the credit of a perfojC% hand, as on tlie hand of 
the drawer^ the indorfor^ or the perfon who negotiates it ; he to 
whom fuch bill is made payable or indorfed, takes it upon no 
particular event or contingency ^ except the failure of the general 
perfonal credit of the perfons drawing or negociatin^ the fame. 
In the prefent cafe, the drawer did not make this writing or in- 
ftrument upon his ovitt perfonal gencril credit, that in alfevents 
he would be liable in cafe Brecknock fhould not pay it out of *^ 

lyUiiam Steward's money ; but both the drawer^ and the perfon 
to whom payable, look only at the fund, and no perfonal credit 
is given to tne defendant the drawer* 

It was objefied at the bar, that this bill is accepted by Breck- 
nock generally, and in an unlimited manner : I anfwer, if the 
bill had been drawn accordingly, in a general and unlimited 
way, both the bill and the acceptance would have been good ; but 
the acceptance muft mean, that Brecknock accepts it to pay 
out of Steward* s money not out of the drawer* s money; and upon 
this record it appears, that Brecknock has not received any of 
Steward's money. I think it would be monftrous to fay, that 
either the drawer or acceptor ought to pay this 32/. lys, out of - 
their own money. The cafe in Ld. Jlaym. 1481. is not to pay 
out of a contingency, but in all events. And there is no cafe, 
that I can find, in any book, wherever an a£lion would lie, as 
upon a bill of exchange, where the fame was payable out of a 
future contingent fund. The cafe of Andrews and Franklin^ 
1 Stra, 24. was a cafe on a promiflbry note, to pay within two 
months after fuch a fliip is paid oft*, and counts upon the fta- 
tute. It was infifted that this is not negotiable, it being upon 
a contingency which may never happen ; but the court held the 
paying off the ihip is a thing of a public nature, and morally cer- 
tain. Upon the whole, we are all of opinion, that judgment as 
to the firil; count in the declaration, muft be entered for the 
defendant. 



^ 3 



The 



ai4 TkknityTerm 11 Gjbo. III. 1771- 



[See poft, ?• The Warden and G>minonalty of the Myftcry of Grocers 
**'^ of the City of London, verjus the Arphbifliop of 

Canterbury, and William Backhoufc, Clerk. In 

quar^ impedit. C. B. 

2i9ts. Thii london. JPREDERICK, Archbifliop of Canteriury, and 

Mi^ldi^ ' ff^illiam Backhoufi, Clerk, were fununoned to an- 

term lift?** ^^^^ ^^^ Wardens and commonalty oi the myftery of Grocers of 

R 11. the city of London^ of a plea that they permit tiie faid wardens 

Bi k It *"^ commonalty, to prefcnt a fit perfon to the church of Saint 

770/s.c.*^* Afary UBow, with the churches of Saint Pancras Soper-lane^ and 

Allhallows Honey-lane, thereunto annexed, which is vacant, and 

belongs tothe gift of the faid wardens and commonalty, as they fay; 

The decia- ^"^ whereupon the faid wardens and commonalty by George Ward 

ntton feta their attorney faVs, that the faid wardens and commonalty of 

forth, that the myftery of Grocers of the city of London, were feifed of the 

werefcTfcd in ^dvowfon of the church olAlUiallows Honey 4ane, in the city of 

fee of the td- London, as of one in grofs by itfelf, as of fee and right ; and be- 

▼owfon of ing fo feifed thereof, they the faid wardens and commonalty, on 

Honey.^UM^ the 27th day of March, in the year of our Lord 1663, pre- 

in grofi 5 * fentcd to the faid church, then being vacant, ^ne Thomas nut- 

that on 17th chinfon, their Clerk, who on the prefentation of the, faid wai- 

therpreVett- ^^"^ *"^ commonalty >vas admitted, inftitutcd, and induflcd 

cd thereto into the fame, in the time of peace, in the time of our late fo- 

Thomas vereign lord King Charles the lecond ; and the faid wardens and 

ShrwaVtdl coninionalty further fay, that the Archbifliop of Canterbury vas 

mitred, &c.' feifed of the advowfon of the church of Saint Mary le Bow, as 

that the arch- of onc in grofs by itfelf, as of fee and right, in right of his 

CMterhu archbiflioprick ; and, being fo feifed thereof, JVilliam Juxon then 

WM feifeYIn Archbifliop of Canterbury, on the 16th day of OSloher, in the 

fee of the ad. year of our Lord 1662, in right of his archbiflioprick, collated 

Mr'^'Te Bow' ^*^^ ^^'^ ^^^ mentioned church, then being vacant, on one 

in g7of?, in ' George Smallwood, his Clerk, and did place and induft him into 

fight of hia the corporeal pofleflion thereof; and the faid wardens and com- 

Sdk^'anr °^^"^^^y further fay, that the faid archbifhop was feifed of the 

tilt William advowfon of the church oi Saint Pancras Soper-lane, as of onc 

Juxon, then in grofs by itfelf, as of fee and right, in right of his arch- 

inthi^eui ''^'^^F^ck; and being fo feifed thereof, the faid JVilliam, then 

oao^r archbifliop o\ Canterbury, on the loth day o{ June, in the year 

1662, col- of our Lord 1662, in right of his archbiflioprick, collated the 

lated it on 

George Smallwood j that the fame archbifliop was feifed of the advowfon of St. Pancras Sopcr lane, in 

Cee in groffj in lil^e right, and loth of June 1664, collated it 00 Samuel Dillingham \ 

fuid 



TaiNiTY Term 11 Geo, III. 1771. 215 

faid laft mentioned church, then being vacant, on one Samuel 
Dillingham his Clerk, and did place and indu£l him into the 
corporeal pofleffion thereof ; and the faid wardens and com- 
monalty, and the faid archbifhop being fo refpeftively feifed of 
the advowfons, of the faid churches as aforefaid ; and the faid Jh!?^et wwe 
churches being refpe£lively fo full as aforefaid, as well the faid deftnyedbj 
church called Allhallows Honey-lane, as the faid churches called fire 
Saint Mary U Bow, and Saint Pancras Soper4ane, were burnt 
down and deftroyed by fire ; and thereupon by a certain aft of 
parliament, made in the parliament of our fovereign lord Charles 
the fecond, late Kin^ of England, at JVeftminJhr, in the twenty- And there, 
fecond year of his reim, intituled an additional aft for rebuild- ^"» ^ ■ 
ing of the city of London, uniting of pariflies and rebuilding of the q^^ \^ ^, . 
cathedral and parochial churches within the faid city ; it was, eiiaaed,chat 
amongft other tilings, enafted, that the parifhcs of Saint Mary le ^egriihetof 
Bow, Saint Pancras Scfer-lane, and Allhallows Honey ^lane, (hould s;^"^ ** 
be united into one panfh, and the church theretofore belonging to Paocru So- 
the faid pariOi of Saint Mary le Bow, (hould be the parifh church P«' ^w^f and 
of the faid pariflies fo united ; and it was by the fame aft provided, HMe^il^rnr 
that notwithftanding fuch union as aforefaid, each and every of (hoaidb« 
the pariflies fo united, as to all rates, taxes, parochial rights, »n>t«d: and 
charges and duties, and all other privileges, liberties and re- church^ 
fpefts whatfoever, other than what were therein before men- fliou!d be the 
tioned and fpecificd, fliould continue and remain diflinft, and as p»H^ church 
theretofore they were before the making of that aft ; and that l^^ftef*^*^ 
the feveral and refpeftive patrons of the faid churches fo united, That the rr- 
ftiould and might prcfent by turns to that church only, which by fp«^ive pa. 
that aft was appointed, to be rebuilded and ellabliflicd for the pa- SJih^ureh'e''* 
rifh church of the pariflies fo united as aforefaid ; the firft pre- fo united, 
fentation to be made by the patron of fuch of the (aid churches, flipoid and 
the endowments whereof were of the ffreateft yearly value, as «'8j»f pwfeat 
by the faid aft of parliament more fully appears; by virtue of tb«'SiuT«h 
which faid aft of parliament, the faid Archbifhop of Canterbury only; the 
in right of his (aid archbilhoprick, and the faid wardens and ^f? P^cffn- 
commonalty, became feifed of the faid advowfon of the faid made by the 
church of Saint Mary le Bow, with the churches of Saint Pan- patron of fuch 
eras Soperlane, and Allhallows Honey -lane, as of oi>e in grofs by **f*^*/*'^ . 
itfelf, as of fee and right, and were intitled to prefent to the endowments* 
faid church of Saint Mary le Bow in turns as aforefaid, when the whereof were 
laid church (hould become vacant ; and the wardens and com- ^^^^^ gwateft 
monalty further, fay, that after the making of the faid aft of B^T^rtne 
"parliament, the faid church of Saint Mary le Bow became vacant, whereof the 
jy the death of the faid George Smallwood the laft incumbent of •«hbifliop 
that church, by reafon whereof William Sancroft, then arch- t^caW^'VJi^d 
bifliop of Canterbury, on the 23d day of Seplember in the year of of the advow- 
fon of Bow 
Chorcb, and the other two in fee, as of one in grola, and intitled to prefent to Bow Church aa afore* 
faid. That after the ftAjtute, the church of Bow becase vacant by the death of Ceoige Smailwoed> 
and archbi^p SaDcrolc, on the 13d of Sept. 16791 collated Tiiaotby Puller. 

p 4 our 



I 



2l6 TfiiNiTY Term il Geo. III. 1771. 

our Lord 1679, ^ ^^ hisfirft turn in right of his archbiflioprick. 
collated the laid church fo being vacant, on one Timothy PuUer^ 
his clerk, and did then and there place and indud the faid 
Timothy Puller into the corporeal pofTcflion of the faid church in 
the time of peace, in the time otour late lord King Charles the 
"^^'^^iL f^co'*^ • and the faid wardens and commonalty further fay, that 
came Tacaiit ^^9 ^^^^ church afterwards became vacant by the death of the 
by the death faid Timothy Puller^ whereupon John Tilloi/on, then Archbilhop 
^^^^^i*^^ of Canter 6ury^ on the 21ft day of A^^vew^^r, inthevcarof our 
Tiiioifon^n ^^^ * ^93» ^ i^ his fecond turn in right of his faid archbifhoprick, 
the If ft Nov. collated the faid church, fo being vacant, on one Samuel Bradford^ 
'?93» «» jn his clerk, and did then and there place and induft the faid Samad 
tuln'^coiliited B^^ord into the corporeal pofleflion of the faid church, in 
Samuel Brad- the time of peace, in the time of our late fovereigns Kin^ IfWiam 
ford, who was and Queen Aftfr;^; and the faid Samuel Bradford (o beinginthe faid 
crMtcdWfliop c**"'*ch as aforefaid, he the faid Samuel Bradford was afterwards 
ofRocheft^r, rightfully and canonically created and confecratcd bilhop of the 
th-^'^h^kT'*** bifhoprick olRocheJkr: and the faid church became vacant bv 
came Jawnt} ^^^^ promotion of the faid Samuel Bradford to the faid bifhoprick 
whereby King of Rochejler^ whereby his faid late majefty King George the firft, 
cjeo, I. by by reafon of his royal prerogative annexed to his crown of 
Sve''ra"The ^^^^ Britain^ became intitled to prefent a fit perfon to the 
lothofjttly church aforefaid, fo vacant ; and thereupon, his faid maJ£ft)% by 
17*0, pre. reafon of his royal prerogative aforefaid, on the loth day of 
sVmutfLiae^ -7«6'» ^" ^^'^ Y^^^ ^^ <>"»" ^^^d 1720, prefcntcd one Samuel LJU^ 
toBaw do6kor in divinity, his clerk, to the faid church of hiary U Bou\ 

chnrch with With thc churches of Saint Pancras Soper-lane^ and 4llhallou's 
churehe" ^^^ Hoiiey-lane, who, on the prefeiitation of his faid late majefty King 
who JaV George the firft, was admitted, inftituted and indufted therein, 
•dmittrd, &c, in the time of peace, in the reign of his faid late majefty ; and 
•fttrwa^r" ^^^^ ^^'^ ^'amM^/ Lfle being fo clerk of the faid church, he thc 
created biflipp f^*<l '^'^''>'*^' ^:/?- was afterwards rightfully and canonically created 
of Saint and confecrated bifhop of the biflioprick of Saint Afaph. and 

Whcre'u on ^^^^ ^^^^ church became vacant by the promotion of the faid 
Kiag'oi*o"a. ^^!^^^^ mi^' fo the faid biflioprick ; whereupon our late fovc- 
byhitprcro- rcign lord King ^tfr^tf the fpcond, by virtue of his royal pre- 
j6ch'Ap*S ^^S^^^^'c annexed to his crown of Great Britain, became i niitled to 
1744. pre- prefent a fit perfon to thc church aforefaid, fo vacant ; whcreupoa 
rented Doctor OUT faid late king, by reafon of his royal prerogative aforefaid, on 
NcwTon in n *^'^ ^^^' oi April in the ye^r of our Lord 1744, prefented one 
rike manner, Thomas Newton, doaor in divinity, his clerk, to tho faid church of 
who wif ad. Saint Mary U Bow, v/ith the churches oH Saint Pancras SoperJane, 
iwitcd, &c. and AUhallows Honey4ane, who, on the prefentation of his faid 
late Majeay, was admiued, inftituted and indudgd therein in thc 
That after- timc ot peace, inthetin^e of our faid late King; and after- 
Thureh bel ^' ^^^ ^^*^ church became vacant, by the free refignaiion of 

SrolL'lSff.^i S!;^l* refignatlon of Dodor Newton, and i. yet ^did ; by reafon whereof it belooft t» 
^e plaiauff. m cbfu t«ni, bciDf tht tbird, to ^lefent • fit perfon, but the dc(tnd«itt hinder them. 



Tjhnity Term 11 Geo. III. 1771. ^17 

the {aid -Tkcmas Newton^ and yet is void, by reafon whereof it 
belongs to the faid wardens and commonaliy in their turn, being 
the third turn, to prefent a fit perlon to the faid church fo void; 
yet the faid arckmjkop and William unjuftly hinder them from 
prefenting a fit perfon to the faid church; whereupon the faid 
wardens and commonalty fay that they are injured and have fuf- 
tained damage to the value of 200/. and therefore they bring 
fuit, 6?f • 

And the faid archbijkop and IVilliam Backhoafe^ by John Ver^ The arch. 
non their attorney, come and defend the wrong and injury when, ^jjf^*""*** 
Qc. and the faid archhijhop faith, that the faid waraens and^ ^' 
commonalty ought not to have their faid a£^ion againft him ; 
becaufe he fays, that the declaration aforefaid, and the matters 
therein contained, are infufficient in law to enable the faid war^ 
dens and commonalty to have or maintain their faid a£lion ; to 
which faid declaration, in manner and fdrm as the fame is above 
made, he the faid archhijhop is under no neceflity, nor is he in any 
manner bound by the law of the land to anfwer ; and this he is 
ready to verify: wherefore, for want of a fufficient declaration in 
this behalf, the faid archhijhop prays judgment, and that the faid 
wardens and commonalty may be barred from having their faid 
a&ion againft him. And the faid William Backhoufe fays, that he Theodicrde. 
is parfon of the faid church, imparfoned in the fame on the pre- £j,ft"*,fi*J'' 
fentation of the {md archhifliop^ and that the faid wardens and i\i^t]ilu^^^ 
commonalty ought not to have or maintain their faid a6tion againft fooofthe f^a 
him ; becaufe he fays, that true it is, that the faid wardens ^«^ *^"f?„**^f|^'** 
commonalty were feifed of the advowfon of the church of jIII- Jf*tj,e «rcb^ 
hallows Honey 'lane, and prcfented thereto the faid Thomas Hut* bl/hop, thtc 
chin/on^ as in the faid declaration mentioned ; and that the then J[^'^|""**** 
archhijhop o{ Canterbury was feifed of the advowfon of the church have d2i** 
of Saint Mary le Bow, and collated the fame church on the faid aaioa. ^ 
George Smallwood, as in the faid declaration mentioned ; and alfo ^^**"*^ 
that the fame archbifliop was feifed of the advowfon of the church \^^of^l^ 
oi Saint Pancras Super 4ane, and collated the fame church on bailowiHo- 
the faid Samuel Dillingham^ as in the faid declaration mentioned ; ney-tme.and 
and that the faid thre^ churches were deftroycd by fire ; and that Satchinfooi 
by the faid a£i of parliament it was ena3ed in fuch manner and thatihearcb- 
form as in the faid declaration is alledged; and that thereupon J*.^?*!^ 
the faid archhijhop, and the faid wardens and commonalty, be- JJJ^hl iii7 
came feifed of the faid advowfon of the faid church ol Saint cfj^tti 
Mary le Bow, with the churches of Saint Pancras SoperJane, \'"*'V*'*^'. 
and Allhallows Honey-lane, and were intitlcd to prefent thereto \\^l^ \^ 
in fuch manner and form as in the faid declaration men- feifed of Su 

Pancrat So- 
per-lane, and collated Dillinghani) that the three charchea were bamt; and that by ihitute ic was 
ena^edas In the declaration ; and that thereupon the archbifliop and plaintiffs became feifed and in- 
titled to prefenti aa iu the dedanuioa i and that Bovr church became ? acant by the death of Sinall<» 

tioncd ; 



218 



TawiTY Tkkm 11 Geo. III. 1771- 



tioned ; and that the faid church of Saini Mary U B<m became 
vacaint by the death of the faid G€org€ SmaUuiood^ as in the iJud 
declaration is alledged: but the faid William BackkQufit further 
fays« that at the time of making the faid a3 of parliament, the 
endowment of the faid church of Saint Mary U Bow was of 
greater yearly value than the endowment of the faid church of 
Mkalbws Honey Jane^ or of the faid church of Saini Pancras 
Sopcr-lane ; and that the endowments of the faid church of ^L 
hallows Honey-lane then was of greater yearly value than the faid 
church of Saint Pancras Sober -lane: (that is to fay) th<^ endow* 
ment of the faid church oi Saint Mary U Bow then was of the 
wMo?gmter yearly value of qo/. i2J. 3</. halfpenny, the endowment of the 
vaiae than laid church of Allkallows Honey Xme then was of the yearly value 



wood, at in 

thedcclan- 
tisa. fiat he 
further £iy^ 
Chat Bow * 

cborcb waa 
of greater va- 
lue than ei- 
ther of the 
other two 
churchei { 
and that the 
church of 
AUhaUowi 
Honey-lane 



St. Pancras 
Soper-lane ; 
that ia to fay. 
Bow church 
33I. til. 3d. 
halfpenny) 
Alihallowi 
J9L 3t. 9d. 
St. PancrJi 
J3I.6S. 8d. 
and no more 
f€r axKUM 
refp:€t'ivcly. 
By reaf^n 
whereof the 



of ^9^* 3J« 9^« and no more ; and the endowment of the faid 
church of Saint Pancras Soper-lane then was of the yearly value 
of 13/. 6s, 8d, and no more; (to wit) at London aforefaid, in the 
parilh of Saint Mary le Baw^ in the ward of Cheap ; by reafon 
whereof, and according to the form and efie£l of the faid a& of 

Earliament, the faid archbijliop oi Canterbury for the time being 
ecame and was intitled to prefent to the faid church of Saint 
Mary le Bow in the^rft tum^ the faid wardens and commonalty in 
ihejecond turn^ and the archbijhop oi Canterbury for the time being 
in the third turn^ when and as the fame church (hould become 
««*w. w.^ vacant : and the faid William Backkoufe further fays, that true it 
ardbblAopfor is, that the faid William Saner oft^ then archbijhop oi Canierlmr)^ 
th: time be- on the faid vacancy by the death of the faid George Smallwood^ did 
in his turn, being the firft turn, in right of his faid archbijhoprick^ 
collate the faid church, fo being vacant, on the faid Timothy PuU 
ler his clerk, and did place and indu£l him into the corporeal 

f>ofle{Iicn of the fame, as in the faid declaration is above al- 
edged; and that the fame church afterwards again became vacant 
6y the deatix <xi the faid Timothy Puller: but the faid Wilham 
archbiihop in ^^^^^^Hfi ^^y^\ ^^t thereupon, and according to the form and 
the third turn, cffeft of the faid aft of parliament, it belonged to the faid war^ 
Thattnieit dens and commonolty to prefent to the fame church fo being va- 

WA^P Sm-^" ^*°^ ^" '^^^'^ '"^".' '*^*"8 '^*^ fecond turn, and the fame vacancy 

croft, on the *^^" ^^^^ ^^^ being the fecond vacancy of the fame church after 

death of the making of the laid aft of parliament; but that the faid John 

dwfil wTficft ^''^^^y^''' ^*\en archbijhop, havmg no lawful title to collate the 

turn collate fame church in that turn, but ufurping upon the faid wardens 

Pulierj and and commonolty, did collate the fame church, fo being vacant, 

chur!h be. P^^^?'^ .•Saw«^/ Bradford, and did then and there place and 

came vacant »»«"" him iuto the Corporeal poffcflion of the fame church, in 

by (he death 

of Poller i but that thereupon, according to the faW fhtute, it belonfcd to pUintiffi to prtfent In thc-r 

(ccoad turn \ bat that Archbiihop Tillotfon coUatcd Bradfordj by ujurpadoa. 

the 



ing, became^ 
intided to 
prefent to 
Bow church 
in the firft 
turn, the 
plaintjfts in 
the fecond 
turn, and the 



Tbinity Tbrm 11 Geo. HI. 1771. aiQ 

the time of peace, in the time of our fatd late Sovereigns King 
fVilUam and Queen Mary \ and the faid Samud Bradford io being That Bnd. 
in ^he faid church as aforeiaid, he the (aid Samud Bradford was ^f^"** *■ 
afterwards rightfully^ and canonically created and confecrated church, wn 
bijhop of the bifhoprick of Rochefter; and the faid church be- created Vi. 
came vacant by the promotion of the faid Samud Bradford to ^^f?^^^ 
the faid biflioprick of Rochefter^ whereby his faid late majefty ^^^^^^* 
King George the Firft, by reafon of his royal prerogative, an- 
nexed to the crown of Great Britain^ became intltled to prefent 
a fit perfon to the fame church fo vacant ; and thereupon nis faid And King 
majeily, by reafon of his royal prerogative aforefaid, on the faid ^^7*^1*: 
loth day of Tw/y, in tKe faid year of our Lord 1720, prefented Jyao^hy^hu 
one Samuel tifk^ do£lor in divinity, his clerk, to the faid church prerosaure, 
of Saint Mary U Bow^ with the churches of Saini Pancras C*^'^- 
Soper-lane^ and AUhallows Honey -lane; who, on the prefentation whowataZ* 
of^his faid late majefty King George the Firft, was admitted, in* mitted, ftc. 
flituted and indu£ted therein, in the time of peace, in the reign ^"^ H^^ 
of his late majefty ; and the faid Samuel Jb/le, being fo clerk of the fo cK?rk 3^ 
faid church, he the faid Samud Lijle was aiterwards rightfully and (aid church, 
canonically created and confecrated hijkop of the bilhoprick of V« "eatcd 
SaiiU Afaph: and the faid church became vacant by the promo* AftpE. ** 
tion of the faid 5amW £^ to the faid biflioprick, whereupon And Kiog 
our late fovereign lord King George the Second, by virtue ot his Oeorje id. 
xoy2\ prerogative annexed to his crown of Great Britain^ became ^J^jjJ* J^^^ 
intitled to prefent a fit perfon to the faid church fo vacant ; of April 
whereupon our faid late '" 
aforefaid, on the 16th ~ 
prefented one Thomas . 

faid church of Saint Mary le Bow, with the churches of Saint &c. 
Pancras Soper-lane, and Allhallows Honey ^lane ; who, on the 
prefentation of his faid late majeily, was admitted, inllituted 
and induced therein, in the time of peace, in the time of our 
faid late lord the King ; and afterwards the fame church became and after. 
vacant bv the free refignation of the faid Thomas Nexvton, by ^^'*** ^*** 
reafon whereof it then belonged to the faid prefent archbijhop in ^a^'e vacaiit 
his turn, being the third turn, to collate the fame church on a by thexcfig. 
fit perfon ; and that thereupon the faid prefent archbijhop col- ^J^" ^ 
latcd the fame church, fo being vacant, on him the faid IvUliam to^^byVcI^ 
Backhoufe, his clerk, and did then and there place and induQhim fon whereof 
into the corporeal pofleflion of the fame church, in the time of »t belonged to 
pc'2ce, in the time of our lord the now King, before the ilfuing i^iS'jio^^,^ 
of the faid writ of the faid wardens and commonalty ; and the prefcnc io hia 
faid William^ b^ reafon thereof, from thenceforth hitherto third turn, 
• hath been, and llill is, parfon of the fame church imparfoned in ^,^^„ i^^ 

coUated the 
defendant Backoufe, before the iflrniogofthe writ of the plaintiffg; by reaioQ whereof fiKkhooic U 
dUl parfon Imparfoned of the church } and thii, See. wherefbrt| &c. 

X the 




a20 Trinity Tebm 11 Geo. III. 1771 

the fame on the collation of the faid archlnjhop ; and this the 
faid WtlHam Backhouft is ready to verify : wherefore he prays 
judgment if the faid wardens and commonalty ought to have their 
aforefaid a£lion againil him, &c. 

W. Jtphjon. 

Plaiotifft join And the faid wardens and commonalty fay, that the faid dc- 

'" 1'*?*"*' claration, and the matters therein contained, arc fuflBcient in 

wchbirboDy '21^ f^'^ them, the faid wardens and commonalty^ to have and 

and pray maintain their aforefaid aftion againft the {2a^* archbijhop ; wliich 

judgment ind f^jj matters the faid wardens and commonalty zrc rcaLdy to vt- 

ar^bi^ip.^^ rify; and fince the faid archbijhop hath not given any anfwcr 

thereto, the faid wardens flwrffoOT»ie?mz//y pray judgment, and a 

writ to the faid archbijhop^ for that the (aid archbijhop b 

named in the original writ of the faid wardens and com- 

monalty. 

The plain- And as to the faid plea of the faid William Backhoufe^ by him 
*r*' V?Ik* above pleaded, the faid wardens and commonalty fay, thatthe\> 
W °, fay, ' '^y reafon of any thing in that plea alledged, ought not to tc 
they ought preclu3ed from having their aforefaid a£lion againil the faid W\U 
"•'^^ liam, becaufe protefting that the endowment of the faid church 
taufe^proui- of Allhallows Money-lane, was not, at the time of making of the 
ing, that faid aft of parliament, of greater value than the faid church of 
Alihtliowrs Saint Pancras SoperJane: protefting alfo, that the faid John 
^°notl*at* TiUotfon, archbifhop of Canterbury, in the faid plea naentioneJ, 
the time of did not ufurp upon the faid wardens and commonalty^ in manner 
making faid and form as the faid William Backhoufe hath above in that plea 
rMter Ydne ^i^'cdged ; for a replication in this behalf, the faid wardens and 
than St. Pan- commonolty fay, that the faid church became vacant by the free 
craiiproteft- refignation of the faid Thomas Newton, and yet is void; by rea- 
Afchbiflio*" ^^^ whereof it belongs to the faid wardens and commonalty in 
Tilkxfon £d their turn, being the third turn, to prefent a fit perfon to the 
not ufurp faid church fo void ; yet the faid archbifliop and William un- 
pUiUiiffr. J^'^'y hinder them from prefenting a fit perfon to the faid 
For repiicati- church, as the faid wardens and commonalty have above in their 
on, the plain- faid declaration alledged; zmthout this, that it belonged to the 
tht'chureh"* *^^^ wardens and commonalty to prefent to the faid church at the 
became va- fccond turn, when the fame became vacant by the death of the 
cant by the fafd Timothy Puller, in manner and form as the faid Wto 
D^w^N^w! ^"^^^^^"/^ hath above in that plea alledged; and this they arc 
ton, and it * ready to verify: wherefore they pray judgment and a writ to tlje 
belongs to faid archbifhop, together with their damages •by reafon of the 
^ref-**?i '^ faid impediment, to be adjudged to them, &c. 
fheirdrd J.Burlanl 

turn, yet the 

archbiHiop and defendant hinder them. Without this, that it belonged to plaintiffs to prefent it the 
fecood turn when the church became vKant by the death of PuUeri at Backbcufe hu alledged ia 
his plea. 

And 



Tkinity Tbrm 1 1 Geo. III. 1771. aai 

And the faid Jf^illiam Backhoufe faith, that the faid plea of the The dffai- 
faid wardens and commonalty y by them above in reply pleaded ?*°l'*i**^" 
to the faid plea of the faid TVilham Backhou/iy and the matters ^^ ^^ ^^^ 
therein contained, are not fufiicient in law tor the faid wardens catioa» 
and commonalty to have or maintain their faid a£lion againft 
him ; to which faid replication, in the manner and form as the 
fame is above made, he the faid WtUiam Backhoufe is under no 
neceffity,^ nor is he in any manner bound by the law of the land 
to anfwer; and this he is ready to verify : wherefore, for want 
of a fufficient replication in this behalf, the faid William Back^ 
^^Uy^ prays judgment, an4 that the {uA wardens dnd commonalty 
may be barred from having and maintaining their faid a£lion 
againft him, G?f. And for caufes of this demurrer in law, the and Aewifor 
faid William Backkovfcy according to the form of the ftatute in [j^^j'J*^"]*?^ 
fuch cafe made and provided, (hews to the court here thefe tiffs have not" 
caufes following ; (to wit) for that the faid wardens and com* cravrrred anjr 
monalty have not travcrfed, or attempted to put in iflue any "u^*^?^^** 
matter of faft alledged bv the (aid William Backhoufe in his faid ii,e plea |*b«t 
plea ; but have traveriea, and attempted to put in iifue a matter have traTerfcA 
of law, to be tried by a jury ; and for that the faid replication w»t««fWU«. 
is in other refpeSs infufficient and informal, £?c. 

W. Jephfon. 

And the faid wardens and commonalty fay, that the faid plea Joinder in 
by them above in reply pleaded to the laid plea of the faid tViL ^«ro»f«« 
bam Backhoufe^ and the matters therein contained, are fuificicnt 
m law for them the faid wardens and commonalty to have and 
maintain their faid aftion againft him ; which faid matters the 
faid wardens and commonalty are ready to verify : and fince the 
faid William Backhoufe hath not given any anlwer thereto, the 
faid wardens and commonalty , as before, pray judgment and a 
writ to the faid archbilhop, together with their damages, to be 
adjudged to them, ©c. 

J. Burland. 

The Warden and Commonalty of the Myftery of [See ante pi. 
Grocers, of the City of London, verfus the Arch- *'*^ 
bifhop of Canterbury, and William Backhoufe, 
Clerk. In quare impedit. C. B. 

^HIS cafe was twice well argued at the bar; the firft lime, [Wherein 
* by Serjeant Jephfon for the defendants, and Serjeant "^'^^JJjJ^^* 
Leigh for the plaintiffs, in ILlary term laft; the fecond time, folhatthc"' 
by Serjeant Forfler for the defendants, and Serjeant Burlund for parrom are to 
the plaintiffs, in Eajler term laft. ^'^'''^ *»y 

* ' •' ^ turos, apre» 

fentation of the Crown doth not pafi fat the turn of the •therwlfe rightful patron. See CailUtid n 
Trmtrdf % H, Black. -Rr/. 324: 6 Ttrm Rtp, 439 J 778.} 



222 Tkinity Tejrm 11 Geo. III. 1771. 

The tide of To fliew the plaintiiFs title to prefcnt a fit pcrfon to the church 
f'**^*^"^* ^^ Saint Mary le Bow, as in their third turn; the declaration 
deciandra, * allcdffcs, that they were feifed of the advowfon of tlie church 
Ihonly'ftattd. oi jmhoUoios Honey 4ane, and in the year 1663 prefented Thomas 
Hutchinfon, who was thereunto admitted, &c. That the Arch- 
bifliop of Canterbury was feifed of the advowfon of the church 
of Saint Mary U Bow, in right of his archbiflioprick, and that 
Archbifhop Juxon, in the year 1662, collated the fame on G^^^ 
SmaUwood; and that the lame archbifhop was feifed of the ad- 
vowfon of the church of Saint Pancras Soper4ane, in right of his 
archbifhopricky and in the year 1662 collated the fame on Samud 
Dilbn^ham. And the plaintiffs and the archbiihop being fo re- 
fpeQively feifed of the advowfons of thofe churches, and the 
fame being fo refpeSively full as aforefaid, were all burnt down 
and deltroyed by fire; and thereupon by an aft of parliament 
made in the twenty-fccond year of King Charles the fecond, in- 
tituled an additional aft for rebuilding of the city of London, 
uniting of pariflies, and rebuilding ot the cathedral and paro- 
chial churches within the faid city, it was (among other things) 
enaded, that the pariihes of Saint Mary le Bow, Saint Pancras 
Soper4ane, and AUkallows HoneyJane, fhould be united into 
one parijk, and the church theretofore belonging to the parilh ol 
Saint Mary le Bow, (hould be the parijh church of the uarilhes 
fo united ; and it was thereby provided, that, notwith(tanding 
fuch union, each of the pariihes fo united, as to all rates, pa- 
rochial rights, charges and duties, and all other privileges, li- 
berties and refpefts whatfoever, other than what were therein- 
before mentioned and fpecified, fhould continue and remain 
diftinfl, and as theretofore they were before the making of that 
aft ; and that thejeveral and refpeQive patrons of the churches fo 
united, fhould and might prefent by turns to that church oruy^ 
which by that aB was appointed to be rebuilded and ejlablijhed, for 
the panjh church of the parijhes fo united; the firfl prefentation 
to DC made by the patron of fuch of the faid churches, the 
endowments whereof were of the greaeejl yearly value. By virtue 
of which aft, the archbifhop ol Canterbury, m right of^his 
archbifhoprick, and the faid wardens and commonalty, becane 
feifed of the advowfon of the church of Saint Mary le Bow. 
with the churches of Saint Pancras Soperdane, and AUhaUows 
Honey-lane, as of one in grofs by itfelf, zs of fee and right, and 
were intitled to prefent to the church of Saint Mary le Bow, in 
turns as aforefaid. And the plaintifFiS further fay, that after the 
making of the faid aft, the church of Saint Mary le Bow be- 
came vacant, by the death of tlje faid George SmaUwood, by reafoa 
whereof archbifhop Saner oft, on the 23d of September 1679, as 
in his firfl turn,^ in right of his archbifhoprick, colliated the faid 

church 



^ 



Trinity Term 11 Geo. III. 1771. 443 

church on one Timothy Puller. And the plaintiffs further fav, 
that the faid church became vacant by the death of Timothy 
PutUr% whereupon archbifiiop Tillotjon on the 2iil of November 
1693, as in his fecond turn, in right of his archbifhoprick, col- 
lated the church on one Samuel Bradford^ who being in pofleflion 
thereof, was created bilhop of Rochejler^ whereby King George the 
Firft, by his prerogative on the loth of July 1720, prefented one 
Do&or Samuel hjle to Bow churchy with the other two churches, 
who was admitted ; and the faid Samuel hjle^ being fo clerk of 
the faid church was created bifhop of Saint Afaph^ whereupon 
King George the fecond, by his prerogative, on the 16th of 
Apm 1744. prefented one Doflor Thomas Newton in like man- 
ner, who was admitted, &c. that afterwards the church became 
vacant 'by the free refignation of Doftor Newton^ and is yet void ; 
by reafon whereof it belongs to the plaintiffs in their turn, 
being the third turn, to prefent a fit perfon to the faid church, 
yet the defendants hinder them from prefenting a fit'perfon to 
the laid church. 

The archbilhop demurs upon the declaration generally* and Archbi&op 
the plaintifis join in demurrer. ^ icmon. 

The other defendant, JVilUam Backhouje, pleads in bar, and The plea df 
fays, that he is parfon of the faid church, imparfoned on the ?Y^^*b^ 
prefentation of the archbifliop; he admits that the plaintiffs houfe°ftite*^ 
were feifed of AllhaUows Honey ^Uru^ and prefented Hutchinfom ihortiy. 
that the archbifhop was feifed of Bow church, and collated SmalU 
wood; that the archbifliop was feifed of Saint Pancras Soper^ 
lane, and collated Dillingham: ai\d that the three churches were 
deftroyed bv fire ; and that by the faid a£l of parliament it was 
enabled in (uch manner and form as in the declaration is alledged ; 
and that thereupon the archbifliop and the faid wardens and com- 
monalty became feifed of the advowfon of Bow church, with the 
other two churches, and were intitled to prefent thereto in fuch 
manner and form as in the declaration mentioned. But the faid 
JViUiam Backhouje further fays, that at the time of making the 
faid aft, the endowment of Bow-church was of greater yearly 
value than that of AllhaUows Iloney-^lane, or of Saint Pancras 
Soptr-lane; and that the endowment of AllhaUows Honey*lane 
then was of j[reater yearly value than that of Saint Pancras Soper* 
lane; (that is to fay) the endowment of Bow-church then was 
of the yearly value of 33/. i2j. 3^/. halfpenny; that oi AllhaU 
lows then was of the yearly valu? of 19/. 35. 9^. and no more ; 
and that of Saint Pancras then was of the yearly value of 
1,3/. 6s. id. and no more ; by reafon whereof, and according to 
the faid aft of parliament, the archbifliop for the time being 
became intitled to prefent to Bow-church in the firft turn, the. 

plaintiffs 



224 TkinityTerm 11 Geo. III. 1771- 

plalntiSs io the fecond turn, arid the archbiOiop in the thirj 
turn. The defendant Backkoufc further fays, that true it is, 
that archbifhop Saner oft ^ on the death of SmaUwood^ did in his 
firft turn collate Puller; and that the church became vacant by 
the death of Puller; but he fays, that thereupon, and according 
to the faid a£l of parliament, it belonged to the plaintiflfs to pre- 
fent in their fecond turn ; but that archbifhop rillotfon collated 
Bra^ord by ufurpation, and Bradford fo being in the faid 
church was created bifiiop of Rochefter^ and King George the Firfl, 
on the tenth of July 1720, by his prerogative prefented Dofior 
IJfley who was admitted ; ana being fo clerk 01 the faid church, 
was created bifhop of Saint Afaph^ whereupon King George the 
Second, by his prerogative, on the 16th 01 April 1744 prefented 
Do£lor Newton^ who was admitted, &c. And afterwards the 
church became vacant by the relignation of DoSor Newton^ by 
reafon whereof it belonged to the prefent archbifhop to prefeiU 
in his third turn, and that thereupon he collated the deiendaot 
Backhoufe^ before the ifTuing of the writ of the plaintiffs, by 
reafon \f\itxtol Backhoufe is KiXiparfon imparf oned oixhs church; 
and this, Uc. wherefore, &c. 

The pUintiffs Tlie plaintiffs reply, they ought not to be barred from having 

replication to their aftion againfl jBflciA^i^; becaufe^r^^/g^'n^, that the endow. 

Ac defcndMt ™^^^ ^^ ^^^ church of Allhollows Honey^lane^ was not, at the time 

Backhoufe of making the faid a6l, of greater value than the church of Saint 

ftortiy lltted. Pancras Soper-lane; protefling alfo, that archbifhop Tillotfon did 

not ufurp upon the laid wardens and commonalty. ¥or repUa- 

tion the plamtifTs fay, that the church became vacant by the 

reflgnation of Doftor Newton , by reafon whereof it belongs to 

the plaintiffs to prefent in their third turn, yet the Archbifhop 

TraTerfe. ^md defendant Backhoufe hinder them ; without tAis^ that it 

belonged to the faid wardens and commonalty to prefent to the 

faid church at the fecond turn, wjien the lame became vacant 

by the death of Timothy Puller, as Backhoufe has alledged in bis 

plea; and this, 6?c. wherefore, G?c. 

Demurrer lo The defendant Backhoufe demurs to the replication ; and ffaews 
Uie replica- for fpecial caufes of demurrer, that the plaintiffs have not ira- 
^°* verfed, or attempted to put in ifTue, any matter/ of faft alledged 

in the plea; but have traverfed and attempted to put in iSiie 

matter of law to be tried by a jury. 

• In Hilary The plaintiffs join in demurrer. Upon tl|e firft argument*, 
term laii. the counfel for the defendants made feveral objeQions to the de- 
claration, and to the replication. 

Firft, 



•t&iNiTT Teem ll Geo. IlL 175^1. 225 

Ttrji^ To the declaration it was obieftcd, that the plaintiffi «* ^f^ 
claimed a right to the third tum\ but have not (hewn how they Jj^f^^ ^ 
arc intitled to the third turn; they ought to have allcdged in th6 
declaration the yearly value of the feveral and refpcSive churches 
at the time thev were deftroyed by fire; for the aft of parliament 
IS Clent as to the turns ^ except that it enafts the frft prefentation, 
to be made by the patron of Juch of the Jaid churches y the ehdoiO* 
nunts whereof were of the greateft yearly value. And it not ap- 
pearing by the declaration of wnat yearly values the churche^ 
were^ the' plaintiffs have not fhewn any title to the third turn^ 
which they claim. 

• To this it was anfwered by the counfel for the plaintiff, that Anfww totl»« 
although the declaration doth not exprefs in words the refpeClive ^^<»y«^** 
yearly values of the three churches at the time of their deftruc- 
tion^et it plainly appears upon the face of the declaration, by 
nectary intendment^ that the archbilhop's two churches of Soiirf 
Mary le Bow, and Saint Pancras Sofer^cane, were each of greater 
value than thofe of the church ot Allhallows Honey-lane; for it 
is allcdged therein, that after making the ad, the church of 
Saint Alary le Bow became vacant by the death of Smallwood^ by 
reafon whereof Archbifhop Sancroft, as in his firft tum^ collated 
the church on Ptf//fr; (hat the church became vacant by the 
death of Puller, whereupon archbifhop TiUotfon, as in his fecond 
turn, collated the church on Bradford; and it muft be intended 
that thefe two archbifhops bdth collated rightfully, and the 
court will not prefume tnat either of them collated by ufur- 
pation. 

Secondly, It was objefted by the counfel for the defendant, *^^^^^ 
that no feiCn of the advowfon to pre/ent by turns is fiated in the ^t^. 
declaration. . 

To this It was anfwered hy the counfel for the plaintiff, An(wef. 
that this declaration (as to this point) was grounded upon 
the a^ of parliament, whereupon the right of prefentatioa 
commences; and alledges, that the plaintiffs and the archbiihop 
were feifed of the advowfon, to prefent as the ftatutc has di- 
re£led;. and it is not like a declaration in the cafe of copar* 
ceners, or ageneral patronage of a church, wherein a feiGn to 
ifrefent muft be alled^ed in the declaration, a quare impedit be* 
in^ a poffeffory writ. And the plaintiffs have alfo ftated a 
feifm to pr^ent to AUhaUows Honey-lane^ before the fire of 
London. 

Thirdly, It was objefted by the counfel for the defendant, S<* ObjeaToa 
that fuppofing the plaintiffs are intiU^ t^ Uw? third tum^ yet it ^5^****^*" 
Vc4.III. Q appears 



226 TwNiTY Term 1 1 Geo. in. 1 77 1 • 

appears by the declaration that this is not the third turn: for it i5 
alledged, that after the making the a3 of parliament, Archbifliop 
Sancfoft^ in his firll tum^ collated Puller; that Archbilfaop 
Tillotjon^ in his fecond turri^ colhtcdBraJford; and tliat KingG€orge 
the Firft, by his prerogative, collated ^Z^, which is the third ium, 
and terminates the firfi rota; that KingGeorge 2. by his preroga- 
tive, collated Newton^ which is tlie firn ium; that Navtan having 
reGgned, this is the fecond turn in the fecond rata; fo that it does 
not belong to the plaintiffs to prefent at this turn^ they claiming 
only the third /i^rfi. And to (hew, that a prefentation by the King 
4 Mod. 202. by his prerogative, upon a promotion, was ztum^ was cited, Oi?. 
y^. 691. which was the cale of a grantee of the next avoidance; 
the incumbent being created a biihop, the King granted the 
church to have and retain the fame in commendam tor fix .years ; 
.and it was held the grantee had loft his prefentation to the next 
avoidance. 

Anfirer. To this it,wa$ anfwered, that it is now fettled, and held for 

good law in many modern cafes, that whenever the King by his 
prerogative promotes an incumbent of a church to a bifboprlck, 
thfe church, by fuch promotion, becomes void, and the King 
fhall prefent thereto by his prerogative? for it feems very juft, 
when the King by the exercifc of his prerogative hath nude 
a church void, that he ihould have a right to fill the vacanc}*; 
for it is but the changing one 11 fq for another, and probably the 
l^airon (notwiihftanding the change) may be as near to his pre- 
fentation, as he was before, aiid therefore fiich prerogative pre- 
fentation cannot at this day (however it may have been fuimer- 
)y) be confidcred as a turn. See 4 Mod. 210. uStra. 93b, 

* Fourthly, It was objefled by the counfel for the defen/lants, 
that tlie replication is ill, bccaufcit has traverfed a matter of 
law; .viz. '' without this, that it belonged to the faid wardens and 
** commonalty to prrfcnt to the faij church at the fecond turn^ 
•* when the fame became vacant by the death of Timothy PuHtr^ 
*' as the defendant Backhouje has aliedged in his plea, which is 
*^ a matter whereof a jury cannot judge." 

Anfvrer. '^^ ^^^ ^^ "^^^s anfwdred by the counfel for the plaintiff, that 

where matter of law and faft are fo blended and intermixed that 
they cannot Well be fcparated or divided, (as they are in the 
jirefent cafej they may be traverfed. ' 

Lord Chief Juftice De Grey — As this cafe is to be argued 
again, Khali give no opinion; but think the true ^ue (lion b, 
how the rights ftand upon the aft of parliament ? ^dly. How 
thofe rights are affefted .by the two prcfeutations by tne arch- 

bilhops, 



Obje£liofi to 
the replica- 
tion* 



TwNiW Tbb& a Gb6. III. 1771. av 

liifliQps, as in tbe firft and fecond turns? and ^y. How thcf 
are afifefled by the two prerogative prefeiitaions? 

GotUJ Jix^ice — I give no opinion at prcfentj but as the cafe 
ftrtkes me, it feems ej^traordinary that the allegations of the firft 
and fecond prefentations by the archbifhops, ftated in the de- 
claration, fhould not be fufficient to intitle the plaintiffs to this 
turn^ if the prerogative prefentations be not confidered as iurns^ 
and do not ftand in the way; which (as at prefent advifed) I 
think they are -not to be confidered as turns^- Sind if not to be 
confidered as turns, it feems to me that the defendant Baci^ 
koufs, in his plcaj ought 40 have traVerfed, " That Archbifhop 
•* TtUoiJon,, as in his fecond turriy in right of his archbifhoprick, 
*' collated the church on Samuel Bradford;'* but, as I faid before, 
. give no opinion, as this cafe is to be argued again* 

Blackftone Juftlce — ^It feems to me, ^hat feifixl of plaintifiii 
is well alledged in the declaration. 

Nares Juflicie — In Dier 228, laft note in the margin, there** . 
a cafe in point, that a prerogative prefentatiort does not go for 
zturn': 10 Jac. 1. that it cannot operate to the injury of a 
third per ion: iot con/lruQio aSius Ugis nuUi facit injuriam^ 
1 Inft. 148.* a. 183. a. b. a Jnjl. 287^ . 

, The cafe was, a fecond time, very ably argued by Serjeant The fecop* 
Forfter for the defendant, and Serjeant Burlaniiot the plaintiflfs; g^J^'^"^'* 

Serjeant Forfter — I fliall confider how the rights of the pa* For defend, 
trons ftand under the ftatute of 22 Car. a; and how the rights «»"* 
of the piaintifls areaffefled by the two collations of the arch- 
bilhops, and alfo how the rights of the patrons were aflfetled by 
the two prefentations of the -crown by prerogative, upon pro* 
motion of the incumbents to bifliopricks. 

The flatute of 22 Cdt. ^fiS. 68. mentioned in the dectarttioni 
whereupon the plaintiffs ground their title to prefent at, this ^ 

tum^ as in their third turtle has ordained that the patrons of 
the churches united Ihould and might prefent by turns to that 
church only which was hy^thdt a£l appointed to be rebuiided ind 
elUbUQied for the pariih church ot the three united pairifiies, 
(which was to be Saint Mary k Bow) the firil prefentation to be 
made by the patron of fuch of the faid thurches, the endow- 
ments whereot were of the greatcft yearly value j and therefore 
thef plaintiffs ought to have let fgrth in their declaration, the 
v^ue of the encfowments of each church, ajs^ is done iti the cafe 
of the Bijhop of London verfus The Mercers Company^ 2 Stran. 
9^S* touching the churches of Saint Mildred Pomtry, and Saint F?tsf>s. 

6 2 Mary ?53. 



228 TaiNXT Y Term J l -Geo. III. 177 1 . . 

Mary CoUchurch^ which were burnt down by the fire of Lonicut, 
and united by thea£l for rebuilding the city, 6?c. but the plain- 
tiffs, hot having allcdged the values of the refpefUve endow- 
ments of the three churches, in their declaration, at the time of 
• the aft, have not (hewn any title to preJerU in any certain 
fZTticuldi turnf^rftf/econdt or Mir^, ; therefore the declaration 
18 ill. . , . * 

To ^AmSw that the plaintiffs have no title to .prefcnt in the 
third turn; the- defendant BacAhou/i, in his plea, has alle(l;«ed 
the refpeftive values of the yearly endowments of the three 
churches, at the time of the aft of parliament, and has averred, 
that tho/i of Bow-churck belonging to the archbifhop, and All- 
hallaws belonging to the plaintiffs, were refpeftively of greater 
yearly value than thofe of Saint Pancras belonging to the arch- 
bifhop, which fhews the iurns^ at zvhick the patrons were 10 
prtfent according to the fiatute, viz* the archbi(hp]p at the firS 
tum^ the plaintiffs at the fecond /urn, and the archbifhop at the 
third turn: thefe values being averred by the plea, and not in 
any manner denied or traverfed by the plaintifTs in their re- 
plication, muft be taken to be true in faft by the court ; fo tlar, 
according to the aft of parliament, the plaintiff are not in- 
titled to prefent at the third turn which they claim by their de- 
claration, and therefore the declaration-is ill. 

The plaintiffs have not fiated any certain 7^/^ of prefentation 
in the declaration or replication; if they- had, the defendants 
might have traverfed it, or the plaintiffs might have traverfed 
the value of the endowments allcdged in the plea of the defend- 
ant Batihoufc^ either of which traverfes would have been ma- 
terial, and would have made a perfeft iffue between the parties 
which would have put an end to the queilion, who is inUtkdto 
fire/int at the third turn ? 

There are two material fafls alledged in the plea,, either of 
which, if plaintiffs had traverfed, would have made an end of 
tfaequeflion, viz, it is alledged therein, that the church of AUkd^ 
lows Homy-lane^ at tiie time of the making the aft of parliament, 
was of greater value than the church of Saint Pancras SoperJa/if, 
and that Archbifhop 71//^^^ ufurped upon the plaintiffs ; but 
inflead oFtraverfing- either of thofe fafts, the plainti&is have 
laid them out of the queftipn,. by taking them by way of pro- 
teftation, and have traverfed a matter of law collefted froiR 
fafts, which is ill; and the court and jury cannot alter* or over- 
turn the rota efiabtifhsd by the a& of parliament. 



Trinity Tbrm 11 Geo. III. 1771. Mg 

It was faid by Mr. Jnftice Gould^ upon the iaft argument, that 
it feemed to him, as then advifed, that the defendant Backhouji^ 
in his plea, ought to have traverfed.that Archbiihop TiV/^^^i^ti, 
as in his fecond /irm in right of his archbifhoprick, collateatbe 
church on Samuel Bradford; but with great deference to the 
learned judee, I fubmit it to the court, that the defendant could 
not traverie the arcbbifhop's collation in right of his arch- 
biihoprick, becaufe there is no certain pofitive averment in the 
declaration, that Archbifhop Tillotfon Vfzsjafed'oi the Jecond 
turn in right of his archbiihoprick, and fo collated; he might 
have collated at ^he fee ond turn by lapfe (for any thing appear- » 

irig to the contrary) in right of his archbiihoprick; the plaintiff 
ought to have averred, that by virtue of the aft of parhatnent, 
Archbifliop TiUolfon was feiled of iht fecond tum^ and fo pre- 
fcnted in nisjicond turn; but not having fo done, the allega- 
tion is uncertain in what right he collated the church on Brad^ 
ford, therefore we could not traverfc it. See Vaygh. 57, 2 Stra. 
1007. ^' N.B. 33. H, I humbly infift, the declaration is ill; 
The prerogative prefentations fhall go for turns, fo this is not 
x\\^ third turn. Me prayed judgment for defendants. But fee 
Filzgibb. 253. Dier 228. in the margin: Cro, Joe. 391. 4 Mod, 

?02, 

Serjeant Burland for the plaintiffs — It is objeftcd by the de- ad Argument 
fendaiits, that no title to the third turn is ftated by the decia- forpUintiftf. 
ration, s^/y. That plaintiffs in their replication have travel fed 
matter of law- ^dly. That the prerogative prcfeutaticms go for 
iums^ and fo this is not the third turn. 

