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 tfntuMnt.

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 RepCcigaa
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 0 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 0 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 0 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 0 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

been 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 0 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 "^"mij
** 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/.
0 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 cotoc 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 fherilF 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 offitci 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 0 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 0

*• 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 0 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 wood as would make
thattroYcr 40QO cords of wood, to be taken at the defendant's eleftion.

ftrangcr who — 1 HC

takes it away<

Michaelmas. Tebm 13 Cxbo. lit. lyyi^ 33;

«^The plaintiff afterwards by the aflignment of Sir Thomas Palmet
cut down the trees in queftion to make 600 cords : and the de-
fendant claiming them by virtue of his grant took thcm.-^And it
was found that there was fufficient wood left for the defendant
tt> uke his 4000 cords. £^.^» *&^* — ^And upon this vcrdifil it
was moved that here was not fufficient title found for the plain*
tiff. — For iirft, it is not found that the bargain and fale was^ for
Any fum of money nor upon any confideration \fed non allocatun
For it is intended to be fo, being found by the verdi3. But if it ,
had not been fo found, it might peradventure have been other-
wife; Optimo Maria. ])ier 914 is. — Secondly^ it was alleged
that this grant to the plaintiff is void ; for^ until the affignment
made by Sir Thomas Palmer^ no intereft veiled in CornfordYam-'
felf, fo that he could not make any grant thereof over. But all
the court- held the grant to be good : for, being made to* him
and his affigns, he may make an ^(lignee, which ihall enure as
a nomination to one, who is to have by the appointment of Sir
Thomas Palmir. And it may well veil in him, as the intereft
alfo. And here he hath an intereft before the aflignment made
by Sir Thomas Palmer ; infomucb, that if Sir Thomas Palmer
will not afftgn it in convenient time, he himfelf may take them^
and therefore he may affign his intereft, as 44 Ed. a. 43. is.-^
But admitting the grant to the plaintiff had been void ; yet Pop^
ham fsiid that the a£lion was maintainable, becaufe by the cut-
ting down of them he had po/fejjion^ and a good title againft the
de^ndant and every ftranger ; and being cut down it was not
lawful for the defendant to take them : for if one fell iooo cords
of wood, to be taken at the vendee's ele6iion, and afterwards the
grantor himfelf^ or a ftranger^ cuts down fome of the wood, the
vendee cannot take that which is cut^'down : but he ought to
make his grant good out of that which is growing. As if eftovers T6e irints4
were granted unto him, to be taken in a great wood and the pwner q^ eftoven
of the wood cuts down fome of the wood, the grantee cannot ""J?' **^^
take tHai which is cut down ; but he muft take his e/lovcrs out down by tM
of the refidue ; and if all be cut down, he Hslth riot any remedy, snncut.
but an a£lion upon the cafe. So here, although the plaintiff had
hot a good title, yet his hzw'in^ pojfeffion of. them being cut down;
fufficeth. Quod Gawdy and Clinch conctJftrunU ' Wherefore it
was adjudged for the plaintiff.

It was fubmitted to the court by Serjeant ^Tf^n,^ that this cafe
of Bajfd verfus Maynardi wa^ direftly irl point, or rather ftronger
than the cafe at bar^ for it (hews that although Bajfet had not a good
titl^tothe wood, yet that having cut it down, ha thereby gained
poffeflion thereof, and a good title againft MayHard and every
ftranger. So in the cafe at bar, RacAhamby cutting down the rufhes

VpL IIL 2 oa

33ft MicHAstBiiJwTs&M 13 Geo. IIL 1772,

m the common, gained pofleffion thereof, and a.iflood title i^nft
tlie defendants ^up and Thompfon^ who have fiiewn no title at
ail to the mfltes^ but appear to be mere ftrangers.

Judgment of Curia. A cuftom for aH the inhabitants of TJkderttm to cut
thtcoiuu rufhes on Thd^erton Common is a ffood cullom; the plaintiff
proved at the trial that be was an inhabitant^ and that there wa»
a cuftom for every body inhabiting ihcre^ to cut and take ruflies
on the place in quefiion, that he (by his.fervants) having cut
down five or fix load» of rufhes, tne defendants took and car*
lied the fame away ; this is> fuch evidence 'of property in tlie

Jlaintiff and converfion in the defendants^ that they amear to
e wrong doers, for they have neither by evidence or pleading
fli^wn any right or title whatever to thefe ruAes,. and appear
to the court to be mere ftrangers. Indeed, if a perfon hi^ no
colour of right at all to cut down ruflies, or to take any other
thing ; he cannot by cutting the ruflies,, or taking the thing*
without any colour of right, acquire property therein ; but in the
cafe at bar the plaintiff proved he had alright to cut the ruflies, that
/ he did cut them, and we are all of opinion that he therebvgained
a property therein. As to what is reported by Brother tvmuAa
that the plaintiff's fervants cut the riifiies in the night-time* and
ihe inference drawn from thence, that the ruflies were cut,, or ob*
lained by^e;a//A; the court faid, that in fummer, when rafhes
are generally cut, the night-time, or very early in the momi^g,
is the moft proper time for that purpole : the couH al£> Wfd
the cafe of Stra. 777. and Cro. Eliz. 819. for good law, and
feemed to think that the latter, was a ftronger cafe than the eafe
at bar. Whereupon per Mam curiam^ the rule was made ab-
folate for felting afide the nonfuit, and for a new trial ; without
^ cofts on either fide^ the plaintiff having been xionfoited upon ».
miftake of the judges in point of law.

Rackbam t;rf^ Jefiip and Thomplbn.^ C*B.

ISeeemup. 'T^HE record in this caufe is entered of Trinity term, lall
S3*.] ^ pafled, Roll 372. thus, Sufolk (to wit) DamdJefiip,\A<t of

Thebcrton in the county oi Suffolk^ gentleman, and^^mii%iriii^»
late of the fame place maltfter, were attached to anfwer J^njamn
Rackham of a plea of trefpafs upon the cafe, &c, and whereupon
the faid Benjamin by Thomas MulUner his attorneys complauns,
that whereas be the laid Beyamin on the goth day of jily^ iik
the year of our Lord 1771, at Theberton aforefaid, in the (aid
county of Suffolk^ was lawfully poffeffed of five waggon Ioad»
of ruflies by him 9it down, and being in and upon a certain
common called the Home Common lying m Theberton aforefaid, of
the value pf fifty {hillinjp, as 01 his own proper goods and

chauels;

Michaelmas Tbbm 13 Gbo. Itl. 177^- 3 39

thattels ; and being* fo poflefled thereof the faid Benjamin after*
wards, (to wit) on the fame day and year at Theberton aforefaid,
in tiie faid county, cafually loft the (aid goods and chattels out
of his hands and poflellion, which faid goods and chattels £9
loft afterwards, (to wit) on the fame day andycar at Theberton
tiibrefaid, came to the hands and joint poflemon of them the
faid Daniel and John by findihg ; neverthelefs the faid Darnel
and 7ohn^ knowing the faid goods and chattels to be the proper
goods and chattels of him the faid Benjamin^ and to hxm the
faid Benjamin t>f right to belong and appertain^ but contriving
and fraudulently intending craftily 'aha fubtill'y to deceive and
defraud the faid Ber^amin in.this behalf, have not, nor hath either
of them yet delivered the faid goods and chattels to him the
faid Bcmamin (although often requefted) ; but the faid Danietf
and Jokn afterwurds, (tq wit) on the firft day of Augujl in the
year aforefaid, at 7%^^^/^ aforefaid, jointly converted and dif«
pofed of the faid goods and chattels to their own proper ufe and

Erofit, whereupon the faid Benjamin fays that he is injured, and
ath fiiflained damage to the value of twenty pounds^ and there-
upon he brings fuit, ^c-

And the faid Daniel Jefup and John Thompfon^ by Peter Jermyn
their attorney, come and defend the wrong and injury when,
£?c. ^nd fay that they are not guilty of the pretoifes above laid
to their charge, in manner and form as the faid Benjamin Rack^
ham, hath above complained againft them, and of this they put
themfelves rupon the country; znA the {d^di Benjamin Rackkam
doth fo likewife ; therefore the (herifF is commanded that he
caufe to come here from the day of the Holy Trinity in three
Weeks, twelve, tfc. by whom, (sc. and who neither, &c. to re--
cognize, Uc. becaufe as well, &c.

Sutton verfus Fenn. C. B.

np HIS was an aftion upon the cafe upon qffumfifit^ wherein ^^"„*^^
^ the plaintiff declared in this manner, viz. — " Norfolk dccimio«^
" (to wit J William Fenn otherwife Muggins, late of Marlborough ^«»i refer to
•* m the county of Wilts, yeoman, was atuched to anfwer /&- *^* ^JJJ^ |J
** beri Sutton of a plea ot trefpafs iipon the cafe, &C. and chededHni-
•• whereupon the faid Robert by T. lA. his attorney complains, tion.
" that whereas the faid Willidm on the firft dsiy ot January in | ^^^'q'^*
" the yrcar of our Lord 1772, at Catton in the county afore/aid, [whew tkc
" was indebted i'o the faid Robert in fuch a fum of money, for ptrpet wnug
" fo much money by the faid William before that time had and l^) " **^*!*
" received for the ufe of the faid Robfrt, and being fo indebted, Sidld!'^*"

tion, Acdche
wmcr ID Che body of the declaration it laid iit D. m thi,enmty Mfittfa'td^ when the next antecedertt
county ia W. the reference (hall bs to the venue in the margin. On a general demunrer. See d-a. KRm*
465, Cr9.^Jac, 96.]

Z ft '* he

340 Michaelmas Term 13 Geo. III. 1 772.

" lie the faid JVilliam^ in confidcration therfeof, afterwards, (to
'* wit) the fame day and year, at Catton in the county afore*
" Jaia^ undertook, and to the laid Robert then and there ndih-
V fully promifed to pay to the faid Robert the faid fum of money,
" when he, the faid Jvilliam^ ihould be thereunto afterwards rc-
" quelled ; (there were other counts in affumpfit^ in which the pro-
^.* mifes were all laid to be at Catton in the county afore/aid J yet
** the defendant, not regarding his faid promifes, &c, hath not
*' paid the faid fums of money to the plaintiff, to his damage,
*' &c. upon a general demurrer to this declaration/'

Serjeant Burland obje3ed-^That this is uncertain from whence
the jury are to come, for that the venue i^ l^d at'Catton in th
county aforefaidt and the county lafl before mentioned is WiUi^
but the county in the margin is Norfolk^ fo that it cannot be
known from whence the jury are to come. In common fenfc
and grammar, the words " in the county afore/aid^" relate to the
county lafl antecedent^ which is the county of Wilts ; but the
Words •* in the county afore/aid" may alfo relate to the county
of Norfolk^ which is alfo before mentioned in the margin, and
therefore the venue is uncertain. If a man give lands to A. et
haredibus de corporefuo^ remainder to B. in forma pradi&i^ this
is a good eftatc-tail to B, for that the words en forma pr^S8a,
do include the other ; bat if a man letteth lands to /L for life,
remainder to B, in tail, the remainder to C. in forma pr^diQa^
this remainder is void for the uncertainty whether C. is to take
for life or^in tail ; but if the remainder had been, the remain-
der to C in eadem forma y this had been a good ellate-tail,
for IDEt^ femper antecedenti proximo refertur. Co. lit. 2u
b. So that in the cafe at bar, both the counties of, Norfolk
and IVxlls, being counties aforefaid, it cannot be known iroo
which county the jury fliall come. The court notwithffanding
this objeSion over-rule4 the demurrer without hearing council
for the plaintiff.

^*"i*ff Curia. We have not the leaft doubt, but that judgment muft

J^^l^t^ggn be for the plaintiff; the county of Wilts is only mentioned in

the words the declaration as part of the defcription of the defendant, and

«1 'hf^^A *^^ word aforefaia is not fo ftrong as the word^wi^. Infl. ja.

thcwrds*" *• ^^'^' words ** county aforefaid^'* have a general reference to

« tbe/awu.** Norfolk in the margin, and not a particular reference to part of

the addition of the defendant's name in the writ ; where a county

' is in the margin of a declaration, and the trcfpafs, or thing is

alleged to be done at D, and he doth not lliew in what county

D. IS, yet it is well enough, becaufe it fhall be intended te

he in the fame county, which is in the margin^ for a ge-

Bcrai

. Michaelmas Term 13 Geo. III. 1774, 341

neral intendment ftall there ferve. Cro* Jac, 96. And m the
cak of Hail verfun fValland^ the "plaintiff declared, that whereat
WC M was poflefled of fuch land in Melton M(nvtrey pro ter^
mno diverfofum annorum^'&c. it was afligned far error, becaufe
it was not (he\vn in what county Mellon Mowbrey was, fo it doth
not appear where the land lies, nor where the. promife was '
made : fed non allocatur : for Leicefterjhire being in the margin, it
is always intended to be the county where the land lies, none
other being mentioned. So in the cafe at bar we are. all of opi-
nion, that the promife being laid to be made at Cotton in the
county aforcfaid, muft be intended to be made at Catton in the
county in the margin. But if this had not been a right venue,
it would have been cured after a verdifl by the Jiat* 16 G? 17
Car, 2. c, S.Jeff. ».

Judgment for the plaintifiF. Nares Juftice abfcnt,

Farfons ver/us Loyd. C. B.

'T* R E S P A S S and falfe imprifonment ; the defendant One was ir.
•*• pleaded not guilty as to all but the imprifonment; and «ftedbytrtf,
as to the imprifonment he pleaded that the plaintiff ought not ^'^j^^fj^t^V
to have his a3ion againft him, becaufe he fays, that on fuch a edinTrialir.
day in Trinity term 1771, he the faid Loyd iued forth out of *n<*'^5t"'?-
the court of the Bench here ^ capias ad refpondendum, dircfled to lerm'foUow?
the then flierifF of Af. whereby the King commanded the faid in^ , the wrfr
flieriff that he fliould take the faid Parjons, fo that he might *•» («« «S<*« *
have his body before his jufticcs at Wejtmnjler in eight days of T«fM(j for
Scint Hilary^ (3c. (fetting forth the writ) and that the faid flie- faifc impn-
riff* (hould have there that writ, which faid writ was then and fonment licj
there marked and indorfed for bail by aflBdavit for fo much mo- "^"J^^iA*
iiey, accordinjg to the fiatute in fuch cafe made and provided ; thatmit»an4
and that the laid writ afterwards, and before the return thereof, fw cannoc
was on fuch a day and vear at fuch a place, delivered by the faid {^^^-^^'jj!'
Loyd to A. B. Efq. wno was then and there, and contiriually regturwrfe,
from thenceforth until and at the return of the faid writ, fheriff a w«jc. Rep,
of the faid county of M. to be executed in due form of law ; by '*5- ^'^^
virtue of which faid writ the faid (beriff made his .warrant in
writing to A. B. and C, D. his bailiffs, by virtue whereof
they gently laid their hands on Parfons zr\fl arrefted him» and
detained him in prifon at the fuit 01 Loyd for want of bail, du-
ring the time in the declaration, as it was lawful to do, which
are the fame trefpafs and imprifonment above fuppofed to be
done by the defendant Loyd^ &c. and this lie is ready to verify :
wherefore, fi?c,

z 3 The

MZ- MicHAEtMAs Tbkm i3 Geo. UL 1773.

The plaintiff replied, and admitted that the ca^as was fued
out in Trinity Utm 1771, and returnable in Hilary term 1772,
and admitted all the fads alleged in the plea; but the plaintiff
further fays, that afterwards, this court, upon motion, dif-
charged and fet afide the faid writ ol capias ad re/ponJendwn^ for
irregularity, the fame writ bearing tffie in Trinity term, and be-
ing made returnable in Hilary term following, (fo that all iff-
chaelmas term intervened between the teftt and return thereof)
wherefore the plaintiff Parfons fays, that the defendant Loyd of
his own wrong committed the trefpafs, and imprifoned tbe
" plaintiff as in his declai^ation is alledged, and this, &c* wherefore
lie prays judgment and his damages, &c.

The dciSendant demurred to this replication generally, andtto

plaintiff joined in demurrer. Serjeant Walker for the defendant

hrll infilled that the replication was frivolous, for it admitted ail

the fafts in the plea, without traverfing or avoiding any one of

them ; and that what was done afterwards with rdfped to this

court's fetting afide the cafnas ad r^fpondendum was nothing to

the purpofe, nor any anfwer to the plea of juftification under

Poph. 205. the writ. That aTthough the writ might be erroneous^ (which

here*^**'^ * '^^ ^'^ ^^^ admit) yet^he faid that erroneous frocefs is a gwd cx-

f*Vwi£t*par- ^"'^ ^^^ ^"^y ^^g*' ^^ ^^^^ under it, while it ftands unrevcrfcd:

pofc ? and the bailiff who arrefted Parfons at the fuit oiLoyd by virtue

-of this capias ad refpondendum^ might well have juftified under it^

aiul therefore he thought Loyd might well jufti^ uitder it, iiot*

. withftanding it was afterwards fet afide»by this court : for at the

time of the arreft, and during the imprifonment of Parfons the

capias ad refpondendum flood in full force unreverfed, not vacated

or fet afide $ and therefore he held, that no aflion whatever lies

againd the defendant upon the fa£ls in this cafe, as they appear

to the court upon the face tl this record ; but he faid, that ad«^

mitting for argument's fake, that the "plaintiff is intitled to an

aflion againil thet defendant, for damages fuftained by his im«

prifonment under an irregular or void procefs^ fued out by the

attorney of the defendant afhis fuit.

Y.et fecondiy, he infilled that a fpecial adion upon the cafe
(and not trefpafs %n ei armisj^wns the proper aflion ; the fuing out
a capias ad refpondendum by Loyd verfus Parfons tefted in Htlarj
term, and returnable in Trinity term following, was an irrtgu^
larity, by which Parfons was damnilEed; but it was no breach of
the peace; Loyd was not prefent when th^ bailiff arrefled Par^
Jons: the bailiff himfelf is not liable to ana£lion; why then
(\xo\i\ALoyd be anfwcrable (efpecially in an aflion for breach of
the peace) whed the bailiff who did the faft is not anfwcrable,
but can juftify u|ider the writ? And in order to (hew that the
i^on (if any lies) in this (afe ought to have been trefpafs upon

the

MicHAfiLMAs TuM 13 Gso. III. 1772. 343

iTie care, and nt)t ire/pafs vi et arm% ke cited Satmon verfus Per^^
rival, Cro, Car, 196, pl> 7. which was trefpafs of battery,
wounding and imprifonment ; the defendant as to wounding
pleads not guilty, and as to the battery and imprifonment jufti^
nes ; becaufe being a ferjeant of the m^ce in London, Hby cuAom
thereuj>ana plaint of debt entered in any of the compters againlt
any, be may arreft him againft whom fiich plaint is entered, and
carry him to prifon until he find bail, andjuftihesbyreafon of a
plaint entered, &c. The plaintiff replies, that after the arrcft
lie tendered unto trim fufficient bail, (to wit} J, S. and J. D.
and, notwithftanding, he detained him in prifon, Vc,^ hoc, i^r.
The defendant takes iffue that he did not tender him bail, and' it
was found againft him for both iflues, and entire damages given ;
and moved in arreft of judgment, that having juftified the arreft
and imprifonment, the tender of bail is not material ; for he is
not the party who ought to accept bail, but the judge in court':
therefore. the iffue as to this point is frivolous. And although *
Germn for the plaintiff obje3ed, that becaufe he refufed to tale
bail, he was atrefpaffer^i i«rV2"(?j .as he who enters into a tavern
and takes a cup away ; or where tenant at will pulls down this If a ferjeant
houfe ; yet ail the court conceivW that when he juftifies the ar- ^^ *,"
reft and imprifonmentt although he might have accepted baQ rcfbone'imd
(which they all agreed he could not/ and refufed, that doth not rcfufeatoac-
makc tlie arreft and imprifonment tortious, to have trefpafs ; ^2J,^^'*' t^
but he might, upon the matter, have had an a6lion upon thfc cafe'ilei^pcr-
cafe for detaining him in prifon, after bail tendered, therefore hap«,butiiot
when damages are given as well for the battery and imprtfonmerit ^^?»J* ♦.' *
as for the wounding, the plaintiff ought not to recover ; where- prifopmenu
upon it was adjudged for the defendant; Serjeant Walker, tortis
virikis, laboured that this cafe was firongiy applicable to the cafe
nt bar, and that if any a£lion lies in this cafe it is trefpafs upon
the cafe, and not trefoafs vi et arms: for he infifted a man can- i sia. is6.
, not be made a trefpaffer by relation.

Serjeant Glynn'for the plaintiff— The capias ad refbondenium i Rufliw.
bearing tejie in Hilary tfcrm and being returnable in Trinity term *^4» 464»
following, was merely void, for every capias ought to be re-
turnable the enfuing term ; for the mifchief which othcrwife
might befal the prifoner, to be kept always in prifon. Cro, Eliz.
467. Dier, 175. a. The queftion therefore, in this cafe is, Whe-
ther a plaintiff who hath fued out a capias that is wholly void and
confeauently irr^ular, can juftify an arreft under fuch void and
irregtilarvfTit? There is a very great difference between an irrc-:,
gular mocefs, and an erroneous procefs ; the fuing out an irrrgular
.procejs isthe aft of the party himfelf, for which he (hall be an-
fwerable; but the awarding erroneous procefs, is the aft of the
court; trefpafs vi et arms is the proper aftion in this cafe,
which is like the cafe where an^ execution bath b«ea executed

z 4 upou

344 Michaelmas Tzhh I3 Geo. III. 177^^

Vpon an irregular judgment, which rs afterwards vacated anj
fet afide by the court ; trefpafs vi et armis lies againft the plain-
tiflFin that judgment ; fee the cafe of Smith vcrfus Dr. Botukr
and olhcrs^ 2 Sira, 993, and ji Wilfan 385. where the fame cafe
is cited asd commented upon by the court, in giving their judg«
mcnt in the cafe of Perkins verfus Proilor and Gr«ii, Tm,

8 Geo. 3. T-The cafe of Salmon and Perdvai^ Cro, EJiz. 196L

doth not apply to this cafe ; that was the cafe of the {heriff, and
an officer is not anf\verable upon an irregular writ ; the cafe ia
' JPoph, 205. was the cafe of the flieriff; |>ut I dp pot fee how it
applies to this cafe.

The cafe of Philips vcrfus Biron an4 anoiheri Eafter 7 Geo. i,
Stra. 509. is a cafe direftly in poiht ; it was trefpafs and falfc
imprijonment againft two, who both pleaded jointly, that there
was. a judgment againft the plaintiff at the fuit o{ Biron ^ which
was afterwards fet afidc by the cou^t^ but that before it was fet
afide a capias adfatisfacienduin was profecuted by th^ then plain-
tiff BiroHy under which he and th^ other defendant (who was
the officer) juftify the imprifonment. And on demurrer Weat^
obje£led, that though an erroneous \\xdigmtnl is a juftiBcation,
yel an irregular one is not, for that is a matter in the privity of
the plaintiff or his attorney. Tho. Raym. 73, The officer in-
deed, if he had juilified fepar^tely, might have made a better
cafe than Biron the then plamtiff, but having joined with him he
muft take the fame fate ; and of that opinion was the court,
(hefitante Eyre ]}jiSL\ct) and cave judgment for the plaintiff. I
rely u{>on tnis calp, and Stnith and Voucher ^ and pray judgmci^
for plaintifft

J augment of Lord Chief Juftice De Grey — ^This is not a new queftion ; th^
3<$.court. capias ad refpondendum being tefted in Trinity term,. and return-
able in Hilary t^xm next following .is void, and a mere nullity;
there is a difference between writs of w|r/ff<r procefs, and writs of
execution; fqr in the cafe of writs of mefnt prpccfs, if a term be
emitted between ihctefle and return, the caufe is out of court,
but that is to bcundcrllodd in perjbm^l ^c}ions, for in real ^3ions
the law is othcrwifc, for in theni there m,uft be nine returns be-
tween-the te/le and return: in cafe of. a writ of execution the
caufe is come to it's end. In cafes of mefne procefs, it would
'be hard to fuffer fo long a return, becaufe the ^ody muft lie in
prifon, without having an opportunity to make a defence, when
perhaps he is able to make a good defence^ But in the cafe of
a capias adfatisfaciendum, the defendant ought to lie in execution,
and the flierift ought to havp his body always ready to brine to
the court when he fhall be commanded by habeas corpus ^ &c.;
tbefe are the diftiaflions taken between writs of capias, with re-

fpc^

MiciuBUxAs Tbbm 13*Geo. in. 1772. 345

fpefi to real a£lions, perfonal a&ions, mefne procefs, and execut
tions, by Hoft Chief Juftice, in tlie cafe of ShzrUy veifus Wrigkt^
I Ld. Kaynh 7759 776. which is good law. ^

Par/bns the now plaintiff has been illegally imprifoned upder
colour of a writ fued out againft him, whicn is a mere nullity :
he has been unlawfully injured, and muft have a remedy ; but
he has none againft the omcer» who is not to exercife bis judg<>
ment touching the validity of the procefs in the point of law, but
is obliged to ob^ the command of the, courts at We^ndfifiir^ or
other iiiperior courts having general jurifdifiion, and he may
juftify under the writ althou^ it be void, 2 Ket.yos.pLSg^ 844.^

j^. 8 1 . 3 K^i. 213.' 6 Rep. 54. a* But where ^ court has no

jurifdi6tion of the caufe, the whole is coram non judice^ as wai

the cafe of Smith verfus Dr. Bouckier and others^ 2 Stra. 904*

which v& cited by the court in giving their judgment in Perlans

yertus ProSor and Grun^ and is by the court well obferved upon

ij) my Brcfther WilfatCs Reports^ 2d part, 385: that Lord Hard-

mcie was of opinion, that trefpafs and falfe imprifonment well

l^id againft the vice chancellor of Oxford, the jud^e, gaoler, of-

ficer, and all of them, 10 Rsf. 76. a. b. Tliat this adion well

lies againft Loyd the party himfelf who fued out this void writ,

is clear from the cafes of Turner verfus Fdgate, 1 JUv. 9'^. 1

Sid, 272. and many others which might be cited; and to fay

now, that this a&ion does not lie againft the partv himfelf*

would be quieta movere. There is a great difference betwen er.

roneous procefs, and irregular (that is to fay void) procefs, the

£rft fianas valid and good until it be reverled, the latter is adn

abfolute nullity from the beginning ; the party may juftify under

the firft until it be reverfed ; but he cannot juftify under the latter,

becaufe it wa$ his own fault that it was irregular and void at

firft". It is faid that trefpafs vi et armis is not the proper aflion,

aad that a man c^not be made a trefpaffer by relation; but

relation is not at all applicable to this cale, for Loyd who fued T.Raym.?!*

out this void irregular writ, and caufcd Parfons to be unlawfully *||^'*^

arretted thereupon^ >iras the principal mover or trefpaflcr in this istnufjlsl

cafe. The aQ of an attorney is the aft of his client, and I am l'.JoneiiJ5.

very clearly of opinion that trefpafs vi et armis well lies, and

therefore the plaintiff muft have judgment,

G<7ttWJuftice: — I am of the fame opinion.' Ifa manbeunjuftly
imprifoned, it would be very ftrange indeed, if the' law did not

E'vehim an a&ionforfalfeiniprifonment ; therefore the queftion
ifore the court is, who is the proper obje£l againft whom the,
aftion for falfe imprifonment ought to be broiiglu ? Ccrtoinly tjie
pow defendant Lbyd who was the plaintiff in the writ which
was a nullity, and which ihe fued out by her attorney ; flie

fllQUld

«

840 Michaelmas T&bm 13 Gso. III. -1773.

[Set Barker flionld have employed a more (kilful and diligent attorney, for
Il/'^'^gS ^ ^ of ^^ attorney, in point of law, in this cafe is the aA of
/9^P- 3W.J ^Yit party, the client ; and. fo alfo is the aft of ihc officer who
arreited Parfons the now plaintiff; I confider it to be the very
fame thing as if the how defendant Loyd had been a£lually pre*
fent when the plaintiff was arrefted, and had ordered the officer
to make the arreft, and am therefore mod clearly of opinioQ
that trefpafs viet arms, for falfe imprifonment well lies.

Biacifione Juftice — I am of the fame opinion.

Nans Juftice — I am of the fame opinion. Every plaintiff fiies ^
out procefs at his peril. In the cafe of John/on and Nortot^Z
% Roll, Ref» 442. fpeakin^ of writs, it is there faid, that a
plaintiff may purchafe an original returnable two or three terms
after the purchafe, -becaufe it is the delay of the plaintiff him*
felf ; but if he purchafes a capias it is otherwife, and he cannot
have it returnable two terms after the purchafe, or omit, or paft
ever one term, for that would be a delay of Juftice, and contrary
|o the Jiatute of magna charia^ which iays nuiU deftremut
juftitiam.

Judgment for the plaintiff.

l^f.l?' Young and Gill verjus Hockley or Hockcliffe. C. B.

Defendant O A S E upon an ajfumpjity wherein the plaintiffs declared,
Mchlngt^up! ^^'^\ ^^ defendant on the 25th o\Junt 1769, at Union,
eii the pbin-' drew a bill of exchange upon the plaintiffs, whereby he required
tiffs, payaWe^ them to pay him (the defendant), or Ws order 57^. jr. iJL
wn*wdc?"^ ' one month after the date thereof, and to place the fame to his
plaintiffs at ^ccount; that aftcrwards, on the faid 25th of Junt 1769, in con-
liis reqaefty fideration that the plaintiffs would accept the faid bill, that the
Sfe^tofn"*' «lefendant might negotiate the fame for his own ufe and benefit,
demniCy them ^'^^ defendant promifed he would pay the faid bill, or fupply
accept rKe the plaintiffs with property for payment thereof when it became
Ml, which jyg^ and' would indemnify and (ave the plaintiffs harmlcfs againft
«fcer'deffn<^* all cofts, charges and expences which they would fuftain, by
ant becomes reafon of their acceptance thereof; and the plaintiffs in (a& fay,
^'r^tto^'rc ^^^ ^^ confiding in the faid promife, (Sc. of the defendant,*
vent being"' ^^^ afterwards on the faid 25th of June 1769, at London^ at dc-
foed. Plain- fcndant's requeft accept the faid bill, and which faid bill after-
tiffi cannot w^ards, (to Wit) on the 26th of June 1769, was negotiated and
aTbt Vnder: indorfed away by the defendant^ for his own benefit ; and the

the commif-

fion, fo the defendarrt cannot plead his certificate in tat pf this aftion «n the pronafc .to iademnlfyi &«•

Sec snte GMtrd t. FarJtrb^'yden^ p. ft6a.

J , plaintiBs

MicHAsijtfAS Tutak 13 Geo. III. 1772. 347

plaintiffs further fay, that afterwards (to wit) on the £8th of
J^uly 1769, th"^ faid bill became due; yet defendant, not regard-
ing his ))romife, did not indemnify the plaintiffs, and the plain-
tiffs paid the faid Ml to present thetnfelves from being fued at
law, to the damage of the plaintiffs. The defendant pleaded
two pleas, i/f, The general iffue non^cjfumpfit. And 2^, That
on the 11th oi July 1769, he became a bankrupt, and on the
12th of the fame nronth a commiifion of bankrupt iffued againft
him, upon which he was declared a bankrupt, and that he ob-
tained his certificate, on the 5th of September 1769, which was
allowed and confirmed on the 23d of OSober following.

This caufe cameon to be tried before Lord Chief Juftice DeGm
at the fittings in London after the X^kJEa/ter term, when a verdia
was found for the plaintiffs, fubjciEitotheopinionof thrcourtupon
the following fiate of the cafe, viz. it appeared in evidence at
the trial, that the defendant, on the 25th of June 1769, dreipr
a. bill of exchange on the plaintiffs, who were then his attornies.
papblc one month after the date thereof, to the defendant's own
order; for 57/. 5J. 4^. which was accepted by the plaintiffs the
fame day; that the plamtiffs at the 'time of accepting the faid
bill, or at any time fince, had no effeds in th^ir nanas belpng-
ing to the aefendant to anfwer th^ faid bill ; that on the 12U1
oi July 1760, a commiflion of bankrupt was awarded and iffued
agamff the defendant, who was thereupon found and declared a
bankrupt upon an a£t of bankruptcy committed by him on the^
nth ot the fame Ttf^y; that the faid bill of exchange' became
due on the 28th 01 July 1769, when the fame was paid by the
plaintiffs. That the defendant obtained his certificate on the jth
o{ September 1769, which was allowed and confirmed on th^ 23d
of ()5<?^^r following,'

Upon the debate of this cafe the whote court were clearly of
opimon, that no debt was owing by the defendant to the plain-
tiffs before the a£l of bankruptcy, and that the plaintifls could
not fwear that the debt was due and owing to them before they
had adually paid the fame,, which was not timil the 28th of
July 1769, after the afl: of bankruptcy, and therefore they would
not come in for any dividend under the commiflion ; and the
court faid this cafe was eta31y like-Ge^eUiZf^ verfus Vaiukrheydth^
adjudged in this court in Michaelmas term, is Geo. ^. And Afel»««i%
therefore they ^ve judgment for the plaintiB» and omied the
pojea to he delivered to diem* .

.Morris,

348 Michaelmas Te^m 13 Geo. III. 1772.

Morris, Affignee of the. Sheriff verfus Rees, an Attorney
. of C* B. one of the Bail of ^. jB. in C B.

The tmgnee ^pHE original aftion brought by Morris verfus A. B. is in

^^ivr^^ ^^'^ courts of King's Bench, and bail not bein^ put in

aaimidi?re'' above in due time» the bail-bond hath been aflignea to the

«poo in the plaintifif Morris^ who hath brought this a£kion thereupon in this

lame court court. And now it was moved to fci afide the proceedings, the

«ridmi ^ original a£lion being commenced in B. R. becaufe the a£l of

aaion «n< parliament direding the aflignment of the bail-bond, gives the

mnmenced} court, after fuch bonds are put in fuit, an equiuble jurifdiftioa

©BMieiMto ^^ '^^y procecdinjjs^ and to let a defendant in to try the merits

litvejunr- of the original aaion upon reafonable terms, whicn jurifdifiion

iiai«nofthe cannot be exercifed, unlefs the original a£lion, and the aftion

sB^^ck. Rep. upon the bail-bond be depending in the fame court. Upon

9fi, S. C. hearing counfel on both fides, upoa (hewing caufe, the whole

court were of opinion the proceedii^s in this cafe were illegal,

and fet them afide; and would have given defendant his colb,

if cbfts had been inferted in the rule to fhew caufe ; fome of the

judges feemed to tliink that this court had not jurifdi6lion of this

caufe, the original a£lion being in the King's Bench, and the

aQion on the bail-bond being given by the aa of parliaments

Rule abfolute tofdaftdtprocttdin^s^

Maft verfus Goddfon. C. B.

This record is entered of laft Trinity term,^ in the RoBs 368 Q
. 367. in hac verba.

U%!^l:lT Suffolk CfHOMAS GOODSON, late of Worlin^ton In the
A count upon ^to wit) ^ county of Suffolk^ yeoman, was attached to anfwcr
fa ^Sti^"' Tibflikf Maft of a plea of trefpafs upon die cafe, &c.

that pUiotiff And whereuDou the faid Thomfij Maft hyMarcon Braham his at-
ibottia build tomcy Complains, That whereas he the faid Thomas Maft, on the
ftnSlei^*' fijth day of Augujl in the year of our Lord 1 762, was, and foe di-
c|0(^ana \tf vers (to wit feven} years before that time had been, and ftill is a
outooHeft trader, .dealer and cnapman in divers and fundry kinds of goods,
^han 20I. wares and merchandizes at Bury Saint Edmunds t in the faid

andchat

plaiotift'fliould enjoy It for hitlife; plaintUTaTeh that he did build the yard, ice* an4 enjoyed the Uoe
§at ieme'yean at an eaicmenc, and afligot for breach that defendant Wfon^tully and injcxvwfljr ^
IbvAed him in the enjoyment of hii Cud eafeoent*

county

Michaelmas Tebm 13 Geo. III. 1772. t4Q

county of Suffolk^ and during the laid time hath had frequeoC
occafion jand been oftentimes ufed to fend corn, feeds and other
goods by Water-carriage from Bury Saint Edmunds aforefaid, down
the river Lark .otherwife Burn^ to the port of King*S'Lynn in the
county of Norfolk^ and to receive by the like carriaff^ by water
from King^S'Lynn aforefaid, up the fame river Lark otnerwile
Burn^ to .and at Bury Saint Edmunds ziortidHA^ coals, iron, dea].<;,
fir, timber and other goods in the way and ufage of his fai(}
trade and dealing: and whereas the faid river Lark^ otherwife '
Bum, fometimes becomes and is fo (hallow by reafon of the
want of a fufficient quantity and depth of water therein ,to na-
vigate vefiels, boats and lighters, freiglited and loaded with coals,
iron, timber, and other goods to be carried by water as afore-
faid, from King'S'Lynn to Bury Saint Edfnunds aforefaid, info-
much that the faid ikomas Majl hath been many times necef-
. farily obliged in the way of his faid trade in the carriage of his
coals, iron, timber, and other goods by water, up the laid river
Lark otherwife Burn^ from King*s-L\nn to Bury Saint Edmunds ma^^ll^
aforefaid, to land fiich his goods at Worlington in the county of joined with a
Suffolk aforefaid, and to convey the fame irom thence by land count i»«»-
carria^e to Bury Saint Edmunds aforefaid, for the fake of greater ^^* -
expedition in the carriage thereof; and alfo, whereas the faid
Thomas, Good/on on tlie laid 27th day of Auguji in the year of,
our Lord 4762 aforefaid, and long before, was and flill is law-
fully polfeUed of and in a certain clofe of ground, containing by
efiimation fixty rods in length and ten rods in breadth, fituate,
lying and being in Worlington aforefaid, in the faid county of
Suffolk^ next adjoining to and abutting upon the faid fiverZ^ri
otherwife Bum, on the (buthward fide of the faid river ; and
alfo, whereas on the faid 97th day of Au^Jl in the year of our
X^rd 1762 a(pre(aid at Worlington aforefaid in the laid county
oi Suffolk, a cei;tain difcourfe was had and moved by and between
the faid Thomas Mqjl and the faid Thomas Goodfon^ of and con*
ccrning a yard to be made and built by the iaid Tkemas Majlis
in the faid clofe of the faid Thomas Good/on, next the faid river
Lark otherwife Burrt^ for the more commodioufly carrying on
the faid trade of the faid Thomas hiafl^ and for the ianaing and
fafe keeping his coats and other his poods there, by and with
the content and agreement of the faid Tnomas Good/on: and upon
that difcourfe, and in confequence thereof immediately after-
wards, (to wit) on the fame day and year lail mentioned at
Worlington aforefaid in the faid county of Suffolk^ a certain
agreement was had and m^de In writing, by and betwi^n the
faid Thomas Goodfon and Thomas Majl^ figned by them refpefti vcly ,
in manner and form following, ((hat is to fay) '* Memorandum
" yth Auguft I76fi« An agreement made this day between Mr.
** Thomas Goodjon a|id. Thomas Mafi^ for the faid thomas Mqfl td

" bui^ld

850 MiCHASXMAS Team 13 Geo. UL 177^*

'* build a yard next the river, for the l^indinff of coals and other
** goods as many as he pleafe; but the faid Thomas Alafi dotheo-
*^ ^e to lay out not lefs than twenty pounds on what he build,
•* for which reafon the faid Thomas Goad/on have agreed, that tlic
♦• faid Thomas Ma/l fliall enjoy the building with Iregrefs cyrcc*
•' grefs and regrels, for any goods he like to befiow there dur-
** mg the term of his natural life, free from every charge what-
** fdevcr, and within fix months after his deceafe the building
•* to become the property ot Mr. Thomas Goodfon^ but the faid
- *' TkomiOS Good/on do hereby promife, that Thomas MaA executor
*' (hall have the firft reiufaf of it at the rent it will then let for.
^* As witncfs our hands, Thomc^ Goodfen^ Thomas Maft^'^ as by
the faid agreement in writing more fully appears. And the faid
Thomas Mafl in faft further fitys, that in purfuance and in per-
formance of the faid agreement on his part and behalf to be
done and performed, he the faid Thomas Maft as foon after
the making of the faid agreement as conveniently might or could
be» (to wit) on the firft day pf OQober in the year of our Loid
1762 aforelaid, did, with the approbation of the faid Thomas
Good/on^ make^and build a yard in the faid clofe of the faid 72^-
mas Goodfon next the river Zari otherwife Burn aforefaid, for the *
landing of his coals and other goods there, and did inclofe the
Ikme with a ftone wall of great heighth, (to wit} feven feet high,
and with four doors for the fafe keeping of his coals and other
goods when and as often as the fame (hould be landed and
placed there, and that he the faid Thomas Maft did upon that
occafion lay out and pay a large fum of money, (to wiO the fum
of eighty pounds in what he built in and upon the (aid yzii ;
and that he the faid Thomas Maft from the faid time of his niaking
and building the faid yard for the landing aftid fafe keeping ok
his coals and pther goods there, hath» in purfuance of the faid
agreement, peaceably and quietly occupied and ufed the faid yard
as' an taftmtnt for the purpofes aforefaid, for a long fpace of
time, (to wit) from the time laft above mentioned, until the
«6th day oi March in the year of our Lord 1772 ; neyerthelcfst
the faid Thomas Good/on^ well knowing the preipifes, and not at
all regarding the faid agreement, but contriving and wrongfully
intending him the faid Thomas Maft in this behalf uniuiTly to
aj^grieve and damnify, and to hinder and deprive the faid Tiii^^K^^
Maft of the ufe and occupation of the faid yard, as an eafimmt
for landing, placing and fafe keeping his coals and othergoodk
there according to the agreement aforefaid, he the faid Thomas
Goodfon afterwards, (to wit) on the B7Ch day of March in the faid
year of our Lord 1772, and on divers other dsnrs and times be*
tween that day and the day of fuing forth die faid original writ
of the faid Thomas Maft againft him the faid Thomas Goodfon^
did by himfelf and fervams wrongfully and inj^uiottily ebftnid

and

Michaelmas Tbam 13 Geo. III. 1773« 951

and hinder the faid Thomas Maft from landing divers large quan«
tides of his coals,* iron and timber, (to wit) fifty chaldrons of
his coals, fourteen tons and fifteen hundred weight of his iron,
and two hundred feet of his timber, at and upon the faid yard*
contrary to the faid agreement, by reafon whereof he the faid
Thomas Majl hath been and is gr^tly damnified in his faid trade
and dealings, (to wit) at Worlington sjbrefaid, in the faid county
ai Suffolk. Andadifo, whereas the faid Thomas lAqft on the ^th
day of May in the year of our Lord 1772, at Worlington aiore-*
faid, in the faid county of Suffolk , was lawfully poffelfed of the
goods and chattels following, that is to fay,, of forty ehaldroas of
coals, ten ends of iron, ten other pieces of iron, twenty ten feet
t»attons, twenty other battons, ten wooden rails, and ten other
rails of the value of ^ooA of lawful money of Cr^a/ Britain, as of
bis own proper goods and chattels, and being fo poffefTed thereof,
the faid ihomas Mq/l afterwards, (to wit) on the fame day and
year lad mentioned at Worlington aforefaid in the faid coun^ of
Suffolk^ cafually lofl the goods and chattels aforefaid out of Jiis
hands and poflefBon, which faid goods and chattels fo lofl after-
wards, (to wit) on the fame day and year lail mentioned afid
at the place lall abovefaid, came to the liands and poffeflion of
him the faid Thomas Goad/on by finding, neverthelefs* the fajd
ThomatGqod/bnj well knowing the Eoods and chattels atbref^iid
to be the proper ^ods and Qhattels of him the faid Thomas Ma/i
and to him the faid Thomas Maft of iright to belong and apper-
tain, but contriving and fraudulently intending craitily and tub*
tiliy to deceve and defraud him the faid Thomas Myi in this
behalf, hath not yet deliyeredahe goods and chattels atorefaid, to
him the faid Thomas Maft (although by him often re(|uefied fa
to do), but the faid Thomas Goodjon afterwards, (to wit) on the
fame day and year laft mentioned at Worlington aforefaid^ in the
iaid county of Suffolk^ cdhverted and difpofed of the faidgoods
and chattels to his own proper ufe ; whereupon the faid Thomas
Maft fays f that he is- injured and hath fullained damage, to
the value of goo/, and thereupon he brings fuit, Gfr.

And the faid Thomas Goodfon by Charles LtGrice his attorney
comes and defends die wrong and injur)' when, Qc. and faith
that he is not ffuilty of the premifes above laid to his charge, in
manner and iorm as the laid Thomas Maft hath above thereof
complained againft him, and of this he putsiiimfeif upon the
country; and the faid Thomas Maft doth £b Ukewife. There-
fore the fheriff is commanded that he'caufe to come here from
the day of the Holy Trinity in three weeks twelve ©f, by
whom 0c. and who neither &c. to recognize &(• becaufe as
well &c. '

• - Thi$

352 Michaelmas Tebm 13 Gbo. IU. 1772.

This caufe came on to be tried at th^ lall aflizes held for th^
County of Suffolk before my brother Wkitaker^ when a vef dift wai
found for the plaintifT, with forty (hillings damages and forty
fhillings cods, taken intirely upon^oth the counts in the de-
claration.

And nowit was moved in intereft of judgment by my Brothers
Sayer and Walker, that thefe two 'counts could not be joined in
one writ or declaration; becaufe (they faid) that the nrft count
^ is l^id to be upon an exprefs agreement in writing, and founds
wholly in contraS^ and the latter is in cafe for trover and con-
v^^;;;, which is a tort. And to prove that counU founded
upon tort and upon contraS cannot be joined, they cited
1 Keb. 847. pL 4^. 2 Keb. 803. 1 Vent, 360, for they not only
require feveral pleas, but therein are different procefs ; in one,
fummons, attachment, X3c. and in the other, atuchment, &c,
thata6lions upon contrad lie for and againlt executors, but afiions
upon tort do not'lie for or againft executors. In the cafe of
Bage verfus Bromuel, 3 Leu. 99. Pctfch, 35 Car. 2. C. B. Tro*
ver and affumpfit were joined in one a£lion, and upon not guilty,
the jury quoad the trover find for the defendant, znd quoad thtaf»
Jump/It they fihd for the plaintiiF, and it was moved in arreil of
judgment that thefe two things cannot be joined in thtriameac*
tion ; and that although the jury hath fevered them, yet the deda-*
ration being uaught and bad at the firft, the plaintiiF cannot have
any judgment ; and fo it was holden by the whole court, who
gave judgment that the plaintiff ihould take nothing by his writ]
this cafe being after a vcrdift, wherein the jury had levered one
count from the other, (hews that the writ was originally haughty
and that the declaration could not be helped, even after a ver-
dift.. And in 1 Keb. 795. pi. 7. in the Exchequer Chamber
judgment in C. B. was reverfed, trover and an affumpfit being
joined in the faiiie a&ion, in regard they require feveral plcas<
and affumpfit doth furvive to the executor of adminiftrator, but
trover doth not ; To in Penton verius Clarke^ and Floxoerdew vcrfiU
Kdlett. My Brother Serjeants cited feveral other cafes to the
like purpofe ; not neceifarv to be fet down here, becaufe they
may be found in Viner. Aor. tit. ASion [Joinder]. The court
made .a rule to (hew caufe why the judgment fiiould not be
arrefted.

Serjeant Wilfon, upon (hewing caufe for the plaintiff why judg-
ment (hould not be arretted, faid, that it feemed not to be ne-
cefTary in the prefent cafe for him to fliew that a count in
affumpfit and another in trover mzy well be joined in one writ

cr

MrcrtAELMAS T^rM 13 Gfio.ilir. 1774- 3S3

or aftion ; but . that if it was ftcceffarjr, he thought the cafe of
Dicktm Verfu« Clifton^ 2 Wilfon 319. went a great way to prove
that a count upon a contraft^ and a count in trover may well be
joined in the fame writ and declaration; for the Lord Chief
Juftice Wilmot in giving his opinion in that cafe fays. It is ob-
jeftcd tliat a count laid tjuafi ex coniradu, cannot be joined with
trover^ yet [fays he} I lay no great ftrefs upon old cafes to this
point, at this day. The true iffl [fays he] to try whether two
counts can be joined in the fame declaration is to confider and
fce whether there be the fame judgment in both, and not whe-.
ther they both require the fame plea ; and wherever there is
the fame judgment, I think, [fays Lord Chief Juftice Wilmot'^
they may well be joined, that in ajfumpjit and iraiter there is
exailiy tne fame judgment verbatim.

In the <:afe of the Duke o^ Bedford vtr[\x% Alcock^ 1 Wilfon 250.
Lord Chief Juftice Lee in giving the judgment of the court fays,
that the true way to judge whether two counts can be joined in
one declaration is ihis.^ viz. that whenever the fame proccfs and
judgment are in two counts they may be joined, otherwife they
cannot ; debt on n judgment and mutuatas may be joined, fo may
debt on a bond and a mutuatas ahhough there be different })!eas
required, becaufe thcje is the fame procefs and judgment. Debt
and detinue may be joined. Bro. Joinder in ASIion, pi, 97. And
lb may debt /or an amercement in a court leet, and a mutuatus,
a Salk. 772.

But fuppofing it to be doubtful whether a counf in ojfumpfit
or upon a contraft can, or cannot be joined with trover whicli
is a tort^ yet [Serjeant Wilfon faid] that this was not the cafe at
bar, and infilled that the firft count in this declaration is not
founded upon the contraEl or written agreement therein fet forth,
but is chi<^y founded upon the tort or wrong therein alledgcd to
have been done by the defendant and his fervants in wrongfully
andxnjurioujly ob/truilingandhindeiingthe plaintifffromtke ufe and
efgoymentofthefaidyardas an eafement^ which he had quietly
and peaceably enjoyed for adout ten years before, under the faid
a^r^ment, and which he was intitled to enjoy for the term of
his life; tliat it was ncceftary to Ihcw the agreement in the' de-
claration by way of inducement leading -to the gift of the
aftion, which was the iort^ wrongs or obflruclion above-men-
tioned; fo that whatever may be the law with refpe6l to join-
ing ajfumpjit or contrad and trover, yet this was not that cafe;
Imt both thefe counts [Serjeant Wilfon humbly ipfifted] were
founded upon torts, and therefor© he prayed judgment for tlie
plaintifif.

Vol. in. A A * Curia.

354 MicHxzhyiXB Term 13 6bo. Ill* 1772.

Curia. The gift of this afiion upon the firft count is this, <»2.
that the defendant did by himfelfand fervants wrangfuUf andin^
juriotifl^ obftrufi and hinder the plaintiff from landing divers large
quantities of his goods upon uieyard^ contrary to the written
agreement before let forth in that count; it was neceflary for
the plaintiff to fct forth the agreement Xo Ihew himfelf intitled
to the eafement of landing his goods upon the yard^ which he
had built and laid out a lum oi money thereupon, and had en-
joyed the fame for about ten years accordingly ; and having done
this very properly, the plaintiff goes on and alleges in this count,
that the defendant well knowing the premifes ob/truffed him
in the enjoyment of his eafement; this is certainly a misfeafana^
and founds wholly in tort ^ force and wrongs and not in cantra3;
for the agreement or contraQ which had been for fome years be-
fore executed both by plaintiff and defendant is only introduSory
to ihew the tort or wrong done by the defendant to the plaintiff
in hindering him from the enjoyment of his eafement whicH he
had an undoubted right to enjoy; fo that we are of opinion the
firft count is founded upon ^ tort^ and not upon contraB: and
that this is a ftronger cafe than the cafe of Dickon verfus CUf
[See ^r»w« ton; it Is faid in that cafe, " That the true uji to try whc-
\rnktp " ^^^ ^^^ counts can be joined in the fame declaration is
k. STayX " ^° confider and fee whether there be the fame judgment in
a77.and«i/* •« both, and that whenever there is the fame judgment in
% mif, 319.] « Ijq^j,'^ jjjgy jjj^y ^gjl jjg joined." Now it is certain that in all
anions upon the cafe, damaj;es only are.recovered, and ibtfoud,
judgment for the plaintiff m .all of them, both upon contraBs
and torts^ is the fame,^ viz. that it is confidered by the court thai
the plaintiff do recover his damages to fo much money ^ againft
the defendant, and that the defendant be in mifericorSa; and
yet it feems to us from a variety of cafes in the books, that,
a count upon a common cffumpfit, for goods fold, money lent,
money had and received, and fuch like coUnts which are mere
nonfeafances in non-payment of money, cannot be joined with a
count grounded upon a tort or misfeafance as trover is, and
therefore we think the rule or teft to try whether two counu
can be joined, as laid down in Dickon and Clifton^' is rather too
large, and is not univerfally true; though it may be one
good rule or tejl among others to try this point by. But without
giving any opinion upon that matter until it comes in judgment
before us; we are all clearly of opinion that the firft count in
this cafe at bar, is founded upon toitj and not upon contraB^ and
that trover may be well joined with it. '

Judgment for the plaintiff ^^r /{?/aw curiam*

Lewis

Michaelmas Tsbm 13 Geo. III. 1772: S55

Lewis Powell, Clerk verjus Francis Milburn, Clerk. [»*^^*i

C. B. ^'' ^-^-J

THIS was an aftion of trefpars upon the cafe, wherein ^«l"*5o«
the plaintiff declared that the defendant was indebted to haa'wd^-
him in a certain fum of money, for the like fum had and re- ceivedtotry
ceived by the defendant to and tor the ufe of the plaintiff, and ***« ">*>^ *» •
being fo indebted the defendant in confideration therepf pro- ron Aetrlal
mifed payment thereof to the plaintiff, which the defendant has of fach laioii
not performed, to the plaintiff's damage; upon the general iffue **y***!P"^5^
being pleaded, this caufe came on to be tried before the Lord J|!^re he
Chief Juftice De Grey at the fittings after lall Eqfier termi when need noc
a vcrdla was founa for the plaintiff, with two (hillings and profehiicoa-
fix-pence damages fubjefk to the opinion of this court upon lj^|^ ^^
the following cafe made at the trial, which ftates in thefe c./nndiji^
words, viz. i4.c.».c.4.]

*• That Eleanor the wife oi William JoUiffe Efq. being [under The cafe re-
" age and by virtue of the marriage fettlement of her grandfather f'"^?'* ftc th«
"anderandmother John Hedworth Efq. and Sufannah Sophia "^^
^' Pel/ant^ dated the s/ & s8th davs of Augtifi 1714) feifed in
** fee-tail of the advowfon or right of donation of the dona*
*• tizfe of Chffier Le Street^ which i% a donative wiih .cure of
*^ fouls; the faid William JoUiffe and Eleanor his wife, nomu
**' nated and appointed the plaintiff Louis Powell clerk thereto
" on or about the 17th day of June 1770.

*• That the plaintiff Lems Powell was in prieft's orders at the
*^ time of the faid nomination or appointment, and fubfcribed
** the thirty-nine articles, and the three articles in the thirty-
*' fixth canon at the time of his ordination ; but did not prove*
^* upon the trial of this caufe (although he >vas requirea fo to
** do) that he had fubfcribed the articles in the prefence of the
*' Biihop of Durham^ who is ordinary of the diocefe within
*' which the donative in queftion is ; nor that he had publickly
•• read thtfame in the church of Chejler Le Street ^ with de-
*' claration of his unfeigned affent to the fame ; nor that he had
** fubfcribed the declaration or acknowledgment contained in
'* the Jlatute of the 13 £^ 14 Car, 2. cap, 4. for the uniformity
«' of publick prayers and adminiftration of ficraments, and other
^ rites and ceremonies, &c. fince his nomination to the faid
** (donative; nor had any licence from the late or prefent bi/kop
** of Durham to preach Or officiate in the church of Cnefter
**le5treeL

A Ail ** QfU^

359 MiCdAELMAs T£AM 13 6£0« III* 1772*

" Quare^ Whetlier the pls^ntiff is in a fituation to maintab
" this a£lion ?

•• Signed by John Burland for the plaintiff,

** Thomas iFalker for the, defendant/'

This caufc was argued at the bar in Trinity term laft, by Ser-
jeant Glynn for the plaintiff, and Serjeant Whlker for the
defendant.

Argumeotfor Serjeant Glynn — It was firft obje3ed at the trial of tliis caufe
t^ plaintiff, ^and U) the cafe ftates) that the plaintiff did not prove (though
1 Ob^ajon. fgqjjjj.ed to do fo) that he had fubfcribed the articles in the prc-
fence of the Bijhop of Durham the ordinary, nor had publickly
read the fame in the church of Cheften Le Strecty with declara-
tion of his unfeigned affent to the ianie^ according to the frit.
13 EJiz. cap, %2.fe8. 3. whereby it is enaikd, XXtf/ np per/on
JkaU be thtraifur admUted to any benefice with cure^ except he
then be of the age of three and twenty years ai the Uafi^ and a
deacon^ andjhallfrjt have fubfcribed the faid articles tn the pre*
fence oftlu ordinary^ and publickly read the fame in the parijh
church of that benefice^ with declamation of his unfeigned ajent to
the fame; and that every perfon after the end ofthatfeffion of par*
liament to be admittea to a benefice with cure^ except that wtth'n
two months after his induSion, lie do publickly read thefaid articles
in the fime church where he JJidll nave the cure, in the time of
common prayer there, with declaration of his unfeigned affent there-
unto^ and be admitted to admxntjler the facraments within one year
after his induSion, if he be not admitted before^ fhcUl be^ upon
every fuch default^ lP60 FACTO, immediately deprived.

Anf^er to ift In anfwer to this objeftion, I humbly infill, (with deference to
Objcaion. the court) that this flatiite doth not extend to donatives either
with or without cure of fouls ; for donatives are not therein once
mentioned ; it only fpeaks of benefices with care, of benefices
prefentative^ of admiffion, inftituiion and indu^lion, tlie im)pef
afts of the ordinary with refpe61 to ptefcntative benefices > but
doth not fay one word with refpc61 to a patron's donation^ nomi^
nation, or appointment to a donative.

that I dona- A donative with cure of fouls^ hath never been taken or im-
irnorabe'nl! ^^''^^^^ ^^ ^c a belief ce With cure of fouls, within the meaning
ficewithcore^'Of the flat. 21 Hen. S* cat.. i^^feS. 9. of PluraHtitSj either by
by the mean- the cauonids or common lawyers; but on the contrary, it ha!
«i^h! s!'* always been held, evei* fince the making of that ftatute, that any
c 13. ' perfon having a donative with or withaitt cure of ibuls, of the

% yearly

MiCRA£LMA8 Tebm 13 Geo. III. 1773, 357

jcniy value of eight pounds or above, may lawfully accept and
lake a pu/aUative ben^ce with cure oi fouls, and be inftituted
and inducted in poilciTion thereof ; and that the donative with
or without cure of fouls, (hail not be adjudged in law to be
void : this, I fay, is univcrfaily agreed, both by the canonifts
and common lawyers, and thereupon I ground myfelf, that this
donative is not a benefice within the ^atiite of i^Etiz. r. ifl.
Indeed every word of this ftatute of £Jiz. relates only to prejen^
iative benefices or livings ; the laft fe6iion thereof, JeS. 8. pro*
vides that no title to confer or prefent by lapfe (hall accrue upon
any deprivation ipfofaSo^ but after fix months after notice of
.fuch deprivation given by the ordinary to the patron. And that
fuch notice to the patron ought to be truly, properly and per-
fonally, and not feignedly given, the cafe ot Bacon ver{u% Stjhop
oftarbjle and Witton CUrke (hews; which was a quare impeait by
mcon a^inft the Bijhop qfCarlifleand Witton Gierke^ wherein the
plaintiff counted ot a prefentation to one Tivaytes by an abbot
m the time of Hen. 8. and made his title by a grant of the next
advowfon made by the abbot and his convent, and that the
church was then* void by the deprivation of the faid Twaytes
generally: and the bi(hop as ordinary intitled himfcif by lapfe,
hy reafon of the deprivation of Twaytes ^ becaufe he not being
minifter according to the order made in the time of Kinff Ed. 6.
and in the* time of the then Queen Eliz. nor having fubfcribed
to the articles of religion according to the flat, 13 Eliz. cap. 12.
whereby the church was void, &c. and Witton his clerk pleaded
the fame plea. And ilTue was joined upon the notice given by
the bifhop to the patron of this deprivation (that is to fay)
whetlier the bifhop had notified to the faid plaintiff the faid de-
privation at the church aforefaid, as the bilhop had allej^ed or
not? ^nd the jury gave a fpecial verdi6l (to wit) Quod epifcdpus
nolificavit nonfuhfcriptum pradxB' per Twavtes ad articuios pre-
diaos apud eccUpatn pradiQam per quondam intimationemjuam
fig^llatam fub tenor e Jequente^ videlicet R. epifcopus C. umverfis
re&oribuSy vicariis^ curatis^ non curatiSy clericis et hteratis^ qui--
hufcunque infra diocefin nojlram CarlioV falutem^ cum R. Twaytes
cUricus vicarius perpetuus vicaria perpHua ecclefia parocktalis
de C. nofira diocejie^ non fubfcripjit articuHs, iic. juxtaftatuium^
&c. fnandans eis omnibus etpracipue curato de C. ad declarandum
in diila ecclefia de C. di3um non-fubfcriptionem^ &Cn And the
jury found further that the faid intimation was publickly .
read irt Englijh by the curate in the pulpit in the laid church of
C, in the day of the Epiphany of our Lord, in the time of di-
vine fervice in the morning, Qc. and that it was afterwards
fixed in the porch of the faid church by a general apparitor &c ;
and whether this matter was a fufHcient notification to the faid
plaintiff of the faid deprivation or not the jury were ignorant,

A A 3 and

S58 Michaelmas Tsbm 13 Geo. III. 1772.

and' prayed the advice of the juftices. Nota^ there was no men-
tion of the patron or his name in the intimation ; alfo no
exprefs mention was made of the deprivation according to the
provifoe in the ftatute aforefaid. Std quod TwayUs nonpAJcr^fit
articttliSftiOT any matter of qualification of TwayUs that he ought
or was obliged to fubfcribe, but he is called in theinftroment
vicarius perpetuus^ ct non nuplr vicariusy fo then he was not
deprived at the time of the date of the intimation* wherefore oo
deprivation was or could be notified. Alfo quare of the matter
in law of fuch public notice to the church, &c. and not to the
parfon the patron ? El nota the favour of the jury to the defend-
ants, who find in their verdi6l that TwayUs the laft incumbent,
non habens ordines ad divina ceUbrandaJccundumformamftatukEi^
wardifexA vclufitat' UmporenunCynondeclarat* iyfaifumJuumcortM
crdinario necfubfcripfuartictdis^ (fc. which is matter ^ii^rj of their
iflue and charge, therefore no regard ought to be had to it. Ei
noidy the opinion of the civilians that this intimation is not fuf-
ficient to prejudice the patron^ becaufe it is upon a ftatute penal
to the incumbent, and penal to the patron to make him loie his
prefentation, and theretore fuch notice to the patron ought to
be v^ri propri}^ et perfonaliUr et non Ji3iy and the intimation
ought to notify that the ordinary had deprived him by a fcn-
tence declaratory ^r^? non ajfenfu et fubfcriptione articuhs Jicua-
dikmjlatutum. Otherwile it (hall be intended that the ordinary
was content to permit him, &c. And on the laft day of term,
HiL 18 EJliz. it was refolved in the Exchequer Chamber by the
opinion of a// the juftices and the Chief Baron of the Excheauer
except Harper and Mounfon^ abJinU Gawdy^ that the faid inllni-
ment was infufiicient for the caufes aforefaid. Etfuperinde is
banco eodem die judicium datum fait pro Bacon, / This cafe (hews
what notice is toT)e giveh to the patron by the ordinary, before
he can confer or prtjent by lapfe, after a deprivation \pJ0faB9
of an incumbent of a prejentative benefice, for not fubfcribing
the articles according to the Jla^, 13 Eliz. cap, 12. and there-
fore it was thought proper to fet it down in this place at full
length, as it is reported by the leaned Chief Juftice Dier,
346.

The ofdiaary But with refpeQ to a donative it is univerfally agreed, the
fenudon*^ ordinary cannot prefent or collate thereto by lapfe, indeed he
dve by Japfe. ^^Y compel the patron thereof to give it to fome proper clerk.
Suppofing for argument's fake, that the incumbent of a donalive
was bound to fubfcribe the articles, h^ n^ight fubfcribe them be-
fore the patron or donor, for the ordins^ry cannot interpofe ; a
donative is out of his jurifdi£lion, out of the duty of his office,
and if he was to interfere he might mum z pratnunire ; he can-
not exercife any vifitatorial zEl with r^fpe6t tQ a donative^ if he

docs

Michaelmas Team 13 Geo. III. 1772. 359

does, he violates or invades the rights of the patron thereof who
is the ordinary, and he only can deprive. If the fiatute be con-
ftnied to extend to donatives the psvtron thereof muft be the ordi-
nary meant by the fiatute, and he is the perfon before whom the
articles are to be fubfcribed, and therefore it was not neceflary
to prove at the trial that the plaintiff fubfcribed'the articles in
the prefence of the bifliop of Durham the ordinary of the
diocefe.

^dly. It was obje£led at the trial of this caufe (and fo the id Objcftioiu
cafe nates) that the plaintiff did not prove (though required fo
to do) that he had fuofcribed the declaration or acknowledgment
contained in the fiatute of the ig 0 14 Car. a. cap. 4. for the
uniformity of publick prayers, and adminiftration of facraments,
and other rites and ceremonies, &c. fince his nomination to the
faid donatiuet nor had any licence from the late or prefent bilhop
of Durham to preach or officiate in the church of Che/ler Le
Street.

What I have fubmitted, with great deference to the court, Aafwer.
upon the Jlat. of ESz. applies more ftrongly to the 13 & 14 dr.
2. that this muft be done before the patron of the donative: this
objefiion ought to come before the court from the donor.

This Jiat, of Car, 2. was made for the uniformity of thC'
church of England^ and to deprive all non-conformifis ; it is
commonly called the Saint Bartholomew a3 ; it enads. That
every parfon, vicar, or other minifter whatfoever, who now hath
or enjoyeth any ecclefiafiical benefice or promotion within this
realm of England^ (hall in the church, chapel, or place of pub-
lick worihip belonging to his faid benefice or promotion, upon
fome Lord's-day before the feaft of Saint Bartholomew^ which
fliall be in the year of our Lord God 1662, openly, publickly
and folemnly read the morning and evening prayer appointed to
be read by, and according to, the book ot common praver, at
the times thereby appointed; and after fuch reading tnereof,
fliall openly and publickly, before the congregation there af-
fembled, declare his unfeigned affent and confent to the ufe of
all things in the faid book contained and prefcribed in thefe
words and no other : [wz.]

I A. B. do here declare my unfeigned affent and confent to
all and every thing contained and prefcribed in and by the book
intituled, The Bo^ of Common Prayer and adminiftration of the
facraments and other rites and ceremonies of the church, ac*>
cording to tke ufe of the church of England; together with the
pfalter or pfalms of Davidt pointed as they are to be fung or

AA4 faid

36o Michaelmas Term 13 Geo. III. 1772.

fiiid in churches ; and the form or manner of makiag, ordalulng
and confccrating ot bilhops, prieits, and deacons.

. And that all and evexy fuch pcrfon, who (hall (without Ibme
lawful impediment to be allowed and approved of by the ordi.
nary of the place) negleft^or refufe to do the fame within the
time aforefaid, or (in cafe of fuch impcdimcot) within one month
after fudi impediment removed, fhall ipfo facto be deprived of
all his fpiritual promotions ; and that from thenceforth it (hail
bo lawful, to and for all patrons and donors of all and fingufaurthe
faid fpiritual promotions, or any of them, according to their
refpeftive rights and titles to prcfcnt or collate the iame, as
though the perfon or pcrfons fo oficnding or aegleding were
dead. And by the fame afc^ every perfon thereafter to be pro-
moted to any eccleflaiUcal benefice, is to couiorm in like
manner.

If this conformity and declaration, as. in the cafe ftated« was
neceiTary to be made by the plaintiff, I contend he muft do it
before his donor ^ whb is his ordinary: but if I am miilaken in
that point, yet I huinbly infift, that it was not incumbent upon
him at the trial of this caufe, to prove that he had fubfcribcd
the articles before the bifhop of Durham^ and publickly read
the fame in the church of Chtfur Le Street, with his unfeigned
afl'ent to the fame, and that he liad fubfcribcd the declaration or
acknowledgment, contained in the ftatute of tlie 13 G? 14 Cir.
2. cap, 4. tor the uniformity of publick prayers, and admini*
fl ration of facraments and other rites and ceremonies, 6?f. fince
his nomination to the faid donative. He produced the inibu-
nu^nt of donation at the trial, and all the title the patron could
give ; and as no fubfequent deprivation appears, the court wiU

f)refume that the plaintiff hath conformed himfelf properljr bc-
ore the proper patroji or ordinary. And to this purpofe is the
cafe olmjonke\txi\x% Butler, 1 Ro/L Hep, 83. Monke lucd in tlic
fpiritual court for tythes againft Butler, who there pleaded that
he had not read the articles according to the ftatute, and there
the court conilrained the defendant to prove that negative, that
it is impofhblc to produce men to fwear that he never read the
articles, for there is no man who at all times hath been at
prayers, and for this reafon the defendant prayed a prohibition,
but it was denied. Coke and Dodderidge faid the law prefumei
that he read the articles ; for no one will intend that a man ivill
l.ofe the benefice rather than read the articles, and therefore
where the law prefumes the affirmative, the law requires the
negative to be proved ; as if ne unque accouple in loyal mairimonit
be pleaded, this negative ought to be proved; and Coie faid, if
fuch a matter (hould come before him upon evidence, he would

prefume

prcfum^ (until 4 were proved io tlie coBtiary) thai he rend the

articles.

In an ejeflment for a prebendal boufe tried at Saljjhury before • *
Lord Chief Juftice Wilmait it was objeded the prebendary bad
not conformed and read the articles, and he was called upon to
prov^ tb<it he had ; but it was prefumed bv the Chief Juftice
that he had read the articles, (Jc. and be held it was xiot in-
cumbent on the plaintiff to prove that he had read the articles,
fubfcribedr &c.

In the cafe of Tamw$rih before the houfe of lords, which was a wufomso^
a donative t this objedion wa$ npt fo miich as mentioned.

Donatives are mere private benefices erefted by the King, or
great lords, and are not within the ftatutes mentioned which
only concern prc/inlaHve benefi(:es; for ^ €a fua frefttentius ac^
ciduni iura ^ptoBiur^ u>. benefipes within thejunfdidion of
the ordinary oi the diocefe ; the now plaintiff who is in jpof«
fcfTion derives his title wholly by the ^ift of the dozlor, not trort^
the ordinary.

In the latter end of this cafe it is fiated, that the plaintiff bad
no licence from the late or prcfept bifhop of Durhamt to preach
or officiate in the church otC&^^r X^,&r£(r/.

I^rd Chief Juftice J)€ Qrey — Ho fuch licence is required or
neceffary to be had, but only for leflurers.

Serjeant Walker for the defendant — ^Ttie church in queftion is
a donative with cure qf/oulst being ftated in the cafe, and fpund
\?Y the jury, to be fuch a curacy ; upon this I fhall ground my ar. •
gument; the hi/hop of Durham has the cure qf/ouis within and
throughout his diocefe ; Chefter Lc Street is within his diocefe,
therefore the bifhop has the cure qffouts and ecclefiaftical jurifl
difiion in Chefter le Street. The plaintiff muft be in poffeffioh
of the church before he can fay he has loft the profits thereof.
or can have this a£lion for monev received by the defendant for
his uf<^, he muft (hew fome puolick tcfts to mark him out to
teach, preach and adminifter the facraments; thefe public tefts
are given by all perfons who take livings zuith cure ofjouls ; when
a man has got a proper certificate of his good morals, has been
admitted into hcny orders, and been prefented, admitted and
inilituted to a benefice, yet he cannot bring any poffeflory a6^ion
touching the glebe or temporal profits of the benefice^before he
be induced, the plaintiff is not iq poffelfion of this church, fo he
camnot maintain this a^Uou.

By

863 MiCHABLMAs T&RM 13 Geo. IIL 1772.

By the^o/. i £/iz. cap. x.fe3. 19. All ecclefiafttcalperfons
what foe ver ihall take the oath of fupremacy* under pain of lofii^,
during life, all ecclefiaftical and fpiritual promotion ; and by
fe8. 22. all perfons that (hall be promoted to any ecclefiailical
benefice, offace or miniftry, (hall take the oath of fupremacy;
this donative wiih cure ofjouls is an ecclefia^cal office or mi-
niflry, therefore the plaintiff ought to have Ihewn that he has
taken the oath of fupremacy.

Lord Chief Juftice — ^This was not mentioned at the trial, nor
is any notice taken of it in the cafe ftated for the opinion of the
court; we cannot go out of the cafe ftated,

Serjeant WaUer-^I cite the ftatutes of 1 ESz. cap. i.feS. 19.
and 13 £6*2. cap. 12. to (hew jthat the aS: of donation is not a
teft of the plaintiff 's fitnefs for a benefice with cure of fouk,
but he mu(t fubfcribe the articles in the prefence of the ordinaxy,
which can only mean the bi(hop9 for ne has the cure of all m
fouls within his dioce/i^

In iht fiat. 13 & 14 Car. 2. cap. \-feS. 5. the wordiosi^rx
as well ^% patrons is mentioned, which mewH this ftatute extends
to donoHve as well as prefentahve benefices ; and the word imou
is again mentioned m fe3. 6. of the fame ftatute : and in
^8. 8. of the fame ftatute every perfon who (hall have any ec-
clefiaftical benefice, or (hall have any promotion qt Curate's fkc(y
ihall make the declaration there mentioned ; and the ij^ibfcS,
of the fame ftatute is very ftrong to this purpofe ; the moment
that donatives^ zre made benefices with cure of fouls ^ the canics
thereof ought to give the publick tefts prefcril)ed by the ftatutes
of their fitnefs to teach, preach and adminifter the facraroenu, as
well as all other incumbents of benefices ^r^n^a/tz;^ withcs^t
of fouls.

Lord Chief Juftice DeCrg^— The cafe ftates that plaintiff HA
not prove upon the trial, although he was required fo to do,
that he had lobfcribed the articles in the pieience of the Inp^
ff Durham who is ordinary, &c. : now it is contended for the

Slaintiff, that the onus prooandi of this matter does not lie upon
im ; but that it (hall be prefumed he hath conformed, and done
every a£l he ought to have done, if it doth not appear and be
proved to the contrary ; what fay you to this, and to the cafes
cited for this purpofe, i RoU. Rip. 83. LordHarborough*sce^(y
and th^ cafe of Taniwgrth f

Serjeant Walker — I fay the plaintiff has given no publick tel
that he is in poffeflion ot this cure cffmds^ which he ought to do
before he can maintain this a£^ion.

Lord

Michaelmas Tbbm 13 Gbo« m. 1772. 30$

Lord Chief Juftice Dc Grey^ — I think the deed of the patron
the danor^ and his nomination of a perfon to his donative^ is,
or amounts to the fame, as prefentation, in&itution and indu^on
to zprefcntative benefice.