I fhall apply myf elf fivH to the traverfe. The principal point in Anfwcrtothe 
donfroverfy is, whether this is the plaintiffs' turn? they infill it is oye^>o«t« 
the third turn, and that it belongs to them. It is not a concl'ufion ^ * "*^*' * ^ 
of law that we have traverfcd,. but the averment in the plea, in 
point of faft, which we have traverfcd, viz. *• Without this that it 
•* belonged to the unirdens and commonalty, to prefent to the church ^ 

•• at the fecond turn, when the fame became vacant by the death of \ , . 
" Timothy 'Puller, as the defendant Backhoufe has cdlidved in hts 
** plea." It ^s in the option of the plaintitfs to traverie any faft- • • 
in the plea, which will put an end to the corttroverfy between 
the parties, arid they are not bound to 'tfaverfe the value of the 
livings, br the fuppofed ufurpation'by Afthbifhop Tilhtfan; the 
value of the livings are only evidence of the turns; ifnight not 
the company have waved their fecond bed turn, (if it* was . 
theirs) and by agreement with the archbifhop have taken the 
third turn? This is the only cafe by the afts of parliaiuent 
for re-building the city and churches, £?c. after ll^ fire oVLon- 
don^ where tHrce livings ^\rere united ; and fo it docs nm ne^- 

Q3 c^ffarify 



236 TjttiNiTY Term 11 Gjso. III. I7f 1. 

Cfffarxly follow, that when the patron of the beft living Dfefems . 
to i\\t frjl turn^ that the patron of the next beft, fhall prefcrit 
%. lit. )S6« tQ i\\^ ftcond turn, Suppofe A. B. and C are coparceners of ^ 
*• living, and they cannot agree to prcfcnt ; the eldeft ihali prefc^ii, 

and if her Tifters or either of them di(lurb her, (he (hall liave a[ 
^uare impedit; but fuppofe, after the eldeft has prefentcd, the 
church becomes void, it does not nece(rarily follow" that B, 
bccaufelhc is the fecond fifter, (hall prefent in th^ fecond turn ^ 
and a traverfe that R, was the fecond fifter, would be nugatory^ 
and not determine the turn; becaufe the tliree fitters might 
have agreed to prefent in difierent manner than in the order of 
Seniority. If we had traverfed the values of the livings, allcdged 
in the plea at the time of the a6l of parliament, the King*s bodies, 
in the time of H^inry 8. could not have determ-ineithac matter at 
thirdiftance of time. But acquiefcence, ever (incc the aft of 
parliament, has fettle 1 the rotdy and is evidence of the refpcc- 
t^ve values at the time of making the a£l, 

AnArer to The defendant Backhou/i in his plea has admitted, that by the 

Ae okjcaian, g^ ^f parliament, the archblfhop, and the warden and common-. 
•'t /^ fr^r * ^^^V became fcifed of the advowfon of the church of Saint Mary 
U BaWy and the other two churches, and were intitled to pre* 
fent thereto in fuch manner and form as in the declaration is 
mentioned; tliis, with great deference to the court, is an ex- 
prefs admiflion of the turns as we have ftated them in the de- 
claration: we have ftated, that the archbifliop has the firji and 
Jtfond turns^ and has prefented to the fame, fo it follows that 
the plaintifis are intitled to this third turn; by this admiflion^ 
the defendant Backkouji has admitted the whole declaration to 
he true; and his denying any part thereof afterwards in his p!ea» 
is abfurd, contradi^ory to what be has before admitted, and 
goes for nothings 

AnIWrr to Jt is laftly objefted, that the two prerogative prefentations 

m^^^T **" fP ^^^ ^^'^^' ?^^ therefore this is not the third turn g 
"^fe prefcn. and in fupport of this point, was cited Cro, Jac. 691. which 
was «he cafe of a grantee of the next avoidance; the incumbent 
being created a bi(hop, the King granted the church to have and 
retain the fame in commendam for fix years ; and it was held, the 
grantee had loft his prefentation to the next avoidance. This 
eafe, I am bold to la'v, is liot law : a commendam retinero is not 
like a prefentation, it is to prevent the living becoming void by 
die incumbent's promotion; it is a difpenfation, and comes be-^ 
fore the creating nim a bifhop; it is a faculty of retention of the 
living in the fame ftate as he had it before by his former prefen- 
tation thereto. Vaugh. a^. Sir IV. Tfones 159. Show* Pari. 
Ca/is 184. And fee 4 Moa. 2ia# Hao^i^^. Dier 828, 233*^ 

= « margin;^ 



Tritity Term 11 Geo. III. 1771. 231 

rhirgin, A prerogative prefentation does not ftand in the turn 
of the patron » becaufe it is by a6l of law, which (hall hurt no 
man. And therefore this is the plaintiffs' tJfirJ turn. 

Serjeant Forjltr^ in reply — I humbly infift, the traverfe is of 
a matter of law, and that the values of the livinj^ ought to ap- 
pear on the record. It*s objcfted there might be fome agreement 
to prel'ent in a different manner than the ftatute enafiis; but if . 
there was any fuch agreement, it ought to be ftated upon the re- 
cord, out of which the court cannot go. 

The court took time to confider until this term; when the 
Lord Chief Juftice, after having dated the pleadings as above, 
delivered the opinion of the whole court for the plaintiffs. 

Lord Chief Juftice Be, Grey. The archbifliop haus demurred 
to the count only; inflfting that the plaintiffs hjjve not therein 
(hewn any title, and therefore cannot have judgment.. Three 
obje&ions to the count have been taken by my brptfae^s at the 
bar, who argued for the defendants. 

1. That It is not alledged therein, that the plaintiff^ were iftObjeaign. 
feifcd of the advowfon to prefem as in their third turn. 

fi. That the rota or order of the turns of prefentation depeqd* *<* Ob;edi9n. 
ing upon the yearly value of the endowments of the three 
churches refpeftively, at the time of the making the ftatute of 
ft2 Car, 2. thofe refpeftive values of. the ,churches ought to have 
beenftated^ but the fame not being ftated, the plaintiffs have 
not (hewn any title to the tidrd turn, which they claim. 

3. That fuppofing the plaintiffs are intitlcd to the third (urn ^ z^Ohitahn. 
yet the defendants fay,* it appears by the count that this is not 
the third turn; for the two prerogative prefentations (hall go for 
turns^ To that this is the Jicond turn in the fecond rota. 

In anfwer to the firft objeftion, we are all of opinion, that it Anf«rer to 
is well and fufficiently alledged in the. count, that the plaintifls ^J^j^n!**** 
were feifed of the advowfon, to prefcnt as in their third turn ; ^ 
for it is alledged, that (before the deftruftion of the three 
churches by nre) they were feifcd of the advowfon of the 
church oiAUhaHows Honey-tane^ and prefented Hutchinjon there- 
to, who was admitted, &c. And it is further alledged, that 
(after the fire of London) by virtue of the a£l of parliament, the 
archbifliop, in right of tne afchbi(hoprick,^aDd the wardens and 
commonaky became feifcd of the church V Saint MaryUBow^ 
with the churches of Saint Pancras SoperJane and JtlhaUows 
Honey^lane^ as of one in grofs by itfelf^ as of fee and right, and 

ft 4 ^^^® 



230 TRINITY TsKak 11 Geo. III. 1771. 

tffarHy follow, that when the patron of the beft living pAw 
to ihc frji turn^ that ihc patron of the next bell, flail prde* 
^ Lie. |S6. t3 iUcJicond tura. Sappofe A. B. and C are coparceiwjrf ^ 
^ living, and they cannot agree to prefent ; the eidefi fliall preii^ 

and if her fiftcTs or either of them difturb her, {beOBllfaavca. 
^uare impedU: but fuppofe, after the eldeft has prefeotcti, tbc 
church becomes voi:!, it does not neceOarily follow' tk i> 
becaufefiie is the fecond fifier, Ihali prefent in At JawiiMm 
and a traverie that B^ was the fecond fifter, would be nugatofj^ 
and not determine the ium: becaufe the three fillers mi^ 
have agreed to prefent in different manner than in the order of 
feniority. If we hal travcrfed the values of the livings allcdbed - 
in the plea at the time of the aft of parliament, the Kingsboi*, 
in the time of Hfary 8. cou!d not have determincdthaimattaa 
thirdiftance of time. But acquiefcencc, ever finccthcaSoC 
parliament, has fettle I the rofa^ and is evidence of the rcfpcc- 
tfve values at the time of making the act. 

Anftwt© The defendant Backhou/i in his plea has' admittecl, that by tk 

tiM okjcftion, a^ of parliament, the archbiOiop, an J the warden and common* 

^iLV'^^* alty became feifcd of the advowfoa of the church of SantUffJ 

* * UBow^ and the other two churches, and were intitled to pre* 

fent thereto in fuch manner and form as in the declaration « 

mentioned; this, with great deference to the court, is aa «*• 

prefs admiffion of the turns as we have flated them in the ik- 

claration: we have ftated, that the archbiOiop has the/'/ » 

^cnd turns^ and has prefented to the fame, fo it follows tte 

the plaintiffs are intitlcd to this third turn; by this admiflk** 

the defendant Backkouje has admitted the wliole dcclaraiiofl » 

be true ; and his denying any part thereof afterwards in his pl^ 

is abfurd. contradiftory to what he has before admitted, » 

goes for nothing, 

iUftw to It is laftly objefted, that the two prerogative prcfentatioos 

the (k^efiotk fljall go for turns, and therefore this is not the tkri /»"* 

^adJ/«cfcji. ^^^ »" fupport of this point, was cited Cro. Joe. 691. "^ 

was the cafe of a grantee of the next avoidance; the incumb^ 

being created a bifliop, the King granted the church to have aw 

jetain the fame in comnundam for fix years ; and it was b^li^ 

grantee had loft his prefenution to the next avoidance. J"? 

eafc, I am bold to lay, is not law: ^ commendam rtdneie^^^ 

like a prcfentation, it is to prevent the living becoming voW V 

Ae incumbent's promotion; it is a difpenfatton, and cooi«^^ 

fore the creating nim a bifiiop; it is a faculty of retention of "* 

living in the fame ftate as he had it before by his former pr*J 

tation thereto. Vau^h. 2a. Sir W. lanes 159. Skow.f'^ 

Cafes 184. And fee 4 Hod. 212. Hob. 143. Dter aw, 23^ 



._. — .^ 



G»E' Tritity Term 11 Geo. III. 1771- 231 

iTtfti if^gin. A prerogative prcfentation does not itand in the turn 
I fts: of the patron, becaufe it is by a61 of law, which (hall hurt no 
tt:ii\ iBan. And therefore this is the plaintiffs' tJfirJ turn. 

ainif Serjeant Forftcr^ in reply — I humbly infift, the travcrfe is of 
t^i^' matter of law, and that the values ot the livings ought to ap- 
^(fci pear on the record. It's objcSed there might be fome agieement 
^•:^ 10 preCent in a different manner than the flatute ena£;b; but if . 
'^ a| there was any fuch agreement, it ought to be ftated upon the re- 
t xaet ^f^i out of which the court cannot go. 

^jji The court took time to confider until this term; when the 
^ afl'Ord Chief Juftice, after having dated the pleadings as above, 
g; , delivered the opinion of thq whole court for the plaintiffs. 






' Lord Chief Juftice De Grey. The archbifhop hai demurred 
to the count only; infilling, that tlje plaintiffs h«jve not therein 
•fliewn any title, and thereiore cannot have judgment.. Three 
^ r^'bjedions to the count have been taken by my brptfae^s at the 
* '.bar, who argued for the defendants. 



s^i 



ay 



1. That it is not alledged therein, that the plaintiff^ wo-c iftObjeaiw. 
■ feifed of the advowfon to prefen: as in their thjrd lurn» 



. "^ fi. That the roia or order of the iurns of prefentation depeqd- *<* Ob^eaipn, 
, ^j i*"g upon the yearly value of the endowments of the three 
*?. J churches refpeftively, at the time of the making the ftatute of 
* *^M;t2 Car. 2. thofe refpeftive values of. the churches ought to have 
.^^Bbcen ftated; but the fame not being ftatcd, the plaintiffs have 
^^^Ijt Aot (hewn any title to the t/iird turn^ which they claim. \ 

' 3. That fuppofing the plaintiffs are intitled to the /A^Vflf^i/n?, jdObjeakn. ! 

yet the defendants fay,* it appears by tlie count that this is not I 

the third turn; for the two prerogative prefentations (hall go for . I 
^m P^^^^^ ^^ ^^^ '^^* " Xhefecond turn iu the fccond rota. 

'^iHk ^" anfwer to the firft objeftion, we are all of opinion, that it Anf«rer to 
is well and fufficiently alledged in the count, that the plaintiffs jj^j^^*'** 
were feifed of the advowfon, to prefem as in their third turn; ^*^**"' 
for it is alledged, that (before the deilruflion of the three 
churches by nre) they were feifed of the advowfon of the 
church oiAUhaUcws lioneyJane^ and prefented Hutchinfon there- 
to, who was admitted, &c. And it is further alledged, that 
' (after the fire of London) by virtue of the a£l of parliament, the 
archbilhop, in right of tne archbi(hoprick,^aDd the wardens and 
commonaky became feifed of the church ^f Saint MaryleBow^ 
with the churches of Saint Pancras SoperUane and MlhaUaws 
Honey^lane^ as of one in grofs by itfelf^ as of fee and right, and 

ft 4 were 



236 Tjiinity Term 11 Geo. III. l7fK 

iffftxrHy follow, that when ilie patron of the bcft living pfefems . 
to the firjl turn^ that the patron of the next beft, fliaii prefeitt 
^ lit. |S6. tQ i\\i: ficond lurtu Suppofe A. B. and C are coparceners pf ^ 
k- livinjj, and they cannot agree to prefent ; the eldcft Ihall prefcp.i, 

and if her fillers or either of them difturb her, Qiefliall liave a 
^uare impedit: but fuppofe, after the eldeft has prefentcd, the 
church becomes void, it does not neceflarily follow' tliat B. 
bccaufe flic is the fecond fifler, fliall prefent in ih^ Jecond turn ; 
and a traverfe that B^ was the fecond fifter, would be nugatory, 
and not determine the turn: becaufe the tliree Tifters might 
have agreed to prefent in ditferent manner than in the order of 
feniority. If we had traverfed the values of the livings allecbed 
in the plea at the time of the a6l of parliament, the King's boJks, 
in the time of Henry 8. could not have deterwneithat matter at 
thirdiftance of time. But acquiefcence, ever fince the a6i of 
parliament, has fettle 1 the rota, and is evidence of the refpcc- 
tfve values at the time of making the acl, 

Anfirerta The defendant Backhoufe in his plea has admitted, that by the 

the ohjeaion, g^ of parliament, the archbifhop, and the warden and common- 
iilteir^* alty became feifed of the advowfoa of the church of Saint Mary 
U Bqw^ and the other two churches, and were intitled to pre* 
fent thereto in fuch manner and form as in the declaration is 
mentioned; this, with great deference to the court, is an ex- 
prefs admiflion of the turns as we have fiated them in the de- 
claration: we have ftated, that the archbilbop h^s iYiitJifJl and 
Jt^ond turns^ and has prefented to the fame, fo it follows that 
the plaintifis are intitled to this third turn; by this admiflioa, 
the defendant Backhotiji has admitted the whole declaration to 
be true; and his denying any part thereof afterwards in his plea, 
is abfurd, contradi^ory to what he has before admitted, and 
goes for nothings 

' AnfWer to Jt is laftly objefted, that the two prerogative prefentations 

ito^rero!** ^*'^ fl^ ^^^ ^"^^^' ?^^ therefore this is not the third tumi 

^Hfe prtfcn- and in fupport of this poi^^ >yas cited Cro. Jac, 691. which 
was the cafe of a grantee of the next avoidance; the incumbent 
being created a biihop, the King granted the church to have and 
retain the fame in comnitndam for fix years ; and it was held, the 
grantee had loft his prefentation to the next avoidance. This 
eafe, I am bold to laV, is not law : a cammendam retineref is not 
like a prefentation, it is to prevent the living becoming void by 
tiie incumbent's promotion; it is a difpenfation, and comes be^ 
fore the creating him abifhop; it is a faculty of retention of the 
living in the fame fiate as he bad it before by his former prefen- 
tation thereto. Vaugh. aj. Sir W. Jones 159. Show. ParL 
Ca/is 184. And fee 4 Mod. ftia* HoS^i^^. Dier 228, 233* 

* margin;'^ 



Tritity Term 11 Geo. III. 1771- 231 

rhirgin, A prerogative prefentation does not (land in the turn 
of the patron, becaufe it is by a6l of law, which (hall hurt no 
man. And therefore this is the plaintiffs' t/^irJ turn, 

Serjeant Fcrftcr^ in reply — I humbly ii}fift, the travcrfe is of 
a matte.r of law, and that the values of the livings ought to ap- 
pear on the record. It's objcSed there might be fome agreement 
to preCent in a different manner than the ftatute ena£is; but if . 
there was any fuch agreement, it ought to be ftated upon the re- 
cord, out of which the court cannot go. 

The court took time to confider until this term; when the 
Lord Chief Jufiice, after having ftated the pleadings as above, 
delivered the opinion of thq whole court for the plaintiffs. 

Lord Chief Juftice De Grey. The archbifhop ha^ demurred 
to the count only; infilling that the plaintiffs hifve not therein 
ftewn any title, and therefore cannot have judgment.. Three 
objedions to the count have been taken by my brg^ers at the 
bar,, who argued for the defendants. 

1. That it is not alledged therein, that the plaintiff^ were iftObjeOiw. 
feifcd of the advowfon to prefent as in their third turn* 

2. That the rota or order of the turns of prefentation depeqd- *i Objedi9n. 
ing upon the yearly value of the endowments of the three 
cliurches refpcftively, at the time of the making the ftatute of 

t% Car, 2. thofe refpeftive values of. the churches ought to have 
been ftated^ but the fame not being ftated, the plaintiffs have 
not (hewn any title to the tltird turn^ which they claim. 

g. That fuppofing the plaintiffs are intitled to the third tum^ jdObjeaion. 
yet the defendants lay,* it appears by the count that this is not 
the third turn : for the two prerogative prefentations (hall go for 
turns ^ To that this is the Jccond turn in the fecond rota. 

In anfwer to the firft objeftion, we are all of opinion, that it Anf«rer to 
is well and fufficiently alledged in the count, that the plaintiffs 5^^^ ***• 
were feifed of the advowfon, to prefent as in their third turn : ^ 
for it is alledged, that (before the dcftruftion of the three 
churches by nre) they were feifcd of the advowfon of the 
church of AUhaHows Money-tanCf ^nd prcknted HutchinJontheTt* 
to, who was admitted, &c. And it is further alledged, that 
(after the fire of London) by virtue of the a£l of parliament, the 
archbifliop, in right of tne archbi(hoprick,^and the wardens and 
commonaky became feifcd of the church V Saint MaryteBow^ 
with the churches of Saint Pancras SoperJane and Mhallotvs 
Honey Jane^ as of one in grofs by itfelf » as of fee and right, and 

ft 4 ^'^^^ 



230 TfliNiTY Term 11 Gbo. III. I7f 1. 

tf/fdrily follow, that when tlie patron of the bcft living p^fcxttf . 
to i\\t ft rjl turtle that the patron of the next beft, (hallprcfcrit 
^ Lit. |86. tQ i\\Q fecond turn, Suppofe A. B. and C are coparceners of ^ 
k- liviog, and they cannot agree to prefent ; the eldcft fliall prefcp.t, 

and if her fiilers or either of them diflurb her, (he (hall liavesj . 
^uare impedit; but fuppofe, after the elded has prefented, the 
church become* void, it does not neceflarily follow' that B. 
becaufefiic is the fecond fifter, fliall prefent in ihzfecondturn: 
and a traverfe that R. was the fecond fifter, would be nugatory^ 
and not determine the turn; becaufe the tliree fifters might 
have agreed to prefent in different manner than in the order of 
lenioriiy. If we had traverfed the values of the livings allcdged 
in the plea at the time of the a6l of parliament, the King's books, 
in the time of Henry 8. could not have detertninedthat matter at 
thirdiftance of time. But acquiefcencc, ever fincc the aft of 
parliament, has fettle 1 the rota^ and is evidence of the refpcc- 
tfve values at the time of makuig the ^St. 

Afifwerto The defendant Backhou/i in his plea has admitted, that by the 

^ ohjcdtion, a^ of parliament, the archbifhop, and the warden and common- 
iiteeV*' * '^^^y became fcifed of the advowfoa of the church of Saint Mary 
li Bow^ and the other two churches, and were intitled to pre* 
fent thereto in fuch manner and form as in the declaration is 
mentioned; this, with great deference to the court, is an cx- 
prefs admifliop of the turns as we have ftated them in the de- 
claration: we have ftated, that the archbilbop has ihofitji and 
Jicond turns^ and has prefented to the fame, fo it follows that 
the plaintiffs are intitled to this third turn; by this admiflioiif 
the defendant BackJioufe has admitted the whole declaration to 
be true; and his denying any part thereof afterwards in his plea, 
is abfurd. contradi^ory to what he has before admitted, and 
goes for nothings 

AafWrr to Jt is laftly objefted, that the two prerogative prefentations 

m^^^T **" iP ^^^ ^"^"^» }^^ therefore this is not the third turn; 

"Xitife prcfcn- and in fupport of this point, was cited Cro. Jac» 691. which 

wiviu was the cafe of a grantee of the next avoidance; the incumbent 

being created a biUiop, the King granted the church to have and 

retain the fame in comniendam for fix years ; and it was held, the 

grantee had loft his prefentation to the next avoidance. This 

eafe, I am bold to laV. is not law : a cammendam retinei^ is not 

like a prefentation, it is to prevent the living becoming void by 

tiie incumbent's promotion; it is a difpenfation* and comes be* 

fore the creating him a bifhop; it is a faculty of retention of the 

living in the fame ftate as he had it before by his former prefen- 

tation thereto. Vat^h. ftd. Sir JT. Jones 159. Show. Pari. 

Cafes 184. And fee 4 ULoL 212^ i/oiC^ 143. Dicr 228, 233.^ 

* margin;' 



Tritity Term 11 Geo. III. 1771. 231 

rhirgtn, A prerogative prcfentation does not ftand in the turn 
of ttie patron, becaufe it is by ^t\ of law, which (hall hurt no 
man. And therefore this is the plaintiffs' t^irJ turn. 

Serjeant Forft^r^ in reply — I humbly ii}fift, the travcrfc is of 
a matter of law, and that the values ot the livings ought to ap- 
pear on the record. It's objc3ed there might be fome agreement 
to prefent in a different manner than the ftatute enads; but if , 
there was any fuch agreement, it ought to be itated upon the re- 
cord, out of which the court cannot go. 

The court took time to confider until this term; when the 
Lord Chief Jufiice, after having ftated the pleadings as above, 
delivered the opinion of the whole court for the plaintiffs. 

Lord Chief Juftice De Grey. The archbifliop ha^ demurred 
to the count only; infilling that the plaintiffs hj^ve not therein 
fliewn any title, and therefore cannot have judgment, Three 
obje£lions to the count have been taken by my brptfaers at the 
bar,, who argued for the defendants. 

1. That it is not alledged therein, that the plaintiffs were »ftOy«ft>«« 
feifcd of the advowfon to prefent as in their thjrd turn. 

2. That the rota or order of the turns of prefentation depeqd* *<* ObJeai9n. 
ing upon the yearly value of the endowments of the three 
churches refpeftively, at the time of the making the ftatute of 

ft2 Car. 2. thofe refpeftive values of the churches ought to have 
been ftated^ but the fame not being dated, the plaintiffs have 
not (hewn any title to the iltird turn, which tHey claim. 

g. That fuppofmg the plaintiffs are intitled to the thirJ (um^ z^OhjtaMn. 
yet the defendants lay,* it appears by the count that this is not 
the third turn; for the two prerogative prefentations (hall go for 
furns^ To tliat this is the /econd turn iu the fccond rota. 

In anfwer to the firft objeAion, we are all of opinion, that it Anf«rerto 
is well and fufficiently alledged in the count, that the plaintiffs •Jl|^^*'*' 
were feifed of the advowfon, to prefent as in their third turn; ^ 
for it is alledged, that (before the deftruflion of the three 
churches by lire) they were feifed of the advowfon of the 
chuxch oi AUhaUcws Honey 'lane^ and prefented i/^ri&;>p/^?i there- 
to, who was admitted, &c. And it is further alledged, that 
(after the fire of LondonS by virtue of the a£l of parliament, the 
archbifhop, in right of tne archbi(hoprick,^aDd the wardens and 
commonaky became feifed of the church ^f Saint Maryte Bow^ 
with the churehes of Saini Pancras SoperJane and AUkallows 
Honey^ane^ as of one in grofs by itfelf» as of fee and right, and 

ft 4 were 



230 TfliNiTY Term 11 Geo. III. 1771. 

tffariTy follow, that when the patron of the bell living pfeiemi 
to \\\<t firjl turtle that the patron of the next beft, ihail prcfcrit 
S^ Lie. |86. tQ the ficond iunu Siippofe A. B, and C are coparceners gf ^ 
k- liviog, and they cannot agree to prefent ; the eldcft Ihall prefcp.i, 

and if her fiilers or either of them diflurb her, flie fliall liavea 
^uare impedit; but fuppofe, after the eldeft has prefented, the 
church becomes void, it does not neceflarily follow' that B, 
becaufefiic is the fecond fifter, Qiail prefent in ihn Jicondturn; 
and a traverfe that R, was the fecond fifter, would be nugatory, 
and not determine the turn; becaufe the three fillers might 
have agreed to prefent in different manner than in the order of 
fenioriiy. If we had traverfed the values of the livings, alleged 
in the plea at the time of the a6l of parliament, the King's books, 
in the time of Henry 8. could not have determ^inedxhac matter ar 
thirdiftance of time. But acquiefcencc, ever fince the aft of 
parliament, has fettle 1 the rota^ and is evidence of the refpcc* 
t^ve values at the time of making the a£l, 

AtiArerto The defendant Bachhou/i in his plea has admitted, that by the 

^ ohjcajon, a^ of parliament, the archbifiiop, and the warden and common* 
ii teuU^ * ^^^y became feifed of the advowfoa of the church of Saint Mary 
U BaWt and the other two churches, and were intitled to pre* 
fent thereto in fuch manner and form as in the declaration is 
mentioned; this, with great deference to the court, is an ex- 
prefs admiflion of the turns as we have fiated them in the de- 
claration: we have ftated, that the archbi(bop has iho ^r/l and 
Jt£ond turiis^ and has prefented to the fame, fo it follows that 
the plaintiffs are intitled to this third turn; by this admiflion, 
the defendant Backhou/i has admitted the whole declaration to 
be true; and his denying any part thereof afterwards in his plea, 
is abfurd, contradiflory to what he has before admitted, and 
goes for nothing* 

^^fl? It is laflly objefled, that the two prerogative prefentacions 

mto^^oV^ fcall go for turns, and therefore this is not the third turn: 
fatifepcfen. and in fupport of this point, \yas cited Cro. Jac. 691. which 
was the cafe of a grantee of the next avoidance; the incumbent 
being created a biihop, the King granted the church to have and 
retain the fame in commendam for fix years ; and it was held, the 
grantee had loft his prefentation to the next avoidance. This 
eafe, I am bold to lay, is not law : a commendam rdinere^ is not 
like a prefentation, it is to prevent the living becoming void by 
Ae incumbent's promotion; it is a difpenfation, and comes be- 
fore the creating him a bifiiop; it is a faculty of retention of the 
living in the fame ftate as he had it before by his former prefen- 
tation thereto. Vaugh. 24. Sir W. Jones 159. Show. Pari 
Cafa 184. And fee 4 Mod. 212, i/ci!/ 143. Dier 228, 2^. 

* margin; 



Tritity Term 11 Geo. III. 1771. Ml 

ifi^gin. A prerogative prefentation docs not ftand in the turn 
of the patron, becaufe it is by a6l of law, which fhall hurt no 
man. And therefore this is the plaintiffs' t^irJ turn. 

Scijeant Fcrftcr, in reply — I humbly ii^fift, the traverfe is of 
a matter of law, and that the values of the livings ought to ap- 
pear on the record. It's objcfled there might be fome agreement 
to prefent in a different manner than the flatute enads; but if . 
there was any fuch agreeinent, it ought to be Sated upon the re- 
cord, out of which the court cannot go. 

The court took time to confider until this term; when the 
Lord Chief Juftice, after having dated the pleadings as above, 
delivered the opinion of the whole court for the plaintiffs. 

Lord Chief Juftice De Grey. The archbilhop hi^ demurred 
to the count only; infifting that the plaintiffs li^ve not therein 
ftiewn any title, and therefore cannot have judgment^ Three 
objeftions to the count have been taken by my brgtfaers at the 
bar, who argued for the defendants. 

1. That It is not alledged therein, that the plaintiffs were »ftOkjraj«. 
feifed of the advowfon to prefen: as in their thjrd turn. 

2. That the rota or order of the turns of preCentatipn depeqd- *i Objeaifn, 
ing upon the yearly value of the endowments of the three 
churches refpcftively, at the time of the making the ftatute of 

t2 Car, 2. thofe refpeftive values of the .churches ought to have 
beenftated; but the fame not being dated, the plaintiffs have 
not thcwn any title to the tidrd turn^ which they claim. 

3. That fuppoHng the plaintiffs are intitled to the /A/r^^wn?, adObjeawn. 
yet the defendants fay,* it appears by the count that this is not 
ihttkird turn; for the two prerogative prefentations (hall go for 

turns^ To that this is the /econd turn iu the fecond rota. 

In anfwer to the firft objeftion, we are all of opinion, that it Anf«rer to 
is well and fufficientlv alledged in the. count, that the plaintiffs *J|^jf ***" 
were feifed of the advowfon, to prefent as in their third turn; ^ 
for it is alledged, that (before the deftruftion of the three 
churches by nre) they were feifed of the advowfon of the 
church olAUhaUows Honey Jaru^ and prefented Hutchinfon there- 
^o, who was admitted, &c. And it is further alledged, that 
(after the fire of LondonS by virtue of the afl: of parliament, the 
archbifhop, in right of tne archbi(hoprick,^aDd the wardens and 
commonaky became feifed of the church V Saint MaryteBow^ 
with the chut ehes of Saint Pancras SoperJane and jnlkallows 
Honey^ane^ as of one in gro/i by itfelf, as of fee and right, and 

ft 4 ^^^cre 



)33 



Anfwer to 
the fecond 
obje^juo. 



VLnfver fo 
the third ob- 
je^oo. 



2»uao* 



TwNiTY Tebm 4 1 G«o. HI. 1 t7U 

were inihled to prefent to tho church of Saini Mary U Bow in 
turns^ according to the a£l of parliament: and the prefentations, 
fo far as the turns have gone, have been made lender the aQ ; 
fo that in our opinion this objeQion has no weight. 

As to the fecond obje£liop, we ^re all of opinion, that although 
the yearly value of the endowments of the three churches rc- 
fpeaively, at the time of the ma);ing the a^, are not ftated in 
the count, yet, by what appears and is alledged therein, we 
mud take it by necejfdry inUndvunt^ that the endowments of the 
% archbifhop's two churches of Saint Mary U Bow^ and Saini 
Pancras Soper-lane^ were each of greater yearly value than thofi 
of the church of AtlhaUcws HoTiey-mnc; for it is expreflv alledged 
therein, that after the making the a6, the churcn of Saint 
Mary U Bow became vacant by the death of Smattwood^ by reafon 
whereof Archbifliop Sancroftj as in h\s Jirft tum^ collated the 
. <;hurch on Puller; tnat afterwards the church became vacant b^ 
the death of PuUcr^ whereupon Archbifliop TiUoiJon^ as in his 
ftconi trurny collated the church on Bradford: fo that we muft 
necfjfarily intend that thefe two ai^chbifliops collated according to 
their right under the afi of parliament ; and cannot prefume or 
adjudge^ that either of them collated wrongfully, by ufurpation, 
or contrar}' to the fiatute; fo that we think tne fecond objec- 
tion has no weight. 

As to the third objefiion, we are all of opinion, that the 
prerogative prefentaiions ciainnot be confidered as tums^ or 
(Jeprive a patron . of his turn; for a prerogative prefentation 
upon the promotioa of an incumbent to a bifhbprick, is by 
3cl of law, ' which cannot operate to the injury of a third 
perfon ; for confiruBio & alius tegis fiuUi facit mjuriam, i 
. Jnjl. 148, 183. a. t. 2 Jn/l. ^Sj, SecDier. 2s8. a note in 
the margin, . In fa3, this is the fifth vacancy fmce tlie 
inaking the aS, but with refpe£l to the patrons, it is but the 
third opening or avoidance wherein the prefentation of a patron 
(having the third turn) could take place; we think the prefcnU- 
tion of the crown upon a promotion of an incumbent doth sot 
fupply.a turn. 

This right of the crown to prefent upon the promotion of an 
incumbent to a biflioprick feems to be very ancient, although it 
has been often difputed, as appears by many books; but it has 
Been fettled for many years, and is now indifputably held for 
good law, that the King, upon every promotion of an incumbent 
to a biflioprick in England or Ireland'^ whereby the church be- 
comes void, (hall, by his royal prerogative, upon fuch vacancy, 
prefent tp that church a fit perfon to fervc die cure, 
^ Nota, 



TaiNiTY Teem 1 1 Geo. HI. 1 77 1 . 233 

Ncia^ Yfays Brooke^ title prcfentation at tfglifty pU 61.) The 
bifiiop ox Ely told me, that he had feen a prefentation, in the 
rinie of King Edward 3, made by the fame King ; that be pre-. 
fented to a benefice for that tutn^ which was of another's pa« 
tronaffe by thefe v^ords, " ratione frarogatiita/ua^'\'i\\2X the 
benefice bcilig void by reafon that the King had made the incum- 
bent thereof a bifliop^ ^who was confecrated ; fo that wheh* bene- 
fices became void by making an incumbent a bifliop, the King 
fliall prcfent to all his former benefices, pro ilia vice^ (2. r. 
for that tum^ or in that change, courfe, liead, place, office^ 
part or duty) whofoever be the patrons thereof. 

If a parfon be created a biflioj), the King fliall prefent td the 
church of the patronage of a fubjefi, not only hac vice\ but ioiits . 
quoties. 3 Lev. 377. 3. Mod. 202. For the prcfentation by the 
crown is only changing one life for another, and probably the 
patron (notwuhftanding the change) may be as near to his turn 
tt) prefent, as he was before the change. We are of opinion, 
that the count is well enough, and (hews a good title in the plain* ' 
tiffs to prefent as in their third turn. 

We will now confider the incumbent's plea : he undertakes 
thereby to make out a better title to himfelf; he, admits the 
firft part of the count (before the deftruftion of the churches) and , 
all the prefentations, by the archbifliops and the crown Hated 
therein ; he admits the a£l of parlianoent, but al ledges that the 
yearly endowments of Bow cnurch were of thte greateft value ; 
that tnq/e of AllhaUows Honey-lane (the plaintifis' church) were of 
the fecond value; andM^ ol Saint Pancras Soper4ane of the 
Icaft value ; and that it belonged to the plaintifis to prefent in 
^^t\t fecond turn according to the ibttute, but that Archbifliop 
Tilloubn ttfurped upon them by collating Bradford: but we fay 
the ftatute has not fet out the tums^ it only lays, that ihejirp 
prcfentation is to be made by the patron of fuoJi ef the faid 
churches, the endowments whereof^ were of the greateft yearlv- 
value, and is filent as to xh^Jeeond and third turns : to whica 
tW6 turns the plaintiffs and the archbifliop are left to agree to pre- 
fent in what £?r^r or /wra they fliould think fit; 'indeed, if the 
ftatute had fet out the rota or order of prcfentation to all the 
three turns ^ then it would have been neceflary to have deter^ 
feined whether Archbifliop Tillotfon collated Bradford by ufur- 
pation or not, but thai not being chalked out by the aft, wc 
mull take jt to be true, that the parties have agreed to prefent 
ds alledged in the declaration, viz. the archbifliop in the Jirjl 
^^A fecond tum^ and the company of Crocers in the third turn. 
Aftcr'the archbifliops have nad and enjoyed the right to pre^ 
^t» to t\ie ^rfi and Jicpnd turn for |00 years and upwards, is 

this - 



234 TamiTY Tbrm il Geo- III. 177 1 • 

- this court to prcfume that they have aEled by wrong or right? 
Surely by right, and by agreement of the parties ; the long ac- 
quicfcence is evidence ot an agreement to prefent in the order 
and rotation allcdged in the count. We are of opinion, the de- 
fendant, the incumbent, has not made oiit any title to himfelf by 
his plea. 

We arc now lailly to conHder the plaintiflf's replication, and the 
demurrer' thereto : it is a general rule, that whoever makes the 
- firfi fault in pleading, fliall have judgment againft him; we think 
the defendant Backhouft has made out no title in hrs plea, and 
therefore judgment mull be for the plaintiffs; we think the plain- 
tiflFs have done right, in not fetting out in the declaration the 
rcfpeSive yearly values of the endowments oYthe three churches, 
and have alfo dope right in alledging that the third turn belongs 
[Matter of to them. Astothc t raver fe, we think matters of laiv^ or rather 
froiflal**^^ »i««<rr g^n^A/ (as is this) refuhing from fafts, are travcrfablc: 
ttateiiabic.] whether one obtained a church by fimony, is traverfable, A:/. 
Ent. 53a. a. Whether one is feifed m fee, or in tail, is 
traverfable; Ydv. 140. Ewer verfus MoiU. It is the com- 
mon averment in a quare impcdit, •* that it belonged to A. B, 
to prefent to the church when the fame became vacant ;" which 
may or rather muft'depend upon both law and facts, and the 
fame is traverfable. 

Jfud^ment for the plaintiffs, and a writ to the bifhop to ad?iiit 
the plaintiffs' clerk, per totam curiam. 

Nota. Accordingly, the reverend IVtUiam Sclaier^ D. D. 

rcftor of LougfUon iS E/fcx, was indufted to the united churches 

of Saint Mary U, Bow^ Saint Pancras Soper-lane^ and AUkaUms 

' Honey -iane^ onTuefday J«ii^ the 25th, 1771, on the prcfentatioa 

of the Company of Grocers, London. 



» Black. Rep. Crufoc of thc deiiiife of Blencowc Efq, verfiis^xx^s* 

766.S.C. C.B. \ 

Leflecfcrai pJECTMENT. The plaintiff declares, that BUn^^^ 
V^^v^ ^"' '*^^ fi^* ^y **f November 1770, demifed.to him one 
•Rigo, *c. meffuagc, and one mill in D, in thc county of Effex^ to bolJ 
*»« «^«J « from the 30th day of Odober then laft paft for hve years, by 
fw^J!m of virtue of which demife, the plaintiff entered and was poffeffed 
the term, until the defendant eje£led him to his damage, &c. upon not 
?**^k"? !L 8^^'^y pleaded, this cayfe came on to be tried at thc laft affucs 
t'vMiot. ^^^,^^!^ county of Efex, when a Verdift was. given for the 
plaintiff, with u. damagesi and 40^. cofts, fubject to the opi- 

niofl 



T«fNiTt Tbbm 1 1 Geo. JU. if fK 035 

Oi'on of this courti that if the court (hould bcof ppinion for tbjB~ 
defendant, the verdi£l (hould be void, and judgmcat of nonfuit 
l^e entered for the defendant, if far the plaintiflf tliat l\p fliould 
have the pojita^ and judgment upon the verdi6l; upon the foU 
lowing cafe, (wz.) 

Hmry BUncome Efq. and Mary his wife, being feifed in fee 
of the premifes in queftion^ by indenture of leafc of the fecond 
day of March 1763, demifed the fame to one WMam Alder ^ his 
CT^ecutors and adminiftrators, to hold tlie fame to bim, his exe- 
cutors and adminiftrators, from Chriflmas-day then laft paft, for 
tl^e term of one and twenty yeais, under the yearly rent of ten 
pounds, payable by equal half-yearly payroc;nts, with a provifo 
lor re-entering upon default of payment, or breach of any of the 
covenants in the leafe ; and theii follows this covenant {triz.) 
•• And alfo he the faid Wilkam Alder, his executors or admini- ^^ ^- *«« 
•* ftrator^ (hall not; or will at any time or times during this Ul^^^j,/* 
'* demife, aflxgn, transfer or fet over, or otherwife do or put away mt ^kmf«^ la 
•* this prefent indenture of demife, or the premifes hereby de- tWicoTeaant 
" mifed, or any part thereof, to any perfon or perfons whom* 
" foever, without the licence and confent of the faid Henry 
" BUncowe and Mary his wife, their heirs or afligns, in writing, 
" under his, her, or their hands and feals, firft had and obtained 
♦• fordoing thereof." 

Hairy Bkncawe died in ACsy ^76^% suid Mary his wife died 
feifed of the reverGon the 2otn of USober 1770; the le(ror of 
the plaintiff is their fon and heir. 

WitHam Alder ^ the leCTee of the (aid term of 21 years, by in* 
denture of leafe, dated the ft^th day of Augtifl 1769, without any 

Srevious licence, demifed the premifes to the defendant John 
^ugiy^ his executors. and adminiftrators, for a (horter term, viz. 
for fourteen years, to hold from Michaelmas day then next en- 
fuin^ the date of the fame indenture ; and by virtue of this fub- 
demife, the defendant Bugby claims to be poffelTed of the pre- 
mifes fo^ the term to him demifed. 

The quefiion for the opinion of the court is, whether the feiTor 
of the plaintiff is intitled to re-enter by virtue of the covenant 
and provifo above ftated. 

This cafe was argued by Serjeant Ldgh for the plaintiff, and 
Serjeant WkUakir for the defencUnt in this prefent term. 

It was argued for the plaintiff, that the under leafe made 
\j Jldtr to the defendant Bugfy for fourteen years, part of 

• the 



2S6 Tbinity Tbrm U Geo. III. 1771* 

the lerm of twent)'-one years, without licence, vtbs fucli a breach 
of the provifo and covenant above ftated, as gafve the leffor of 
the plaintiff a right of re-entry; and it was laid, that although 

, this under leafe . was not an affignrftent of the remainder of the 
term ofrweiuy-one years then to come, y^t that it was a franf^ 

f^rnng^Jdtlny ovtr^ doing, or putting away the premifes^ or part 
thereof, to the defendant Bugbyy contrary to the covenant or 
condition, 

: Serjeant Uliitaker for the defendant- infilled, that this^under- 
leafe tor p^rt of the original term, was not an afUgnment, and 
faid, that it had been fo determined in a cafe of JoUxitrt verfus 
the Duke ofChandos, 

That the covenant that XVilliam Alder Jhall not, during the/aid 
term of twenty -one years, ^J/^g^i transfer or Jit over^ or others 
vrjt do or put awayy&c, cannot mean that he (hall not dermfe: 
thiat the demife for twenty-one years, with regard to the firil 
leffor, ftili fubfifts ; for the firft leffee Alder is ftill in poflfeffion ; 
the leffor of the plaintiff has a double remedy. There is no 
privity of contraft between the original leffor and Bagty the 
under leffee ; Mr. BUncowe may diftrain upon the land*; and may 
alfo have an a£lion of debt for rent againft Alder the firft Icl- 
fee, jpid concluded that this was an under-leafe, and not in 
affignment, and fo was no breach of the covenant, and the leffor 
of the plaintiff is not intitled to re-enter ; he cited 5/r/i. 405. 
Poultney verfus Holmes, where if the original leffee refervcs the 
rent to himfclf, on granting over, it is' an under-leafe, and not 
an affignment, though he parts with the whole terin. And alfo 
5V\/tf 4«3. Fox and Sw^m, .\\\\cvq it is faid,' that if leffee for 
years doth covenant with the leffor, not to affign over his term, 
without the leffor's confcnt in writing, and doth afterwards, 
without fuch confent, devife the term to J, S. this is riot a 
breach of covenant. •", » 

Serjeant Leigh in reply, admitted the cafe in 1 Stran. ^05. 
for good law, but faid it was not to the point in queftioh; he 
alfo admitted the cafe in Style 485. and faid that it would be 
abfurd to fay a devife was <vithin a covenant not to afllgn ; but 
he laid great ftrefs upon thefe words in the covenant, '* Jhall net 
'' Jd over, or otherwije do away, &c" and very ftrongly infiftcd, 
- that the making this undcr-leafc for fourteen ^ years, was con- 
trary to thefe words ; and admit ted,- that the privity of iobtr^ct 
was not deflroyed between the original leffor arid leffee (Alder) 
anrl that Alder might have dcvifed the term, or it might go' to his 
adminiftrator, or mi^ht be tal;cn in execution, and concluded by 
pray iffg judgment fur the plaintiff, 

. • The 



TjiNixY Term 11 Geo. III. 1771 V 437 

The court took two "or three difcys' time to confider, and there- 
tipon gave judgment for the defendant that this under-leafe for. 
fourteen. years was, not a breach of" the covenant "or condition; 
they faid the courts of 7^^;»2^^r have always looked nearly into 
thefe conditions, covenants or provifoes ; that the devifing a term 
was a doin^ or putting it away^ that the leflee becoming a bankrupt 
was apttilmg or doing it awa)\ that a dying inteftate, was a put* 
ting it away; fo, being in debt by confefling a judgment and 
having the term taken in execution, was the like; but none 
of thefe amounted to an affignmeni^ or to a breach of the covenant 
or condition, ' . 

Judgment for the defendant, per totam curiam. 



Doe, on Ae clemife of Elizabeth' Brown, Widow, ver^ 
fas James Holme, and jane Longmire, Widow. 
a B. 

pJECTMENT, for four meffuages, . four cottages, four aBUck.Rep, 

barns, four ftables, four gardens, tour orchards, one fulliilg- 777* *• o. 
mill, one water corn-mill, one malt kiln, two hundred acres of ^^-f^ *^ 
land, two hundred acres of meadow, and two hundred acres of 
pafture, with the appunenances, m Appkthwaite ^ndi Tri>uthck, in 
the parifh of Windtrmcre^ in the county of Wejlmorland: the de- 
fendants pleaded not guilty^ whereupon iffue was joined, and 
tried before Mr. Baron Pcrrot^ at the laft aflizes held for that 
county, when a verdi£l was found for the plaintiff, fiibjeft to 
the opinion of this court; upon a cafe ilated in the words fol- 
lowing-; .(t'z^.) . 

That^»i^.f Longmirtf being feifed in fee of the premifes in Thecjfefor 
queftion, being part freehold, and part cuftomary lands, made '^*^****®'*'*' 
and duly executed his laft wU and teftament, ot the date, and ^""' 
in the words and figures following: (that is to fay) In the name 
of God, . avien. I James Longmire, of 'Linefoot in AppUthwaitf^ 
in the parifh of Windermere, in the county 6t Weflmorcland^ y^o-, 
man, confidering the uncertainty of this mortal life, and being 
of foundf perfefi and difpofing mind and memory, (blefled be 
Almighty God for the fame) So make and publiih this my laft 
zvill And teftament, in manner and form following; (that is to 
fay) Fitft, I give, grant and devife unto my fon James Longmre-^ 
from and after the death or viduity of my now wife Dorothy 
Longmire, all my lands and tenements, houfes, buildings and 
appurtenances belonging to the fame, of the yearly cuftomary 
rents of a/. xSs. or thereabouts, with a fulling-mill of tbie 

3 f^«« 



238 TBiNiTirTERM 11 Geo. IIL I77l- 

free yearly rent of 2S. . (ituate, lying and being in ApptdhwaiU 
aforefaid, together with all my lands and teneinenu, and tk 
appurtenances thereof, known by tbe name of Flcod^yeates^ of th^ 
yearly cuftomary rent of 41. ^d, fituate, lying and being wixhin 
Froulbeck^ in the panfli of IVtnJ^rmcre aforefaid, with impeaekmsjit 
cfwafte^ for and durin? the term of his natural life; and from 
and after his deceafe, I give, grant and devife, all and fmgular 
the premifes aforefaid, unlo the heirs male or ftmaU^ laufuHy 
to he bsgotten of the body of my /aid /on James Longmre^fortv^t 
they paying out of the fame the lum of four hundred pounds, ii) 
tnanner iollowing, (that is to fay} the fum of two hundred 

f>ounds to my daughter Elizabeth Br own, or her afligns, and the 
ike fum of two hundred pounds linto my grandfons and grand- 
daughter^, children of my daughter i)(7rc»Mjr Biriett; (that is to 
fay) forty pounds to my grand-daughter Dorothy B rkett, or her 
adigas, and to the reft of the children of my faid daughter 
Dorothy Birhett^ the fum of one hundred and fixty pounds, to be 
equally divided amongRthem or their children, per ftirpem not 
per capita^ (hare and uiare part alike: and all thefe fmns ofmosei 
or legaaes above/aid^ it is my will and mind Jhall be paid witkn 
two years after the death of my fon James Longmire: but pro- 
vided that refufal, failure or neglefl be made, of payment of die 
faid fum of four hundred pounds, or any part thereof, to the 
berfons and parties I have herein and hereby bequeathed th« 
l^ime, then and in fuch cafe, I give, grant and devife, all and 
lingular the premifes abovefaia, unto my daughter Ehzahdk 
Brown, and her heirs, to hold for and during fuch a term of 
yearS) as the fatd fum of four hundred pounds may and (hall be 
railed, out of the clear rents and mean profits thereof, and applied 
and^paid to the legatees as above directed ; and when, and as foon 
as the faid fum of four hundred pounds (hall be fo taifed, hy 
and out of the mean profits, then it is my will and mind, that 
aU and every the abovefaid premifes (hall return into the pof- 
feffion, and to and for the fole ufe of the heir, male or female, 
lawfully begotten by my faid fori, and to his or her heirs for 
wver; but, and if my Ion James Lon^mire fhall die leaving no 
lawful iffue, I then give, grant and devife, all and every the 
aforefaid premifes, with t;heir appurtenances, unto niy faid 
daughter Elizabeth Brown, and to her heirs and aflign&for ever, 
chargeable nevcrthelefs, with ihe payment of the fum of two 
hundred pounds thereout, to my grandfons and daughters, chil- 
dren of my daughter Dorothy Birkett^ in like manner, and in 
fuch proportions, as I have anove direftcd and willed the heirs 
lawfully begotten of the body of my fon James, if he (hall leave 
any fuch, to pay the like fum ; and it is my will and mind 
the fame be paid within one whole year after (he or they (hdll 
enter upon the premifes. And lalHyi I hereby appoint xny be' 

loved 



TaiNrpY Tekm 11 Gsoi III, llr71. 23p 

loved wife fole executrix of this my laft will and teftanunt^ to 
whom I give all my goods, chatteb, and ocrfonal eftate, of what 
kind or nature foever, (he paying my jull debts and funeral ex« 
pences. In witnefs whereof (revoking all former xuills by me 
made) I have hereunto fet my hand and feal, the 27th day of 
September^ in the 27th year of the reign of our fovereign Lord 
George the fecond, by-the grace of God, of Great Britain^ France 
and Ireland^ King, Defender of the Faith, and in ihe year of our 

James Longndre. 

Signed, fealed, publiOied suid declared bv the above-named 
James Longrmre to be his lall wiU and teflament, in the 
prefence of us who have hereunto fubfcribed our names as 
witnefles, in the prefence of the tefiaton 

Thomas Scales^ William Flemings William Langkorn* 

That the cuftomary efiates above-mentioned, were devifable 
in the fame manner as freehold eftates of inheritance. 

That James Longnire^ the fon, fulTered a recovery of the 
freehold premifcs (except 4hjp fulling-mill) to the ufe of him- 
fdf in fee, and dia the proper a£l to bar an efiate-tail in the 
cuftomary premifes, and died without leaving, or ever having 
had ifliie, having before his death conveyed the premifes in queU 
tion to the defendants in. fee. 

That the leflbr of the plaintiff is the tefiator's daughter, men- 
tioned in the tmll» 

Whereupon a v^dl£l was given for the nlaintiflT, for all the. 
premifes comprized in the declaration, fubjefi neverthelefs, as to 
all the premifes (except the fulling-mili) to the opinion of this 
courts whether the plaintiff ought to recover. 

This cafe was argued twice at the bar; firft, in tlilary term 
laft, by Serjeant Leigh for the plaintiff, and Serjeant Burland for 
the defendant; and the fecond time, by Serjeant Glynn for the 
{Plaintiff, and Serjeant Davy for the defendant. 

The Serjeants for the plaintiff contended, that James Lon^- 
"nVf took only an eflate tor life, with a contingent remainder m 
tail to bis iffue by the mll^ and therefore the remainder over in 
fee to the leffor of the plaintiff Eiizabeth Brotvn, being a veiled 
remainder (as they faid) was not barred by the recover)'. 

The Serjeants for tlie defendants contended, that James Long- 
Wc took an cftate-tail by the «w//, and fo the recovery had , 

a barred 



240 l^BmiTT Term 11 GaOi IIL l^^^li 

barred the remainder in fee given oVer to EUzahcth Brom. 
Many arguments were ufed, and great variety of cafes cited, by 
the learned ferjeants on both fides, pro and €0h\ which arc not 
neceflBry to be fet down here; becaufe the court, after having 
taken time until this term to confider of their judgment, did not 
determine whether James Lengmire took an eSate for Ufe, or in 
tail; but were all of opinion, that he either took aa cftatefor 
Kfe or in tail; and whether he took an ^ftate for life, or in tail, 
the lelTor of the plaintiff had no title ; that the remainder limited 
to the heirs male or female, lawfully begotten of the body of 
the faid (fon) James Longmire^ (as it is .literally ftatod above) 
was' a good contingent remainder in fee depending upon 
a freehold, and barred by the cfomman recovery; that the re- 
mainder over in fee to the leffor of the plaintiff was void* being 
after a fee, and never could veil; and that if James Longmrt 
took an cflate in tail, it was equallv clear,' tliat the remainders 
are barred, and the leffor of the plaintiff has no title. la de- 
Hvcring this opinion of the court, the Lord' Chief Jullice was 
pleafed to fay, thai this cafe was very like the cafe o\ Loddington 
verfus Kime. 3 Lev* 431. 1 Salk. 224. wherein it was deter- 
mined, that the devife in that cafe to Evers' Armn for his life, 
afid in. cafe he fliould have iffue-male, to fucb iffue-male and his 
heirs for ever, charged with 25/. per annum^ &c. was an cfiitt 
for life, with a contingent remainder, which was deftroyed hj 
the recovery (in that cafe) fuffered by Evers Armin;, and thoogli 
both Levinz and Salkeld report that the parties agreed, and 
divided the eflate, before any judgment was siven, yet it ap- 
pears from a hiS report of that cafe by judge mencowe^ (which 
the reporter Serjeant WUfon has feen) that after long confiderationi 
judgment. was given, that Evers Armin took an e(late for life, with 
a contingent remainder over, which was barred by the recovery 
fuffered by Evers Armin. 

As the point, upon which the court were going* to gi^e judg- 
ment, in the cafe at bar, had not been before fo much as men- 
tioned by any of the ferieants, the Chief Juftice told them who 
argued fof the plaintiff, they might fpeak to it again if thcv 
pleafed ; fo pronounced judgment for the defendants, nifi <A%fi 
the next term. Sed the fame cafe in next term. 



, Black. Rfp. . ^^^ CampbelL 

A judgment 'T^ H I S was an aftibn upon cJTumpJit for 2500/. for 
for the de- * money had and received by the , ^feiidant^ for the ufe of 

lendantin the plaintiff. 

trovrr, is not * 

a b«r to an 

aaion t^ainft bim for inoaey had and recelTcd ibr the plaintiff*! vfe. 

The 



TnixiTT Term 12 Geo. HI, 1771. 241 

Tlic defendant pleaded in bar, that the plaintiff heretolbre 
brought an stR'ion of uover againft him ana one A. B. to re« 
cover damages againft them, for divers goods and chattels of the 
plaintiff, fuppofcd to be converted by them to their own ufc ; 
to which they pleaded the general iffue, and a vcrdi£l was found 
for them [the <lefendants1, and judgment was entered thereujion, 
which the prefent defendant now pleaded in bar to this action, 
and averred, that the goods and chattels for which the a£lion in 
trover was brought, arc the very fame identical goods, ior the 
produce whereof [by fale] the prefcnt a£lion is brought by the 
plaintiff againft the defendant, for money had and received for 
the plaintiff's ufc. The plaintiff demurred, and the defendant 
joined In demuriv^^r. 