Gould Juftice — I am of the fame opinion with my Lord Chief
JuiUce«

Serjeant Walker — The defendant, is now in pofleflion and take^
the profits of this cure ; there ought to be fomething like livery
and feifin to put one in poffeifion of a church with curt ofjouls^
as indu£lion is*

Lord Chief Juftice De Greyf—TYic defendant's counfel at the
trial did not oh^tBt that the fight might not be properly tried ia
this aSion ; the requifites mentioned were the only matters in

Siefiion at the trial ; the cafe is fettled and figned by my Bro-
ers on both fides, we cannot go out of it, but mull confider
the fa£is dated therein as if found )by a fpecial verdi£k,

Nares Juftice — Is there any cafe in the books to be found, to
(hew that a donee of a donative benefice or cure, wants any thinr
more befide a nomination to put him in pofleflion thereof ? I
thinkthereis not«

Serjeant Walker — If the King give and grant to a man a free
chapel by patent, in that cafe the (heriff of the county ought
to put him in pofleflion of the chapel, and not the ordinary of
the place ; and if the iherifi* do not put him in corfjoral poiTeUiont
the patron ihall have a writ of quart impedit againft the Aeriff^
quodpermtUit prefentare^ becaufe there is no writ of quare impedii
of any other form. 14 Hen. 4. ii. ^, this cafe (hews it is ne*
ceflary that in the cafe of a donative the donee ought to be put
into corporal polfeflion of the chapel or churclu

Serjeant G/)rHif, in reply for the plaintiff— It was not incnm-
bent on the plaintiff at the trial to prove he had fubfcribed the
articles, &c. as I have before Ihewn by the cafe in 1 RM. R^»
83. and other' cafes ; but my Brother Walker lays the plaintiffis
not in poffeflion, and therefore -this a6lion does not lie, and has
cited the year-book of 14 Hen. 4, 11. ^. to fliew that the Iheriff
oujjht to put a man in poffeflion of a donative f it might be fo
antiently in the cafe of the King's donation to fee that peace was
kept, and-tbe royal mandate executed ; but in the cafe of a pri-
vate donor ^ nothing but this a£l or nomination was ever requu^d
to put his clerk in poffeflion, and there is no cafe of a private
donor to be found in any book, wherein the flieriff hath at any

time

863 Michaelmas T»RM 13 Geo. III. 177»

By Xhcjlai. 1 Eliz. cap. t./eS. 19- All ccck/ poffei&oii of
whatfoever Oiall take the oath of fupremacy, or ant in cSfeft to
during life, all ecclefiaftical and fpiritual.^^ ; is no cafe to be
fe3. 22. all perfons that (hall be promo'^ .
benefice, oflice or miniftiy, (hall tak' -,
this donative mlk cure ofjbuls is zf / ' ^ing a donative with
niftry, therefore the plaintiff our' iic ftatutes of EMi. and
taken the oath of fupremacy. er this before ; a donahvt

f .op, but in the cafes of all

Lord Chief Juftice— Thif > . And of the King's chapel

is any notice taken of it in /, and not tlxc bifhop of Louio^i

court; we cannot go out ' .id?>/fl//c^<rj his commiffioners have the

, fo the Serjeant concluded by praying

Serjeant Walktr — ^ ^/juff. The court took fome Ihoit tinie to

and 13 iiiz. cap. ^grds were unanimoufly of opinion that the

teft ofthe plainti judgment.

buthemiifl fuh ^

which can o' jjice De Grey — IVr/linm JMffe Efq. and£fe<W(?r

fouls within / ;>;:^'fl ^^ ^^^ ad vow Ion or right of donatien ofthe

'■^^%rr 1^ Street (which is a donative with cure of

Inth^ 'i^'^lt'o^ ^^^^ faid £/p^w<?r, they nominated and appointed

aswer ■/■''JV'*i- ^ Powell clerk thereto in June 1770, who w»

to / i/'^I^J^ '^ '*^ '^'^^ ^^^ fubfcribcd the tlurty-nine articles, and

is jJ^!^ai'"^J^s in the 36th canon at the time of his ordi.

f fjic^'^. l)\ii he did not prove upon the trial that he had fub-

fi-^'f^ihe articles in the prefcnce of the b}Jhop of Durham who

K%ary of the diocefe within which the donative in qucftion

^^jj^that he had publickly read the fame in the church of

%'f^r U Street^ with declaration of his unfeigned aOent to the

/rfle; "^^^ ^^^ ^^ ^*^^ fubfcribcd the declaration or acknow-

Jjrftnent contained in the ftatute of iq £5? 14 Car, 2. cap, j^.fo^

^ uniformity ofpublick prayers and admini/lraiion offacramnts^

guf/d other nies and ceremonies^ &c. Cnce his nomination to the

Jonative; nor had any licence from the late or prefent bijhopof

Purham to preach or officiate in the church of Chejler h{

Street.

The general queftion in the cafe ftated for the eonfideration
of the court is, whether the plaintiff is in a iituation to maintaia
' this aSion ?

Under this general queftion, two particular aueftions have
been made upon the argument at the bar (viz,) 1//, Whether the
plaintiff as incumbent of this donative church is not within the
ftatutes of 13 Eliz. cap. 12. and the 13 G? 14 C. 2. cap* 4«
vA obliged to comply with the requifites therein ? %dly^ Whe-

thoc

r

V

NiicHAEliMAs TfiitM 13 Geo. III. 1772. i*S

^S[iece(rarv for him to have proved upon that trial
^he had conformed to thole requifites.

•^^ X^^ ^ court "^ill not be upon the tft queftion \

'S^fc ^y ^cthing concerning publick and private

^"^^^ -^ ^fices and church-livinjj. In the

^k: ♦J^*^ ' the patron has his private intereft

^►J^^^^ "bllhop or ordinary has the right

▼^^''^ ^ Juftion of the clerk. In the

^fc ♦ ^ private and pubHck afis to be done

1 ^ iS in the bifliop : fo that by the dona-

i^y iS cafe had induction to the church of

▼^ at ftill a donative hath all the properties A donative

.neficcsy efpecially when it is with cure of fouls ^ ^*^ *'! **"*
IS clear by the 13 Eliz, c* 12. that the incum- ccdcfiiffi^ai
benefice wiih cure mull be S3 years of age» in deacon's bsneacca,
.abfcribe and read the thirty-nine articles: and by 13 £^
/'. 2. muft read the Common Prayer, fubfcribe, &c. and by
aer ftatutes muft take the oaths of allegiance and fupremacy,
t?f. Thefe ads of parliament fcem to extend to incumbenti of
donatva as well as to incumbents of all other ecclefiaftical bene-
* ficcs ; no perfon is to be admitted to any benefice zvith cure of
I foulsi unlefs he is 23 years of age and in deacon's orders ; could , *

^ .the plaintiff have taken this donative if he had not been 23 year»
of age, nor in deacon's or prieil's orders, and had not reiid and
\ fubicribed the articles ? He certainly could not; and altliough
I there is the word induSion in the latter provifion infoS. 3. of
tlie 13 Eliz. yet that flatute extends to ail livings zvith cure^ as
well donative 2A prejentative. So the Jlat. 13 (^ 14 Car. 2* ex-
tends to both forts of livings, to all chapels and places of pub-
• lick worfliip; it fpeaks of patrons and donors ^ it may mean con^
J^fing^ giving^ collatings prefenting ; fo alfo the following claufcs
in the iamc afcl extend to deans^ prebendaries^ G?c. fomc whereoJr
are of private donation.

It wai obje£led in argument that the a£l$ required to be dono
by thefe ftatutes are agamft the right of the donor; but there i»
no weight in the obj^ion, becaufe the intereft of the donor or
his right of donation is not affefted thereby, for the a£i« re-
quired to be done^ bv thefe ftatutes only coneern tlie intereft and
good of publick^licy ; as the bifliop has jurifdiBion over the
moral chara3ers of incumbents, fo thefe ftatutes have given a
check upon their political principles. If it were neceliary for
ihe'court to give judgment lipon this firft point or queftiOn* the
cafe in 3 Lev. 82. of Carter verfus PinineyfQitws that a fiipen-^
dknr piieft 01 ^ donative is within the ftatutes oijimony and of
conformiy.

2Jl)\ .

9^ MipHASLMAs Tbb^i IS Gbo. IIL 1772.

time interfered ; it 11 moft clear that the title and pofleffion of
the plaintiff are perfeft and compleat, and amount in effed to
admiiTion, inilitutioa and indufUon; and there is no cafe to be
found to the contrary.

My Brother ftrongly infifts, that this being a donative with
. cure ofjbulsf is within the meaning of the (latutes of £6*2. and
Car. 2.; I have endeavoured to anfwer this before; a donatiyt
wii/i cure is not vHiiable by the biihop, but in the cafes of all
^iomtivej the donor is the ordinary. And of tlie King's chapel
the dean thereof is the oidinary, and not titc bifhop of London:
and in cafes of the King's donatives his commifQoners have the
fame power as ordinary : fo the Serjeant concluded by praying
judgment for the plaintiff. The court took fonie ihoit tine to
coniider, and afterwards were unanimouOy of opinion that the
plaintiff nauft have judgment.

lodgment of ' ^"^^ Chief Juftice De Grey^^William Jotltffe Efq. ^xi^Ilean(^f
rlw court. ^^^ ^fi being ififed of the ad vow Ion or right of donation of the
donative of Chejter he Street (which is a donative with cure of
fouls] in* right of the faid £/ff^i;7^r, they nominated and appointed
the plaintiff i>a;7i.jP(723[;^// clerk thereto in June 1770, who was
then in prieft'sordei-s and fubfcribcd the thirty *nine articles, and
the three articles in the 36th canon at the time of his ordi«
nation ; but he did not prove upon the trial that he had fub-
fcribed the articles in the prefcnce of the bipiop rf Durham who
is Ordinary of the diocefe within which the donative in queftion
"^is ; nor that he had pubiickly read the fame in the church of
Chefter Le Street^ with declaration of his unfeigned affent to the
fame; nor that he h^^d fubfcribed the declaration or acknow-
ledgment contained in the ftatute of 13 i^ 14 Car, 2. cap. 4. /^r
the uniformity ofpublick prayers and adminiftration offacraments^
and other rites and ceremonies ^ &c. fince his nomination to the
donative ; nor had any licence from the late or prefent; bijkop of
Durham to preach or officiate, in the church of Chejler L{
Street.

The general queftioii in the cafe ftaled for the confideration
of the court is, whether the plaintiff is in aiituation to maintaia
this adion ?

Under this general queftion, two particular queftions have
been made upon the argument at the barf* Cviz.J xfy Whether the
plaintiff as incumbent of this donative church is not within the
ftatutes of 13 EJiz. cap. 12. and the 13 £7 14 C. 2. cap. 4.
^nd obliged to comply with the requifites therein ? %dly^ Whe-

tber

MicHActiMAs Term Id Geo. IIL 177^. ^^S

ther it was rtot neceflkrv for hxtn to have proved upon that trial
of this caufe that he had conformed to thole requifites.

The judgment of the court "^ill not be upon the \ft queftion \
however we fliall fay fomething concerning publick and private
lotereft in advowfons* benefices and church-livings. In the
cafe of a prefcntative benefice the patron has his private intereft
and ri^ht of prefentation, the biihop or ordinary has the right
of admiffion, mftitution. and ihdu£tion of the clerk. In the
cafe of a donative^ both the private add publick a3s to be done
are in the donor; nothing is in the bifliop : fo that by the dona*
horn the plaintiff in this cafe had induction to the church of
Ckejkr Le Street: but flill a donative hath all the properties A donative
of ecclefiaftical benefices, efpecially when it is with cure of fouls ^ ***^ **le^*'of
as this' is. It is clear by the 13 Eliz. c^ 12. that the incum- ecdefiBfllca
bent of any benefice with curemvM be sgyears of age, in deacon's bsneaccs.
orders, fubfcribe and read the thirty-nine articles : and by 1 3 S?
14 Car. 2, muft read the Common Prayer, fubfcribe, &c. and by
other ftatutes muft take the oaths of allegiance and fupremacy,
(3c, Thefe ads of parliament feem to extend to incumbenti of
donaiives as well as to incumbents of all other ecclefiaftical bene-
fices ; no perfon is to be admitted to any benefice zvith cure of
fouls ^ unlefs he is 23 years of age and in deacon's orders ; could
.'the plaintiff have taken this donative if he had not been 23 year»
of a^, nor in deacon's or prieil's orders, and had not read and
fubtcribed the articles ? He ceruinly could not; and although
there is the word induSion in the latter provifion inje3, 3. of
the 13 £&'z. yet that ftatute extends to all livings zvith cure^ as
well aonative 31^ fre/entative. So the^at. 13 (^ 14 Car* 2. ex-
tends to both forts of livings, to all chapels and places of pub-
• lick woirfliip; it ffreaks oi patrons and donors^ it may mean co?i^
f erring^ giving^ collatings prefenting / fo alfo the following clauics
in the lame a£l extend to deans^ prebendaries^ &r« fome whereof
are of private donation.

It was obje£led in ar^ment that the a£is required to be dons
by thefe ftatutes are agamft the right of the donor; but there is
no weight in the obje6lion, becaufe the intereft of the donor or
his right of donation is not affeded thereby, for the afts re-
quired to be done^ by thefe ftatutes only coneern tl>e intereft and
good of publick 'policy ; as the bifhop has jurifdi£lion over the
nK>raI chara3ers of incumbents, fo thefe ftatutes have given a
check upon their political principles. If it were neceflary for
fhe'court to give judgment upon this firft point or queftiOn* the
cafe in 3 Lev, 82. of Carter verfus Pinkney Ihews that a ftipen-
diary prieft or a donative is within the ftatutes oi Jimony and of
conformity.

2dt)\

9^4 MiCHASLMAs Tebm 13 Gbo. III. 1772.

time Interfered ; it i$ mott clear that the title and poffeffion of
the plaintiff are pcrfefl and compleat, and amount in cffefi to
admiflion, inllitution and indudion; and there is no cafe to be
found to the contrary.

My Brother ftrongly infifls, that tliis being a iomuiue with
. cure of fouls 1 is within the meaning of the ftatutes of £/«. and
Car. 2.; I have endeavoured to anfwer this before; a Jonatiye
wilk cure is not vKitahle by the bifhop, but in the cafes of all
donative J the donor is the ordinary. Ahd of tlie King's chapel
the dean thereof is the oidinary, and not tlie biihop of London:
and in cafes of the King's donatives his commiflioners have tbc
fame power as ordinary : fo the Serjeant concluded by praying
judgment for the plaintiff. The court took fonie ihoittiroeto
confider, and afterwards were unanimouOy of opinion that the
plaintiff oiuft have judgment.

lodgment of ^^^ Chief lufti^c De Grty^^WilUam Jottiffe Efq. and Eleanor
rke court. his wife being Teifed of the ifdvowlon or right of donatian of the
donative of Chefier Le Street (which is a donative with cure of
fouls) in* right of the faid Eleanor^^ay nominated and appointed
the ^XdxntiS Lew's. Powell clerk thereto in June 1770, wlio was
then in prieft's orders and fubfcribcd the thirty-nine articles, and
the three aiticles in the 36th canon at the time of his ordi-
nation ; but he did not prove upon the trial that he had fub-
fcribed the articles in the prefcnce of the bifhop of Durham who
is Ordinary of the diocefe within which the donative in quedion
■^is ; nor that he had publickly read the fame in the church of
Chefler Le Street^ with declaration of his unfeigned aflent to the
fame; nor that he had fubfcribed the declaration or acknow-
ledgment contained in the (latute of la f? 14 Car. e. cap, j^.for
the uniformity of publick prayers and admimftration offacramtrds^
and other rites and ceremontes^ &c. fince his nomination to the
donative; nor had any licence from the late or prefent, hjkop of
Durham to preach or officiate in the church of Chefier t{
Street.

The general queftioh in the cafe ftated for the confideFatlon
of the court is, whether the plaintiff is in a iituation to maintaia
this a3ion ?

Under this general queftion, two particular queftions have
been made upon the argument at the ba^ fviz.J \fi^ Whether the
plaintiff as incumbent of this donative church is not within the
ftatutes of 13 SJiz. cap. 12. and the 13 & 14 C. s. cap. 4*
^ obliged to comply with the requifites therein ? %dly^ vVhe.

ther

Michaelmas TfiitH 13 Geo. III. 177^* ^^S

ther it was riot neceflkrv for hitn to have proved upon thtf trial
of this caufe that he haa conformed to thole requifites.

•

The judgment of the court ^^ill not be upon the \fl que&ion (
however we fliall fay fomething concerning pubiick and private
mtereft in advowfons, benefices and church-livings, in the
cafe of a prtfintative benefice the patron has his private intereft
and right of prefentation, the bimop or ordinary lias the right
of admiflion, mftitution. and iiidudton of the clerk. In uie
cafe oi a donative^ both the private and pubiick a3s to be done
are in the donor; nothing is m the bifliop : fo that by thtdona^
tion the plaintiff in this cafe had induction to the church of
Ckejkr Le Street: but ftiil a donative hath all the properties A donative
of ecclefiaftical beaeficesy efpecially when it is with cureojfouls^ **"** **? ^*'*-
as this' is. It is clear by the 13 Ehz. c» 12. that the incum- ccdefi»S?a
bent of any benefice tvith curemMi\ be agyears of age, in deacon's bsneacc««
orders, fubfcribe and read the thirty-nine articles : and by 1 3 £s?
14 Car. 2. mull read the Common rrayer, fubfcribe, &c. and by
other ftatutes muft take the oaths of allegiance and fupremacy,
(3c, Thefe ads of parliament feem to extend to incumbenti of
donatives as well as to incumbents of all other ecclefiaftical bene,
fices ; no perfon is to be admitted to any benefice zinth cure of
/otdsi unlefs he is 23 years of age and in deacon's orders ; could
.the plaintiff have taken this donative if he had not been 23 year»
of ^, nor in deacon's or priell's orders, and had not read and
fublcribed the articles? He certainly could not; and althougH
there is the word induSHon in the latter provifion injeil. 3. of
tlie 13 Etiz. yet that ftatute extends to all livings zvith cure^ as
^tWionative dA prefentative. So ihe^at. 13^14 Car. 2* ex-
tends to both forts of livings, to all chapels and places of pub-
■ lick woirlhip; it fpeaks of patrons and donors^ it may mean con^
/erring^ giving ^ collatings prefenting ; fo alfo the follo^ving clauics
in the lame a£l extend to deans^ prebendaries^ &£-* fome whereof
are of private donation.

It was objeQed in argument that the a£b required to be dons
by thefe ftatutes are agamft the right of the donor r but there i*
no weight in the objection, becaufe the intereft of the donor or
his right of donation is not affe£led thereby, for the a^« re-
quired to be done by thefe ftatutes only coneern tlie intereft and
good of pubiick '|x>licy ; as the bifliop has jurifditHoii over thcj
moral chara6lers of incumbents, fo thefe ftatutes have given a
check upon their political principles. If it were neceflary for
the court to give judgment upon this firft point or quefti6n, the
cafe in 3 Lev. 82. of Carter verfus Pinkney ftiews that a ftipen->
diary prieft or a donative is within the ftatutes oijimony and of
conformity.

2dl)\

904 MiCHASLMAS Tebm 13 Gbo. III. 1772.

time interfered ; it i$ moil clear that the title and pofleffion of
the plaintiff are pcrfefl and compleat, and amount in cffe£l to
admiiTiOD, inllitution and indufiibo ; and there is no cafe to be

found to the contrary.

My Brother ftrcwigly infifls, that tWs being a donative with
, cure of fouls J is within the meaning of the ftatutes of EJiz. and
Car. 2.; I have endeavoured to anfwer this before ; r JotiiUipe
wiili cure is not vKiubie by the bifhop, but in the cafes of all
donatives the donor is the ordinary'. And of the King's chs^l
the dean thereof is the oidinary, and npt tlie biihop of London:
and in cafes of the King's donatives his commifEoners have the
fame power as ordinary : fo the Seneant concluded by praying
judgment for the plaintiff. The court took forrie ihoittime to
confider, and afterwards were unanimouQy of opinion that the
plaintiff oiuft have judgment.

lodgment of ^xi Chief lufticc Di Grey — William JMffe Efq. and Eleanor
tkt court. kis wife being ieifed of the advowl'on or right of donation of the
donative of Oiejler Le Street (which is a donative with cure of
fouls) inright of die faid Eleanor^ih,i^y nominated and appointed
the fl2Lmtin Lews. Powell clerk thereto in ^une 1770, who was
then in prieft's orders and fubfcribcd the thurty-nine articles, and
the three aiticles in the 36th canon at the time of his ordi-
nation ; but he did not prove upon the trial that he had fub-
fcribed the articles in the prefcnce of the hjkoff of Durham who
is Ordinary of the diocefe within which the donative in queftion
*^is ; nor that he had publickly read the fame in the church of
Chefler Lc Street^ with declaration of his unfeigned afient to the
fame ; nor that he h^d fubfcribed the declaration or acknow-
ledgment contained in the ftatute of la f? 14 Car. s. cap, 4. for
the uniformity of puHick prayers and admruflration offacramerUs^
and other rites and ceremonies^ &c. fince his nomination to the
donative ; nor had any licence from the late or prefent; bijkop of
Durham to preach or officiate, in the church of Chefler L\
Street.

The general queftion in the cafe ftated for the confideFBtioa
of the court is, whether the plaintiff is in a Jituation to maintaia
this a3ion ?

Under this general queftion, two particular queftions have
been made upon the argument at the ba^ fviz.J ifi^ Whether the
plaintiff as incumbent of this donative church is not within the
ftatutes of 13 Eitz. cap. 12. and the 13 & 14 C. 9. cajf. 4.
^ obliged to comply with the requifites therein ? s^/Zy, Whe-
ther

Michaelmas Tebm 13 Geo. III. 177^. ^^S

ther it was riot neceflkrv for hitn to have proved upon thtf tria!
of this caufe that he haa conformed to thole requifites.

The judgment of the court ^^ill not be upon the \fl que&ion \
however we (hall fay fomething concerning publick and private
lotereft in advowfons, benefices and church-livings, in the
cafe of z, prefintative benefice the patron has his private intereft
and right of prefentation, the bilnop or ordinary has the right
of admiffion, mftitution, and ihdu3ion of the clerk. In the
cafe oi a donative^ both the private and publick a3s to be done
are in the donor; nothing is in the bifliojp : fo that by the^fi^i.
don the plaintiff in this cafe had induction to the church of
Ckejkr Le Street: but (till a donative hath all the properties A donative
of ecclefiaftical beaeficesy efpecially when it is with cureojfoulsy ***^ *'? ^^^
as this* is. It is clear by the 13 EUz. c^ 12. that the incum- ccciefi»ft!cal
bent of any benefice with curem\m be agyears of age, in deacon's bsneacc««
orders, fubfcribe and read the thirty-nine articles : and by 1 3 &
14 Car. 2. mull read the Common rrayer, fubfcribe, S3c. and by
other ftatutes muft take the oaths of allegiance and fupremacy,
&c. Thefe a3s of parliament feem to extend to incumbenti of
donatives as well as to incumbents of all other ecclefiaftical bene-
fices ; no perfon is to be admitted to any benefice zoith cure of
Joidst unlefs be is 523 years of age and in deacon's orders ; could
.the plaintiff have taken this donative if he bad not been 23 year.^
of a^y nor in deacon's or priell's orders* and had not read and
fubicribed the articles? He certainly could not ; and although
there is the word induSHon in the latter provifion infeS, 3. of
die 13 Eliz. yet that ftatute extends to all livings tmth cure^ as
welt donative ^ prefentative. So t\it Jlat. 13^14 Car* 2* ex-
tends to both forts of livings, to all chapels and places of pub-
• lick woirlhip; it fpeaks oi patrons and donors ^ it may mean con^
ferring^ giving^ collatings prefeniing ; fo alfo the following clauies
in the lame a£l extend to deans^ prebendaries^ &£-. fome whereof
are of private donation.

It wai objeQed in argument that the a£b required to be done
by thefe ftatutes are agamft the right of the donor; but there is
no weight in the obje£lion, becaufe the intereft of the donor or
his right of donation is not affe£led thereby, for the a£^s re-
quired to be done by thefe ftatutes only coneern tlie intereft and
good of publick ^licy ; as the bifliop has jurifdi£Hon over the
moral chara6lers of incumbents, fo thefe ftatutes have given a
check upon their political principles. If it were neceflary for
the'court to give judgment upon this firft point or quefti6n, the
cafe in 3 Lev. 82. of Carter verfus Pininey ftiews that a ftipen^
dtanr prieft or a donative is within the ftatutes oi Jimony and of
conformity,

. 2d/): .

804 MiCHASLMAS TeBM 13 GfiO. III. 1772.

time Interfered ; it i$ moil clear that the title and pofleffion of
the plaintiff are pcrfed and compleat, and amount in cffcd to
admiflioD, inftitutioQ and indu£lion| and there is no cafe to be
found to the contrary.

My Brother ftrongly infifls, that this being a Jbnatixfe with
. cure of fouls J is within the meaning of the ftatutes of EJiz. and
Car, 2.; I have endeavoured to anfwer this before; a donative
wilk cure is not vifitable by the bifhop, but in the cafes of all
donative J the donor is the ordinary. And of the King's chapel
the dean thereof is the ordinary, and np( t)ie biihop of London:
and in cafes of the King's donatives his commiflioners have the
fame power as ordinary : fo the Serjeant concluded by praying
judgment for the plaintiff. The court took fome ihoit time to
cohfider, and afterwards were unanimouOy of opinion that the
plaintiff muft have judgment.

loagmcnt of ^xi Chief Jufticc De Grey^-^William Jdlijfe Efq. and EUanor
rkecoaru his wife being Teifed of the advowlhn or right of donation of the
donative of Chejler Le Street (which is a aonative with cure of
fouls) in* right, of the faid £/e/if7£rr, they nominated and appointed
the plaintiff Z^wrJrjP^a/tf// clerk thereto in Jfune 1770, who was
then in prieft's orders and fubfcribcd the thirty-nine articles, and
the three aiticles in the 36th canon at the time of his ordi-
nation ; but he did not prove upon the trial that he had fub-
fcribed the articles in the prefcnce of the hijhop of Durham vfho
is Ordinary of the diocele within which the donative in queftion
"^is ; nor that he had publickly read the fame in the church of
Chefter Le Street^ lyith declaration of his unfeigned aflcnt to the
fame; nor that he ha^d fubfcribed the declaration or acknow*
ledgment contained in the ftatute of 13 0 14 Car. e. cap. ^.for
the uniformity of publick prayers and adndrdfltation offacramnls^
and other rites and ceremonies^ £Sc. lince his nomination to the
donative; nor had any licence from the late or prefent; bijiop of
Durham to preach or officiate in the church of Chefier L{
Street.

The general queftion in the cafe ftated for the tonfideration
of the court is, whether the plaintiff is in a iituation to maintain
this a3ion ?

Under this general queftion, two particular queftions have
been made upon the argument at the ba^ fviz.J ijt^ Whether the
plaintiff as incumbent of this donative church is not within the
ftatutes of 13 Eliz. cap. 12. and the 13 & 14 C. 2. caP* 4>
^nd objiged to comply with the requifites therein ? ^dly^ vVhe-

dier

Michaelmas T&itM Id Geo. III. 1772* ^^S

tber it was tiot neceflkry for him to have proved upon th# trial
of this caufe that he had conformed to thole requifites.

The judgment of the court "^ill not be upon the \fl queftion }
however we ihall fay fomething concerning publick and private
iatereft in advowfons, benefices and church-livings, in the
cafe of z prefentative benefice the patron has his private intereft
and rig^ht of prefentation, the bimop or ordinary has the right
of admiffion, inftitution. and iiidudion of the clerk. In the
cafe oi a donative^ both the private and publick a3$ to be done
are in the donor; nothing is m the bifliop : fo that by the dona*
tion the plaintiff in this cafe had induction to the church of
Ckejkr Le Street : but flill a donative hath all the properties A domtiv*
of ecclefiaftical benefices, efpecially when it is with cure of fouls ^ *"*er''et'of
as this' is. It is clear by the 13 £/iz. r» 12. that the incum- c«iefi»ft!«a
bent of any benefice mth curemym be Qgyears of age, in deacon's bsne6ce««
orders, fubfcribe and read the thirty-nine articles : and by 1 3 £^
14 C!ar. 2. muft read the Common Prayer, fubfcribe, &c. and by
other ftatutes muft take the oaths of allegiance and fupremacy,
&r. Thefe ads of parliament feem to extend to incumbenti of
donatives as well as to incumbents of all other ecclefiaflical bene-
fices ; no perfon is to be admitted to any benefice with cure of
fouls i unlefs he is 23 years of age and in deacon's orders ; could
/the plaintiff have taken this donative if he had not been 23 yeari^
of a^, nor in deacon's or priell's orders, and had not read and
fublcribed the articles ? He certainly could not ; and altlKMJgh
there is the word induQion in the latter provifion in fell, 3. of
tlie 13 Eliz. yet that ftatute extends to all livings with cure^ as
well^miAz^^ 2A prefentative. So i\it flat. 13^14 Car* 2. ex-
tends to both forts of livings, to all chapels and places of pub-
. lick woirfhip; it fpeaks oi patrons and donors, ix. may mean con^
f erring, giving, collating, prefenting ; fo alfo the following claiiics
in the lieime a£l extend to deans, prebendaries, &c» fome whereof
are of private donation.

It was objeSed in argument that the a£is required to be done
by thefe ftatutes are agamft the right of the donor; but there is
no weight in the objetlion, becaufe the intereft of the donor or
his right of donation is not affe£led thereby, for the a£^s re-
quired to be done by thefe ftatutes only coneern tlte intereft and
good of publick j)olicy ; as the bifhop has jurifdiftion over the
moral chara6lers of incumbents, fo thefe ftatutes have given a
check upon their political principles. If it were neceliary for
thecourt to give judgment upon this firft point or queftiOn, the
cafe in 3 Lev. 82. of Carter verfus Pininey fliews that a ftipen^
diary prieft or a donative is within the ftatutes oijimony and of
comormity.

. 2dl)'. ,

9^4 MiCHASUffAs Tebm 13 Geo. 111. 1772«

time interfered ; it i$ mott clear that the title and pofleffioH of
the plaintiff are pcrfed and complcat, and amount in eflfefi to
admiffioD, iniliuition and indu&ion ; and there is no cafe to be
found to the contrary.

My Brother ftrongly infifls, that this being a donaiivi with
, cure of fouls ^ is within the meaning of the ftatutes of EMz. and
Car, 2. ; I have endeavoured to anfwer this before ; a ionsixvt
wiih cttre is not viTuaUe by the bifhop, but in the cafes of all
4io9istivej the donor is the ordinary. And of the King's chapel
the clean thereof is the oidinary, and np( die biibop of LomJ4»:
and in cafes of the King's donatives his commifiioners have the
fame power as ordinary : fo the Serjeant concluded by praying
jiidgment for the plaintiff. The court took fome (hoittiroeto
confider, and afterwards were unanimouily of opinion that the
plaintiff Biuft have judgment.

loagmcnt of ^xiL Chief Juftix:e Dt Grey — William Jeitiffe Efq. and Ikmar
rkecouru ^s wife being leifed of the ad vow Ton or right of donaiiM of the
donative of Chefler Le Street (which is a donative with cure of
fouls) iti>right of tlie faid Eleanor^ they nominated and appointed
the plaintiff i>«ffi. jP<?a;«// clerk thereto in Jfune 1770, who was
then in prieft's orders and fubfcribcd the tlurty*nine articles, and
the three aiticles in the 36th canon at the time of his ordi«
nation ; but he did not prove upon the trial that he had fob-
fcribed the articles in the prefence of the bijhop of Durham vfho
is Ordinary of the diocefe within which the donative in queftion
^*is ; nor that he had publickly read the fame in the church of
Chefler Le Street^ with declaration of his unfeigned afient to the
fame; nor that he had fubfcribed the declaration or acknow-
ledgment contained in the ftatute of la f? 14 Car. a. cap, ^.Jor
the uniformity of puUici prayers and adminiftration offacraments,
and other rites and ceremomes^ &c. fince his nomination to the
donative; nor had any licence from the late or prefent hifhop of
Durham to preach or ofEciaie in the church of Chefler L{
Street.

The general queftion in the cafe ftated for the confideratiOD
of the court is, whether the plaintiff is in a fituation to maiotaia
this a3ion ?

Under this general queflion, two particular queflions have
been made upon the argument at the ba^ fviz.J 1/, Whether the

Jlaintiffas incumbent of this donative church is not within the
atutes of 13 Eliz. cap. 12. and the 13 & 14 C. a. caP. 4*
^nd obliged to comply with the requifites therein ? udly^ Whe-

dier

Michaelmas Tbhh Id Geo. III. 177^. i$$

tb^r it was riot neceflary for hitn to have proved upon thtf iria!
of this caufe that he haa conformed to thole requifites.

The judgment of the court ^ill not be upon the tjl queftion (
however we flail fay fomething concerning publick and private
imereft in advowfons, benefices and church-livings, in the
cafe of a prefenteUive benefice the patron has his private imereft
and ri^ht of prefentation, the biihop or ordinary lias the right
of admiffion, iniUtution. and iiidufiion of the clerk. In the
cafe oi a donative^ both the private and publick afis to be done
are tit the donor; nothing is m the bifliop : fo that by the dona»
tion the plaintiff in this cafe had induction to the church of
Chejter Le Street: but flill a donative hath all the properties A donative
of ecclefiailical benefices, efpecially when it is with cure of fouls ^ *"^ ^V^^of
as this' is. It is clear by the 13 Ebz^ c* 12. that the incum- ecdefiamca
bent of any benefice with curemun be agyears of age, in deacon's bsneacci.
orders, fubfcribe and read the thirty>nine articles : and by 1 3 £^
14 Car, 2. mull read the Common rrayer, fubfcribe, (3c. and by
other fiatutes muft take the oaths of allegiance and fupremacy,
&r. Thefe a£b of parliament feem to extend to incumbenti of
donatives as well as to incumbents of all other ecclefiafiical bene-
fices ; no perfon is to be admitted to any benefice mtk cure of
/oubi unlefs he is 123 years of age and in deacon's orders ; could
the plaintiff have taken this donative if he bad not been 23 year»
of age, nor in deacon's or prieil's orders, and had not reaa and
fubicribed the articles ? He certainly could not; and although
there is the word induSHon in the latter provifion in Je3. 3. of
the ig Eliz. yet that ftatute extends to all livings with cure^ as
well donative za prefentative. So ihcjlat* 13 (^ 14 Car* 2« ex-
tends to both forts of livings, to all chapels and places of pub-
lick woi-fliip; it fpeaks oi patrons and donors, it may mean con^
Jcrring^ giving^ collating ^ pre/enting ; fo alfo the following claufcs
in the fiune a£l extend to deans^ prebendaries^ i3c, fome whereolf
are of private donation.

It was objeQed in ar^ment that the a£is required to be dons
by thefe ftatutes are agamft the right of the donor; but there is
no weight in. the objeflion, becaufe the intereft of the donor or
his right of donation is not affeQed thereby, for the ai^s re-
quired to be done by thefe fiatutes only coneern tlie intereft and
good of publick jx>ficy ; as the bifhop has jurifdiQion over the
moral chara6lers of incumbents, fo thefe ftatutes have siven a
check upon their political principles. If it were neceflary for
the court to give judgment upon this firft point or queftidn, the
cafe in 3 Lev. 82. of Carter verfus Pmkney Ihews that a fiipen-
diary pneft or a donative is whhin the ftatutes oi Jimony and of
ionjorknty.

^dt)'. ,

808 MichablmasTebm 13 Gxo. III. I771-

Tbcfctded ^dly. Suppofingan incumbent of a donative church tob«
^fttoa or within the itatutes of the 13 £&*z. and 13 fi? 14 Car. £. and
Sbkhdie obliged to comply with and perform the requifites therem, the
coBrt garc fecond queftion or point upon which the court now give their
ja4gneat judgment is, whether it was not neceflary for the plaintiff to

nave proved upon the trial of tliis caufe that he had conformed to

thofe requifites.

It ma3r.be proper firft to confider the nature of the prefeot
aSion ; it hath been introduced of late years to try quefuonsof
right, as a kind of fifkitious action, and in the prefent cafe it
was brought to try who had a right to nominate to the donutive
church of Chefter Le Street ; whether Mr. TfoUiffe in right of
his wife, or the Crown, or any other perion liad this rijzht ?
There was no faS propofed to be tried relating to the queftion,
whether the plaintiff had performed the requifites in the before*
mentioned ftatutes of Eliz. and Car 2.

We are all of opinion, that in this a£lion it was not neceflaTT
for4he plaintiff to have proved upon the trial of this caufe, that
he had conformed to the requifites before-mentioned and fiated;
we will prefume that he conformed to all thofe requifites, there
having been no proof offered to the contrary ; and although it
may be fajd, t^iat this is obliging the defendant to prove a ne-
gative,, yet the defendant might have eafily brought thefe re-
quifites to be performed into queflion, becauie they are generally
entered in publick regiflers, and if no fuch, with refped to the
plaintiff, are to be found entered in the proper regiften, that
might have induced a fufpicion that he had not performed the
requifites above, and might be fit for a jury to take into con-
fideratipn ; however it appears by the cafe fiated, that the plain-
tiff hath complied with the mofl material requifites, that he was
in prieft's orders, fubfcribed the articles, (3c. : we think the
plaintiff well intitled to this donative. And in fupport of
our opinion the cafe of Monh and Butler above fiated is very
flron^, befides other cafes and opinions that have fince been de-
termined and given upon this point ; there is a cafe in Ctayt&ns
Rep.. Pkas cfAJfize^ fol. 48. 1636. it was a cafe for tithes 00
Jlai. Ed. 6. the party was preffed to prove admiffion, inftitutioa
and induflion ; but ruled that he fhould not be put to do thi.%
and if it is otherwife let the defendant prove it [fays the
book.]

In an ejeSment before Lord Chief Jufticc Wilmoi tried ^

SaHjbury ; a predendary brought an ejeftment to recover an

houfe built upon his prebendsil fite ; the prebendary was called

upon to prove the feveral requifites before-mentioned; the

1 ^ Chief

Michaelmas Tbbm 13 Geo. III. 1772. 36f

Chief Juflice faid " thofe (hall be prefumed upon found principles

It may be neceflary to mention fome cafes that feem to differ
from our opinion in this point, as the cafe of Snow Ltjfu of
Dr. Cratvltf verfus Philips, 1 Sid. 220. in a trial at bar in
eje&ment for the refiory of Agmcndefluim in Com. Bucks, the leflbr
of the plaintiff was required to ]>rove in evidence (after he had
proved his admiffion, inftitution and indufiion) his reading of the
articles and fubfcribing the fame, and his declaration in the church
of his free and full affent and confent to all things contained
in the book of Common Prayer, and this ought to be proved to
be done within the time limited by ihcjiaiule which appoints it.
It is to be obferved upon this cafe, that the expreffion is, he was
required to prove, &c. but it is not faid whether he was required
by the court or the counfel, nor does it appear to have been
argued or debated upon, nor is the cafe 01 monke and Butter in
Roll. Rep. cited there. It is alfo to be obferved that the lame cafe
is reported in 1 Kcb. 720. where nothing is mentioned of this

3ueftion of evidence, fo the matter did not pafs in argument,^—
Q Comb. ao2. Do£lor Ha/hr's cafe in eje&ment ; for his pof-
feflion, he proved his prefentation, inftitution and induElion,
reading the articles, &c. ; it was objefied it fhould be proved he
was in orders. RoU faid. If he is laicus the prefentation is not
void, only voidable, that he was.intitled to pofleffion having efla*
blilhed his temporal title to the thing, and his religious or poli«
tical title Chall be prefumed.

Judgment for the plaintiff iter totam curiam^ and tkef^ei^
delivered to the plaintiff.

HILARY

s6^

HILARY TERM

13 Geo. HI. 1773.

a Black. Rep. Barkcf Widow verfiis Brahanfl and Noi'tvobd. C B.

S66

Trefpafi vf <f HTRfiSPASS fof falfc imprironmciit ; the defendants plca^ieJ
for falfe ^ ihc general iflue not guilty, which was tried at JV^minficr,

ioiprifonment the fittings after Trinity term lafl, before Lord Chief Jufticc
JJJJjft an * ^^ ^^^y* ^'^^^ the- jury found a verdift for the jplaintiff, and gave
attorney (at her 156/. damages againft both, tbc.defendants jointly.

againft his

client [See Parfiitt T.- X«yi. 4iiM pi 34'']') ^^^ ^^' ^^ ^ ^^^ ^^**' ^^^^' clientan itlegtl tfrU of

A^i« idJjt'ufuipJvK egaiBft » defendMiCy and 8a«fei fiich defcadani to be imprifoned thertiifoo*

The Lord Chief Jufticc reported the fubftance of the cVidcncc
given at the trial as follows, viz.