This cafe was a little fpoke to by Serjeant Leigh for the Sec i Mod. 
plaintiff, and Serjeant Jepkjon for the defendant; but the whole "> 
court without much debate weie clear of opinion, that a judgment '* ^* . 
for the defendant in trover, is no bar to an afiion for money had 
and received by the defendant, for the ufe of the plaintiff*. 

Judgment for the plaintiff, per toiam curiam* 



MICHAELMAS TERM 

12 Geo. III. 1771. 



Doc, of the demife of Elizabeth Browne verjus James »Waek,Re^ 
Holmes and John Longmire. C. fi. ^J; ^^ 

P*JECTMENT of lands in the county of T^Mt^r- The^efioa 
*-* land^ which was tried before Mr. Baron Pcrrot at the wm, whcchtr 
affizes held for that county ; when a verdift %wi$ found for V^^^ 
the plaintiff, fubje£l to the opinion of this court, upon a cafe veiled io tb» 
ftated, and written down verbatim in the laft Trinity term, when Jetoof tht 
the lame was argued at the bar, t^lc fecond time ; and the J^"^y ^^ 

W0N9 Off S 

VfUlf the ikw beiBS liniced ifter a contiiisefit ffcauinder Id fee. 
Vol. m. b: court 



Ua^ , Michaelmas Tkbh la Geo. III. 1771* 

court were then inclined to give their opinion* that the devife 
over to the leflbr of the plaintiff in fee, was a contingent re-* 
Biainder, and could not take place, it being deftroyra^by the 
recovery fuffered by Jfames Lmgmire. 

But as this. point had not been fpoken to, in either of the 
arguments at the bar, the court were pleafed to order an viUrius 
emeiliuM, that this fingle point might.be debated^ iftfaeplain- 
liff 's counfel So thought fit. 

It was therefore now argued by Serjeant 5ay«^, on the part of 
the leffor of the plaintiff, that the remainder limited to her by 
the zoill^ was a veiled remainder in fee, and therefore not dc- 
ftroyed by the recovery fuffered by James Longndre. who (he 
faid) was only tenant tor life, with a contingent remainder Co 
his iffue. And to prove that this was a remainder ^efted in 
the leffor of the plamtiff, Serjeant Sayer cited the tafe of Doe on 
the demife of Barnard dxii Fenton verfus Rcafon^ 7>i'it*.28 Geo. 3. 
jB. R. which he relied upon, as a cafe determined in the venr 

J>oint; and wliich he ftated from a MS. report, in the won» 
bllowing, viz, in a cafe referved it was ftated, that J, S. feifed 
in fee ofthe premifes in quefUon, devifed them in thefe words, 
** I devife all my meffuages in L* to EUz, Crofon my niece, for 
*' her natural life, without impneachment of wafte; ^and immedi- 
** ately after her deceafe, I devife the fame unto fuch iffue of the 
•* body of my niece, as fliall be then living, and to the heirs of 
** fuch iffue. And if there fiiall be onlr one fuch iffue or child, 
•• of the tJody of my faid niece EHfaoeth Crojon, then I give 
** the whole to that, one, and it's heirs,, and if only two chil* 
*' dren then to thofe two and their heirs, equally to be divided 
** between them, as tenants in common ; and in cafe my laid 
** niece Ihall die without iffue of her body then living; or in 
** cafe all fuch iffue Ihall die without iffue, lb that all and every 
'* the defcendants of her body Aall be dead without iffue, then 
'^ I devife the fame to my coulins Barnard ^nd Fenton, and their 
" heirs. , 

•• That in the year 1650 EMzabeth Crofon entered, that lie 
'* afterwards married the defendant Reafon, and that in the year 
'* 1752 (he joined with her hulband in fufferiag a cemmoa 
•• recovery. 

** One quefiion was, whether Elizabeth Crofon took an ellate 
** for life or in.tail? And it was holden by the court of B. R, 
V that Ihe only took an eitaie for life* 

•* Another 



MiCKASLMAS T£BM 12 GbO; III. 1771. 243 

** Another queftton was, whether the remainder limited to 
^* the leflbn of the plaintiff, was fuck a vetted remainder as 
" was not barred by the recovery ? k was holden to be fuch a 
*' veiled remainder, and confequently, that it wa^ not barred by 
" the recovery i and judgment was accordingly given for the 
" leflbrs of the nlaintiff. He cited feveral other cafes, which 
the court thon^t not very applicable to the prefem point in 

Jueftion, uiz. Whether the remainder was veiled m Mrs. 
rownef and therefore it is unneceflary to fet them down here. 

I was prepared and ready to have argued this (ingle point for 
the defendants; but without hearin|[ me, the whole court were 
clearly of opinion, that the remainder limited to Elizabeth 
Brtmme^ the leflfor of the plaintiff, was a contingent remainder, 
and not a vefied remainder; becauile the remainder before limited 
to the heirs nsale or female, lawfully begouen of the body of 
James Longmire ^the fon) as it is ftated verbatim in this cafe 
(reported in the laft term) before, was a good contingent remain- 
<ier in fee (implei and a remainder cannot be limited after a con- > 
tingent remainder in fee ; they alfo held clearly, that the limitation 
over to Ehzabdh Browne, could not enure by way of executory 
danfe^ becaufe James Longmxre the fon, whether he was tenant 
for life, or in tail, (which they did not determine) at leaft had 
a freehold in him fulficient to fupport a contingent remainder ; 
and wherever there is a freehold capable of (upporting a con- 
tingent remainden it (hall never be conflnicd an executor)^ de- 
vilc; Purefoy verfus Rogers. 2 Sound, 388. whereupon judg- 
tnent was given for the defendants)^ /(7/am curiam. And nota^ 
the Lord Chief Juilice De Grey faid, he fliould have been of the 
fame opinion, although the cafe of Loddington and Kyme had 
never been determined. 

As I was prepared to have fpoken to this point, the candid 
reader will not (I flatter myfelf ) be difpleafed with my writing 
Ihortly, the fubftance of what I intendol to have offered to the 
court, if they had been pleafed to hear me. It is as follows : 

This cafe having been twice argued before, (xjiz.) in Hilary 
term lad, by Serjeant high for the plaintiff, and Serjeant Bur* 
land for the defendants ; and in Eajler term laft by Serjeant Glynn 
for the plaintiff, and Serjeant Davy for the defendants. The 
court took time to confider of their judgment; znAinTrinity term 
laft, after having maturely confidered the cafe, were of opinion 
that the devife over to Elizabeth Broztme, the leffor of the plain- 
tiff, was a contingent remainder^ and could not take place, ft 
being defiro)'ed by the common recovery* ^ 

R ft But 



244 MichabLmas TfiBM 12 Gfio. III. 1771. 

But a^ thi$ point had not been moved or d<^bated at the bar, by 
any of the ferjeants, in either of thd former ar^menls, the 
coart was pleaied to order an uherius concilium^ to have this 
iingie point argued, if ^the plaintiflf's council ihould fo think 
fit. Accordingly, it is now contended by my brother Sayer^ that 
this is^ a vcftea remainder in Elizabeth Browne ^ the leffor of ihc 
pIsnntiGT^ and not s contingent remainder ; and in fupport of this 
he has cited the cafe of Doc on the demlfe of Barnard and Icn- 
tan verfus Rtafon^ Trin. 28 & 29 Geo. 2. fi. R, which, he relics 
upon as a cafe determined, in the ver\' point now in debate be- 
fore the court, and which is above ilaicd verbatim^ as cited by 
:my brother Sayer: but as I have a more accurate report of tl»t 
cafe, which I received from my brother Jephfon^ who heard die 
argument and judgmeiu given therein, and noted the fame with 
his own hand, I Ihall cite it verbatifM as I received it from 
him. 

*' In ejeflmcnt, the jury found a fpccial vcrdift, that Ed- 
•* ward Bow Jai^ or firogden^ was fcifed in fee of the preinifes 
** in qiicftion; and by his a/2//, dated the j^oth day oi Jfune 1739, 
*' devtfed as follows ; — I giVe and devife all ray melluages, Qc* 
•* in Leeds, to my wife Elizabeth, for the term of her natural 
'• life, without imt^eachment of wafle; and after her dcccafc, I give 
*• and dcviie the lame to Elizabeth Crofon my niece, for her lu- 
** tural life, without impeachment of wafle, and immediately alter 
, •* her deceafcs I give and devife the fame unto fuch iffue of the 

** body of my faid niece as (hall be then living, and to the hein cf 
** fudi Ifur, (that is to fay) in cafe there Ihali be only fuch iffue one 
** cliilil, then I give the whole to that one child and it's heirs; 
*' and if there fliall be iiiue two or more children, then to fuch 
*• iffae two or more children equally among them, fbare and 
•• fhare alike ; and the heirs and aiiigns of fuch two or more 
'* ciilldi'en, to take bcjtli freehold and inheritance as tenants m 
** common, and not as j jint-tenants. — And in cafe my laid tutu 
•* Jliall die without ijfue of her body bf gotten, tnen bvmg: or in 
•* cafe all fuch illhe fliall die without illue^ fo that all and cvc:y 
'* of the dcfcendants of her bov'iy fliall be dead without iffue» 
'• then, and not before, I givi* and devife aill the aforefaixl pre- 
'* mifcs unto my coufins Thomas Barnard And Jamrs ftuiii^i [the 
** leffor of the plaintiff] their heirs and alligns for ever, to ta!:e 
" both freehold and inheritance as tenants in coHjmon, and nut 
** as joint-tcnants ; upon cond:tio!i neverthelefs, that they, when 
*• they enter upon the premifes, pay 200/. io Jennetta Parker, 
*• if Ihe be then hving, 100/. of which to he paid by Thomas 
'* Barnard ^ and 100/. to be paid by James Fait4^n. 

2 " TU 



MiCHAkx^MAs Tek&t 12 Geo. IIL 1771* 245 

'* That upon the 4th day oi Ftkruary 1744, the teflator died, 
" whereupon his wife entered and died feifed on the 23d day of 
** January 1750, whereupon EUzatetk Cro/on entered under the 
" u'iU^ and being feifed of the prcmifcs, on the sad day of 
*' ^J^ril 1731 intermarried with the defendant Reafoni and in 
*• Trinity term 24 i3 2-5 Cko. 2. 1751, they fuffered a common 
** recovery and declared the ufcs thereof, to each of them for 
" their lives, with remainder to the defendant* and his heirs 
*• in fee. 

** Elizabeth (Crofon) the defendant's wife, died the 16th day 
** of OSober 1752, and never had any ifliie of her body. 

" James Fenton Icflbr of the plaintiff is the devifee, and Tbo- 
'* mns Barnard is the eldeft fon and heir of the other devifee 
" Thomas Barnard. 

" The queilion was, whether the plaintiff was intltled to re- 
" cover the premifes ? and the wliole couit of B. li. were of 
*' opinion he was, and gave judgment for the plaintiff; and in 
'' giving their opinion tlie judges fpoke to the following effc3 : 

*• Ryder Chief Juftice — The <^ueAion is, wh?t remainder was 
'* given to the leHbrs of the plaintiff by the a/i7/, and whether 
*' the fame is ilill fubfiiling, or determined by tlie limitations 
** in the wiU, or by die common recovery. Several things 
** are very clear, 

'* ift^ There is no doubt but the eA«te given to tlie niece 
" was only for life, almoft every word of the dcvife proves it ; 
" it is an cftate for life in fo many words ; after her death* the 
*' iffue (which in a loiU^ is a word that operates as effeflually to 
'* make an eftate-tail* ad the words kiirs of the body do in a deed) 
'* are to uke as purchafers, for the devife is to the iffue of the 
*' body of the niece, and to the heirs of fuch iffue. 

'* 2^/y, It is clear, that the remainder limited* next after the*Co. Jac 590. 
" niece's eftate is conyngent ; xkizssoxici^incafe my niece ditTmth*^^^^'^^ 
" out ijfue oj her body thin Uinng^ Oiew that it muft be con- 
*' tingent, it not appearing what cliild niay be tlien living — ^The 
*' child muft take by purchafe. 

" S^/fy, A recovery will bar a contingent remainder; anyper^ 
'' fon feifed of a freehold may bar ail contingent remamders 
*' ^yfioffn^ent or common recovery^ but not by a^ran^. 

R 3 "But 



246 MicnjL%iMJLB Tbbv 13 Geo. IB. I7;i. 

*« But it doth not foUov from what I have faid, that the re- 
** mainder limited to the lelTors o( the plaintiff, is a cantiogenc 
•• remainder. — In marriage fettlemcnts after the firft remainders 
•• to the firft and other fon^ of the marriage, the next rc- 
** mainders to uuftecs to preferve the contingent remainders, are 
•• vefledi as being limited to perfons in tfft; for by tlie rule of 
'* law, the eitate ihall open and (hut again, and fo tolits quaiUs, 
*• to let in the intermediate remainder«t 

" The queftion then is, whether the limitation to the Icffon 
** of the plaintiff, in this cafe, be a contingent remainder or 
•* not? — It is infifted on the part of the defendant, that the 
** eftate limited to the iffue of Elizabeth tae niece, was a fee 
•• fimplc ; if that be fo, it puts an end to all the other remainders ; 
*^ but we are all of opinion, that it was an eflate^t^ili it being 
*^ an eftabliflied rule, that were an eftate is limited to one and 
•* bis heirs, it may be reftrained by fubfequent words* Here 
*♦ the fubfequent wor4s rcftrain and confine the word heirs^ to 
•? heirs ofkis body^ or iffue; fo a devife to A. for life, is an 
*f eftate for life; but if thefe words are added, viz* And if A> 
*• £ts xvithotU iffue^ then to B. then it becomes an eltate-tail 
•* in A. 

•* He concluded by fayingf It is a known rule of law, that 
•• where particular eftates of freehold are limited, with partl- 
" cular contingent remainders over to perfons not in being, and 
•• then comes a remainder over in fee, to one in being, that is 
" a vefted remainder, (and cited Boreton verfus Nicols. Cro. 
•• Car, 363.) until the intermediate remainders come in <^, and 
•* then It opens to let them in; fo tiiis remainder to the leffors 
*» of the plaintiff is vefted, to take effeft in poffeffion, on the 
** determmation of the former eftates, and does not depend upon 
" the dying of Elizabeth the niece, havinc iffue at her deatli ; 
" for it vefi^ whether flie has iffue or not. He faid, he did not 
" think the cafe of Loddington verfus Kyme was ever detennifled, 
*' although jW. Rayfj^. page 209. fays that it was. Upon the 
" whole he faid, he was of opinion for the plaintiff-r 

«* Denifon Juftice — It xs admitted that Elizabeth tl?e niecfe 
" took an eftate for life; the queftion then is, \\rliether the 
" lifnitation to the leffors of the plaintiff, is, or is not a re- 
•* mainder vefted; it cannot be an executory devjfe, becaufe 
" there is a fufiicient eftate of freehold to fupport .a contingent 
♦'remainder. P«rg^^ verfus -^^g-^rj. 2 &anrf. 380. Befides 
•• it is upon too remote a coniingency to be an executory dc- 
•' vife; if it is a vefted remainder, the common recovery 
" could not bar It, but would give a right of entry for the for^ 
f* feiture^ if it is contingent, then it is barred « Is the li- 

*• piiution 

3 



MxcBABuius TuM 12 Gso. m. 1771« 047 

** autatimiotbeiffiieof ££2tffttfAtlieiiiecew 
'* uil? If a fee» no ocber fee can be limited after, or "^"m ij 
** upon it ; if in tail» the leflbrs of the plaintiff took a vetted 
^ remainder ; I am of <^inion, that the Umitition to the iffne 
'' of EtsMhetk the niece, is of ati cfiate-tail ; for the word kdrs 
** there, it controuled by the words which fellow. A limitatioa 
'* to one for life, remainder to his (rft and other fons in tail noft 
" then in being, which is contingent with remainder to one iik 
*' S^» the laft remunder is vetted notwithfianding the interven* 
'* tion of the efiates-tail; therefore the recovery cannot bar the 
*' plaintiff. I am of the lame opinion with my Lord Chief 
•• Juftice. 

'\ Forjler Juftice— The devife to the iffue of EUzahttk the 
'* niece, was of an ettate-tail, and the remainder over to the 
** leffors of the plaintiff was a vettfed remainder, therefore the 
*' common recovery fuflezed by tenant for life was a forfeiture; 
'* I am of the fame opinion. 

'* Wilmot Juftice— When the limitations are to ^ for life, 
" remainder to the firft and other ions, a fubiequent remainder 
** may be fo framed as to be a contingent remainder; but that 
" is not this cafe. If EHzaheth the niece had left iffue, and iAat 
" iffue had afterwards died without iffue, the leflbrs of the 
'* plaintiff would have taken; Judgment for the plaintiff, /^ 
•' tat. cur. B. /?•" 

Thus, I have ftated the cafe exaflly as it was given to me by 
my brother JtpUon^ becaufe it feemed to me to be a more ac« 
curate report ox it, tlian as it is ftated by my brother Saytr^ 
though I own it does not materially differ. 

I have the authority of a very great and learned judge (the 
late Lord Chief Juftice Wilmot) to fay, (as I have often heard • Wllte 
him lay) that cafes upon wiUs have no great weight unlefs they 3M' 
are exa^ly in the very point, and fimilar in every refpe£l to 
thi cafe before the court ; fo that if I can fliew a material dif* 
ference between our cafe, and the cafe above fo much relied 
U]>on by the plaintift the court will pay little or np regard to 
it in their determination of this cafe. 

I fubmit it to the court, that the eafe of Dot on the demife 
<A Barnard and Ftnton verfus Beafan^ is diflbrent anddiftinguifli^* 
able, from the cafe at bar ; in that cafe Lord Chief Juftice Hitkr. 
and the whole court held, that the eftate devifed to the iffiie of 
Eilzabeth Crofon the niece, was an eftate in tail ; and I fliall not 
cicny, or even m^e the leaft doubt, but that a vefted remain^ 

114 der 



248 MicHAEXMAs Team 12 Geo. IIL 1771* 

der may be well limitecl, after an eftate-uil, whether the eibtc- 
fail be veiled or contingent, there being a variety ot cafes in the 
books to this purpofe : whereas in our cafe, the limitation to 
the heirs male or temale, of the body of James Longmiu the 
fon, was a contingent remainder in fee, and after fuch limita- 
tion in fee« a fubfequent remainder cannot be limited or veft— 
That the heirs of the body of James Longmirt the fon, mtift take 
a fee fimple feems clear from the following conlidcrations. 

Firfl, The words, hdrs male orfemuU^ lawfully io be begtAien 
cftke body of my Jon Janus Longmirefor ever^ they poying^ Gc, 
mud be words of purchafe, they muft be taken as a depgnado 
ferfona^ and tlie wiU mud be condmed in the fame manner, as 
if a iparticnlar name was fubdituted in the place of tliefe words, 
and then the claufe would run thus, wz. ** To my fon James 
•' Jj)ngmire^ for and during the term of his natural life ; aiid 
'* from and after his deceafe, to A. for ever ;" which would 
clearly carry a fee to A. — for the words for exjer, in a tw//, be- 
ing clearly expreflive of the intention of the devifor to give a fee 
fimple, are equivalei^t to the word heirs in a feofTment or grant, 
as hath been often determined. Co, Lit, 9 ^. ht.feB, j86. 

Secondly. The heirs of the body of James Longmire the fon, 
jure to pay out of the faid edate the fum of 400/. that will 

Efs a fee by condru£lion, without regard to the value of the 
ids devifed; for the value (fays the book) is not material, WW- 
lock verfus Hammond. Cro, Eliz, so^. 3 Rep. 21. a. in BorafioHS 
cafe^ and 6 Rtp. 16. a. CoUyer's cafe. 

Thirdly. The ivill fays, " But provided that refufal, failure, 
•« or neglefi be made, of payment of the faid fum of 400/. or 
•• any part thereof, to the perfons and parties I have herein and 
•• hereby bequeathed the fame, then, and in fuch cafe I give, 
" grant and devife, all and fingular the premifes, unto my 
" daughter Elizabeth Browne^ and her heirs; to hold for and 
»• during fuch a term of years as the faid fum of 40c/. may 
•* and (hall be raifed out of the clear rents and mean profits 
^' thereof, and applied and paid to the legatees as above dircflcd; 
«* and when, and as foon as the fum of 400/. fhall be fo raifed 
•• by and out of the mean profits, then it is my will and mind, 
•• that ail and every the above-mentioned premifes fliall return 
^» into the pofleflion, and to and for the fole ufe of the heir wale 
•* or female, lawfully begotten by my faid fon, and \q his or kcr 
'* heirs for ever.*' 

So that if failure of payment of the fum of 400/. be made, 
Mrs. Browne is to enter and hold the demifcd premifes till that 
fam be raifed; apd then all the premifes are to return into the 

poffcISoa 



MicHAEXJiiAs Tebm 12 Geo. III. 1771. 249 

aoflbflion of the kar mak or female ofkisjon^ and to his or her 
heirs for ever ; wliich words arc not only clearly expreflive of the 
tc{latur*$ intention to give a fee-fiinple to the heirs of the body 
of his fon (as purcbafers), but ire the technical words which 
the law requires to pafs a fee-fimple mfeoffments and grants. 

This cafe at the bar, therefore, diiFers very materially from, 
and cannot be compared to that of Doe^ on the demife of jB^r- 
nard^sidi Fenton^ verfus Rtifon^ or to any other cafe where the 
intermediate contingent eftate devifed, is an eftate-tail, or any 
other particular eftate ; for in our cafe the intermediate contin- 
gent eftate devifed, is a fee-fimple ; but in the cafe of Doe verfus 
Reafon^ the intermediate contingent eftate, was adjudged by the 
whole court of B. R. to be an eftate-tail. 

, If I have proved, that the eftate limited to the heirs maU or 
fimale of the body of James Longmire the fon, is a fee fimpk^ 
then I humbly conceive it is moft clear, that the remainder over ' 
to the leflbr of the plaintiff is not vefted, becaufe a fubfequent 
rtmainder can never veft, after a contingent fee Jlmple is li- 
mited ; and the cafe of Luddington verfus Kime, 1 Ld. Raym^ 
J03. 3 Lev. 431. 1 Salk. 224. is direftly in point; fo that . 
the remainder over to Mrs. Browne^ the leffor of the plaintiff, 
could never veft. 

Nota. This is the fubftance of what I intended to Iiavc offered 
to the court, upon the ftnglc point remaining to be fpoken to» 
and hope the reader will excufe me, for givmg him the trouble 
gf reading it, - * 



On the firft day of O&ober 1770, in the vacation after Trinity iVk*. 
terra, in the tenth year of the reign of his prefent Majefty, a 
fine of lands was taken and acknowledged by dedirnus poteflatem^ 
wherein ^ixjohr^ Eardlev Wilmot Knt. ^bcn Lord Chief Juftice of 
the court of Common rleas) and others, were conufors ; which 
was paffed, engroffed and recorded, as a fine of the faid Trinity 
term, in the tenth year of his prefent Majefty. Sir John EardUy 
Wilmot had nothing in the lands .until fome time in the fame 
Trinity vacation, viz. a few days before he acknowledged the 
fine ;- therefore, in the deed to lead the ufes thereof, it was pro- 
perly covenanted by the parties thereto, that the fine (hould be 
levied as of Michaefmas term in the eleventh year of his prefent 
Majefty ; but by miftakc it was made and recorded (as above} as 
a fine of Trinity term in the tenth year of his prefent Majefty. 

And now in this term, upon producing the deed to lead the 
ufaofthefine, and fliewing the miftakei my brother Burland 

moved 



250 MiCHABLMAs TsBM 12 Gso. III. 1771* 

moved the court» that the fine might be altered ; and made a fine 
of Mic}?aelrtias term in the eleventh year of his prefent Majefij, 
accord in;; to tlu* covenant in the deed. But by Lord Chief Juf. 
lice De Grey^ and the whole court, this is not a motion to mati 
a fine, but to mukt a newjine: for the late Lord Chief Jufticc 
U^ilmot nil Ldbuit in ienenuntis in the Triniiy term wliien the 
fine was levied Ciiid is recorded; and although it might cffcnit 
as a bar to himfelf, yet as to flrangers nil apitatur: io that the 
f,ranting this motion might be of the utmoft ill confe()uence to 
ilraiigers ; there fjie my brother took nothing by bis motion. 



«Bi«ck.RTr. Loyd, qziiiam^ &c. vtrfusVf^^vxa\%. C. B. 



tamy &c. for 
treble the 
money lent, 



A CTION of debt upon the fiatute of ufury (12 Ann.^aL 2. 
"^^ ch. 16.) for treble the value of the money lent upon 
an ufurious contracl ; upon the general iflue nil dead, there was 
»p>n \iu' ' a verdift for the plaintiff, fubjeS to the opinion of this court, 
Hatutc of ^.jQj, tjjg foIIowin;T cafe ; which ftates, 
nfuqr. * - ' 

Oneiendit That on the 31(1 Jay of March 1769, one John Hinchcbjt 
tiiTei 6?** «'. ^^^''"g o^cafion to borrow 100/. applied -to the defendant W':/- 
fit t'vejii/ * h.ams^ to borrow the fame of him ; and thereupon it was cor. 
fere a thereof ruptly agreed between the defendant and the faid Hinchcbffe, 
^ntliTs ^^^^ ^^'^ dei'endant fliould lend the faid Hinchdiffe tool, for 
^yofaJ- three nio iths ; for which, Hifickcljffe Mf9S to pay him 6/. and^. 
irancc, at the for in^LTcft by \/ay of advance, which exceeds the legal rate of 
tifT,eonend- Jnterc'fl of 5'. /T icnhm bcr annum. And fuch agreement be- 
iheprna'ty ing niiidc, the laid AV/?r^f//^ rcccived of the defendant 100/. 
Mt..at inftant and immediately paid the defendant thereout the Ann of 6/. 53. 
"b*" "^w *"^ ^^ intereft by way of advance, and gave the drfendant his pro- 
moft'ic"^* miflbry note of hand for 100/. dated London March 3tfl, 1769, 
kroirsht w.ih- payable to the defendant or order, three months after date. 
»n » y?' lor val je received.' 

neit at.er 

*£Eutfce/fj</- Thit the faid Uinchcliffe at the fame time dcpofited in the 
^*f./. V. hands of the cjfendant fevcral valuable cabinets, and other japan 
7 T*-m*Rrp. ^vare, by way of collateral fecurity, with power to fell the fame* 
K. J?. 1S4 ] * • 

That in purfuance of the faid power, the defendant fold one 
ofthe f:iid cabinets for 22/. 41, which having reduced the debt 
due on the faid note, the faid Hinchcliffe^ on the 10th day of 
Au£uJ{ 1769, gave the defendant another note of that date, for 
78/. 19^. 8^. payable to the defendant, or order, two months 
after date, for value received ; vhicb was afterwards paid. 

That 



Michaelmas Tsbm 12 Gso« I1I« 1771. 251 

That the writ of cafiiu €td refponiUndum in tliis caiife was fucd 
out, and ferved upon the defendant, upon the 12th day of July 
1770, which was more than one year after the date oi the firll 
note (31II Marck 1769), and more than one year after the pay. 
mcnt of the iaid 6/. ^* at and for the intereu ; and naore than 
pne year after the expiration of the three months, for which time 
the money was borrowed and lent, as above ftated ; but the fer. 
I'ice of the writ was within one year after tlie total payment 
and difcharge of the faid firil mentioned note for ioo/« 

The (jueflion feferved for the opinion of the court, is, whe* 
ther this aHion is brought and commenced in due time, within 
tlie 31 Ehz. c. ^. Je8. 5 whereby it is (among other thincs) 
enaaed, *^ That ai! fuits upon any penal llatute (except the fia« 
•' tutes of tillaffe) the benefit whereof is Umitcd to the Ofieen, 
" her heirs or lucceffors, and to any other which (hall prolecute, 
'* ihall be fiied within one year next after the offence commit- 
*' ted; andin de&uk of fuch purfuit, the fame fliall be fued 
'* for the Queen, her heirs or fucceflbrs, at any time within two 
•* years after that year ended ?*• . 

This cafe was debated twice at the bar : the firft time by Ser- 
jeant Dax/y for the plaintiff, and Serjeant Glynn {qt the defcnci- 
ant ; and the fecond time by Serjeant Burland for the plaintiff,, 
and Serjeant J^r^A for the defendant. 

It was argued by Serjeant Davy^ in Hilary term laft, for the Flu crg». 
plaintiff, that it appears by the Hate of the cafe, that this aflion ?^"^ ■* ^ 
was committed in due time, viz. within one year next after HiVryu 
the offence committed; for that although the detendant, on th« Geo. 3. 
31ft o{ March 1760, corruptly affrccd to lend UinchcUfft looL 
for three months, for which Hinckcliffe was to pav 6/. ^s. for in- 
tcreft by way of advance ; whereupon, Hinchclijft then received 
of the defendant lOo/. and paid him thereout 6/. ^i. for in- 
tereft, by way of advance and gave the defendant his prortiffory 
note of hand for too/, dated that day, paj able in three months ; 
yet the offence was inchoate, and not conlummate, or compleatly 
committed, until the loth of Auguft 1769, when the whole wa^ 
paid off to the defendant. The defendant before that day might 
nave repented of his finful contra£l before made, and have taken 
no more than his legal principal money and intereft at laft ; bu^ 
not liaving done fo, there was a continuance of the offence from 
the 31ft of March 1679 till the 10th of Avgujl 1769, when, and 
not before, the offence was confummate ; \o that the writ in 
this caufe having been fued out, and fenred upon the defendant, 
on the lath of July xj^o^ the a£lion was brought and com* 
menced in due tune, according to the^/t of 31 Mi^. c. 16. 

And 



2S2 MiCHAEXo^As Tmc 12 Geo. IIL 1771. 

And to prove that this ufurious contrafl was not confummate 
and compleat, until all the money was paid by HinchcUffe to the 
defendant ; he cited the cafe of Browne and FuIJbye^ 4 Leon. 43. 
'* upon theftatute of i^Eliz. r. 8. of \i{\xry^ the cafe was this; 
'* A. borrowed of B^ 80/. and was bound in an obligation to 
** pay to him 90/. at the end of the year. It was the ofpinion 
" of the juilices^ that although the 90/. was tendered, and B* 
*' the lender did tell the fame over, yet if he take and accept 
*' but of 80/. it is not ufury within the ftatute to make a treble 
" forfeited ; but ytl in that cafe, the obligation itfelf is void." 
Alfo in Body and T(^eVs cafe, 3 Leon. 205. there is a note, 
" That it was holden in the Exchequer by Baron C£iiri, that if 
*' a roan lendeth money, and for the forbearing of it contraBs 
'' for more than lo/. . in the loo/* that the bond made for it is 
F«rcii 119. •* void prefently ; and that if he doth receive exceflivc intercfl, 
•* he (hall forfeit treble the value." From which note it 
follows, that he (hall not forfeit treble the value, until he re- 
ceives exceflive intereft. Whereupon Serjeant Davy concluded, 
that the offence in the cafe at bar was not compfeatly commit- 
ted, or confummate, until the loth of Augyjl 1769, and there- 
fore this a£lion w^s* brought in due time. 

Serjeant Glynn lor the defendant, in Hilary term laft, infifled that 
the defendant committed the offence, charged upon him in the de- 
'deration, upon the 31ft of AfarM 1769, which was more than one 
year before this adion vfas brought ; that the ufurious contra/), 
and taking the 6^. 51. fur intereft of 100/. for three months by 
way of advance, coufiituted and compleated the offence upon tliat 
day; for by the ftate of the ci^fe IVilliams the defendant then ad- 
vanced to ninckcliffe the full fum of 100/. who immediately re- 
turned to Williams 61* 3s, for the forbearance for three months; 
fo that the 61^ y» was confidered at that time as ufury, or to be 

E'ven for the ufe of tool, for three months ; and if the court 
ould fay that fuch a contra£l and payment of unlawful intereft 
as this, is no^ffence until the principal money be all paid, it would 
greatly hinder and delay prolecutions for ufury. 

The court broke the cafe (as it is called) in Hilary term laft* 
but gave no decifive opinion. 

Lord Chief Juftice De Grey — ^The queftion is, whether this 
a3Ion was brought within one year next after the offence com* 
mitted ? 

Thecal. 12 Ann. c. 1$. fdr reducing the rate of intereft, enad$« 
^* that no perfon whatfoever, from and after the 29th day of 
*' Septcfnber 1714, upon any contra£l which (hall be made from 

•* and 



MiCUABtMAS TflM 12 GkO. IH; 1771- 253 

<* and after that d«iy (hall take, direfily or indirodlyt for loan 
*' of any monies, wares, &c. above the value of 5/. for the for« 
** bearaace of 100/. for a year, and fo after that rate for a greater 
** or lefler fum«. or for a longer or Sorter time; and that all 
'* bonds, contrails and alTuranccs whatfoever, for payment of any 
" principal, or money to be lent or covenanted to be performed 
** upon or for any uiury, whereupon or whereby there Oiall be 
** referved or taken above tlie rate of 5/. in the 100/. Ihall be 
*' utterly void, and that every nerfon which fiiall after the time 
*' aibrelaid, upon any contrad to be made, take, accept and 
" receive, by way or means of any corrupt bargain, loan, ex- 
** change, chevizance, Ihift or intereft of any wares, merchan- 
*' dize« or oth^ thing or thin|[S whatfoever* or any deceitful 
'' way or means, or by any covm, engine, or deceittul convey- 
*' ance, ior the forbearing or giving day of payment for one 
" whole year, of and for their money or other thing above the 
" fum of 5/* for the forbearing of loo/. for a year, and fo after 
" tliat rate for a greater or leUer fum, or for a longer or fhorter 
*' term, ihall forfeit and lofe for every fuch offence the treble 
'* value of the monies, wares, merchandizes, and other things, 
*' fo lent, bargained, exchanged or (hifted ; the one moiety to 
" the Queen, her heirs and fucceflbrs, the other moiety to him 
'' or them that will fue for the fame, in the fame county where 
*' the offence is committed, by aflion of debt, bill, plaint or 
" information, &c." By this ftatute, three diftinfl (natters are 
confiderable. 

Fir/It («To perfon, upon any contra3, (hall take for loan of 
money, &c. above the value of j/. for the forbearance of ioo/» 
for a year. 

Secondly^ All bonds and afTurances for payment of any money 
to be lent upon ufury, whereupon there fludl be referved or taken 
above 5/. in the 100/. ihall be void. And« 

Thirdlvt Every perfon which (hall receive, by means of any 
corrupt nargain, loan, excliange, chevizance, (hi ft or intereft, of 
any wares, or other thing, or by any deceitful way, for the for- ^ 
bearing or giving day of pa^'ment for one year, for their money 
or other thing, above 5/. (or 100/. for a year, ihall forfeit the 
treble value of the monies and other things lent. 

If a man contraQs to tkke for loan of money above 5/. per 
cent, per annum^ the contrafl is void ; and yet it feems the pe- 
nalty may not be incurred, if he never takes or receives, by means 
of luch contrail, above 5/. per cenL per annum. But at what 
lime foever he takes or receives above 5/. per ccnL for for- 
bearing 



254 MicHASLiiiAs Term 12 6bo. HI* 1771. 

beairing or giving day of pavment for a year, he tharinflant has 
incurred the penahy ; the plaintiff here took about 5/. per cent, 
per annum^ for intereft or ufury, by way of advance on the very 
day of the contra£l« he then had compleatly committed the of- 
fence againft the fiatute» and incurred the penalty therein, as it 
Teems to me, as at prefent advifed : but I give no opinion. 

It is objeQed for the plaintiff, that the offence was inchoate, 
and not compleat upon the ^\^qI March 176Q, but that there 
was a continuance thereof until the loth of Augvjl tj6g^ when 
the offence was compleatly committed, and not bcrfore. I own 
I do not underftand this ; let the plaintiff's council upon Hit 
next argunrscat enter fully into it. 

C^«A/ Juftice-^I Eivc no opinion now. We arc to conGder 
the fafts ftated in the cafe as if found by a fpecial verdid ; the 
days and times in the declaration being under ^videUcei^ are not 
to be rogai dcd : the Aatates of ufury are to be conQrued together 
(like the banlirupt laws) ; and, by thecal. 13 Eliz. c. 8. intitied 
an aft againft ufur)-, are directed to be moft largely and ftrongly 
conftrued for the repreffmg of ufury, againft all perlbns who fliall 
offend againil the feme, by any wuy or device, direftly or in* 
directly. When the defendant received 6/. 5J. of the hf>rrowcr*$ 
money, for the forbearance of 100/. for three months, I think he 
t/ii-n committed the offence, and incurred the penalty. 

BLici/fone Juftice — I cannot fee how this is a continuation of 
the offence from the time of taking the 6/. 5^. illeral intereft 
byway of advance for 100/. for, three months ; but I give no 
opinion, as the cafe is to be argued again. 

A^ares Jiiflice — I \vas of council in this caufe, and therefore 
Ihall not give any opinion; but I muft fav this is a qucfiion of 
great confequence ; the cafe ftated muft oe confidered as if it 
was a fpccial verdifl; in fad, it's ftated, that lOo/. was lent, and 
6L gs. was paid immediately on the loan by way of advance for 
the forbearance of J 00/. for three months ; the aBion 1$ by a 
common informer, who ought to bp ftri£lly confined to time K- 
cording to the 31ft ol Eliz. c.5. ' 

id Arsoment Serjeant Burland for the plaintiff— The queftion is, whethrr 
£a^ te'* *" ^^ aaion was brought witnin one year next after the offence 
SI G«o. 3? was committed, and depends upon the faft ftated in the cafe, 
which is to be confidered as if it was a fpecial verdiil. 

Antiently, it was againft the common law^ to t^kc any premsum 
whatever for the loan of money, as being againft the la\v of God : 
our common law followed it; and by the ftatutcs of 3 ^. 7. a^d 



MzcHABLMAs Tbhm 12 6eo. III. 177^* ^5i 

11 ^. 4. all ufuiy IS damned and prohibited^ as being againll the 
law of God, the laws of the realm, axid the law of nature. 
3 Inji. 152, 

By the ftatuie of 37 H. 8. c. 9. intitled a bill againft ufun% all Anfloj546. 
ads, ftatutes and laws thentofore made concerning ufur}', (nifts, 
corrupt bargains, and chevizances, and all pains, &c, concerning 
the fame' are made utterly void. But notwithftanding it is raU 
led a bill a^nft sfury^ it enafis, that no perfon mall take for 
the forbearing of one year for his money, due for wares, &c, 
above tot* in the 100/. fo that, in trutn, it i% the firft law 
which made ufnry in a limited degree lawful in this kingdom ; 
for before this fiatutc, the taking of any premium for the for^ 
bearance or giving time for payment of money, was called ufiiry^ 
and held to oe both againft the canon law, common law, and 
ilatutes before that time made againft it. 3 Inft, 2^2. 

The ftatute of 5 G? 6 Ed. 6. c. 20. repeals the 37 tl. 8. Aoaoissi-au 
r. Q. concerning oniy ufury, lucre or gains, of or for the loan, 
forbearing or giving days ol payment of any fum or fums of 
money ; and ena£l$, that no perfoi) by any means (hall lend or for- 
bear any fum of money, for any manner of ufury, increafe, lucre, 
gain or intereft, to be nad, received or hoped for, over and above 
the fum or fums lent, upon pain to forfeit the fum or fumi (b 
lent, and the ufury, increafe, lucre, gain or intereft thereof; im- 
prifonment and fine at the King's pleafurc. See Rqfi. J!ut, iii. 
Ufury 7. 

The ftatute of 13 Eliz. c. 8. revives the ftatute 37 H. 8. c. g. Anno 1570. 
and is the firft ftatute that makes bonds, contrails and afliirances 
void, whereby above to/, per cent* per annum fliall be referved 
or taken for money lent. 

By the ftatute 21 Jac. 1. r. 17. no perfon (hall take for the Anno 1013. 
loan of moifies, &c. above 8/. per cent, per annum. 

By the ftatttte 12 Car. 2. c. 13. no perfon (hall take for the AnnoiCfo. 
loan of monies, iic. above 61. per cent, per annum. 

The ftatnte of 12 Ann.Jlat. 9. c. 16. reduces the intereft to Aaao iji]* 
^'per cent* per annUm : 2dly^ It makes all bor^ds and alTurances 
void, whereupon there fiiall be referved or taken more than lol. 
per cent, per annum: And s^/Zy, It gives an a6Hon for treble the 
value of the money lent, againft the lender, if he receives or 
takes more than 5/. per cent, per annum^ for forbearance. 

This aftion !• brought by an informer againft tlie defendant 
ibr uking above £/. /<r f^/. upon the loan of. 100/. for three 

montlis; 



256 MidHAELMAs T£iM 12 Geo. IIL 1771. 

months ; by the fiate of the cafe, there is no doubt but he is 
guiky of the offence ; but the queftion now is, whether ihi^* 
a£lion was brought in due time, viz. within one year next after 
the offence committed. 

I am to Contend that the a£lion was brought in due time, tbc 
the offence was not committed till the whole of the principal 
money was paid to the defendant, and no a£lion would have laid 
for treble the value of the 100/. in the interval of time between 
the taking the 6/. gs» for intereft of 100/. by way of advance, 
and thi^-payraent of the principal to the defendant, upon the lotli 
oiAH^ufi 1769, which is not one year before the a8ionw2s 
brought. 

Suppofe abankcrdifcounts anote, or bill of exchange for 100/. 
payable in a year, and he advances to the perfon difcoiinting 
the note or bill, no more than 94/. the banker is not guilty ui 
the offence of taking more than 5/. fier cent, per annum, before 
he receives the 100/. at the end of the year ; nor would an aSion 
lie againft him for treble the value, viz. 300/. before the end 
of the year : if I am right in this fuppofition, it feems ver)' like 
the cafe now before the court. Thcjlat. 13 £/2z. (hall have 
a ffrong and large conftru6lion againft the ufurer, for fupprefling 
ufury ; and no inconvenience can refult from confiderin^ the 
offence inchoate from the time of the contra£l until the pnnct- 
pal money was paid by the borrower, and received by tlic lender. 

In Heydon\ cafe, 4 Rep. 41. a, &c> in an indidment for 
murder, the ftroke was giv^n on the 4th of AuguJI, annoi-j 
Eliz. and the pcifon ilruck, languifhed till the 9th of Dectmkr, 
anno 28 Eliz. when he died of the wound ; it was held that no 
felony was committed until the death. By the ftatute of Glo- 
cejier\ c. 9. a man fhall fue his appeal within a year and a day; 
it is held the year and day (haU be accounted from the dcarh, 
and not from the ftroke, 4 Rtp^ 42. b, 2 Injl. 320. fo ibt 
although the felony may have relation to and be^n by the ftroke, 
yet it is inchoate, and not compleat felony until the death. So 
m the cjife at bar, the fa£l of the contra£l was begun, but the 
offence againft the ftatute was not compleat, until the mouey 
was wholly paid by the borrower to the defendant the lender. 

But fuppofe the aftion is not brought in due time, with re- 
fpcfl to the informer (which I by no means admit), yet, wiik 
great deference to the court, judgment may be entered for the 
King in the prefent a£lion qui tam^ &c. Serjeant Hawkins cb- 
ferves upon the conftruflion of the Jlat. Eliz. c. ^. that if Sii 
information qui tanig be brought after the year, on a penal ^' 

tute, 



Michaelmas Tebm 12 Geo. III. 1771. 257 

tutc, which ^ves one moiety to the informer, and the other to 
the King, it is naught, only as to the informer, but goodfar Uu 
King, 2 Hawk. P. C. 272, fea. 45. Cro, Car. 3Q0. S. P. in a 
cafe there cited to have been adjudged in the Exchecjuer, Agard 
verfus Candi/h Moore 564. t Ande^. 127. S. C. and Cro. Jfac. 
366., S. P. — During the year next after the ofience committed, 
the penalty is divided between the crown and the informer ; after 
that year, the crown fhall have th6 whole. 

The cafe of Hammon verfus Griffith, Cro.. Eliz. 583. informa- 
tion upon a pertal^atute for the Queen and himfelf, before any 
plea pleaded the informer died ; and £(7^^ attorney general moved 
the court, whether he might proceed upon it for the Queen ? 
and the. court heil that he might; and if the informer will be 
nonfuite(l*,«or releafe\ the Queen may profecute. And fo it was 
ruled between Strdton and Taylor, wnere the Queen's attorney 
would enter a n(?;z vult profcqui ; yti the informer might proceed 
for his part ; and fo wnere the Queen will pardon, &c, for it is 
l?ut for her own part only> wherefojre it was ruled accordingly : 
So that if the a£tion at bar was not brought in due time as to 
the infornler, yet as to the King it is in due time. 

Serjeant Leigh For the defendant — It is objefted by my brother 
hurldnd, that the offence was not committed until the whole of 
the principal money was paid to the defendant. But I conceive 
the ofience Was compleatly committed the very inftant when the 
defendant received the 61. gs. for intereft by way of advar>ce 
for the loan of 100/. for three months, for the offence mentioned 
in the Jlai. 12 Ann. whereby a man (hall forfeit treble the value 
of the money lent, is the rtceiving or taking more than ^. per 
cent, per annum, for the forbearance ; therefore, the time when 
he takes the money for forbearance, is the inftant the offence is 
compleatly committed; no cafe has, or can be cited, to prove 
that the ofience is not committed, until the principal money 
be paid. 

My brother Burland hai ftarted a new point, which was not 
mentioned upon the firft argument, or at the trial, viz. That 
fuppofing the a£lion is not brought in due time with refoeft to 
the informer, yet that judgment may be entered for the King : I 
was not aware of ^his, and therefore defire a few days to look 
into the cafes he has cited. 

G(?»W Juftice — ^This comes on before the court, upon a cafe 
ftated by the confent of the panics, for the opinion ot the court, 
which IS not upon record like a fpecial verdi£l ; fo I apprehend 
we are not obliged to take care of the King, nor can we regularly 

Vol. Ill, S take 



258 Michaelmas Teem la Geo. III. 1771- 

take into confideration any iatereft belonging to the crown In 
this cafe. 

. Chief Juftice De Grey — ^The parties have agreed by a cafe 
Hated to lubmit this fingle point to the opinion of the court, 
whether the a6tion be brought in due time; and as at prefent 
advifed, I think we cannot take into confideration any intereil 
the crown may poffibly have in this cafe. 

Black/lone Juftice — Are information; upon the ftatutes of ufury 
different from a&ibns of debt qui tam^ £?c. ? 

Serjeant Burland — In this kind of aftion the plaintiff recoven 
treble the fum lent in debt, but no damages or cofts ; for if any 
damages were affcffeil, or cofts taxed and entered in the judg- 
ment, it would be erroneous, as it hath been determined in 5. 
R. becaufe there is no debt due^until the recovery, and there- 
fore there can be no damages for the detention of any debt; in- 
formations qui tarn in the court of Exchequer, are merely in the 
nature of popular aflions like the prefent. , 

Chief Juftice De Grey — As to this point [viz.) that fuppofing 
the a^ion is not brought in due time with refpeft to the in- 
former, yet that judgment may be entered for the King^ there is 
no caie'but that mCro. Car. 330. 

3 w*2f ^^^ Serjeant Burland — In Satnlle 6. caf. 15, there is the fame point, 
Fitea* 2-5. P^^ Manwood, Althougli the informer was reftraihed to fue within 
a year, and had paffed his time, yet the information x$ good for 
the Queen. And in Moore 58. caf. 165. it is held by Dyer that 
where a ftatme gives a remedy to the party, fo that he makes 
his fuit within one year after the offence committed ; although 
that he p'ut in his mformation fix years after the offence com- 
mitted, yet it is fufficient for the Q"^^"* '^ \i^\'c the punift- 
ments given by the ftatutc. (Adjourned to look into the cafes.y 

At another Serjeant Leigh — It is infifted, tl**at although this aflion was 
^y. not brought in due time, yet that judgment may be entered for 

the King ; I have looked mlo tlie cafes cited to prove this, and 
find they were all upon informations, and not upon afliohs of 
debt qui tarn, &c. I have iirquircd of the officer?, and mo^ 
eminent praftifers in B. R. and been informed by them, that in 
a6lions qui iam upon penal ftatutes, whenever the informer fails 
in proving that he brought his aftion within a year after the of- 
fence committed, he is always nonfuited ; but no judgment or 
proceedings are ever had aftcrwarils in fuch cafes for the King; 
..... ^ . . - and 



Michaelmas Txbh 12 Geo. IIL I77i. 059 

iatnri Serjeant Hau»iins diftinguiflies between a£lions and informal 
tions jui tarn. 

Serjeant Burland in reply — ^The general queflion is, Whether 
this aaion was brought in due time? I have, in my outfetendea. 
vouredto prove that it was, and muft f»bmk it to the court, that 
my. brother has not fliewn to the contrary, fo (hall pafs on to the 
other matter which I infifted upon ; that although the court ihall 
be oi opinion that the a£lion is not brought in due time, as to 
the informer, yet that judgment upon this record may be en- 
tered for the King. 

My brother Ltigh fays, there's a difference between an a£lion 
qui tam^ and an information qui tam^ and feems to admit, that if 
this had been an information qid tarn, judgment might have 
been entered for the King. He fays, that Stx']tdm Hatokins dif- 
tingutfhcs between a6lions qtd tam^ and informations qui iam ; 
but I take it quite the contrary ; for he treats of both together 
in the fame words, in his obfervations upon the ftatates relating 
both to aflions and informations. 2 Hawk. P. C. ^71, 272. 

In Michaelmas term, 1 & 2 Pk. & Mar, in the Exchequer 
Roll jj, an information qui tarn was exhibited the 23d day of 
November^ 1 6? 2 Ph. & ma. againft one Wyche^ for JkooHng in a 
hand-gun contrary to the Jlat. 33 //. 8. c. 6. whereby the pe- 
nalty IS given, one moiety to the King, and the other to the in- 
former;" and by Jiff* 22. of that fiatnte, if the King within 
one year after fuch offence, 'do not purfue, and every other per- 
fon within one half year after fuch otfence, commencfe their 
fuits, then as well the King, after one year, as every other per* 
fon after half a year, (hall be barred of their fuits, a£liond, in- 
formations, &c. and the parties offending (ha^U be of all fuch 
offcncies and forfeits, clearly difcharged and quit. It apoeared to 
the court that the informer had not exhibited this information 
within half a year after the offence comxpitted, but within cwie 
year, and thereupon judgment is entered upon record for the 
crown for the whole penalty. Confid^ralum eft quod diSus^ 
T. Wyche onetelur to the King and Qceen, for the whole 
penalty. 

This cafe was adjourned over until this prefent terra, when 
'tbe opinion of the court was given that the aftion was not 
brought m due time ; and that they had no authority to inter- 
fere with refpeft to the crown (to the following effeft) 

Lord Chief Juftice DeGreyT-Ufury is money given for the ufe 
of money for tny certain time, and is c»lkd (at thi« day) the in- ' 

s a tereft 



26o MicHAEtMAs TfiRM 12 Geo. III. 1771. 

tertfl thereof; the lending or letting out money at interefi or upon 
ufury, before ^a/. 37 Hen. 8. c. 9. was againft the canon law, 
the common law, and the fiatutes of this realm ; it was forbidden 
•He reigned by the laws of King Mfred^^ Homers Mirror^ cap. i*Je3, 3. 

^m 87 1 1 till 

t^Suppofed to Si.quis de ufura conuiSusfuerit^ omnes resfuas amittat. + Cuf- 
be written tumier de Normandy^ cap* 20. Inter leges fanSi Edwardi. 

year ii€o< If any onc after his death had been found an ufurer, all his 

TeBip.Heo. g<^<Js and chattels were forfeited to the King.- Vfurarij omm 
s.ann«ix54. res^Jivc teftatusjivc inteftatus decefferit^ domini regis Junt^ Gknvil^ 
Ub.j. cap. 16. 

By thejlat. of Merion, cap. 5* anno 1235, it is granted by the 
King, that from henceforth ufuries fhall not run againil any be- 
ing within age. Lord Coke in 2 In/l. 89, fays, this ftatutc is ex- 
!>ounded to extend to the ufurious Jews that were then in Eng- 
and; for at that time, and before the conquefl alfo, it was not 
lawful for Chriftians to take any ufury ; and by this aft it is 
manifefi, that the ufury intended by the fiatute, was not un- 
lawful ; for the ufury due before the death of the anceflor is en- 
afted to be paid, and after the full age of the lieir alfo ; and no 
ufury was permitted -but by the Jews only. 

But by thejlai. Judaifmo, 18 Ed. t. anno 1290, it is ordained 
and eftab'lifhed, that no Jew from thenceforth Ihould take any 
ufury, 2 Infi. 89, 506. 

. And by many authorities and records it appears, that ufui)' 
was unlawful and punifhable in all the reigns until the Jiai. 37 
H. %. c. g. which leems wonderful, as it appears, that between 
the 50th year of Hen. 3. and the 2d year of Ed, 1. which 
was not above feven years compleat, there was paid into the 
King's coffers four hundred and twenty thoufand pounds, of and 
for tne ufury of the Jews. 3 Infi* 151. 

It appears by the hiilory of Charles 5th, that in the year 149^1 
money was borrowed at 40/. per cent, in 1511, at* 20/. per cent. 
and in 1530 ufury was fixed per Charles 5th, at 12L per cent* 
RobertftnCs Hifi. Spain. 

By the Jlat. 37 H. 8. c* 9. anno 1545, no perfon, by way of any 
cbrrupt bargain, loan, exchange, chevizance, fliift or interefi, of 
any wares, or other things, or by any other deceitful way, (hall 
take in gains for the forbearing of one year for his money or ether 
thing that fliall be due for the fame wares, or other things 
above 10/. in the 100/. upon pain of forfeiting treble the valueof 

the 



Michaelmas Tekm 12 Geo. III. 1771. «6l 

the wares, or other things fold, imprifonment, fine and ranfom, 
at the King's pleafure. 

There is no mention in this ftatute made of the loan of mo- 
ney ; the offence intended to be puniOied, feems to be the taiing 
in gains for theforbearing of one year for his money ^ or other thing 
thatfhaU be due for the Jame wares or other things^ above 10/. tn 
the 100/. it's not {zxAfor money lent^ or the ufe or intereft of 
money leht; fo that it leems as if it was then fiill penal to take 
any mtereft (even 5/. per cent.) for tlic loan of money. 

But bv the Jlat. 13 E/iz, c. 8. anno i^jo. feS 3. all bonds, 
(3c. made for payment of any principal, or money to be knt, or 
covenant to be performed upon or for any ufury in lending or 
doing of any thing againft thejlat. 37 H, 8- ch. 9. upon or by 
which loan or doing, there fliall be referved or taken above the 
rate of 10/. for the 100/. for one year, fliall be utterly void. 

By the 21 Jac. 1. c. 17. anno 1623, .no perfon Ihall take for 
loan of' monies, &c, above eight for a hundred for one year. 

By 12 Car. 2, c, 13. anno 1660, no perfon (hall take for loan 
of monies, G?c. "above 6/. for the forbearance of 100/. for a 
year. 

And by the 12 Jnn. c. 16. anno 1713, intitled. An aft to re- 
duce the rate of intereft, &c. ijl. No perfon upon any contra6>, 
fliall take for loan of any monies, (3c. above the value of ^, • 
for the forbearance of 100/. for a year. 2.dly, All bonds and 
aflurances for payment of any money to be lent upon ufury, 
whereupon there fhall be relerved or taken above five in the 
hundred, fliall be void. And yily. Every perfon who fliall re- 
ceive, by means of any corrupt bargain, loan, exchange, chevi^ 
zance, ihift or intereft, of any wares, or other thing, or by any 
deceitful way for the forbearing or giving day of payment for 
one year, for their money or other thing, above 5/. for 100/. for 
a year, fliall forfeit the treble value of the monies and other 
things lent. 

To conftitute the offence for which the prefent aftion is 
brought, to recover treble the value of the money lent, thefe 
tliree things muft concur ; 1^, A contraft between the parties .; 
2^, Monies or other things lent ; 3^^, Above 5/. per cent, pet 
annum, received by the lender for the forbearance. And when- 
ever thefe three matters conciir, then the offence is committed ; 
no time is mentioned with refpeft to payment of the princi- 
pal money lent; the principal money may never be paid, and yet 

s 3 the 



Sjft3 MicHAECMAs Tbbm 12 G^o. III. 1771. 

tJicoffencEbe commilUd: upon the defendant's receiving 6/. 5J. 
interell, by way ot advance of 100/. for three months, he for- 
feited the principal by the llatute of Queen Ann. And \{ Hinck- 
cbff^ th& borrower, . had become a bankrupt before he had paid 
tli^. remainder of the principal, the defendant couid not have 
come ia as" a bonajidc creditor under the commiflion. 

At this day, every receipt of above 5/. per unt. per annum^ 
intereft, would be an offence, for which an a6lioQ qui tarn for 
treble the value of the money lent would lie; and no (hift or 
contrivance whatever, can lake it out of the ftatute of Queen 
Ann, In the prefent cafe it appears, there was a corrupt agree- 
ment or contra& for the loan of 100/. for three months, lobe 
paid 61. ^s. interell for the fame by way of advance ; that the 
lum of 100/. was afluaily lent by the defendant to Himkcliffy 
who received the whole 100/. with one hand, and immediiiteiy 
pjid tlie defendant 6/. ^s. for the three months* interell by way 
of advance, with the other hand : fo that we are of opinion, the 
oflFence was compleatly committed on the 31ft of march 1769, 
which was more than a year before the prefent aftion was 
brought, and therefore the plaintiff cannot recover. 

IFor/ey's cafe, Moor 6^^^ fhews, that taking the interell out 
of the principal, when it is at fir ft advanced and lent, is ufurious, 
and contrary to the ftatute, and 1 Buljl. 20. upon information 
on the 13 Eiiz. c. 8. for ufury, S, P. 

We are alfo of opinion, that we are not authorized in this 
cafe to interfere, with refpeft to the interdl of the crown ; my 
brother Elackflone (now ablent) has informed us, that he is of 
the fame opinion. 

Nares Juftice — I give no opinion, becaufe, while I was at the 
bar, I was of council in the caufe. 

Judgment £or the defendant. 

a Black Rep. Goddard verfus Vanderheyden. C. B. 

[A. bffcomsa TN a fpcclal aflion of trefpafs upon the cafe, the plaintiff de- 
Bail for B. c ared, that whereas the defendant on the 12th day of May 
prove «°a ^7^?» ^^ London^ was arrefted by Sir Henry Sanies Km. and 
creator under Sir Thoma^ Challoiur Knt. then flieriffs of London^ at the fuit 

a commliiion 

of bankrupt agsinft B. till A. hu aAisaMy paid tht debt: and if B/s %Ct of bankrafytcy be prior to 
A.*i paying the debt, he cannot prove it under the conr«minioii at all. Smfxfi. f. 246 Tmag&al. ▼. 
Hetkiejf: mad aljo Paul and J^attj I. 7arm Re^. K. B. 5(^j 'wbtrt tbiautbtrUy aftbtJeMtJn it rtUid m] 

of 



Michaelmas Tbrm 12 Gso. III. 1771* 263 

of one James Bond^ by virtue of the King's writ of fpecial cafnas Special eoant 
ad rcfpondtndum before the time, viz. on the aoth day of May^^ " ^h*^**^ 
in EjoJUt term in the third year of his prefent Majefty's reign, a^inft the?e! 
ifTued out of the court of our Lord the King before the King fcndant for 
himfelf, direQed to the then (heriffs aforefaicf; by which writ the JJ?/!"^*°J" 
King commanded the faid (herifls, that they fhould take the faid piafntiffw^ 
defendant if, &c, and him fafcly keep, fo that they might have became hit 
him before our Lord the King on the morrow of the Afcenjion ^?|''".*"p 
of our Lord, wherefoever, G?c. to anfwer to the faid James in a r.'°" h", {^^ 
plea of trefpafc upon the cafe to thcr damage of the laid James ftancc and 
of 230/. and that the faid {heriffs fliould then have tlicre that «l"eft, an4 
writ; upon which faid writ, an indorfement in writing was duly "cfcndanfa 
made requiring bail for 197/. by virtue of an affidavit of the undertaking 
caufc of aSion duly made and filed of record in the faid court fo>n<i«njnUy 
of B, R. according to the form of the ftatute in fuch cafe made '"** 
and provided. And whereas the faid fherifls then to<jk bail foi; 
the appearance of the faid defendant at the return of the faid 
writ, and on that occafion the faid fVdint'iff' Go Jdard, as bail or 
furety for the faid defendaiu at his fpecial infiancc and requeft, 
on the 12th of May in the year aforefaid, at Lonuon, by hi»^ 
writing obligatory called a bail bond fealed with his feal became 
bound by the faid fherifls- in 394/. with condition for the ap* 
pearance of the faid defendant at the return of the faid writ be- 
fore the King wherefoever he fliould then he in England, to an- 
fwer to the md. Janus of a plea of trefpafs upon the cafe ; and 
an confideration thereof he the (aid defendant then and there 
undertook and promifed the faid plddntiff Goddard to fave harm.- 
lefs and indemnify him the faid Goddard^ of and from that 
writing obligatory : and the faid plaintiff in faft fays that the 
faid defendant, at the faid return of the faid writ, did not appear 
before the Lord the King at Wejlminjler^ where the faid court 
was then held, to anfwer the {di\A James in the faid plea accord- 
ing to the form and efie£l of \\\t faid writing obligatory, but 
ncgleSed the doing thereof ; by reafon whereof the laid writing 
obligatory became forfeited ; and the fame being fo forfeited, 
the laid James^ after the aflignment thereof by the faid fheriffs 
of London to him the faid James y in Trinity term, in the third 
year of his prefent Majefty in the faid court of B. R. at fVe/i- 
minjier impleaded the faid Goddard in a plea of debt for ^\h 
upon the faid bail bond; in which. faid plea, fuch proceedinga 
were liad in the fame court that the. faid James in Michaelmas 
term in the fourth y^ar of his prefent Majefty in the faid court 
of jB. R. at Wejlminjler recovered againU the faid Goddard a$ 
well the faid debt of 394/. as 5/, loi. which were adjudged for 
his damages and cofts proiU patei per recordum : and he uie feid 
Goddard^ for the difcharge of himfelf from the laid judgracnt* 
and for avoiding the imprifonment of bis body and other ex- 

s 4 pences. 



264 Michaelmas Term 12 Geo. III. 1771. 

peiices, on the i^ day of May 1765, at Londony was forced and 
coraDclled to pay a large fura of money, (to wit) the fum of 
500/. in difcharge of the faid judgment, and was forced and 
obliged to lay out and expend and did lay out and expend an- 
other great lum of money, (to wit) ioq/. in his defence in the 
premiles, whereof the defendant •4fter^\^ards at London had no- 
tice; yet the faid defendant, not regarding his faid promife and 
undertaking, but contriving and fraudulently intending craftily 
and fubtiily to deceive and defraud the faid Goddard in this re- 
fpe6l, hath not indemnified or kept harmlefs and indemnified 
the faid Goddard from the faid writing obligatory, nor hath he 

;»aid to the faid Goddard the faid feveral fums of 500/. and 100/. 
laid out by the faid Goddard as aforefaid, or any part thereof, 
although fo to do, he the faid defendant was requefted after- 
wards at London aforefaid ; but he to pay the' fame to the faid 
Goddard^ ox to keep him indemnified froili the faid writing obli* 
gatory, refufed. 

There is alfo an indebitatus affumpfit for 600^. for money ex* 
pended, laid out and paid by the plaintiff for the defendant; 

»Qn fijfum^p* To thi« declaration the defendant pleaded two pleas, tft. The 
general iffue non aff'umpjit. , 

ad Plea, that 2dly. That on the ipth of March 1764, the defendant became 
^^ ^^^^^^ a bankrupt, and on the 12th of the fame month a commiffion of 
,^p.^ anJthjt bankrupt iflued againft him, upon which he was declared a 
thtcdufeoF bankrupt, and on the 2d of Mzy 1765 obtained his certificate. 



hf/. " T h«** ^"^ ^^^^ '^^ caufe of a£lion accrued before he became a bankrupt 
elaicVuch. .2^"^ concluded to the country. Upon both which pleas, iffucs 
being joined; 

The caufe came on to be tried before Lord Camdtn in Tritdty 
term 1765, when a vcrdiS was found for the plaintiflP, fubjeft 
to the opinion of the court of C. B. on the following cafe which 
flates, that 

Cafe. It appeared in evidence, that the defiendaht was arrefted by 

virtue of a writ of fpecial capias ad refpondendumy as dated in 
the declaration, and that the plaintiff at the defendant's requeft 
became bail to the fherifFs, and entered into tjje bail bond men- 
tioned in the declaration, and that the defendant undertook to 
fave harmlefs and indemnified the plainti£F therefrom. 

That the defendant neglefting to put in fpecial hail, at the 
return of the writ, the bail bond was duly afBgned ; and that. 

In 



Michaelmas Term 12 Geo. III. 1771. *65 

In Trinity term, 1763, an a3ion was brought thereon in the 
court of King's Bench againft the prefent plaintiff; and that, * 

In Michaelmas term 1763, judgment was obtained thereon 
againft the prefent plaintiff, as ftated in the declaration ; and 
thereupon the prefent plaintiff brought a writ of error return, 
able in the Exchequer Chamber, and profecuted the fame till the 
affirmance of the judgment herein after mentioned. 

That on the 10th oi March 1764, the prefent defendant.be. 
came a bankrupt, and on the 12th of the fame month a com- 
miffion iffued againft him; upon which he was declared a bank- 
rupt; that. 

In Trinity term 1764, judgment was affirmed in the Exche* 
quer Chamber, upon which the prefent plaintiff brought a writ 
of error returnable in parliament \ that, 

In January 1765, the writ of error in parliament was non* 
proffed; and on the 21 ft of the fame January a writ oi fieri 
facias iflued againft the prefent plaintiff s ^oods, and thereupon 
the prefent plaintiff paid to the plaintiff in the original caufe 
[James Bona'] his debt dye from the prefent defendant and cofts; 
and that, 

On the 2d of May 1765, the defendant having conformed tcf. 
the laws relating to banlcrupts, his certificate was allowed. 

The queftion for the opinion of the court is. Whether the 
plaintiff be intitled to recover the debt and cofts, paid \>y him a^ • 
aforefaid, and the coftsj he himfelf was put Unto ? 

This cafe came on to be argued before the court in Trinity 
term laft, and not before ; the long delay having been occafloned 
by fome fruitlefs endeavours to comprpmife the matter between 
the parties themfelves, and by fome difficiilty in fettling the 
fafts of the cafe afterwards, at the difiance of fome years after 
the caufe was tried before horii Camden* It was then argued by 
Serjeant Leigh for the plaintiff, aitd Serjeant Davy for the de- 
fendant.. ' 

Serjeant Leigh — I conceive, that the plaintiff Goddard is well 
intitled to recover the fuin of money which he has paid for the 
debt and cofts as before ftated, and that \\t could not liave 
come in as a creditor under the commiflion of bankrupt, and 
fwear to any certain debt, becaufc it did not become a debt due 
and owing from the defendant to* the plaintiff before the 26th of 

3 Ja^nuary 



264 Michaelmas Term 12 Geo. III. 1771, I 

pences, on the ifi day of May 1765, at Londony was forced and MlJj^ 
corauelled to pay a large fum of money, (to wit) the fum of hij^ 
500/. in difcharge of the faid judgment, and was forced and I 
obliged to lay out and expend and did lay out and expend an- l:|^ 
other great lum of money, (to wit) 100/. in his defence in the mi^^ 
premiles, whereof the cefendant -Afterwards at i()W(?n had no- fcj / 
tice; yet the faid defendant, not regarding his faid proniife and Jj^c 
undertaking, but contriving and fraudulently intending craftilyftj.^- ' 
and fubtilly to deceive and defraud the faid Goddard in this rcJ 
fpetl, hath not indemnified or kept harmlefs and indemnificJ^/jjj 
the faid Goddard from the faid writing obligatory, nor hath hmi^ '^ 

5 ►aid to the faid Goddard the faid feveral fums of 500/. and looiijuj ^\ 
o laid out by the faid Goddard as aforefaid, or any part there<fe S^ 
although fo to do, he the faid defendant was requefted aft« ' 
wards at London aforefaid ; but he to pay the fame to the ^/^^^^ 
Goddard^ or to keep him indemnified from the faid writing olfe^ ^) 
gatory. refufed. P^' g^n 

There is alfo an indebitatus affumpfit For 600^. for monejrjL 
pended, laid out and paid by the plaintiff for the defendant; %i^% I 

JL' . '"C 2] 

»on fiffumffit. To thi« declaration the defendant pleaded two pleas, \Ji> fn^i^e 
general iffue non affumpjit. liltisf ^^ 

sd Plea, that ai/y. That on the ipth of March 1764, the defendant hq 
^^M^^bTk'^^ a bankrupt, and on the 12th of the fame month a coramiW^^ 
nipV«n3thJt ^^"'^''up' ilTued againft him, upon which he was <Jeclal ^i^g 
th-cjufeof bankrupt, and on the 2d of May 1765 obtained hiS certjr«^^fiinij.y 
tf ' '" 'h^'L^ ^"^ '^^^ ^^^ cink of aftion accrued before he became a bai . 
MTO fudi, -^"^ concluded to the country. Upon both which plca4^i°^ tfie on 
• being joined; T^^/^cov, 

The caufe came on to be tried before Lord Camden in I 
term 1765, when a vcrdiS was found for the plaintiff J!/^^Q to 5^ 
to the opinion of the court of C. B. on the following caff ^fot^, * 
ftates.that P^S:^'^ 

Cafe. It appeared in evidence, that the defendant was st^fC?.^ ' 

virtue of a writ of fpecial capias ad refpondendum^ as IJ^ iefo^g I ^^ 
the declaration, and that the plaintiff at the defendanti"^ ih^ pj r°^« 
became bail to the fteriffs, and entered into tjje bail b<r - ^^h 
tioned in the declaration, and that the defendant und^ 
fave harmlefs and indemnified the plaintiff therefrom. /"^ con,.^* 

That the defendant neglefting to put in fpecial ha?, tefo^^ ^ mc 
return of the writ, the bail bond was duly affigned ; aH^or unde ^^^ 



> 



-1 



Michaelmas Term 12 Geo. III. 1771. *65 

nnii^ term, 1763, an a3ion was brought thereon in the 
f King's Bench againft the prefent plaintiff; and that, * 

lichadmas term 1763, judgment was obtained thereon 
the prefent plaintiff, as ftated in the declaration ; and 
on the prefent plaintiff brought a writ of error return^ 
the Exchequer Chamber, and profecuted the fame till the 
ice of the judgment herein after mentioned. 

on the 10th of AforrA 1764, the prefent dcfcndant.be. 
bankrupt, and on the 12th of the fame month a com- 
iffued againft him; upon which he was declared a bank- 
hat, 

finity term 1764, judgnient was affirmed in the Exche* 
bamber, upon which the prefent plaintiff brought a writ 
r returnable in parliament \ that» 

knuary 176^, the writ of error in parliament was non- 
; and on the aift of the izmz January a writ ol fieri 
iiiied againft the prefent pl^intiff^ ^oods, and thereupon 
fern plaintiff paid to the plaintiff m the original caufe 
iiond'] his debt di|c from the prefent defendant and cofts; 

1 2d of May 1765, the defendant having conformed tcf. 
" [ig to bankrupts, his certificate was allowed. 

_-3n for the opinion of the court is. Whether the 
lintitled to recover the debt and cofts, paid by him a^ - 
nd the coil^ he himfelf was put unto ? 

[came on to be argued before the court in Trinity 

\ not before ; the long delay having been occafloned 

Icfs endeavours to compromife the matter between 

khemfclves, and by fome difficiilty in fettling the 

ife afterwards, at the difiance of fome years after 

; tried before Lord Camdat. It was then argued by 

for the plaintiff, arid Serjeant Davy for the de« 



fh — I conceive, that the plaintiff Goddard is well 
ver the fum of money which he has paid for the 
as before ftated, and that he could not have 
editor under the commiffion of bankrupt, and 
tain debt, becaufe it did not become a debt due 
I the defendant to* the plaintiff before the 26th of 
3 January 



264 Michaelmas Term 12 Geo. III. 1771. 

pexices, on the ifi, day of May 1765, at London, was forced and 
comuelled to pay a large fum of money, (to wit) the fum of 
500/. in difcharge of the faid judgment, and was forced and 
obliged to lay out and expend and did lay out and expend an- 
other great ium of money, (to wit) 100/. in his defence in the 
premiles, whereof the defendant -afterwards at London had no- 
tice; yet the faid defendant, not* regarding his faid promifeand 
undertaking, but contriving and fraudulently intending craftily 
and fubtiUy to deceive and defraud the faid Goddard in this rc- 
fpeft, hath not indemnified or kept harmlefs and indemnified 
the faid Goddard from the faid writing obligatory, nor hath he 

f^aid to the faid Goddard the faid feveral fums of 500/. and 100/. 
b laid out by the faid Goddard as aforefaid, or any part thereof, 
although fo to do, he the faid defendant was requefted after- 
wards at London aforefaid ; but he to pay the fame to the faid 
Goddard^ or to keep him indemnified from the faid writing obliT 
gatory, refufcd. 

There is alfo an indebitatus affum^t for 600^. for money ex* 
pended, laid out and paid by the plaintifFfor the defendant; 

Vw ejfmffit. To thi? declaration the defendant pleaded two pleas, \Ji. The 
general iflue non a^umpjit. . 

ad Pl«a, that 2dh, That on the 10th of March 1764, the defendant became 
the dcfndaat g bankrupt, and on the 12th of the fame month a commiffion of 
rmj 'anJthJt ^^"^l^r^P* iffued againft him, upon which he was declared a 
th-caufeof bankrupt, and on the 2d of May \j6g obtained his certificate, 
•ai>n accrued and that the caufc of a&ion accrued before he became a bankrupt 
wqicVuch. '.^"^ concluded to the country. Upon both which pleas, iifues 
bCittg joined; 



The caufe came on to be tried before Lord Camden in Trifdty 
term 1765, when a verdiQ was found for the plaintifT, fubjea 
to the opinion of the court of C. B. on the following cafe which 
Hates, that 

Cafe It appeared in evidence, that the defiendaht was arrefled by 

virtue of a writ of fpecial capias ad rejpondendum^ as flated in 
the declaration, and that the plaintiff at the defendant's requeft 
became bail to the (herifTs, and entered into tjje bail bond men* 
tioned in the declaration, and that the defendant undertook to 
fave harmlefs and indemnified the plaintifiF therefrom. 

That the defendant negle£l.ing to put in fpecial bail, at the 
return of the writ, the bad bond was duly afligned ; and that. 



In 

4 



Michaelmas Teem 12 Geo. III. 1771. 5l65 

In Trinity term, 1763, an a£lion was brought thereon in the 
court of King's Bench againft the prefent plaintiff; and that, ' 

In Michadmas term 1763, judgment was obtained thereon 
againft the prefent plaintiff, as ftated in the declaration ; and 
thereupon the prefent plaintiff brought a writ of error return, 
able in the Exchequer Chamber, and profecuted the fame till the 
afErmance of the judgment herein after mentioned. 

That on the loiYiol March 1764, the prefent defendant, be- 
came a bankrupt, and on the 1 2th of the fame month a com- 
mifBon iffued againll him; upon which he was declared a bank- 
rupt j that. 

In Trinity term 1764, judgnient was affirmed in the Exche* 
quer Chamber, upon which the prefent plaintiff brought a writ 
of error risturnable in parliament ; that. 

In January 1765, the writ of error in parliament was non- 
proffed; and on the 21ft of the fame January a writ ol fieri 
facias i^ued againft the prefent plaintiff s goods, and thereupoi) 
the prefent plaintiff paid to the plaintiff m the original caufe 
[James Bona'] his debt di^e from the prefent defendant and cofts; 
and that. 

On the 2d of May 1765, the defendant having conformed tQ- 
tfae laws relating to bankrupts, his certificate was allowed. 

The queflion for the opinion of the court is. Whether the 
plaintiff be intitled to recover the debt and cofts, paid by him as - 
aforefaid, and the coft^ he himfelf was put unto ? 

This cafe came on to be argued before the court in Trinity 
term laft, and not before ; the long delay having been occafioned 
by feme fruitlefs endeavours to compromife the matter between 
the parties themfelves, and by fome difficiilty in fettling the 
fa£b of the cafe afterwards, at the diftance of fome years after 
the caufe was tried before Lord' Camden, It was then argued by 
Serjeant Leigk for the plaintiff, arid Serjearit Davy for the de- 
fendant. ♦ ' 

Serjeant Ldgk — I conceive, that the plaintiff Goddard is well 
intidai to recover the fum of money which he has paid for the 
debt and cofts as before ftated, and that he could not have 
come in as a creditor under the commiffion of bankrupt, and 
fwear to any certain debt, becaufe it did not become a debt due 
and owmg from the defendant to* the plaintiff before the 26th of 



264 Michaelmas Term 12 Geo. III. 1771. 

pences, on the i^ day of May 1765, at London^ was forced and 
comuelled to pay a large fum of money, (to wit) the fum of 
500/. in difcharge of the faid judgment, and was forced and 
obliged to lay out and expend and did lay out and expend an- 
other great ium of money, (to wit) 100/. in his defence in the 
premiles, whereof the defendant -afterwards at Lpndon had no- 
tice; yet the faid defendant, not regarding his faid promife and 
undertaking, but contriving and fraudulently intending craftily 
and fubtilly to deceive and defraud the faid Goddard in this re- 
fpe6l, hath not indemnified or kept harmlefs and indemnified 
the faid Goddard from the faid writing obligatory, nor hath he 

f^aid to the faid Goddard the faid feveral fums of 500/. and 100/. 
b laid out by the faid Goddard as aforefaid, or any part thereof, 
although fo to do, he the faid defendant was requefled after- 
wards at London aforefaid ; but he to pay the fame to the faid 
Goddard^ ox to keep him indemnified frond the faid writing obli- 
gatory, rcfufcd. 

There is alfo an indebitatus affumpjit for 600/. for money ex^ 
pended, laid out and paid by the plaintiff for the defendant; 

JHw ejfm^fit. To thi? declaration the defendant pleaded two pleas, \Ji. The 
general iflue non affumpjit. . 

ad Plea, that adlv. That on the 10th of March 1764, the defendant became 
^^ *^bi"k*'^' * bankrupt, and on the ifith of the fame month a commilEon of 
nipVanJthit ^^"'^'^P^ iffued againft him, upon which he was declared a 
th-caufeof bankrupt, and on the 2d of May tj6g obtained hi$ certificate, 
bf '»*" T^h.** ^"^ that the caufe of a&ion accrued before he became a bankrupt 
wmeVuch. '.^"^ concluded to the country. Upon both which pleas, iffucs 
being joined; 

The caufe came on to be tried before Lord Camden in Trifiity 
term 1765, when a verdiQ was found for the plaintiff, fubjea 
to the opinion of the court of C. B, on the following cafe which 
Hates, that 

Cifc It appeared in evidence, that the dcFicndant was arrefted by 

virtue of a writ of fpecial capias ad refpondendum^ as dated in 
the declaration, and that the plaintiff at the defendant's requefl 
became bail to the (heriffs, and entered into tjje bail bond men- 
tioned in the declaration, and that the defendant undertook to 
fave harmlefs and indemnified the plaintiff therefrom. 

That the defendant negle£l.ing to put in fpecial bail, at the 
return of the writ, the bad bond was duly ai&gned ; and that, 



u 



Michaelmas Teem 12 Geo. III. 1771. 5i65 

In Trinil^ term, 1763, an zEkion was brought thereon in the 
court of King's Bench againft the prefent plaintiff; and that, * 

In Michadmas term 1763, judgment was obtained thereon 
againft the prefent plaintiff, as fbted in the declaration ; and 
riiereupon the prefent plaintiff brought a writ of error return, 
able in the Exchequer Chamber, and profecuted the fame till the 
affirmance of the Judgment herein after mentioned. 

That on the lothofMtircA 1764, the prefent defendant, be- 
came a bankrupt, and on the 1 2th of the fame month a com- 
miflion iffued againll him; upon which be was declared a bank- 
rupt j that, 

In Trinity term 1764, judgnient was affirmed in the Exche* 
quer Chamber, upon which the prefent plaintiff brought a writ 
of error returnable in parliament \ that. 

In January 1765, the writ of error in parliament was non- 
proffed; and on the fiift of the fame January a writ of fieri 
jacias iflued againft the prefent plaintiff s goods, and thereupoi) 
the prefent plaintiff paid to the plaintiff in the original caufe 
IJanusBona'] his debt di^e from the prefent defendant and cofts; 
and that. 

On the 2d of May 1765, the defendiant having conformed tQ. 
the laws relating to bankrupts, his certificate was allowed. 

The queftion for the opinion of the court is. Whether the 
plaintiff be intitled to recover the debt and cofts, paid by him as - 
aforefaid, and the coft^ he himfelf was put unto ? 

This cafe came on to be argued before the court in Trinity 
term laft, and not before ; the long delay having been occafioned 
by fome fruitlefs endeavours to compromife the matter between 
the parties themfelves, and by fome difficulty in fettling the 
fafts of the cafe afterwards, at the diftance of fome years after 
the caufe was tried before Lord' Camden. It was then argued by 
Serjeant high for the plaintiff, arid Serjeant Davy for the de- 
fendant. • ' 

Serjeant Leigh — I conceive, that the plaintiff Goddard is well 
intitled to recover the fum of money which he has paid for the 
debt and cofts as before ftated, and that be could not have 
come in as a creditor under the commiffion of bankrupt, and 
iwear to any certain debt, becaufe it did not become a debt due 
and owing from the defendant ta the plaintiff before the 26th of 

3 January 



k 



264 Michaelmas Term 12 Geo. III. 1771, 

pences, on the 1^ day of May 1765, at London^ was forced and 
compelled to pay a large fum of money, (to wit) the fum oi 
500/. in difcharge of the faid judgment, and was forced and 
obliged to lay out and expend and did lay out and expend an- 
other great lum of money, (to wit) 100/. in his defence in the 
premiles, whereof the defendant -afterwards at London had no- 
tice; yet the faid defendant, not' regarding his faid promife and 
undertaking, but contriving and fraudulently intending craftily 
and fubtilly to deceive and defraud the faid Goddard in this re- 
fpe6l, hath not indemnified or kept harmlefs and indemnified 
the faid Goddard from the faid writing obligatory, nor hath he 

J^aid to the faid Goddard the faid feveral fums of 500/. and 100/. 
b laid out by the faid Goddard as aforefaid, or any part thereof, 
although fo to do, he the faid defendant was requefted after- 
wards at London aforefaid ; but be to pay the fame to the faid 
Goddard^ ox to keep him indemnified frorti the faid writing obli^ 
gatory, rcfufcd. 

There is alfo an indebitatus affumpjit for 600^. for money ex* 
pended, laid out and paid by the plaintiff for the defendant; 

Vw sjftmpjit. To thi? declaration the defendant pleaded two nlcas, tjl. The 
general iilue non affumpjit* 

ad Plea, that 2dly, That on the 10th of March 1764, the defendant became 
the dc/-ndaat g bankrupt, and on the ifith of the fame month a commiffion of 
njp'anJthJt ^^"'^rup* iffued againft him, upon which he was declared a 
thcaufeof bankrupt, and on the 2d of May. 1765 obtained hi$ certificate, 
t!?'*" *h*^^L** ^"^ that the caufe of a&ion accrued before he became a bankrupt 
wqicVuch. '.^"^ concluded to the country. Upon both which pleas, iffucs 
being joined; 

The caufe came on to be tried before Lord Camden in Trimly 
term 1765, when a verdift was found for the plaintiff, fubjeft 
to the opinion of the court of C. B» on the following cafe which 
Hates, that 

Caic. It appeared in evidence, that the dcFicndant was arrefted by 

virtue of a writ of fpecial capias ad refpondendum^ as Hated in 
the declaration, and that the plaintiff at the defendant's requeft 
became bail to the (heriffs, and entered into tlje bail bond men- 
tioned in the declaration, and that the defendant undertook to 
fave harmlefs and indemnified the plaintiff therefrom. 

That the defendant negle^lino^ to put in fpecial bail, at the 
return of the writ, the bad bond was duly ai&gned ; and that, 

In 



Michaelmas Tesm 12 Geo. III. 1771. ^65 

In Trinity term, 1763, an a£lion was brought thereon in the 
court of King's Bench agalnft the prefent plaintiff; and that, ' 

In Michadmas term 1763, judgment was obtained thereon 
againft the prefent plaintiff, as ftated in the declaration ; and 
thereupon the prefent plaintiff brought a writ of error return, 
able in the Exchequer Chamber, and profecuted the fame till the 
affirmance of the judgment herein after mentioned. 

That on the 10th ol March 1764, the prefent defendant, be- 
came a bankrupt, and on the 1 2th of the fame month a com- 
miflion ifTued againll him; upon which he was declared a bank- 
rupt; that^ 

In Trinity term 1764, judgment was affirmed in the Exche* 
qucr Chamber, upon which the prefent plaintjfF brought a writ 
of error returnable in parliament \ that. 

In January 1765, the writ of error in parliament was non* 
proffed; and on the aifl of the fame January ^ writ oi fieri 
facias i^ued againft the prefent plaintiff's goods, and thereupon 
the prefent plaintiff paid to the plaintiff m the original caufe 
{^James Bona'\ his debt di^e frpm the prefent defendant and cofts; 
and that. 

On the 2d of May 1765, the defendant having conformed tQ- 
tfae laws relating to banKrupts, his certifjtcate was allowed. 

The queftion for the opinion of the court is. Whether the 
plaintiff be intitled to recover the debt and cofts, paid l)y him as • 
aforefaid, and the coll^ he himfelf was put unto ? 

This cafe came on to be argued before the court in Trinity 
term laft, and not before ; the long delay having been occafioned 
by fome fruitlefs endeavours to compromife the matter between 
the parties themfelves, and by fome difficulty in fettling the 
fafls of the cafe afterwards, at the diflance of fome years after 
the caufe was tried before Lord' Camden* It was then argued by 
Serjeant Leigh for the plaintiff, arid Serjearit Davy for the de- 
fendant. • ' 

Serjeant Leigh — I conceive, that the plaintiff Goddard is well 
intitled to recover the fum of money which he has paid for the 
debt and cofts as before ftated, and that he could not have 
come in as a creditor under the commiffion of bankrupt, and 
fwear to any certain debt, becaufe it did not become a debt due 
ai^d owing from the defendant ta the plaintiff before the 26th of 

3 January 



264 Michaelmas Term 12 Geo. III. 1771^ 

pences, on the i^ day of May 1765, at London, was forced and 
compelled to pay a large fum of money, (to wit) the fum of 
gooL in difcharge of the faid judgment, and was forced and 
obliged to lay out and expend and did lay out and expend an- 
other great lum of mon^, (to wit) 100/. in his defence in the 
premiles, whereof the defendant afterwards at London had no- 
tice; yet the faid defendant, not' regarding his faid promifeand 
undertaking, but contriving and fraudulently intending crahily 
and fubtilly to deceive and defraud the faid Goddard in this re- 
fpe6l, hath not indemnified or kept harmlefs and indemnified 
the faid Goddard from the faid writing obligatory, nor hath he 

S^aid to the faid Goddard the faid feveral fums of ^00/. and tool. 
o laid out by the faid Goddard as aforefaid, or any part thereof, 
although fo to do, he the faid defendant was requefted after- 
wards at London aforefaid ; but he to pay the fame to the faid 
Goddard^ or to keep him indemnified from the faid writing obIi« 
gatory, rcfufcd. 

There is alfo an indebitatus affumpjit for 600/. for money cx^ 
pended, laid out and paid by the plaintiflpfor the defe^fidant; 

»w ojfmift. To thi« declaration the defendant pleaded two pleas, \^. The 
general iflue non affumpjii. 

ad Plea, that ^dl\. That on the loth of March 1764, the defendant became 
**** ^k^u*'*' * bankrupt, and on the 12th of the fame month a coramiffion of 
njps anJthit ^^i^l^r^P* iffued againft him, upon which he was declared a 
th'cjufeor bankrupt, and on the 2d of May 1765 obtained hi$ certificate, 
bf»!r T'h«** ^"^ that the caufe of aftion accrued before he became a bankrupt 
wmeVuch. '.^"^ concluded to the country. Upon both which pleas, iffucs 
being joined; 

The caufe came on to be tried before Lord Camden in Trifdh 
term 1765, when a verdiQ was found for the plaintiff, fubjcft 
to the opinion of the court of C. B. on the following cafe which 
Hates, that 

Cafe It appeared in evidence, that the defiendaht was arrefted by 

virtue of a writ of fpecial capias ad refpondendum, as dated in 
the declaration, and that the plaintiff at the defendant's requeft 
became bail to the fherilTs, and entered into tlje bail bond men- 
tioned in the declaration, and that the defendant undertook to 
fave harmlefs and indemnified the plaintifiF therefrom. 

That the defendant negle£ling to put in fpecial bail, at the 
return of the writ, the bad bond was duly ailigned ; and that, 

' h 



Michaelmas Tesm 12 Geo. III. 1771. 96s 

In Trinil^ term, 1763, an a6lion was brought thereon in the 
court of King's Bench againft the prefent plaintiff; and that, * 

In Michadmas term 1763, judgment was obtained thereon 
againd the prefent plaintiff, as ftated in the declaration ; and 
thereupon the prefent plaintiff brought a writ of error return, 
able in the Exchequer Chamber, and profecuted the fame ti}l the 
afErmance of the judgment herein after mentioned. 

That on the loiYiol March 1764, the prefent defendant, be- 
came a bankrupt, and on the 1 2th of the fame month a com- 
miflion iiTued againll him; upon which be was declared a bank- 
rupt j that. 

In Trinity term 1764, judgment was affirmed in the Exche« 
quer Chamber, upon which the prefent plaintjff brought a writ 
of error returnable in parliament ; that, 

In January 1765, the writ of error in parliament was non- 
proffed; and on the aifl of the (dm^ January a writ oi fieri 
facias i^ued againft the prefent pl^iritiff^ goods, and thereupoi) 
the prefent plaintiff paid to the plaintiff m the original caufe 
[James Bona'] his debt di^e from the prefent defendant and cofts; 
andtliat, 

On the 2d of May 1765, the defendant having conformed tQ. 
the laws relating to banKrupts, his certifjtcate was allowed. 

The queftion for the opinion of the court is, Whether the 
plaintiff be intitled to recover the debt and cofts, paid by him as - 
aforefaid, and the coft^ he himfelf was put unto ? 

This cafe came on to be argued before the court in Trimly 
term laft, and not before ; the long delay having been occafioned 
by fome fruitlefs Endeavours to compromife the matter between 
the parties themfelves, and by fome difficulty in fettling the 
faSs of the cafe afterwards, at the diflance of fome years after 
the caufe was tried before Lord' Camden. It was then argued by 
Serjeant Leigh for the plaintiff, an'd Serjeant Davy for the de« 
fendant.. ' ' 

Serjeant Leigh — I conceive, that the plaintiff Goddard is well 
intitled to recover the fum of money which he has paid for the 
debt and cofts as before ftated, and that he could not have 
come in as a creditor under the commiffion of bankrupt, and 
fwear to any certain debt, becaufe it did not become a debt due 
and oyfin^ from the defendant to- the plaintiff before the 26th of 

3 January 



266 Michaelmas Term 11 Geo. III. 1771* 

January 1765, when he paid the money upon the execution of 
\\\Q fieri facias ^ which was more than ten months after the de- 
fendant became a bankrupt, which was on the 10th of Mard 
1764. 

This aftion is upon a promife to fave harmlefs, which foundi 
wholly in damages. If one gives a warrant of attorney to con. 
fefs a judgment, as a fecurity for faving bail harmleu, thoueb 
the debt lor which he became bail be not paid, he cannot rue 
execution before damnification, Jordan vcrius ThomAins, 6 Mod» 

' 77- 

Upon ^fcirt facias to have execution of damages recovereJ in 
an appeal ; the defendant pleaded, that after judgment the tefta- 
tor fued execution hy fcire facias againft the bail, and it was 
thereupon demurred; adjudged to be no plea becaufe it is no( 
(hewn that he was fatisfied by the execution againft the bail; for 
otherwife, without fatisfaftion, he may always charge the prin- 
cipal. Freeman verfus Freeman^ Cro, Jac\ 549. So in thecalc 
at bar, the debt owing by the defendarit to James Bond^ was not 
fatisfied by the judgment and execution againft the goods of the 
plaintifFC(?^^dr^ the bail, until he aflually paid the money on 
the 21ft oi January 1765, 

The cafe of Chilton verfus Wkiffin and Cromwell, determined in 
this court in Trinity tisrro, 8 Geo. 3. is (with deference to the 
court) a cafe in point ; that was an a£lion upon the cafe upon 
promife, and was in fubftance thus, viz. in confideration thai the 

EVdiniiS ChUion would accept a bill'of exchange, drawn upon 
Im by the defendants for 65/. they promifed to indemnify him; 
the ^\^mi\S Chilton accepted the bill, afterwards the defendants 
became bankrupts, and afterwards Chilton was fued upon the 
bill, and charged in execution for the debt and cofts ; it was re- 
folved by the whole court, that Chilton the plaintiff could not 
come in as a creditor under the commiffion, and that there was 
no debt owing to Chilton before his body was charged in execu- 
tion, which was after the bankruptcy, and that the charging him 
in execution, was the fame as it he had aftually paid Uie debt; 
the prefcntcafe is ftroriger than the cafe q{ Chilton; {or Goddard 
became only bail or fecurity for, and at the requeft of Vandcr* 
hey den: but Chilton became a debtor to the bill-holders by his 
accepting the fame at the requeft of Whijfin ^A Cromwell. 

Serjeant Davy for the defendant — rThe defendant has pleaded, 
that on the loth of March 1764, he became a bankrupt, and 
on the 12th of the fame month, a commiflion of bankrupt ifllied 
againft him, upon which he was declared a bankrupt, and 00 

the 



Michaelmas Tebm 12 Geo, III. 177 1 • a6? 

the ad oi May 1765 obtained his certificate ; and that the caufe 
of aSlion. accrued before he became a bankrupt. 

The queftion therefore is, When, or at what period of time, 
did the plaintiff's caufe of aQion accrue ? Whether at the time of 
the defendant's promife and undertaking to fave the plaintiff 
harmlefs, and indemnified from the bail-bond,' which- was upon 
the 12th oi i^Iay 1763, or from the time of the breach of the 
condition thereof by Ac defendant's not appearing at the re* 
turn of the writ, which was on the morrow of the Afcenjioii the 
13th of May 1763 ; or, whether the caufe of aftion did not ac- 
crue at the time the judgment in debt upon the bail-bond wa* 
obtained againft the plaintiff in Michaelmas ^term 1763 ? all 
which happened, in point of time, before the defendant became 
a bankrupt, which was upon the loiYiol March 1764. 

I contend that although the caufe of afiion might not accrue 
upon the i2th or 13th of jli^^ ^7^Z* (which I do by no means 
admit) yet that it mod certainly accrued in Michaelmas term 
J763, when the judgment in debt was figned, and the debt and 
colls were reduced to a certainty, and the plaintiff became in* 
mtably liable to the fame. 

The breach of the promife, by not appearing, whereupon tKc 
bond became forfeited, was a caufe of aaion ; becaufe, although 
the damage bad not at that time fallen upon the plaintiff, yet 
it was inevitable^ which inevitable damage is a good caufe of 
aSion. . . • 

But it will be enough forme to prove, that by the judgment 
againft the plaintiff upon the bail-oond, the debt« which the 
plaintiff hereby became liable to pay for the defendant, became 
inevitable in Michaelmas term 1763, before the aft of bankruptcy; 
and the plaintiff might have come in under the commiffion, 
and made his claim to the amount of the certain fum of the debt 
and coils, and whenever he had been taken in execution, or paid 
the fame, might have been intitled to receive a dividend propor- 
tionably with the other creditors of the defendant Vanderheyden 
the bankrupt. 

To ground the prefcnt kind of a£lion, there muft not only be 
a thing done amiis by the defendant, but alfo a damage, either 
already fallen iipoh the party (plaintiff)* or elfe inevitable,' And 
therefore, 19 H. 6, 44I if a man forge a bond in my name, I 
can have no aftion upon the cafe yet, but if I am fued, I may, 
for the wrong and damage, though I may avoid it by plea of 
ncn ^/sSum; but if it were a recognizance or fine, I'ihall have 
a writ of deceit prefently, before execution. Aob* i6j. 

1 The 



l6« Michaelmas Term 12 Geo. III. 1771* 

The Sheriff's of Norwich agalnft Bradjhaw^ Cro. Eliz. 53. \9d% 
Bit adion upon the cafe, upon an efcape : the plaintifis declared, 
that whereas ^. iS. recovered againft the defendant in debt, nine 
pounds ^nd ten fhiliings ; and a capias was awarded to take him 
in execution, by force whereof the}*" made their warrant to the 
three ferjeants c?c. there to arreft him, who did arreft him 25ih 
/>irtfary,6?c. he efcaped from them, and afterwards was not found 
in the laid country, dcr quod they were bound by reafon of 
the efcape to anfwer the debt, and alfo to expend money for the 
fcarch gf him, to their damages twenty pounds ; upon not guilty, 
the jury found he was arretted about the 26th of Fetruar^\ 
and then and ihcrc/dp/um fefcujjit. And it was objedcd in 
arreft of judgment, that they alledge that they were chargeable 
with thQ debt, but fay not they were charged/ nor (hew not 
they were otherwife damnified, they have no caufe of a£^ion; for 
it may be, the party will never fue them, or they mav die be- 
fore fuit, and then the fuit is gone : but the court hela that the 
aftion well laid by the fheriflFs upon this efcape, before the party 
fue them ; for the party arretted did wrong to them, by the 
efcape and refcous, ana they are always chargeable to the odicr 
party; and if they flay till they are fued, perhaps the party 
that efcaped may die in the interim^ or will fly the country, thi 
thev cannot hear of him ; and the party fhall not take advantage 
of nis own tort in refcuing himfelf, 

And Barkley and Gibbs verfus Kemf>ftow, Cro, Eliz. 123. in 
offumpjit. The plaintiffs being bailiffs of the, city of Worcepr^ 
Iwd arretted one for debt, and committed him prifoner to the 
defendant to keep ; and the defendant promifed to keep him 
fafely, and fave the plaintlflFs harmlefs of all efcapcs; but 
fuffered him to efcape, by which they were damnified ; upon 
non ajfumpjit it was found for the plaintiffs: .and it was objefied 
in arreft of judgment, that it was not alledged how they were 
damnified, v\z. that they were fued for this efcape, or other- 
wife molefted. Sed non allocatur^ for immediately upon the efcape 
' they were damnified, and in danger to be fued, and might (ue 
$he defendant prefently, and not tarry till they were fued. 

So that- a caufe of aftion accrued in the cafe at bar, by the de- 
fendant's not appearing at the return of the writ, by which the 
plaintiff became chargeable upon his bail-bond. But firf/y, The 
putting the plaintifl 's bail-bond in fuit was an aflual damage, 
and a fortiori^ when judgmeiit was recovered againft him ; for, 
the moment when judgment was obtained, the debt was afcer- 
tained, and the damage to the piaintifFwastna/tVa^/^r, 

In the cafe of Chilton verfus Whiffttt and Cromwell^ the bank- 
ruptcy of defendants was in ^tfjw^ 1766, and Chilton was not 
arrcficd upon the bills he had accepted till September ^i^^" 



Michaelmas Tbbm 12 Geo. III. 1771- - ^^9 

w*ar<ls, fo that the fiiAl judgment* in that cafe, was after the aA 
of bankruptcy; but in the cafe now before the court, the final 
judgment was obtained in Michaelmas term 1763, before the a6l: 
of bankruptcy in March 1764, fo that Goddard might have 
claimed under the commiffion to the amount of the debt and 
cofts, though the aifignees might have fuipended paying him his 
dividend until he {hould have a£iually paid the debt and coils 
upon the judgment; but initead of making his claim he pro<» 
ceeded in error in the Exchequer Chamber, where the judgment 
was affirmed in Trinity term 1764 ; fo that the bankruptcy inter-* 
vened between the time of the judgment and the affirmance 
thereof ; and the cafe of Chilton and Whiffin^ and Cromwell^ is 
different from this. 

Ltigh Serjeant — ^The debt did not accrue to Goddard until he 
a3ually paid the money in January 1765, when a fieri facias 
ifTued againil his goods ; and then, and not before, it became a 
debt owing to him from the defendant : fo in the cafe of Chilton 
verfus Whiffin and Cromwell^ the charging Chilton in execution* 
(which the court confidered the fame as payment of the debt and 
cofls) created the debt from Whiffin and Cromwell^ then, and not 
before, owingto Chilton; and as to the cafes cited from Hob. 267. 
and Cro, Eliz. 53, 123. they are not (with gtcat deference to 
my brother Davy) like the prefent cafe at bar. So I pray judg- 
ment for the plaintiff. 

The court gave no opinion in Trinity term lafl, but ordered 
the cafe to iland over tor further argument, until tliis term ; 
after having thrown out a few hints, touching xhe matter in de- 
bate, to the following effefi, viz. 

The queflion before tlie court is new ; it depends upon the 
^at, 4 W* 5 Ann, ch. 17. and Jlat, 5 Ann. ch. 13. whereby per- 
fons becQming bankrupt, conforming to the bankrupt laws, and 
obtaining their certificates, are difchargcd from all debts, by 
them due and owing at the time they did becomd bankrupt ; 
and in cafe any fuch bankrupt fhall be profecuted or impleaaed 
for any debt before fuch time as he fhe or they became bank- 
rupt, fuch bankrupt may plead in general, as the now defendant . 
has pleaded in this cafe. 

The cafe has been ably argued at the bar; it fccms both jufl 
and reafonable that every fair and bonajide creditor of a bankrupt, 
who cannot be permitted to come in and prove his debt under 
the commiffion, ought not to be barred from having his a£lio& 
againfl the bankrupt for fuch debt as was not due and owin^ 
at the time of the a£l of bankruptcy committed, and fo cQuiS 

not 



272 Michaelmas Term il Geo. III. i??i. 

In aflault and battery before bankruptcy ; during the bank* 
ruptcy plaintiff has a verdi£l with damages, but had not judg- 
ment till after the certificate* Court of opinion the plaintiff 
could not come in under the commiflion, that it was not a 
proveable debt, or a debt due at the time of the bankruptcy. 
Walter and SherlocL liiL 23 Geo. 2. 

This is an action of the cafe, upon a verbal promife, founding 
wholly in damages, at the time of the bankruptcy the plaintilf 
Goddard had fultained no damage, it was then wholly uncertain 
whether he would fuffer any damage ; one cannot fay what cer- 
tain debt he could (wear to ; he brings a writ of error upon the 
judgment recovered againft him on the bail-bond, and thereby 
would induce the court of Exchequer Chamber to believe that 
the judgment was erroneous, and that he owed nothing there- 
upon { how \\\zn can he go at the fame time before the com- 
miffioners, and fwcar the defendant owed him fo much money 
on that account, when he had not paid a farthing of it? The 
plaintiff could not have fworn to a debt in this cafe, fo as to 
Iiave held Vanderheydm to fpecial bail ; they faid they did not 
rely on the cafe of Chilton verfus Whiffin, Upon the whole, the 
court was of opinion that judgment mull be for the plaintiff, and 
the j&^^a was accordingly ordered to be delivered to him, /«r 
totam curiam. 



Samplbn verfus Appleyard. C« fi. 

la trerpaft, 'T^RESPASS, ^udfc claufum fregit. The defendant pleaded 

aefendaoc '■' ifl^ Not guilty. si^, He prefcribed for a certain way, 

prefcribei for (leading from a certain cbmmoii highway in Birkin) into, through 

Jhlctofe^n 2"^^ *^^c^ '1^^ plaintiff's clofes in which, &c. the plaintiff by his 

which, &c. replication travcrfed the prefcription, whereupon iffuc was 

aoimiftakei joined. At the trial of this caufe, the council for the dc 

fM, iThSr * fendant, having admitted the tref{)afs, called ten witnefiesi who 

plea I Terdia clearly proved the defendant's right of way. But it appeared 

^dan ^" **P^" ^^^ evidence, that this way did not lead from a common high' 

The court le. ^^y* ^^' ^^^ ^^^^ ^o"^ ^ certain private way in Birkin; where-. 

luTed to grant upon it was obje£led at the trial, that the defendant had not 

a new trlaJ, proved his prefcription to the way, it being laid in his plea that 

barWig'bceii ^^^ terminus a quo was from a common highway ^ . whereas the 

teled. proof was, that it was from ^ private way; but the right to the 

way over the .plaintiff's clofes in which, 6?c. being clearly proved, 

Mr. Juftice Gould, before whom the caufe was tried, left it to 

the jury (nine of which jury having had a view) who found a 

verai£l for the defendant for his right of way. 

And 



Michaelmas Term 12 Ceo. lit. 1771. 273 

And now Serjeant Lsigh for the plaintiff moved for a ncW 
trial, obje£ling that the defendant had failed in proving the pre- 
fcription as laid in his plea; that the termini a quo^ and ad quern 
over what jand ought to be laid, and proved with the utmdft 
certainty, that here the terminus a quOj was laid to be a common 
highway t but was proved to be a private way; and ht cited Lit^ 
Rep. 295. 

Serjeant Burtafid for the defendant — ^The merits of this cafe 
have been tried, and the courts do not grant new trials for any \ 
little flip in pleadings where they fee that the merits have been 
tried ; but I fubhiit it to the court^ that the terminus a quo^ is Palmer 4x0. 
not a material part of the pre/cr?ption : the defendant is called 
upon in this aaion to (hew his right of way over the place in 
which, &c, he pleads that be has that right by prejcription^ 
the material part of which prefcription is confined to the locus in 
quo ; the plaintiff-could not have replied that the terminus n quo 
was from a private way^ abfque hoc that it was from a common 
highway^ becaufe the merits could not have been tried upon an 
ilfue taken on that traverfe. 

Lord Chief Juftice De Grey — ^This is a motion for a new trial, 
becaufe the defendant in his plea has mifiaken one abuttal of the 
way; if a new trial was to be granted, the defendant would 
amend his plea according to the evidence, and would have an- 
other verdift, in all human probability, liaving given fuch clear 
proof of his right by many witneffes. 

Upon this record, it is certain that the defendant was bound 
to prove his right of way as it is pleaded ; he has proved it to a 
common intent ; the terminus a quo is pleaded to be a common 
highway^ (it is not defcribed to be the King's highway) and a 
common highway may be a private way in common fenfe and un- 
derfianding ; however, the merits have been tried, and therefore 
a new trial ought not to be granted. "^- 

Nares Juftice — I am of jdie fame opinion ; and the court never- 

Sants a new trial when they clearly fee the merits hare- been 
irly and fully tried. 1 

Gould ^yxKict-^). am of the f^me opinion; and that in plead* 
ing a right of way you need not defcribe the terminus a quo^ be* 
caufe the plaintiff may reply extra vjam^ which will be a mat- 
ter for evidence. 

New trial refufed pertotam curiam. 

Vol.111. T Roc 



9,74 MiCHAauxAs Tbbm 12 Geo. IIL 17/1. 



RoC| on the demife of Wrapghanij verfus Hcrfcy. 

C. B. 




^drmife wai 'laid in the oeciaration on the fame ift of January to hold from 

Sy Ws M. *^ 3** ^*y ^^ December then laft paft. After the mcriu had 

crftor died^ been gone into at the trial of the caufe before Mr. JufUce GimU, 

and heu well it was objcfled that the leflbr of the plaintiff had no tide at the 

Vrt^et^^' time of the demife, which appears to be made when his an- 

ceflor was living, for he did not die until five o'clock on the ift 

of January^ fo was alive that day ; but the leflbr having clearljr 

made out and proved his title, the judge direfied the jury to find 

a verdid for the plaintiff, which tney did accordingly. 