TTiat Jo/eph Aarker, late hufband of the plaintifT, at the time
. of his (leath Tin 1768) was indebted to the defendant Jtnn^
Braham upon oond in thefum of 400/. ; the plaintiff Mrs. Arfer
having obtained letters of adminiftration to her hufband, Mrs.
Braham employed the other defendant Norwood as her attorney
to bring an aflion of debt upon the bond, in the King's Bench,
againft the plaintiff Mrs. Barker as adminiftratrix to her late
hufband, which he accordingly did ; and upon the 31ft day of
January in Hilary term 1769, obtained judgment (by default for
want of a plea] againft her, whereby it was confidered (by the
cburt of B. /i.j.that Braham do recover againft Barker the faid
. debt of 400/. and fo much for clamages (or cofts) to be levied of
the ^oods and chattels which were of tne faid Jofeph Barter at
the time of his death, in the hands of (the then defendant) Mr5.
Barker to be adminiftred, if (he had fo much in her hands to
be adminiftred, and if fhe had not, then the damages (or coils)
only to be levied upon the proper goods and chattels of Mrs-
Barker, Whereupon Norwood the next day, the ift of fV-
2 braarjt

HiLAKY Term 13 Gm, III. 17 73. 36g

hrmry^ fued out ^Jieri facias againft Mrs, Barhr^ and there*
upon the fteriff levied 164/. of the goods and chattels q{ Jofeph
Bi^rktr at the time of hu death m her hands, and returned
that Mrs. Barker Iiad no other goods of his in her bands to b^

adminiHered.

Aftenyards on the lail day oi Hilary term 1769. the 13th of
February^ Norwood fued out a capias ad fahsjaciendum againil
Mrs. ISarker^ (reciting the judgment, the fcrifocias, and the'
return thereof,) for the refidue of the debt and damages, and
deliv€r€d ihtfame to one Janus Arrnftrong a (heriff 's officer, and
gave him orders and dire£lIons to take and arreft Mrs. Barker
iu execution; Arrnftrong ^ accordingly, by virtue of the (heriflFS
warrant upon the capias adjatisfaciendum took Mrs, Barker in
execution on the 15th of March; when (he was committed to
prifon, and there remained a prifoner until the 18th day of No^
vember following, when the coun of King's Bench, upon motion,
fet afide thcx:apzas adjiuisfaciendum^ and ordered Mrs. Barker to
be difcharged out of prilon ; becauie it was not fuffgefted, nor
^id it appear to the court of J?. R. that Mrs. Barker had been
guilty ot a devqftavity and therefore flie (being an adminiftratrix)
bad ^een taken in execution, arid imprifoned contrary to law.

This wa$ the fubftancc of the evidence given by feveral wit<»
Jieffes fgr the plaintiff Mrs. Barker^ at the trial m fupjport of
this aSion of imprifbnment. Thp defendants called no witnefles,
inFiIled the plaintiff had made no cafe, and ou^ht to be nonfuited ;
but the Lord Chief Jfiiflice thought otherwife, the defendants
pot having ple^(»a fpeci^lly, nor juftified themfelves under the
judgment and execution, however he recommended moderatioi^
to the jury in giving damages ;. for there was no evidence of any
con^iracy to opprefs; and he thought it was a mere mifiake of
Mr. -Norwood (who is a young man) in fuiri^ out the ca.fa. an4
caufing the body of Mrs. Barker to be taken in execution there^
upon, without nrft luggeiling or {hewing (he had been guilty of
a devaftavit: and be laid that it was in fome me^fure Mrs.
Barker's own fault that (he was detained in prifon fo long as eight
months; for that if (he or her attorney had applied to the court
of King's Bench, or to anv judge of that court, at his chambers,
(he might have been difcharged out of cullody within a day or
two alter , (he was ^rrcffed, upon laying her cafe properly
before the court, gr a judge; out notwithflanding this com- '
paffionate recomniendation to the jufy in refpcfl to damages,
d'cy £cnind for the plaintiff, and gave her 150/. as aforefaid.

of Michaelmas term hit, my Brother Sayer
n :Il of judgment, infifting that trefpafs an4

$^ foifc

37(J^ H11.ABY Term !3 Geo. III. 1773.

falft imprifanmmt doth not He againft an altoTncy for any
miHake or irregularity in fuing out procefs for his client; but
that if he is guilty of any miflake, negligence, irregularity, or
other mis-feafance or mal-praftice in his office of ah attorney,
whereby his client, or other perfon or perfons, is, or are dam-
pified and injured ; the proper remedy againft him is either in a
furamary way. of eomplaint to the court againft him, or by a

Jpecial aSHon upon the cafe for the wrong and injuty done by
him; and therefore although trefpqfs and fafje iwprifonimi
perhaps, m'ight well lie, in this cafe, againft the defendant
iraha?n alone, (which he did not admit) yet as both Ihe and her
attorney are now fued jointly, and intirc damages given againft
them, if this a3ioh doth not well lie againft them both, the
court will arreft the judgment, becaufe they cannot fever the
damages. Secondly, If the court (hould be of opinion that this
a£^ion of imprifonment well lies againft both the defendants,
the attorney and his client; then my Brother Sayer defiredhc
might have leave to move for a new trial for excelBvencfs of
damages. Upon which the court made a rule to fheif caufe,
and ordered both the matters to be fpoken to, at >he fame time,
upon fliewing caufe.

Serjeant Davy for the plaintiff— /Vr;^, It is objefted that this
a&ion doth not lie againft either of the defendants, but more
cfpeckJly that it. doth not lie againft Mr. Norwood the altome)',
fo judgment ought to be flayed.

And 2dly. If the aSion doth well lie ags^inft both, yet the
damages are cxcel&ve, and therefore a new trial ought to be
granted.

In anfwer to the fir/l matter, it is certain the plaintiff Mrs.
Barier hath been wrongfully imprifoned from the 15th of March
until the 1 8th of November 1 760, contrary to the law of Enghni;
It is as certain that' both the defendants are guilty of, and caufed
that imprifonment ; Braham hy Gavp\oy\ngrJorwoodXo fue forth
the caja. ; and Norwood as a mer^ volunteer, by delivering tKat
writ to the fheriff's officer Armjirong, and ordering him to take
the body of Mrs, Barker in execution and carry her to prifon;
they have both pleaded not gvilty^ and have been both found
guilty; if they had any legal juftification or excufe for what
they have done, they ought to have pleaded it fpecially ; the only
• faft which the jury had to confider on the plea of ytot guitiy
was, whether the defendants imprifoned the plaintiff at all?
and not whether the imprifonment was lawful; that is a matter
befide, and not within the iffue or plea of not guilty, which only
defies the faft of imprifoning the plaintiff's perfon. Whc^ver

imprifons

Hilary Term 1 3 G:eo. lU. l^^i. 3^ i

- hnprifons another (except in fomc cafes under particular (latutes)
muft juftity himfelf by pleading and fliewing fpecially to the
court that the imprifonmcnt was lawful ; j^nd this is a pofitive
rule of law founded upon good reafon t' ^or if it was not fo, a
defendant, in an aflion like this, might. affign various rcafoiis
and caufes of imprifoning a plaintiff whicli he never heard oijor ■
imagined, whereby a plaintiff would be always furprized, and
never be preparedf or . able to meet the defendant at a. trial upon
the nlea of notguiily, on fair and equal terms, with refpewlo
evidence and proofs of fafts ; but it is fufficient to fay that this
i^ a pofitive rule of law; and before thtjlat. 4 S? 5 Ami! (for
pleading ieveral pleas) fuch fpecial plea was confined to pxic
fingle matter or point.

It is. objefted that Iforwood the ^Utorncy ought not to hav«
been joined with his client Brakam; but I ahmer that all the
parties who, in any wife, caufe or procure the trefpafs or im-
prifonment to be done 2Xt principals: Brakam had a judgment ;
Norwoad her attorney carried the writ to the officer, and gave
him orders to take Mrs. Barker's body in execution ; he did fo,
and the tnarfhal of the King's Bench detained her in prifon by
virtue of a commitment thereupon ; Brakam, Norwood^ Arm-
firong^ and the marJhaU are all principals in this trefpafs ; it's
true the officers of a fuperior court may jullify under the writ of
execution and commitment whether the procefs be good axid
lawful or not ; but Brakam and Norwood^ if they would have
juftiiied tl^emfelves, they mufl have fhewn .both the judgment
and ex-ecution to be good and Jawful ; which was impoffible for
them to have done, becaufe there was no dcvajlavit by Mrs. Bar*
ier fuggefled or recorded to liave been committed, aod there-
fore (he, as an adminiflratrix to her hufband, was unlawfully
taken in execution. Or xi Norwood had thought it any legal ex-
cufe that he /Was aSing oitly in his of^ce df an attorney, he
•ought to have pleaded that xMtitr Jpecially; but, with deference
to the court, that plea would not have been of any fervice to
him ; for he a£led as a volunteer in the trefpads, and was prin* •
cipalfy concerned therein ; fo that it would ne contrary to na-
tural juftice to fay that fuch a party (hpuld not be joined in this
a£lion. \ '

8. If the a6Hon be ti^ as agaioft botb the defendants, the
•damages are^not excefHve ; I will confent that the damages ihall
be jfoo/. if my Brother pleafes, and he ihall move for a ne\ir
trial for the ex ceffivenefs thereof if :he thiuks .fit ; the printer*;i
devik were unlawfully imprifoned for a week only, ana.duripg
that time lived well upon beef-fteaks and .poz:^r; and the juT]f
gave tliem 300/. a-piece damages: here the court fasd ihey

a B A coul4

372 Hilary Tekm 13 Geo. IJI. 1778.

could not interfere or meddle with the damages it\ the ^xtk^C
cafe. ' ,

Serjeant Burland for the plaintiff— It is obje£led that trerpafs
vi et arms for falfe imprifonment, doth not he againft either of
the defendants ; but eipecially that it dofh not He againft Mf *
Norwood the attorney.

In apfwer to this ; it never was queftioned, or in (he Icaft
doubted but that, if a perfon fues out and caufes another to be
arrefted and imprifoned under illegal proccfs, trefpafs vietarms
for falfe imprifonmcnt well lies againft the perfon fuing ojit fuch
' illegal procefs : fo that this a£lion certainly well lies againft tl\e
defendant Mrs. Braham.

But it is faid by my Brother Sa^r^ that fuppofrng iTefpafsfor
falfe imprifonnunt might well lie in this cafe againft the defend-
ant Braham alone, yet if it will not lie againft both defendants,
thle court will arreft the judgment, becaufe intirc daraages are
given againft both, which cannot be fevered ; and my Brother
mfifted that this a£lion doth not lie asainft Mr. Norwood, but
that he is only anfwerable in an aaion upon , tlu cafe to his
client for amiftake, mis-feafance or negligence in his profeflion;
or in a (ummary way of complaint to be ihade to the court againft
^im, hy his client, or the perfon. whom he has injured, by his
96ling irregularly or unlawtuUy in bis profeQion.

In anfwer to this ; it appears by your lordibip's reiport of the
evidence given at the trial, that Norwood was the principal aSor
in this cafe, that on the 13th oi February 1760, he fuedoutthe
iWcpi Jieri facias, and was the hand that aehvered it to Arm-
firong the ftieriff *s officer, and was the very perfon who gave
that officer orders and dire3ions to take and arreft Mrs. Barhtt
in execution, which he accordingly did, oh the i^th of Aiarci
following, when ftie was committea to pfifon, and there remaiq-
cd for tjie fp?ice of eight months,

Suppofe Mr, Norwood the attorney, not having fued out any
writ oi fieri fadas at all, had gone to Armjirong the officer, an4
given him orders and dire3ions to arreft Mrs. Barker, at the fuit
of Mrs. Braham, and Armftrong had purfued his \Norwood*s\
orders, and arrefted Mrs. j»ir>i^r,, without any writ, or any other
authority ; there can be no doubt but both Norwood ana Arm-

firong would, in fuch cafe, have been guilty of trefpafs and falfe
impnfonment^ in the prefent cafe Norwood \aA no writ of ca.

fa. agsdnll Mrs. Barker, for an illegal writ is as no writ, it be^

ing void* ,§0 Mr. Norwood, in the prefent cafe, of his own mere

' ' authorityt

H1J.ABY Term 13 Geo. III. 1773. 373

authority, without, any othcri ordered Mrs. Barker to be arreted ;
and I humbly infill, that whether Norwood did this wrong wiU
fully or ignorantly he is anfwerable in this adion ; and more
efpecially as he has pleaded not guilty^ and hatli not attempted to
juftify or excufe what he has done as an attorney ; it muft be
taken that he has a6led without the authority or procefs of the
court, becaufe he has not pleaded it ; he did not plead it, becatife
if he had pleaded it, he mud have fet forth the judgment in his

tlea, and then it would have appeared clearly to the court that .
e had done wrong;

The court cannot take notice of any damage or injury Mrs.
Braham hath fulTered, or may fuftain by the mis-feafance or.
mifconduCl of Mr. Norwood her ^tttorney, that matter not beine
the fubj?£l of this a3ion; and whether Nortuood did this tre^
{lafs as the attorney of Mrs. Brakam or not, is wholly unknown
to the plaintiff Mrs. Barker^ (he only knows that Norwood is a
principal trefpafler; by putting an illegal writ into the hands of
Armflrofig^ and giving him orders t,o arreft and imprifon Mrs.'
Barker the plaintiff.

As to the damages given by the jury I (hall fay nothing, be-
caufe in this cafe they certainly* are the only proper judges
theieof.

Sepeant Sayer for the defendants — I humbly inOft, notwith-
fianding what has been faid by my Brothers, that this a£lion doth .
not lie againft Mr. Norwood for a mere flip or miftake which
he hath committed in a£ling as an attorney for his client; I call it
a mere flip or mifiake, becaufe the court of King's Bench thought
it amounted to nothing more, when th^y fet afide the cafna^ ad
fatisfadendum and difcharged Mrs. Barker out of prifon, without
ordering Mrs. Braham or Mr, Norwood to pay any colls.

If I am right in this point of law, viz. that an a6lion of tref-
pafs xn et amis will not lie againft an attorney for a mere flip or
miftake in his office of .attorney, and it appearing by the evi-
dence reported bv your lordfliip that Norwood aScd merely as
an attorney in tnis cafe, that evidence deftroys the plaintiff's
afiion; and whatever matter deftroys the plaintiff's aaion may
be given in evidence upon the general iffue.

If gentlemen in the profeflion of the law are to be anfwerable
for mere flips or involuntary miftakes^ no wife man would prac-
tice the law ; for liumanum eft errare; and the barrifter ana fer-
jeant at law, as well as the attorney, would be equally liable to
a6lions of this fort for mere flips or miftakes in judgment and

B B 3 V ' opinion ;

374 HiLART Term 13 Geo. in. 177?-

omnion; and 1 know niot, (if this be fo^ whether it may not
dttcQ. fome of your lordfliip's on the bencn.

An attorney and his client are confidered in law as one perfon»
his power is unlimited in the caufe, and his client is abfolutdy
concluded and bound by every a& which he doth in the caufe.
In Carik. 41ft. an attorney m a caufe fubmitted to an award
without the direfiion or confent of his client ; one of the quef-
tions in that* cafe was, whether the .award {hould not be fet
afide> becaufe the attorney fubmitted and confented to it with*
out the direftion or confent of his client ; but the court held, a»
to ikut point, that the client Was bound by the a3s of hii at-
torney. In the cafe of Clifton verfus Grey^ Mich. 31 Geo. 2,
t. R. the court was moved for a new trial becaufe the defen*
dant's attorney negle3ed to appear and make defence at the trial;
but a new trial was refufed ; for they held the client was bound
by the verdid, that the attorney was anfwerable to his client
fpr negligence, and that the attorney is confidered as the
party himfelf. The conne£lion between atttH-ney and client is
considered in law, as nearer than Ma^ between ww^^n and /aw ;
the former being confidered only as one fingle perfon ; the latter»
as two foals in one flefb.

'. It is faid by my Brother Davy^ that Mr. Norwood is to be
confidered in this cafe as a mere volunteer ; but I deny it ; fofr
with deference to the court, every attorney, by his oath,' is
bound to a£k as-an attorney accordinj^ to the beft of his know^
ledge and ability for any of the Kmg*s fub}e£ls by wliom be
- may be retained, in cafe he be not firft reuined on tne contrary
fide; and he is not totally at liberty or a volunteer whether be
will z& as an attorney or not while he continues upon the
roll of attornies; and after a client; has retained an attorney to
fue or .defend for him, be cannot change (fuch) his atttumey
^ without leave ot the court.

My Brothers have not produced one cafe to (hew that an at-
torney in a cafe like this is anfwerable in trefpafs vi et amis;
many ocoafions for bringing aflions like this muft have happcncdt
but as none fuch as this have been brought, I may well (ay this
aQion doth not lie agaitift Mr. Norwoddr and if it doth not*
judgment muft be arretted.

As to damages, if thfe jui'y have miftaken tlie ground thcv
went upon in that matter, they have done wrong in giving fucli
lar^e damases for a mere flip or miilake committed by an at.
torney, without any malice whatever proved ; any judge of A
i2..at his chambers,, would have ordered Mrs. Barker to have

bccQ

HitART Tkrm 13 Gbo. hi. 1773. 37^

been difcharged out of prifon the next day, and lb your lord&ip
told the jury at the trial.

Serjeant Glynn on the fame fide for the defendants — I fabmit«
with deference to the court, that the fa3$ ^iven in evidence at
the trial did not fupport this adion againll Norwood one of tha
defendants ; if fo, the verdid againu both defendants whereby
iiitire damages are given againft them jointly is erroneous.

The a3ion is not maintainable againft an attorney ; I reft my
objedion upon this, viz, that it doth not apppar that Norwood
was 9n aftor as in his own perfon. It is true he fued out the -
capias ad fatisfariendum for his client, and delivered it to Arm^-
firong the jheriff 's officer wfeo executed it, and 1 own that in
trefpafs all are principals ; but Norwood' % ads as attorney are the,
ads of his client in conOderation of law; the orders or diredions
he gave to Armflrong to arreft and take the plaintiff in execution,
were the orders and direclions of the party his client, the iheriff
or the court.

It is objeded that Norwood fued out the writ ; I anfwer, that
(ad doth not make him liable in an adipn of trefpafs vi et ar*
mis; but only in 9n adion of trefpafs upon the cafe: ^u A in
dehvering the writ to Armftrong he only a61ed as, a medium or
^inftrument by the diredion of his. client or the command of the
court ; his ad may be compared to the ad of a letter-carrier or
meifenger from the poft-oifice, who delivers a letter dirfsded tq
J. S, ; if what is contained in the* letter 4>e a trefpafs, cert^nly
the meifenger is not liable in trefpafs; his conveying the com-
mand of the principal is nothing, be muft do more to become 4
trcfpaffer.

So, Norwood being a mere officer, aded rightly in accepting 9 ^

retainer, and is not a mere volunteer; having accepted a retafner,
the law ads upon him, and he then becomes bound to do all
ads in the caufe for his client, to whom only he is anfwerablp
for negligence or mis^feafance in an aQion upon the cafe: an4
this follows from the nature of an attorney's ofEce, bi$ duty to
Ihe eouFt and his client ; I fay, with great deference to the court,
when a man a£l& as an attorney, he il pnly anfv^^^ble to his
client for fucb confequences ef his ads as are injurious M> bi$
client. In no c^fe is an attorney anfweral^le for a ;na/ill found-
ed a£iion, the client only fhall be amer<:ed for falfe clamor;
amercements and fines always fall on the client, not qn lus au
torpey.

Ajs tQ the damagea ; I .cl^nfefs the^ipe^ftiring thereof is tl^e prq-
- P^r province of the jury ; but in this cafe the jury fecm to have

B B 4 mif*

i7tf Hilary Term 13 Gbo. III. 1/73.

miiapprehended your lordfhip, and have been mifled; forJti*
plain there was a time when the imprifoninent became the volon-
tary impxifonment of the plaijitiflF herfelf *

Th?« argo- Lord Chief Juftice De Grey — ^This argument has prodnccd

M^"hT*° * queftion of great confequence, fo let the cafe ftand over for a

term U&^ ^^'^ ^y* ^^ ^^ confidered j the cafe did accordingly fland over

until the latter end of laft Mckaelmas term, and was then fur.

ther adjourned until this term, when the judgment of the coun

was given for the plaintiff to the following effecl

Lord Chief Juftice De Grey — ^Afiet having ftatcd the cafcy and
the evidence given for the plaintiff at the trial of this caufe, as
reported abtjve, proceeded to give the judgment of the whole
court for the plaintiSr

The quefiion is, Whether an aftion of trefpafs vi el anais
can be maintained againfl Mr. Norwood the attorney as well as
againft Mrs. Braham his client, for wrongfully and illegally
. caufing (;he nqw plaintiff Mrs. Barker to be imprifoned; for if
fuch aclion cannot be maintained againft him, as well as ag^inll
his client Braham^ judgment ought tobe arrefted, becaufe 150/.
intire damages are given againft them both, which cannot befe-
vered by the courts

But we are all of opinioii that trefpafs vi ct armis well lies
againft both the defcrrdants. It is certain the plaintiCF hath re-
ceived great injury in her perfon and liberty, m:caufe fhe hath
been imprifoned by and 6nder colour of a capias ad fatisfacien"
dum illegally taken out againft her, which is the fame thing as
if fuch writ had never been taken out at all. A man had a
judgment, and execution executed; and afterwards the judg-
ment was fet afide for being unduly obtained and reftitution
awarded, and afterwards the defendant brought trefpafs againft
the plaintiff in the firft aftion for taking the goods, and it was
adjudged that it well laid againft the party, for by Ait vacating
of the judgment',, it is as ir it had never been^ and not like a
judgment reverfed by error, fo is i Lev* 95. Turner verfus ft/-
gate. T. Ftasm. 73. 5. C, Cartk. 274. Salk. 674. 12 Mod,
178. 2 Wiybn 385. 1 Strd. 509. T. Jwnes 215 — ^A flieriff, or
his officers, or any a3ing under his or their authority, may
juftifjr themfelves by pleading the writ only, becaufe ihat is
fufficient for their excufe, although there be no judgment or
record to fnpport or warrant fuch writ \ but if » ftranger inter-
pofes and fets the (heriff to do an execution, he rairft take care
to find a .record that \t^arrants the writ, and muft plead it; f»
fnuft the party himfelf at Vbofe ifuit fifch an execution is madr .

Hilary Tebm 13 Gfco. III. 1773. i7l

No trefpafs can be excufed but what is inevitable ; fee tfie cafe of
Parfons verfus Lloyd i adjudged in the laft term ante 341.

Mr. Norwood has pleaded not guilty ; he could not jullity by
a fpecial plea, becaufe there is no record to warrant a ca^as ad
falufadendum againil ^Axz. Barker \ nor could he have juilified
bimfelf by pleading that he ignorantly fued out the writ, for
ignorance is no excufe; but Mr. Norwood*^ defence is, that
whatever remedy there is againft hinii it is not trefpafs vi U
Armis.

It is true there may be circumfiances which will excufe in
trefpafs vi ei armis^ as where a man goes peaceably into the houfe
of another to demand a juft debt ; or goes to make a vifit to
another where he is not forbidden to go; but in the prefent cafe,
the a£ls done by Mr. Norwood^ cannot be qualified, excufed or
juftified iji any way whatfocver, nd man can fay that Mrs. Barker
has not been illegally imprifoned, or that Mr. Norwood Was not
an aSor in caufing hich imprifonment.

But it is faid, here is no injury done by Mr. Norwood the at-
torney; for he a3ing as fuch« is only a fervant to his client ;
and by fuing out the ca. fa. and delivering it to Armflf^ong the
flieriff's officer, and ordering him to take and arreft Mrs. Barker
thereupon, he only a£ied as a medium or inftrument by the
diredion of his client, or the command of the court ; in anfwer
to this all the books fay, that all are principals in trefpafs.
Co. Lit. 57. a. 2 Iffft. 103. procuring, commanding, aiding or
affiAing makes one a treipaifer. Bro, Treftoafs, pi. 148, 232,

307. i Salk. 409* A fervant keeping the key of a room

Knowing that a man is imprifoned therein is a trefpaifer ; one
affenting to a trefpafs after it is done is a trefpaifer. Bro. Trefpafs^
pi. 133. 256, 265. SI Hawk. PL Coron. 312.

To apply what is faid and laid down in the books upon this
fubjcft to the prefent cafe ; they fay, whoever procures, com-
mands, aflifia, affents, &c. is atrefpafler; here, the client com-
mands the attorney, the attorney aaually commands the flieriff's
officer ; the real commander is the attorney, the nominal com-
mands is the plaintiff in the a£iion» fo attorney and client are
both principals.

It is clear that a writ of deceit will lie againft an attorney for Cra. jt&
aQing wrongfully in his charafier of an attorney to the damage ^94* pi* 7-
of another. F. N. B. 4/^ edit. 2 1 7. Writ o/Dtcat.

Glanvil in his eleventh book throughout, treats of appointing
attomies in the places of their clients, hd lucrandum vdperden^

dum

379 tbhAzr Tew 13 G^o.-IH. 1773.

dum, in pleas defending in courts ^jtffiice. ^* Notandum praieriat
*' {fay5 the book ti. caf. i/of. 88.) quod poteft qws in cuna
•* domini Rigis ponere locofuo aliumad lucrandum vel perdenJum
«< pro ea etiam in placitoquod in a&a curia habet, Et pracipidur
*' quod idem in curia ipja red^tur loco alteriu^ per kde breve,
*' [cap, 2.) Rex vicecomitif vel alio prtffidenti curia U&usjaluim;
♦• Jcias quod N.po/uit coram me veljufiidanismeis iL locofuo di
*-* lucrandum vel perdendum pro eo in placito iUo quodefl inter eum
** et B. de una carucata terra in ilia villa, rid de apaalifua u
'* nomnata ; et ideo tifn pracipio quod pradi8um R. loco ip^us
*' N. in placito illo r^cifiias ad lucrandum vel terdendwm pro co.

The' aiicient books of Britton auad BraUon alfo treat of at*
tornies ; and various ftatutes, rules, and regulations, have been
made touching attorniea from ancient time down to the prefent,
not neceflary to he particularly taken notice of, but jt is re«
markable that in the reign of Hen. 4^ (nearly 40a y^ars ago) at«
tornies were hot To learned in the laws as Ijpfdre that time, for
there is a ftatute of the 4 Hen. 4. cap, 18. iHtitled, the funiO^ment
of an attorney found in default^ which fays, •* Th^t tar fundry
•* damans and mifchiefs that hav^ eniued before thb time to
♦* divers perfons of the realm, by a great number of attornici
*' ignorant and not learned in tie law, as they were wont ia h
** before tJiis time :• It is ordained and ellablifhed, that all tfao
•* attorijies (hall be* examined by the juftices,' and by their dif-
" cretions their names (hall be put in the roll, and th^y that be
*^ good and virtuous, and df a good fame, fhalL be received and
" Iworn well and truly to ferve in their oflkes, &c. i^c

An attorney has authority ty his being conftitiucd atlomcjr
to remit damages found by a jury. 1 Sali. 89. his client 0
bound by his aas.

If land was loft by default, by negleS of the attorney, the
only remedy the party had was againit his attorney in a writ of
deceit. 17 Ed. j. 12. and many other books. .

An attorney is protefted from maintenance ; for a writ of
maintenance doth not lie againft him. 34 Ben* 6. 26. but
maintenance may lie againft his client.

An^a£Uon was brought againft four men, viz. two attomics
and two folicitor^ for being attojtiies and foUcitors io a caufc
againft the plaintiff in an inferior court falfo et mhlitiofe, knowing
that there was no caufe of aSion againft him : and aifo for that
they fved the plaintiff ia aaothfir courti koowli^g that he w

an

HnJUiY Tbsh 13 Gso. IIL 1773. 379

an attorney of the Common Pleas, and privileged there. Ptr toiam
cwriam^ tnere is no caufe of a£lbn. For put the cafe as flrong
as you will ; fnppofe one be Tetained as an attorney to fuc for a
debt, which he Knows to be releafed, and that he himfelf were a
witnefs to the releafe ; yet the court held that (he aflion would
lU)t lie ; for that what Ke does \% only as fervant to another, and
, in the way of his calling and profeixion. And for fuing an at- *
tpimey in an inferior court ; that (they faid) was no caufe of
afiion.: for who knows whether he will infifl upon his privi-
lege or not? And if be does, he may plead it and have it aU
towed. 1 Moi^ 209, siOw

Gihfon brought an aAion upon the cafe againft Mudford^ for
caafing him to be taken upon a capias ; the defendant faid that
J. S. recovered in a certam a3ion againft the plaintiff, and that
he was the lawful attorney of J. S, and took out a capias upoR
the judgment, &c. upon which it was demurred ; it was moved
that the plea was not good, becaufe it doth not (hew by what
warrant he fued out tKe capias. Per Haughton^ the pl^ is that
he was hU lawful attorney, cr^o well enough. Per Doddridge^
an attorney need not enter his warrant, but it is fuflScient to
file it, and that is the ufage. 2d point. The plea fays, that
J. S. had judgment againft the plaintiff, but it doth not (ay prou$
paUtftr recordum^ ijc. and therefore it was cbjecled it is not
good ; but^ G. Croke it fccras good, for it is pleaded that there
was a record Qftl^e judgment at the time of uking out the capias ,
which is now revcrfed, and therefore we cannot ^\cz.i prout per
rtcordum^ lb it feems well enough without pleading ^r^tf/j^^r
Tuordum^ quod fuit conceffum per curiam. Croke ^nd Haughton
thought that if the attorney procurer an erroneous judgment for
his client, the other cannot have an action. upon the cafe againft
him for it, unlefs he hath procured it by pradice. t Roll. Rap.
408. Gif?Jbn verfus Mudferd. Trin. t6 Jac. Many other book^
rBssj)it, feen touching this kind of injury, and wherein damages
are recoverable by the common law, as F. N. B. writ of Dijceit,
98 & 99 Comb. 2 Rro. tii. Attorney, pi. j%. Huti. tug.Jlai. .
tfe/lm. I. cap. 29. 2 Infi. 213, 214,' &15, &c. &c. &c.

Upon the whole, Norwood in this cafe fued out the capias-,
delivered it to the oAcer to be. executed, and Mrs. Barker %\ic
now plaintiff has been injured by falfe imprifonment, for which
the law gives this a3ion, in which all are principals ; upon thift
ground we are all of opinion that judgment muft be entered for
the plaintiff a^inft both Norzoooatht real.a&or, and his client
Mrs Braham Uie nominal a8or.

Judgment for pbintiff) -per toiam curiam. - -

CooU

^

^

N

380 Hilary Term 13 Geo. IIL I773i

•Br^ckRcp* Cooke widow, adminiftratrix, verfiis Colcraft.

[Onacotre. MddUfex, TfTILLUM COLCRAFT, hie oi Go/wflljrai
**rfid«^bn (^° ^'^^) ^" ^*^^ <iount y of MiddUJix, Dyer^ was fummoncd

^1 wVJki^ to anf'.vcr /(«« Ci?:?^^ adminiftratrix of all and fingular

payment CD A. tlic goods and chattels, rights and credits, which vftte ol Wmam
«uioit"c ^^^^ ^^^ ^^^ huiband deceafed at the time of his death, who
for*'l*'t«m*' died inteftate in a plea that he render to her the i^Mi Ann 300/.
cett-ln) A. of lawful money of Great Britain, which he unjuftly detains
fcin.fdf (hall f^Q^ j^g^^ £v?^ . ^jj whereupon the faid AnH by J^/^A Aflw her
J^rii'^'u * attorney fays, that the faid mlliam Colcraft on the 7th day of
ludr, the November 1761, at JVeJlminJler in the faid county oi Middtejix,
eiiccutoTt of jjy IjJj certain writing obligatory, fealed with his feal, became
^und tlTab. l^eia and firmly bound to the faid }Filliam Cooke in his life-time
ftain ffoni f x- in the faid fum of 300/. of good and lawful mpney of Great
eiciringit.] Britain, to be paid to the [dxalVUliam Cooke, or his certain at-
Thii record ^orncy, executors, adminiilrators or afligns, when he the faid
is of Michael- jyHSamColf raft (hould be thereunto atterwardsrequefted; ncvcr-
■w»tcrm, thelefs the faid William Colcraft (although often requefted) hath
E*i^4V& not paid the faid fum of money, or any part thereof, to the faid
478. WilUam Cooke in his life-time, or to the . faid Ann fince the

death of the faid William Cooke (to which faid Anni fince the
k^iT^<ii. ^^*^*^ o'* the faid miliam Cooke (to wit) on the 12th day of M
in the year of our Lord 1769, (to wit) at Wejlminjler aforcfaid,
in the faid county of Middlejex, adminiftration ofall and fingu-
lar the goods and chattels, rights and credits of the faid Willtam
Cooked ?x\he time of his death, by Frederick by Divine Providence
lord Archbifhop of Canterbury, primate of all England and me-
tropolitan, was committed ;) but he the faid Willtam Colcrajt to
I piy tin; fame hath Kitherto altogether refufed, and ftill doth rc-
iule to pay the fame to the faid Ann^ to the damage of the faiJ
Ann of 20/. and therefore fhe brings this fuit, &c- And the
faid Ann brings here into court, as well the writing obligatory
aforefaid, which tcftifies the debt in form aforefaid, the date
whereof is the day and year in that behs^lf above-mentioned ;
as alfo the letters of adminiftration aforcfaid, to her the (aid Ann
as aforefaid granted, which teftify tile granting of the adminiftra-
tion aforefaid to the faid Ann in form aforefaid, the date whereof
is the day and year in that behalf above-mentioned, £?r.

iftPleii*

And the faid William Colcraft hy Philip Carter his attorney
^^ifiS^ comes and defends the wrong and injury when, fi?c. and laith,
that the faid writing obligatory is not his deed, in manner and
form as the faid Ann hath aboved thereof complained againft hini,
and of this he puts himfelf upon the country, and the (aid Ann

dodi

Hilary Term 18 Geo. III. 1773. 3Si

doth fo Hkcwife. And for further plea in this behalf, he the
fald William Cooke by leave of the court here for this purpofc firft
had and obtained, according to the form of the ftatiite in fuch
cafe made and provided, craves oyer of the faid writing obli- ^
gatory, and it is read to him, l^c> he alfo craves oyer of the con- id Pi«
dition of the faid writing obligatory, and it is read to him. in ^J**!^* 'T^
thefe words, (to wit) The condition of this pbligation is fiicli, dition,*^<fc
that if the above-bounden William Colcraft^ his heirs, executors »» to pay to
or admiiiiftrators, fhali and do well and truly pay or caufe to be JYn>-C<»Jte,
paid pnto the aboye-nained William Cooke^'hh executors, ad- t^lHt^T^^
miniftrators orafligns, the full fum of 8s. of ffood and lawful wcekdyrinf
money of Great Britain, clear of all taxes and deduflions what- jj!"'*^","'*
foever, weekly and every week during the natural lives of the tid't£'f»lr-
above-named William Cooke and Ann his wife, and the life of yjvor.
the furviyor of them, the firll payment of the faid weekly fum
of 8/. to begin and be made on Monday the 23d day of Aovan*
her inftant, and the like fum or weekly payment of 8j. on eveiy
Monday following during the lives of the faid William'Cooie, and
Ann his wife, and the life of the furvivor of them» in purfuance
and perfomii^pce of certain articles of agreement bearing equal
date herewith, and made or mentioned to be made between the
above-named. William Cooke of the one part, and the above-
bounden William Cokrajt of the other part ; and alfo if, the faid And fnr ti«e
William Colcraft his heirs, executors or adminiftrators, Ihall and rr^-rm»ncc
do well and truly obey, abide^ perform, fulfil and keep» all and Tgreemfiic *
every the covenants, claujfcs^ articles and agreements, mentioned which arr .
and contained in the faid article^ of agreement in all things, ac- •^^^^^fi**-
cording to the true intent and i^eaning of the faid articles of
agreeipcnt, then this obligation to be void, or elfe to remain in
full force,: he alfo craves oyer of the f4id articles of agreement
in the faid condition of tnc aforefaid vf ritipg pbligatory men-
tioned, and t)iey are read to him in thefe wordis, (to wit) Articles
of agreement indented, made, concluded and agreed upon this
7th day of November,, in the fecond year of the reign of pur So-
vereign Lord Gegr^e the third, by the grace of God, of Great
Britain^ France and Ireland, King, defender of the faith, £*?< . and
in the year of our i.ord 1761, between William CoQke of the
parifli oi Saint George, Hanover -fquare, in the county of MidcUe^
f^x, ftationer and news-man of the one part, and Wnliajn Colcraft

of Gofwelljlreet in the parifti of Saint Alder/gate, in the

faid county of Middlefpf, P^^^^ ^^ ^^^ oiki^x part ; whereas the
«id William Cooke is intitfed according to the agreements and ^
regulations made by the proprietors of a certain news-paper
called the D.aily Advertifer, and according to the cuftom of news-
wen tq have and receive daily of the faid proprietors 30 copies
ol the firil impreflTiori of the faid paper, and the faid William
i-olcraft bath agreed that the faid William Cooke Iball aflign his

382 ^ Hilary Term 13 Geo. III. 1773.

faid right an<! title in and to the faid go copies of the firft ift.
predion of the feid paper, and all other his bufinefs as a news-
man unto the faid William Colcraft^ and t)ie faid WiUfamCoicrrft
has a^ecd, in confideration thereof, to pay the faid IVilliamCom
the film of ^j^ weekly and ever}' week, during the joint Kves of
the faid PHHiam Caoke and Ann his wife, and the life of tljc fur-
viver of them. ' Now thefe prefent articles witnefs, that the faid
William Cookey for the confiderations aforcfaid, bath affigncd,
transferred and fet oyer, and by thefe prefcnts doth affign, trans-
fer and fet over unto the faid William Colcrafi his executors and
adniiniilrators, all his the faid William Cooked riglit, title and
intereft in and to the faid 30 copies of the faid paper called the
Daily Adverti/er of iheUr ft impreflion, as foon as the fame BbII be
publiflied, and all his the faid William Cookers bufinefs as a news-
man, fubjeft neverthelefs to theprovifoand agreement herein aftfr
mentioned. And the faid Wilham Cooke doth hereby for hixnfelf,
his executors and adminiftrators, covenant, promiie atid ajjrccto
and with the faid William Colcrafi, his executors, adminiftrators
and afligns in manner following, (that is to fay) that he the faid
William Cooke, his executors and admitiifbators, fliall arid will
from' time to time and at all times hereafref, fo long as the faid

Eaper fiiall be publiflied, procure the faid Wilfiani Colcrafi to '
ave and receive daily and every day of and from the pro-
prictors of the faid paper, ^o copies of the faid paper called the
Daily Adv^rtijer, of the firft impreffion of the laid paper early
every morning as foon as the fame (hall be publiflied ; anJalJo
ihat he the /aid WiMium Cooke JJmll not, at any time kereefUT,
vend or fell any news-papers, nor in any wife deal as a netifs-man
in Jelling ^ews^papers, -magazines or otner periodical papers wkck
are generally deemed to belong to the hnfmejs of a news-man^ except
fnch magazines or other periodical papers as the faid WiSim
Cooke fliall Tell for the fole benefit 01 the faid William Cdcrofi,
his executors, adminiftrators and afligns; and further, that he
the faid William Cooke fhall and will ufe his utmoft endeavows
to procure for the faid William Colcrafi all his the faid Wilham
Cooke's cuftomcrs in the bufinefs of a news-man. And the faid
IVilliamColcraft in confideration of the premifes doth for himfclf,
his heirs, executors and adminiftrators, . covenant, promife and
a^ee to and with the faid William Cooke; his executors, admi-
niftrators and afligns, that he the (aid William Ccicrdft, hishcin,
executors and adminiftfafors, fliall and ^ill well and truly pay
or caufe to be paid unto the faid William Cooke, his cxecuton,
adminiftrators and affigns, weekly and every week during the
natural lives of the faid William Looke and Ann his wife, and the
, life of the furvivor of them, the weekly fum of '8j. of lawful
money of Great Britain, clear of all taxes and dedu^ons what-
foever ; the firft payment of the faid weekly fuoi of €j. to be-
gin

Hi^abyTebm 13 Gbo. ni. 1773. MS

gin and to be made <m Mon^y the tqd of November infiant, and
the like fum or weekly payment cfSs. on every Monday follow*
2Qg, during the lives oi.t^ faid IViMiam Cooke and Ann his wife
and the life of the furvivor of them ; and alfo that lie the faid .
William Colcrafi ihall not, daring his natural life, vend or deal
in fiationary ware, books or pamphlets, except magazines and
periodical pamphlets. Which are iifually efteemed the buiinefs of
a news-man. Provided always, and thefe prefents are upon this
condition, and it is hereby declared and agreed to be the true
intent and meaning of tliefe prefents, and of the parties here-
unto, that if defauh fl»ll happen to be made in the faid weekly
payments or any of them, io that there (hall 1>e at any time due
to the faid William Caoie^ his executors, adminiftrators or afligns^
four pounds or upwards on account,^ the non-pQ)iBient thereof,
that then and in fuch cafe, the afiignmient hereby made of the
faid 30 copies of the (aid firfi impreflion of the laid Daily Ad"
verUftr (hall be void ; and the faid William Coake^ his executors,
adminiftrators or afTigns ftall be at liberty thenceforth to receive
the fame from the proprietors of the faid paper, and to difpofe
of his right thereto, and to follow the bufmefs of a news-man
as if thrfe prefents had not been made, any tiung herein ton-
tained to the contrary thereof in any vnk notwithftanding.
Provided alfo, and it is further declared and agreed to be the
true intent and meaning of thefe prefents and of the parties here-
unto, that in cafe fuch default ihall be made in the faid weekly
Eayinents as aforefaid, and the faid William Cooke feall re-aifume
is right to the faidj^o copies and the bufmefs of a news-man, the
faid WiUiam Colcrajt^ his heirs, executors or adminiftrators (haH '
continue to pay the faid weekly ftmi to the i^A William Cooke^ his
executors, adminiftrators or a(Egns, during the lives of the (aid
'William Cooke and Ann his wife, and the life of the furvivor of
them, in the iame manner as if the faid William Cooke was to con-
tinue a^id enjoy the faid 30 copies of the faid paper of the firft
impreflion and the faid WtlUam Cooke was to continue to be de-
barred from exercifing the bufmefs of a news-man. In wimefe
Whereof the parties firft above-named have hereunto let their -
hands and feals the day and year firft above-written ; which Whereapo«
being read and heard, the faid William Colcrafi faith, that the ^[^^^"'_ '
faid Ann ought not to have her aforefaid a£lion thereof againft ^nt'JT^e
him, becauie he faith that he the faid William Colcrafi paid and 81. per wecl^
caufed to be paid unto the faid ft^illiam Cooke always during the JJf^*"?!?^^
life-time of the faid William Cooke^ Veckly and every week, and ©r AebooC
froni and aftbr his death until the 16th day of ^uly in the year lAdtbcar*
1770, unto the faid Ann^ weekly and every week, toe weekly fiim ^*'** *^
of &f. of lawful money of Great Britain^ clear of all taxes and *»"*■""
dedufiions whatfoever, the firft payment whereof was began and
made on Monday' tlm s^^d of November in the year of ^our Lord

884 Hilary Term 13 Geo. III. 1778.

1761, in the faid articles mentioned according to the tenor, truo
intent and meaning of the conditions of the faid writing obli-
'l^atory and the faid articles ; and that he the faid William Colcrafi
hath not at any time, fince the making the faid writjng obli-

fatory and the faid articles, vended or dealt in fiationary wares,
ooks or pamphlets, except magazines and periodical pamphlets,
which are ufually deemed tlie bufinefs of a news-man ; but the
faid IViUiam Colcraft further faith, that before and on the faid
16th day of July in the year of our Lord 1770, and from thence
^ hitherto (during all which time the faid news-paper called the

Dail^ AdvtTtiJtr hath been publilhed) ihe the laid Ann as ad-
miniflratrix of the goods and chattels, rights and credits of the
faid William Cooke hath negle3ed and re;fufed (although often re-
quelled) to procure the faid William Colcrafi or his ailigns, to
have and receive daily and ever)' day, of and from the proprie-
tors of the faid paper, 30 copies of the faid paper caJlecf the
Daily Advertifcr 01 thk firft impreffion of the faid oaper early
every morning as foon as the fame was publifhed, out therein
wholly failed and made default, and he the faid William Cokr^i
had not, ner had his afligns or aflignees during all that time, or
during any part thereof by the procurement of the faid Ann or
otherwife, 30 copies of the faid paper of the 6rft impreffion of
the faid paper, early every morning as foon as the fame was pub*
lifhed, contrary to the tenor and effe£l of the faid articles,
whereby the faid William Colcraft loft and was deprived of the
benefit of the fale of the faid paper, which ought according to
^he tenor of the articles aforefaid to have accrued to him (to wit)
at Wejlmin/ler aforefaid ; and thi^ he the faid William Colcraft is
ready to verify: wherefore he prays judgment if the faid-^««
ought to have her aforefaid aaion thereof againft him,. Qc.
SdPU^ And for further plea in this behalf, he the f^id William Colcraft
by like leave of the court^for this purpofe firft had and 00-
"^ A* '*H " Gained according to the form of the ftatute in fuch cafe made and
Httle vmL provided faith, that the faid Ann ought npt to havp her afore-
tip9. faid a£lion thereof againfi him ; becaufe he faith, that he the faid

William Colcraft paid and caufed to be paid to the faid Wilbam
Cooicy always, during the life-time of the faid' IVillia^ Cooke,
weekly and eveiy week, and from and ^fter his death until the
16th aay of July in the year 1770, unto the faid Ann, weekly
and every week the weekly fura of 8i. of lawful money d Great
Britain^ clear of all taxes and deduflions whatfoevei*, the firft
payment whereof was begun and made on Monday the 23d day
of November^ in the year of our Lord 1761, in the faid articles
mentioned, according to the tenor, true intent and meaning of
the condition of the laid writing obligatory and of the faid ar*
tides, and that he the faid William Colcraft hath not at any
lime fiace th?J making qf thp fz^id v^riting^ obligatory, ^d.fhp

.laid

HiLaeV TEui 13 Geo. in. 1773. d9d

faid articles vended or dealt in flationaiy ware, books of
)>amphlets (except magazines and periodical pamphlets which
are ufually deemed the bufinefs of a news-man) but the faid Botd«fana«
fyHiltam Colcrafi further faith, thaf fince the death of the faid j^'/^^'
H^tUiam Cooke (to wit) before and on the faid i6th day of Julv^ piSntiff hith
in the year of our Lord 1770, and from thence hitherto, ihethe iione fome
faid Ann hath vended fold and dealt in magazines and other pe^ ^*^*?'i?*^
riodical pamphlets^ which are generally deemed to belong to tht^^^^^\f
bufinefs of a news-man^ and which were not^ nor were^ nor was agreemeiit* -
any or either of them fold or dealt in or vended by her theJaidKxin^
for thefole benefit of him the faid William Colcraft, orhis affigns
or affiffnee^ or in any manner for the benefit of him or them^ any
or either of them (to wit J at Weftminfter eforyaid^ contrary to tne
tenor and effeS of the faid articles ^ whereby the faid fTilliani
Colcraft loil and was deprived of the benefit of the fale of the
faid magazines and other periodical pamphlets, fp by her the faid
jinn fold as aforefaid, and which ought accordingly to the tenor
of the articles aforefaid to have accrued unto him (to wit) at
Weflminfler aforefaid ; and this he the laid William Colcraft is
ready tc| verify : wherefore he prays judgment if the faid Ann
ought to have her aforefaid aflion thereof againft him, &c,

Wmm Kempt*

And the faid Ann as to the faid plea of the faid WUliam by Keplio^
him fecondly above pleaded fays, that Ihe by reafon of any thing to thefecoo^
therein cdntained, ought not to be barred irom having or main- ^^^^^^^
taining her aforefaid aaion thereof againft him the faid William thecogntiy*
CoUryl^ becaufe protefting that the faid William Colcraft did
not pay or caufe to be paid unto the faid William Cooke alwayi
during the life-time of the .faid William tW^, weekly and every
week, and from and after his death until the 16th day oi July
1770, unto the faidwf/i», weekly and every week, the weekly fura
of &r. of lawful money of Great Britain^ clear of all taxes and
dedu£lions whatfoever, in manner and form as the faid William
hath above in his faid. fecond plea alleged ; yet for a .'repli^i
cation in this behalf the faid Ann fays, that the faid William
Colcraft has had and received daily and every day, of and front
the proprietors of the faid paper, 30 cofiies or the faid paper
called the Daily Advertifer^ of the firft impreffion of the laid*
paper, early every morning as Toon as the fame was publilhed
by the procurement of the faid Ann^ according to the tenor and
cffd% of the faid articles; and this {he prays may be inquired
of by the country.

And the faid Ann lays, that flie by reafon of any thing in the muItg-oJl
faid plea of the faid William by him thirdly above in pleading miiy ro cIm
alleged, ought not to be barred from having or maintaining ^j.'^ ^^'^

Vol. III. c Q terpi*^foffi»«M

386

Defen<Iant
joint tflfoe to
the rrptica-
tion to the
(stood plea>

and joints in
demurrer as
tothe third
plea.

HitABY Tebm 13 6sd. IIL 1773.

her aforefaid afiion thereof againft htm the faid WiBamCdcrtfU
becaufe ihe fays that the plea afcMefaid^ and the matter therein
contained, are not fufficient in law to bar the (aid Ann from
having or maintainhig her aforefaid a£lion thereof againft the faid
Wilham^ to which faid plea the faid Ann is under no neceffity,
nor is ihe in any wife bound by the law of the land to anfwer;
and this (he is jready to verify : wherefore for want of a fufficient
plea -in this behalf the faid Ann prays judgment and her debt,
together with her damages by occafton of the detaining that debt»
tone adjudged to her, &c.

Thomas Waiier.

And the faid William as to the faid plea of the faid Annhj
her above pleaded, in reply to the faid plea of the faid Wilbam
by him fecondly above pleaded, and whereof the faid Ann hath
put herfeif upon the country, he the faid William doth the fike,
&c. And the faid Wiltiam inafmuch as he in his faid plea by him
thirdly above in pleading hath alleged fufficient matter in law
to bar the faid Ann from having her aforefaid a£lion tliereof
againft him, which he the faid JrtlHam is ready to verify, and
which faid matter the faid Ann doth not deny, nor in any man-
ner anfwer the fame, but hath altogether reiufed to admit the
verification thereof, he the faid William as before prays judgment,
and that the faid'v^;i may be barred from having her aforefaid
aflion thereof againft him, bfc,

William Kempe.

In this term, the demurrer upon the third plea was argued
by Serjeant Waticr for the plaintiff, and Serjeant Kcmpc for the
defendant.

Serjeant Walier-^Tht third plea is no legal defence to thii
aflion, it is not within the terms of the agreement ; the covenant
is in thefe words, viz. " That he the faid Wiltiam Coote fliall
•* not, at any time hereafter, vend or fell any news-papers, nor
^ in any wile deal as a news-man in felling news-papers, ma-
** gazines or other periodical papers, which are generally deemed
^ to belong to the bufmefs of a news-man, except fuch ma-
** gazines or other periodical papers as the (aid William Cook
•« fliall fell for the fole benefit of the faid William Colcrt^U hi*

•* executors, adminiftrators and afligns." ^This covenant only

extends to William Cooke himfelf, not to his reprefentative, it is
a mere perfonal covenant, and binds no body but himfelf ; fo
tliat the allegation in the third plea by the defendant, wherein
he fays that after the death of the faid William Cooke, ihe the faid
Ann [who is his adminiftrator] hath vended, fold and dealt in
magaziaes and other periodical pamphlets, which aie^ genexaliy

deemed

Hizju&Y TsiEiM 13 Geo. Ill* 1773. S87

deemed to belong to the bufinefs of a news-man, &c. is nuga«
tory,^ and no anlwer to the plaintiff's declaration.

But ftippofing there had been a covenant binding upon the
reprefentative of fViUiam Cooke^ it could not have been pleaded
in bar at this cafe, for damages in an a6lion of covenant are un-
certain, and in the breaft of a jury ; fo *tis impoflible to plead
an uncertain covenant (as damages^ in bar of another covenant,
as u>pears by 7 Rtp. 10. b^ Ughtrea's cafe, which cites 48 Ed. 3.
3 £7 4. for good laws, " where it appears that indentures were
^* made between Sir Rafe Poole^ Knt. of the one part, and Sif
•• Richard Tolcefler of the other part, hy which Sir FU^ cove-
** nanted with Sir Richard to lerve him with three Efquires
" of arms in the war of France^ and^ir Richard covenants for
'* it to pay him forty-two marks, in this cafe each party hath
** equal remedy." If the prefent cafe had reiled upon a con«
dition precedent to have been performed by IVilliam Cooke ox his
rejprefentative, it might perhaps have required another confider-
ation, as appears by U^ktred't cafe, 7 Red. 10, 11. where divers
points touching conditions ^r^r^n/ zna/ubjiquent^ and cove-
nants are laid down and fettled.

Serjeant Kempe for the defendants — ^This cafe reds upon the
intention of the parties. The articles of agreement and tne bond
are to be taken together, as if both were contained in the fame
inftrument, whereby William Cooke^ a ftationer, being intitled to
30 copies every day of a news-paper called the Dmly Advertijir^
agrees to aifign the fame to the defendant, who in confideration
thereof agrees to pay Wil&am Cooke 8j. per week ; I conceive it
is a condition drccedent^ that the 30 copies fliall be delivered*
every day to the defendant before the weekly payment fliall be
made; the confideration to be paid is not a grois fum, but a
weekly fum which a poor news-man could only raife by fale of
the papers ; and it is provided that upon failure of pa)^mefit of
the 8/. per week, and upon 4/. being in arrear, the whole af-
fignment of the papers to be void ; To that it feems to me very
clear that it was a condition precedent that Cooke fliould firft de-
liver the papers, and then the defendant was bound to pay, and
not before. — ^All agreements are executory or executed, thisagre^.
inent is executory, and the cafe of Thorpe and Thorpe^ 1 uttw.
245. applies to it, and fo does 1 Burro. 900. Hob^ 88. and many
other cafes cited in Thorpe znA Thorpe.

It is objeded this covenant doth not extend to the plaintiff the

adminiftrator. In anfwer, it is laid down in Cro. Eliz. 553.

Hyde verfus Dean and Canons of Wind/or^ tliat a covenant lies
againft an executor in every cafe, aithoogh he be not named, un->

c c 2 lefs

386

Hn,AKY Tmm 13 Gjbo. IIL 1773.

DefeoJant
joini iflTuie to
the rrplica-
tion to the
fscond plea>

•nd jointi in
demurrer as
to the third
plea.

her atbreTaid a8ion thereof againft htm the faid WiKamCdcft^^
becaufe ihe fays that the plea aforefaid, and the matter therein
contained, are not fufBcient in law to ' bar the (aid Aim irom
having or maintainni^ her aforefaid a£lion thereof againft the bid
William^ to which faid plea the faid Ann is under no neccffity,
nor is fee in any* wife bound by the law of the land to anfwer; /
and this (he is ^ready to verify : wherefore for want of a fufficient |
plea 'in this behalf the faid Ann prays judgment and her debu f "^
together with her damages by occafion of the detaining that debty f
to oe adjudged to her, &c. f '•

tAmasWaUer. t

And the faid William as to the faid plea of the faid Ann
her above pleaded, in reply to the faid plea of the faid WiE
by him fecondly above pleaded, and whereof the faid Ann, '
put herft^f upon the country, he the faid William deththc
&c. And the faid Witfiam inafmuch as he in his faud plea by
thirdly above in pleading hath alleged fufficient matter in
to bar the faid Ann from having her aforefaid a£tion tin
againft him, which he the faid JvUliam is ready to verify,
which faid matter the faid Ann doth not deny, nor in any
ner anfwer the fame, but hath altogether relufed to admi^
verification thereof, he the faid William as before prays jodgi^
and that the {d^iA'Aiin may be barred from havkig her af^ *
aflion thereof againft him, Vc. ^

mmamK^^

In this term, the demurrer upon the third plea was^ >r
by Serjeant Walier for the plaintiff, and Serjeant Kempc? . ^
defendant. • "^ .

Serjeant Walier — ^The third plea is no legal defence ^J
a£lion, it is not within the terms of the agreement ; the r *- . .
is in thefc words, viz. *• That he the laid WilHam Cf -^^*"
•• not, at any time hereafter, vend or fell any news-pa^ i: '
*• in any wile deal as ^ news-man in felling news-pap -^ -
" gazines or other periodical papers, which are gencradr .
*' to belong to the bufinefs of a news-man, except* %.
** irazines or other periodical papers as the fatd frith- " ^
" iliall fell for the fole benefit of the faid Wittiam Or ,. ^=»
** executors, adminiftrators and afligns."— — This cot^ >^^
extends to William Cooke himfclf,. not to his reprefeqf *:; ^

a mere perfonal covenant, and binds no body but K . "^
that the allegation in the third plea by the defenda; ^ ""
he fays that after the death of the faid William Cooke;' : .^
Ann fwho is his adminiftrator] hath vended, fold ^^^^ ^^^^^*?^:xu
magaxiiies and other periodical pamphlets, which it^ ^\ ^^ ^<^

>^?-

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let*

sea Hilary Tbbm 13 Geo. III. 1^73.

lefs it be fuch a covenant as is to be performed by' the pcVfon of
the tcftator which they cannot perfonn ; and here in this cafe
the plaintiiT may perform the covenant by not vending news-

Eapers, €^r. executors who are to reap advantage ftiould be bound
y covenant of their tedators. Qui/intit commodum /entire iekt
et on^s: the demurrer admits that Mrs. Cooke has dealt in news-
papers for her own benefit, and not for the benefit of the de-
fendant Colcraft^ fo {he has broken her covenant, which is in the
liature of a condition precedent, and ought to have been per*
formed before (he can maintain this aflioii, fo I pray judgment
for the defendant,

Serjeant Walker was ready to reply ; but the court* flopped
him, they being of opinion that this was a very clear cafe, and
the plaintiif muil have judgment.

Curia, — ^The qucftion for bur confideration is, Whether the
third plea is good ? And we are of opinion that it is not an an*
fwer lo this a£lion ; it appears by the articles that the covenant
by IVtlliam Cooke not to vend or fell any news-papers, &c. was
only a re(lri£lion laid on himfelf, and mufl expire with his
life ; we think this aftion is well brought by Mrs. Cooke^ for it is
clear by the agreement that the %s, per week was to be paid to
Cooke and his wife, for their lives and the life of tlie fui-vivor:
fuppofe Cooke had made a ftranger his executor who was a
news-man, fhall that executor be hindered from being a news-
man ? No certainly.

Judgment for the plaintiff on the demurrer to the third pica
fabjent Lord Chief Juftice De Grey. J

I Black. Rep. Stephcnfon i;^f^^ Hardy. C. B-

An'uu!t^aik$ A CTION upon the cafe upon promifes; the declaration

jpfntfi for «^*' contained eight counts ; the fixth coutit runs thus, viz.

'^cwi^t ^"^ " That the defendant on fuch a day and year, was indebted to

the re^oeft of ** the plaintiff in thirty pounds, for money before that time lent

** **"^°^ " ^y ^^^ plaintiff to Ann the wife of the defendant in his ab-

coantf " fence, and at his /pedal inftance and requejl, and being fo in-

" debted he promifed payment.'* Iffuc .being joined upon n<w^

a/fumpjity this caufe was tried at the fitting after lafi term, when

a general verdift upon all the counts in the declaration was

given for the plaintiff. It was proved at the trial tlat the

defendant bein^ about to fet out upon a voyage to Ireland^ de*
fired the plaintiff to lend his [^derendant*sj wife monej* if Ihe
ihould have occafion for it in, liis ab fence, the plaintiff accord*

HiLABT T£BM 13 Gso. III. 1773. $99

ingljr did lend her a certain Audi for which this afiion was*
brought.

It wa^ objefled by Serjeants Daiy and Walker in arreft of
judgment, that a huftand cannot be indebted for mone)' lent to
his wife, that fiie cannot contraf^, or borrow money ; but they
faid, if it had been alleged that the defendant was indebted in
fo much money advanced by the plaintiff to yJTin the wife. of the
defendfint, at his inftance and. rcquffl^ it would have been right
enough ; but argued that the word Unt is a technical term, the
legal idea or meaning whereof is fo ceVuinly eftabli(hed and
fixed, that it is as impoffibie for the hulband to be indebted for
money knt to his wife, as it is for A, to be indebted to B. for
monev Unt to C. a third jperfon, and cited Marioit verfus Llfler.
1 fViybn 141, and 1 Sd/k. 23. 2 Vent. 36.

Serjeant Burland for the plaintiff— In anfwer totheobjeQion,
faid, that money Unt to a wife at the in/lance and reqiujl of a
Imlband is the very fame as if it was alleged to have been lent
to the hufband himfelf ; a wife may make an inchoate contra6h
which the huiband may afterwards confirm or diiaflirm ; here
the contrafi is made at his requeil before^ (he is only the hand
which he makes ufe of to take and receive the money; the cafes
cited are very different from this„M^ were cafes ot money lent
to a third per/on^ this cafe is money lent to the hulband him-
felf, at his requeil [to tlie plaintiff] to deliver it into the hands
of the wife.

Lord Chief Juflice D^ Grey — ^This is a very poor Ihift of the
defendant to delay the payment of a juft debt; if goods are de.
livered to the wife at the inllancc and requeft of the hulband,
he is bound by a contract expreffcd ; if a hulband turns his wife
out of doors unjullly, and Ihe bays neccffarics of life, he is bound
to pay for the fame by an implied premife ; he is alfo bound by
ail her contraQs for nea!ffary goods during cohabiuiion, and al-
though the ^oods be aBually delivered to lier,^ yet they are goods
fold and delivered to him ; you cannot make a contra£l with an
infant, but yoti may plead that you knt au infant money to buy
necelfaries according to his (late and quality, and that the money
was laid out in necelfaries ; it is admitted that if the word advanced
had been inferted in the count inftead of the word lent^ it
would have been good; I think [in this cafe] the word Unt
is the fame as the word advanced: and that this is not like the
cafes cited, which are ^ood law ; 1 think that a loan to the w fe-
at the requeft of the hyband^ is the fame, in law, as if the loan
had been to the hqlband himfelf. And of the fame opinion were
all the other julliccr; apd Blackftone Juftice oWcrvcd, that it

<; c 3 M'as

Sgo HitABy Term 13 Geo, HI. 1773-

was truly faid by my Brother Burland^ that a wife might make
an inchoate contra6l» which the hufband might afterwards, con^
firm or di(affirm, and that here he had (if the expreffion may be
allowed) previoufly confirmed the contra£l for the loan*

Judgment for the plaintiff, per ioiam curiam^

l^^f-^^* Murray verfus Harding junior. Clerk, C. B.

£Purchafeor ^|^ H E defendant Harding in June 1766, being reSor oi
for^Ti^of Grafton^ and having occafion to borrow 100/. applied to
the vendor One Mariham an attorney to procure thai fum for him upon bis
(31 years oW) perfonal fecurity; Mariham told him he might (perhaps) be
purphifeYt*' ^'^'^ ^^ 8^' ^^"^ '^^ money if he would grant an annuity out of
not ufuriout: his re6loryand tithes for fix years' purchafe; Harding hm^ in
notwitbft*nd- diftrefs, was willing to do this ; Mariham applied to the plain.
lede'emabTe*it ^»^ Mrs. Murray, to advance to the defendant /iflr^^ 120/.
the option of and told her that, in confideration thereof, Harding propofed to
the Vendor grant her an annuity of 20/. per annum out of his reftory, during

fiV*ye^sS?, "^^ '^^^» ^"^ ****^ *^ ^^ '^^"'^ ^^^ ^^y ^^^^ benefice, the
and by mif- fame fliould alfo be a fecurity to her for the annuity ; with a
take of the provifo OX On condition that if Harding (hould pay the plaintiff

^^Tlmb *^°'" ®^ ^^^ ^"^ ^^ ^^^ y^^" ^**® annuity (hould ceafe ; and be-
in the recital* fides, thzi Harding was willing to give her his bond in the
of the deeds.] penalty of 240/. to perform the terms and conditions aforcfaici,
and a warrant of attorney to confefs judgment thereon ; and to
pay the expences of making the deeds and fecurities ; to this pro-
pofal the plaintiff3fttrr£2^ agreed with Mariham the defeadant's
attorney or agent.

On the a4th of June I765f the propofal, fo acreed and con-

fented to as above, was carried into execution by a deed made

between the parties, reciting, that whereas R. Harding had oc«

cafion to BORROW 100/. and propofed to ^rant an annuity out of

the faid reftory and tithes in confideration thereof, and that

Mrs. Murray had agreed to lend him the fame ; therefore the

deed witnefled thatm confideration of 120I. paid by Murray 10

Harding^ he thereby granted her an annuity of 20/. out of his

reftory with power of diftrefs ; provided that if he paid her

120/. at the end of five years, viz, the a/^ih^oi June 17711 then

•[and /he the annuity to ceafe,* otherwife the deed to remain in force

ftouid give during Harding's life ; and that if he fliould have any other be-

^".10^5^. i^^fice, the fame fliould be k fecurity for the annuity; he alfo

See 2 B/tek. ' executed a bond in the penalty of 240/. conditioned for the

^1;^ S60.J performance of the premifes contained in the deed, and alfo a

warrant of attorney to confefs judgment thereon, and paid ?/•

HitiART Tebm 13 Gso. III. 1773. 591

for preparing the fecurilies, and two guineas to Murkkam for
commimon. The judgment upon the* bond and warrant of at«
tomey was entered upon recwd in Trinity term, 6 Geo. 3. 1766,
and the annuity has been.paid up till June 1 77 1 • but the 1 ao/. was
not then paid, fo the deed is become abfolute ; and two quarters
of the annuity being due and unpaid at Lady-day 1772, the plain-^
tiflp, in May 177a, took out zjieri facias againft the defendant,
and indorsed the fame for the flieriff to levy 135/. thereupon, '
which the {heriff did ; ai)d Markham the auorney fays in his
affidavit^ that the reafon for levying the whole, was, becaufe he
apprehended the judgment, being upon the bond, would be at
an end, or dfc he would pnly have marked the writ for the
iheriffto have levied what was due upon the annuity ^i Lady^
day 1772, with poundage and cods.

Upon affidavits of the fa3s above fiated, and fuppofing that
this was an ufurious contra3, it was moved, in Trinity tern^
laft, that the judgment might be fet afide, and the money levied
upon t\\ejienjaaas in the hands of the fheriff be returned to
the defendant ; when the court made a rule to Ihew caufe in
Michaelmas , term lall, and in tlie interim^ ordered the money
levied to remain in the hands of the iheriff.

Serjeant Burlandibtvfti caufe for the plainti(r<— The ground of Micbaefmtt
this application to the court to fet afide and vacate the judgment term^ijOct.
and execution, is, that this is an ufurious contra3, as being a/oan ^* '^^^*
of money to be repaid to the lender in all events^ with more
ikon lawjul intereft xox the ufe thereof,

I fubmit to the court, that upon the face of this deed the
contra£l is not ufurious ; fix years' purchafe is a good confider*.
ation for this annuity, for the life of the vendor; but here,, the
fecurity is not co-exienfive with the life of Harding the veur
dor ; he may be deprived of, or refign his benefice ; courts of
juftice do not weigti in golden fcales, what is the e^a& value
of an annuity ; and in a contrafi of this kind, where the lender
rifks the lots of the whoU^ every one has a right to make the
bcftand mod advantageous bargain he can. See the cafe of the
Earl of Chejlerjield verfus Jfanfon. x Atkins got. 1 Wilfon
206. S. C.

The cafe of the King vcrfus Drury^>% LeVn 7. is very like the
cafe at bar. Drury was indifted upon the ftatute of ufury, for
taking 7/. tos. for the ufe of 30a. for a quarter of a year ;
upon not guilty, it was tried hexove Hate Chief Juftice, at Gruild^
Hall; Vhere, upon the evidence, the cafe appeared to be thus ;
Brown had a leafe of a houfe of the £artoi Suffolk for forty '.

c c 4 year*

39!} Hilary Tbbm 13 Geo, III. 1773.

years at,j/. per annum rent. Brown agreed with one Drs^to
»flign the term to him for 300/. but Drue not having the money,
Drury by agreement with Drue paid the 300/. and took the
^ffignment to himfelf ; and then Drury demifed the hoofe to
Drue for thirty-nine years and three-quarters of a year, at the
rent of 35/. whereof J/, to be paid to the Earl oi Suffolk^ and
the 30/. refidue to Drury to his own ufe, Drue covenants to
pay the rent, and to perform the other ufual covenants in leafes
for repairs, &c. and Drury covenants, that if, at the end of four
years, Drue pays to him 300/. then the rent (hall ce^e, and
that then he will convey the refidue of the term to Drue* And
by HaU Chief Juftice this was not «^!^ within the fiatute ; for
Drue was not obliged to pay the 300/, to Drury \ botathis
eledion he might pay it if he would, and thereby aetepnine the
rent and have the term ; fo that, in eflfefi, it is nothing but 9
bargain for an annuity of 30/. per annum forthirty-nine years
ancl three quarters for 300/r to oe fecured in this manner, but
determinable fooner if the grantor pieafed, but the grantee had
not any remedy to have agam the 300/. if it did not pleafe the
grantor to pay it at the end of the four years, and fo the taking

of the jL lOJ. is not ufury, But if Drury had had any fe*

curity to be repaid the qoo/. or by any collateral surreement it
was to have been repaid, and this manner of contraa bad been
contrived to avoid the fiatute, it would have been otherwife ;
but as it is here, it is only a purchafe of an annuity of 30/. for
thirty-nine years and three quarters for 300/. determinable by
the grantor^ at the end of four years if he pleaied. And accord*
ingly the jury found the defendant not gmiiy^

' So in the cafe at bar, Harding was not obliged to pay the
leo/. but at his ele£lion he might pay it if he would, and
thereby determine the annuity ; fo that, in truth, it is nothing
but 9 bargiiin for an annuity ot 20/. per annum^ fecured as above
upon the reflory and tithes of Grafton^ but determinable fooner if
tke Cfo. Jap. Harding the grantor pieafed, and is not a loan of money, to be re^
%oj, $08, pgid in ^11 events^ and where there is not a loan of money orfome
thing elfe to be repaid, or returned a^in, in ali events^ there can

be no ufwy^ ^Wherever the principal money is at riflt and

hazard, and npt to be rq>aid in alioKnis there cannot be ufury;
the grant pf an annuity for lives not only exceeding the rate
allowed for intereft, but 9ilfo exceeding the known proportion for
contraQs of this kind, in confideration of a certain lum of money,
is not withip the meaning of the ftatute of ufury, unlefs there
were fonae underhand,bargain for the fecurity of the repayment
pf the principal con^lderaUo^•money• % flawL pL corou. 2^7.

Aithoua^

HiLAKY Term 13 Geo. III. 1773. 9gi

Although the original cox^verOition was concerning a lifan of
money, yet, il that' loan is not earned into execution, but in*
ftead thereof an annuity is granted in confideration of fo much
money advanced and paid by the plaintiff to the defendant, and
which he ihisht never be obliged to repay, it is no loan^ but a
fair contra&Tor the putchafe of an annuity^

The cafe ot Tfln^cZflf verfus jFiWA, Cr^. Eliz. 27, and 1 An^^
derfon isi. S. C. is very applicable to the prefect cafe ; Finch
gave to TanjUld 566/. for an annuity of 120/. per annum^ during
twenty-threc years, it was held tnat this is clearly no ufury^
when there was no communication between them to have any
confideration for the loan of the j66/. ; for this annuity was pur«
chafed bonajidt^ without any corrupt intent or bargain: and if it
had been 40/. /^r oimvin for forty years for 10^. it had been
no ufury^ no more than if one for loo/. purchafes lands worth
40/. ptr annum. Another matter was in this cafe ; that after the
grant of the annuity of 120/. for twenty-three years for the
566/. in hand paid, Tanfield for the affurance of the annuity, in- ^i^T*
feoffcd Finch of land worth 100/. per annum, to the ufe of Tfl«. 3'eV"*'*''
^U and his heirs,, upon condition that if the money were not
pid, it fliould be to the ufc of Finch in fee; and all the juftices^
held it was no tf/iiry^ for the mortgage was only for the auurancc
of the annuity.

It washoldcn by the whole court in Fuller's cafe 4 Leon, 208,
that if one gives 300/. to another to have an annuity of ^oi.
aflTured to him for one hundred years, if he, his wife and four of
his children fhall fo long live, that this is not u/vry; fo,Jf
there had not been any condition; but care is to be taken that
there is no communication of ^^rr(?a;j>i^ any money before. Cro^
Jac. 252. S. P.

Although there is a recital in the deed, in the prefent cafe of
a lending, yet it clearly appears, that it was a contra£l for the
purchaie of an annuity: liar ding the defendant, in his affidavit
vhich has been read, fays it was an annuity: he fays, to the beft
of his remembrance, the agreement was that he might repay the
principal to the plaintiff within five years, if -he thought proper;
fo that it certainly was in the option of the defendant whether he
vrould pay the principal back again or not.

It appears clearly from the cafes cited, that if the contraft
had been an abfolute grant of. an annuity, it would not have been
Hfi^rious^ and Ihall the provifo which is for the grantor's benefit,
mA^ th^ v:ontraft ufuripuj which vould not have \}^cnfuch

without

394 . HxLAAY Tekm 13 Qko. HI. 1773.

without the provifo ? Certainly iKit. Tim was not a l&an, hxt
a fiair purchafe of an annuity ; ib the jiulgmeiit ought to fiand
in force.

Serjeant Glynn for the plaintiff-^The judgment ought to fland;
it feems problematic whether the plaintiff bad a good or a bad
bargain, and hard to fay on which fide the advantage was in
this cafe ; although there was foroe talk, at firfi, between
Mariham the plaintiff's agent and Harding the defendant about
a loan, yet a wan was never carried into execution to be repaid
in all events 9 this appears to be a bon&fide fale of an atrnmij^ and
it was only in the defendant's option to repay the principal in
five years, not in the plaintiff's power to oblige him fo to do.

Serjeant Hill for the defendant — ^That the rule ought to be
abfolute ; it feems to be admitted by my Brothers, that if this
was a loan, the contra£l was ufurious.— It plainly appears to be
a lean ; for the deed recites, that whereas R, Harding had oc«
caGon to borrow, &c. and that Mrs. Murray had agreed to knd,
&c. and a6lually did- lend tht money upon an annuity; — ** I will
^* not lend you the money unlefs you will grant me an annuity
** of 20/. during your life :" ihe tells him m the deed, he (hall
have the liberty of redeeming it at the end of five years; fo, it
is obje£led, that it is at his option whether he will redeem or.
not ; and therefore is not a loan to be repaid in all events. — In
anfwer to this obje£lion ; this is plainly a mortgage^ and every
mortgage implies a loan, although there oe no covenant to repay
the money ; the perfonal eftate is firft liable to T^dy oS zmortgege,
fo it is a loan, — ^Thcre is alfo a bond recited, in the penalty of
S40/. for fecnring the payments in this indenture, and if lie
did not pay the principal money at the end of five yean, tht
bon4 would reach the principal, therefore it i^grofs u/ury.

In the cafe of King verfus Drury, a Lev, 7, there vas no
converfation about a loan, if there had, it would have been
vfury in that cafe; and in Fulkr's cafe, 4 Leon. 208, it is faid
kut care mujl bt taken that there be no communication ofhrrcw-
iif^ money ;-— In the prefent cafe there was fuch communication,
Markham the attorney procured the money to be lent, the de-
fendant paid him, for his trouble in procuring the loan, two
guineas, and fcven pounds for making the deed of indenture,
bond, warrant of attorney, and entering up the judgment.

In the cafe of Lord Cheflerfield and Jan/en, 1 Wilfon 295.
Lord Hardwicke fays a man may purchafe an annuity as low as
poffible, but if the treaty be about borrowing and Uhdit^, and

• the

Hilary Term 13 Geo. III. 1773. 89»

the annuity only colourable^ the contrafi may be ufurlous, hoir« « •
ever diiguifed.

LawUy verfus Hooper^ ^ Atkins 2j%. is a ftron^ cafe for the
defendant. — Lord nardwicke there faid, that be believed ninety-
nine out of an hundred of thefe grants of annuities were only
colourable to evade the ftatute of ufury.

It is fa^d, this is not a mortgage, becaufe there is no covenant
in the deed for repayment ; I anfwer, fuch covenant is not
neceilary ; all Welch mortgages, and moft copyhold mortgages
are fo, but here is an exprefs power of redeeming in five
years.

Curia, The ground of this application to the court to fet Hilary trtm,
afide the whole, is, that it is an ufurious contra3. *3 Ceo. 3.