And now it was moved to fet afide the verdifi, becaofe the 
anceftor from whom the leffor of the plaintiff claimed by defcent 
was living on the i& oi January 1771, till five o'clock in the 
morning, and there is no fra6lion in a (fay, fo that, in fi£Uon of 
law, he was alive all that day, ahd the leffor of the plaintiff's 
title did not accrue until the beginning of the next day the sd 
of January, 

. But pier lotam curiam. If my anceffor die at five o'clock in 
the morning, I enter at fix, and make a leafe at feven o'clock, 
it is a good leafe. 

riffiw of liw It is faid there is no fraSion in a day, but this it z^Sian in loff, 

To^mznh^Hi^^^^^ J^P^ «^«M«^« Udtr€ debet, but aid much it majr, and diis 

rjdrouch U *^. feen in all matters where the law operates by relation^ andii- 

nwy. vifion of.an injlant^ whidh SLxejiilions in law. A confiable takes one 

who had ftruck anotlier, and then fets him at liberty, the party 

ftricken dies of the firoke; this '\% felony ab initio, but not to the 

See Butler prejudice of ihc confiable who fuffered his efcape. 11 Hen. 4. i9 

cafe^'^R'** ^*^'' ^^' ^f^fi^ " levied yir render, the conufee \>yjiB,ion m 

^^f 3 fp* law haihjafin in an infant to make this render back, but to no 

other purpofe to the prejudice of the conufor, for the conufce's 

wife (hall not have dower, nor fhall the land be fubjcft to any 

fiaiutt, £3c. in which the confuee was bound. See 8 Rtp. U- 

CromweWs Cafe.— — If a man were born the ill of February and 

lived to the 31ft of Janudry ^t years after, and at five o'clock in 

the morning olihai day makes his xmU, ahd dies by fix at niglit, 

that will is good, and the devifor is of age, 2 Ld. Raym. 1096- 

In an a£lion on the cafe for difturbance of his commoni an t%- 

ccption 



MtCHAELMAS 'I^SBM. 1% GbO. IS. 177 1 . ^75 

ception was takea to the declaration that the demife to the plain- 
tiff is aliedg'ed to be on the a6th of March, and the tori don6 
to the plaintifF is fuppofed to be on the tft of May following, 
and- it is notalledged that the plaintiff entered t^ore the ift of 
May; but to this it was anfwered by the court, that it fiiall be 
inteoded that he entered immediately after the making of th6 
ieafe, 1 Lutw, io8. And fee s Burro^ ii6^. Small on thedemifi 
of Bahtr verfus CoU and SJUnnerr where amendments in gea- 
ment are carried much further than formerly, ifi. A verdi£l A verdia 
cures a deftS in Jetting out tht titU^ though it cannot be a de- f"««»<*«^«^ 
fcSive title. 2d, After a verdifl, if the objedion be grounded i"ti,i"*"* ^'*' 
upon the mere miftake of the clerk, or a trifling nicety, there is ihough it 
no need olsipyailual'amendmeni at al)^ the court will overlook the '*[*'rA^*'* 
exception* — By fiftion in law, the whole term, the whole time of *,tte.' 
the affiz^ and the whole feffiqn of parliament may be and fome«> 
times areconfidered as one day, yet the malter of fa£l fhall over* 
turn the fiftion, in order to 'do juftice between the parties. 

Tlie rule to (hew caufe why the verdifl fliould not be fei afid« 
was difcharged. 

Meres ct al' ver/us Anfell ct at*. C. fik 

^RESPASS quare clavfam frent, treading down the grafs, fiviaence. 
"* digging the foil, £?c. 'mMllcroft; the defendant pleaded ; 
ifti Not guiky ; arf, A licence. 

This caufe was tried at the laft afTizes before Lord Mansfield^ 
when a verdift was found for the defendant* And now ferjeants l*arol e»l- 
Lcigh and Glynn moved to fet afide the verdift, and for a rteW <*'"«« ^*^i 



notbe ad- 



to cod* 



trial, upon this ground^ fviz.J that Lord Af<wfi^/</ admitted J^„^ ^ 

parol evidcncQ to be given at the trial ^ which contradifted an tridift a"n"" 
agreement in writing, to which the fame perfon, who tvas ad- "srefment in 
mitted to give fuch parol evidence, was a fubfcribing witnefs, Kl.'e'Zi/f/rr 
and had himfelf th6 cuilody of the written agreementt ' v. miia/ut^ 

% Tirm.Rep, 

Upon Lord Mansfield*^ report, the faOs appearing ujion the ^' ®' ^'^'^ 
trial were, that Mer^s and H.' had the' occupation of certain 
clofesof land of Meres, called Millcroft and Boreham's Field, and 
that the defendant AnfeU and his partner, came to thi^ agree- 
tnent with them by a memorandtun in writing, figned by alt the 
faid four parties, and atteilcd by one Jofeph Matthews^ whereby it 
Vas. agreed by defendant Anfell and his partner^ to exchange 
their copper-mill, &c. with Mtres a(id H. in confideration of 
the grafs and vefture of hay, to be taken by Anfell and partn^ 
irom 6S Bortham's Meadow, anclaiticles were to be made accord-^ 

T t / ingly, 



276 Michaelmas TsBM 12 Geo. III. 17/1. 

ingly, this was in the year 1765, but no mention in the agree- 
ment is made of the clofe called Mxllcroft^ in which, fi?c. and 
only a fpecial paiticular intereit in Borenam Meadow. 

It further appears by Lord Mansfield'^ report, that the defend- 
aint Anfdl and his fervants by his order walked in MUlcroft, and 
trod down the grafs there growing as high as their knees, on pur- 
pofe to have it determined at law, whether the defendant Anjill 
and partner were not intitled to the poflTcifion of Millcroft as well 
as the hay of Boreham Meadow ; fo that here is a clear trefpafs 
proved. 

Matthews the fubfcrlbing witnefs was fubpanaed to give 
evidence on the part of the defendant, but was called by the 
plaintiff, when he produced and proved the written agreement, 
and further depofed, that it was at the fame time (when the 
written agreement was made) agreed by the parties by pard, 
that Anfcu and partner fhould not only have the hay irom off 
Boreham Meadow^ but alfo the whole pofleflion of the foil and 
produce both of Boreham Meadow and Millcrpft ;. and the report 
further fays, that there was another witnefs to prove the fame 
matter. The defendant called no witnefs, whereupon it was left 
to the jury who found a verdift for the defendant, and Lord 
Mansfield reports he is not diffatisfied with the verdift. 

Serjeant Burland for the defendant — Submitted it to the court, 
that Matthews was the plaintiff's witnefs, and that what he hid 
depofed extra the written agreement, was no more than an ex- 
planation thereof, wliich Was frequently admiflible; but 

Per curiam — We are all clearly of opinion that^e verdifi is 
wrong, and muft be fiet afide ; that no />ar(?/ evidence is admiffible 
, . to difannul and fubftantially to vary a written agreement ; the 
parol evidence in the prcfent cafe totally annuls and fubftaniiallv 
alters and impugns the written agreement. Indeed in forae cafc^ 
of wills and deeilsy where there are twp Johns named, or two 
Blackacres mentioned, parol evidence' may be admitted to ex- 
plain which John^ or which Blackacre was meant and intended 
vy \h^ will ox deed. The rules of evidence are. univerfally the 
fame in courts of law and courts of equity. Suppofe a bill in 
equity was to be brought by the defendant to have, a fp^'clfic 
performance ot this agreement, the court would not admit /fir;/ 
evidence, 

You cannot depart from tlie writing, but may ar/^e touch- 

ing the operation thereof. If .a man agrees in writing to (tl^ 

,piackacre for loop/^ (tall parol evidence be admitted tha: he 

\ . intended 



Mi^HAiLMAS Term 12 Geo. IIL ljr7i. 577 

intended IVhiUacre ihould alfo pafs? Ceruinly it (hall not. This 
appeared to be a wilful trefpafs, no licence was proved ; the 
agreement only extends to taking the hay. of Borekam Meadow^ 
And expreffio umus ejl exclufio alterius. Upon the whole, we 
have not the leaft doubt, but that there ought to be a new 
trial. So 

Per totam curiam a new trial was granted. 



HILARY TERM 

laGEo. HI. 1772. 



Thruftout [on deni. Levick] verjus Coppln. C. B./ mBiKk.iiep; 

Soi. S.C- 

P JECTMENT. The cafe was; a man being poffefled Aminpo&f. 

*-^ of a beneficial leafe of a term for years, of the nremifes in ^ *^J*j°* 

queftion, in right of his wife as executrix to her former huf- njhit^'hii 



asfze- 

ciitrix of*her 
ibnner huf* 



band, grants and releafes all his ric^ht, title and intereft of and in «nfe < 
the fame premifes, to the leffqr of the plaintiff. ^ 

The <|ueftion is, Whether the hu(bah4 by ^^^ marriage had power to 
fuch a title to the leafe vefted in him, that he could transfer and •'***'*^ 
convey the fame to the leffor of \he plaintiff, fo that he can Sne!' 
recover in this aQion ? 

This cafe was well ar^ed at the bar laft Michaelmas term by 
ferjeant Ldgh for the plaintiff and ferjeant Whitaker for the de- 
fehdant ; and after time taken to confider till this term, the 
whole court was of opinion for the plaintiff, and this being after 
a verdia, the pofiea was ordered to be delivered to the plaintiff, 
and judgment was entered for him accordingly. 

T'3 Cafe^ 



278 HiLAiY TfiflM 12 Geo. III. 177*. 

Cafes cited by (crje3nt'Ln'gh for the plaintiff. Jkni, Cent, yg^ 
Dier 183. Salk. 306. 5 %. 27. Rufel's cafe. 

Cafes cited by ferjeant WhitakeV for the defendant, 0{. hl^ 
351. Plowd, 294. f^w. Ji^Ti^J 24B. 

And fee various, cafes upon this matter cited by the court. 
Brooke tit. .Executor, pi. 47, 96, 101, t5i, 178. Fiiz. tit. Ext^ 
cutor^pL 23. Cro. Biz. 278. Loftus's cafe.- 

And tee Arnold rertvLS BidgooJ, Cra. Jac^ 318, a cafe cited 
by Lord Chief Juftice De Grey direftly in point. It was '* debt 
•' upon i\\e Jlai. 2 Ed. 6. ch. 13. for not fetting out tithes: 
<* the cafe was, a man being poiieffed of a leafe oi tithes in 
*' right of his wife as executrix to her former hufband, grants 
y totumjus, Malum & intereffefuum 4e ei in decimis prardichs. 
*• After a verdlft for the plaintiff (who claimed under the faid 
*' grant) it was moved in arreft ot judgment that the declara^ 
*^ tion was not good, becaiife the plaintiff had not fet forth anv 
*' good title to have the tithes; but the whole <;ourt unanu 
♦* moufly refolved that fhe'^rant was good, and the leafe he ha4 
♦Mn the tithes in right of his Jeme, did thereby pafs, £?c. And 
*« judgn^ent was for the plaintiff," 



EASTER TERM 

12 Geo. III. 177^. 



$BiMk.Rep< Atkinfon vfrfui Teafdale. C. B. 

Jjj.S.C. 

Inanaaion Cul^itrhnd^rfOSEPH TEASD4LR, late of Uttle GiU'm 
by one com- (to Wit) jf the parifti of Aldft'an in the cotinty ^aforefaid, 
™>"*'»g«/* yeoman, was attached to anfwer unfo Tkomas 

forclwrgSg, Atkinfon in a plea of trefpafs on the cafe, (^c. And thereupon 
plain. iff need the faid Thomos^ by yonn Ward bis attorney, complains, for 

not particu- 

)arl| (hew the JTuidur^* [Btit ia na aftion againft the Lord be mull, a MtJU 7 : Uuvh S07.] 

that 



£a6T1zb TbbH 12 G^d. nl. 1772. i7^ 

that wlieanras the faid tkomas^ on thc-firft day of January in the The record 
year of our Lord 1768, and before, was, and from thence con- U of Trinity 
tinually hitherto hath been and dill is lawfully poffeffed of and ^j^!"^^ 
in a certain manage and diverfe (to wit) two' hundred acre« of . 
land with th^ appurtenances, lying and being in the parifli of 
Ouzeiy in the faid county of Cumberland^ and by reafon thereof Dedtratton 
the faid Thomas^ during all the time aforefaid, bad-and of right ^^ diftorb. 
ouffht to have had, and fiill of right ought to have common of ^ It^I 
paiture in and upon a certain wafte or cotnmon called Ouzeiy tore. 
feU, in the parifh oi Ouzeiy aforefaid in the faid county of Cum* 
berland^ for all his commonable (heep levant and coucnant upon 
his faid nuffuage and land with tlje apputtenances, every year^ at 
all times of the year, as belonging and appertaining to hi$ faid 
ffifffuage and land with the appurtenahces ; and whereas tht faid . 
Thomas J on the faid I ft day ot January in the year -of our Lord 
1768, and before, was, and irom thence continually hitherto 
hath been and ftill is lawfully pofleflcd of and in diverfe (to 
wit) two hundred other acres ot land with the appurtenances, 
lyiM and being in the pariflr of Oue^/^y aforefaid in'tfae faid county 
olumhertand^ and by reafon thereof he the faid Thomas, during 
all the time aforefaid, had and of right o|ight to have liad, s^d ftill 
of right ought to have common of pafture in and upon the faid 
wafte or common called Ouzeby Fell, for all his commonable 
fheep levant and couchant upon his faid laft mentioned land with 
the appurtenances, every year at all times of the year, as belonging 
and sHppertaining to his faid land with the appurtenances ; yet the 
laid jofeph wellknowing the premifes, but contriving and malici*- 
oufly intendingto injureand prejudice the iixiThomas in this behalf, 
and to deprive him of the benent and advanta^ of his faid common 
of pafture belonging to his (aid tenements with the appurtenances 
reipe£kively as atofefaid, while he the faid Thomas was poOeiFed of 
his (aid tenements with the appurtenances as aforefaid and had 
fucfa right of common of pafture as aforefaid, (to wit) on the ift 
day of January in the year of our Lord' 1768 aforefaid, and on 
diverfe other days and times between that day and the day of the 
fuing forth of the original writ of the faid Thomas at the parifti 
aforefaid, wrongjfully and injurioufly eat up, depaftured and 
fpoiled, the graTs -then growmg and being m the faid wafte or 
common, with divers ftieep and lambs, ^o wit^ two hundred 
Iheep and two hundred lambs ; whereby the faid Thomas could 
not for a long time, (to wit) during all the time-laJl aforefaid, 
have, ttfe or enjoy his faid common of pafture in and upon the 
faid wafte or common in fo ample and beneficial a manner as he 
ought to have had and enjoyed the fame ; but during all that 
time was deprived of great part of the profit and benefit thereof, 

T4 • to 



280 Easter Term 12 Geo. HI. 1772. 

to the faid Thomas his'datnage of 2o/. and therefore heBiiags 
his fuit, .£tfc. 

Plei. And the faid Jfofeph^hy Pder Brougham his attorney »CQmes and 

Net guilty, defends die wrong and injury when, c?c. and he fays that he is not 
guilty of the premifes aforefaid before laid to his charge, ardie 
laid i/i^/iia J -above complains againil him ; and of this, he puts 
himfelf upon tRe country; and the faid Thomas doth the lame 
likewife : therefore the flierifif is commanded that he caufe to 
come here from the day of the Holy Trinity in three weeks, 
twelve, &c. by w^om, i3c. and who neither, ^c, to recognize, 
£3c, becaufe as well, &c. 

This caufe w^s tried at the laft fumraer aflizes before Mr. 
Juftice WilUs'^ when averdi£l was found for the plaintiff, fubjefl 
to the opinion of this court, upon this fliort cafe ; which fiates, 

State of the That the plaintiff at the trial proved" his right of common as 
^*' it is laid in the declaration, and that the defendant was'^foa 

comiQoner and had furpharged the common by plotting on more 
than his/!2W, whereupon it was objected, that the plaintiff could 
not recover under this general form of declaring ; fo a verdift 
was for the plaiotiff, fubjeft to the opinion of the court, whe* 
ther the plaintiff hath a right to recover. 

This cafe \yas twice ?urgued at the tar ; in Michaelmas and 
Hilary terms laft, 

jft Atgement Serjeant Leigh for the plaintiff — ^This is an a£lion brought by 
Ccol't^*** one commoner againft another, the plaintiff in his declaration 
ihews his own particular right of common, and cliarges, in ge- 
neral, that the defendant intending to injure him, and deprive him 
of the benefit of his common, on the i-ft day of January 1768, 
and on divers days and times between that dav and the day of 
fuing forth the original writ, wrongfully and injurioujly eat up, 
depaftured and fpoiied the grafs then growing and -being in the 
common, with divers Jhtcp and lambs y( to wit) zoo Jheep and 230 
lamhs^ whereb)^ the plaintiff could not for a long time, (to wit) 
during all the time aforefaid, have, ufe, or enjoy his common oi 
paflure in and upon the faid common, in fo ample and beneficial 
91 manner as he ought to have had and enjoyed the fame ; but, 
during all that time was deprived of great part of ihe benefit and 
profit thereof ; which he lays to his damage. 

It is obje6led, that this being an a£lion by one commoner ^^i^^ 

another y the declaration is too general, and that it ought to 

have fet forth the defendant's particular right of common, aod 

' to 



Easter Term 12 Geo. III. 1772- 281 

to have charged that he had exceeded that right by putting on to 
the common a ceruin number of a certain fpecics ot cattle which 
he had no right to put on. 

In anfwer to this obje£lion. It doth not lie in the plaintiff's i Lot«. sos. 
mouth to fay in Ris declaration what the defendant's particular 5^J^*,tL, 
right of common is» he is charged 'with wrongfully and in- 
jurioufly eating up arid depafturing the common with divers 
fheep and lambs; it is no furprife upon the defendant, who 
beft knows his own right, and might have pleaded it if he 
bad thought proper, or might have come prepared to have given 
it in evidence at the trial (as this is an a3ion upon the cafe) 
upon the general iflue, and tliat he had not put on more cattle 
than he liad a right to put oh, which would liaye fully juuified 
him, 

Serjeant Jtphfon for the defendant — ^The declaration is bad. 
The objefiion to it is, that this being an a£lion brought by 
ooe commoner againft another for furcharging the common, the 
plaintiff ought to have fet forth the defendant's particular right 
of common, and (hewn how he had exceeded that right. There 
is no doubt but this is an afiion by one commoner againil an-' 
othcr^ becaufe thai appears in the fiate of the cafe; but it doth 
not appear by the declaration that the defendant is a commoner^ 
as it ought to have appeared. 

. The declaration only fets out the plaintiff's right of common, 
and that the defendant wrongfully put in his cattle and eat up - 
the grafs, fo that the plaintiff could not have and enjoy his com- 
mon in tarn amplo modo &r. ; at the trial it appeared oy the evi- 
dence for the plaintiff that the defendant had aright of common, 
and had put on more cattle than he had a right to put on, but this 
not being the cafe made by the declarjition, the detendant's coun* 
fel called no witneffes, but objected to the declaration, becaufe the 
defendant's rights and the particular^r^Aflr^^, were not ftated 
therein ; that this being an aflion upon the cafe, the whole cafe 
ought to have been ftated and fet forth iii the declaration. 

If this had been an afiion by a commoner againft zjlranger^ it 
muft be admitted, that this declaration would have been good ; 
but it is otherwife in the cafe of an a£lion by one commoner 
againft another^ or how is the defendant to know whether the 
plaintiff confiders him as a commoner or dijlrangerf In an a£lion 
by a commoner againft the lord^ it muft be fliewn in the decla- ' 

ration how infaS he has exceeded bis limited right. 

Lord 



98CI Easteh l^BM iri Gbo. m. 1773*, 

Lwd Chief Jiifticc Be Crg^^Formeriy, if dne of the com- 
moners bad furcbai^ed the common, by putting more ctttle 
' into the common, than he ought to have common for dUrCf 

then thai commoner who was aggrieved, fued out a writ of ad^ 
itieafitftrheni ifpajiute^ and, by that fuit, all the co^moMrs were 
t^meafured^ as ^^11 thofe wh6 had not furcharged the common, 
as he who had furch^^ged k ; and fae who brought the adion 
W9S alfo to be admeqfured. This writ rf aimtafurtmmt was in 
excellent renledy, whereby tire feveraf^rights of all the' com- 
r. N. B. moners, Were ftiirly fetted and a&ertained by a jury. Viit the 
4to edit t^oy proce&«ipon this %vTit^ iib\ mtratiohi^yfolf 2 is. a, h. primed bf 
*5'» *«• /fo,. Smyihe withwu Tem^sbar^ anno 1 546; 

Iilfteid ^this writ cf MdMeafirremmt againft a commoner fer 
^ a furcharge, an a3ion upon the cafe has been introduced, and 

ufed as a more eafy and Ipeedy remedy for ontcommontr againft 
dnoiher. 

I am of opinion^ as at pr^fent advifet], tint this ^general wav 
of declaring is well emnnh; «hfe deciamtion ftates the plaintiiTs 
ri^fat of common, and that the defendam has wr^n^ttf aid 
injuriou/ly eat u^» dcpaflurei and JpoiUi the graft tn the €4$- 
0ton with divers Jkeiep and lamhs i and the cate ilafces that this 
' M true ; for it dates thait ht/urckArged the cimmoH^ ^y f^^H ^ 
more than his JHnt. The defendant certainly khowt bis own 
right, and might have given it in evidence upon the general 
iflue ; and there is no prgudic^ to either fide by thisgenemi viy 
.of declaring. 

Gould ]\3ii\Kx — Cotirtfe of jnfticc now are more liberal in allow- 
ing of this general way of declaring, than they were fotYMrly; 
it is fufficient now to allfedge that the plaintiff i« foffcjfed oft 
certain meffuage and lands^ and by reafon thereof nas a right o( 
common iti fuch a p^cKre, and that the defendant wrongfuHy 
- difturbed him in the enjoyment thereof; here is a fublbntiai 
charge alledged {or the plaintiff, that he had a right of cominoii 
as belonging to his tenements^ and that the defendant wrong- 
fully and injurioufly depaftured the common with fheep and 
hmbs ; ami the fad tnrns oat to be true upon th^ triaK thit he 
has been a wrong-doer. I am of the fame opinion w^th my 
Lord Chief Juftice ; the tlefendant knows his own right, and 
might either have pleaded it fpecialiy, or have givM it in evi» 
dence at the trial. 

Nares Ju&ice — ^! have foihe doabt whether the decfatttion in 

this cafe is good; for it appears from the ftate of the cafe, that 
Ibis a£lion is brought by one commoner againit another^ for fur- 
charging 



Easter Team 12 Geo. III. 177^- tM^ 

chkrging the common 'with more cattle thati hit had a r^ht to 
put on, but the declaration fays not a word oi furcharging : waA 
therefore it feems to me' that the plaintiff ought to haVe &^wd» 
that the defendant uajuftly overcharged the common, \xfpuiiin§ 
en a certain number ^ caliU beyond msfixnt. See Hern's pleader 
207, £? 64. where the a&ionis for turning on 100 flieep, which 
fort of cattle defendant hadT no right to tarn. on. The defend* 
ant beinir a commoner in this cale had a right to turn on hk 
flieep and Isunbs koaat and couchdnt ; but what pariicular in* 
jury he has done to the plaintiff does not appear m the declanu* 
lion with fufficient cerumty. as it oHght. in my opinion* 

Whereupon iSa& court adjoiimed the cafe, to be argued agiici 
at the bar. 

Serjeant Glynn for the plaintiff— At the trial of thiff caufe be- sa. Aiya. , 
fore Mr. Juftice fVilles, the plaintiff proved his right of cozAmon »•"<» Ha. 
as it is laid in the declaration, and that the defendant, who bad ** ^^ ***. 
a right of cogimon in the fame vrafte or common in refpe3 of a 
parcel -oi* land in liis poffeffion, furcharged the common by 4e. 
pafturing more iheep thereon than he had a riffht to do witbih 
the time mentioned in the declaration ; upon uiis evidence thb 
counfel for the defendant, without calling any witneffes^ obje6ie4 
that the plaintiff ought to have declared more particularly mi 
(hewn the defendant's right of common, and, infad^ m vAml 
mahner he had exceeded that right, by putting in a certain num^ 
bcr andjfiedes of cattle which be had no right to p\^t on. 

In anfwer to this objeflion, I fubmit, with deference«€o the 
court, that the plaintiff is not obliged to take notice of the ^« 
fepdant's right, or that the defendant has any right of common 
at all, but may conflder^ him as a mere ftranger, and a wfong*. 
doer; it was incumbifnt upon the defendant,^ who beft 
knows his own right, to have pleaded it fpecially, and juittfied 
the putting on his Iheep and lambs; or to have provetl it itk 
evidence at the trial. The cafe with refpe£l to the lord is iiU 
ferent where he furcharges, or does any other a£k which hinders 
a commoner frotn enjoying fufficient common ; it muft be {pt» 
cially fhewn in the declarktion ; becaufe every commoner muft • 
be fuppofed to know the lord's right, who is the owner of 
the foil, and may inclofcj or do what- he pleafes with it, if 
he leaves fufficient common for the comi^oners ; but it \v(buld. 
be laying the commoners under great difficulty to oblige ttem, 
to fet out the claim or right of every commoner who wkm^« 
fully puts on 'catftl^, 

Serjeani 



aai Easter Term 12 Geo. III. 1772. 

Serjeant Burland for the defendant. The plaintiff has not de- 
clared upon his right and true cafe, for this declaration is againft 
the defendant as ^Jhangcr^ and it now appears to the court that 
he has a right of common upon the wafte or common in the de- 
claration, fo is not Tijlrangcr. 

The declaration alledges that the defendant wrongfully and in- 
jurioufly-eat up, depkllurcd and fpoiled the grafe in the com- 
fnon, with diver sjhtep and lambs ^ (to wit J 2.ooJheep and fioo lambs ; 
whic[^ laft word^ coming under ^ videlicet are immaterial, and 
mere furpluf^ge; which being rejefted as fucfe, it will ftand 
thus, thai the deftndant eat up^ depaflured andJpoiUd the grajs 
in the common with divers Jlieep and lambs ; which, it appean, 
he had a right to do, becaufe he was intitled to common there, 
as belonging to certain lands in his pofleflion ; but the declara- 
tion alledges that the defendant wrongfully and injurioujly tat up, 
6?r. I irinft,he did not aft wrongfully and injurioufly^ becaufe ne 
had a right to put on dixM^rs cattle as a|^ars by the cafe Hated, 

Here being no certain charge againft'tlie defendant in the de- 
claration, how could he come prepared at the trial to prove his 
right to put on a certain number ot cattle ? Suppofc he had a 
ri^ht to put on all his cattle which were levant and coucliant oa 
his farm, he mud prove how many his land will maintain ; but 
then he muft firft be charged with putting on more tlian were 
kvant and couchant. 

It is faid the defendant mi*ht hsive pleaded his right of com- 
mon for all his cattle levant and couckanl upon his tenement (if 
' ihat be his right), and that he put his faid cattle (fo levcmt and 
couchant) on the common to depafture there, as it was lawful 
for him to do. If the defendant had jjeaded in this manner, 
the plaintiff muft either haVe traverfed his right of common; or 
muiV have xonfeffed his i^ight- and replied that he put on more 
than were levant and couf/iant; in either of which cafes the 
plaintiff muft have failed; for the defendant's right of cammon 
was ftiewn by the plaintiff himfelf at the trial; and -if the plain- 
tiff had replied tliat the defendant put on more than were teuant 
and couchant, t/iat would have been a departure from his declara- 
tion, as it feems to me ; becaufe the declaration doth not charge 
the defendant with putting on more cattle than were levant and 
couchant^ But if this would riot have been a departure^ yet we 
infift the plaintiff ought 16 have declared upon ^furcharge^ this 
being agamft a commoner; and not in this general way, as if the 
adion was againft a mtvejlranger who has n# right at all to 
put on any cattle; it is confoiuiding the nature of aftions. 

Where 



Eastbb T£bm 12 Geo. III. 1772. 385 

Where a man hath common of pafture for his cattle and 
is difturbed by ujlrojtger^ he {hall have a quod perm: Uat habere 
eommuniam paftura ; but where' one commoner is difturbed by 
another commoner who furcharges the common, the writ of 
admeafurement of pafture lies between them, and the declaxations 
in thefe two a£lions muft purfue the writs refpefiively. See the 
writ of quod bermittat habere communiampaftura^ FJz. N.B. 12^ 
edit, per RajtaU^ anno 1635. and the declaration, plea and iifue 
joined thereon. Hern* 641. B. H II. 1^ 7ac. Rotulo 685. And 
for the writ oi admeafurement fee /i/z» A^ B* 125. a. and the de« 
claration thereupon, lib. intrationum^foL 104. a. b. Co. Entr. 48. 
a.pL 1. Raft. Entr. 23. 

Tliefe two writs are now out of ufe, for at this day, anions 
for furcharging, and diAurbances in right of conxmon, are turned 
into fpecia) adions upon the cafe ; but ilill the fpecial nature of 
ihe cafe ought to be Ihewn in the count. 

It is objefted for the plaintiff, that the defendant may be con- 
fidcred as ^Jlranger to the plaintiff, and that he is not conufant 
of the defendant's paiticular right of common. 

In anfwer to this, I apprehend the plaintiff, by declaring jn 
this manner, has undertaken to ihcw that the defendant has no' 
right of common at all ; it alfo appears from the Hate of the 
cafe that the plaintiff 4;new the defendant was a brother com- 
moner, and fo mull alfo kno.w the defendant's particular right. 

# 
When a commoner diftrains cattle damage feafant on the com- 
nion, he muft know whether they are the cattle of a commoner 
or zjlranger^ at his peril, for he cannot diftrain the cattle of a 
commoner. 

Suppofe an aftion was brought by one commoner againft an* 
ether, tor putting on to the common a certain kind of cattle which 
he had no right to put on, I apprehend a declaration charging 
that he wrongTully put on divers cattle, viz. 200 Jlieep and 200 
lambs would be bad: for the JJieep and lambs coming under a 
videlicet, ^Tt wholly immaterial, oee Herns Plead. 64. AJhton*s 
Entr. 60. Robin Entr. 42. 1 Mod. Entr. i7,\. 2 injlr. Cleric. 
241. 2. So that if the aflion be againft a commoner or againft 
tht lord, ihejiircharge muft be ftiewn. 2 Mod. 6. but agamft a 
Jlranger it need not be ftiewn. See 1 Lulw. loi. 2. 

Upon the whole V fubmit it, that if the aflion be aqainft a 
commoner^ or any perfon having an intereft in the hetbage, the 
declaration muft fliew the^rcAjr^f, or the particular injury, or 

thing 



V Easter Twm 12 Geo. III. 1773. 

thing done whereby the plaintiff is hindered of having his com* 
jnon ; the right of a commoner to the herbage is as good as the 
lard*s right; the lord c&nnot inclofe, dig turfs, graver, foil, £?c. 
without leaving fufficient herbage for the com fnoners,-* — I take 
it upon this principle, if the lord grants nie common for j oo 
bealts, if there is not fufficient for him and me he cannot common 
with me, for it would be contrary to his grani ; ahl commons 
were originally hy grant; the commoner has, at leaft, as good 
an intereft in the herbage as the lord ha3, I remember a cafe 
at Winchejkr aiBzes like the prefent aga^n,tt a commoner ^ where 
I made the Kke obje^^ion to the declaration as was made at 
Carlifle in this cafe; the plaintiff was nonfuited, a^d afterguards 
brought another a&ion igid then Ihewed ihejurcharge in his 
declaration. 

Serjeant Glynn in reply — I adi^iit that the words coming under 
the videlicet are immaterial and mere . form ; but the charge in 
the declaration, that the defendant on the ift day of January 
1768, and on divers other days^nd times between that day and 
the day of filing forth the original writ of the plaintiff, xvrong^ 
Jully andinjurioitfly eat up, depaftured and fpbiled the grafe then 
girowingand being in the f^id walle oj common with divers 
ftcep and iambs, is material andfubjlantial; the defendant might 
have fhewn his right by evidence at the trial, that' he had done 
no wrong oi: injury, and that he had only put on fuch cattle, as 
by law he had a right to put on to the common* 

T\ic quod permittat habere communia/n pq/lura is a vfrit jma 
timet, and the writ of admea.furement is a pacific writ for arccr- 
taining and fettling the right of <iom,mon of all the commoners. 

Blackjldne Jufticc — But the writ iyifecundafuperoneratione jrs 
nol,^ pfidjic writ, for if a man be onct admeajured hy d writ of 
admca/iirement, and after^vards he fui'chargeth the commoa again ; 
then the party who fued the fiift writ Ihall have a writ de fi^ 
cundafuperoiuraiione, and fhall recover his damages againft him 
that was defendant in the firft writ, and a^lfo. he fhall forfeit unto 
the King the caxtle which he put in over and above thp due 
number, after the admeqfurement made, by the Jlat. Wefim, %. 
cap. 8. I'xEd. 1. See the writ and count thereupon. Fitz. 
N.B.136. 

Serjeant Glynn — I fay the cafe of the l^d is very diflereot 
from that of a commoner^ the lord muft be prefumed to knoyr his 
own and his commoner's right beft. Whoever claims a right 
in the (oil of another, has taken upon himfelf to (late and prove 
that right. If the lord pleads the common bar of liberum tene^ 

mentum. 



Eastbe Tbbm la Gbb. IIL iff^. 287^ 

mmtum^ the plaintiff mull fhew hb right in his replication* The 
tafe of a commoner is different. 

Lord Chief Ju&ice DeGrey — I think ftiil, the declaration is 
well enough, and that the defendant ought to have come pre- 
par,ed to have proved his right at the trial. 

Govld Juftice — I defire we may t^ke time to confider, for the 
cafe is of great confequence. 

BUckJlone Juftice— I give no opinion at prefqnt ; there is no 
cafe in the books determined on either fide; the cafe in Lutw. 
does not apply to this ; it does not fay that it is neceflary to lay^ 
afurcharge. 

C^k/^ Juftice — If you will claim an ii^tereft in the (oil of 
another you muft ftate that intereft in pleading; but where the 
a£lion is not acainft the owner of the foil, but againft a com- 
moner^ I think you need not* 

Nares JuAice — I cannot think that a commoner is to be con- 
fidered as zjlranger; fuppofe one commoner brings an a6lio9i 
againft anotlur^ for putting on a fpecies of cattle which he has 
no right to put' on, iurely it ought to be (hewn in the declara- 
tion what thofe cattle were ; I think every gravamen oujght to be ^ 
flated ; the declaratioji here only fays the defendant put io divers 
cattle (the videhcei is nothing), the anfwer is, he had a right to 
put in divers cattle. I give no opinion. 




The court ordered th^ cafe to ftand over for judgment untfl 
this term, when the Lord Chief Juftice delivered the judgment 
of the whole court for the plaintiff to the following effe£t, 

, Lord Chief Juftice Pt Cr/y. 

At the trial, the plaintiff proved his right of common as it ^s jodgnentof 
laid in the declaration, and that the d^fendapt was alfp a cam- the Gouru 
«(ww, and h^Afuxckarged the common, whereupon, without 
calling anv witneflcs for the defendant, i( wa^ obje3ed by his 
counlel, tnatthe plaintiff ought not to recover lender this genersd 
form of declaring ; whereupon a- verdi^ was given for t^ie plain- 
1 ' ^ tiff 



288 Eastbk Term^ 12 Geo. III. 1772. 

tiflFand damages, fubje6l to the opinion of this court; whether 
the plaintiff had a right to recover. 

Two things are material to be (hewn in a declaration of this 
fort, i/f. The plaintiff's right of common, and 2dly^ The diC- 
turbance of thai right by tlie, defendant. 

The plaintiff has well and fufficiehtly (hewn the Jlrjly and the 
queftion now is, whether he has well and fu(ficiently alledged 
and pointed out the latUr^ viz. the didurbance of his 'right by 
the defendant ; whether he (plaintiff] ought not to have pointed 
out the particular ^^rz/fr injury^ by (hewing hozv^ and by what 
ways and means ^ (he iicitn&nijurcharged the common. 

The old books are more explicit touching rights of common 
than modem books, and what the antient remedies were in all 
cafes concerning rights of commoTi^furcharging^ bfc, may be 
feen in FUta^ lib. 4. c. 2^. foL 26. De AdmenJ'urationc pafiura. 
Bra£l. 222. Fttz. N. M, fVrit of Aimtafurcment of Pafiwt. 
225, 126. . ' 

Inflead of thefe antient remedies, anions upon the cafe ha\T 
been introduced, for recovering damages for obilru3ing any one 
in the enjoyment of his coipmon ; the commoner mud be da- 
maged to intitle him to this adion. 

Deciaradon In Robert Mary's cafe o R^p* 3* 10 Jac. 1. The plaintiff 

ckargei, that (hews that he is a copyholder, and that the lord from time where- 
oB^'uMttiT' of, &c. for himfelf and his copyholders hath had common in a 
vhichde. Certain pafture, and that the defendant oh the ift of May fui 
pafturedthe m his Cattle, which depaftured until Michaelmas^ whereby he 
w"©^*^'^ could not have his common in fo beneficial a manner, &c. de- 
' ' fendant pleaded not guilty. The jury found a fpecial verdift, 
that as to putting in the* cattle defendant was not guilty» and 
as to depafturing the cattle G?f. that he' was guilty. It was re- 
folved tnat the a3ion well laid, notwithftanding the declaration 
be, that the defendant did put in his cattle, which is a mi/- 
Verdift find! fea/ance, and the jury find that he did not put in his cattle, but 
Mt*«i"bit ^^^ ^^ ^'^ depajlure them &c. and they might get in by efcapt 
Sat he de- which is a nonjeafance (as it was objeQed) which is contnury to 
paftared. the declaration and againft the plaintiff. But refolved^ the di* 
pa/luring whereby the common is deftroyed is found, which is 
Refolvedtke x\\t fubjiance : and the plaintiff is 2ijlranger^ and it is not ma- 
^"**'*""«^ terial how the cattle came in, and the judges, in verdifts regard 
Lfooodr iht fuijlance and not the circumttance. It was refolved 2dly, 
That the aftion lies for one commoner alone^ for he may diflrain 
the cattle ol^Jlranger damage feaf ant ; and it he hath a free- 
hold 



Faster Term 12 Geo. III. i772. ftSp 

hold in his common, and the lord or others will dcpafture or 
confume all the herbage in the land where the common is to 
be taken, the commoner (hall have an affize: and by confe- 
quence the commoner in that dafe, having common but at tuiU^ 
by copy, (hall have an a3ion upon the cufi. In Trin, 41 Eliz^ 
€. B. rotulo 1536. Holland a commoner had the like judgment in 
an aflion upon the cafe. And in HiL 5 Jat. C. B. rotulo 1427, 
Ingland a commoner had the like judgment, where the verdift 
was found as in Mary's cafe, and that the cattle efcaped, the de- 
fendant pretending to have common pour cau/i de vicinage. 

A commoner mud be damaged to entitle him to an a3ion ; the 
injury may be done by the lordt by a Jlranger, or by a com- 

moner. 

The lord may approve agairift a tenant that hath common of Iftheiordln. 
p^fture, as often as he pleales, fo that he leave fufficient common^ «J«^«» »n^ 
but if he doth inclofe any part, and leave not fufficient com- ftj^cleat**^* 
mon in the refidue, the commoner may break down the in- commonythe 
clofure,. becaufe it fiandeth upon the ground which is his com- woiiiiooen 
mon. If the owner of the foil ploweth up the land, the com- Siwn^iheio. 
moner (hall have an a£lion upon the cafe in the nature of a quod ciofore, 
ptrmittat; a commoner may have an adion upon the cafe or an and may have 
affize againft the owner of the land,' for putting on more cattle a^»«> ag«inft 
than he ought to put on, and thereby not leaving fufficient com- '*****f^» 
man for the cattle of the commoner, 2 Leon. 201, 202, 203. And 
the lord may be ftinted by cuftom in his own foil, and a com- 
moner may diftrain the cattle of the lord by cuftom, Yelv. 129. 
or he may have an affize of common againft the lord. F. N. B* 
125. ^Jnjl.%5. 

The quod permittat de commufda paftara is a writ of right. 
Booties real aSions 238. it is in the nature of a writ of entry Jur 
djffeijin done to the ancellor of the plaintiff. Regift. 155. b. 
And in declaring upon this writ the plaintiff only (hews his own 
right, but docs not ftatc the defendant's ground or pretence cfin- 
ttrrupHon of the plaintiff in his right, as appears m Ruji. Entr. 
539. a. pi, 4. and fee F. N. B. 123. 

Smith verfus Feverel, 2 Mod. 6. The jplaintifT brought an ifaftnnger 
aft ion on the cafe againft the defendant, (et£ing forth, that he p«tion cattle 
liad a right of common in A, and that the defendant put in his j^e*w!nwof 
cattle, viz. horfes^ cows, hogs, &c. ita quod communiam in tarn the foii» ho 
amplo modo habere nonpotuit. The defendant pleads a licence from muft plead 
the lord of the foil to put in averiajua, which was agreed to com*. }Jj^*j]JJ' j^^^ 
prehend hots as well as other cattle, in the moft general fenfc. forthecom- 
The plaintiff demurs; and, after argument, the court were all of monen. 

Vol. Ill, u opinion, 



f^QQ B^arsR fTiuuff 12 Geo* HI. I7T3; 

opinion, that judgment fhould be .given lor ,tbe j>laintiff« tie- 
caule the defendant, in his plea, hath not allcdged that there was 
fufBcient common left for the commoners ; J^ the lord cannot 
tntm, 190. let out to pajlure^jh much as not to Ua;ve Jufficient for the com- 
moners^ Andthough.it was obje3ed, that the plaiBtiflf. might 
have replied. Specially, ^d ihewn there was not enough, yet it 
was agreed hy the court, that, in this atfe,.he.need not, becaufc 
his declaration,. to that purpqfe, was full enough; and tltat being 
the vcrygifi oCthe a£lion, the defendant (hould have pleaded it. 
It was held indeed, that in an aflion upon the caJEe by the com-- 
moner againft the lorJ^ he mud particularly ftxew the Jure Aarge: 
bat if. the a£lion be brought againft the^rangcr^ (hch a ihewing 
as j^s hcre^ is fufficient. 

lo declaring From this cafe it feems, tliai in an a£lion againft the l&rj^ it is 

jBunftAe neceflary to (hew a particular yitrfAar^^/ and. in Luiio. loj. it 

chawe muft .^^^ ^9 held^^r curiam* but that'w^% not the point there in judg- 

%e*(hewn, at ment» .io it's not a;tfi£a^/4etermination. See feverai precedents 

it ftenu. Qf ^^^ declarations. Ucrn^s Plead. 64, x 25, 207, 2s6, iij. 

It feenis clear .that when an aQion on the cafe is brought 
againA ihe owner of the /oil ^ for obllrudin^ a commoner in the 
enjoyment of his common, the particular injury done louft be 
ihew^ in the declaration. 

If the lord Jurcharge the common* a commoner cannot chafe 
the lord's beait out oi the common ; but the beafls of ^firanger^ 
the commoner ma)r diftrain dajmagejeq/ani ^,or may chq/e them out 
Aaiononthe 9^ the common, tor. ^Ji ranger has no coloLir to have his catilc 
cafe by a there ; a commoner cannot kill conies upon the common ; but if 
commoner the londfurcharge the foil with conies, the commoner^ upon thfs 
j^"* **^ particular lofs, may have an aQion upop the cafe; .which is a fuf- 
Raft. Eat. 67. ^cient remedy agamd tlie lord^ Yelv. . 104,.. 10 j. 

For precedents of declarations for dillurbances in fights of 
iVeBt.ti9* common, f£cjiaj}, £^ntr, 616, in irefpafs. Hern. 64. in cafe. 
3 Keb. Sao. Co^ Entr. g^ in cafe. Hern..\iy. in cafe againft a ftcanger.. 

In the cafe of jlyre verfus Pyncomb, StyL 164* it was quef- 
.ttoned, for the firft time, whether an a3ion uppn the cafe would 
Jie for.a commoner againil one {orjiircharging the common ; and 
JioU Chief Juftice anrwered,.he might either have an affizfr or as 
adicn upon ihe cafe.^ 

The declaration in the cafe at bar Hates the plaintiff's ri^ of 
common fully, and ihc dijlurbance by the defendant in. general 
terms; the defendant might have pleaded his right of common to 

put 



ISiAsfmi ^zBu ii Gkcu itT. 1772* afti. 

put on a certain number^ and fuch plea would have been g'ood \ 
then the plaintiS* mult have either denied the defendant's ri^hi 
0/ common abfolotely, or have taken it hy protfftando andrephed 
that defendant \\^A fur charged^ and put on two hundred meep, 
U'bcn he had only a right to put on Qne hundred ; this repli« 
cation would not have been a dttarturt but wopid have {bxtified 
the declaration ; for the plaintift cannot dvvinf\i\aX. defence the 
defendant will fet up; like what is faid in i Li* Baynu 76; 
Jind fee Ydv. gfi. wncrc the plaintiflF declared for taking bis 
horfc ; the defendant pleaded he took him as an ^ay\ and fliew* 
ed his right to eflrays in the place where hns took him; the 
plaimifT replied that he u&d and did lida the horfc; held na 
departure^ upon demurrer. - 

One commoner cannot diftrain the cattle of another commomr. 
with him; 1 Jjutw. 11/38, Dixon yerfus Jamjts^ in replevin for 
taking his cattle, at Northiviliin^han^ in a place called ihc^ Moore; 
avo\yry, that -4^ B* was fcifcd m fee of a meffuage, &c. and liad 
co^?non by prefcription in the place* &c. and demifed the mef- 
fuaircs, (^c, to the defeodaot who avowed damage feafant% Plain- 
tifT pleaded in bar, that his leflbr alfo had common' by prefcrip« 
tion for a certain time of the year, and he put in his cattle, 
which defendant took of his own wrong. Replication, that the 
plaintiff had furcharged the common ; rejoinder takes iffue 
thereon ; and after verdi£l'for the defendant the judgment wa& 
arrelled> b^caufe one commoner cannot di/irain the cattle of another 
commoner wkh him: although ke may dfftrain the entile ef k 
Jiraftger. • 

In an a^ion for digging lujf: the defendant prefcrihes for a 
right to dig turf to be uied and' burned in his meftuage ; the 
pUintiff replies and admits the prefcription, but further faya 
that the deiendant fold the ^rver, 4^^ ^lc^ that he bvtiit tho^ 
in his mefluage; this is a good replication^ and no depaxtuxt. 
ThompfnCs Entr. 318. 5. P. 

The car<? at bar being an afiiod upon the cafet the defendant 
might haVe given his whole right in evidence upon the general 
iOiie. It i$ iio|>at all material one way or other, that the whole i ttttir.;^. 
of thi$ cafe rifc^s out of the plaintiiTs otvn evidence, it appears, 
he has a^ good caufe of aSion and is injured. So upon the whole 
we are ^11 of opinion that the deelarstfian is righu wijudgmest 
muft be entered for the plaintifii 



V t Chamberlain 



2^4 



be confidered 
as matter of 
aggravation 
only, and 
need not be 
particularly 
Specified to 
the declara- 



Ewsk'ER T-ERM la Geo. in. 177^. 

pykes in certain; and altliough the writ Vv'as jnfcm, in the 
lingular number, yet >vell, ior pifcis ffi namtn colltSivuin: with 

diis the 21 H,6. 39. agrees. 2<//y, It Was refolved in Play- 

Ur's cafe, that as t4ie Jury had found (he defendant guihy gc< 
ncrally of the trefpaU in the declaration, it extends (without 
cueftion) to both the trefpalfes ; and therefore the counfet for 
tlie plaintiff would have done wifely, if they had caufed the 
damages to be fevered, (to wit) fb much for Xh^jifkes^ and fo 
much for breaking the cloft; and then the plaintiff would have 
recovered his damages for his do ft broken with his cofts. — And 
laftly it was refolvcd, that the omiffion of the nature and num- 
ber of the fifti was matter of Jubftancr^ and not oi Ji/rm^ to be 
aided by the acf? 18 Elrz. — SerjeaiU Dazy relied uffoi\ this cafe of 
PlayU'r as dircftly in point for the defendant, and infifled that 
the omiflions pointed out by the demurrer were matter of yi^ 
Jlancc; or at leaft that the declaration was ill irt point ofjtnm^ 
and being fliewn/or fpecial caufe of demurrer, he prayed judg- 
inent for the defendant. 

Serjeant tf^ilfan for the plaintiff argued — ^That the effential mat- 
ter qt^faft or trefpafs ailedged in the declaration, and for which 
this adion was brought, is th^^brenking andentain^ the plaintj's 
dwellJng'houfe : and that the farther defcription (wz.) the making 
a noife, difturbance and affray, the wrenching and forcing open 
the clofet-doors, drawers, chefts, cupboards and cabinets, the 
tolling, tumbling, damaging and fpojling the goods, 0r. &c, is 
only laid by way of aggravation^ and to fliew how enormous 
the trefpafs was; and fo it has been often refolvcd, that there is 
no occalion to fpecify in a declaration what belongs to the prin- 
cipal thing, or place trefpaffed upon, as the dwelling 'houje of 
the plaintiff, in the prefent cafe (certainly) is; the clofet-doors, 
drawers, &c. 6?r. all belong to the houje: to this purpofc he 
cited 2 Salk, S/^%, Nezvfnan verfus Smitk.'znA 643.. Layton vcrfus 
GrinddL And 1 Ld. Raym. ^88. cites Boroughs verfus HaiL B. R. 
Trin. ^3 Car, 2. where it was held that trover for a fliip atm 
armamcntis %v«s good •; whereas if the aftion had been brought for 
the guns and ringing fcverally, thpy ought to fliew what and 
how much ; Serjeant JVil/(?n concluded that the breaking and en- 
ten/tg the plaintiff's houfe^ was the principal ground and foun- 
ciation of the* prefent atlion ; and all the reft are not foundations 
of the adion, » but matters only thrown //i, to aggravate the ^i^- 
mages; and of that opinion were the whole court, and gave 
judgment for the plaintiff. 



TRINITY 



igs 



TRINITY TERM, 

I'a Geo. III. 1772. 



Msiiir3ytrs yer/us Foflet, and two others, C. B; 

DEPLEVIN for taking the plaintiff's cattle on the 8tK R^pieTin, fof 

of J^uiy 1771, at /. in the county of Middlr/ix, in a certain taking Wi 
place called tie Road, othenvife Holhway Read^ otherwife ^^ *■ ^ 
fflin^ton Road^ otherwife Higkgatt Road, otherwife the Kingi Avowry ^ 



Highway. The defendant Foffct avows, and the others, as Tiis dam,fitfmt 
fcrvants, make cognizance oi the taking^the cattle in the faid place ^ ***' ^° V. 
in which, ifc. and Juftly, £?c. becaule they fay that one Jones tbem*thcr« 
was feife4 in fee ota ceruin clofe called the Four Acres, in the and drove 
parijk of I. in the county of Middle/ex^, and being fo feifed, he Jj^^j^,^^ 
the faid ^n^ before the time when, £s?c. (to wii) on the 2Qth inrpouo4 
day of September 1770, demifed the faid clofe called the Fvur them. 
AcreSy to the faid Foffet; to hold the fame to the iaid Foffil 
from thenceforth, for and during and unto the full end and 
term of one whole year from thence next' enfuing, and' fo from 

i'ear to year fo long, as the faid Jones zxA Fojfet fhould jpleafe ; pieain btr 
»y virtue of which demife, FoJ'et entered into the faid dole called tkat the ro«4 
the f<9ttr Acres, and became, and at the faid time when, Wf. was ""©tpM^cei 
and ftill is poffefled thereof; and becaufe, the faid cattle at the acwI. 
faid time when, &c, were in the faid clofe called the Four Acres, Demurrer 
eating up the grafs and doing, damage there ; Fojfet avows, and "^joiiuUr, 
the other defendant* acknowledge the uking the cattle in- the faid j, ^u**^ 
clofe called the Four Acres as a diftreis for the faid damage, and enough, and 
, driving the faid cattle in and' along the laid place in the decla- *^ ?!«•»»• 
ration, in order to impound them. 

^\i\\\\\^ proiefiing that the avowry and cognizance are infuf. 
ficiebt, for j^/fftf faVrS, that the faid place* called the- Roads other- 
wife, Sc. in whicn, ^c. is not fiarcet ot the faid dole called the 
Four Acres inthe avowry and cogmzancet mentioned, and this he 
i^ ready to verify, S?c. . • 

V4 ThQ 



7QQ Tkinity Term 12 Geo. III. 1772. 

The defendants demur becaufe they fay they cannot take a 
proper iflue upon any faft in the plea in bar. Plaintiff joins in 
demurrer. 

oyeiHon to Walker fcrjeant for the defendants^ — The plea in- bar is ill, for it 
|J»« pica in ^ neither confeffes and avoids, traverfes, or denies any faft alledgcd 
,^* 'in the avowry and cognizance ^ but fays that the road in which, 

6?f. is not any parcel of the clofe called the Four Acres ^ fo that it 
only denies that which is not allcdged by the defendants; aifo 
the conclufion of the plea with an averment after fuch a demal is 
abfurd. 

Serjeant Burland for the plaintiff— We ne\'cr intended to rely 
upon the plea in bar, and admit that it is ill ^ but we fay that it 
appears upon this record that defendants have made the firll 
fault in their avowry and cognizance: and it is a general rule in 
pleading for the court always to refort to the firft fault in plead- 
ing. The avowry and cognizance acknowledge the taking the 
cattle in the roaa^ &c. and juflly, G?f . becaufe they fay that Jon<s 
was feifed in fee of the clofe called the Four Acres, and deniifod 
OK}?aion to ^^^ *^^^ ^o ^^^ defendant Fo^et to hold for a year, and fo from 
the avowry, year to year at will, and juftify the taking the cattle ^m^^f 
feafant in the Four Acres^ and driving them in the road (the 

Elace in the declaration mentioned) in order to impound them ; 
ut the defendants do not aver that they were, driving the cattle 
in the road from the clofe called the rour Acres becaufe they 
were doing damage there: and for any thing that appears to the 
contrary, the defendants might be driving the cattle in the road 
from any other place than from the Four Acres : the defendants 
?irc called upon by the declaration to fay why they took the cattle 
in the road or highway. 

Gould Juflice — ^The defendants in the beginning of the avowry 
and cognizance have acknowledged they took the cattle in the 
roady tne place in the declaration, and juftly, (as they fay); arc 
they obliged to repeat that matter again in .the latter end of the 
avowry and cognizance, I think they are not. 

Lord Chief Juflice — ^The general rule \Zj for the court to re- 
fort to the firfl fault in pleadings. 

Blackjlone Juflice to ferjcant Walker — ^Your avowry and cog- 
nxzznce may be all true, and yet it does, not appear thereby, 
from whence the defendants were driving the cattle. Adjourned 
\qi a few days for ferjeant Walker to reply. 

Serjeant 



Trinity Term 12 Gro. III. 1772. 297 

Serjeant Walker in reply — If there be any dcfeft in the avowry 'VThere yoa 
and cognizance it is merely in matter olform and vioifubftance^ ^^^^ °^^''» 
and where yonpkad over you cannot objeft to wknt olform. Sv^r^objcft to 
%R£p. 120. 7 iZ^^. 25. Sali.^ig. Hot, 232. • wantof/orm. 

(rWdf Juftice. If the avowry and cognizance be at all de- 
feftive; I think it is \nfubftance. Sec Plowi. 56. Adjourned 
for two days to confider. 