To make a contrail ufurious, there mull be a loan of money;
wares, merchandize or other commodity, to be repaid and re«
ilored to the lender with higher intereft than the ftatute allows ; it
is effential that the thing lent is to be returned, for it cannot be
a loan iHnlefs the money or thing borrriwed is to be reftorcd ; the
making ille^l intereil precarious, if the loan of the principal
money or thing is to be refiored, will not take it out of the tta*
tute; nor will any other fhift or contrivance whatever. In the cafe I^*«
of Roberts verfus Trenayne, " Juftice Dodderidge took thefe dif- ^^i'l'f.STeft
" ferences in cafes of cafual ujury, Firjl^ if I lend 100/. to have only, and iwc
" 180^ at the vcar's end upon a cafualty ; if the cafualty goes tothepriii*
" to the intereft only, and not to the principal, it is ufury: for "^^ ""
" the party is fure to have the principal again, come what will
•* come ; but if the intereft and prinapal are both in hazard, it
•• is not then tifury : and it was therefore adjudged in C. B. in
** Dartmouth's cafe, where one went to Newfoundland^ and an-
*' other lent him tool, for a year to vi£lual his (hip, and if he
'• returned with the fhip, he would have fo many thoufand of
" fifli; and expreffcs at what rate, which exceeded the intereft
** which the ftatute allows ; and if he did not return, that then
•• he would lofc his principal ; it was adjudged to be no u/urv.
•* Secondly, If I fecure both interejl and principal, if it be at the x
" will of the party who is the party to pay it, it is no ufury: as
•• if I lend to one 100/. for two years to pay for the loan thereof
" 30/. and if he pay the principal at the year's end, he fliall pay
" nothing for interejl, this is not ufury: for the party hath his
'* eleftion, and may pay it at the firft year's end, and fo difchargc \

" himfelf." No inequality of price, merely as fuch, can make

a contra£l ufurious : if there be a wager betwixt two to have
4P/, for «o/. if one b? a^live s^t fuch a day, thai is not any c«rth.«7*

ufury: ^^1 *yv

596

Cro. Jat.

9 Bolft. 369
37. Cm.
Jic. 507,
% RoiL Rep.

s. c.

HiLART Tebm 13 Geo. III. 1773.

ufury: for the bargain was bona^de; and not for a loan. Crc.
Eliz. 642, 643.

In the prcfcnt cafe, the attorney for the defendant goestomarkct
to borrow this money, the party lending the money knows nothing
of the matter until the propofal made to her by the attorney, that
the defendant would grant her an annuity^ upoii the terms men-
tioned ; whereupon a contingent purchafc thereof is made ; the
price is not material, whether it be a good pennyworth or not
if it be a purchafe and not a loan.

It appears from the affidavits read, the deed, &c, that the de.
fendant was in want of money, that the attorney advifed him
to^ an annuity^ that the plaintiff doubted about buying, that the
attorney fettled the terms, not for a loan but for a purchafc,
that the plaintiff was not fpoken to about lending^ but about
buying anafdling ; the power to redeem in five years inferted in
the deed, was Uie a3 of the attorney ; we are fatisfied that the
plaintiff only treated for an annuity, and not about a loan, and
that ihe ought not to fuffer for the miftake of the fcrivcncr in
the recital in the deed about a loan; we arc fatisfied from the
affidavit of Markkam that both the principal and interefi were in

treat hazard, and that it doth not appear to be that colourable
ind of contra6k or hazard that will make it ufury,

Refolved, that the plaintiff muft be paid out of the moDej' in
the (herlff *s hand, what is due upon the annuity, and the reft of
the money be rellored to the defendant, dedufting the charges
of poundage, (3c. and the judgment mufi fiand and remain in
force, with liberty tp the plaintiff to apply to the court from
time to time to take out execution, if the annuity be not duly
paid.

tBhck.'Rep.
869. S. C.

Ajodgment
in B. R« or-
dered to be
let off again ft
« judgment, in
C. B. and the
balance doe
to the plain-
tiff to be
paid by the
defrndantin
C«B.

Barker Adminiftratris, ^c. verfus Braham, C B.

'TpHE plaintiff Barker having recovered a judgment fo*
••' 106/. in this caufe, and being intitled to execution thereof
againft the defendant Mrs. Braham; and Braham having re-
covered a judgment for 102/. in the court of King's Bench, ami
being intitled to execution thereof againft [the now plaintiffj
Barker: Braham moved tliis court tlxat execution might be
flaid in this caufe upon her being ready and willing to fet off
her judgment for 102/. in B. R. againft the plaintiff Ba^kcr^
iudgment here for Jo6/. and to pay to Barker ^/. the ba-
lance.

Cffffff.

HuAKY Tbrm 13 Geo. III. 1773. 397

Curia* If A. owed B. 100/. and B. owed A. lo^. Ifoppage
was no payment at law, nor in equity unlefs under fpecial circum*
Aances and in cafe o( mutual demands where the balance only
was the debt, and then equity interpofed to make ftoppage a
payment, to prevent circuity of a3ion, and multiplicity of uiits,
which is not favoured at law, much lefs in equity. 2 Williams ,

128. By the Roman law a fet-off might be, but not by our

law. — ^By mtjlat, 4 W5 Ann. chap. \y.Je3, 11. and 5 Geo, 1.
chad. 24.^^. 1 1. and 5 Geo. 2. concerning bankrupts, where it
fliall appear to the commiflioners that there hath been mutual '
credit given by the bankrupt and any other perfon, or mutual
debts between the bankrupt and any other perfon at any time
before fueh perfon became bankrupt, the commiflioners or tlie
alFignees (hall ftate the account between them, and one debt
may be fet againft another, and what fhail appear to be due
on either fide on the balance of fuch account (and on fetting
fuch debts againft one another) and no more fliall be claimed or
paid on either fide refpefiively.

By ihtjlat. 2 Geo. 2. chap. 22. where there are motual debts
between the plaintiff and defendant, or if cither party fue or be
fued as executor or adminiftrator where there are mutual debts
between the teftator or inteftate and either party, one debt may
be fet againft the other; and by thtjiai. 8 Geo. 2. chap. 24. the
claufe relating to mutual debts is made perpetual, and mutual
debts may be fet againft each other, notwithitandinff fuch debts
arc deemed in law to be of a different nature, unlefs in cafes .
where either of the faid debts fliall accrue by reafon of a oenalty
in a bond or fpecialty ; and in all a£lion$ where either the del^
for which the aflion hath been or fliall be brought, or the debt
intended to be fet againft the fame hath accrued or fliall accrup
by reafon of any fuch penalty, the debt intended to be fet ofi^
jnall be pleaded in bar, in wnich plea fliall be flicwn how much
is truly and Juftly due on either fide; and in cafe the plaintiff
Ihall recover m any fuch aftion or fuit, judgment fliall be en-
tered for no more than fliall appear to be truly and juftly due
to the plaintiff after one debt being fet againft the other, as
aforefaid ; thefe laws are taken from the civil law and founded
injuftice.

In a late cafe in this court, where the plaintiff had a right to TniuisGeob
debt and cofts againft the defendant [in one caufej and the de- 3- *»* ^' ^
fendant had a right to cofts only againft the plaintiff Qn an*
other caufe] the court narrowed the plaintiff's execution Tor the
balance due to him. We are all of opinion that this application
tothecourt to narrow il*s own execution, is very reafqnable, and
that there can be no real and folid obje^^ion to it in point of

lav,

39« HiLAKt Tbbm 13 Geo. HI. 1773.

law, jufticc or equity. Therefore let one judgment be fa
oiTagainft the other, and the rule be made abfolute.for thart
purpofe« and for the defendant to pay the balance of 4/. due ta

^he plaintiiF«

Hodges veiftis Atkis. C. B.

Adrangerto ^pRESPASS for taking the plaintifTs goods; the defendant,
b«rw^?2«^ ^^ fervant to the corporation of Shrew/bury^ juftifies uking

toa loie to the plaintiff's goods as a diftrefs for toll through the ftreets of
lUSc^h*** f ^^^^^^* which the plaintiff refufed to pay.
ts it fecffls. [See talkt ▼. Kii'iityt, 3 Term Rep. K. B. 14^ «• and Rix ▼. AIIg»$d, 7 T. R. K. 6.746.]

fSuchlnfpec- And before the plaintiff had replied* or any iCTue was joined,
lion (bill not Serjeant Burland moved on the behalf of the plaintiff for a rule
'n flen^t'if'tiii *^ have liberty to infpe£l the public books and records of the
rfTu'^iloined Corporation of Shre^bury.

a Black. Rep..

877. S. C] Serjeant Walker for the defendant objeSed, that the plaintiff
being a Jlranger to the corporation, has no right fo inlpefi the
books thereof^ that iffue not being joined, it is not known what
will be the point to be tried, that the plaintiffhas not yet applied
to the corporation and been refufed the liberty of infpeding the
books, therefore this motion is premature, and is the firfi of the
kind, for it is a motion to furhifh the plaintiff with matter for
his reply to the defendant's plea.

Serjeant Jwr&wrf for the plaintifFanfwered. That there are cafes
where flrangers have had rules for liberty to infpe£t the books of
tlie adverfe party, and cited 2 Barnes 194. the Brexuers' CompOMj
verfus Ben/on^ which was an aftion brought on byclaws apintt
the defendant excrcifing the trade of a Sraoer^ but no member
of the company. Per Curiam^ bye-laws affeftinff flrahgen in-
Stiaa.iis3. tereil them therein ; the rule, there, was made abfolute for the
defendant to infpe£l the company's books and take copies^

Lord Chief Juftice— -Do you lay it down in general that a

ftranger has a right to infpe& the books of a corporation ? How

has a firanger to a corporation more right to infpe£l their books,

Smi WBAui than the InDoks of a piv^te perfon? While Lord Corniest £it

K^'^Af here, there was the like moUon, in the like aftion of trefpafs

DnVuScil. where the defendant juftified (under the corporation of Ipfa^^^)

for diftraining for a toll for repairing the Quay ihere^ and the

motion was refufed, the plaintiff there, being ^Sranger to the

cori>oration ; and I am fure, in many cafes like the prefent, the

motion has been refufed ; however, I fliall give no abfolute

opinion upon the prefent motion ; becaufe iflue is not yet joined,

3 n<^

HiLABT TuBc 13 Gso. IIL 1773. 809

por has the plaintiff applied to be permitted to infped the
books of the corporation and been refufed, and thai is^ lufficieni
reafon for not granting the rule at prefem*

So the rule was denied per toiam curiam*

EASTER TERM

13 Gbo. III. 1773.

Harriot Fleaiance Fell an infant^ by her next friend^ « Biick. Reyt
ver/us Solomon Fell, Efq, »w- s.c-

^ HIS cafe was fent from the court of Chancery to be a cife apo«
*" determined by the court of Common Picas; which awv/fent
ftatcs, that Thomas Fell Efq. being fcifed in fee of and in ^^^^}
feveral freehold and copyhold efiates, fituate in the parifli ch$nterf,i6f
of BingUy^ and. elfewhcre in the county ol York, on the 7th the opinion of
day: of December 1763* duly made and publilbed his laft uiU^^^^*
and tefiament^ in the words and to the <H9e£k following, (that is
to fay,)

I Thomas Fell of Milnerfield in '^ the pariib of Bingley in the [DevUttoA.
county of Yoi^^ gentleman, do make and ordain this my laft ^^^^ "". -^
tt/i/f and tejlamenti revoking former wills^ in manner and form ronB.an?ha
following ; I refian my foul into the hands of my moil merci- beirt *mal«
ful Lord God, in nopcs of a dorious refurreflion to life eternal, ^' «r'»
through the merits of our Weffed Saviour Jefus Cbrift ; my "tf^t hek
body to be buried at the difcretion of my mod affefiionate nuie, the
wife; the expence to be borne by my executor herein after- men- «'<*•' ^*>'«
tioncd. And as to my worldly eftate and effcas, I rive and jf * J^lf "

bequeath iffo«uftbtf^

400 Easter Teum 13 Geo. IIL 3773.

Kind A. die bequeath the fame in manned and form following: and^r^, i
******" aI 5*^^ *^^ bequeath to my loving wife, over and above what is
]^mlrie?s and *^''cd On her by jointure, all my perfonal eftate whatfocver
ifoofemaiet) (except piflures;) and I alfo give her out of my real eftate fo
«^nA,to long as me (hall remain my widow 20/. a year, to. be paid by
fofe M he "*y executor herein-after and my truftees herein-after apnointed.
thtolu fit. Alfo I give to my coufin Martha Fell during her life 10/. a year
A. If tenant for her better 'mbfiftence. And I give to all my fervTints that

^"iSerTa ^'' ^^^ ^*'^ '"^ *^ ^^^ ^*°^^ ^^ ^Y ^^^^^^ ^^' ^^^* ^"^
Ikisiaotixi mourning, to be paid within one year next after my deceafe.
tiUiiiale{re. And I do appoint my coufm Solomon /is// junior of the Six
d^KtCTfin * ^^^ ^^^' "^'^ executor of this my xmll, and heir for life of
taiif Kmain. ^li Hiy ellates (except as before bequeatlied, and as (hall be
der to A. ia herein-after mentioned;) and after his death to his Jon Thomas
*^*J and his heirs male for ever; but if the faid Thomas flioulddic

without iflue, then to his next heir male for ever, the elder to ke
preferred before the younger ; and if no male i/fue left behind faii
Solomon^ then the eftate to devolve to the females ; and if no
fenialcs, then my faid coufin Solomon to give and difpofe of the
fame as he fhall think fit, always remembering to have an ej'e
to God's honour and glory and nis own confcience in the difpoial
thereof* And I do nominate and appoint the reverend mUs
Burton now curate oiCovernev in the Ifle of Ely^ Mr. Thomas
liltic minifter of the gofpei of Gilflead, and Jonathan Pcde
gentlemant of the fame place in t\ie parifh of Bingky^ truftees,
to fee the due performance of the execution of this m^ sui//, and
for their trouble therein I 4^ give them 20/. to be paid and re-
ceived by them within one year next after my deceafe, out of
the rents and profits of my eftate. And forafmuch as I am con-
fcious that my debts, legacies ^nd funeral e^pences will amount
to a confiderable fum, I xuill, therefore, that my truftees afore-
faid, with the confent of my executor, do fell and difpofe of
my eftate at TFelton, in the Ea/l Riding of Vori^ as alfo all
thofe eftates in the parifh of Halifax and parifh of Kildunck^ late
my fifter's, and now an undivided eftate octween the reverend
- Gregory Perkins of Netherton and myfelf, for the moft money
that can be got for the fame; and the money to go towards
the difcharge of my debts, legacits, (3c. ; and until tny debts
and legacies fhall be fully paid and difcharged, I will tnat mj
truftees pay to my coufin Fell my executor only 100/. a yearj
and I do appoint William Murgatroydoi MicklethvmitevtctwtXQi
the rents and profits of my euates, fo long as he fhall continue
to give in to my truftees and executor a juft and fair accotint ;
and he fhalt have a filary out of my eftate of 15/. a year for
coUefting the faid rents^ And if the faid William Murgatroyi
fhould be indebted to me at the time of my death in any fum of
money, I do hereby difcharge him from the fame ; and I viH

Ntbat

East£r Teem li Geo- III. 1773. 401

that be remain tenant upon the prcmires he occupies at the
fame rent during life, if he pavs his rent regularly. And I do
give my truAees aforefaid 20/. apiece, over ancl above the so/.
already bequeathed for their trouhie in the execution of the iruik
repofed in them. And I do give Qk^di^h ^amjhottom 50/1
having frrvcd me faithfully, to be paid as above by my truftees,
out of the rents and profits of my efiates.

That on the4thof 7iuA« i7^4> ^^^ itfi^iox Thomas FelimAe^
codicil to his faid will in the words and to the effe£k following ;
V2Z. This codicil dated the 4th of June 1764, annexed to my
laft a/?// dated the 7th day of Dtccmber 1763, 1 add firmly to
e&ablifh and lawfully to corroborate my aforefaid mil: for, for-
afrauch as I gave my eflate at Welton to the ufe of my executor
therein named, not having then furrendered the fame in form
that I might bequeath it to the ufe of my wiU (it being copy*
hold^ I having therefore furrendered the fame, ao order it to
be difpofed of according to tbe ufe of my faid will: that is to
fay, to be fold as foon as conveniently It can be fold, towards

Sayment of my debts and leg^acies. And as to Mr. William
iurgatroyd^ I leave it to my executor's choice whether he flialt
choofe him as a fteward or not to colleQ his rents, &c* for 1 •"
choofe not to bind him in fuch an affair. I defire my wife, at *
the expence of my executor, may give gloves and rings to twenty-
four perfons whom flie Ihall think proper, at or as foon after my
burial as poflible \ the price about 1 jx. a ring;

The faid teflator died on the 11th day of Jum 1764 withoiit
iffue, leaving Solomon Felt (father of the defendant Solomon FcU
the devifee named in the will) his coisfin and heir at law, who
died on the 20th day oi March 1770, leaving tbe defendant 5^/^
ftton FeU his only fon and heir at \dW.

The faid defendant Solomon Fell^ the dcvifeii! named id the laid
tviil^ had, at the time of the death of the faid tellator, and at
the time the faid zuill and codicil were made, Thomas his eldeft
f6n and the plaintiff his only daughter and no other children
living; but he had had another fon named Solomoiti bom otl .
the 7th day of Augu/l 1763, who died on the 7th day of Novem-
ber following ; though the teftator at the time he made his wiU
knew the defendant had had fuch a fon Solomon born, but did
not know that fuch fon Solomon was dead.

The faid Thomas Fdl, the fon bf tlie defendant Solomon Fell^
died in February 1765, and the plainuff is now tbe only fur^*
viving child of the faid defendant.

• Vol, IIL - *> D the

401 Easter TfiRi^t 13 Gno. tlL 1773.

The faid defendant^ upon the death of the teftator,- pr6ve^
his faid wiUand codicil: and fuch will and codicil have aliobecft
prov^ in the court of Chancery btr the fubfcribing witnefles^
and the fame have1)een declared to oe well proved, and are efta*
blilhed by a decree of the faid court.

Upon the death of the laid teftator the defendant entered upoit
and took pofleflion of fuch of the tefiator's real eftates as were
not comprifed in bis marriage fettlement, and which unfettled
eftates are of the yearly value of joo// and the fettled eftatei
are of the yearly value of 1 20/. and are fubjef); only to the in-
iereft of the tellator's widow therein for her fife.

The plainti£P filed her bill in the court of Chancery againfl the
defendant for an account of timber trees and wood cut down
by him, and for an injunction to rdlrain him from cutting down
- any timber or wood from off the faid eftates, or any part thereof,
or committing any other wafte or fpoil thereon, infiliing that the
defendant is only tenant for life ot the faid eflates.

Tlie defendant by his anfwer inflfted that he did, by virtue of
the feveral limitations in the faid o/sf//, become imitled imme-
. diateiy upon the death of the teftator, or at leaft.upon the death
of the defendant's fons, to an eftate in fee in pofleflion, or to an
eftate in tail in poifefilon, with the ultimate remainder in fee in
the defendant in cafe of failure of his iftue ; and therefore that
he has a right to cut down what timber or trees he thinks fit
from off the faid eftate, and is not accountable for Wafte.

The caufe came on to be heard onf the 23d day of April 1771,
before the right honourable the Lord High Chancellor of Gnat
Britain^ when his Lordfliip wa^pleafed to order that a cafe ftiould
be made for the opinion of this honourable court upon the rvill
of the faid teftator, on the following queftions, to wit ;

What eftate the defendant Solomon FeU takes in the premifes
in queftion under the faid zvUl: and whether the plaintiff takes
any and what eftate in the faidpremifes under the faid zuill ?

ihomas Wcdkcr for plaintiff.

John Glynn for defendant.

This cafe was well argued at the bar, by Seijeant Walker fm
the plaintiff, and Serjeant Ghnn for the defendant, in Hilary
term laft; and by Serjeant Vav^ for the plaintiff, and Serjeant
. Burland for the oefcndant, in this term.

they

Easter Term 13 Geo* III. 1773. 403

They who argued for the plaintiff, contended that (he took by
the wilt a veiled remainder m fee, liable to be divefted out of
her by the birth of a Ton of Solomon FcU the defendant : and that
Solomon Fell the defendant took only an eftate for his life.^

This being a cafe of great difficulty, and many diflerent opi- .
nions having been given thereupon by the moil eminent counfel
at the bar, before the commencement of the fuit in Chancenr,
I think it would be rather tedious to the reader to fet down the
arguments at the bar in this court i efpecially as the court did
not publicklyr give their judgment upon thole argumenu* but

Erivately certihed their opinion upon the queftions put to them,
y the court of Chancery^ The Lord Chief JuAice m this term,
acquainted the bar with the unanimous opinion of the whole
court to the following effe£l, (and faid no more) tdz.

Wc are all of opinion that Solomon Fell the defendant took an C^'*'
eftate for life, and his fon TAomas dying without iflue, his-^^ j^

^ ^ MfPi

daughter the plaintiff took an eftate in taifgeneral, and that a SS9.]
remainder in fee-fimplc is vefted in Solomon Fell the defendant;
this is our certificate to the Lord Chancellor.

To fet down' the cafes that were cited, would be nugatory,
bccaufe there was not one to be found in point ; the cafe of
Loddington and Kyme was faid to come the neareft to it, by the
counfel ; but the court faid nothing to that.

Scott an infant by bis next friend, verjia Shepherd \^^^'^^'
an infant by his guardian. C, B. 9»- • .

np H I S is an afiion of trefpafs and affault wherein the .^ "JV
'*' plaintiff declares, that the defendant on the 28th day of S^p^^
OBober 1770, with force and arms, (to wit) with fticks, Saves, who originally
clubs and fifls, made an affault upon the plaintiff at Taunton in ||»'W »
the county of SomerfeU and greatly bruited, wounded, and ill ^^^j^^
treated him, fo that his life was greatly defpaired of, and then Vcfptkrowa
and there threw, caft and toffed a lighted fquib, confifting of J^**" ^'^-
gunpowder and other combuftiblc materials, at and a^nft the ^J^Xmm
laid plaintiff, and ftruck the faid plaintiff on the face therewitfiy at iait pau
and io i^eatly burnt one of the eyes of the faid plaintiff, that tlju^ ojt tb«fia»-
plaintiff underwent and fuffered great and excruciating pain and S/)^^.
torment for a long time, (to wit; for the fpace of fix months 4pMnfr $
then next following, and afterwards wholly loft his faid eye ; JT}^' *^
and the plaintiff hath not only been forced to lay out and ex* J^^^i*
peod a large fum of money, (towitj the fum of 520^. in and it6«ft^6rie«

j> D a about IC'Aits-j

ZB Gooai.

406 Eabtbr Term 13 Geo. III. 177S. .

Serjeant Burland for the defendant — ^There muft be an imme-
diate alTaultt ftroke or injury done by ohe.tb another, or aii
a£lion o( aflault and battery will not % ; if the fquib had not
been touched by a fecoxid man after it was thrown by the de.
fendant it might have expired and done no harm ; but it is
thrown by a third pedbn, hits the plaintiff and puts out his
eye. No a& hath been done by the defendant to the piaintiC
from whence the injury happened.

I agree that the turning an oxloofeorany wild creature, lion,
tiger, &c. among people* whereby mifchiet is done to any per-
fon, is fuch an ifl: for which trefpafs vi d armis well lies ; for
. ihe turning the beaft loofe is the very aft of the perfon, and is
as much an aflauh ^nd battery as if he was to (hoot a bullet
out of a gun ; the man who turns a wild beaft loofe is as cul-
pable as a mooter. So if one ftrikes a horfe and drives him
over another man, trefpafs vi et armis lies ; for injury and hun
is the neceifary confequence of the aft : but it is not fo in the

f>refent cafe, tor the fauib could not have hurt the plaintiff, un-
efs another perfon haa taken it up and thrown it ; it was not
jieceffary for a fecond man to throw it crofs the market -houfc;
and I humbly infill that an aftion of affauk and battery would
have laid agamil the man who laft threw it at the plaintiff; as
if one throws a flone, but hurts no body, ^nd another takes it
up and throws it again and thereby hurts a third perfon, the
aftion muft be againft the perfon who threw it feconaly, and not
againit the ^{(1 perfon who did no harm.

Supppfe an aftion had been brought againft Ryail^ it certainly
would have well laid, and he could not have defended himfelf
by any plea whatever ; for pleading that he threw it cqfualUer,
et fter infortunium et contra voluntatem Juam it put out the
plaintiff's eye, would not have excufed hini ; like the cafe in
Hob. 134. tVeaver verfus Ward^ which was trefpafs of aflault
and battery. The defendant pleads that he was a trained foldier
in London^ and l^e and the plaintiff were ikirmilhing with their
pmpany, and the defendant with his mufltet cafuaUur et ^
infortumum et contra voluntatem Ataif in difpharguuF of his gun
hurt the |>laintiff; and refolved no good plea. So I lay, »
JiyaS is guilty of the immediate a&ault, the defendant ik not;
he is only goilty pf 9 mitlancei by firft ^browing the fquibi

^UfiJ'i? Serjeant Gfyna in reply— Whether the aft pf throwing the
t VMit. 195. ''l^*'^ ^J. ^^® defcnd^t was criminal or innocent with refpSl to
» Uv. 17a. the publick, yet if damage be done thereby he is anfwerabie in
hiS aftion. In | Stra^ 596. Undtrwo,^d verfus Hewfon the de-
fendant was uacockin^a 2un, and the plaintiff flanding to fee

it,

Easter Tjbrm 13 Geo. IIL 1773. 407

it, it went off and wounded him : and at the trial it was held T. Raym.
that the plaiatjff might maintain trefpals; every man is anfwer. 46^* '^^^*
able for any injury he does, althou^ he do it without any '®** *
dtCigti^ or by accident; unlels the injury done by him was
inpyitable»

The court took time to confider until this term, when judg*
ment was given for the plaintiff by three judges againil one,
wherefore they gave their opinions JSn'a/;/ff.

Nares Juftice, for the plaintiff—- The queftion is, whether,
upon the Ta£ls proved at the trial, which have been reported,
and before ftated, this action of trefpafs of affault and oattery
vi et arms doth not well lie againft the defendant ? Or whether
jt (hould not have been an a£lion upon the cafe againft hiro^ upon
a fuppofal that the injury done XP the plaintiff was con/iqumtial
znAnQl immediate? . .

I am of opinion that this aflion of trefpafs xn et armij doth
well lie againft the defendant — ^The nature of the a£^, the time
and place when and where it was done, make it highly probable
that fome perfonal damage would immediately happen thereby
to fomebomr then prefent in a crowded market houie on the fair«»
day; and 1 think the a£l in itfelf was illegal at common law i
but the^^^. 9 6? ip IV. q. . cA. 7. which makes the throwing
of fqiiibs in any publick ureet, £?r. a common nuilanre, and
gives a forfeiture tor fo doing, puts it out of doubt that the aft
was unlawful.

It is objefted that the plaintiff's eye was not put out by the im-
mediate a6l of the defendant but by the immediate ^&. of James
Ryall, and therefore this a^^ion will not lie againft the defen*
daut, but would well have laid againft Rj^a/L

I anfwer, that the a£l of throwing the fquib into the market*
houfe was of amifchievous nature, and befpeaks a bad intention,
and whether the plaintiff's eye was put out mediately^ or imme^
diately thereby, the defendant, who nrft threw the fquib, is an-
fwerable in this a£lion : but fuppofing the defendant had no bad
or mifichieyous intention when ne threw the fquib, yet as the
injury donfs was not inevitable^ this a£lion well lies againft him ;
for trie- mtdas animus of a defendant is not neceffary to be aU
leged, proved or taken into confideratioti in this a£lion ; ** but
'' in felony it (h^Il be cpnfidered, as where a man ftioots [with
'* a bow] arrows at butts jind kills a man it is not felony, and
*' it (hould be conftrued that he had no intent to kill him ; and
*' fo of a tyler upon a houfe \vhq with a tyle kilU a man un-

p J) 4 '* knowingly^

tioa Eastw T?aM 13 Geo, III. 1773.

•• knowingly, it is not felony : but whert a man flioots at butts,
^* and wounds a man, although that it be againft his mil,

•• he fliall be faid to be a trefpaffer. 21 Hen. 7. 28. a" If

the injury done be not ineviuble, the perfon who doth it, or is '
the immediate caufe thereof, even by accident, misfortune, and
againft his zviU, is anfwerable in tliis a£lion of trefpafs vi et
artnis; fois i Stran, 596. UfoferwooJ vct{\is Hew/on* Hoi. t^.
Wtaver verfus Ward. Sir Thomas Jones 265. Dichmfon verius
• Wat/on. 6 Ed.^j^. 7, 8. Sir Thomas Raym. 422. 4 Mod. 404.
5, — If the aft in the firft inftance be unlawful, trefpafs vrill lie;
but if the a3 is prima facie lawful, and the prejudice to another
S ^^ dTp ^' ™* mmediaie^ but tonjequen^al, it muft be an aSion UDon the
Of diftmOioii' ^^^\ 3nd this is the diftinftion laid down by the Lord Chief
laid dowiu Jufiice Rayjnani in Reynolds vti(n%£larke. 1 Stran. 635. 2 Lord
ftajm. 1 399* S. C, In the cafe at bar, the a£l in the firft in-
f Bsrm. ftance done by the defendant was unlawful, therefore trefpafs
2113. 14. xn ei arms well lies againft him ; every fubfcquentaft inthrow-
3 Bum». ing the fquib by Yates ^ and Ryall, did partake of the nature of
1 559f Hard, the firft aft, and was auafi caufa caujaia irpmediately and i«.
f9.styi.7a, ji^j^^^ i„ ^^ ^.jjfg o/tlie Pnor of Spalding in trefpafs againft
defendants for putting ejgth and mud into nis fewer, whereby
the water therein was flopped in it's courfe and furrounded 40
Hcres of his land adjoining ; it was obje£led th^t trefpafs vi ei
'$imiis did not lie, and prayed judgment of the writ; but bv
Thirning Chief Juftice, although the fiirrounding the land witA
wafer was not againft the peace, yet the putting the earth and
mud into the fewer may be againft the peace; and the defen-
dants have done what they ought not to have done^ wherefore they
muftanfwer* 12 Hen, 4. 3. a. There arc fome cafes where
one may have either trefpafs vi et arms, or an a£^ion upon the
cafe, 3s Hoh. i8o, Wheatley versus Stox^e^ Cro. Jac. 122. 43,
J)ent vertus Oliver. — .— *• It a man be riding on the way, and
another man ftriketh his horfe by which the rider falleth and'is
hurt, he which is caft off his horfe (hall have trefpafs againft
the other [whereby I fuppofe is meaned trefpafs vi et armis]

F. N. B. 89. £. and 90. K. gt. A. 9vo. Edit. ^The ftrokc

is given to the horfe, and not to the rider, but he is inftantly
hurt by the fall, in confeq^ence of the aft of ftriking the horfe.

It is objefled that the fquib, after it was thrown by the de-
fendant, had a new direftion given to it, whereby the plaintiff
was injured, but was not hurt by the defendant's throwing it.
— -I anfwer, that the defendant was the firft after, and the
caufe of the caufe of the putting out the eye of the plaintiff, the
aft was not compleat until the explofion ; if a man turns out a
paad bull, ox, or any other wild or mifchievous beaft towards A.
ivho turns the brute towards j8. who turns it again towards C.

whom

Eastbr Tesm 13 Geo. III. 1773. 409

whom it hurts, he who was the firft ador and turned out the
beaft is anfwerable in trcfpafs vi et arms for the injury done
to C — But fuppofe the death of a man enfues from tummg out
fuch a wild oeaft by the owner, who knows it to be mif-
chievous, the owner of the beaft is guihy of murder. Rex verfus
HuFginSt 2 U. Raym. 1583. — ^If a man doth an unlawful a£l, he is Mod. €jf.
ihaJl be anfwerable for the confequences of it. i Ld. Raym*
jfio.pcr Holt Chief Juftice, 5 Mod. 427. S.C. and S. P.

I (hatl conclude with what the Lord Chief Juftice Wilmot^ and
the court faid in the cafe of Slater verfus Jiaier and Siapldon^
1 Wil/on 362. where it was objeSed that the defendants ought
to have been charged as trefpaflers vi et armis^ and not as tref-
paflers upon the cafe ; the court faid, ** That the plaintiff in that
'• cafe ou^ht to receive a fatisfafiion, feemed to be admitted,
•• fo we will not look with eagle's eyes to fee whether the evi-
*' dence applies exa£lly or not to the cafe, when we can fee the
" plaintiff has obtained a verdi£l for fuch damages as he de.
** ferves, but we will eftablifli fuch verdi6l if poflible :" fo I am
of opinion the plaintiff ought to have judgment.

Elackftone Juftice — I am of a different opinion. I take it
here is no verdi3; the declaration and fpecial cafe are fiated
for the opinion of the court, whether the fads in the cafe
amount to an affault and battery vi et arms by the defendant
upon the plaintiff?

The declaration alleges that the defendant threw, caft and
toft a lighted fquib againft the plaintiff, and ftnick him on the
face therewith, whereby he loft his eye ; this is laid as an m-
mediate injuiy done by defendant to the plaintiff, which is the
gift of this a3ion of affault and battery ; for if the injury re-
ceived from the a6i of the defendant was not immediate^ hut a
confeqiiencc, trefpafs vi.et arms will not lie, but itmuft be an
aftion on the cafe ; and my Lord Raymond m the cafe of Ary-
nolds verfus Clarke^ 2 Ld, Raym, 1402. puts the difference, where
he fays, ** The diftinftion in law is, where the immediate aft
" itfelf occafions a prejudice or is an injury to the plaimiff^s
•• perfon, houfe, land, 0c. and where the aft itfelf is not an 1 SenL 634,
" mjury, but a confequence from that aft is prejudicial to the JJJjJ^*^''
** plaintiff's perfon, houfe, land, (3c, In the firft cafe trefpafs i,,^.
*' vi et armis will lie ; in the laft it will not, but the plaintiff's 3 Burr«,
" proper remedy is by aftion on the cafe." And this dif- '559-
tincHon runs through all the pafes whidh have been cited.

The lawfulncfs or unlawfulncfs of an ^ is not the critericm
t)etween thpfe two aftions, for a man may become an immediate

trefpaffer

410 Easter Tbkm 13 Geo. III. 1773.

trefpafler vi et armis by doing a lawful a& ; as if a man m doing
an a£l lawful in itfelf, hurts another by accident, mistortupe,
and againft the ivill of the a£lor, yoi he (hail be anfwerable in
trefpaTs vi ct armis for immediate injury done ; unlefs the injury
was inevitable, aj Hen. 7. 28. a. 1 Stra. 596. and many other
cafes in the books to this purpofe. Trefpafs on the cafe will lie
for doing an unlawful a£l, if the damage fuilaiaed thereby be
not immediate but confequential, 11 Mod, 108. Thcfirftaft
in the prefent cafe (I allow) was unlawful ; bnt the fquib by the
firdatl did not ftrike the plaintiff, the firft afi. was comptcat
when it lay on Yate'^ ftall, afterwards 7Ff//tJ abye-ftanderthrew
it acrofs tne market houfe, it fell on the flail of another man
who threw it to another part of the market-houft? and firuck
the plaintiff therewith and put out his eye, Willis who took up
the fquib and thfcw it acrofs the market^houfe is not anfwer-
able in trefpafs vi et arwis% for he did that aft to prevent injur)'
' to himfelf, and did no harm to any body. WiUis and YaUs
gave the fquib two new direftions, acting as free agents, not by
the iniligation, command, requeft, or as fervants of the defendant,
but in defence of their perfons, fo the injury which happened to
the plaintiff was the cunfequence of, and not done immediaidy
by the firft aft of the defendant.

It is faid the firft aft was not compleat until the cxploiion of
the fquib ; I admit the fquib had not power to do mifchief until
the explofion ; but it doth not follow from thence that the firll
aft was not compleat, at the inftant the fquib received a new
dircfction from a fecond aft. Suppofe feveral perfons are pl2>'ing
at foot-ball, which is to/Fed by many, and at laft breaks win-
dows; trefpafs vi et armis v/'ill only lie againft the man who firuck
it againft the windows.-r-The throwing the fquib agamft Yatdi
ftall was the only aft the defendant did,

In the cafe of Slater verfus Baier and Stapldon^ there was a
compleat verdift, but the prefent cafe is referved for the opinion
^ of the court; and although the court in that cafe faid they would

not look with eagle's eyes to fee whether the evidence applied
exaftly or not when the plaintiff had obtained a juft verdifi;
yet there being no compleat verdift in the prefent cafe, the
court will not, like another fort of birds, (hut their pyes againS
the light.

Upon the whole I am of opinion thsit trefpafs ji et armis doth

not he in this cafe, becaufe I think the ipjury done to the plair\-

tiff was not immediate^ but was a confequential damage; and

therefore the proper atlion upon the fatts ft^^tcd, is trefpafs upon

V jhe cafe.

GouU

Easter Tbbm 13 Geo. III. 1773. 4U

Could Juftice — I differ with my Brother Blackjlpne^. but with
the utmou refpeQ to his fcntiments. I think that neither Willis '
nor Rydl are liable to an aflion in this cafe ; if that be fo, and
this aclion will not lie againft the defendant Shfpkcrd who did
the firft a£l, which was unlawful, the plaintiff who has been
gr^tly injured will be without remedy. The damage done did
tnftanUy znk by and from the a^ of the defendant : IVillis and
Ryall in defence of themfelves and their goods, being in a ilate
of fear, without power of recollcftion, iylanily toffed and threw
the fquib away from themfelves, what they did was in^iable^
as it feemeth to me, Suppofe a burning Yquib thrown into a
coach pafling along the ftreet, and one of the perfons therein
throws it out, and the like misfortune as this happens; furely
the perfon throwing the fquib out of the coach might juftify or
excufe himfelf by pleading; though this is not fo ilrong a cafe
I think as the prelent. The defendant is the only wrong doer;
his aft put WiUis and Ryall under an inevitable neceffity of aS-
ing as they did, fo neither of them is liable to an a£lion : upon
the whole lam of opinion judgment mull be for the plaintiff.

X-ord Chief JulUce He Grey — ^The diftinftion between aflions
of trefpafs on the cafe, and trefpafs vi tt armis fliould be moil
carefully and precifcly obferved, otherwife we Ihall introduce
muc)^ confi^fion and uncertainty; thisisMo/it/z^of injury where
the dillio&jpn |S very nice. It urikes me thus ; trefpafs vi ct arms
lies again^ the perfon from whom an injury is received by
force. So the queftion is, whether this perfonal injury was re-
ceived by the plaintiff byT^^rr^ from the aefendant ? Or whether
fhe injury >^as received from, or refulting from a ntw force of
another 7

The real or true ouellion (I think) is not whether the firft
a£l of throwing the fquib by the defendant was lanfol or not;
for I fee, th^t in doing a lawful afi^ trefpafs xn et armis will, in
fome cafes, lie agiun^ the ador; and vet there are cafes where
trefpafs vi et arms \f\\\ not lie againft a perfon for doing an
unlawful a£l; legal a£ls may become trefpaffes vi et armis ^ by
accident or inadvertency, If a man cuts his own thorns, whicn
by accident or through his inadvertency fall upon his neigh*
bour*s ground, his going upon th(^ ground to take them away
is a iici^h m et at mis ^ becaufe not inevifable. So if one in
(hooting at a mark' Wounds or hurts another by mere accident ;
fo if I aim a blow at one and by accident ftrike another, trefpafs
vi et arms lies. And in fome cafes where the aft feems to be
totally inevitable, you cannot plead ajuftification or excufe, as in
Gibbons vcrfus Pepper^ 4 Mod. 404. " In a/fault and battery, the
•* defendant plejided that be was riding on s^ horfe in the high-

3 •• way.

412 Eastee Teem 13 Geo. III. 1773.

'* way, and that on a fudden fright the horfe ibrted and ran

•* upon the plaintiff, who continued in the way after he was

*' called to ^ out, which was the fame dSxak :. ta this plea

•* the plaintiff demurred ; and it was moved for the defencunt,

** that what he had pleaded was a fufficient excufe ; for it was

*^ no negle£l in him, and the mifchief was incvitabU: bet it

•' was anfwered, that the battery was not anfwered, that dc-

*^ fendant fhould have pleaded the general i/fue^ for if the horfe

*' ran away againft his will, he would not have been found

*' guilty, becaufe it cannot be faid with anv colour of reafon to

«« be a battery in the rider. The plaintiff nad judgment."

For doing an unlawful afi, as by laying a log in the highwar
whereby another perfon is hurt, it is a nuilancc; for which
trefpafs vi et armis will not lie, but trefpafs upon the cafe;
whether the injur)' occafioned by the a£l be imnumaU and £r^
or not, is the criterion, and not whether the ad be unlawful or
not ; if the injury be immeJiate and dire3^ it is trefpafs vi d
armis^ if confe^uential^ it will be trelpafs on the cafe.

" If an aftion unlawful in itfelf be done deliberately, with
** intention of mifchief or great bodily harm to particulars, or
** of mifchief indifcriminately, fall where it may, and death enfue
^* againft or befide the oriflrinal intention of the party, it will be
** murder.** Fofter 261. So where a blow, intended againft if.
' with a malicious murderous intention, lights on B* and kills
hixa» it is murder ; although the blow was not intended at B»

But to return to the prefent cafe of a civil a£lion; I think it
was admitted upon the argument of this cafe at the bar, that if
a man turns a wild.ox loofe amongft people not with any intent
to hurt any one, and he gores a man, trefpafs ui et armis lies,

iVcjfcS95, The throwing the fquib by the defendant was an unlawful
a£L at common law, the fquib had a natural power and tendency
to do mifchief indifcriminately ; but what mifchief, or where it
would fall, none could know; the hvXiegreditur iperfona of him
who threw the fquib, it would naturally produce a defence to be
made by every perfon'in danger of being hurt thereby, and* no line
can be drawn as to the mifchief likely to happen to any perfon in
fuch danger ; the two perfons WiUxi and RyoM^ did not aft with,
or in combination with the defendant, and their removal of the
lijuibfor fear of danger to themfclves feems to me to be a conti-
nuation of the firll zh of the defendant until the explofionof the
fquib ; no man contrafls guilt in defending hitofelf | the fecond
<»zi4 third man were pot guilty of jny trelpafs, but ail the injury

£ast£& T£BM 13 Geo. III. 1773- 413

vaa ione by the Jir^ d3 ofthe defendant ; here I lay the firefs,
and here 1 differ with my Bxxxher Blackjlont; for I conceive all
the fafis of throwing the fquib muft be confidered as ontfmgU
€t3^ namely the aa of ike defhutant; the fame as if it had
been a cracker made with gunpowder which had bounded
and rebounded again and again before it had (truck out the
plaintiff's eye. 1 am of opinion that judgment muft be for the
plaintiff, and the^q/lea was accordingly delivered to him» by the
opinion of three judges againft one.

Noia. The Lord Chief Juftice cited the rcgifter 95. a. A
writ of trefpafs de Jiagno Jraffo per quod inundaxAt vivarium
querentis: and oj. A. de bladis inundatis^ &c. and 108. h.dejimp
cl ^isfaditaitDus pofitisjuxtd parieta qucrcntis^per quodparieies
pTMiaiputrididevtncrunt^ et alia enormia^ &c, as fomethmg like
this cafe.

John Jackfbn verjits Harriot Ford, fpiniler.

^T^ H £ plaintiff declared in an a£lion upon the cafe* upon AflVimpfit by
-*" feveral promifes againft the defendant, by the name of \^^^ !*'"
Harriot Ford fpinfter ; to which declaration a plea in bar was / J^. "**
pleaded in the following words, viz.

And the (aid Ann White who is fued by the name of Harriot Plea bfj^
Ford^ who is within the age of twenty-one years, by James ^^^^^^
/lt?r^ her next friend and guardian by the court here fpecialiy A^v^ft*.
admitted^ comes and defends the wrong and injury when and (o Hcc.
forth, and fays, that the faid John Jam on ought not to have his
aforefaid adion thereof maintained agamft her, becaufe (he fays
that the faid Ann White^ at the feveral times of the making of
the faid feveral promifes and undertakings in tike faid declaration
mentioned, and each of them was within tlie age of twenty-
^ne years, (to wit) of the age of nineteen years and no more»
that is ta lay ?t H^yimnjler aforefaid ; and this (he is ready to
verify: wherefore (he prays judgment if the faid John Jackfon
ought to have his aforefaia aaion thereof maintained againft her
and fo fojth.

Thomas JVdlker.

And the faid John Jackfon as to the plea of the faid Harriot Demuirer*
Ford by her above pleaded in bar fays, that the faid plea and
the matters therein contained, are iniufficient in law to bar the
faid John from havii^ his aforefaid aQion thereof maintained
againft lier the faid Harriot Ford; to which faid plea in manner
and form as the fame is above made and fet forth,- he the faid

John

-414 East^h Term 13 Geo. til. l?;3i.

John 1$ under no neccflity nor in any wife bound by the W
of the land to anfwer; and this he is ready to verify: wherefore,
for want of a fufficient plea in this behalf, he the faid John
prays judgment and his damages by him fufiained on occafion
of the not performing the faid feveral promifes and undertakings
in the faid declaration mentioned to be adjudged to him, &c,
and for caufes in demurrer in law in this behalf, according to
the form of the ftatute in fuch cafe made and provided, he die
faid John fets down and ihews to the court here the caufes fol«
SpwU caufc lowing (th*t is to hy) for that by the faid declaration it ap-
•* ^*^"»**"«'' pears that the faid Jfohn hath brought his adion againft Hamol
Ford,, and no fuch perfon as Ann fvhile is mentioned in the faid
declaratior;, and yet the faid plea begins with thcfc words,
" And ik^ faid Ann It^hite^** which is wholly repugnant to the
laid declaration, and for>that the faid plea is not any anfwer to the
faid declaration, and is wholly unc€rtain» infufficient, dubious
and informal, £?t'.

The defendant joined in demurrer, which Was argued in thisterm
by Serjeant Davy for the plaintiff, who infifted that the plea was
bad, both in form and fubfiaiice ; the plea U^nSi and the faid Ann
U^Ue, who is not named in the declaration, fo the plea is no
anfwer to it; who n fued by ike name <f Harriot foriffinfitr^
but the plea doth not fay by whom Ihe was fiied« the ^lea ought
to have mentioned that {he was fued by the ^ainttff, and of
that opinion was the court«

r^ave to Walker Serjeant for the defendant, firid the plea was well

*°«*^' enough,, and that the words the faid were only torpiufage, but

the court thought otherwife, fo he moved for feive to amend
the plea on payment of cofls, which was granted par, curiam.

• Black. Rep. Ffogmorton on the demifc of Williain Wright v^jft*
8»9. s. c. ^xdih Wright widow, and Sarah Ker(haw widow.

two
mea-

The following p* J ECTMENT for two meffuagcs, two cottars,
wordiinthe H* bams, two ftables", three acres of land, two acres of —
r"in: ' ^ Aovf^ and three acres of pafture, and common of pafture, with the
wAs toochiDg appurtenances in Stacroft^ in the parifh of Irhitchurch other-
ail my tem- ^jfe Whitkirk in the county of York: the defendants pleaded
&c?i Hi*e ^^^ g^^ityi whereupon i Hue was joined, which came on to dc tried
ana'difpofe at the laft aflTizes holdcn for the county of York before Mr*
thereqi' as jufticc Gould, whcn it appeared in evidence as follows, viz*

Jufe a de«-i(e Th^t Wj/liizm Wfijrht bcing fcifcd in fee of the preraifcs in
oi houfn to qucftion, being taw hoiifcs in Scacroft^ and a Croft ^ with the ap^
A. wiUiottt ; purtenancci.

£l8TSBTfiRM 13 Gso. III. if7d. 4l5

purtenances, duly made his laft mil and Ujlamatt in Writing; fonher difpo-
bearing date the 19th day oi March 1728-9, in th^ words foT- p^^"**^*^
lowing. ^ In the name of God amen. I William Wright of Sea- /o^ftiJ^a an
crtft lenior hu(bandman« and in the parifli of Whitkirk in the eftateinfee.
coiinty of York^ being in good and pcrfeft mind and memory, ^"^^^'^V^*
praife be therefore given to Almighty God, do make and ordain jv^/'^SuTr,
this my laft will and teftament in manner and form following, 6r#rMjt<^.
that is to fay, Firft and principally I commend my foul into the ^.^:^*?'
hands of Almighty God, hoping through the merits, death tV jt* k*B-
and paflion of my Saviour Jelus Chrifl, to have full and free' ij.
pardon and forgivenefs of all my fins, and to inherit everlall-
ing Hfe; 'and my body I commit to the earth to be decently
buried at the dilcretiori of my executor hereafter named. /Ind
as touching the di/p(f/lhon of all my temporal eftate as it hath
pleafed Aimigbty Grod to beilow upon flie, I give and dil^ofe
thereof as followeth. Imprimis^ firft of all, I tmll that tty oebts
and funeral charges be paid and difcharged. Itcm^ I give untu
/foirt Wriffht and Nathan Weight my nephews, two houfes at
Bank in ij^ds^ with a croft and appurtenan(^es belonging to
them, to be equallv dealt between them ; Item^ I give unto
William Wright my Nephew^ two houfes at Seacroft, with a croft
and appurtenqnces belonging to them, now in the occupation of
John Carter and Elizabeth Thornton: Item, I give unto Ann
Wright my niece the fum of twenty pounds, to be paid out of
ray copyhold eftate at Morwick ; and item, I leave unto Dorothy
Wriffht my niece twenty pounds to be paid out of the faid Mor-
twcA land; Item^ I give unto Tliomas Smith my nephew the frnif
of ten (hillings ; Item, I leave to Mary Smith daughter of TXa-
mas Smith ten /hillings; Item, I leave unto Thomas Smith junior
ten ihillings ; Item, I leave unto George Smith junior ten (liiU
lings; Item, I leave unto Sarah Smith the fum of ten ihillings ;
Item, I leave unto John Smith ton of Tho?na^ Smith ten fhillings;
Item, I leave unto William Smith fon of Thomas St/iith ten {hil-
lings; han, I leave unto George Smith my nephew the fum of
ten ihillinss; Item, I leave unto John Smith fon of George
Smith ten ftiillings; Item, I leave unto Henry Wright my brother
five (hillings in the year as long as he liveth, to be paid at two
fet days in the year, that is, half a crown at the firft half year
after my death, and fo every half year fo long as he liveth ; and
it is my mil further, that none of the houfes and land named above to
be entered to by the above-named Henry Wright, Nathan Wright,
and William Wright until the deceafeofmy executor: Item, I leave
unto Nathan Wright my own brother to be full executor of all
goods and chattels whatfoever, and to be full executor of this
my laft wiU and teftament: and I do hereby revoke, difannul and
make void all former wills and teftaments bv me heretofore made.

That

4l6 EA$TfiR Teru 13 Geo. III.. 1773.

That the faid teftator foon afterwards died feifcd of the ptf-
jniies» without akering or revoking his faid tuiU.

Tliat at the time of making the mil he had two broiherv
Henry and Nathan^ and that ncnry furvived the teftator about
three years, and died without iflue.

That Nathan^ at the time of making the will^ had three foos,
Henry his eldeft, Nathan the fecond, and WilliAm the younged,
, all named in the will.

That Nathan the tellator's brother furvived the teftator about
ten years, and^ upon the de^jth of Nathan, between thirty and
forty years ago, William his fon entered upon the prexnifes in
queftion and neld them till June lafi, leaving by the defendant
oar ah his widow a fon now an infant.

That Henry the eldeft fon of Nathan the brother died about a
year ago, leaving IVilliam the leifor of tl;e plaintiff his eldeft foo
and heir at law, and who is alfohcir at law to tlie teftator.

Whereupon a verdlS was given for the plaintiff, fubjefi to the
opinion of this court upon the followii^g queftion, " Whether
•' the plaintiff is intitled to recover."

Tames TVallace for the plaintiC.
ihomas Walker for the defendant.

This cafe was argued at the bar in this term by Serjeant Bur-
land for the plaintiff, and Serjeant Walker for the defendant.

Serjeant Burland — ^The queftion is, whether IVilliam Wrigki
the voungeft fon of Nathan Wright (the tcftator's brcdicr) the
nepnew of the teftator took an cftate in fee, or for life only, in
the two houfes at Seacrofty with a croft with the appurtenances,
being the premifes now in queftion, by the deviie in the tall i
which runs thus, viz, ** As touching the difpofttion of ail my
•* temporal eftate, I give and difpole thereof as followetb, Im-
•* prinds, JFirft of all, I will that my debts and funeral charges
•• be paid and difcharged; Item, I give unto Henry Ifrigh-*
•' and Nathan Wright my nephews, two houfes at Bank in
•* LeedSf with a croft and appurtenances belonging to tbem,
•• to be equally divided between them," then follows the de-
vife whereupon tlie queftion arifes ; ** Item, I give unto WilUa^
" Wright my nephew two houfes at Seacroft with a croft and
•• appurtenances belonging to them, now in the occupation of
•* jfohn Carter and Elizabeth Thornton^'' then he gives fcveral
fmall legacies, and to his brother Henry &v6 ftuUings in the
1 year

£ast£R Term 13 Geo. III. 1773. 417

year as long as he livcth ; and then he goes on and fays, *• And
" it is my will that none of the hoii^s and land named above
'• to be entered to by the above-named Henry Wright^ Nathan
'* Wright^ and IVilliam Wright^ [his three nephews] until the
*• deceafe of my executor; lUm^ I leave unto Nathan Wright
** my owii brother to be full executor of all goods and chattels
*' wliatfoever, and to be full executor of this my lafi wiU and
•• teftament.

I am humbly to contend that William Wright the nephew of
the teftaior (and youngeft fon of Nathan Wright the youngeft
brother and executor of the teflator) took an eilate for life only,
after the death of his father Nathan the executor, who took
an eilate for life by necefTary implication in all the houfes and
lands.

I expefl it will be argued on the other fide that by thefe
words, viz. " As touching the dijpofition of all my temporal ejlate
•* as it hath pleafcd Almighty God to bejlow on mel I dijfofe thereof
" asfollowetk^' that William the nephew took a fee m the pre-
mifes in queftion, by the intention and meaning of the teftator.

Lord Chief Juftice — ^Thcn let us hear my Brother Walker.

Serjeant Walker — I humbly contend that William Wright the
devifee of the premifes in quetlion took an eftatein fee therein* by
the intention of the teftator, taking his whole jvzV/ together ; theie
words all my temporal ejlate as it hath pUafed God to bejlow on
fne, carry all the real eftate in fee, and all the perfonal eilate.
So in Tanner and Wije, 3 P, Williams 295. The teftator's mil
in that cafe was in this manner; *' In the name of God amen^
^* As to all my temporal eilate with which it hath pleafed God
'* to blefs me, I ditpofe of the fame as follows : I will that my
** debts be paid;" after, he difpofed of feveral pecuniary and
other perfonal legacies, gave 41. a week to a relation for her
life, then came thefe words, •' All the reft of my efiate, goods
** and chattels wliatfoever, real and perfoqal, I give to my be*
*• loved wife, whom I make my executrix ;*' the teilator died
poiTeifed of leafes for years, and feifed of lands of inheritance in
iee-fimple. And Lord Chancellor Taltot with great clearnefs
decreed, that all the real eilate did well pafs by the will to the
teftator's wife and her heirs. He alfo cited Bowdler \crInsSmiti,
Prec. in Cane" 264 ; Trott. verfus Vernon^ ikm. 430. Beachcrojt
verfus Bea^hcrqft^ 2 Vern, 690. I devife all my land and ejlate^
carries a fee, thefe 'Words carrying not only the land but alfo
the teftator's intereft in the land. ' Salk. 236. the Duke of BoU
ton't cafe.

Vol. III. E E . To

418 Easter Tejkm 13 Geo. III. 1773.

To this, Serjeant Burumd was ready to have anfwered for the
plaintiff, but was prevented by the Lord Chief Juftice, who faid
there was no diffculty in the cafe ; and after flaring the cafe as
above, gave his opinion for the plaintiff the heir at law to the
following effefi.

Lord Chief Juflice De Grey — ^There is no cafe where the
tcflator makes ufe of thefe or the like words, " As touching the
" difpofition of all my temporal (tftate^ I give and difpofe thereof
*• as foUowelh,'* and immediately afterwards devifes his feveral
eflates or his feveral lands to divers perfons, that ever was de-
termined to carry a fee ; *• All my temforal eflate I give and difpofe
" thereof as followeth,'' and then he defcribes the efbte or land,
and gives to his nephews Henry and Nathan two houfes and a
croft at Bank in L'eds^ and to his nephew IVtlliam two houfes
and a croft at Scacroft, which words are only defcriptive of the
particular eflates or lands as to locality, not oi the quantity of
his eflate in thofe lands, fo do not carry a fee.

It may feem probable that the teflator's intention, was that
his nephew IVUIuim fhould have a fee, but it is a clear rule that
there mufl be exprcfs words, or a neceffary implication, to dif-
inherit the heir at law ; neitlier of thefe appear in the prefcnt
cafe, and therefore the legal operation of the words of the xmll
mufl govern.

By the words all my eflate^ he mufl be underftood to mean the
thing, xnz. his lands, and not the quantity of eflate [a fee] which
he had in thofe lands. There is a great difference between the
defcription of the thing, eflate, or lands devifed, and the quantity
of interefl or eflate in the thing cfbtc or lands devifed.

The word hereditaments may in a will be a fee ; fo if I make
one my heir; or the word reverjjon may give a fee; but ail
implied devifes in fee are fubjefcl to reftricUons ; as, I "give all
my eflate in fuch a place to A. 5." or " I make fuch a one my
heir for life," carry only an eflate for life. Some words, as, " I
give all my tenements, lands, houfes, farms;'* of themfelves, nc
ver carry more than a defcription of the tiling per fi. It is true
where there's a purpqfe or intention joined to fuch words, as " I
give my houfes to A, B, to pay my debts," thofe words carry
a fee, fo a devife to fell, is a fee; or a devife of houfes
charged with debts- which takes money out of the pocket of the
dcvifee, is a fee. It does not appear in this cafe that the teflator
has charged the lands in queflion with any dejjts ; he defircs hi*
d'ebt« to be paid, but doth not fay out of what eftate; the cafe of
Tanner verfus fFj/e, 3 IFUliams 295, is very different, and doth

not

feAsTBE tEii« 13 GtLO. Hi. i7fi, "^410

Hot apply to the prefent cafe; thai was a devife of tlie refidue
of all his eft^te real and perfonal, and had relation to what went
before in that mil; where words taken by themfelves [in a wilf]
hiay only give an eftate for life» yet by relation to otner words
in the mil, they may carry a fee, Greitn verfus Armfteed, Hoii 65. |,J*^ *^"
and in Sali. 234. The devife of the Bell Tavern would not q^s^iruA
have carried a fee, but by connefting it to what went before. Gav* in
Upon the whole I am of opinion that William the nephew ^•** ^^
took only an eftate for life, and that the leflbr of the plaintiiF
who is heir at law to the tefiator it intitled, fo the pojtea muft
be -delivered to the plaintiffs And of the fame opinion was the
whole court.

Judgment for the plaintiff.

Tiflen Efq. demandant ver/us ClarkCj gent tenant In ^BUdt-Re*.
a writ of right patent. ]V'2^^'

Middlefex\pRANCIS John Tjfen Efa . by John Vernon his at- ^S^j^ .♦
(to wit) torney demands againft deorge Clarke^ gentleman^ in 1 writ of

ten meifuages, ten gardens, bnefhop, two coach-houfes, «|Htpifce«.
three ftables, and two acres of land with the appurtenances, ifi
the parifti of Saint John Hackney, as his right and inheritancfe
by writ of our Lord the King of right, and thereupon he faith,
that Francis Trffen Efq. father of him the faid rrancis Johfi^
was feifed of the tenements aforefaid, with the appurtenances iti
his demefne as of fee and right in the time ot peace in the
time of our Lord George the firft, late king oi tireat Britain,
(to witj within frxty years now laft paft, by taking the expUts
thereot to the value, &c. and from the faid Francis the father,
the right defcended to the faid Francis John^ who now demands
as fon and heir of the faid Francis his father. And that fuch is
his right he offers, G?r.

And the faid George Clarke by John Swale his attorney comes Plfeathege-
and defends the right of the laid Francis John Tjfen, and the '*l")p|JJ*ig
Jeifin of the faid Francis Tiffin, when» G?r. and the whole, &c, mifi'i%jloiM^
and whatfoever^ S?f . and moffly of the tenements aforefaid as n>oo tbcV: .
of fee and right, &c. and he puts himfelf upon the grand affize ^^* "•**^ .
of our Lord the King ; and he prays a recognition to be made,
whether he the faid Seorge Qarke has a greater title to hold the
tenements aforefaid with the appurtenances, to him and his
hJirs as tenants thereof, as he now holds the fame; Or .Whether
the faid Francis John Tiffin has title to hold the fame tenements,
with the appurtenances, as he has above demanded the fame,
&c. and the faid Francis John Tiffta doth the like.

£ fe a * The

400

Ea9tea TebM 13 Geo. III. 17/3*

The tenant by leave of the court pleaded another plea in tnf/
that a fine with proclamations was levied of the lands in qncftion
in Michaelmas term, i6 Geo. 2. and non-claim.

Whereupon it was moved by Serjeant Burland for the deman-
dant, that the tenant might fliew caufe why one of his pleas
Ihould not be ftruck out; becaufe upon the firft plea [which is
The #9l& the general iffueT the ndfe is joined upon the mere rights whicti
joined apoii can only be tried by the grand ajfize^ which muft confift of four
!^betti«iby l^nighta of the faid county girt with fwords, and twelve odicr
thegraad jurors, in all fixteen jurors or recognitors; but the iffue to be
tlBse. joined upon the plea in bar of a fine and non-claim, muft \it

Booth 101. tried by a common jury of twelve^ and there cannot be one
fca. 41. vtvirt to try both ilTues.

Upon fliewing caufe by Serjeant Wcdkitr for the tenant,
ttery diing why one of the pleas fliould not be ftruck out, the whole coo^
*"*T iLf'^*" fccmcd to be of opinion^ that every thing may be given in evi-
upOT thii" dence upon the m/yf joined upon the mtrt rights except coUaUral
UTae except warranty^ Brook Droits pi. 48. but did not give any pofitivc
opinion. .

coUateral
WSliBty.

MThereupon the Serjeant for the demandant and tenant 2^ecd
that a rule fliould be made by confent, that the plea in bar of
a fine and non-claim fliould oe ftruck out, and that upon the
trial, the tenant fliould be at liberty to give in evidence upon the
firft plea, a yfif^ acknowledged to the ufe of the tenant in fee
with proclamations, and that the demandant or his father never
made any entry to avoid ihf^Jinc; and that the demandant
fhould be at liberty to give in evidence, that the parties \o
thtfine^ or any of tliem at the time of levying the faid^w, had
•nothing in the preraifcs the tenements in queftion ; fo the rule
was drawn up accordingly.

Nota. This caufe was tried at the bar afterwards in Eajler
term, in the fouiteenth year of his prcfent Majefty,when
the grand qffize found a'verdifl for the demandant Tj^^ff*

f Black. Rep*
81. r -

,s.c.

[T hirt a mia
cannot pofi-
tiveiy recol*
lea a faft,
•< but ihovM

Thomas Miller's cafe. C. B.

^1^ HE King's writ of habeas corpus iflued out of this oourt,
* dire3ed to the warden of the rk^f, to have the body oi
-*»««iv.<» '^omas Miller in his cuftody before thcjufticcs here, togetlier
rather beireire ^^i^l^ the day and caufe of his being taken and detained! the
the affirma- tenor of which faid writ, the indorfentcnt thereon, and the rc»
foil ind'fiif- ^^^^ thereof are in thewords following, fviz.J
fadttry answer by a witaeia ob a CbmmUSoa of Baakrvpt.]

Gcorfc

EiiSTER Term 13 Geo. III. 1773. 441

Ceorge the third by the grace of God of Greai Britain, France The writ vf
aind IrMnd, King, defender of the faith, Uc. To the warden of ^^^^
our prifon of the Fleet or his deputy there, greeting. We com- Sth/tSu?
inand you that vou have before our juftices at Wejtminjltr, upon chAikitU
Tuefday the j^th day of May next, at the fitting of ttic court on *^
that day, the body ox Thomas Miller in our faid prifon in your
cuflod}r detained as it is faid, by whatever name the faid Thomas
Miller is therein called, together with the day and caufe of his
being taken and detained, to do and receive what our faid juf-
tices (hall then and there confider of him in this behalf, and
have you then there this writ; witnefs Sir William DeGrey
Km. at Weflmnjler the twenty-a^hth day of April in the thir^
f^enth year of our reign.

Thus indorjid f Henry Townly Ward, 29th April 177^.

by H. T. Ward i By rule of court dated the 28th April 177^.

Miller'j attorney L By the ftatute of the 32d of Charles the 2d.

r By virtue of this writ to me direCled the body
I ot the within named Thomas Miller before
Thus indorfed I the juftices of our Lord the King within
by the warden ) written, at the day and place within conuin-
of the Fleet | ed I have ready, as is to me within commanded*
prifon. The anfwer of

Zohn Eyles Efq, warden of the prifon of our
ord the King, of the Fleet.

The Fleet (to wit] I John Eyles Efq, warden qf the prifon Tht fbhedoli
of our Lord the Kmg of the Fleet, to the juftices of our Lord J?"^*f**
the King at Wejiminfter, moft humbly certify and return, that Sj^iHJ ^w*'
before the coniing of the writ of our faid Lord the King to this ictura thert*
fchedule annexed and to me directed, (that is to fay) on the «^*
twenty.feventh day of February in the year of our Lord one
thoufand feven hundred and feventy-three, Thomas Miller in the
faid writ named, was brought iilto the faid prifon of the Fleets
and is now detained under my cuflody in the faid prifon by vir*
tuc of an order under the hands andf fcals of the major part of
the commiffioners in a ^ommiflion of bankrupt awarded and
iflued againft one Samuel Cole; the tenor of which faid order is
in the words and figures following, (that is to fay) at the Crown
and Rolls Tavern in Chancery -lane, in the county of Middkfex,
the 26th day of February 1773, whereas the King's Maiefty's
commiflion under the Great Seal oi Great Britain, groundedf upon
the feveral flatutes made and now in force concerning bank-
rupts, or fome or one of them, bearing date at WeftminJIer the
fecond day of June, in the twelfth year of his prefent Ma«
iefty's reign is awarded and iflued againft Samuel Qole^ of the

£ £ 3 parilb

4W Easter Tbhm 13 Geo. III. 1773.

pariih of Saini Paul Covait Garden^ in the county of MiJM^ex
mercery dealer and chapman, direfled to John Seare^ Fowkr
Walker^ Abd Moyfcy Efquircs, Henry Barnes and Thomas Griffiths
gentlemen, or any four or three of them. And whereas the bid
commiflioners in the faj^d commiiTion named, or the major nart
of them, having begun to put the faid commtflion in execution
upon due examination of witnefles, and other good proofs upon
oath before them bad and taken, did find that the faid Samuel
CqU before the date and fuing forth of the faid commiflkm did
become bankrupt, within the compafs, true intent and meaning
of fome or one of the ftatutes made and now in force concern,
ing bankrupts, and did adjudge and declare the faid Samuel Cole
a bankrupt accordingly. And whereas on the twenty^fixth day
pf February one thoufand feven hundred and feventy-three, Tho^
puis Miller of Goldjmxih-Jlrtet in the city of London^ weaver, was
fummoned to appear before us whofe hands and feals are here-
under fubfcribed and fet, being the major part of the commif*
iioners in the faid commifTion named and authorized, at fix of
(he dock in the afternoon of the day lafl: aforefaid at the Oown
and Rolls in Chancery Jane^ in the county of MiddUfex aforefaid,
in order to be examined touching the difclofure and difcovcr)'
of the faid bankrupt's eftate and efie£ls ; and whereas we the
faid commiflioners met at the place aforefaid, when and where
the faid Thomas Miller^ in obedience to our fummons, appeared
|)efore us, and he being afked upon oath feveral (^uefiions touch-
inff the difcovery of the faid bankrupt's eftate, he did not in our
judgment and opinion fully make anfwer to feveral qucflions at
that time by us put to him. And the faid Thomas Miller being
afked by us amongft other queftions, which were neceflary for
the difcovery of the faid bankrupt's eftate, " Whether or not ke
** purchafed by a broker two certain bales of chinafilk^ of the value
•* tftwo hundred and feventy pounds or thereabouts^ mentioned in
** ihe latter part of his examination^ taken before us on the
•* twenty 'third day of February injlant^' (which faid exatdi-
nation was then and there read to him) '• or whether he could
*^ form any beliefs whether he bought them by a broker or not?
Tne faid Thomas Miller for anfwer faid, *' He could not pof-
*^ Jitively re^olleSi whether he had bought the fame by a broker or
•• not^ Qutjhoidd rather believe he had bought the fame by a broker."'
And the laid Thomas Miller being further afkcd, " Whether ar
^f no$ he believed he had bought the faid two bales offtk by a
•• broker?'* He faid, " He could not give another anfwer,''
♦* than the above-mentioned. And the faid Thomas Miller
being told by the faid commiflioners, that the above-mentioned
anfwer wai not a full anfwer to their queftion ; and being fur-
ther afked, •* Whether, by the words [hefhould rather believe] in

" his

Eastbr Tekm 13 Geo. III. 1773. 42S

•* Ms/aid anfwer above-mentioned lu fneant, that he did beUevt
" thefaxd two bales of JUk were bought by a broker^ or uihfther
" he meant to fay he did believe thai the /aid two hales of fik
" were not bought by a broker?" He the faid Thomas Milkr re-
fufed to anfwer " whether he did believe that he had bought the
^^ Jaid two bales ofjilk by a broker^ or whether he £d believe
•• that he had not fought the faid two bales of filk by a broker?*'
And for that the faid ihomas Miller in other refpefts mifbehaved
himfelf to us, we the major part of the faid commiflioners in
the faid commifTion named, do therefore by virtue of the faid
commifHion, and of the feveral ftatutes now in force concerning
bankrupts, fofne or one of them herewith fend to you the keeper
or waraen of his Majefty's prifon of the Fleet, the body of the -
faid Thomas Miller; and do hereby command and require you
the faid keeper or warden to receive him into your cuftody,
and him there fafely keep, and there to remain without bail or
maxnprize until fuch time as he the faid Thomas Miller fliall
fubmit himfelf to us the faid commiflioners or the major part
of the commiflioners in the faid commifllon named, and full an-
fwer make to the faid commiflioners to all fuch queftions as fliall
be put to him as aiforefaid, , and according to the true intent and
meaning of the ftatute or flaiutes in that cafe made and pro-
vided fome or one of them; and this fhall be your authority for
fo doing.

JohnSeare, (L.S.)'

Fowler Walker, [L. s!)
Thomas Griffiths, [L. s!)
To Jaines Paris our raeflcnger, and""
IVtlliam Staddon and Endymxon Por-
ter— ^To all the conftables and others
his Majefty's officers of the peace to
whom thele prefents ftiall come, re-
quiring and commanding him or them
to be aiding and aflifting in the exe*
cution of this our warrant as occafion
ihall offer ; and alfo to the keeper or
warden of his Majefty*s prifon of the
Fleet in the city of London, or his
deputy or deputies.

And this is the caufe of taking and detaining the faid Thomas
Miller, whofe body I have ready according to the command of
the faid writ hereunto annexed.

Miller being now brought to the bar, the habeas corpus and Maythe4ti,,
the return thereof being read and filed, Serjeant Burland took

E E 4 feveral

424 Easter Term 13 Geo. III. 1773.

Tevcral exceptions to the return^ that it thereby appeared the
commitment vrds illegal .

ift ObjeQion. That the commiflioncrs have not fct forth
that they took the oath to authorize themfelves to execute the
feveral powers and trufts repofed in them, as com mi (Boners ia
the commiffion of bankrupt againft Samuel CoU; that it ought
to appear that thefe three commiflioners (particularly) who com-
mitted MiUer to the FleH^ did take the oath before they afied
under the commii&on.

ad Objeftion. That they have not fet forth that Sawue/ Coi
was a trader, and the other requifites neceffary to make him
liable to become a bankrupt.

3d Objeftion. That the commiflioncrs have not conformed
themfelves to i\it flat, ^ Geo, 2. ch. Qo.Ji3. 13. whereby it if
ena6led, that in cafe any perfon (hall be committed by the com-
miflioners for refufing to anfwer,.or not fully anfweringany
queftion, the commimoners (hall in their warrant of commit-
ment fpecify fuch queftion ; they have not fully fpecified ihtfirjl
queftion^ but the fame refers to a former examination of mlkr
on the 23d of February ^ which examination, or any queflion
then put to Miller do not appear to the court ; as the queftion
put to Miller on the 26th ot February refers to a former exa-
mination, they ought to have dated tne quejlion put to Milkr on
that former examination on the 23d of February in hac veria,
that the court might judge whether the fame was material or
relevant for the difcovery of the bankrupt's eilate and qSc&s ;
but as it (lands upon this return of the habeas corpus^ the court
cannot form any judgment what the queflion related 10, or bow
it was material ; and the)- raiffht as well have aflced MiUer whe-
ther the horfe which yon the laft match at Newmarket wa
bought by a broker or not. — It doth not appear to the court as
it oueht, that the queflion was material, and that Miller was
bound to anfwer it. 2 Stra. 88q. fo he ought to be difcharged,

4th Objeftion. But fuopofingthe queftion to be well enoughj
Hated, I lay ^tiller has fully anfwered it; a$ appears by the
return. *

jth Objeftion. It appears by i\[e conclufion of the «/jrr?,
that the commiflioners have committed Miller to ihc Beeit
*• there to remain without bail or mainprizc until fuch time as
•• he the faid Thomas Miller fliall fubmit himfelf to us the faid
** commiflioners, or the major part of the faid comrai(fioner»
•* in the faid cpmmiflSon named, and full anfwer to m'jike to the

•* fai4

Easter Team 13 Geo. III. 1773, 425

•* faid commiflioners, to allfuch quejlions asjkall be put to him as
^' aforefaid, and according to the true intent and meaning of
^^ the Aatute or flatutes in that cafe made and provided, fomp
•• or one of them." He is hereby committed until he fliall anr
fwer eUl fuck quejlions asjhall be fut to him; here the commif-
(ioners have exceeded their authority moft clearly ; for no man
c^ fay that MilUr can be lawfullv dciained in piifen until he
fhall anfver allfuch quejlions^ as (hall be put to him by the com-
mifTioners. It ought to have concluded as it was in Perrotl'%
cafe, viz. '* until he (hall anfwer to the queftions fo put unto
** him, [as were fpecified in that returp] by ps a$ atorcfaid."
3ee Bracy'% cafe, i Ld. Raym. '99, ioo#

In anfwer to the firft objeElion it was faid by Serjeant Daoy^
that it fufficiently appeared to the court that the commiflioners
had authority to a6l under the commiflion iflued againft Cole.
bec4ufe.it was Hated they are commiflioners, and had f^6le4
^therein.

To the fecond objcSIon, that it doth not appear that Col^
was a trader and liable to become a bankrupt, he anfwered^
that it appeared to the court by the return^ tnat the commiff
lioners put the commifFion in execution, and, upon due exami-
nation of witneflcs,' and other good proofs upon oath, did find
that Cole^ before the date and fuing forth the commilFion, did
become bankrupt, which the Serjeant faid was fuiEcient, without
fettihg forth all the particulars reouiGte to make ji man liable t9
^come a bankrupt.

To the third objeftion, that the queftiofi referred to ^ former
examination which was not dated, be anfwered, that there wa|
no occafion to repeat it, becaufe it is ftatcd that the faid former
examination was then and there read to him [h/liUer\ 'and the
queftion being put to him, as above, touching his purchaHng the
two bales of hlk, he did not give an anfwef to the f9tisfa£lion of
the commiflioners.

To the fourth objeftion he anfwered, by infifting that Milkr
had not given a full anfwer to the queftion ** Whether or not
''he purchafcd by a broker two certain bates of China filk of
** the value of 270/. or thereabouts, mentioned in the latter
** part of his examination, taken before the commiflioners on
*' the 123d day of February inflant, (which examination was then
** and there read to him) or whether he could form any beli^
" whether fee bought them by a broker or not? his [Aw^r'sJ
" anfwer being, that " he could not pofitively recollea whether
** he had bought (he fame by a broker or not, but fliould rather
*^ bebei^e he had bought the fame by a broker;" the Serjeant faid

^ 4^

^26 Easter Term 13 Geo. III. 1773.

this was not a full anfwer to the fatlsfaQion of the commif-
fioners, and therefore they committed him ; and he further faid
he would put *the caufe upon this fingle point, viz. that the
queftion was not fully anfwered.

To the fifth objeftion Serjeant Darfy faid, he wifhed it had
not been mentioned in the warrram, " And for that the Jaii
" Thomas MilUr in other refpeSs rmfithavedhirnfdf to tkt com--
.*' mifjioners; but infilled that if there was other legal caufe
(befides mi (behaviour) to commit him, he was rightly imprifoncd,
until he (hould anfwer allfuch quiflions as Ihould be put to him
by the commiffioners, tending to the difcovery of the eftate and
effef^s of the bankrupt.