Lord Chief Jnftice Be Grey — ^The court, upon confidcration, 
are of opinion that the avowry and cognizance are well enough 
pleaded, for by connefting the beginning with the latter end 
thereof it appears to be one entire tranfafiion ; in the beginning 
thereof the defendants fay they took the cattle juftly, Sc. in the 
road (the place in the declaration), and in the latter e;id, they 
juftify the taking them in the Four Acres damage feafant^ and 
driving them in the road to impound them ; we think it appears 
clearly to be one intire tranfa^Uon. The court being about to 
give judgment for the defendants, 

Serjeant Burland movea for leave to amend the plea in bar, LemwgiTeii 
and traverfe the taking in the Four Acres ; which was cppofed *® *^"** ■^'• 
by ferjeant Walker^ becaufe the plaintiff had pleaded over, the ^^ *»«■*«**• 
cafe had been argued, and the court given their opinion ; befides, 
the plaintiflF hath made the defendant Fo/fet's two fervants defend- 
ants in this a£lion in order to take away their evidence. 

The plaintiff confenting to ftrike the two fervants out of the 
declaration, the court gave him leave to withdraw bis demurrer* 
and amend his plea in bar upon payment of coils. 

Fiilier, Adminiflratrix verfus Lane and others. C. B. » Bitck. Rf^ 

ACTION upon the cafe upon ajfumpjit brought by the plain- Aatonbyan 
tiff as adminiftratrix of her late hulband ^ohn Fijher^ for »<J'n»nmfairi^ 
goods fold and delivered by him in his life-time to the defend- [^ddd?tr*erf4 
ants, who paid 20/. 9J. 6^. into court and pleaded the general by the intef. 
iffuc, whereupon iffue being joined, the caufe was tried before **^'» <>" «hc 
Lord Chief Juftice De Grey, at the fittings in London after Trinity J[e7j^i/*|j^ 
ternj» 11 Geo. 3, when a verdiS, by confent, was found for the defendants 
plaintiff with damages and cofts, lubjeft to the opinion of the g«*«i'ievi- 
court upon the report of the Lord Chief Juftice upon a motion p*™nt^of « 
for a new trial. fum of mooe/ 

in confe- 
Suence of a judgment upon a foreign attKhment in London, by pradocing a copy of tbe minutes of the 
proccfs on the foreign attachment by the officer who executed that procefs. 

3 ^^ 



298 I'AmiTY Tekbi: 13 Geo. III. 177a. 

[tn proceed- In ASckoelmas term laft Lordf Chief Jiiftice D^ Grey mad« his 

refn^riudj- ^^P^**^ ^^ c^^ '° ^^^ fiHowing effeft, t//z. This i» an aSion 

menV, the' brooj-ht by the piamtMf as adnnniftratrrx of Ber fate htrfband 

ctcditor of the John Fijher^ \otbeer cMti gorier fold and delivered by her (aid 

^^ft^'b*^f bu(band to the defendants as merchants for exporution ; at 

moncdorharc ^^6 trial no wrtncffcs were called^ for the j^tainfif, becaafe the 

nodcc:(tho' defendants admitted tirat a* fair and ju-ft debt of lOfl/. lu. was 

lL"h^*? ft ^® due and owing to the inteftatc for porler by him fold and dcli^ 

of London w" vcrcd to them m liis life-time. The defendants gave in evidence 

give no no- a payment of 2L fum of money in ecmfequenc^ of a/iftignocnt 

'*vf \°^"" °P^"^ ^/^^S" ^^i^^^^ff^ ^^ Lorfdfift, and fof that ^tirpdfe called 

iodgment ^^^ pTof)er officer /''/A^ ftrjeant at rkac^Jf wlio executed th* city 

agtinft the pTocefsin thtfordj^n altackjiteni^ w?io, t^ingfwrorn, dftpofed that 

.Garniiheewill f^g ^^^j {^ hrs liand a true copy or mrnutes of tlfe pfoceerfings in 

Md"hcmo"'' the/(prCT>« atiackmefti cmtrnd tri the book kept for that purpofe, 

ney paid or whereby it appeared that orte titiityj'anftm^ on the 17th day of 

lcvie4:m«c- JHay in the 10th ycar of King G^o. j,- levied aptaint in the 

Sirnofiif- ^"r^ ^^^^^ °^ I^nitw againtf the now plaintiff /j^ (the ad- 

charge the miniftratrix) the entry whereof iS thits^, wr. " Htfify yonJtHi 

Oarnifliecof «* demands againft i, Fijher tool, which he unjuftly detains, 

tfJdkSiT*''* '* for that >A;/ Fijker iht in^eftate was in his life-tmie indebted 

*.• (o the faid Henry Jf^anfen^ irf debt 100/. ifomagses »<»• fwoni 

" to 92/. i8j. pledffes, ^c." that he the oflicer afcei*wards, on 

tlie faid I'ftk day of may in the i oik year of Geo. 3, between the 

hours l>f three and four o'clock in the afternoon, attached 92/. 

i8j. the money of Jfehn Ftfker the inteftate, in the hands of 

Lane and others the now defendants. That it appeared by the 

fdid entry in the faid book, whereof he had a tfue copy in his 

hand, that the now phintiff Mrs. Fifhef (fl\e defendant in the 

city courtj oiade four defaults in not appearing, that iff to ftiy, 

thcjir^ default on the 18th day of May m the loth year of Ge4>. 

3. — 1l\x^ feconi default on the 19th day of May in the 10th 

year oiGeo. 3. — The third default on the 26th day of lAxy iti jfae 

10th year olGeo. 3. — And ih^ fourth default on the 28th day of 

May m the toth year of Geo. j. yvhichjour iefa^hs were recorded 

ajjainft (the now p4awfitiff) Mrs. Fijker the then defendant in the 

Qiiy court, whereupon, at the petition of Hotry Tanfon (the 

plaintiff in (he city court) il is commanded to the Jtrjiant at 

mace that he accordingly do Warn the Gamijhees (the now dc 

fendants) that they b<$ here (t. e\ in the city court) on Tu^Hay 

the isth day of June in the loth year of Gea. 3. to ftew caafe 

why the faid Henry Jf an/on ought not to have judgment for the 

faid 92/. i8j. fo attached in me hands d tht Garmfhecs fthe 

now defendants). That he {ihc ferjeant at mace J certified he nad 

warned the Garniflues to appear in the faid city court on the 

faid 12th day of June in the 10th year of Geo, 3. to (hew caufe, 

&c. whereupon, on the petitign ot the plaintiff below (Xanfon) 

the 



Tbinitt Term 12 Geo. III. Jf Jr^j, *i^0 

(lie Gar/iijhfes are deihanded, and do not appear but make de* 
fault; Ihiirefote it isconfiderfed that the plainiiff (bxslow) J*af[foh 
ha\ne ekecntion of the money if tht defendant, 6?c. and pro^ef^ 
for tlie remainder, 6?c. and the plaintiff (below) J'anfou c^me xh 
pcrfon and foimd pledges to rel^ore, &c, if the defendants^ &c. 
(to wit) William Backnouft and Lafigford Smurt citizens, an4 
thereupon a pixxept was granted for the plaintiff J'^^Jon^ to 
' liave execution, whidh he had and thereupon acknowledged himr 
felf fatisfied. — The Jerjeant at mace further depofed, that no 
notice was given to Mr. pTlher (the defendant in London), and that 
this Was the ctffiotn of the city coutt; and that he had known 
mamr [\ich foragn attachments in cafes of adminiftrators like the 
prelcnl cale. He faid he remembered one inftance of drawing 
up the record of the proceedihgs in a foreign attachment atfuu 
itngth, which was given in evidence at the affizesfor Suffolk in 
the year 1755,, and in that cafe he read the whole entry of the 
record at teilgth, this is the whole of the evidence that was given 
i;i court at the trial. 

Serjeant jfephfon for the plaintiff— The generiil queftlon in this MicbaeioiM 
cafe is, \yhether the evidence given by the defendants at the trial, ^^ " ^'^ 
be a good and fufficient defence to tnis aftion which' is brought Jjen^ ''**' 
by an admihiflrktrik for goods fold and delivered by the inteftate 
to the defendants; the defendants' whole evidetice,xvas no more 
than the copy of minutes entered in a book of the proceed, 
ings to judgment in the tity court on 2l foreign attachment^ as 
(before) reported to the cdnrt bv my Lord Chief Juftii;e,. where- 
Dy it docs not appear that tne tolaintiff Mrs. Fifher had any 
notice o'^iht procceaings on the foreign attachtnent, or that (he 
was tvex J'ummoned to appear in the city court to anfwer to the 
plaint levied againft her there by Tanfon^ or that Ihe had any 
notice thereof from the Garnijhees (the now defendants) Lane and 
others. 

From this general queftion, two particular points arife. i^, 
Whether in the cafe of an adminiftrat(^ a debt due to the m^ 
teftate can be attached hy fdreign attachment by tht cuftom of 
London^ or whether there is any fuch cuftom in fa3 ? 

^dly. If there be fuch cuftom, whether thai cuftom is good 
in point of law, or whether the Garnijhees can avail themfclves 
^ thereof without notice given to the adminiftrator to appear ? 

As to the ]/t point, it feems to be a matter of great confe- 

duenee; the debt due to J'anfan is a fimple contraS debt, and 

it this cuftom be allowed in the cafe of an adminiftrator, a 

limple cotitra6l creditor thaybe preferred to a creditor in a higher 

^ degree. 



300 Trixity Term 12 Geo. III. 1/72. 

degree, by judgment, bond or other fpecialt}% iffuch fpccUlty 
cannot be pleaded againft one who attaches the debt due to, or 
the goods of an intellate in the hands of another ; if an admi- 
niftrator had notice olihc foreign attachment he might plead debts 
bv judgment, bond or other fpeciaky outftanding againil the in- 
tcftate, but if the admi niftrator is to have no notice^ and judg- 
ment be againft him and the Garmjhee in the foreign attachment, 
he will be guilty of a devafiavzt, 

I have not found any cafe at all like" the prcFent cafe except 
Hancood and others executors ofColbourn verfus Lee. HiL 3 £/;r. 
Dier 196. b. which was thus, ** A citizen of London is indebted 
•' to z foreigner by obligation^ and the obligee is indebted again 
•' to the fame debtor hyfimple contrail^ and the oblige^ makes 
** his executors and dies, the obligor, by the cuflom oi London^ 
•' fliall have an aSion of debt againft the executors of the obligee 
•* in London^ by his oath, that it is owing and a true debt which 
•* the teftator in his life-time owed him, and upon a mA// returned 
** nee efl inventus^ he may make attachment of the debt which he 
*• detams from the executors oihis obligee for his own debt, upon 
*• four defaults recorded, according to the cuftom ol foreign at- 
'* tachment^ and furety found by bail, that if the executors within 
** one year and a day cannot difprove the debt or rcverfe the 
** judgment, G?c. he fhall be difcharged of fo much of the debt 
" which he owed by the obligation" (then the cafe goes on 
thus) quare bien " if this cuftom (although that it be confirnied 
" by authority of parliament generally, amon^ft other cuftomsof 
" the city in the 7th year oX Richard the fecond) be good and 
•' lawful or not, and whether it holds place as well between /^?. 
•* reigners as citizens, &c, becaufe hereupon it was demurred in 
•• law, and divers apparent faults were taken notice of in the plea; 
•' and one efpecially^ (to wit) becaufe that where It wasalledged 
•* . that the cuftom was, that the debt ought to be affirmed by the 
•* oath of the party in curia Guildhalde it was pleafed to be done 
•* in curia vicecomiiis^ in computatorio ubi querela primi afftrmata 
•* et levatafuit, et ubi judicium datum fuit^ the which judgment 
•• alfo was, that the plaintiff" fhould have execution ol the debt 
" attached in his own proper hands, without any judgment that 
•* he doth recover the debt, &c. ; at length the parties agreed by 
** the interpofition and at the requeft of the lecorder and tKe 
•• city cou7ifeJJ* The like matter, Eafler j Eliz. RelL 1540. be- 
tween Mar Puill ;}iX\A Wilkin fan y and HiL SEliz. Dier 247. a. and 
HiL 18 Ehz. Roll, and Mich. 18 Eliz. between Maicworth .and 
Browne in the county of Nottingham^ where for want of an aver* 
ment to find pledges according to the cuftom the plea was in* 

fufficlent. With refpeft to this cafe in Dier^ it is obfervabic 

that it was not determined, for the parties agreed ; alfo it was 



Tbinity Term 12 Geo. III. 1772. 301 

in the cafe of an executor, that executors were at common law, 

and are co-eval' with the cuftom, viz. beyond pme of memory ; 

but the cafe at bar is that of an adminiftrator, and admlniilrators > I^oU. Rep. 

yf ere by Jat. 31 Zi. 3. c. xi. '°^* 

The cafe of Hodges verfus Cox^ Pa/ch. 43 Eliz. Roll. 1905. Cro, D«bt on a 
Eiiz. 843 was debt by an adminiftrator upon an obligation of 26/. ^n** '>y «•> 
made to the inteftate. The defendant pleaded that he had com- ^^l"^^^'*^ 
menced. an a£lion of debt of 30/. agalnft the plaintiff by the 
name of adminiftrator to her huiband, before the (heriffsof Zt^n- 
Jon, and upon m'A?/ returned, &c, that debt was attached in his pietthatde. 
hands, and pleaded all the cuftoift o{ foreign attachments in Lon- fendanta:- 
don, and that by judgment this debt was attached in hi^ hands, **^*J'^ 'jj|* 
(3c. and it was thereupon demurred, and adjudged to be no plea ; own bands, 
iji, Becaufe the plaintiff fues here as adminifliatrix to her huf-.h:ld till ona 
band, and it does not appear by the bar that the debt recovered <*«™*»"«'- 
in London was the inteftate's debt, but only that fhe was fued 
there as adminiftratrix: and that might be, although fhe were 
fued for her own proper debt ; for one may be fued by the name 
of Heir for his own proper debt, and fo the intcftate's dcb't can- 
not be attached for the proper debt of the adminiftratrix. ^dly^ 
It is not fhewn that the debt recovered in London was a debt by 
fpecialty ; otherwife it is not demandable againft an adminiftra- 
tor. 3^/y, It is not fhewn that the cuftom is, that if the inteftate 
was indebted to the plaintiff th^re, and the plaintiff was indebted 
to the inteftate, that by an aftion brought by the plaintiff there 
againft an adminiftrator, this debt might be attached in the "• 
hands of the plaintiff /A^r^; but it is fhewn, that if it be teftified 
that the plaintiff was indebted to the fame perfon that he fued, 
that then he might attach; but here tlie defendant now, being 
plaintiff in London was not indebted to the plaintiff here^ who 
was there defendant, but was indebted to the inteftate. J^thly^ 
The judgment in London was di bonis propriis, which cannot 
extend to bonis intejlati^ wherefore it was adjudged for the 
plaintiff. 

Serjeant Jfphfon^ alfo cited Paramor verfus Paine, Cro. Eliz. The debt on 
^98. (to fhew that the debt upon ^ foreign attachment in London «^«e«P»at- 
is traverfable) which was debt for 40/. the defendant pleads, Lon^" 



It 



that the plaintiff wa^ indebted unto him in 40/. and he there- traverfable. 
fore fuea a plaint in London ; and there this debt in demand was 
attached in his hands ; and he pleaded the foreign attachment in j Leon. $%i, 
certain, and the judgment thereupon, f*?c. The plaintiff replies cafc45*, 
that he was not mdeoted to the defendant in 40/. nor in any 
other fum ; and it was thereupon demurred by Tanfield; for the 
debt is not now traverfable, becatife it is recorded in London, et 
non difrationatur within the jear and day as it might be bv the 

cullom : 



30i Tkinity TiiKAf 12 (iM. III. 177% 

cuftom : but Coh moyed thfit the replication was good ; tot 
whether he were indebted or not, is very well iifuablc ; for 
if he were not indebted, they in London could not attach the 
plaintiffs debt by 2^ foreign attachment for nothing; ai^ fo wa3 
the opinion of the whole court. And Fenncr faid that in the 
Common Bench 2ft £? 23 Eliz, it was fo ruled in one Brays c^fe ; 
. wherefore it \y*is adjudged for the plaintiff. And fee Cro» (Mz, 
830. Coke Ycrfus Brainsforth the lame point refolved. 

He concluded for the plaintiff, ihaiforeigtt attachment does not 
lie in the cafe of an adminiilrator. ^dly^ Tb§|t the minutes oE 
a record given in evidence is infufficient to prove the judgment 
•n 2l foreign attachment^ and laftly, that notice ought to be ghren of 
the foreign attach/nent^ becaule it is fet off againft the plaintiff by 
way of payment. 

2 Latw. 98 f . Serjeant Burland for the defendants — ^The principal queflion is, 
I LeT. 306. whether an adminiftrator is within the cuftom, viz, whether a 
I Vent. III. j^Ij^ jyg ^Q ^^ adminiftrator can be attached ? Tliis lias been de- 
termined, and the cafes cited againft me, are for me, and which I 
rely on. — In the cafe in Dier 196. ihefpecialty^deit was atuched 
to pay 2ifmplt contraRdebt; the quare^ or doubt in the cafe, wa< 
only whetlrer the party could attach goods in his own lumds^ and 
whether the cuftom extends to foreigners as well as to citizens^ 
but fee the margin of Dier 1 06. per Noy. • Jn SpinA vcrius Tenant 
1 Roll. Rep. 10^. it is adjudgcathat a debt may be attached in 
the cafe of an adminiftratpr. Set.Comyns. Dig. tit. Altackmeut^ 
feycral cafes to prove this. And 1 Ld. Raym. 56. 

Lord Chief Juftice — The great ohje£lion is, that no notice lias 
been given to the original defendant in London (the now plain- 
tiff), nor any procefs awarded agalnft the Garnifhees (the now 
defendants), till ^ii£x four defaults hyih^ original defendajau 

Serjeant Burland-^Thert is no notice given to the defendant 
in the plaint m London in any cafe whatfoever, and indeed if 
fuch defendantrefide out of the city he cannot have notice given 
to him ; the ufage and praftice is for the ferjeant at mace to 
make a return of nihil Q non efl inventus^ ore tcnus : this is nm 
hard upon the now plaintiff, but it would be very hard on the 
now defendants, becaufe if they cannot avail themfelvcs upon 
this foreign aitachment^ they will be obliged to pay twice. 

wn^T Chief Juftice— Cuftoms of pai:ticutar cities may deviate from 

Sbe^ Jrin- ^^, courfe of the common law, but a cuftom contrary to the firft 

cipieiof juf- principles of juftice can never be good; fo this cujlom not ta 

■ u'LSd"*^ fummon or give notice to a defendant in a fult commenced againft 

• • him u contrary to thefrji pnncipUs ofjuflice, and (in my opinion 

a 'as 



TaiKjT? Tbbm n Gw. Ill, 1772* ?Q3 

as at prefent advifed) connot be good. The twenty-feven co^ 
lonies. abroad cannot niake a law contrary to the law oi England, 
but they zRay make any law agreeable thereto, and to the prin- 
ciples of jullice, W not contrary to the principles of juftic^. If 
an adminiftrator be held to bail'in London, he fliall be admitted 
to a comn^on appearance upon rentoving the caufe into thiji 
court by habeas corpus: but fnai create^ e^ pence and trouble. It a Lev. S04. 
is faid tne creditor of a Garnjjfhee may be in the JVeJi Indies ; but ^** * Jj^- 
Lane well knew the now plaintiff Mrs. Fi/her lived in London^ *45i» • 
and every one is pre(uQicd to ktifiy his creditor. My Brother 
Burland contends that no notice is required ; fee Coke's Entries. 

This cafe was arj^ued again at the bar in Hilary term lafr, by 
Serjeant Leigh for tne plamtiff, and Serjeant Glynn for the de- 
fendant, but nothing new could be faid on either fide ; fo the 
court took time to confider, and in this prefent term gave judg. 
ment for the plaintiff, to the effefi following. 

Curia. The quellions made at the bar were, i. Whether in 
thecaie of an adminiftrator, a d^bt due to theintefiatc can he 
attached hy foreign attachment by th,t cuftpm of London, or whe- 
ther there is any fuch cuflom in fa£k? 

2. If there be fuch a cuftom, whether that cufiom is good in 
point of law ? 

As to the cufioms of London, they may either be afcertatned by 
Muty, or certified to this court by the mouth of the recorder; yet 
itthe ciifiombe againft law it is void* 

But admitting there is fuch a cuftpm in faCl as is now infifled 
on by the defendants ; and alfo that the fan?e Ls a good and valid 
cufiom in point of law ; yet tberp is another queilion in this cafe, 
and that is, whether there appears upon the ftatc of this cafe to 
l)e fuch" a judgment on i\K foreign attachment as will authorize 
the payment of this money to J*anfon ; for if the judgment be 
erroneous, it will not warrant -the pjayment. 

The now plaintiff Mrs. Fifher refiding in the city of London 
is fued in London by procefs whereof (he has rto notice, and docs 
not appear, whereupon the officer attaches the money of J{khn 
Fjjher the inteftate in the hands of the noiy defendant^ J^H^ 
and others, that is to fay, attached Mrs. Ftfier by the debt owing 
to her by a third perfon, i. e. the officer difirains hej" to appear, 
if (he appears there is an end of the foreign attachment ; it is 
like the procefs in the courts at fTeftmin/ler, by way of diftraining 
iffues to compel an appearance. 

. It 



304 Trinity Tekm 12 Geo. III. l}^72. 

It is not ncccflaiy to repeat particularly the evidence of this 
judgn^ent in the Jbreign attachment ^ which is before minutely 
ilatcd, and confiilcd only of minutes taken from a book kept (or 
that purpofe, and thofe minutes which the officer read from a 
paper in his hand were the only evidence of the judgment; and 
if this be all, the judgment is erroneous ; it is (aid to be for 
the default of Mrs. Ftjfisr*^ appearance ; Jhe made no default^ for 
it appears^Xtf never tjjus fummontd or had notice^ which is contrary 
to the principles of juftice; in fliort, the whole court were of 
opinion that judgment muft be entered for the plaintiff Mrs. 
Fijlier^ and accordingly the poftea was ordered to be delivered 
to her. 

I-afech. loS. Nota, For pleadings of judgment, uponjbreign attachmtnU in 
London^ fee Coke's Entries 139, 3. Vidian 19. JLiber Intrationum 
164. 212. 22 Ed. 4. 30. a. 



Kitchen and others, alHgnces of Andcribn a bankrupt^ 
wr/us Campbell, Efq. C- B. 

Wbatre. ^*pHIS was an a6lion upon the cafe, in which the plain- 

^ Aaii not *'^*' ^^ affiffnees of the bankrupt, declare, that the dc- 

he a good^ fendant being indebted to them in 2gooL for fo much money 

kar to a fub- had and received by him to their ufe as affigne^s as aforefaid, pro- 

*2ion*^ mifed to pay the fame upon requeft; and that although the dc- 

a Black. Rep. f^^ndant had been often requefted fo to do, yet he had refufcd, 

S17. s. c. to the damacre of plaintiflfs of 2.500/. 

(Toanaaion . . ^ ^ "^ 

^Jar^ for The defendant pleaded two pleas. 1^, Non ^umpfit, and 

the vaitts of thereupon ifTue was joined. 2^, A recovery of 860/. lOJ, by 

aent'fyr^'ihe' *'*? Plaintiffs as affignees as afore(id, againft the defendant in the 

defendant in King's Bench, in an aftion upon the very fame promife as is 

trover for the fet forth in the prefent declaration; to which the plaintiffs rc- 

Hunegoodi, pHed, that , the promife upon which they brought the prefent 

pleaded in aftion, IS a different promife from the promife mentionea in the 

bar: by meant plea, and upon which the faid recovery was had, and thereupon 

of propsr ifTue was alio joined. 
aTeimeats.} *' 

This caufe came on to be tried before Lord Chief Juflicf 
De Grey, at the fittings in London after laft Trinity term, when a 
yerdia was found for the plaintiff, with damages and cofts, fub- 
je6l to the opinion of this court upon the following cafe ; 

The ca& Which ftates, That Richard Anderfon the bankrupt being in- 

^«cd, debted to the defendant in 2000/. for money lent, for which he 

(the 



Tkikitt Tkbm 12 Gw>. III. 1772. 305 

{the bankrupt) gave ilie defendant two bonds, and a waitaxU of 
auomey to confefs judgmejit* Th»t tile defendant entered . 
judgment for the fame debt and 501. coils, and upon the 9th day 
oiMarcA 1769, fued out a writ of execution {2i fieri facias J upon 
thejudgmenty which w^ delivered to the flieriJl', 01 Surry to be 
executed in due form of law; that the ilieriff', by virtue of that 
writ, levied of the goods of Jnder/in to the value of 2155/. 
6s. gd, for the laid debt and colls, and for the fheriff 's fees 
and poundage* 

That on the 9th day of April 1769, a commiflion of bankrupt 
was awarded againil Andtrfon on tlie petiuon of Ann Br^iit a 
bonafidt creditor for '100/. and upwards, and he was thereupoa 
declared a bankrupts 

That in Mickaelmas term 1769, the plailitifls, as aiGgnees a& 
aforefaid, brought an aflion of Inwer tn this court againft the 
late (heriflf ol Surry and the now defendant Campbell^ f«r the goods 
fo levied under the faid writ of execution, and at the trial thereof 
before the then Lord Chief Juftice Wiltnot in Hilary term 1770, 
a verdiQ was given f6r the defendapts* and judgment thereupon 
was accordingly entered upon the record. 

That in Eafier term following the piaintifTs, as aflignees 
as aforefatd, brougW their a£lion in the court of ,King*s 
Bench, againA the defendant Campbell^ and declared therein ior 
money hod and received by him to the ufe of the plaintiffs as 
affignees as zibreEaid, and recovered 86o/« i4)r..(as is mentioned 
in tne plea) but upon a different CMife of a£lion than thai for 
which the prefent a£lion was brought, namely, for moiaey had 
and received by the defendant Campkll^ for certain notes ol hand 
delivered by the bankrupt Anderjin to the defendant after the 
aft of bankruptcy. • 

At the trial of the prefent aftion it was proved, that Andtrfon 
committed an a3 of bankruptcy before the 9th day of March 
1759, [to wit) in February 1769. And it was admitted that the 
^dcfqidant Campbell received the noney levied, under th^ exe- 
cution for his debt and cofts, before the plaintiffs brought the 
faid afiion in the court of King's Bench ; and this a£lion being 
brought to recover the money fo levied and received by the de- 
fendant Campbell^ the oueftion for the confideration of the court 
is.Whether, under thelafls and circumlfances ftated in the above 
cafe, the plaintiffs are intitled to recover ? 

This cafe was argued in'Eq/ler term laft, upon the general 
iffue (the fecond plea being laid out of th^ cafe, having been 
adjudged ill on a former argument). 



30fl Trinitt Tbbm la Geo. III. 1772. 



1/ 

had ai 



It was argued for the defendant, thsu an a^ion for money 
and received by him to the ufe of the plaintiffs, would nol 
lie in this cafe ; and 



2fli/y, That if this aSion will lie, trover alfo will lie; and 
plaintiffs having brought trover in Michaelmas itim 1769, againft 
the flieriff of Surry and the now defendant, to recover the value 
of the goods of the bankrupt taken in execution, have made their 
eIe£lion ; and there being a verdi£l and judgment upon record 
againft the plaintiffs in that a3ion of trover they are barred for 
ever from having any other a£lion which requires the very fame 
evidence to fupport it which was required to fupport the tonncr 
a£Uon, 

. That an indebitatus qffum^VfiW not lie, unlefs upon an exprefs 
or implied contra^ ; here is neither : if the execution upon tiie 
goods of Anderfon the b^krupt was right, all is well ; if it was 
wrong, it was a tart for which an ajfumpfit cannot lie, 

% Stra. 860. That where a bankrupt fellsgoods after he is a bankrupt, the 
Ph^*2l^dlcre ^^^%^^^^ may have ttover oxqffumpjit ; the defendant in theprc^ 
cited. fent caf* received the money levied under an execution at his 

fuit by ih^Jheriff^of Surry ; tnis is very different from the cafe 
where fuch an a£lion as this, is brought to try the right to an 
office, the ufurper of the office is confidered as the fervant of the 
officer dejure^ who may overlook and difpenfe with the wrong 
and fay, " You fBcavid the money for my uji?' Howard vtdus 
Wood. Sir Tho. Jones 126. fi Lev* 245. 5. C. — ^This is prima 
impreffionis, no aaion of this kind having been ever brought in 
the like cafe, and the argument of Littleton as to the ftatute of 
Merton may be ufed, that if this a£lion would have laid in fuch 
a cafe as this, it would have been brought long ago. 

, The a6l of bankruptcy, and all the fads that could arife in 
the prefent cafe were tried before in the a6lion of trover againft 
. the ^n# and the now defendant , wherein there was a verdift 
* againft the plaintiffs, and judgment i^ entered thereupon ; there 

would be no end of fuits if others could be brought where the 
fame evidence. is only required to fupport them, which was ne- 
ceffary to fupport the former fuit. See the preface to the 8 R^p- 
where Sir Eaw. Coke fays, that in ^11 perfonal anions concerning 
debts, goods and chattels, a recovery or bar in one a£lion is 3 bar 
in another, and there is an end of the controvery. 

The plaintiffs recoveried 866/1 los. in the King's Bench, upon 
the very fame promife as is fet forth in the prelent declaration; 
there is no reafon why they fhould not in that aftion have re- 

covercJ 



Trinity Term 12 Geo. III. 1772. 307 

covered the money mentioned in this declaration, if it had been ' 

due to them. 

When the plaintifis brought irever againft ihtjkeriffandthe Co. Lk. 144. 
i^cndanty they determined their eUBtion. 1 RolL Abr. 726. and **5- *• 
are thereby barred of this a£lion. 

For the plaintifTs it was argued, that as Andtifon had com- / 
mitted an a£l of bankruptcy in February tj6g, before ihefieri 
facias wa5 executed (the oth of March 1769), and the fherift had 
paid the money to the defendant Campbell, this a3ion for money 
had and received for the ufe of the affignees the plaintiffs would 
well He; and that the aflion of trover in Michaelmas term 1769, , 

(againft the now defendant and the then fheriflF of Surry, for the 
very fame goods which were fold, under the faid execution, and 
the money paid to the now defendant) wherein there was a ver- 
dift againft the now plaintiffs was not a good bar to theprefent 
aftion. The court took time to confider until this term, when 
judgment was given for the defendant, fer totam curiam. 

Curia. — ^The queftion for the confideration of the court is, 
whether under the fafls and circumflances ftated in this cafe the 
plaintiffs arc intitled to recover. 

From the moment a: perfon becomes bankrupt, the property x SM. 171. 
of all his goods, debts, credits, &c. are vefted in the affignees ^ij^b* III 
duly chofen under the commiffion, but they cannot declare in i sbo«r. ii». 
trover 6r affumpfit as of their own goods or debts, but mud de- ' 

clear as affignees of the bankrupt, and a defendant may wage his 
law, or plead the ftatute of limitations, as the cafe may happen 1 Baro. %x^ 
to be or require. 

Anderfon being a bankrupt in February 1769, and the (heriff 
having afterwards, in March 1769, taken his goods in execution 
at' the fuit of the defendant Campbdl, and paid him the money 
for which th^y were fold, it is queftioned in the prefect cafe, 
whether an a£lion will lie againft him for money bad and received 
for the ufe of the affignees. 

Lord Hardwicke was, for fome time, of opinion that this aflion See 3 Lrv» 
had never been allowed to lie, and that the affignees were tied ■9'' 
down to proceed in trover.ior the tort; but he afterwards altered ^l't^,'^Zl\t 
his opinion, and held this aftion well laid. And we are 95. V.zey ' 
all ot opinion that this aftion well lies; whether the money, 3*6. 
for which the bankrupt's goods were fold, be paid into the 
hands of a plaintiff in ^ fieri facias, or of any others ; whoever 
has received the money for the banirupt's goods is fuppofed, in 

X8 juftice^ 



3QS 



588, ai9. 

And. 145. 

Co. Lie, 145. 

«• 

lit Mod. 3«4. 

6 Rep. 7. 

€10. £iis. 

667. 

Skin. 57* 

T. Rayn. 

47a. 

3 Mod. s.$. 

Pollex. 634* 

a Show. 113. 

% Vent. 156. 

Comb. i»3. 

Bra. aEthn 

for le cafe 

pi. ^7» lOS' 

4Rep.9» 

Sla4<Lca(«. 

A<Mre4^. 



TwMTr Term l^^-Goio, IIL 1273. 

juJUcc, to hawe recieivod the femeyir ih^vfi of tkt affiffms^ in 
whom the property of thofc goods by law was vellefi, an4 to 
have promiled to pay the fame to the ajpgnces : therd is a fuppofed 
priyixy of con^ra^ betweeatbie peribas whofe mooey it UAvfuJIy 
ia,, and the perfon who has got ot received it. 

We are of opinion that the plaintiffs having brought trovfr in 
this cpurt in Micha^mo^ term 176^% agaii^ft the ibeaff of Surry 
and the now defendant, to recover tlie v^ue. of, the goods o( 
the bankrupt taLen in execution, (which a£lioD< well laid.) liav« 
ra2^de their eUSion, and there bftingaverdid: and judgment upon 
record in thai aSiion againft the plaintiff, they are barred fer 
ever fro;n ha^'ing the prefent or any other aiEU<i»n i, for you fkall 
not bring th^Jame catiyt of a£lion twice to a final aetenninauoR \ 
nemo deM Ins vexaru, upon this wc found our judgment; and 
what is meant by the fame caufe oJaBion, i\ wUepe tbe^CpM m- 
i^cix^^.will lupport both the a^lionSf although the a6tioas> may 
happen to be grounded on different writsi this is the tffi. to 
Hnow whether a final determinatioQ in a former a£lioii i^ ^'bar, 
or not, to a fubfequent a3ion ; and it runs through all the cafes 
in thebookSv both iar^a/and/t^ery^tta/a^Uons: it was refolvcd 
in Femr*% cafe, 6 Rep^ 7. ^* that when one i» bamed. in any 
'' a£li6n real ov per fonal^ oy judgment upon demurrer, confeflloH, 
** verdi3, &c. he is barred as to that or the like a6lion^ of llic 
** like nature for the^y^« ihinf^ for ever ;" for expejit rmpuiUca 
utfit finis litium. Hut there is a diverfity between real and per* 
Jonat anions fwhicb. may be weii undcrftood by reading that 
cafe] Lord Cake meansby ailions of the like Qaiiire«a£Uonsoi'th0 
f^mc degree, where you cannot have a writ of a higher nature. 
A bar ia a wxit o£ axel is a bar in a. writ of befad^ and in a colla- 
teral adion as cofinage^ £fr. for thefe are anceflral^ and of one 
and the fame nature ; but will not bar a ivrit of right — -—Per* 
fkfud afU^us are all: q£ the iame heighth or degree, in an a£Vion 
of trefpafs for taking hie horfe, which by the count is reduced to 
a certainty [fo£ you muil wait for tlic declarationj it is a good 
plea to the writ that a replevin, is pending of the lame taking, 
where an averment is allowed that 4II is fof one and the faiu^ 
talmng. g R-p. 6i. i, ; 

Nemo debet bis vexariy is the general rule ; to^ which there 7rt . 
fome exceptions ; as where a. man. miAakcs hi£ a£lion by fuing 
a^ adminiflrator, when, in truth he is executor—*' RobinJoHiua 
** others executors of J^, R. brought an a£Uon of debt upon aa 
" obligation, the defendant pleaded that before the purchafe of 
*' the writ one of the plaiutiffa as adminiftrator of f. R. brought 
*V an a£Hon of debt upon the fame bond againft. th^ defendant, 
** who then pleaded that JT. ^. made executois who admini- 

•i fired, 



IVtwrtY Tbmi 1ft Ceo. Ift l}7l ^oj) 

•* Itrtt, ana tnrverfcd Aai hfc diefl intcfta;e; then the plaintiff 
** replied, that <adimmHlrati(m was commined to \i\m Jfenden'tt 
^ /rife; the dcScndam dcmarre^i and h was adjudged for the* • C<*^'« 
*• dtfcndant. And tlhis ptea was plcjadefi % way of efloppel, ^^^ff", ^^ 
** and judgmmt detiianded !f 'he as clectitor ihall have debt f^r die pltM^ 
^ upon the fame bond* The plaintiffs replied and Jhewed the j'>ffi ^ *« 
** repeal oftlje letters of adminrftrationi and that the plaintiffs w^^**^- 
•" are cxecbtors j Vhe'reupon the 'defendant demurred^ he pre- 
*' tending, that inafnnich as cue of tlic plaintiffs was barred in 
•* the former aSion, thc)' fliaM tic barred for eVer : the cafe was 
•* well debated at the bar aiid the hench, and» at length, judg* 
*' ment was given for the plaintiffs : for it was unaniraoulTy 
*• agt^0ed, that by the former judgment the plaititiff was barred 
" as to tlie Wflrrjn of' the wrif, (that n to faj^ from having any 
^ aftion as adminrftrator : but that as he thcH in truth was 
•* execmor, the -nriffaking his a£>ion is no har, nor an.eftqppcl 
" to bring his true afiron i as if thc heir hringSjformedon en k 
. •* (kfcendcr^ and be barred in it, yet he may hzvtformedon en k 
'• remainder or reoerttr, 5 J?^. 32. b. Robinfon's cafe.'* 

ATfo th^nie is no qireftion but that if a man miftadces his docla« 
tation, and the defendant demurs and hai judgment, the plain* 
^iff may (bt it riglit in a fecond a£lioti« 1 M.od. 207. JUffing 
txiAKedgemn* 

It appears rn Ac prefcnt rafc that tr4mer has been brought for 
the tronvtnrffon cf the goods . taken in exeeuiioi;, and that the 
jury have determined that the plaimifis haX'e no righi to thofe 
goods ; and if they have no right to theiPt they have no right to 
the produce thereof, or to the moMfcy for which they were fold-; 
tt is clear tfrerefore, that the plaintiffe have no right to this 
i£lion ; in tiie former afiion the judgment is on record that the 
fhmtiffs ml caffiant fer brete^ Jftd eant iniejinc die, th^ fliall 
never c o to c again, but are for ever barred. 

Judgment for the defendaitt per totam curiam . 



SanderfoD ^verjus Baker and Martin &erif& of London iVscicRep. 
andOViiddlefex. C.B. *^*-^-^- 

♦^RESPASS for 'breaking and emerrng the plaintiff's ware- Trefpaft ^ et 
* heoft^ in Eagkjireiet^ •Meping poffemoa thereof, and taking •'^wi lict 
tis goods ; tried before Lotd Chief JuOice Bt Grey, verdia for 2'^^,/^ 

the pIttlltUf, dumages Jl^o/. raking the 

goods of A. 
« Jiiibad of tbe goodi ^^, by hit bailiff, upon the ibeiiff*! warrant upon a pri Jtu'tau 

X 3 The 



310 Tbinity Term 12 Gsa. III. 1772. 

[A (heriff It The cafe upon the evidence oi fafis at the trial was, Thattbe 

*"^'"k'* plaintiff 5fl««a^;yin is an auQioneer, and having goods in his ware- 

Dot^^imunttr houfe to be fold by aii£lion» publifbed a catalogue thereof for 

fortbt z€to( fale in May 1771 ; that one Bolland a (heriff's officer having a 

his bailiff,-- warrant from the fheriff upon an execution oijieri facias againil 

•n'aaion"*" ^"^ Beavor at the fuit of one Price^ thereupon feifcd the faid goods 

civiiitir it is of the plaintiff SauruUrJbn, fuppofing the fame were Beavor*s 

*^<^nectffitj goods, whlch they were not, ^s was proved at the trial ; that 

•auaUcwg. o^the 31ft of Afay, Bolland took away the goods which were 

aition by the proved to be of the value of 300/. and upwards, locked the door 

ihjriff of the of the ware-houfe, and took away the key thereof* 

ads of the * ^ ^ 

bailiff. See n r ^ t..r*» !«•*« 

jickzvortbY* That on the ill of June the plamtiff went to the iheriff^s 
^mpe. I. office, where he found Mr. Friih clerk to the under-flieriff, and 
s.^pf tfwiij ^^^" ^"^ there, in writing, demanded all the goods (fo wrong- 
cafe i and thi fulIy fcifed by Bolland the officer) to be returned, and that if 
Mtfi tbere they were not returned he [the phintiS Saund^r/bn'] would fuc 
[%fr7s^ *^^^ {^:^r[Ks, whereupon Mr. Fntk then told him the Ihcriffs had 
alfo fVtndgate fufficieiit fccurity from Bolland^ and that lie [Friilh) did not care, 
V. Kf^atcbbuU, Frith alfo faid, " This fellow Bolland has been often guilty, I 
)c.B!'i^i " ^^ S'a^ he is caught, but we have fecurity." The defend- 
150, 156.] ants gave no evidence at all at the trial ; and in fumming up 
the plaintiff's evidence to the jury, the Lord Chief Tuftice told 
them, that if they were of opinion that the ikmS hsii recognized 
the aft of Bolland^ they ought to give their verdift for the plain- 
tiff which they accordingly did, and faid they were of opinion 
that the fheriff had recognized the aft ol Bolland; the Lord Chief 
Juflice was fatisfied with the verdift. 

It was moved by Serjeants Burland and Walker, that the ver- 
dift was unfupported by the evidence, and that the fheriff was 
not anfwerable in an aftion of irejpafs ui et armis, for afts done 
by his officers or bond -bailiffs, and they cited 2 Roll. Abr, 552. 
(0) pi. 9. " If the fheriff makes a warrant to the bailiff ol a 
•* f ranchife to take the goods of a man in execution, and he mif- 
" takes the goods, and takes the goods of another man, the bailiff 
• " is the trefpalfer, and not the fheriff." And pi. 10. ibid. •' If a 
" man be arrefled by the bailiffs of the fherifl, and thereupon he 
*' fheweth to them difuperfedeas to difcharge him, and the bai- 
** liffs refufe it, and afterwards detain him in prifon, ye fhaH 
** have falfe imprifonmcnt againfl tlie bailiffs, and not agaioft 
•* the fheriff." They alfo cited Laicock's cafe. Latch 187, where 
it is faid the fheriffs fha)l be fined or amerced, and fliall anfwer 
in damages to the party for the mifdemeanor of the undcr-lheriff, 
but be fhall not be imprifoned or indifted; from whence they 
argued that irefpafs vi ei armis in tliis oafe will not lie againfl the 
high-fheriff, becaufe the judgment in thaitrefpafs is quodcapiatur. 

Where. 



TaiKitV TebUl 12 Geo. in. 1772. 311 

Whereupon the' court made a rule to (hew caufe why the verdifl 
Jbould not be fet afide^ and a new trial granted. 

Serjeant JOaty for the plaintiff againft a t^ew trial — I never 
knew this objefiion made before; me notion 1 have always en^ 
tertained upon this fubje£l is this ; a (heriff appoints his bailiffs 
or officers to do the a£fs which the QierifiT himlelf is bound and 
obligedi by law, to do ; he takes fecurity, both by bond and 
oath from the officers to indemnify himfelf^ and if the King's 
fubjeSs are hurt or injured by the wrongful afis^or trefpafles of 
fuch officers^ they muft refort to the (herifiThimfclf to be repaired 
in damages for fuch wrongs and trefpafles. Thefe bond-bailiffs 
for bum-bailiffs] are the nfofl abandoned and wicked fet of 
men» therefore the flieriffs always take^Iar^e and ample fecurity 
for their good behaviour, buC if the ihenff himfelt is not an- « 
fwerable m damages for trefpaffes committed by them under 
colour of their office, fuch fecurity feems vain ana nugatory. If 
it was once univerfally underllood that the high fhen iTs are not 
anfwerablc, by law> for trefpafles committed by their officers in 
the execution of the flieriff s warrants, this would very much 
tend to the breach of the peace, and endangering men's lives | 
for if an officer (hould have a warrant to take B.*s goods in exe- 
cution, and he, wilfully, or by miftake, feifed the goods of A, 
in tAat cafe, if A. knew that the fheriff was not aniwerable for 
the trefpafs, A. would moft probably refift the officer With 
Force, the peace would be broken, and lives might be in 
danger* 

Laicoci^s cafe in Laich. 187. is not applicable Xothis; that 
was a fpecial afiion upon the cafe, againil the under^fheriff for 
returning upon a latitat^ nonejl inventus: which latitat was de- 
livered by the plaintiffs to the under-(heriff» when the defendant 
therein namedi was in the prefence» view and company of the 
Under-fberiff ; fo that it is there faid an afiion againft the high 
iheriff laid for an efcape, and that he ihall anfwer for his under*^ 
iheriff civilly ^ not criminally^ 

The cafes in fi RoL Abr^ 552. pL o & 10. are no more to the ' 
purpofe than ljaxcock\ cafe; the firft of thofe^ pL q. is the cafe 
of the bailifi' of a franchife who is not appointed by the (heriff» 
therefore if that officer millakes and feiles one man's goods in* 
ftead of another's, the Iheriff is not liable ; the other cd&^pL 10. 
is^ if ^fuperfedtas be fhewn to the Iheriff 's bailiff to difcnarge a 
tnan whom he has arrefled« and the bailiff afterwards detains . 
him in prifon, falfe imprifonment lies againft the bailiffi and not 
againfl the (heriff; but this cafe does not reach the prefent cafe 
at bar, for here the under-fheriff has recognized the tr^pafs done 

« 4 ^J 



3i<a TaiuiTir Tekm 12 Gbo. III. 1772. 

by Bollandt and has told the plaintiff that the fheriff hmd fecurity, 
and the plaintiff might do what he pleafed. 

Serjeant Glyftn on the fame fide for the plamtiff— This is Ircf. 
pafs for taking goods acknowledged to be the property of the 
plaintiff, and not of Beavor the defendant named in BMand*% 
warrant ; it was a queftion -put to the jury by my Lord Chief 
Jufltce, whether they believed this a£l df Bdllmnd was not an aft 
ncegrdzed by the Iheriff ; Mr. Frith the clerk afied as under- 
(h^riff, and fpeaking for the (heriff adopts the fad» he (ays it is 
indifferent to the (heriff, becaufe (fays he) ** We ha^e indem- 
** nity." With this queftion put by my Lord C^ief JliSice to 
the Jury the matter was left to them, and they being of opinion 
that the fheriff had reeognked the a3 of Boltand^ have given their 
. verdift accordingly, which is dccifive. 

The high dieriff muft be anfwerable in damages for the tref- 
pailes committed by his officers in the execution of warrants ; for 
if this matter was to ftand uporf any other ground, <it would be 
pregnant with great mifehief indeed ! That gteat publick officer 
the high Qieriff muft be a perfon refponfible to the King's fub- 
ieQs in fortune, kSc, and the law doth not prefume the bom- 
bailiffs to be perfons anfweraMe, who are [in general) the moft 
abandoned wicked fet of mcti living ; and if th« (heriff was not 
to be anfwerable for their trqfpaffes in the exectHioa of warrants, 
a door wouM be opeiied to plunder and rapine by .thefe bailiffs, 
who would, whenever they thought ^t. (as in the prefent cafe) 
feife su\d take away the goods of one man infiead of aiiothec*s. 
' Indeed if I (^^ a private perfon) was to command my Asrvant to do 
a lawfiil aft, [fuppbfcT to diftrain the goods of A. and he wronje- 
fally takes a difttefs or the goods of B. I (hould riot be anfwerable 
for my fervant's mifdoing; but in the cafe of a publick oBccr, 
the high Iheriif, \k\v> delegates perfons to aft for hitti in his own 
office^ friuft be ahfwcfable perfonally* in damages for ttTefpdfles 
done by thofe perfons in th«; execution of his office^ for fttch 
perfons aft by the flieriff *s power and publick authority* 

There are many cafes where a inafter is anfwerable for the 

wrohg done by his fervant ; the fe^vants of a ca^n^n ran over a 

boy in the ftr^s arid raaimed him by tie^li^hce,. an aftioti was 

•brought affainft the mafter, and the plintiff recovered. The 

•fervantfc o? A, with his cart run^gaihft Ike cart of 5. /n which 

there %iras a pipe o{ ^ack^ and overturned it, whereby the SmcI 

was fpoiled, and ran into the ftrect, an aftion was brought againft 

the mafter, ani held good hj Holt Chief Juftice. 1 lid, Raym. 

730, 264, 465, An aftion lies againft the tnafter of a fhip, boat 

tw barge» for the unfkilfully or negligently fteering therebi by the 

•- fervant, 



TaiNiTV Tfitii la O«o. III. 1771. 313 

fenrant, thereby any Atktmge in done to the perfon or property o£ ^. 
another; many other fitnihr cafes there are, where the mafler 
muft, by taw, be anfwerable n«;ry/y for the ads ofhU fervant, 
otberwife great mifchief to llie^»M/r^ would ^enfue: the fafety \ 
«f ihepnbhck is much concerned in. the prefent queftlon. 

^rjeant Burland for the defendants — ^No cafe hath been cited 
to flieVr that trefpafs vi et arms will He againft the {heriffin the 
prefent cafe » and lYitJi^fiqutnt recognition by Mr. Fritk^ the un- 
^crUherifTs cierk,^ wiil not make the defendant's anfwerable in 
irefpafs tn et arms. I fubmit it (with deference) to the court, 
that no man is anfw^rabie in t)rtfpafs vi it armis tor an ad done 
by hi$Jervant or depiOy^ who ads contrary to the command and 
order of his Mo^^ or /^nii(t/it/c • 

Htee is a warrant or authority to BoUand to take the goods of 
A. but he wrongfully takes the goods of B*: the {heriff as no 
more anfwerable than \\^olUtnd\9A n^t taken any man's goods 
at all ; it might as well be faid, that whatever trefpafs this Bol- 
Und commits, the iheriff Ihall be anfwerable to his maften 

IcanfeenodiiSFcrencebetweenthe cdSeoizJherifftnA his hdKff. 
and a fnAjkr and }X\%Jervant / the mafter of a hackney-coachman 
or a carter is not aafwerable in trefpafs vi et armis^ for injuries 
done bv the fervant. *' If my fervant without my notice puts 
*\ my Deafts into the land of another, my fervant is the tref- 
** palfer, and not I, becai^fe by the voluntary putting^tfi the cattle 
^' there without itiy aflent, ne gains a fpecial property for the 
** ttme^ and'fo, to this purpofe, they are his cattle. 2 Ro/i. 

•• Atn 55%»(QjpL li" Soppofe a bailiff breaks open tlie 

door of a man's houfe to arrell him, or to take his goods it\exe- 
#ution, the fheriff in fuch a cafe would not be a trefixiffer, but the 
officer himfelf only. — ^And if a bailiff arreils a itrange perfon 
Slot named in the writ, falfe imprifonment lies againft the bailiff 
only, not againft the fheriff. — ** In Hil. ^4 Eliz. B. R. tiie 
** cafe was, that on the sdday of Jtdy ?i capias ad fatisfacUndwm 
' •* ' was delivered in Holbom to the iheriff of Cambridge^ who made 
^* a warrant to his bailiffs the fame day, and afterwards, aifo on 
^* the fame day, there came to the iheriff aySrj^ir^^tfj, upon a 
•' writ of error, of which the bailiffs, having no notice took the de- 
*' fendant's body whoefcaped, and afterwards the bailiffis, havini^ 
^ notice of theySi^r^^tfx retook him; and thereupon trefpals 
*' and imprifonment was brought, and adjudged maintainable. 
** Moore 6jj*pL 9*1. Prine verfus AUington.*'. 

Where the (heriff is anfwerable, the bailiff is not liable in the 
fame fort ef adion ; if the bailiff permits an efcape, or the un- 
der £beriff makes a falfe return of a writ, the high (heriff is only 

liable 



814 "Tkixity Term la Geo- IIL i:f7i. 

liable to an a3ion for the e/capei or for the falfe returni for k 
is the efcape and falfe return of the high-fheriflf. — Laicock's cafe 
in' Latch, 187. when confidered, is a cafe in point for the de« 
fendant, and fliews that trefpafs vi et armis does, not lie againft 
the high flierifF, for the judgment in trefpafs vi et arms is quod 
capidiur, hut thai caje ^s, the high-meriff (hall not be m^n* 
Jontd for the a£l of his officer* 

For a tort or wrong in the execution of procefs, the under* 
flieriffor officer who does the wrong is only anfwerabie. — ^If 
the demandant in a writ of tntry fur ojjafin^ delivers a writ of 
fummons thereupon to the under-fhcriff of the county, and 
afterwards he doth fummon the tenant upon the land accord- 
ingly, and notwlthftanding, doth not return the writ, an a£Hon 
upon the cafe may be brought againft tlie undcr-flieriff, if the 
plaintiff pleafes, for perhaps the flieriff had no notice thereof j 
and it may be, that the under-flieriff hath taken the fees to exe- 
cute the writ, i RdL Abr* 94. (RJ pL 4. adjudged inter 
Marjh and Aftrey. Cro. Eliz. 175. S. C. 1 Zeon* 146. S» C. — 
So if a warrant upon a fcri facias to levy a debt at the fuit of 
7. S. be direfted to an under-bailiff of ^ Hhtrty^ and he by 
force thereof levies the debt and afterwards conceals the writ, 
and doth not make s^ny certificate thereof, an. a£lion upon the 
cafe lies againft the under-bailifft becaufe that he hath doiie a 
perfonal tort. . 1 Roll. Abr. 94. pL 5. 

' The cafe oi Cooper et al\ ajfignees of Johns a bankrupt^ verfus 
Chitty and Blackijion Jheriffs of London^ 1 Burro* 20. was 
trover for goods of the bankrupt lawfully taken in execution, 
and fold by the Jheriffs after they had notice of the .bankruptcy^ 
and that the goods were the property of the o^^g/j^tj, which was 
adjudged a converfion by the fherififs. — ■ — The times and faSs in 
that cafe are, that on the 5th of December 17^31 one Godfir^ 
obtained judgment in C. B. againft. the faid jofms : and on the 
fame day (5th December 1753) execution upon that judgmenr 
was taken out againft his goods by Godfrey^ and the goods feized 
by the iheriffs under it; that Johns committed the ad of bank-* 
ruptcy 4th December 1753, and ©n the 8th of the fame Decem- 
ber a commifTion of bankruptcy was taken out againft him; and 
on the v^ryfame day the commifTiontrs executed an affigntnenis 
and' afterwards, on the fiSth o£ December ^ a bill of J ale of the 
goods was made by the fheriffs. ^The qucftion was, Whe- 
ther the afTignees could maintain tr,ovtr againft the iheriffs (^ho 
^executed this pi'ocefs under a regular j udgment and execution) for 
^ . feizing the goods under a fieri facias iffued 6ut and ^ecuted 
after the aft of bankruptcy was committed, ^ndJelUng them 
4;/?er the afTignment was executed. And per totam curiam^ the 

' a£Uo9 



Tbinity Tebm l2^GBa III. 1772. 315 

aBioTi was held maintainable, and tbey ^gave judgment for the 
plaintiffs. 

1 agree with my brother Glynn that the (heriff 's delegati(^ 
of bailiffs and officers to afi for him in his office, is like othef 
delegations,, and that if a fervant of a carter, by driving un'« 
ikiihilly, negligently, or wilfully, overturns or injures the coach 
or carnage of another perfon, the mailer of the cartis anfwer-^ 
able in an a£lion of trefpafs upon the caf(^, but not in trtfpafs vi 

et arms. *: — I admit, if the iheriff had made a return, he would 

Kave been anfwerable in trtfpafs vi ct armSf becaufe all perfon» 
any way^ concerned in fuch trefpafs are principals* 

Lord Chief Juftice De Gr^ry— Do you [brother Burland'] con* 
tend that no recognition of this fa3 ol £ouand but a return of tha 
writ will fix the flieriff as a trefpaffer vi et armis f 

Serjeant Burlandr^Fritkiht under-flieriff's clerk faid, ** This 
^' fellow Bolland has been often guilty of faults, I am glad he 
" is caught, but we have fecurity;'* fthat is to fay,j U Bolland 
has done any aft to affeft the flieriff, tne flieriff has lecurity, this 
muft be Fritk*s meaning ; if the flieriff himfelf had faid the fame« 
it would not have made him liable in an aftion of tretpafs vi et 
armis 9 and no faying whatever of an under-iheriff can make the 
laigh-flieriff perfonally liable in that aftion* 

Serjeant Walker of the fame fide for the defendants — Spoke to 
the fame effeft with StvytdLiit Bur land. 

Gould ]\x&ice — ^As to the recognitiorv by the flieriff, cited 4 /«- 
^ii^ 317. where it is faid, that "by the common law 'he that 
" receiveth a trefpaffer, and agreeth to a trefpafs after it be done, 
•* is no trefpaffer, unlefs the trefpafs was done to his ufe or for 
" his benefit^ and then his agreetnent Jiib/equent, amounteth to a 
•• cbmrnandinent.** 

Serjeant Davy — cited Saunders verlus Powell. 1 Keb. 693. 
where it is faid by Twijdm Juftjce, that trover or trefpafs will 
lie againfl the flieriff in a cafe like this at. bar ; and 2 A ^^.352* 
" AJieri facias vf2A to IcvyihtfpOiiL^oi Daw fon; and the bailiff 
•• by virtue thereof took the goods of one Lutterelly as the goods 
*' of JDawfon^ and after returns ftulla bona of Dawfan^ 
" whereupon trefpafs was brought and a recovery had againil 
•* the high-fheriff, which [as was faid] is impoffible, for 
•* only tlie under-flieriff himielf is fubjeft : fed non allocatur^ 
*^ for the high.fheriff is chargeable in trefpafs, and the return 
*• of nulla bona will not alter the cafe, having no influence on 
•• Luttereirs goods. And Brq. Office and Officer, f I. 24. is. 



814 * l^KiKiTY Term la Geo- IIL ll'Ji. 

liable to an a^ion for the efcapCi or for the falfe returrii for i( 
is the efcape and falfe return of the high-flieriff. — LaicocHs cafe 
in* Latch. 187. when confidered, is a cafe in point for thede« 
fendant, and ihews that trefpafs vi et arniis does, not lie againt 
the high flieriff, for the judgment in trefpafs vi et arms is (fud 
capidtur^ but thai cafe uys, the high-meriff (hall not be impti* 
Joned for the a£l of his officer* 

For a tort or wrong in the execution of procefs, the under* 
flieriff or officer who does the wrong is only anfwerable.— If 
the demandant in a Writ of entry fur ajfdjin^ delivers a writ of 
fummons thereupon to the under'-fherifF of the county, and 
afterwards he doth fummon the tenant upon the land accord* 
ingly, and notwithftanding, doth, not return the writ, an aflioQ 
upon the cafe may be brought againft the under-flieriff, if the 
plaii\tiff pleafes, for perhaps the flieriff had no notice tlicreof j 
and it may be, that the under-flieriff hath taken the fees to exe- 
cute the writ, i RdL Ahr\ 94. (R) pL 4. adjudged iidtr 
Marjh and AJlrey. Cro. Eliz. 175. S. C. 1 Leon. 140. 5. C— 
So if a warrant upon a feri facias to , levy a debt at the fuit of 
7. 5. be direfted to an under-bailiff of ^ lihtrty^ and he by 
loroe thereof levies the debt and afterwards conceals the ¥rrit, 
and doth not make s^ny certificate thereof, an. a6lion upon the 
cafe lies againft the under-bailiff* becaufe that he hath done a 
perfonal tort. . 1 Roll. Abr. 94. pL 5. 

' The cafe ol Cooper et al\ affignees of Johns a bankrupt^ vcrfus 
Chitty and Blachjion Jheriffs of London^ 1 Burro* 20. was 
trover for goods of the bankrupt lawfully taken in execution, 
and fold by the fheriffs after they had notice of the ^bankruptcy, 
and that the goods were the property of the affignees^ which was 
adjudged a converjion by the fheriflfs. — ■ — The times and fa£bin 
that cafe are, that on the 5th of December 17^ 3f one Go^ej 
obtained judgment in C. B. againft: the faid Joans: and on the 
fame day (5th December 1753) execution upon /ii^/ judgment 
was taken out againft his goods by Godfrey^ and the goods fazed 
by the fheriffs under it; that Johns committed the atl of bank- 
ruptcy 4th December 1753, and ©n the 8th of the fame Decern- 
ber a commiflion of bankruptcy was taken out againft him; and 
on the \ try fame day the commiffioners executed an affgnmtjdl 
and' afterwards, on the 28th of December ^ a bill of pile of the 
goods was made by the fheriffs. The qucftion was^ Whe- 
ther the affignees could maintain tnover againft the fheriffs (who 
^executed this procefs under a regular judgment and execution} for 
^ . feizing the goods under a fieri facias iffued 6ut and ^ecuted 
after the aft of bankruptcy was committed, and- JiUing them 
after the affignment was executed* And per totam curiam, the 

' a&ion 



Trinity Tebm 12^GE0. III. 177a. 315 

aSion was held maintainable, and they ^gave judgment for the 

plaintiffs* 

t agree with my brother Glynn that the (hefiff's delegati(^ 
of bailiffs and officers to a3 for him in his office, is like othef 
delegations,, and that if a fervant of a carter^ by driving un^ 
ftilfuUy, negligently, or wilfully, overturns or injures the coach 
or carriage of another perfon, the mafler of the cart is ahfwer-^ 
able in an a£lion of trefpafs upon the caf(^, but not in trefpafs vi 
tt armis*—-^. — I admit, if the (heriff had made a return, he would 
Have been anfwerable in trtfpafs vi et arnuSf becaufe all perfon» 
any way concerned in fuch trefpafs are principals* 

Lord Chief Juftice De Grey^-^Do you fbrother Burland'] con* 
tend that no recognition of this fad ot Souand but a return of tha 
writ will fix the (heriff as a trefpafler vi et armis f 

Serjeant Murland^-^Frith the under-flieriff's clerk faid, ** This 
** fellow Bolland has been often guilty of faults, I am glad he 
•' is caught, but we have fecurity;** fthat is to fay,j U Bolland 
has done any a6l to affefib the flieriff, tne iheriff has lecurity, this 
muft be Fritk's meaning ; if the iheriff himfelf had faid the fame« 
it would not have made him liable in an a£lion of treipafs vi et 
armis ^ and no faying whatever of an under-flieriff can make the 
high-Iheriff perfonally liable in that a£bion« 

Serjeant Walker of the fame fide for the defendants — Spoke to 

the fame effefl with Serjeant Burland* 

I 

Gould JuUdcQ — ^A*s to the recognitiorv by the (heriff, cited 4 /«- 
^it. 317. where it is faid, that "by the common law* he that 
" receiveth a trefpaffer, and agreeth to a trefpafs after it be done, 
" is no trefpalTcr, unlefs the trefpafs was done to his ufe or for 
" his benefit^ and then his agreement Juhjequent^ amounteth to a 
•' cbmmandnuntJ^ 

Serjeant Davy — cited Saunders ver{us Powell. 1 Keb. 693. 
where it is faid by Twijdcn Juftjce, that trover or trefpafs will 
lie againd the (heriff in a cafe like this at. bar ; and 2 A^^. 3^2* 
•* A fieri Jacias vr2t6 to levy tht goods oi JDawfon; and the bailiff 
" by virtue thereof took the goods of one Lutterell, as the goods 
" of Dawfon^ and after returns tiutla bona of Daw/an^ 
** whereupon trefpafs was brought and a recovery had againil 
" the high-(heriff, which [as was faid] is impoffible, for 
" only tlie under-flieriff himielf is fubjefi : fed non allocatur^ 
" for the high.(heriff is chargeable in trefpafs, and the return 
" of nulla bona will not alter the cafe, having no influence on 
" LutterclV% goods. And Brq. Office and Officer^ pi. 84. is. 



814 1:SuxiTY tzKbi 12 Geo. HI* Wi. 

liable to an a^ion for the efcapCi or for the falfe fti%n^ fork 
is the efcapt and falfe rtturn of the high-fherifif. — Lncodts cafe 
in' Latch. 187. when confidered, is a cafe in point for thede. 
fendant, and fhews that trtfpafs vi et arms does, not lie agsdl 
the high (heriff, for the judgment in ire/pqfs vi ct arms is fol 
capidtur^ but that cafe ^s, the high-fheriff dall not be ia^ 
foned for the a£l of his officer* 

For a tort or wrong in the execution of procefs, tbe under- 
fiierifFor officer who does the wrong is only anfwerable.— If 
the demandant in a writ of entry fur dijafin^ deliven a writrf 
fummons thereupon to the under^fheriff of the county, aoi 
afterwards he doth fummon the tenant upon the land accovt 
ingly, and notwithftanding, doth, not return the writ, an aSin 
upon the cafe may be brought againfl tlie under-iheriff, if tk 
plaintiff pleafes, for perhaps the (heriff had no notice tbcreofj 
and it may be, that the unaer-flierifF hath taken the fees to exe- 
cute the writ, i Rdl. Abr\ 94. fR) pL 4. adjudged iMa 
Marjh and AJlrey. Cro. Eliz. 175. 5. C. 1 Lean. 14?. &C- 
So if a warrant upon a Jieri facias to levy a debt at the fuii of 
7. S. be direfted to an under-bailiff of ^ liitrty^ and he if 
force thereof levies the debt and afterwards conceals the wiit, 
and doth not make s^ny certificate thereof, an. a£lion upon tire 
cafe lies againfl the under-bailifft becaufe that he hath dott 1 
perfonal tort. . 1 Roll. Abr. 94. pi. 5. 

* The cafe ol Cooper et al\ ajjignees of Johns a bankrUpi^ verf« 
Chitty and Blachjion Jherijfs of London^ 1 Burro. 20. *« 
trover for goods of the bankrupt lawfully taken in execution, 
^nA fold by the fheriffs after they had notice of the bankrupt 
and that the goods were the property of the affignees^ which i« 

adjudged a converfon by the fherififs. The times and fafisin 

that cafe are, that on the 5th of December 17531 one GoJ^ 
obtained judgment in C. B. againft. the faid Johns: and ontk 
fame day (5th December 1753) execution upon ^j^ judgmoit 
was taken out againfl his goods by Godfrey^ and the goods Jasd 
by the fheriffs under it; that Johns committed the ad of bank- 
ruptcy 4th December 1753, and ©n the 8th of the fame Da* 
ber a commifTion of bankruptcy was taken out againfl him; vA 
on the wtryfame day the commiffioners executed an ofgnmatf 
and afterwards, on the fiSth of December ^ a bill of fak of the 

goods was made by the fheriffs. The queflion was< Wh^ 

thcr the affignees could maintain tr,over againfl the fheriffs (wbo 
executed this procefs under a regular judgment and execution)!* 
feizing the goods under ^ fieri facias iffued Out and Qxeculd 
after the aft of bankruptcy was committed, ^ni fSn§ them 
after the affignment was executed. And per totam curiam, the 



S3* 



E; Trinfty Term 12 Geo.. III. 177a. 315 

# 

;- aQion was held maintainable, and they ''gave judgment for the 

^; plaintiffs. 

'•l- 1 agree with my brother Glynn that the flierifiF's delegati(^ 

^v- of bailiffs and officers to afi for him in his office, is like othef 

:;. delegations,, and that if a fervant of a carter* by driving un- 

ftilfully, negligently, or wilfully, overturns or injures the coach 

or carnage of another perfon, the mailer of the cart* is ahfwer« 

able in aji a£lion of trefpafs upon the cafd, but not in trtfpafs vi 

l^, «/ armis.—^. — I admit, if the fheriff had made a return, he would 

*^!!i Kave been anfwerable in trefpafs vi tt armist becaufe all perfon» 

any way concerned in fuch trefpafs are principals* 

Lord Chief Juftice De Grey^^Do you fbrother Rutland'] con* 
tend that no recognition of this fa3 ol £ouand but a return of tha 
writ will fix the flieriff as a trefpaffer vi ct arms f 

Serjeant Burland-'—Fritkiht under-fherifiF's clerk faid, •* This 
*^ fellow Bolland has been often guilty of faults, I am glad he 
^'l " is caught, but We have fecurity;'* fthat is to fay,j II Bolland 
*' has done any aft to affeft the fheriff, tne fheriff has lecurity, thi« 
* :. JDuft be Fritk*s meaning ; if the fheriff himfelf had faid the fame* 
, vit would not have made him liable in an adlon of trefpafs vi et 
^^ armiSf and no faying whatever of an under-fheriff can make the 
^ '' high-Qxerifif perfonalfy liable in that a£lion« 

. Serjeant Walker of the fame fide for the defendants — Spoke to 
^ the fame effe£l with Serjeant ^2<f/a»i/. 

^2* G^i^W JufUce — ^A*s to the recognitiorv by the fheriff, cited 4 /«- 
• t^it^ 317. where it is faid, that "by the common law he that 
J " receiveth a trefpaffer, and agreethto a trefpafs after it be done, 
** is no trefpaffer, unlefs the trefpafs was done to his ufe or for 
T " his benefit y and then his agreement fub/equent^ amdunteth to a 
!••* cbmmandinen^.'' 
^ • • ■■ 

Serjeant Davy — cited Saunders verfus Powell. 1 Keh. 693. 
fwhere it is faid by Twi/dcn Juftjce, that trover or' trefpafs will 
[lie againfl the fheriff in a cafe like this at. bar ; and 2 A^^. 3^2. 
' ** AJicri facias was to levy the goods of Dawfon ; and the bailiff 
by virtue thereof took the goods of one Lutterell, as the goods 
of Dawfon^ and after returns tiutla bona of Dawfon^ 
whereupon trefpafs was brought and a recovery had againfl 
the high-fhcriff, which [as was faid] is impoffible, for 
.**'onIy the under-fheriff himielf is fubjefi : Jed non allocatur^ 
>• for the high-fheriff is chargeable in trefpafs, and the return 
*' of nulla bona will not alter the cafe, having no influence on 
•• Lutterelts goods. And Brq. Office and Officer, pi. 24. is, 
F I ♦* Note, 



814 Tkiitity tzKbi 13 Geo. UL i77i. 

liable to an a3ion for the e/cap^i or for the falfe returrii for k 
is the e/cape and falfe return of the higb-flierifif. — Laicock's cafe 
in' Latch. 187. when confidered, is a cafe in point for thede- 
fendant» and Ihews that trefpafs vi et armis does, not lie againt 
the high flieriff, for the judgment in trefpafs vi et arms is (jmd 
capidtur^ but that cajt ^s, the high-meriS* (hall not be imfn^ 
fontd for the a£l of his officer* 

For a tort or wrong in the execution of procefs, the undcr- 
flieriffor officer who does the wrong is only anfwerable.-— If 
the demandant in a Writ of entry fur ajjafin^ delivers a writ of 
fummons thereupon to the under^fheriff of the county, and 
afterwards he doth fummon the tenant upon the land accord- 
ingly, and notwithftanding, doth not return the writ, an afiion 
upon the cafe may be brought againft the under-iheriff, if the 
plaintiff pleafes, for perhaps the flieriff had no notice thereof? 
and it may be, that the under-flieriff hath taken the fees to exe- 
cute the writ, i RdL Abr\ 94. (RJ pL 4. adjudged inter 
Marjh and AJlrey. Cro. Eliz* 175. 5. C. 1 lAon. 146-1$. C— 
So if a warrant upon a Jicri facias to . levy a debt at tl;ie fuit of 
7. S. be direflea to an under-bailiff of ^ Itbtrty^ and he by 
force thereof levies the debt and afterwards conceals the writ, 
and doth not make s^ny certificate thereof, an. a£lion upon the 
cafe lies againft the under-bailiff^ becaufe that he hath dotie a 
perfonal tort. . 1 Roll* Abr. $4. pL 5. 

' The cafe oiCooperet al\ affignees of Johns a bankrupt, vcrfus 
Chitty and Blachjion Jherijfs of London^ 1 Burro* 20. was 
trover for goods of the bankrupt lawfully taken in execution, 
and fold by the fheriffs after they had notice of the -ianiruptcjf, 
and that the goods were the property of the q//2gn^s, which was 
adjudged a converfion by the flieriflfs. — — ^The times and fa£bin 
that cafe are, that on the 5th of December 1753, one Goiffrejf 
obtained judgment in C B. againft. the faid Johns; and on the 
fame day (^th December 1753) execution upon M<2^ judgment 
was taken out againft his goods by Godfrey^ and the goods fazd 
by the flieriffs under it; that Johns committed the ad of bank- 
ruptcy 4th December 1753, and on the 8th of the fame Deem' 
ber a commiflion of bankruptcy was taken out againil him; and 
on the very fame day the commiffioners executed an aljignmentt 
and' afterwards, on the 28th of Decefnb^r, a bill of J ale of the 
goods was made by the ftieriffs. The qucftion was, Whe- 
ther the affignees could maintain ttover againft the iheriifs (who 
^executed this pi'ocefs under a regular judgment and^xecution] for 
- . feizing the goods under ^l fieri facias ilfued Out and ^ecutcd 
after the aft of bankruptcy was committed, ^ni felling them 
afttr the affignment was executed. And p^r totam curiam, the 

/ a&io^ 



TfiiNrTY T£BM l2^GEa III. 1772. 315 

aBioti was held maintainable, and tbey ^gave judgment for the 

plaintiffs. 

1 agree with my brother Glynn that the (heriff 's Aeltgatiotk 
of bailiffs and officers to a3 for him in his office, is like othef 
delegations,, and that if a fervant of a carter^ by driving un^ 
ikiifuUy, negligently, or wilfully, overturns or injures the coach 
or carnage of another perfon, the mailer of the cart is ahfwer« 
able in an a£lion of trefpafs upon the caf<^, but not in trtfpafs vi 

tt arnds, r — I admit, if the (heriff had made a return, he would 

have been anfwerable in trefpafs vi et armist becaufe all perfon» 
any way concerned in fucb trefpafs are principals. 

Lord Chief Juftice DeGrey — ^Do you rbrother Burland'] con- 
tend that no recognition of this fa3 of BoUund but a return of tha 
writ will fix the flieriff as a trefpaffer vi et arms f 

Serjeant Burlandr^Fjith the under-flierlff 's clerk faid, ** This 
*.' fellow Bolland has been often guilty of faults, I am glad he 
" is caught, but we have fecurity;'* fthat is to fay,j U Bolland 
has done any aft to affeft the flieriff, tne flieriff has lecurity, this 
muff be Frith's meaning ; if the flieriff himfelf had faid the fame« 
it would not have made him liable in an adion of tretpafs vi et 
armis^ and no faying whatever of an under-flieriff can make the 
high-iheriff perfonally liable in that a£bion« 

Serjeant Walker of the fame fide for the defendants — Spoke to 
the fame effefl with Serjeant Burland- 

GW^/ JufUcc— As to the rccognitioiv by the flieriff, cited 4 /«- 
Jlit^ 31^, where it is faid, that "by the common law he that 
" receiveth a trefpaffer, and agreeth to a trefpafs after it be done, 
" is no trefpaflcr, unlefs the trefpafs was done to his ufe or for 
" his benefit^ and then his agreement fubfequent^ amdunteth to a 
** commandment** 

Serjeant Davy — cited Saunders verlus Powell. 1 Keb. 693. 
where it is faid by Twijden Juftjce, that trover or trefpafs will 
lie againfl the flieriff in a cafe like this at. bar ; and 2 Keb. 352* 
*' Kfierijacias was to levy the goods of Dawfon ; and the bailiff 
" by virtue thereof took tne goods of one Lutierell, as the goods 
** 01 Dawfon^ and after returns nulla bona of Dawfon^ 
** whereupon trefpafs was brought and a recovery had againfb 
" the high-flierin, which [as was faid] is impoffible, for 
•* only tlie under-flieriff himfelf is fubjea : Jed non allocatur^ 
*' for the high-flieriff is chargeable in trefpafs, and the return 
** oi nulla bona will not alter tlie cafe, having- no influence on 
•' LuttcrelV% goods. And Brq. Office and Officer, pi. 24. is, 

8 •* NotQ^ 



Sid 



TittKiTt Tnot tl G«o. HL 1^72. 



Judgment of 
tbe court. 



• [Su Doug. 
4», 43, and 
sit lutes 



^ Nc6a, tktt the aft of the mMler^kperHr -er hk ifejMTy in tk 
" name of the fheriff fliall charge the fhcriff; and for tfceir 
" a£ls the flieriff fhall be amerced and none other* 5 Ed. 4< 

GpuU Jaftioe — ^I am o€ ©plfliiow ttfat toy Lord CfeJef Jwlice did 
very right in leaving k to the jury, wkh this queftien, ui. 
** whether they wet% of opinion, -that the flieriff'had recagnized 
** the aa of B'oilMi:' The (heriff{or the ander-flieriff which 
is the fame in this cafe) makes ^ warrant to the trffirer to take 
the goods of i4. in estecotion, and b^ fei«^ the goods of the 
plaintiff; Frith the imder-ihieriff's t\txk has notice hereof 
given to him by the plaintiff in writing, who alfo at the fame 
time desnanded the goods lio be refiored t^ hifla, b^ mftecti of 
ordering thtUxo be Soox^ Frith (as it feems to me) fnade a joke 
of the bunncfs ; I confider Frkh as (landing in the place «f, ami 
reprefenting the very perfons of Baker and Martin the {heriifs 
themfelves, and Fnth not ordering the goods fo wrdngfulJy 
taken to be reftored immediately %<» the plaintiff, the fteriffs fiom 
that time became principals in the trtAAfs, by ftecogm^ing the 
9i& of BcHand. 

If Frith had made any doubt whether the goods feised were^ 
froptrty of the plaintiff &c not, it was the duty of him and the 
fheriflf to have made an inquiry by a jury, unaer a writ of fr^ 
prittate probanda ; but inftead of doing this he tells the plamtiff 
they hav« got fecurity, and feems to be quitch caieleis about the 
matter ; I am clearly of opinion that this was an adoption x>f the 
fa£l by the (heriifs themfelves, and upon tliis ground alone the 
plaintiff is intitled to have judgntem.* The cafe in s &A. 352^ 
(a MS. copy whereof I have feen) is dins3iy in pmnt, th«t tr^- 
pafs vi tt arrfds welKlies in this cafe. This i^ not « new notion^ 
for it is laid down by HAnl^ord [JufticeC. JB.][,*3 /fa«- 4* i* 
XL. b. *' That if I bring a writ of. debt againft 7. A. in 
" which a capias iffueth, if the (heiiff by colour of this wrrt 
*' taketh a man named £, C. he (hall have a writ oifalft im* 
** pri/bnnunt againft Ac flieriff, and not againft 1110; but it fo 
** be that I come to the Iheriff with the faikie writ, and iirfonn 
*' him th^ fi. C is the &me peribn againft whom the trrit is 
*' fued, andbec«ufeoftfaat certifieatiovi the (heriff lakes him, 
** he may have a writ oifal/i imffnfinment agamft the flieriff 
'^ and me, or againil the (httriff alone^" to which Thirmng 
[Chief Juftice C. BJ] accorded, and (aid ihat this was law. 

Something heA >«en tfaro^rn cut touching the lheriff*$ liabt* 
Uty to sttf war 4w^, and not mmnvliSr for tke afts of his 

officcr&a. 



officets, tbl^ bookA aiiK9^ Uial ibe flitfiiff » toi tiibli to an 

In this cafe I coi%fi4cr aU thrfift> the flsertff» undev-Ibeuriff, «od 
deputy, as pne.perCoiK 

Black/lone Jufticc — ^The jury have found the faft, that the 
(heriff recognized the aft of BoUand; but if they had not found 
thai f3£l« I Qtfuild have ibo«)^ the ihftr^ff was anfumaUe in 
an aftion of tref^afs vi et arms for the aft of BoUand his of»* 
ficpr, the law looking upon the IherifF and all his officers as one 
perfon ; he is to look to his officers that they do their duty, for 
if they tran%reb hif i& aaCwesaUe to> the pavty injured by fuch 
tranfgreflion, and his officers aF& anfwerable over to hi/n. 2 
JLeb. 352. is in point.-— There is a difference between majler 
Bxidjervant^ but a flierifi' and all his officers are confidered, in 
cafes like this,> as one Derfoo* ■■ " la ^^, [to compel the de- 
•^ fendant to appear,} the flierHF drftrained J. B. where the 
•' name of the defendant was T. B. ; there 7. B* fliall have his 
?* remedy againft the flieriff', ei hoc videtur [Tays Brooke\ hygene^ 
*• falfaaion of trefpa/ii hm where he.ferves the writ truly, 
" and embezzles it, or makes a falfe return, videtur that an 
•• aQion upon the cafe lies. Bro. Tre^a/s^ pL 135* cites 19 
^»ifou6. 8©." 

Nares Juftice-— I am of the fame^ opiincn with my brothers 
Gotdd ^xiS Black/lone. Frith fliould have faid he would do his 
heft dsdBavour to gob ^ goods . seftored to the plaintiff, if 
they were his property, ani oiighf; ta have told the plaintiff' fo 
>vliien ht demanded the feme. 

1 have for a long time diought,'that tre/hafs and imfnhmtm^ 
well lie asaioA the iheriff*, for tvefjpals Sfcna falfe impriionment 
commifttea by his basliif in the; execution o( procefs. tro. Tpcf-^ 
p^fsypL 99. 1 1 Hen. 4. 90, 91 . vide Dalton's Office qfSherij^s^ ^2» 

£ap.'i2i. 1 know of three aftions of trefpafs againft the 

ibariff' in. cafes of this kind; Tyler verfus JMn/btt, B. R. tried at 
SU^ardxn 1764 was imprifonmeTut againft the flieriff; thewxit 
ted warrant was to take the p^y jplaintf ff* in the county of 
Worcefler^' and the officcf took him m the county of Siafford^ 
inftead of Worcejher^ there was a verdifir for the plainti^ although 
V objeSed ihat the aftion did not li^ againft the flieriff', but only 
againft the bailiff*; I remember a fimiiar cafe tried before Lord 
phief Juftice Wilmotj who was of opinion the aftion well laid 
a^tnft the ffieriff ; I aHb remember a third aftion of the fame 
kiad; fo that in psaftice it is clear than imprifonam^ lies agaiail;* 
Oms ihscil^ fear thft aftLof hia bailiC 

Lord 



810 



TuKiTt Tant 11 G«o. HI. l^ji. 



Jodgment of 
tbe court. 



• [Su Doug. 
4»» 43, and 
the notes 



** Nuia, tktt the aft of the iiiMler4l«Btiff' <9r liis ifepoty in die 
*' name of the fheriff fhall charge the (herifif; and for tiieir 
** a£ls the flieriff fhall be amerced and none other. 5 Ed, 4^ 

C^stf Jnftioe-^I am of epifiioB tliat tny tx)rd Chief Jeftice M 
very right in leaving k to the juty, with thi€ queftimi, u^< 
** whether thev wet% of opinion, that the flieriff'had recognized 
'« the aa of Boilitttd.*' The dieti«F(or the mider-fliertff which 
is the fame in this cafe) makes « warrant to tlie trffirer to take 
the goods ciA.rn estecotion, and b^ feir^ the goods of die 
plaintiff; Frith the uftder^^riff's cler4; has notice fcenof 
given to him by the plaintiff in writing, who alfo at the fame 
time desnanded the goods tb be reifiored to htm, b^ cniiead ot 
ordering ihst to be £me, Friih (as it feems to me) made a joke 
of the burincfs ; I confider Frith as (landing in the place of, and 
reprefenting the very perfons of BaAer and Martin the fhcriffs 
themfelves, and Fnth not ordering the goods fo wrongfully 
taken to be reflored immediaddy to the plaintitf) the flienfffi ftom 
that time became principals in the trtAdfs, by rtecogmiing the 
^oiBatiMd. 

If Frith had made any doubt whether the goods feieed wereik 
property of the plaintin or not, it was the dutv of him and the 
fheriff to have made an inquiry by a jury, under a writ of fr^ 
prittate probanda; but inflead of doing this he tells the plaintiff 
they haV€ got fecuriiy, and feems to be quitch carelefs i^out the 
matter ; I am clearly of opinion that this was an adoptioh of die 
fa£l by the fheriffs themfelves, and upon this ground alone the 
plaintiff is intitled to have judgment.'^ The cafb in b XjA. 3^2. 
(a MS. copy whereof I hav« feen) is dtrdSiy in point, thaft tr^^ 
pafs vi tt arrms welLlies in this cafe. This ift not a new notioOf 
for it is laid down by Hdnl^ard [JufticeC. B-\aZ ^^- 4» ^* 
^. b. ** That if I bring a writ of debt agamft 7. A, in 
** which a capias iffueth^ if the fheriff by co&ur ef'^this writ 
*' taketh a man named B. C. he (hall have a writ olfal/e im* 
** pri/bnnunt againR the flieriC uid not againft nio; but if fo 
«• be that I oome to the fheriff with the faikie writ, and infofm 
*' him th^^. C is the fiune perfon againft whom the imt is 
*' fued, andbecaufeoftfaat cerdfieatkm the fli^iff takes him, 
** he may have a writ oifal/i imfn/dnmem againft the {faeriff 
''- and me, or againfl the ihsriff alone^" to which Thiming 
[Chief Juftice C. £•] accorded, and ftid that this was law. 

Something heA baen thrown out touehtng the (heriff's liabi- 
lity t« sttfwer dpHiOr^ and not mmn»&tir lor tke aSs of hit 

officers^ 



Tmsstity Tmm 1 a Crto. IIL i77a. air 

oficefs, tfc^ bookA mii^»% thai ibe flitfiiff » wH tiiblt to an 

In this cafe I coi%fi4cr aU.thfCtti the ihertff» undev-flieriff. md 
deputy, as pne.perCEM^, . 

Blackjione Jufticc — ^The jury have found the faft, that the 
(heriff recognized the aft of Boiland; but if they had not found 
that b£kt I Qumld have tbcm^bt the iJmnS waa anf%feraUe in 
an afiion of tref^afs vi et arms for the aft of BoUand his of»* 
fic^r, the law looking upon the IherifF and all his officers as one 
perfon; he is to look to his officers that they do their duty, for 
if they trantgr«b hif i& aafwesaUe ta the paity injured by fuch 
tranfgreflion, and bi» officers ate anfwerable overtohi;n. 2 
K^b. 352. is in point.— There is a difference between mafter 
' zniijirvant^ but a fheriiT and all his officers are confidered, in 
cafes iikethis,^ as one Derfoo* ■■ ** la d^t^ [to compel the de« 
** fendant to appear,} the f h er ilF diftrained J. B. where the 
•' name of the defendant was T. B. ; there 7. ^. fhall have his 
•• remedy againft the fheriff, ei hoc vidctur [Tays Broohe\ hy gene- 
>• rd*amon of trefpafi^i hill whefe he.lerves the writ trujy, 
*' and embezzles it, or makes a falfe return, videtur that an 
" aftion upon the cafe lies. Bro. Tre/bafs^ pL iQ^^ cites 19 

Nates Juflice-— I am of the fame^ opinion with my brothers 
Gotdd sjid Blaci/lone, Frith fhould have faid he would do his 
hs& esdoavour to gp^ Ao goodb . seftored to the plaintiff, tf 
they were his property, aai oiighf; ta have told the plaintHT fo 
when b< demanded the &me. 

I have for a long time diooghty-thaft ire/hafs and imprij&fmmi^ 
well lie acaiafl the fheriff, for tve%a£i ^nd falfe impriionment 
committed by his bailiff ia the; cxccutioa of procefs. BrO'l Tftef-^ 
pqfsypL 99. 1 1 Hen. 4. 90, 91 . vide DaltorCs Office of Sheriffs^ 48a. 

cap.' 121, 1 know of three aftions of trefpafs againft the 

fmriff in cafes of this kind ; Tykr verfus Jahrym^ JB. R. tried at 
SU^jford'm 1764 was incprifonment againft the flieriff; the writ 
tad warrant was to take the party plaintjff in the county of 
Worcefler^' ^nA th^ offiee? took him m the covmty of Staff ffrd^ 
ioftead of Worc^Jier^ there was a verdi3 for the plaintifi^ althcuffk 
I objeQed that the aftian did not lie againft the flieriff, but only 
againft the bailiff; I remember a fimibr caie tried before Lord 
Chief Juftice Wilmot^ who was of opinion the aftion well laid 
ajgptnft the ffieriff ; I alfo rem^ber a third aftion of the fame 
kiad; fa thai m psaftice it is clear that i$iiprifimmirU lies^agaiail;' 
^ft«3£ fimrtlutaftof hiabailif. 

Lord 



810 



Judgment of 
tbecourt. 



4»» 43t and 
tie n»ta 
'ftitt.} 



TM»ixt Tatit 14 Gto- hi. ijji. 

** Nota, tktt the aft of tbe iiiMler4)Kriir^or hk ^cpaiy in tk 
*• name of the fheriff (hall charge the fherifiF; and tor tlicir 
** a£ls the flieriff fhall be amerced and none other4 5 Ed, 41 

Gpuld Jafttoe-^I am of dpiAion tiiat my Lord Chief JelHce did 
very right in leaving k to ^he jury, with this queftion, ul 
** whether the wet% of opinion, -that the flieriff'had recegnized 
^ tbe aa of B'oilMi:" The ihcri«F(or the utider-flieriiF which 
IB the fame in this cafe) makes ^ warrant to tlir of&cer fo lake 
the goods ci A,\ti estecotion, and b^ feif>« the goo4s of die 
plaintiff; FriA the under^rifiT's cler4; has Notice thereof 
given to him by the plaintiff in writing, who alfo at the fame 
liftK denaaiuled tiie goods lio be refiored to \wm^ bttl hiibead of 
ordering that to he £me. Frith (as it foems to me) niade a joke 
of the bunnefs ; I confider Frkh at (landing in the place <rf, «ad 
reprefentliTg the very perfons of Baker and Martin the fheriiTi 
thcmfelves, and Frith not ordering the goods fo wrongfully 
taken to be re/lored immediately to the plaintftf) the flieriffisfiom 
that time became principals in the trt/pdfs by Itscoguitiiig the 
^aofBeOand. 

If Frith had made any <loubt whether the goods feised weJt/fc 
property of the plaintifl &r not, it was the duty of him and the 
flieriff to have made an inq«iry by a jury, unaer a writ of^^ 
prietate probanda ; but indead of doing this he tells the plaintitf 
they have got iecuriiy, and fecms to bt: quitch carelefs about the 
matter ; I am clearly of opinion that this was an adoptieh of die 
fafbby the (herifis themfelves, and upon this ground alone the 
plaintiff is intitled to have judgment.'^ The cafe in s AA. 352' 
(a MS. copy whereof I hav« fcen) is dtns3ly in ptMtit, that <fgf 
pafs vi et arnds wclLiies in this cafe, lliis i% not « new notion, 
for it is laid down by Hdnhford QufticeC. JB.][,i3 /fet. 4. ft. 
^. b. *• That if 1 bring a writ of debt agamft 7. A. in 
" which a capias iffueth, if the fheriff by colour erthis wn^ 
" taketh a man named B^ C he (hall have a writ oijalje im* 
** prifonincnt againft the flieriif^ and not againft mo^ but if fo 
<• be that I come to the flieriff with the faikie writ, and inform 
'' him that^. C. is the &nK perftm againft whom the writ n 
*' fued, andbecaufeoftfaat certrfieatioii the iherifP ukes him, 
** he may have a writ oi falfe imffnJhnpKm againll the (heriff 
'^ and me« or againfl the flwriff aione^" to which Thirmng 
[Chief Juftpce C. BJ] accorded, and fttd ihat this was law. 

Something hoA bacn thrown cut tDUching the (herifTs Ittbi' 
lity to sttfwer ii^tfr, and not mmnt&tif lor the afis of his 

oScerSf 



offic^fs, tbl^booLa nilma Uiai ibe flitfriff » itot Uiblt to an 

indidftuni. 

In this cafe I conjUkr aUthiWi the (heriff» undbsv-Ibeuriff, tod 
deputy, as pne.per{iEi9. 

Blackfiom Jufticc — ^Thc jury have found the faft, that the 
{heriff recognized the aSk of Bolland; but if they had not found 
thai %^ I Qumld bayc^ ibo4}^bt the ihftriff was ueififeraUe in 
an a6lion of treffafs vi et armis for the a£l of Bolland his of^ 
ficpr, the law looking upon the IherifFandall his officers as one 
perfon; he is to look to his officers that they do their duty, for 
if they tranlgreb htf i& aaCwesaUe to> the paHy injured by fuch 
tranfgreflion, and bi& officers ate aftfwerable over to hip*. 2 
fCeb, Q^2. is in point.-— There is a difference between mqfier 
dsiijervant^ but a flieriff* and all his officers are confidered, in 
cafes like this,^ as one perfon* ■■ " I& dijfty [to compel the de* 
•* fendant to appear,} the flierHF diftrained J, 5. where the 
^' name of the oefendant was T. 5. ; there 7. B* fliall have his 
?• remedy againft the flieriff', et hoc vidctur [Tays Brooke\ hy gene^ 
'• ral.aSion of trefpaftt hill whefc he.ferves the writ trujy, 
" and embezzles it, or makes a falfe return, videtur that an 
" afiion upon the cafe lies. Bro. Trejpafs^ tU 135* cites 19 

Narts Tuftice — I am of the fame opinion with my brothers 
GoiM ^na BUukftone, Frith fliould have faid he would do his 
heft dsideavoiir to get t^ goodb . seftored to the plaintiff, if 
they were his property, ani ought to have told the plaintiff' fo 
>vhen be demanded the feme. 

I have for a long time thought, -that trejhafs and imprij&wmmi 
well lie asaittft the ffierifi*^ for tvefipa& ^atA falfe impriionment 
committea by his bailiff ia the; cxecutioa oi procefs. Brol Tpcf^ 
f^fsypL 99. 11 /fen. 4. 90, gt. vide Dalton's Office of Sheriffs^ 48a. 

cap, 121, 1 know, of three actions of trefpafs agamft the 

flMnriff in cafSes of this kind; Tyler verfos lohnfoi^^ JB. it. tried at 
Sid^ord in 1764 was vrnprifoiimait againft the Ateriff ; the writ 
4nd warrant was to take the party plaintiff in the coun^ of 
Worcejler^ and the offieey took him m the county of Staff ard^ 
infiead of Worcejier^ there was a verdifif for the plaintiff^ although 
X objefled that the a&ion did not lie againft the fiieriff', but only 
againft the bailiff'; I remember a fimiiar caie tried before Lord 
Chief Juftice Wilmot^ who was of opinion the adion well laid 
a^tnft the ffieriff ; I alfo remember a third adion of the fame 
kmd; fa that in picaEtice it is clear that imprifonmmt lies^s^ail;* 
tbcflttci£^ for the: aaofhia bailiff. 

Lord 



314 ' Tkikity TBKii 13 Geo. UL 11 fl. 

liable to an a3ion for the efcapei or for the falfe retuuii for k 
is the e/cafie and falfe return of the high-lheriflf. — laicoci's cafe 
in! Latch. 187. when confidered» is a cafe in point for the de^ 
fendantf and (hews that tftfpafs vi ti arms does, not lie ttgainSt 
the high flierifF, for the judgment in trefpafs vi ei arms is quod 
capidtur^ but that caje fays, the high-Iheriff (hall not be impn^ 
fontd for the a£l of his officen 

For a tort or wrong in the execution of procefs, the under* 
IherifFor officer who does the wrong is only anfwerable. — ^If 
the demandant in a Writ of entry fur dsffafin^ delivers a writ of 
fummons thereupon to the under^fhcriff of the count)% and 
afterwards he doth fummon the tenant upon the land accord- 
ingly, and notwithftanding, doth not return the writ, an adion 
upon the cafe may be brought againft tlie under-iheriff, if the 
plaintifif pleafes^ for perhaps the (heriff had no notice thereof; 
and it may be, that the under-fheriff hath taken the fees to exe- 
cute the writ. 1 RdL Abr[ 94. (RJ pL 4. adjudged inter 
Marjh and AJlrey. Cro. Eliz. 17^, 5. C 1 i^on. 146. 5. C — 
So if a warrant upon ^ fieri facias to levy a debt at the fuit of 
7. 5. be dire£led to an under-bailiff of ^ libtriy^ and he by 
foroe thereof levies the debt and afterwards conceals the writ, 
and doth not make <iny certificate thereof, an, a£lion upon the 
cafe lies againft the under-baiii(F« becaufe that be bath doUe a 
perfonal tort. . t Roll. Abr. $4. pL 5. 

* The cafe oi Cooper et al\ ajfignees of Johns a bankrupt^ vcrfus 
Chitty and Blachfion Jherijfs of London^ i Burro* 20. wk 
trover for goods of the bankrupt lawfully taken in execution, 
and fold by the fheriffs after they had notice of the bankruptcy, 
and that the goods were the property of the affignees^ which was 
adjudged a converfion by the {herififs. — ^ — The times and fads in 
that cafe arc, that on the 5th of December 17^3, one GaJfrey 
obtained judgment in C B. againft: the faid Joans: and on the 
fame day (^th December 1753) execution upon /A^/ judgment 
was taken out againft his goods by Godfrey^ and the goods fazei 
by the flieriffs under it; that Johns committed the ad of bank* 
ruptcy 4th December 1753, and ®n the 8th of the fame Decem- 
ber a commiflion of bankruptcy was taken out againft him ; and 
on the \tryfame day the commiflioners executed an affignmad: 
and' afterwards, on the 28th of December ^ a bill of fate of the 
goods was made by the flieriffs. —The queftion was^ Whe- 
ther the affignees could maintain tr,over againft the fheriffs (who 
lexecuted thisprocefs undera regular judgment and^xecution) for 
-^ . feizing the goods under 2i fieri facias iffued Out and executed 
after the aft of bankruptcy was committed, zxiA felling them 
aftir the affignment was executed. And per totam curiam^ the 



TswrrTY Tebm 12 Ge<x. III. mi. 815 

iB\an was held maintainable, and they *jgave judgment for the 

plaintifis« 

1 agree with my brother Glynn that the fiiefiff 's delegatioti 
of bailiffs and officers to a3 for him in his office, is like othef 
delegations,^ and that if a fervant of a carter, by driving un^* 
ikilfuily, negligently, or wilfuUv, overturns or injures the coach 
or carnage of another perfon, the mafter of the cart'is anfwer^ 
able in an aElion of trefpafs Upon the caf(^, but not in trtfpafs vi 
tt arms^-^--^. — I admit, if the fheriff had made a return* he would 
have been anfwerable in trtfpafs vi ei armis^ becaufe all perfons 
any way concerned in fuch trefpafs are principals. 

Lord Chief Juftice DeGre^-^Do you [brother Burland'] con« 
tend that no recogmtian of this {dSt oiSoUand but a return of tho 
writ will fix the flieriff as a trefpaffer vi et armis f 

Serjeant Murland^-^Frilk the undcr-flieriff 's clerk faid, •* This 
^i fellow Bolland has been often guilty of faults, I am glad he 
" is caught, but we have fecurity;'* fthat is to fay,] li Bolland 
has done any a£l to affefl the fiieriff, tlie (heriffhas lecurity, this 
muft be FritA*s meaning ; if the (heriff himfelf had faid the fame* 
it would not have made him liable in an a£lion of tretpafs vi et 
armis^ and no faying whatever of an under-fheriff can make the 
high-flierifir perfonally liable in that a£tion« 

Serjeant Walker of the fame fide for the defendants — Spoke to 

the fame effe^l with Serjeant Burland. 

f 

Gould JuQicQ — ^A's to the rccognitioiyby the flieriff, cited 4 /a- 
^it. 317. where it is faid, that "by the common law' he that 
" receiveth a trefpaffer, and agreethto a trefpafs after it be done, 
" is no trefpaffer, unlefs the trefpafs was done to his uft or for 
" h\s benefit^ and then his agreement fubfequent^ amountetb to a 
" commandment.** 

Serjeant Davy — cited Saunders verfiis Powell, t Keb. 693. 
where it is faid by Tmjdcn Juftjce, that trover or' trefpafs will 
lie againil the flieriff in a cafe like this at bar ; and 2 Keb. 352. 
" hfieri facias was to levy the gooAs ol Dawfon ; and the bailiff 
" by virtue thereof took tne goods of one Lutterell, as the goods 
*' of Dawfon^ and after returns tkulla bona of Datufon. 
*' whereupon trefpafs was brought and a recovery had againft 
" the high-flieriff, which [as was faid] is impoffible, for 
"only the under-flieriff himfelf is fubjea: fed non allocatur, 
** for the high-flieriff is chargeable in trefpafs, and the return 
** of nulla bona will not alter the cafe, having, no influence on 
•* Luttereirs goods. And Bro, Office and officer, pi. 24. is, 

I ♦* Noto^ 



S10 



Jodgment of 
tbe court. 



• ISte Doug. 
4»» 43f and 
tie mta 



T«»ixt Tatit 11 G«o. HI. 1772. 

^ Noia, tktt the aft of the aiMler*4lKriff ^ hk 4cp«ty in tk 
*' name of the flieriiF fliall charge the (herifT; and m their 
*' a£ls the flieriiF fliall be amerced and none other. 5 Eii. ^^ 

Gpuld JalKoe-— I mn of epifinm tiiat my Lord Cdief J«Aice did 
very right in leaving k to the jury, with thifi queftion, ztz, 
** whether tfaev wet% of opinion, that the flieriff'h^ recagmzed 
*« the aa of Boilitttd.*' The fhenir(or the utider^flieriff which 
is the fame in this cafe) inakes « warrant to the offit c i fo take 
the goods ciA.rn estecotion, and be feiis^ the go6ds of the 
plaintiff; FrM the imder-ihienff'iB cleri; has notice hereof 
given to him by the plaintiff in writing, who alfo at the fame 
time demanded the goods to be refiored to hm, hot inflead ot 
ordering i^ to he mne. Frith (as it foems to me) made a joke 
of the bunncfs ; I coniider Frki as ft«n4ingtn the place «ff, ami 
reprefenting the very perfons of Baker and Martin the fheriffi 
themfelves, and Fnth not ordering the goods fo Wrc^ngtuI^ 
taken to be reflored immedistdy to the plsiimttf) the flieriffs fiom 
that time became principals m the trtAdfs, by rtecogniiing the 
9a of Beiland. 

If Friti had made any doubt whether the ^oods feised wetetk 
fraprrty cxf the plaintiff or not, it was the dutv of him and the 
flieriff to have made an inquiry by a jury, under a writ of fr^ 
prietate probanda; but inflead of doing this he tells the plamtif 
they haVe got fecuriiy, and feettis to be quitch carelefs 4d>out the 
matter ; I am clearly of opinion that this was an adoption of tbe 
fa£l by the flierifis themfelves, and upon tliis ground alone the 

! plaintiff is intitledto have judgment.* The caft in s KdA. ^2. 
a MS. 'copy whereof I have feen) is direBly in point, thft tftj- 
pafs vi tt arms welLiies in this cafe. This i% not a new notion, 
for it is laid down by Hankf^rd QufticeC. B.\,t^ H€ft* 4. 2. 
^. b. •' That if I bring a writ of debt agatnft J. A, in 
^' which a capias ifiueth^ if the flieriff by comtt ef'^iliis writ 
** taketh a man named B> C. he (hall have a writ oijalft im- 
** prijimmcnt againR the flierilT^ and not againft 1110^ but if fo 
«« be that I come to the flieriff with the fame writ, and inform 
" him that^. C. is the fiune perfbn againft whom the ynit it 
*' fued, and becaufe of that certifieatioii the ihdriff lakes him, 
'* he may have a writ Qifalfk imffnfinwKnt againft the ifaerilf 
'^ and me, or againft the flwriff alone^" to which Thirmn$ 
[Chief Juftice C. £.] accorded, and fatd ihat this was law. 

Something heA baen thrown cut tDoehing the (heriflTs liabi- 
lity to aof wer c^wAftfr, and not mmintdiSr lor the afts of his 

ofBcen.^ 



officets, tbi^ bookA atfim^ tlial ibe flitfiiff » wt liabli to an 

In Ibis cafe I coi%C4cr aU Uum, the (heriC ondev-flterii; md 
deputy, as one.per{iEWK 

Blackflorti Jufticc — ^The jury have found the faft, that the 
flieriff recognized the aft of Bolland: but if ihey had not found 
thai £^» ^ ibould bayit iboit^U the QmiAS was anfiamaUe in 
an a3ion of tref^afs vi et armis for the a£l of BoUand bis of^ 
ficer, the law looking upon the IherifF and all his officers as one 
perfon; he is to look to his officers that they do their duty, for 
if they tran%Feb htf i&aa(Wesable to* the paity injured by fuch 
tranfgreffion, and bis officers ap& anfwerBble over to hira. 2 
Kcb. 352. is in point.— There is a difference between mqfter 
Bnijtrvant^ but a fherifT and all his officers are confidered, in 
cafes iike this,^ as one perfon.——" la ikbt, [to compel the de- 
*^ fendant to appear,} the flierHF diftr^ned J. B, where the 
*^ name of the oefendant was T. B. ; there 7. B* (hall have his 
«* remedy againft the flieriff, tt hoc videtur [Tays Brooie] hy gene^ 
*• ralfomon of trej^pafii hm wbefc he.lerves the writ truly, 
*' and embezzles it, or makes a falfe return, xnddur that an 
•• adion upon the cafe lies. Bro. Trtfpafsy pL 135^ cites 19 
M ifea.6. 8©." 

Nares Juflice- — I am of the fame opraicn with my brothers 
Gcidd 2jia Black/lane. Frith fliouM have faid he would do his 
heSt csdoavour to gefe ^ goods . lefioved to the plaintiff, if 
they were his property, ani oiighf; to have told the plaintiff fo 
>vhen b< demanded the &me. 

I have for a long time thought, that tre/hafs and impnj&wmmi 
yrell lie aeaiait the iheriff^ for tvefjpals Sfcna falfe impriionment 
commiilfeed by his bailiff in the^ cjiecutioa of procefs. Bral Tpef-^ 
pafSypL 99. 1 1 Hen, 4. 90, 9 1 • vide Ddton*s Office ofShenffs^ 4^9. 

cap.' 121. 1 know of three afiions of trefpafs agamft the 

fhirriff in cafes of this kind; Tykr verfos Johnfm^ B. R, tried at 
Stafford in 1764 was imprifonment againft the flieriff; thewzit 
ajid warrant was to take the party plaintiff in the coun^ of 
TVorctfierl and the officer took him m the county of ^anord^ 
infiead of Worcejier^ there was a verdi£): for the plaint ifi^ although 
i obje£led that the a&ion did not lie againft the fiieriff, but only 
againft the bailiff; I remember a timibr cafe tried before Lord 
Chief Juftice Wilmot^ who was of opinion the adion well laid 
a^tnft the ffieriff ; I alfo cemember a third adion of the fame 
kind; fa thai in ponBice it i» clear than imprifmmmt lies- agaiail;^ 
tbe flttcij^ fimr the: aftof hia bailiff. 

Lord 



318 TaiNiTY Tbrm la Geo. III. 1772- 

Lord. Chief Ju&ice De Grey- — ^I am of the fame opinion I was 
at. the time ot the trial of this caufe, that the a£lion well lies 
againft the defendants the flierifis. And therefore the nile to 
ihew paufe whv there ihould not be a new trial muftbe dif^ 
charged. And it was difchar^ed accordingly. 



MICHAELMAS TERM 

13 Geo. III. 1772. 



Allen, qui tam, &c. verfus The Inhabitants of the 
Hundred of Kirkton. C. B. 

rnidecUm* A CTION upon the ftatute of the pth.of C^^. i. c. 22. 

noiiupoothf -TX by the plaintiff Mlm qui iam^ (3c. againft Tie mha- 

9 Geo. I. Giants of the Hundred of Kirkton^ to recover fatisfaSion 

c. ms.itwat and amends, for the damages he had fuftained, by « the fettin)^ 

hid that two firg to two ftacks of oats, which in the declaration is laid 

•f the plain? ^^ ^^^ \>ttxi felonxoujly committed and done by fome perfon 

tiff were fet or perfons unknown to the plaintiff, which hQ lays to his damage 

«ifi«/r/f«. ofaop/. 

idtbough it ' . Upon the trial of this caufe at the lafi affizes, it was proved to 
was objeaed the latisfaftion of the jury,, that on the 6th of December laft the 
haT^been plaintiff's two ftacks of oats yftxt. Jelonioujly fet on fire by per- 
laid to be (ons unknown, and that the plaintiff was damnified thereby to 
the value of 170/. and every other requifite being proved accord- 



' and 






V ing to the aft of parliament, the jury found a vcrdift forthc 



a Black. Rep. plaintiff, and gave him 170/. damages. ' 

And now Serjeant Forfler- moved in arreft of judgment, and 
objefted that the declaration was bad; becaufe it was alledged 
therein, that the fetting fire to the flacks of oats was commiued 

and 



Michaelmas Term 13 Geo. IIL 1772* 319 

and iontfcloniou/ly^^ but it is not alledged that it was done »»« 
Iflitfullyznd mabctoujly^ which are the very words in thtflatuie 
fed, 1. which, being a very penal law, ought to be literally 
purfued, for it niake$ many a3s capital t>fiences, which were 
no more than trefpaffes or civil injuries before the making of 
the fiatute ; 9nd he compared -it to the (latute oihue and rry, and 
cited Hob, log. Norris verfus The Hundred of Gawtry^ Noy 2i, 
Baieman verlus The Hundred of Randalls y and 2 Stran. 1247. King 
ycrfus The Hundred of B\fhop''s Sutton^ to fliew, that this being a 
penal law, the very words of the ilatute ought to be purfued \n 
the plaintiff's declaration ; and that the word felonioufly is not 
fufficient without ihe words unlfiufully and rnaliaovfly ; for a man 
may fet fire to his own Hacks of oats (landing in his own land» 
if he thinks fit, but this is no offence againll the (latute.—^ 
Serjeant Walker of the fame fide, fpoke to the like effcQ, 

Serjeant Burland for the plaintiff— The ftatute doth not make 
ufe of aiiy .technical words or expreffions, that are abfolutely 
neceflary to be inferted in a declaration againft the Hundred in 
this kind of aflion, but leaves the plaintiff tp alledge and prove 
^uo ammo his Hacks of oats were fet on fire ; here he has alledged 
in his declaration, and proved at the trial, to the fatisfa6lion of 
the jury, that the fame was committed and ione feloniou/ly, and 
that faft which was commiiiedfelomou/ly was certainly done zoil^ 
fully, unlawfully and malicioti/fy^ for doing an aft felonioufly ^ is 
doing it malo ammo, viz, wiin malice f therefore Serjeant ^ur/^zn^ 
concluded that the declaration was perfe31y right ; and of that 
opinion was thfi whole court, axid gave judgment for the 
plaintiff, 

Batchelor the younger ver/us Bigg. C. B, 

'T^HIS was an a6lion of trefpafs againft the defendant, for I" •nation 
^ having had criminal converfation with the wife of the afl-]"[^*"* 
plaintiff, wherein he declared, that the defendant with force and criminal conr 
arms, on fuch a day and year; at A. in the county of £, made ▼erfation, 6m 
an affaull' upon C. the wife of the plaintiff, and then and there ^^'^^u^ 
debauched^ ahufed^ and carnally knew hers whereby the plaintiff irui were 
loft the comfort and fociety ot his faid wife, lie. The defendant !'• m. 6d. 
pleaded the general iffue not guilty, whereupon iffue was joined, *^i^}j^°^ 
which was tried by a fpecial jury before Mr. Baron Perrot fuu cofts, 
at the laft fummer aflSzes for the county of Buckingham: when without a 
a verdift' was given for the plaintiff, with one pound eleven ^^^^ 
Ihillings and fixpence damages, and on^ poupd eleven flpllings ui^er tb^ 
9nd fixpence coilSf ftauaaftil 

The ^■'- *' 59- 



320 



MicHAXtMAs Term 13 Gso. HI. 177^ 



Serjeant 
Foiftrr for 
defendant 
agVinft full 
colift. 



Scfjtant 
Wilfon for 
plaint) fir, for 
lull cofts. 

^tat. of 
Gloucefter 
lirft gate 



In what c»fe 
by ftat. 4.3 
£Ux. c. 6. a 
plointifTroay 
be deprived 
of full cofts. 



The />^a being returned, amd brought into the office in order 
for tbc cofts to be taxed, and frnal judgroent entered thereupon ; 
all the prothonotarics vyere of opinion, ih^it the phdntiff was in- 
lifeled to ht3 fuH cofls upon this vcrdi£l, notwitbftanding the 
d»nages fou&d by the jury were unider tTie value of forty fiiil- 
iin^s, and accordingly Mr. Pfothonotary Mmnwaring uxed cofU 
de incrcmfUo to thirty-two pounds and upwards. 

Whereupon M'* Serjcam F^rjler on behalf of the defendant 
moved to fct afide and vacate tlte taxation of cofis de incremenU^ 
alledging this was an a&ion of trefpods, aSarok and battery^ and 
that the judge, at the trial of the caufe, not ha^'ing certified 
under his hand upon the back of the record that an affauk and 
battery was fufficiently {te-oved according to the ^^. 2&£^.fi3 
Car, 2. c. 9vA^- ^3^- '^^ platiruiflF fball not recover or obttm 
more cofls of fuit than the damages fo found fhall amount unto \ 
tod that if any more cofts in any fqcb adion &M' be anirarded, 
the judgment fhall be void, and tbe dcfcndam is by the biija^ 
tute acquitted of and from the £ffRe, aiid may have his attioa 
againft the plaintiff for fuch vexatious fims, and recover his da* 
mages and cofis of fuch bis &»it, in any of tbe courts of record 
at ivie/lmh^fer, ^Yhereupon the court m^de a rale to fheic caufe, 
why the taxation of cofis de tncnmatio ilicmtd not be fet afide ; 
and Mr. Juftice Gould, at the tame time, jdeiired Serjeant forja 
to look into tlie cafe oi Cocke verfus Saycj, £ Burro. 7^5. 

Serjeant Wilfon for the plaintiff, upon (hewing canfe, aUedged 
that by the iiatute of Glomejltr^ 6 £i. s. r. 1. (which is the 
firft ftatute concerning cofls) the phiintiff is Avel] intitled fo his 
full cofls^ in this cafe, unlefs fome fubfequent flatute hinders or 
prevents him ; for it is provided by this a6l, that.tlie demandant 
may recover againft the tenant the colls of hb writ ptircbafed, 
together with the damages, and that this a£l fhall hold place, 
in all cafes where the party is to recover cbmages. So that, ih 
all cafes where damages were recovered before, or by this a£l, the 
pialn^tiff fliall recover his cdfis alfo: this was the original of full 
cofls, or cofls di tncrtmerUo* 

The firft ftatute made for preventing or hindering plaintiffs 
from recoverijig cofls in particular cafes is the a^EMz. cap. 6. 
/cB. 2. intitled an a£l for avoiding trifling and frivolous fuits is 
law in her Majcfly's courts at IV^minfier^ whereby it is enaficd, 
•*- If upon any aflion ocrfonal to be brought in any of her Ma- 
" jefly*s courts at Wejlminfier, not being for any title or intereft 
** of lands, nor concerning the freehold and inheritance of any 
** lands, nor for any battery, it (hall appear to tbe iudges fu* 
** the fame court, and fo fignified or fet down by the juflices 
2 »• be- 



MicHAEtMAs Term 13 Geo. III. 1772. 321 

•• before whom the fame (hall be tried, that the debt or damages 

'* to be recovered therein, in the fame court, Ihall not amount to 

" the fum of forty (hillings or above, that in everj' fuch cafe the 

" judges and jullices before whom any fuck .£lion fiiall be purfued, 

" ihall not award for cofts to the party plaintiff, any greater 

" or more cofts than the fum of the debt and damages fo re- 

•* covered fhall amount unto, but lefs at their difcretions." 

Thlsjlat, of 43 Eitz. has been frequently taken in common con- 

fideraiion (I do not (ay in legal or judicial proceedings) to have 

given the judges an authority to certify in order to intitle the 

plaintiff to full cofts; but the cafe, upon well confiderine Butitbitli 

this ftatute, isjiill the reverfe; for the plaintiff will have his full ?o«Jeen pat 

cofts in all cafes in which he before had them by the Jlaiute of " ** 

Gfouce/Ur, unlefs the judge certifies upon the 43 £/?z. to prevent 

his having co(b; but as the judges never certified upon the 43 

Eiiz, it had no effe£l at all ; for although the fuit was frivolous, 

and the plaintiff recovered lefs than forty (hillings damages, yet 

he had ftiti his full cofts upon the Jlatule oiGlouceJler^ and could 

only be deprived of them oy a certificate of the judge upon the 

43 £6'z. fo'the prefent cafe is clearly not within iht^at, 43 Eliz. 

here being no certificate. — ^And it appears from the cafe of 

Reeves and Butler^ Gilb. Rep. 195, 190. that there had never 

been any fuch certificate fince the making of that ftatute. See 

alfo aid. Hift, C. Pleas, 1 10. 

As \X\eJlat. 43 Eliz. c. 6. was never put in execution, it gave In whit etfet 
rife to the 22 23 Car. 2. c. g./eff. 136. which is in thefe j^''?^^of** 
words, viz. •• And for prevention of trivial and vexatious fuits fuf"^, an- 
** in law, whereby many good fubjefls of this realm have been left the jud{« 
•* and daily are undone, contrarv to the intention of an aft made ^^ «rtify. 
•* in the forty- third year of Q*^^^'^ Elizabeth for avoiding in- 
" finite numbers of fmall and trifling fuits commenced in the 
" courts at Weftminfter; be it farther enafled for making the 
•• faid law efife3ua1, that from jind after the firll of May 1671, 
*' in all anions of trefpafs, affault and batttery, and other per- 
'* fonal aflions wherein the judge: at the trial of the caufe mall 
'* not find and certify under his hand upon the back of the re- 
** cord, that an affault and battery was fufficicntly nroved by the 
" plaintiff againft the defendant, or that the freehold, or title 
** of the land mentioned in the plaintiff's declaration was 
'* chiefly in queftion, the plaintiff m fuch a£lion, in cafe the 
*' jury (hall find the damages to be under the value of 
«« forty (hillings, (hall not recover or obtain more cofts of 
** fuit than the damages fo found (hall amount unto: and if 
•• any more cofts in any fuch aSion (hall be awarded, the judg- 
'' ment (hall be void, and the defendant is hereby acquitted of 
** aiid from the fatpe, and may have his a£lion againft the plain- 
Vol. III. * " tiff 



322 Michaelmas Tbbm 13 Geo. III. 1112. 

" tiff for fuch vexatious fuits, and recover his damages andcofl* 
** of fuch his fuit, in any of the faid courts of record/' . 

It is true that immediately after the makmg of the Jlahtk 

82 & 23 Car. 2. c. 9. the judges, upon confultation with the 

prothonotaries, feemed to be of opinion, that this llatuteex<* 

tended/^ other aSions Tbecaufe the words '* other perfofml aSions* 

are therein mentioned) be&des thofe of aflaulc and battery, and 

a£lions of trefpafs quare clau/um fregit^ as appears from the 

. cafe of the Earl of Pembroke and Uylall^ %Keb. 121. which 

was in HiL 24 Car* 2 B. R. z little above a year after the 

making that Ilatute ; and alfo from the cafe of CIax4on and 

LawSf which was in Mich. 25 Car. 2. fomething above two 

years after that (latute was made. But fmce the 25 Car. 2. it 

lias been the conilant uniform refolution of the courts at WeJ- 

Thcftat. of tninfter.thai the Jiat. 22 & 2^Q^r, 2. f. 9',/^^' 136. was uoc 

Vt *\<S^' ^ ^^ extended to other a&ions^ but to be confined to a£lions of 

J36.' onij qffauU and battery^ and trefpafs quare cbiufum/regii, as appears 

extends to irom the cafe of Smith and Batterton in Sir Tho. Rajm, 487. 

!lflkSl*afd ^'"^ ^^' J^^" *3^- ^"^ ^ **^^- ^5^- *• ^' which was *• trrf 

batteryiind ' " P^ quare vi et armis^ the defendant flung down certain iblls 

trefpafs fuare «* of the plaintiff in the market place of Highworth in Cow,. 

ilaufimfre^f. «< ff^j/fj. Upon not guihy pleaded, verdift was found for the 

*' plaintiff, but damages were given under 405. and upon the 

^^ Jicondary*s refufing to tax coib as being a cafe within S2 

*• 2^ Car. 2. c. g.feB. 136. it was moved by the plaintiff's 

'* counfel that the cofts might be taxed ; and, upon debate, it 

•* was refolved by the whole court ithat the plaintiff fliall have 

*' his ordinar)' cofts, becaufe the fiatute (hall be intended ta 

•' reach only to fuch anions in which the freehold may ap- 

•* parently come in debate ; but, in this cafe the a£Vi(Mi is not 

•* quare claufum /regit ^ but only for deftroying a chattel, and the 

, " freehold cannot come in debate, any more than if a man 0iaH 

'* take his fword out, and run a coach-horfe into the guts, 

"whereby he died, and the owner (hall bring an aftJon viet 

** armis for it, and recover under 40J. damages, yet he Ihali 

" have his full cofts." 

Miiburnc The cafe of Milburne vei^ws Reade, Trin. 17 6? 18 Geo. 2. 

T^n^ij* ^' ^' ^^^ *" aftion of trefpafs, wherein the plaintiff declared 
,8 Geo. a. that the defendant, with force and arms, did make an affault 
ioC. B. upon the plaintiff, in the parifli of -4. in the county of AVr- 
thumberland, and did there beat, wound, and ill treat tlie plain- 
tiff, fa that bis life was defpaired of, and did then and there 
alfo obftru3 thp plaintiff from getting coals, and the coals of the 
plaintiff then and there found took and cairied away, and other 
coals to the' value of 10/. trod upon and fpoiled, and one 
ftandard of the plaintiff there lately ereSed, and One roller fixed 

thereon 



Michaelmas Tbbm 13 Geo. III. 1772. 323 

thereon of the value of i6os. did take, break and pull down, 
and other goods and chattels of the plaintiff, to the value, of 
ao/. did take and carry away. There was another count vary- 
ing very little from the firft. Upon not guilty pleaded, the 
jury found, that, of all the prennfes laid to the charge of the 
defendant he was guilty, except as to the taking away the goods 
and chattels in the declaration mentioned, and afTeifed the da. 
tna^es to the plaintiff by rcafon thereof to gs. ; and as to the 
takmg away the faid goods and chattels they found the defendant 
not guilty.^ Upon this verdift there was no certificate of the 

{'udge, that the affault and battery was proved, or that the free- 
lold or title was in quefUon» 

And the queftion was, whether the plaintiff (hould be intitled 
to full cbfb, his damages being found to be under 40^. and, 
whether the cafe was within the Jlat. 22 & 23 Car. 2. c. g^JeSl. 
136? That if it was within it, the plaintiff was clearly not in- 
titled to colls, becaufe' the judge who tried the caufe hath not 
certified as that fiatute requires. 

The plaintiff having had his full cofts taxed by the prothono- 
tary, the defendant, upon motion, obtained a rule for the plain- 
tiff, *to fhew caufe wny fuch taxation ihould not be fet afide, 
upon this ground, ths^ the plaintiff is not intitled to full cofls, 
his damages being under 40X. and the judfe not having certified 
upon ih^JlatuU 22 (^ 23 Car. 2. c. g^Jia. 136. 

Lord Chief Juftice Wtllts^ in giving his opinion, faid. That by 
iki^fiat. oi Gloucefler^ 6 Ed, 1. c. i. the plaintiff Milboumc was 
intitled to his full cofts, unlefs fome fubfequent ftatufe hindered 
or prevented him; that, with refpeft to the ^/. 43 Eliz. 
c. 6,feQ. 2. the plaintiff mnft have his full cofts in ail cafes 
in which (before that flatute) he had them by the ftatute of 
Gloucejlefy unlefs the judge certifies upon the 43 Mz, c, 6. 
to prevent his having cofts; hut that there never had been any 
fuch cenificate upon the 43 Eliz. fmce the time of the making 
thereof, which occafioned the making thcjlat. 22 & 23 Car. 2. See i Wlifon 

c. ^.JeSl. 136 IVilUs Chief Juftice further faid. That it was ^^'j^^^J; 

true, that immediately after the making of ihtjat. 22 £? 23 Car. a certificate* 
2, it feemed to be the opinion of the judges and officers of the upon 4 3 
courts at IVeftminJler^ that that ftatute extended to other aSions ^*''*' 
befides thole of ajfault and battery^ and aSions of trefpafs quarc 
clau/umfregitj from 3 Kjcb. 1 2 1 fi? 247. But that ever fince, about 
the 25th year of Car. 2. it had been the conftant and uniform 
refolution of the courts at Wtjlminjlery that i\\c Jiat. 22 £? 23 
Car. 2. c. g.feSl. 136. was not to be extended to other aftions, 
but to be confined to a£lions of ajfault and battery and trefpafs 
quart clauf urn /regit. Tko. Raym. 487. ' T*. Jfoncs 232. 2 Skozv. 

Y 2 258. 



324 Michaelmas Tbrm 13 Geo. III. 1772. 

258* — But he (Chief Jullice Wiiles) faid, that the reafons given 
in fomc books tor taking cafes out of the Jiat. 22 W 23 Car, 2. 
were idle, as that there was dejlruilion^fpolxation of a clultel, or 
ajportavit of a chattel, that this feenied to ftiew an endeavour in 
the judges to find out reafons for taking cafes out of that ftatute, 
and becaufe they could not find good ones, they were willing to 
give 'any ; for (he faid) ikaafpoliaiion or afportavit of a perloiial 
chattel could not amount to evidence that the title of the UvA 
was in queftion, which was requifite to be certified to bring tlie 
- cafe within i\\c Jlat, 22 & 23 dr. 2. This was all that was 
cited (by Serjeant Wilfon) of the cafe ofAiV^tfrn^ and i2«fl^<f, upon 
the debate of the cafe at bar ; but as the Reporter flatters hiu- 
felf that the reft of what Lord Chief Jullice WilUs and the other 
judges faid in the cafe of Milburnc and lieaJe, may not be dif. 
pleafing to the reader, the Reporter will here fet the fame down 
in the very words he took it. 

The late Chief Juftice If^illes proceeded to give his opinion in 
the cafe of Milburne and Rsade^ as follows, wz. 

The ground " In giving my opinion in this cafe, that the plaintiff M/- 
^^^rt^w-ii • ^^^'^ i^ intituled to full cofts without a certificate from the 
opinioa in" * j"^g^ "P^" ihcj^t, 22 & 23 Car, 2j I do not at all rely upon an 
Milburnc ' afportavitj or the /b(?/?flrt(?/i of a chattel, but lay them quite out 
w/»iRcddc. ot the cafe. What 1 rely upon is, that the plainhff in no cak 
where the damages are under 405. needs the certificate ofajuagt 
to intitle him to full cojls^ but either in adions of ajTauU and 
battery^ or trefpa/s quare clav/iim /regit ^ which is the Toundation 
of the judgments in the cafes of Venn and Philips, 1 Soli. 208. 
(cited in Gilb. 197.) alid Thomp/on and Berry in C. B. Pafch. 
7 Geo. 2. on both which cafes 1 found myfelf; the judges, in 
neither of thofe cafes, paid any regard to the Jpoliation or a^or- 
tavit; in Venn and Philips^ the court would not go upon the 
afportavit of the hay, for, of that the defendant was not found 
guiltv; nor would they go uponihe Jpoliation or deflruSion ol 
the Iheep, as appears from the reafons they give in the cafe, 
which are, that that flatute extends only to Uich cafes where the 
judges can certify, and they can certify only in ajfault and bat- 
tery, and trefpafs quare claufurn f regit ; ior the 22 & 23 Car, 2. 
as to all other cafes but thofe two, leaves them upon the 43 
Eliz, thinking that ftatute efleftual enough as to them ; now 
after the Jlat, 22 23 Car. 2. the plaintiff cannot have fuil 
cofts ^where his damages are under 40J.) in aff'ault and battery 
^nA claufum /regit, unlcfs the judge certifies purfuant to the 
aft. But as to all other aftions perfonal, wherein there can be 
no certificate upon the 22 W 23 tar. 2. as debt, qffumpfit^ trover, 
trefpafs for fpoiling his goods, or taking liis goods, £?c. they ftiall 

he 



Michaelmas Teem 13 Geo. III. 1772. 325 

be confidered out of the^a/. 22 £? 23 Car. 2. and in fuch cafes 
the plaintiff (though his damages are found to be under 40J.) 
(hall be intitled to full cofts, by the JiaL of GlouccjUr; but if 
the judge thinks the fuit very frivolous and vexatious, he may 
deprive the plaintiff of the benefit oitht Jalute ofGlouceJUr, by ^^*[/j*'^ 
certifying under the 43 Eliz. by which the plamtifTwill be in- the firft judge 
titled to no more colls than damages, and to lefs, if the Judges who certified 
think fit ; and I hope that ^ood flatute will be put in ule, as I **? *^5 *3<> 

1 t 1 1 1 * -r • *^ • 11 ofEl'l. to 

have led the way by cemlymg upon it very lately. deprive plain- 

tiff of cofts. 
The next flatute concerning cofts is the 8 G? 9. W. 3. r. 10. 
fed. 4. which for preventing wilful and malicious trefpaffes 
enads, that in all a£lions of trefpafs, wherein at the trial of the 
caufe it fhall appear and be certined by the judge under his I^ind 
upon the back of the record, that the trefpafs, upon which any 
defendant fhall be found guilty, was wilful and malicious, the 

f plaintiff fhall not only recover his damages but his full cofls of 
uit; any former law to the contrary notwithflanding. 

Thx^Jiat. of 8 £s? 9 W. 3. r. \o. feB. 4. plainly fhews that the 
legiflature did not underfland ihcjlat, ^ 22 & 23 Car, 2. in the 
fame manner as the courts of law did, viz. to confine it to two 
forts of a6Hons, but that it extended to all other perfonal a£lions, 
for the 8 ii ^JV, 3. was intended only to relieve in the very 
fame fort of aSions as the^at. of Car. 2. did, but gave cofts Stat. ««f 9 
upon a different principle, not to prevent frivolous and vexatious y^^^Vto* 
fuiis as the Jiat. oi Car. 2. did, but to prevent wilful and mali* prrvenrsU 
cious trefpaffes, and that, not malicious in lands only, but of all ^'^^l *"<* 
forts; and if the legiflature thought the /tat. of Car. 2. took JJ^Jpj^* 
away cofls from no trefpaffes befidcs claujitm /regit and ajjaull 
and battery, they could have no reafon for making the ftat, 8 G? 
9 IK 3. c. 10. fed. 4. general, and to be extended to all tref* 

EifTes; but in order to reconcile the two aftsof parliament there *>"^ fomehare 
as been a conftruftion put upon the latter, which 1 will not o^y^j^,*tendt 
adhere to; which is, that the ftat. of IV. 3. extends only to todatfum 
daufum Jregit, and that, in faft, there' hath been no certificate /•<?'*'» ^lw?8^ 
upon thaij^atute, but only in trefpafs quare claufumjregit^ though ^**^^^i"^^' 
the Jiatute is not reflriftive, but fpeaks generally ot aU trefpaffes, thoujht*con- 
anclwas made to prevent wilful and malicious trefpaffes ^^fffra//v. txar^t 
But .there are other a£lions of trefpafs befides that of daufumfre^ 
git, wherein I will grant certificates upon this ftatuic though 
none were ever granted before. 

Indeed, in a£lions for taking ^oods and chattels merely, I 
will not grant certificates upon ihi% ftat. of W. 3. for the ab- 
furdity oT it-; becaufe, as we have determined that the ftat. 2a 
fi? 23 Car* 2, extends only to clau/umf regit, it would be ridi<:u- 

Y ^ lous 



326 Michaelmas Term 13 Geo. III. 1772. 

lous to certify in perfonal trefpafles, becaufe, then the plainttlT, 
though his damages found exceed not 401. will have full cofls 
upon ihc Jiatute oJGlouc^fter^ unlcfs the judge certifies upon the 
. 43 EJliz. to prevent his having full cods ; and the cafe in which 
I will certity, upon ttic 8 G? 9 W. 3. c. to^JtH. 4. (though not 
a trefpafs quart claufumf regit) is an a£lIon of trefpafs fora v^« 
luntary and malicious aJyauU^ which is not attended with a bat. 
terv, for I cannot certify upon the [M. of Cmt^ 2. for an affaull 
only, but I muft certify by the exprefs words of thatftatuU that 
the ajfauit and batttry was fuiHcicntly proved. . Suppofc a man 
drawn his fword and 1 wears he will (lab me, and makes a pafs at 
me, but mi (Fes me, in this cafe I do not certify upon thejiat. of 
ft 2 G? 23 Car. a. becaute there was no battery; but I will certify 
upon the 8 W g fV. 3. c. io,feS. 4. that fuch trefpafs or ajfdult 
was mlfiU anamqliaous^ and let the defendant deliver himfclf 
from coils how he can; and fuch a dangerous cfffauU much 
better deferves a certificate upon the 8 £^ 9 W^. 3. than many 
cafes of affault and battery do, upon ih<t ftat. of 2S & 23 
Car. 2. 

I (hall only take notice of two or three more little cafes which 
do not come up to, or influence the prefent ; fuch as Ccmba. 
420. Car/A. 224, 225, 2 Vent. 180, 19,5. All thofe cafes are 
plainly within the Jlat. of the 22 W z^Car. 2. in which cafes the 
plaintiff could not have more cods than damages, if the latter 
\yere under 40J. except the judge certified, for m all thoffc cafes, 
the trefpafs was committed upon things, for tvhick trefpafs the 
title of the land muft come in queflion, for thofe cafes \verc 
txiSxerfor pulling up or thromng down a hedge, or digging the 
foil^ ox [topping a water -courfe and overflowing the land: all 
which arc trefpaffes upon the land, therefore within the Jiat, of 
22 & 23 Car. 2. ' And if the judge would not certify that the 
title of the land came in queftion, the courts did right in re- 
fufing full cofls. The two cafes in 2 Vent. 180, 195. are both 
claufum f regit s, and are not merely perfonal, and that is the rea* 
fon Lord Chief Baron Gilbert went upon in ButUr and Reeves, 
Gilb. 195, 196. which was folemnly determined, 

Objcaion to It is objefted that the plaintiff Milbume fhall not have full 
Mnb^fnc*^ cofts in this cafe, becaufe part of the verdia is within the flat, 
vtrfiu Reade. of the 2C ftf 23 Car. 2. and that therefore the judge ought to 
have certified, that the trefpafs in the declaration is not only for 
taking, breaking and pulling down a ftandard and roller, which 
are perfonal chattels, but alfo for an affault, battery and wounding, 
and the defendant is not found guiky of breakings &c. the fbn- 
Aird and roller only, but is alfo found guilty of the tffaidt, bai^ 
tery and wounding: and though the breaking the ftandard is out 

of 



Michaelmas Tebm IS Gbo. IIL 1772. 327 

edheJioL of the 22 U 23 Car. a. and the plaintiff (hall have 
his .full cods, upon thai without a certificate, yet the affauU^ 
boUtry^imi wounding is exprefsly within thefiatute; and as the 
damages found are under 40J. the plaintiff fhall not have full 
coib unlefs the judge certifies that the i^auit and battery was fuf* 
ficiently proved : but I am of opinion thai will not alter the Aafwer. 
cafe, and the plaintiff muQ have lull coils without a certificate 
notwithflanding the defendant is found guilty of the affayU^ bat* 
tery and wounding; for as the defendant is found guilty of other 
things in the declaration for which the plaintiflFis clearly intitled 
to full coils, the finding as to the ajfault and battery ihall piake 
no alteration* 

It is further obje£led that the trefpafs of breaking the Han- %i Objeaioa 
dard and roller, is fuch a trefpafs whereon the title of the land f** Jji'^** 
miffht come in quei^ion, and fo a certificate is necelTary to carry I^^*'r.J2, 
colts; but the title of the land in this cafe could not come in 
queftion as the ftatpte requires, which fays that the plaintiff ihall 
have no more coils than damages where the damages are under 
40J. unlefs the judge certifies that t|ie freehold or title of the 
land mentioned in the declaration came chiefly in queilion ; now Aafwar. 
this trefpafs upon the ilandard and roller is not laid to be done on 
iht land of the plaintiff, or on any ^drticular land^ but generalljr 
in the parifli of .^. which plainly iliews that the title ofthe land 
could not come in queilion as the ilatute requires, and fo out of 
the ilaiute, and no need of a certificate within the meaning of 
the ilatute, and it would be impoHible to be made in this cafe, 
there being no land laid in the declaration. 

As to the cafe of breaking ilalls or ftandings in a market, the Raym. 4S7. 
plaintiff had full coils without a certificate, becaufe it is out of * J?*'*'!* 
ihc/tat. 22 £3 2^ Car. 2. it is a damage to a chattel, the freehold cukiji/ 
of the market could never come in queilion upon, fuch a^oa, 
and it was not concerning the land ; for a jperlon ms^ have a 
right or licence to ere£l IzaUs in another perfon*s market, or foil^ 
and it doth not follow that the perfon whofe (blls were brokea 
was owner of the ground. So, of the ilandard and roller in this 
cafe* 

There was' an argument ufed, fuppoling that the plaintiff Anrument 
could not have full coils in this cafe, becaufe the damages are ^^ mc^erfe 
found to be under 40J. unlefs he ihould entitle himfelf by a pro- •^^■™«^ 
per certificate, yet, there being 2LW0unding.\did in the declaration, 
and alfo found by the verdiS, the court may, upon view, &c. 
increafe the damages to above 40J. and then, beyond difpute, the 
plaintiff will be intitled to full coils upon the ilatute o.f Glouceficr^ 
and needs no certificate. But there has been a cafe in 1 Ld. Anrwer. 

Y 4 Raym. 



32S MicHABLMAs Term 13 Gbo. III. 177 2* 

Raym, j66. cited in point, where there was a woundinz \viii in 
tlie declaration, and alfo found by the verdif^, yet held that it 
would not carry cofts; and the rather not^ for two reafbns. i^. 
That a wounding is laid in t\*try A^c\zxziionol ajfault and battay 
ofcourfe, and it is not material whether the. verdiS finds any 
thing about it or not ; for I never kn6w in my praftice, that, 
upon not guilty to the whole count of ajfault and battery^ 
wounding^ &c. would be necefTary to find the defendant not 
guilty of the tooufidin£. A mayhem or grievous wound is 
of courfc thrown into declarations, and we cannot increafe the 
damages upon a general wounding in a declaration and verdift ; 
befides, where the damages are only found under 40J. the 
wounding muft be inconuderable, fo that / lay no toaght at aU 
upon the wounding. The other reafon againft the woumtng 
being material is, that the judge is not bound, or concluded by 
the vcrdi6t, bccaufe, if he was, there would be no room for a 
certificate, but the power of certifying is left to the judge, let 
the jury find what they will, fo that the damages given do not 
exceed 40J. and as the judge is not bound by the jury's find- 
ing a battery^ no more is be bound by the jury's finding a 
wounding. 

I found my opinion upon the reafon in Salk, 208. Venn verfus 
philips^ and Thompjon and Berry ^ Pafch, 7 Geo. 2 C, B, with- 
out regard to- a/portavit ov fpoliation, which is, that there is 
no cafe within Aic Jiat, 22 G? 23 Car. 2. but trefpafs quart 
claufum fregit, and ajfault and battery^ and that in all other 
cafes a plaintiff who recovers, upon a perfonal a£lion, damages 
under 40J. is intitled to full cofts upon the ftatyte of Gloucefter, 
without any certificate upon the Jiat, 22 & 23 Car. 2. unlets he 
is prevented of that benefit by a certificate upon the 43 of Eliz, 
€, 6. therefore in my opinion the plaintiff Miiburne is intitled to 
his full cofts. 

Abney Juftice — I am of the fame opinion with my Lord Chief 
Juftice. 

Burnet Juftice. — I am of opinion that the plaintiff Mi Ibume 
muft have full coftS; and firft I ftiall ftate the verdift and fee of 
what the defendant is found guilty ; for what he is not found 
guilty of, muft be laid out of the cafe. He is found guilty of 
the ofjault^ battery and wounding^ and*alfo of treading upon and 
f polling the coats, and breaking and fpoiling the ftandard and 
roller of the plaintiff. 

In what cafes 

the court wUi I fhall now mention the wounding, to lay it out of the cafe; 

ma^s? ^ ^^ '^ ^^^^» '^^^ °^' ^"'y ^^ mayhem, but in wounding fpecially 

1 wiifon s. defcribed 

s. P. 



Michaelmas Term 13 Geo. III. 1772. S29 

defcribed in the declaration, or certified by a judge, or made out 
by affidavits, the court have thought themfelves intitled, to 
increafe the damages, but this is laid as a general wounding^ 
9nd thrown in, of courfe, and as to increafing tlie damages, that 
is not now before the court, for there is no application about it, 
and therefore muil be laid out of the cafe. 

The whole will therefore depend upon the defendant's being 
found guilty of an ajfault and battery ^ and oi /polling ofperfonal 
chattels^ upon which there is no certificate, although the da* 
mages found are under 405. and the quellion is, whether a ceni- 
ficate is neceflary to intitle the plaintiff to his full cofls ? 

The fifUJlal. is the 43 of Eliz, c. 6. and by /Aa/, in perfonal By ftjt. 4) 
anions where for ajfault and battery^ or where the title or in- E^«- in what 
heritance ol the land was concerned, the plaintiff, though he "!^^'3e5 
recovered ever fo fmail damages, would be intitled to his full privedoffiiii 
cods upon the ftatute of G/<7«r^^r; fo he would, in all other €oft«. 
perfonal a£lions if the judge did not certify to deprive him of 
them; but the judge had a difcrctionary power to exclude the 
plaintiff. from full colls, where his damages were under 40J. in 
all perfonal aftions but thofe of ajfault and battery^ or where the 
title or inheritance is concerned ; for, in thofe, he cannot cer- 
tify to deprive the plaintiff of his full cofts ; and though no cer- 
tificates have been granted upon xh^ Jlat. a^ Ehz, until very 
lately, viz. one, by my Lord Chief Juftice IVilUs^ yet many books 
take notice, that nich certificates might be granted. 2 Mod. 141. 
Styleman verfus Patrick, The reafon why the judges have always The tt»ihn 
refufed to certify upon the 43 of Eliz, has, perhaps, been, that ^*»y 'Wa fta« 
as caufes were very injudicioufly tried in inferior jurifdiftions in ["^n imt*? 
the county, the courts of IVeJiminJier would not fo far refent the ««• 
plaintiff's coming 'KiioWeJlmtnJicr-hall^ as to certify upon the 43 
of Eliz. to deprive him of full coils, where his damages were 
under 40J. efpecially, as he had an evident right to fue fome- 
where, as appears by his obtaining a verdift, as they thought it a 
law too fevere to confine men to fue in the county courts, where 
the judges are frequently fo incapable of determining property; 
however the defendant was intitled to a certificate upon the 43 
ol Eliz, to deprive the plaintiff of full colls, if the judge in his 
difcretion (hould think the. cafe deferved it. 

The next ^at, is the 22 & 23 Car, 2. which although it men- Stat. 2s tt %i 
tions not only a6lions olaffault and battery ^ and trefpajs^ but other ^**"' *• «on- 
perfonal ailions in ^tnevsilt yet the conllruftion tliereupon has 3^"*^^'?*^ 
been, to reftrain this ffatute to take in two cafes only^ which arc ' 
trefpafs quare claufum Jregit^ and ajfault and battery y and the 
feUlon ot fuch conftruflion was this, viz, the Ilatute ena£)s, that 

in 



S30 Michaelmas Term 13 Geo. III. 1772. 

in all anions of trefpafs^ affauU and battery^ and oiktr ^rjond 

* aflions^ wherein the judge Ihall not certify an affauU and bclltry 

fufficiently proved, or that the title (f the land did come in 

Jueftion, there (hall be no more coils than damages, where the 
amagea found are under 40J. ; fo that although the firft wordi 
are general, yet by the latter words, a£lions are reibaincd to 
fuch, wher.ein there can be fuch certifying of the battery or the 
like. KebU^ (though an inaccuifate reporter, yet a lolmble 
hiilorian of the law J proves to us that there was fome doubt in 
the courts foon after this a£l of parliament of 2a i^ £3 Car. 2. 
3 Keb. 31. Brown and Taylor^ was an a£lion on the cafe fordif- 
turbing the plaintiff in his common, and one penny d^nages, 
and an allowance of full coils was objefled to, there being no 
certificate' on the trial ; but the obje£lion was over-ruled; for 
by the courts '* it has been refolved by the major part of the judges 
of England^ that the^o/. of 22 £? 23 Car. 2«. extends only to 
irtfpafs^ affavlt and battery^ and not to aflions upon the cafe, or 
to affumpfrts or fuch like;" but this book doth not confine it to 
trelpafs quart claufum /regit in words ; but to be fure it is to be 
intended, becaufe the certificate is only poilible in tliefe two 
cafes; the next cafe is in 3 Keb. 121. which is an a£lion of tref* 
pafs for breaking the plaintiff's net, and there being no certi- 
ncate that the title was in queilion, and no tide in the decla- 
ration, the court refufed to give more coils than damages ; this 
is contrary to the former cafe in 3 Keb. 31. And the judges by 
that determined that the Jlat, oi 22 £5? 23 Car, 2. was not con« 
fined to trefpafs quare claufum frt^i only^ but takes in other pcr- 
fonal trcfpaifes. The next rcl'olution is in ^Keb. ^%g,OrpZLH>od 
vferfus Holdm J which is contrary to 3 Keb. 121. and agreeable to 
%Keb. 31. The next cafe upon the fame fubjeft is 3 Af^. 469, 
Dicer verfus Stanton^ Jed adjoumatur. After thefe, comes the 
cafe in T. Raym. 487. 2 Jon. 232. 2 Sho. 258* and that was 
quite like ^his cale, the trefpafs was laid generally in the.panfhy 
as this is, and not fpccially in any land of the plaintiff, fo as 
lo bring the tide in queilion, and the court held it out of the 
jlatute, and full coils were given, although there was no cer- 
tificate; and fince that cafe, there have been many uniform 
judgments, where an aiiion of trefpafs of a pcrfonai chattd has 
been held out-of ihcjlat. of 22 6? 2 g Car. '2t 

A trefpaft An objcflion has been made, that in this cafe the caufe of aflion 

vpoQ a perr is part oit it within^ and part of it out of the Jlat^ Car. 9. The 
Uno^'^Sa W^^ond battery found by the verdia is clearly tmihin the 
%% u. 23 Car. uatute, an() if there had been nothing more found the plaintiff 
^» could not have had full coils, unlefs tlie judge had certined that 

the a£^auU and battery was fufficiently proved ; but here is, beiides 

^that. 



Michaelmas Tsbm 13 Geo; IIL 1772* 331 

ihaty a trefpafs found upon a per fond chattel^ which is clearly out 
of the Aatute ; and if that had been only found by the verdid, 
the plaintiff would as clearly have beeQ intitled to full cofis 
without a certificate, although his damages had not amounted to 
above 401. 

And I ahi alfo of opinion,- that though this verdi3 finds one Jnftke Bar- 
trefpafs tdihxn the flatute, and another out of it, yet the ^^'^* 5**Jj" 
plaintiff will be intitled to his full cofts although his damages ^^c^ 
exceed not 55. and although the judge hath not certified ; and cofts. 
I go upon this foundation, becaufe fuch a conftru£lion will be 
for the benefit of the defendant ; for the plaintiff is lefs vexa- 
tious by including all the injuries in one action, he might have 
feparated his caules of aftion, and divided them into two fuits, 
fo that the defendant, as he is found guilty of all the injuries 
mufi have paid the cods of both the anions; upon one action, 
without a^ certificate, and upon the other, with a certificate; 
whereas in the prefent cafe, he will, upon our con ftruftion, only 
pay the cofts of one a£lion : in the cafe of Lately and Fry^ 
Com. Rtp, 19, 20. trefpafs quare claufumf regit ^ and Ajj corn there 
growings cut and earned away, it appears the caufe of a3ion was 
partly within the ftatute, and partly out of it ; the jury found 
the defendant guilty of breaking the clofe and cutting the corn, 
but not guilty as to carrying it away, damages los. there was 
no certificate ; the court refufed to give full cofts for want of 
a certificate, becaufe the trefpafs found by the jury was within 
the ftatute ; but after feveral debates the court inclined to be of 
opinion to have given full cofts, if, befides finding the defend- 
ant guilty of breaking the clofe and cutting the corn/ they had 
alfo found him guilty of carrying it away ; then the cafe had 
been exa£lly parallel to this cafe of Milburne and Rsade, for 
then the jury would have found one trefpafe that is within the 
flatute, and another trefpafs out of the ftatute* 

As to aAions of trefpafs quare claufiim /regit r for digging the 
plaintiffs s foil^ or pulling up kis kedge^ Sc. or overflowing his 
land, thefe being injuries immediately to ihcjreehold, and it be- 
ing poifible for the title of the land to come in queftion in fuch 
a£iion, the plaintiff ihaii not have full cofts without a certificate, 
hecaufc it is a eafe within the ftatute, and whereupon the judge 
might certify that the title of the land came in queftion. But 
if the plaintiff had decIarecT further, as, that befides the break- 
ing and entering the clofe and pulling up the hedge, the de- 
fendant Ao^ carried it away^ and the jury had found him guilty of 
the latter as well as the former, he (phintiff) fiiould nave his 
full cofts without a certificate, Comyns iao. The fulling up the 

. hedge^ 



332 



Michaelmas Term 13 Geo. IIL 1772. 



«(bar. 



hcdge^ is a plain injury to \ht freehold^ but when it is pulled tip 
• and fevered from the freehold, it ceafes to be part thereof, and the 
owner of the land has it as a chattel, in which cafe, if the trefpifer 
carries the hedge away^ or burns or dejiroys it^ all tbefc arc per- 
fonal injuries and out of the ftatute, and an aSion will He, as in 
the cafe of fpoiling any other chattel. There being 2i/potiaiion 
in this cafe upon which the party might have brought his fepa- 
rate a£lion, and have recovered full cods without a certificate, I 
am of opinion that the plaintiff Milburne is intitled to recover 
his full cofts. Here ends the full ftate of the opinions of Lord 
Chief Jullice Willes, and Mr. Juftice Burnett in the cafeof i\W- 
burne and Reade^ with whom the reft agreed, and Milbumt bad 
full cofts. 

Plaintiff'* Serjeant Wilfon proceeded to fliew that the cafe at bar ofBatche- 

counfei goes /or verfus Bigg is not an aftion of ajfault and battery : for though 
?°i!!!. it is laid in the declaration that the defendant with force and 

arms, &c, made an ajfault upon the plaintiff's wife, yet the words 
affault zxiA force and arms are mere words of courfe, and only 
matter of form ; the gi/i and fubftance of this aflion is the criminal 
converfation^ and is lully contained in thefe words of the deck- 
ration, viz. that the defendant debauched^, abujed^ and carnally 
Anew the plaintiff's wife, and fo was the opinion of 5. /?. in the 
cafe of Cooie verfus Sayer. Burro, 755. Buller's niji prius 28. 
the court faid, the gijl of the a£lion is the criminal converfaiion 
and not the ajfault* 

Befides, to bring the cafe at bar within thejlat, of 22 & 23 
Car. 2.theremuft have been a battery as" well as an ajfault laid in 
the declaration, but there is no fuch faft therein alTedged ; and 
therefore Serjeant Wilfon infifted the plaintiff JSfl/f^e/(?r was well 
intitled to his full cofts ; and of that opinion was the whole 
court, who difcharged the rule to fhew caufe with cofts. Sec 1 
Salk. 206. Browne verfus Gibbons. If a man brings trefpafs for 
beating his fervant per juodfervitium amifit, this is not an aftion 
of affault and battery within the^^/. 22 ^ 2^Car, 2, c. 9. but is 
im a£lion founded on the fpecial damage. 



Rackham verfus Jefup and Thompfon. C. B. 

THE plaintiff Rackham being poffeffed of a fmall tenement 



Plaintiff 

claiming a _ _ ^i j ^ * 

right to cut ^ or cottagc at Theberton^ in the county of Suffolk^ and an 

ruOies on a inhabitant there, and, as fuch, claiminff a right to cut down 

cooamon, cata n / ',^ . n* . • % o h 

5 or < 

which 

dants carry 

away, trover lies. [S.'< tbi Rumrd^fi p. 338.] 

and 



pTkida," rufhes (without ftint as to quantity) on a certain wafte or com. 
ch defen. mon there, called Thebertcntommenov HomiCommony and to take 



Michaelmas Tbrm 13 Gbo. III. 1772. 333 

ind cany away the fame for his own ufe ; employed Rudd and 
Farrdtif as his fervants for hire to cut down ruQies for him 
there; who accordingly did cut down and mow about five or fix 
loads of rulhes for the plaintiff; which rufhes fo cut down for 
the plaintiff's ufe, and lying and being upon the wafte or com- 
mon, the defendants took, and, with carts and carriages, carried 
away the fame, and converted them to their own ufe ; where- 
upon the plaintiff brought trover againft the defendants, who 
pleaded not guilty ; and iffue being joined, this caufe came on to 
be tried before my Brother fVkiia&r, at the laft fummer aflizes 
held for the county of Suffolk^ when the plaintiff proved he was 
an inhabitant of Jfuberton^ and that as fucii, claiming a ri^ht to Piaiati(ratth« 
cut and take away rufhes on Theberton Common^ he, by his fer- T^}^ P!*^*'^ 
vants, cut down five or fix loads of ruflies, and that the defend- righ*t""c*ttt 
ants took and carried away and converted the fame to their ruflies, &c. 
own ufe ; whereupon my learned Brother, being of opinion that *>"* J*\«^ i^^f 
the evidence given for tne plaintiff was not fufficient to fupport ^,Ji^U^he«rl 
this a£lion, was pleafed to order him to be nonfuit u^on the merits, Ing the ae. 
without hearing counfel or any evidence for the defendants. fcodaats. 

And in this term, upon producing an affidavit of the fa£ts 
above, I moved for, and obtained a rule upon the defendants* , 

to fhew caufe why the nonfuit fliould not be fet afide, and why 
there fhould not be a new trial, for that the plaintiff had given 
evidence of his property in the rufhes, and of a converfion by " ^ 
the defendants, and that my Brother Whiiaker ought to have left 
it to the jury ; and that he might make his report to Mr. Juf- 
tice Nares^ in order for him to itate the fame to the court, which, 
at another day he accordingly did, as follows ; 

Mr. Juftice Narts — My Brother M^itaktr reports, that this is The ffport 
an a£^ion of trover for fix loads of rufhes, which upon the general of the jud|e* 
iffue, came on to be tried before him at the laft aflizes for the 
zowvity^ol Suffolk^ when the plaintiff called feveral witneffes in 
order to fupport and maintain this a£lion. 

The firft witnefs was John Rackham^ who fwore that the 
plaintiff rented a fmall tenement or cottafje at Theberton / that 
about a year ago he went to help the plaintiff to mow rufhes 
upon the common called Ho7ne Common: but thefe (fays my 
Brother Whitakcr) I underftood, not to be the rufhes in 
queftion. 

That Rudd and Farrow mowed the rujties in aueflion 

for the plaintiff'^ about five or fix loads, which were all about 
the value oi ten fhillingi a load. He further faid, upon crofs 
examination, that the rufhes were mowed in the night, and that 

hii 



334 Michaelmas Tesm 13 Giso. IIL 1773. 

his uncle (meantng the plaintifiF} kept a hog and no other fiock 
upon hit tenement. 

The (econd witnefs vas Htnry Scarld^ who proved that the 
defendants Jf^ffup and Thompfon^ who were fanners, having or 
claiming fome nght of common upon the place where the ruihei 
were cut, came with their carts, and carried awav the ruflies 
which had been cut down for the plaintiff by RudaznA Farroir, 
and that all poor people had a right to cut ruflies. That tiui 
was all the evidence upon the fa3. 

The third witnefs was Jehn King, who fwore to right of 
common upon the place in queftion, and that any one may cut 
rufhes from the common without flint at any time, as well as 
every body in tlie parifli ; that every body in the world may cut 
ruflies on the common. 

The fourth witnefs was John Woolnotk^ who fwore to tlic 
fame effeft, that every one cut what ruflies he thought fit, and 
fold them to whom he pleafed. 

The fifth and fixth witnefles were Stephen Goodwin and Wi- 
Ham Fofter, who fwore to the fame general right of common in 
^ every body to cut ruflies on the common. 

Upon my aflting the plaintiff's counfel if they had any more 
evidence upon any other matter, they faid they had feveral more 
witneffes, but all to the fame purpofe with the laft» 

Upon which, I thought the plaintiff had not made out a 
<afe proper to be left to the jury, becaufe I conceived that in 
this a&ion, the plaintiff ought to make a title by direft or pre* 
fumptive evidence. 

There being no direft evidence, the witneffes who fpokc to 
the poffeflion of the ruflies, proved it was either ohtamed by 
Jlemh^ or under a pretence of right of common, which I 
thought was illegal and void, upon which the plaintiff wai 
nonluit. This is the report ot my Brother Wkiiakcr ver* 
iatim. 

Upon this report being made to the court, Serjeant FoTJlir 
for the defendants fliewed caufe why the nonfuit ought not to be 
fet afide, by infifting that the plaintiff had not proved that be 
had any legal property in the ruflies, for that it appeared by the 
report, the plaintiff had caufed them to be mowed down, and 
cut in the night-time, and that the plaintiff obtained the rufli« 

3 ^y 



MiCBAJBLMAs TsKst 13 6bo. IIL 1772« 335 

hyJleaUk^ or under a pretence of a right of common, which Ser* 
jeant Wkitaker^ before whom the caafc was tried, thought was 
illegal and void» and therefore norifuited the plaintiff very pfo* 
perly, h^ having proved no legal property in the ruihes. 

Serjeant Wilfon for the plaintiff, in fupport of the rule to fet 
afide this nonfuit, infifted that it apji^eared by the report, that * 

fufficient evidence was given on the behalf of the plaintiff at 
the trial, to fupport this afiion ; it h&tig proved that he was an 
occupier of a tenement in Thektrton^dXia{z& fuch occupier) had« 
or claimed to liave a right to cut and take away rulhes from and 
off this common, and that the plaintiff by his fervants cut the 
rufhes in the declaration, and the defendants afterwards took and 
carried them away ; this he infifted was fuch evidence of pro- 
perty in the plaintiff, and of converfion by the defendants f who 
appear to be mere ftrangers), that the defendants, if they haa any 
legal defence, ought to have made it at the trial, and the iffue 
ought to have been left to the jury, for their verdi£l. 

It was further faid on behalf of the plaintiff, that fuppofmg 
for argument's fake, he had not any lawful right to cut rufhes 
upon tnc Common ; yet as he claimed fuch right, as an inhabit, 
ant of Tkebtrton^ arid gave fome evidence thereof at the trial, 
that was fufficient to put the defendants upon their defence, and 
to have (hewn, or juilified by evidence, what right they had to 
take and carry away the ruffaes in queftion; for the plaintiff ' 
claimed a right to cut rufhes, had gained a property therein by 
cutting the fame, fufficient to have put the defendant upon 
fliewing that they had a better property therein ; but they not 
having Ihewn any right or property at all to the nifhcs, wrong- 
fully took them away ; and the plaintiff has been improperly 
nonfuit. 

The cafe of Woadfon verfus Nawion, 2 Stfa, 'j'jj. is fomething A conmioner 
like this cafe; that was trefpafs for taking and difperfing a load ^f^^^g^**^^ 
olfern ajhts : the defendant pleaded that he was an occupier of alhe«'o?fem 
land in A. the tenants whereof had right of common, and cutting cut and burnt 
fern in the locus in quo, and that the plaintiff came and wrong- r'. **,'*"'5' 
fuljy cut fern and burnt it, whereupon the defendant came and \l^ after"* 
fcattered it AoxxUprotU ei bene iicuit^ demurrer, inde — Strange for pts'iotifFhai 
the defendant cited i Roll. Air. 405. pL 5. that a commoner ^'"V*'^ . 
mav juftify taking the cattle of a ftranger damagefea/ani, or abate ^ property 
hedges, 9 Rap. ^12.^. 2 Mod. 65. and the difference is where therein. 
It is the aft of the loi-d, or the atl of a flranger. Sed per Mam 
curiam contra^ for if the plaintiff did him any damage he has 
his a£lion, but after the plaintiff had burnt the tern, and thereby 
converted it to his own ufe, the commoner has no right to come 

and 



635 Michaelmas Tskm 13 Geo. IIL 1772. 

and difperfe it \ and judgment was given for the plaintiff; fo in 
the cafe at bar, after the plaintiff had cut the rufhes, they were 
his own property, and the defendents have not, by evidence, or 
pleading, fhewn any right to come and take and carry them away. 
The caie at bar, indeed, is an aftion upon the cafe in irovrr; 
There are and the Cafe cited from Stra. yjj^ is in trefpafs ; but there are 
wh^'"^^* many cafes where a man may have an adion of trover or trefpafs 
my have ^ ^^^ ele£lion ; as if one takes my goods by wrong and con- 
iioirer or tref- vcrts them to his own ufc, I Can have trover or trefpafs againft him, 
Jffj^** and fhall recover damages in either of thofe aftions. So if a man 
have wreck of the fea by prefcription or bv the King's grant, if 
goods be wrecked upon his lands, and another taketh them awz)% 
he who hath the wreck fhall have an aftion of trefpafs quare « 
et armis for thus taking away, without feifure thereof before^ 
F. N. B.gi, D. But in the very fame cafe he might have had 
trover for the goods ; and fo was the cafe of Biddidpn Efq. veribi 
ytlier in C. B. Trin, 28 £*? 29 Geo. 2. 2 Wilfon 23. The plain- 
tiff was lord of the manor of Lancing in the county of Sujex: 
and being fo, was intitled by prefcription to wreck of the fea 
thrown upon that manor, and zJloopD^mg wrecked and thrown 
upon it, he brought trover againfl the deftndant who had taken 
it away as bailiff of the Duke of Norfolk^ who alfo claimed to 
have wreck of the fea in the fame place, and fome doubts arifrng 
upon the evidence given at the trial before Mr. Juflice Wiltnot, a 
fpecial cafe was made for the opinion of the court upon the point 
of evidence only ; and no objeSion was ever taken or thought of, 
againfl the propriety of that aftion of troyer^ and judgment was 
given for the plaintiff. 

The gijl of the aftion of trover is the wrongful detainer of 
goods which are the property of another ; and the gijl of tref- 
pafs for goods, is the wrongful taking and detaining them, fo 
that wherever trefpafs will lie for taking goods of the plaintiff 
wrongfttllv^ it feems /^^jy^r will lie for xzkxag goods qf^plaintiff 
wrongfully ; fo that there is no very material difference between 
the cafe mStran. y^j. and the prefent cafe. 

On« claiming There is a cafe in Cro. Eliz. 819. of Baffet verfus Maynard^ 

l^n\^T ^^^ *" ^ ^^^' ^^' ^' ^' ^^^y applicable to the prefent cafe cited 
etit$ it down 5 by Serjeant IVtlJon \ it was trover for certain loads of woods ; upon 
•ithongh he a fpecial verdift ; the cafe was. Sir Thomas Palmer was feifed of 
right to tEi * ^^^^^ wood, and bargained and fold to one Concord and his 
wood, yet by afhgns, as many trees as would make 600 cords of wood to be 
cutting there- uken by the affignment of Sir Thomas Palmer. — Cornford a&gns 
fuih^^^ir* ®v^^ '"^ intereft to the plaintiff.— Afterwards Sir Thomas Palmer 
perty therein, granted to the defendant fo much of his wo