Serjeant Glynn for the commlflioners anfwered the objeffions
very much to the like effeft Serjeant DavylxzA done before, and
therefore I (hall not make a necdlefs repetition.

Lord Chief Juftice Dc Grey — ^^By the old ftatutes of bankrupt
of the 34 & 35 Hen. 8. and 13 Ebz. ch. 7. the commifiioners
had no power to connnit; but they had power to call before
them perfons to be examined on oath for the difcovery of the
bankrupt's eftate and effefts; and -if fuch perfons upon exami-
nation, did not difclofe the whole truth of fuch things as ihcy
fhould be examined of, or deny to- fwear, then fuch perfons
fhould forfeit double the value of the goods and debts by them
concealed.

The flat, t Jac. x. ch. 15. gives the commiffioners power to
commit perfons refufing to be fworn, and make anfwer touching
the bankrupt's eftate and efFefts ; this power is adopted by the
Jlat. 4 £? 5 Ann. i:k. \y. And by the 5th of Geo. 2. ch. 30. fed,
16. which enaSs (amppgft other things) that it fliall be lawful
for the commiffioners to examine every perfon duly fummoned,
or prefent at any meeting of the commiffioners touching all
matters relating to the perlon and effefts of the bankrupt, and
any a6l of bankruptcy committed bv him, and alfo to reduce
into writing the anfwer of fuch perlon, which examination the
partv examined is required to fubfcribe, and in cafe fuch perfon
ihall refufe to anfwer, or fliall not fully aiifwer to the fatistafiion
of the commiffioners all lawful queftions put by them, &c. it
(hall be lawful for the commiffioners to commit him to fuch

f^rifon as they fliall think fit, there to remain without bail until
iich perfon fliall fubmit himfelf to the commiffioners, and
full anfwer make, to the fatisfaftion of the commiffioners, to all
fuch queftions as fhall be put to him, and fubfcribe fuch exa-
mination as aforefaid* This^atut€ has decided the mode to be

purfucd

£a8Tbb Tebm 13 Geo. III. 1773- 4^f

purfued in this matter ; in Ptrrotft cafe of commitment, the
^ueilions put to him were in writing; and he was committed un*
til he ihouldanfwer the fame, which was righL

In the jprefent cafe, UiUer had only two ways or means to en^-
able him to anfwer the queftion put to him, either by recoUcSion
or kdief: the firft is knowleige^ and muft imply confdoujmfs s
but in fome cafes no traces of a fa3 remain in a man's memory
whereby he can recolUS the fa£l, it is poiGble he may have loft
all AnowUdge of it ; and if he has, he can only anrwer that he

doth not know^ or cannot recoUtS the fa£l. ^A man may ft-'

coUeS to a certain degree, and though be cannot recoUeS at one
time, he may at another : fuppofe I may not, or cannot recolkS^
yet I may and can believe I did a certam fa£l, becaufe you tell
me you faw me do it; then I believe I did it, becaufe I give
credit to you as a perfon of veracity. How is it in court)i
ofjuflice, when a man fwears he nexthtx recolUQs nor h£coa
that he did fuch a fad ; or that he did or did not do fuch
a fafi, to the heft of his knowledge^ remembrance and belief? It

is certainly a full anfwer. A fubfcribing witnefs to a bond

may fwcar he has totally forgot that he fpbfcribed hts name at
a witnefs thereto, and that he cannot fwear pofitively that he taw
the obligor feal and deliver the bond; but feeing his own hand,
writing fubfcribed as a witnefs to the execution thereof, he ma^
fwear he believes he faw the obligor execute the bond; and fuch
anfwer would be fatisfadory to the court. Suppbfe a banker
was upon examination afkcd whether he paid fuch a bill by caih
pr notes, and he anfwers he cannot tell, but his books may in-
form him, or his books may be loft, and his clerks gone away
from him ; if on looking into his books he fees by the hand-
writing of his clerks that the bill appears to be paid by cafh or
notes, he then fwears to his irf/g^accordingly ; .but if hi$ books
be loft or deftroyed and his clerks are dead or gone, and he then
fwears he cannot tell, or doth not know whether the bill was
paid by ca(h or notes, his anfwer is full, and ought to be taken

as fatisfa£lory.-^ So a merchant buying many goods may have

forgot, and cannot recoiled or be abje to fwear whether he
bought a certain particular parcel and fort of goods by himfelf or
a broker. But,

To come to the prefent cafe ; the examination was to find out
whether the two bales of filk were or were not the property of
Cole the bankrupt, fo the oueftions put to Miller item to be
material.

The ift queftion is— Did you purchafe by a broker the two
bales of filk? His anfwer was, "I cannot pofitively rrr^/Zffi

*• whether

428 Baster Tbrm 13 Geo. IIL 1773.

** whether I bouj^ht them by a broker or not ;" this is a fuffi.
cient anfwer, as it feems to me.

The 2d Queftion " Can you form any heliff whether

•• you bought them by a broker or not ?" His anfwer was, ** 1
*' fliould raiher believe I bought them by a broker." I thiok
this anfwer amounts to a degree of idiff fuiScicnt to aofwer
cixjil purpq/is. Jf an heir at Taw, in a court of tquity, was to
fwear in his anfwer that he rather bdim>ed his anceftor made and
left a zi;///,.^ the court would hold him to it. — I think in this
cafe Miller would be liable to be convided of perjury if it could
be proved that he bought the filk himfelf, and not by a
broker*

The 3d Queftjon — " Whether or not do you bcUeoe yoa
*' bought the twp bales of filk by a broker?*' liis anfwer was,
^* I cannot give any other anfwer," (that is to fay,) than I hav«
now given, viz. ^^ I cannot pofitively rccolUd^&c" but 1 rather
it&cvc^ i;f<.

The 4th Queftion— •« Whether by the words IJhould rather
'* beliaie I bought them by a br^ier^ you mean that you do betttu
•• the two bales of filk were bought by a broker, or whether pu
f* meant to fay, you do believe that the faid two bales of filk were
♦* not bought by a broker ?" MUer rcfufed to anfwer this 4th
queftion, and this is the only caufe of committing him ; I think
in my confcience he had before (worn to a degree of belief ivi-
^cient to anfwer civil purpofes^

The conclufion in the warrant of commitment /eems to b<
wFong, J)ut as to this point I give no opinion ; in Perrod cafe
the conc}ufion of the warrant was right.

After Miller had faid, he rather believed he bought the filk by a
broker^ the commiflioners might have proceeded to aik ixim who
was his broker, £?f . I am of opinion upon the whole, thai
MiUer muft be difcharged out of cuftody. The other three
Judges were of the f^me opi;iion, and ifliUer was accordin^y
difcharged.

TRINITY

4t9

TRINITY TERM

13 Geo. III. 1773.

Golden verfus Manning and Peyton. C. B. "^^T^q^'

London Q AMU EL MANNING late of the city of Lon^ [A carrier b
(to wit.) ^ don^ inn-holdcr, and John Peyton late of the fame *'*^"^^^"

place inn-holdcr, were attached to anfwer Richard J^^^e
Golden in a plea of trefpab on the cafe, &c. and whereupon general courie
the faid Richard Golden by Richafd Rudd shi$ attorney com- ^^?^^
plains, that whereas the faid Samuel and John now are, and for ^ ^
divers years lad pad have been, common carriers to carry ^oods. Declaration.
wares and merchandizes .from the town of Birmingham m the '^^.^^^ *•
county of Warwick to the ciiy ol London^* iJtiih&i^A Samuel ^^^^^
And John whi 1ft they were and continued common carriers as
aforefaid, that is to fay, on the loth day of May^ in the year of
our Lord 1771, at Birmingham aforefaid, did receive into their
care and cullody two pieces of (ilk, confifting of divers, (to wit)
lip yards of the value of 30/. in good order and condition^
being the property of the faid Richard Golden^ to carry the fame
fafely from the faid town of Birmingham to the city of London
aforefaid, and to deliver the fame to the ufe of the faid Richard
Golden^ at the houfe of one Samuel Ireland in Prince' sjtreei
SpittaUJields^ London^ that is to fay, at London aforefaid, in the
parifh of Saint Mary le Bow in the ward of Cheap, Ani the
faid Samuel and John on the fame day and year at London afore-
faid, in the pariih and ward aforefaid, dia undertake to carry
and deliver the faid pieces of filk in manner aforefaid, for a
reafonable reward to be paid them by the faid Richard Golden:
neverthelefs, the faid Samuel dx\d John have not, nor hath either Breach,
of them taken care to carry and deliver the faid pieocs of filk Negligence iji
in manner aforefaid, but have and each of them hath hitherto ^1/*^^'"'"
entirely omitted and neglefled fo to do, fo that the faid pieces of
filk, nor any part thereof have ever hitherto come to the faid

Richaxi

430

TaiNiTY Tbrm is Geo. HI. 1773-

sd Coont.
For not ca^-
vying ao4 de-
livering goods
in good order
and condition
in a reafon.
able time to
the plaintiff 't
«fe for a rea-
fenab!e re-
ward to bt
paid to de-
fendants.

Brffch*
Negligence,

3d Coimt.
In coafider-
attoii that
pfaintiff de-
liveretkgoods
to defendants,
at their /e«
^ueft to be
carried from
Birmingham
to London*
and there de-
livered in a
leafonable
time for a rea-
ionable te-
wardf defend-
ants nnder-
cook to carry
and delirer
the fame ac«
cocdisgly.

vfcank Of
propnfe and
uadcxUking.

Richard Golden or to his u(e. And whereas the faid Samuel and
Jfohri^io being common carriers as aforefaid, on the day and year
lall aforefaid, at Birmingham aforefaid, did receive Into iheif
care and cuftody two other pieces of filk conHfting of divers,
(to wit) 119 yards o£ the value of 30/. in ffood order and con-
dition, being the property of the laid Richard Golden^ to carry
the fame fafely from the town of Birmingham to the city of
London^ and to deliver the fame in good order and condition^
and within a reafonable time, to the ufe of the faid Richard
Golden^ at the houfc of one Samuel Ireland weaver in Pnnces-fireet
S pi ttal'Jields- London^ that is to fay, at London aforefaid, in the
parifli and ward aforefaid ; and the faid Samuel and John on the
fame day and year at London aforefaid, in the parilh and ward
aforefaid, did undertake to carry and deliver the faid laft men-
tioned pieces of filk m manner aforefaid, for a reafonable reward
.to be paid them by tlie faid Richard Gulden: neverthelefs the
faid Samuel and John did not within a reafonable time take care
to carry and deliver the faid laft mentioned pieces of filk in man-
ner aforefaid, but delayed the delivering of the faid laft- men-
tioned pieces of filk an unreafonable time', (to wit) for the fpaci
of a year, and behaved theriifelves fo negligently in the cuftody
and care of the faid filks, that for want of due care in them and
their fervants in that behalf, the faid laft mentioned pieces of
filk were dariiaged, and rendered of no value to the faid Richard
Golden, And whereas on the loth day of May in the year of our
Lord 1771, at London f (to wit) in the parifh and ward afore-
faid, in confidcration that the faid Richard Golden^ at the fpecial
inflance and requefl of the faid Samuel and Jdhn^ had delivered
to the faid Samuel dx\i John divers other goods and chattels, (to
wit) two other piece's of filk of the faid Richard Golden of the
value of 30/. to be fafely and fecurely carried and conveyed from
Birmin/rham aforefaid to the city of London, and there, (to wit)
at London^ to be fafely and fecurelv delivered in a reafonable time
to the ufe of the faid Richard Golden, at the houfe of one Samud
Ireland in Princes Jlreet, Stiital-fields^ London^ for a reafonable re-
ward to be therefore paia by the faid Richard Golden to the faid
Samuel and John, they the faid Samuel and John undertook and
faithfully promifedtheTaid Richard Golden fafely and fecurely to
carry and convey the faid lad mentioned goods and chattels from
Birmingham aforefaid to London aforefaid, and there fafely and
iecurely to deliver the fame in a reafonable time to the ufe of
the faia Richard Golden, at the houfe of the faid Samuel hrdani
in Princes 'ftreetr Spiital- fields, London: And although the faudSfl-
mnel and John, on the fame day and year at Birmingham aforefaid,
had and received the faid gooas and chattels to carry, convey and
deliver as aforefaid; yet the faid Samuel and John^ not regarding

their

Trinity Tbrm 13 Geo, III. 1773. 431

riieir ^forefaid promife and undertaking, but contriving and
fraudulently intending craftily and fubtily to deceive and defraud
the faid Richard Golden^ in this behalf, have not yet fafely and
fecurely carried and conveyed and delivered the (aid goods and
cliattels or any part thereol to the ufe of the faid Bichard Golden^
at the houfe of the faid Samuel Ireland in Princes -ftrcet^ SpittaL
Jields^ London^ or in any other manner to the faid Richard Golden
or to his ufe, although a reafonable time for the delivery thereof
hath long fince elapled, and although to do this the faid Samuel
and John afterwards, (to wit) on the firft day of Novtmbtr in the
year of our 'Lord 1772, and very often both oefore and afterwards
at London aforeiaid, in the parifh and ward aforefaid, were requeft*
ed by the (aid Richard Golden: but they, fafely and fecurely to car«
ry, convey and deliver the fame according to their promife and
undertaking, have hitherto wholly refufed and Hill doth refufe;
whereupon the faid Richard Golden fays he has damage to the
amount of 40/. and thereof he beings fuit, &c*

And the faid Samuel and John, by Car^ Baylev their attorney, Plea,
come and defend the wrong and injury, when, &c* And as to '^*l*^"j
the firft and fecond counts m the faid declaration mentioned £*y fe<J,^coont»
that they are not guilty of the premifes above laid to their charge
in manner and form as the bid Richard hath above thereof com- D'ldmtpr^
plained affainil them, and of this they put themfelves upon the ^* ■« » the
country, &c. and the faid Richard Golden doth the like, lie. Andas ""***
to the laft count in the faid declaration mentioned, the i^iA Samuel
and John fay that they did not promife or undertake in manner and
i<>rm as the faid Richard hath above thereof complained agaifift
them, and of this they put themfelves upon the country, i!fc^
and the faid Richard Golden doth thq like, &c, ; therefore to try
the faid feveral iffues between the parties aforeiaid, the flieriSs
are commanded that they c^ufe to come here on the morrow oi
the purification of the bleffed Mary twelve, fis^c.by whom, iicl
and who neither, (ic. to recognize,^&f . becaufe as well, &c.

Upon the trial of this caufe a verdifl was given for the plain* Cafe f^ted (or
tiff, with damages and cofts, fubjeft to the opinion of this court J^ J^"^
upon the following cafe, ftated in thefe words, {viz,) It ap-
pearing upon the trial of this caufe that the defendants were
common carriers from Birmingham to London; that on the 7th
day of June 1771, they received a box containing two pieces of
iilR confifting of 119 yards, dire&ed to Mr. Samuel Ireland^
PrinceS'Jlreet, SfnitaLfieids^ London ; that the box came to the
defendants' warehoufe in London^ on tlie 8th of June following,
with no legible directions upon it, where it remained for toe
foaceof a year; at which time the plaintiff and Ireland fettling
uicir accounts together, difcoveied the miRake of this box having
been fpiit by the Birmingham coach, and of it's not beingdelivered ;
1 upon

432 l^BiNiTY Term 13 Geo: III. 177S^

upon which, plaintiff and Ireland v^ent to the warehoufe and
found the box, and upon opening it, a letter of advice from the
plaintiff to him [Irdand'] was found therein ; and the filks then
appeared to be damaged to the amount of 29/. 14X. and for that
reafon plaintiff and Irdand refufed to take the box and Clksupon
theirbeing offered to them, and the A^icnAznx Manning refufed 10
make any fatisfa6lion for the damage ; that the defen£ints before
the faid time neither delivered the goods nor gave any intelli-
gence to Irdand of the arrival of the box at the warehoufe ; that
the name of Samuel Ireland^ and place of his abode appears in a
printed book, being a dire&ory containing the names and places of
abode of merchants and traders, which book they the defendants
bad in their warehoufe, that the wayJnlt in the defendant's
cuftody and poffeffion contained the name oi Samuel Ireland znd,
no further directions, that no inquiry was made at the defend^
ant's warehoufe at Birmingham of the plaintiff to know where
' Irdand lived, nor was any inquiry made according to the dU
reflory, and that defendants hire a porter at a ftated falary by
the week to carry out goods which come by their coach, and
receive the porterage of fucb goods as are fent out by the faid
porter.

The queiUon for the opinion of the court Is, whether under
the circumfiances of this cafe the plaintiff is intitled to recover ?

T. Walker for the plaintiff.
Jf. Burland for the defendants*

In the debate of this cafe at the bar, Serjeant Walker for the
plaintiff infilled, that it was the duty of the defendants to have
carried and delivered the filks in a reafonable time after they
received the fame at their warehoufe in Birmingham^ to Samud
Ireland zt his houfe in Princesjlreet^ Spittal-Jidds^ London ^ accord-
ing to the direftion ; that when a carrier receives goods to carry
and deliver them to any perfon at any certain place, he thereby
undertakes to do what the owr^er of the goods himfelf was 10
do and intended to have done; and the carrier is anfwerable if
any damage or lofs happen through Iiis,' or his fervant's negli-

frence or want of due care, or doth not carry and deliver the
ame to the \perjon^ or at the place, according to the direftion,
and this is by the rules and principles of the common law ; tlie
Alleys 91. carrier is intrufted with the goo(& to carry and deliver them to
the ufe of the proprietor thereof, in a reafonable time, he con-
tracts to execute ikai truft for a reafonable reward to be paid
him, and if he be guilty of a breach of that truft and contraQ,
he is, by law, anfwerable to the owner in damages. — In this calc
the defendants have been guilty of great negligence, for they
seither delivered the filks to Samud Ireland at his houfe, nor
6 gave

Tainity Tbbm 13 Geo. III. 1779. 433

^ve him any intelligence of the arrival of tlie box at the <]e« ^

iendant's vrarchoufe in London ; and therefore Serjeant Wialicr
prayed judgment for the plaintiff.

Serjeant Glynn e contra^ for the defendants, contended. TTiat
when they,received the goods at their warohoufe in Birmingham^
tJiey only undertook to carry them from thence to their ware*
houfe in London and no further,, and that it was the duty of
Ireland the configfiee, upon the arrival of the goods at London^
to haveVA^/i fentanJ inquired for the fame, according to the ad-
vice thereof which he mud have received from his correfpon-
dent the plaintiff at Birmingkam^ as is the conilant and invari-
able cuftom and ufage amongft merchants and traders, both in
refpe^l to foreign and inland trade and commerce.

. But if what is infilled upon for the plaintiff be law, eveiy
carrier of goods to London ^ mud not only provide porters for light
^oods, but waggons and barges for the carriage of heavy goods
from their refpe£livr warehoufes to all places within the bills of
mortality, but this is not the ufage, nor is it praSlicable. That
the defendant could not give intelligence of the arrival of the
goods to Ireland, becaufe there was no legible direction on tht
box, as the cafe flaies; So he prayed judgment for the
defendant.

Curia. We are to determine this cafe upon the fa£b andpar*
licular circumftances therein flated, fo there is no neceflity for
us to confider of the laws in general refpefting carriers.— It is
ftated to .us,, that thefe defendants hire a porter at a dated falary
. by the week, to carry out goods which come by their coach, apd
receive the porterage of fuch goods as are fent out by that porter ;
thcrefo^ we apprehend we are bound to fay, that tne defendants
wereobflged to fend the goods by their porter to be delivered at
Samuel Ireland*^ houfe in Princes-Sireet Spittal^fields^ according
to the direflion, and the promife and undertaktng laid in the
declaration; as the defendants conftantly kept a' porter for this
purpofe, they engaged and fpecially undertook, [in this particular
cafe] to deliver the goods to Mr. Ireland^ by their porter.

Th#re can be no doubt but carriers are oblige^ to fend notice Owen. 57^
to perfons to whom goods are direfled, of th^ arrival of thofe
goods within a reafonabie time, and muft take fpecial care that
the gpods be delivered to the right perfon. It was Iqt the neg*
ligenc^ of the defendants that the dire£lion of the box was ob-
literated^ The niafier of a flage-coach takes a greater price for
the carriaj^e of goods than other carriers, fo is certainly bound
cither to tend out the goods from his warehoufe in London to be

Vol. IIL ' F F deUve^

4S4I TimiTT Tbem 13 G«o. HI. 177»..

delivered to the pedons to whom the iame are direfied, or to
fend notice of the arrival thereof whhin a reafonable time;—
If the defendants in this cafe were to be aOced in what manner
thev ufually deliver the goods at Lamdon^ they would anfwer*
' ^ We ^ways keep aportcr at London by whom we fend out the
*' cTX>ds to be. delivered to the perfons to whom the fame are
*' oireAed ;" our opinion is confined to this particular cafe oolf.

' Judgment for the plaintiff.

s Black. Rc^ Boftock vtrjiu SaundeiB and others. C. B.

9IS.S.C. . . -^

Trefptii lies HP RES^ASSw it arvds^ for breaking and entering tbe
agajnftta ^ plaintiff's dwelling-houfe, and continumg therein for tbe
fafi^'^?*' fpace of twelve hours/ without thejeave and againft the mU of
and entering ^ plaintiff, aiid diftorbing him in the quiet and peaceable pof-
the plaintiff*! feffioD thereof to his damage of loo/.^— IITue being joined upon
**°^^j"°fAi the general plea bf not guilty^ this caufe was lately tried bclore
commiffioa- l-ord Chief Jufticc Ds ur^t when a verdiS was found for the
en of exdfe, plaintiff, and loo/i. dsanagesy fubjefi to the opinion of the court
<*««^«i , upon this cafe.

upon the de*: * . .

leBa«ni*t own IniomatJOA that he fofpcAed tmt were, coacesled 10 or about the pfaintiff '• koafti

wbcie no fnch soodi are loud. [SttSmj Cr^ fit «/. cited ^jt^wJt^.JCB. 535. a«n^]

The defcndam being an officer for the duties of excife on the
sad <rf OSober ^J7%^ upon osdi made by himfelf before two
rommiOionefs of excife^ that he had caufe to fufpefi and diat
le did fufpefi idoaitea was fraudulently hid and concealed in or
laixout the houfe of the plaintiff in HMon^red^ London^ ob-
tained a xrartant froni the fame commifftoners in the following
words, xttz.

Chiifvffict of excife in London/or ike diOief ofexeifif &c.

The warrann *' ^^Hiereas John Saunders one of the officers for Us m-
'^* jcfty's duties of excife hath this day made oath before us com-
«' mimonei's o'f excife that he hath caufe to .fufpe^ and that he
*' doth fufpefi that tea is fraudulently hid and concealed in
** fome place or places in or about the houfe of Hefoy $ofiock,
** oiliattonjireet^ merchant, within the Ihnits of the chief
"^ office aforefaid* with an iment to defraud his prefent majeftjr
"'* of his duties thereon : fetting forth in and by his faid^ oath the
'*« ground of his fufoicion^ and the fame' appearing to us to be
" reafoiiable ground of fufpicion ; we therefore by virtocof die
** power and authority* to us given, do judge it reafonable, and
'•♦ by this prefent waiiaat trader our hands and fcab, do iBtho.

. 41 rixe

Teivitt Tbrh 1ft Gbo. m. 177*. ^4ite

^^ riee andimpower the faid Jokft Saunders to enter tntp ill.tn4
** evcrv room and' place in and about the faid houlct and the
*' out-houfes thereuntcy belonging, and to fieixeall fuch /ed dnd
** other goods liable to the duties of excife^ of inland duti^
^ upon cofee^ tea^ &c. a» be fliali find fo fraudulently bid mA
^ concealed, as forfeited to bis Majefty's ufe, together with ^1
^ the caflcs or other veflels and things wherein the fame ifhall be
** conuined ; and all conftables and other his Mjijefty's oQcera
*^ are hereby authorized and required to be aiding and affiftinff
V to him in the execution hereof, and for fo doing this Aaol .
^ be to him and everyone of them a fufficient warrant. Givea

• *^ under our hands and feals this twenty-feventh day of OSohr^
** in the year of our Lord one diouiand feven hilndred and

.•* feveiity.two/'

A. Lucas i
R. Stonhewer,

The officer Sawders by virtue of this warrant entered the

1>1^ntiff's houfe, and fearched, but found no tea or other goods
iable to excife in the plaintiff's houfe.

The queftion is, whether the plaintiff is intitled to recover, ScijeaatBof-
and arifes upon thtJlattUe of the loth ofGeo. i. ch. \o.Ji8. ijj. ^^^j^
whereby it is enafied that if any officer fhall have caufe to tetoissQM*
fufpefit that any coffee^ iea^ &c* is fraudulently concealed io any j,
place, ^either entered or not entered, then, if fuch place be within
London or the bills of mortality, upon oath made by fuch of*
ficer before two cpmmiffioners for the duties, fctting forth die
ground ot his fufpicion, the commiffibners may, by warrant*
authorize the officer, by day or by night, but if by night, in /
the prefence of a peace officer, to eiiter into fuch places, and to
feize and carry away all the cofie^ Ua^ &e. which they ftall find
fo fraudulently concealed, as forfeited for the Kin^*s ufe; toge-
ther with the Dags, &c. and if any perfon* fhatl hinder the of-
ficers from entering fuch places, or in feizing or carrying away
fuch cojte^ tea, &c. the dfender (hall forfeit tool.

Saunders the officer, upon his own oath of fufpicion that tea
was fraudulently concealed in the plaintiff's dwelhng-iioufe, ob-.
tains the warrant, and by virtue, or under colour thereof enters
the plaintiff's houfe, together with the other defendants his
alliftants, they fearch the houfe but without fuccefs, for. they

• 'found nothing; the fufpicion was groundlefs; and now the ^uel-
tion is, whether the plaintiff ihall have this aftion.

it was not proved at ibe triad, nor is it fiatedto the coprt,
what the ground or' caufe of fufpicion ¥ras, that Saunders had

r f 8 when

4a^ .TEijriyy.TEBM IS Gb6. III. 177*.

when he fwore he bad cau/e to fufped that tea was fraudulently
hid ajod concealed in the pUintiff*$ houlby tiai does not. appear
to the court, they [al the excife-ojHcel have printed forms 6f
thefe informations and warrants with blanks always ready to be
£lled up occafionally with the names of whatfoever perfons they

« are pleafed to fufpefl ; the form of the oath.or infornutioii runs
. thus, viz^ " A, B. makech oath that he hath caufe to.fufpe3 and
** doth furpe6l that tea is .fraudulently hid and concealed in
•* fome place or places in or about the houfe of C. D." and
thereupon a printed blank warrant is filled up $ then, away
goes the officer with the warrant and bis myrmidons witlt him,

' ^ and ento? the houfe oi C. D. by day or by niffht, with a peace-
* officer (perhaps an ignorant drunken petit canftabUj they ranfack
the whole houfe, fearch every room, cheft, cupboard and drawer
in it.

I apprehend, all thefe fummary jurifdi£Uons given by afi of
parliament, are to be conftrued and meafured by the rules and
principles of the common l^w, for leges ipfa cufiunt ut jure
regantur.

How is the law, as to granting watranu by juftices of the
peace, to fearch for ftplen goods and feizing them ? They aie
not to- be granted without^ oath of a felony committed, and thit
the party complaining hath probable caufe to fufoed they are in
fucha houfe or place, and aojhew his reaf<ms/orJkck fiyfncum.
The execution of thefe warrants depends upon the eveitt, lAz. it
is lawful if the goods are there } unlawful, if not there ; and
although the juftice of peace who granted the warrant and the
• officer who executed it may juftify in trejpafs^ yd thie perfon
yrho makes the infonnation cannot juftify, a n. H. PL coron.
ifio, ,151. 2 Wilfon^ 291, 292-»

Saunders^ in this cafe is both the informer, and 'the officer
who executes the warrant of the commiflioners to fearch* upon
a pretended fufplcion that tea w^s fraudulently concealed in the
plaintiff's houfe, but no ground or caufq of (uch fufpicion was
proved upon the triaU or appears to the court, and therefore thi»
informer and his afliftants, by law, muft anfwer for the trefpafs
they have committed, without any caufe whatever*

The perfon whofe houfe is fearched muft not refift under the
penalty of loo/. be he ever fo fure and certain that he has no
iuch thing as any tea^ coffee^ lie. in or about his houfe ; but at
the peril of this penalty, he mull peaceably and quietly fubmit
to have every room, cupboard, clolet and drawer in his houfe
opened and ranlacked, and all bis private affairs pryed into, by

any

Trinity Tebm 13 Geo. IIL 1773; 487

«ny little excife^fficer who is pleafed to make fuch an oath as
in the prefent cafe ; what a terrihlc condition are En^lijkmen re- *
duced to, if the plaintiff cannot, by law, recover JatisUflion for.
the injury which hath been done to him !

The -officer is the informer, to whom the warrant is to be
granted, and by whom it is to be executed according to the aft
of parliament ; he is a mere volunteer, and is the perfon whom
the ftatute has pointed out to make fatisfaBion if he does
wrong ; he doth not iland in the light or fituation of a IherifF
or other law officers, who are bound to execute writs and procefs
ilTuing out* of the King's courts, without knowiit(T, or being
permitted to examine whether the fame iffued legally and rei.
gularly or not. .' *

. The Jlatuie of i« Car, 2. ch. 19. to prevent frauds and con-
cealments of the King's cuftoms and 'fnbfidies, was the firft a3
which gave fnch power to enter houfes to fearch, &c. but by
JiSl. 4* it is provided tjiat if the .information whereupon any
lu^ufe fhall be fearched fliall prove falfe, the party injured fliali
recover his full damages and crofts againfl the inforiner by afiion
of trcfpafs.

The flatuie of 13 SS 14 Car, 2. ch, \\.fr&. 32. gives xhtwrii
qfaffifiance^ and ena£is that all ])erfons aiding and afTifiing, &c,
fliail be faved harmlefs ; but it lias been rpfolved that whoever
enters by fuch writ ojafjiftance^ if he finds, nothing, he is a tref-
paffer ah ini(io. This aft of 10 Ceo, 1. now under confideratioti
(having followed one or other of the faid afts of Car, 2.) has^
pointed out the perfon who fli^ill be anfwerable in trefpafs if his
information proves falfe, « The defendant's information in the
prefent cafe has proved falfe, and if he is not, by law, anfwerable
to the plaintiff in damages, the liberty t)f this country will have
received a moft fevere blow, and every irjaii's houfe, from the
highell to the loweft, wilt be open to excife and cuftom-houfe.
officers; the defendant have done wrong, and there is no cafe in
the law wherein a man ihall take advantage of his own wrongs

Serjeant f^/^rr for the defendants— It is a general principle of
law that where any officer a£ts under the command of a court
of juftice, or of a judge or magiftraie who has jurifdiftion, the
perfon commanded is juftifiable. In trefpafs againft the iheriff, it
It enough for his juftification to (hew^ a writ : fo it is in the cafe^
of his bailiff or officer ; with this difference, that the iheriffmuft
(hew the writ was returned, if returnable ; the bailiff need not; ^
becaufe it is not in his power. 1 SalA. 408, 409. The fame
rule holds in criminal ciuest Moore 408. Broughion verfus Mo/-

r? 3 J»(», ^

48a, Tbikitt Trbm 13 Gbo, IIL 1773,

JR^» ** Fdlfe imprifonment by Broughton againft jtftc^^, who^
** juftified, becaufethe plaintiflFbein^in the prefence of a ja^c0
•* of die peace, the jufticc^ not having opportunity to examine
*' hini, commanded the defendant to take him into his cuftodjr
*• and fafeguard until the next day, which he did, being conftabU^
*^ which is the fame imprifonmen( : and this was held a good
'* juftification without alleging the caufe which the jufiice had
** for imprifoning the piaintin, and without fiiewing a warrant
" in wnting, becaufe in the jfrtfenu of.theyfj^tc^; and the
^ juftification is as proper for any otherman, as itis for theroff-
**fiabU.'* I cite this cafe to ftiew that where thejij^ice has ju-
riidi^on t9 command the conftable, be might juftify ahhough
the ju/iice llad done wrong, for he was bound to obey the com-
mand of ihtju/lice whatever was the caufe ; fo it is alfo with
regard to the execution of warrants when the magiftrale is ab-
fent* The officer mull give credit to the command or warrant
of the magiftrate, and can no more difpute his authority than
the fherifF can difpute the authority of 'this court. 14 Hen. 8.
16. a. 1 Vent. 273. 10 ^ep^ 76* h. Thp cafe ofthcMarJkalfea^
S- Pf Freeman 407.

In th^ prefent cikfe the warrant is direfied to the officer Saun*
ders the defendant, who is bound to obey the commillioners who
have given the fame under their hands and feals.: but it is ob-
ySBteAf why does not Saunders (hew th^ information ? I anfwer,
It is not in his power, the commiflionersi have it, and their war-
^ nmt is fufficient to juftify him. '

But it is alfo objeQed, that Saunders the officer gave the in-
formation of his ground, of fufpicion.and ther/efore ought io
ihew it ; I anfwer, that when Saunders made the information
upon oath, it then became the fufpicion of the niagiftratcs the
compiiflioners, with whom the legiflature have intrufied the
authority to grant the pref<pnt warrant thereupon to fearch the
plaintiff's houfe for concealed tea^ &r«,* the warrant is com*
pulfory, and not diftinguifliable from any other warrant of a ma*
gifirate having jurifdi&on given by aA of parliament to grant a
' warrant in any particular cafe; it is upon this ground f argue
that SaunJ$rs was obliged to obey the command of the commif-
lioners and execute the warrant, and is juftified thereby whethei^
he found any lea concealed in the plaintifiTs houfe or not.

bonld Juftiee — Surely Brother Walker your client might have
fliewn the information and the ground of his fufpicion at the
tiia], if be had thought fit.

li^alier Seijeant— Whatever was the gromid of fufpicion
whereu]pon the magiftrate a£lcd, the officer need not (hew it to

3 the

Tbikitt Tebk 13 Gmq. SL 1773. 43d.

the court, he cannot be a witnefs becaiilc be ic ^ defendant, .9d4
if the warrant will not proteft him, he is without defence. «

Serjeant Burland in reply—I admit that if a confiaUe or«
other officer a£b in a cafe where he is bound to qbef^ he is jufti*;
fiablct and if the warrant irranted by a juftice be wropg, he
only is anfwerable. If m^ Srotber can fliew thai Saunders was
bound and compelled to give the information, -I will admit he
is not anfwerable ; but on the contrary it lypears he is a merQ
volunteer in this bufineb, as I before laid*

In the cafe of an information before a iuftice of the peaccw
there are neceflarily three perfons of the drama^, the informer,
the magiftrate, and the conftable or officer, who aft diffeieni
parts; but here the detendaat Savudlpri voluntarily takes uposi
bimfelf to aA two parts, the part of the informer and the of*^

ficer, which he was not bound to do ^This ad of parliament

poinu out the perfon againft whom the redrefs fliall oe had, if
wrong be done (namely) the officer [the informer] who is to .
execute the warrant* is thtU perfon who Ihall be anfwerable ia
fuch a cafe as this ; if it was otherwife, I could not help thinks
ing myfelf an abfolute flave, for it would be indifferent to me ^
whether a fet of thefe myrmidons, excife and cuflom«houfe of*
ficers, or a band of foldiers, could enter my hou{e by day or by
night, and do me fuch injury (as in this cafe has been done ta
the plaintiff) with impunity ; it woulj) be monftrous to fuppofii
that the legiflature hath given any fuch power to thefe perlons,
fo I do not doubt but the court will give judgment for the plain#
tiff, who is as eminent a tradefman as any in Landon*

This cafe was well arguied again at the bar in this term by
Serjeant Kemfi for the plaintiff, and Serjeant Glynn for the de#
fendant ; when the court was fo clear that judgment ought to
be given for the plaintiff, that Serjeant Kemp w^ told by the
Lord Chief Jsiilice he had no occaflon to reply,

«»

Lord Chief Juftice De Gr^-^Thh cafe has been fpoken to al
the bar extremely well, it is a queftion of great coniequence to
the King*s/ubjeas^ who ought certainly to know the nertons
a^tnft whom they (hall have remedy, whenever they mail bo
injured in a cafe like this.

This is a queftion of conftru£lion upon an a6l of parliament,
the to Geo. u ch, to. Ji3. 13. which ena£ls, that if any officer
(hall have caufe to fuipefk that any cofie^ Ua, &c. is fraudulently
concealed, £9r. then upon oath made by fuck officer before tMro
of the commiffioncrs,^^'^/(?rM the ground of his fufpicion^ they

yF 4 may,

440^ TeinityTekm 13 Geo. ITL 1773.

may, by warrant, auihprize the officer to enter, fi?r. feize and
cany away all the cojftty tea^ fi?c. -which he (hall fiiid concealed,
(3c. ; and if any pcrfon Ihall kinder the officers from eiuering,
<»r feizing, or carrying away fuch cofftt^ tea, &c. the olFender
fiiall for^it loo/.

Saunders tht officer, upon bis own oath, obtains a warrant,
fearches the plaintifT's houfe, finds nothing ; he both Acquires
and executes the warrant. It is contended he is juftifiable as
a£Ung under the command of the commiflioners, and that it is
fufficient for him to (hew their warrant authorizing hitn to enter
the plaintifTs houfe, f^c. in like manner as a bailiff* of the
fiieriffis juftifiable^in the execution of his warranto. But the
eafe of a fflieriff's bailiffis very different from' tWs ; the bailiff
is bound to execute the (heriff 's warrant ; the officer of excife is
the party promoting, and afting for his own benefit under an
authority which he has obtained by his .own oath^ and he is not
bound to obey like a (heriff's officer ; Saunders fwears to hii
(ufpicion, he is mifiaken, end his fufpicion is groundlefs, he
finas no teas concealed; the whole matter rifes and ends in
himfelf*

The queftion is, whether the excife-dfficer is juilified.in all
events, or whether he afts at his peril ; I am of opinion he afis

mt his peril, and is a mere volunteer. In cafes of warrants

granted to fcarch for fiolen goods, the informer makes tuith that
a felony has been committed, and of the reafons he has for
fufpicion that the goods are concealed. in fuch a place ; the exe*
cution of thefe warrants depends upon the event ; the fearch is
lawful if the soods are there ; unlawful, if not there ; and al-
though the julticc of peace and the officer may juftify in ire^/sy
yet the informer cannot. 2 //. H. PL Coron. i^o.

It IS faid the warrant to fearch the plaintiff's houfe ^vts
• granted upon a judgment formed by lawful magi{lr;ites [the com-
jriiffionersj ; I think the commiffioners were bound to grant the
warrant upon the oatb of Saunders, and eould not torm any
judgment upon the matter, the commiffioners have no power to
fumnton the fufpefled party or any witneflTes, thev cannot exa-
mine op both (ides, fo it Was impoffible for ihem-to judge ; if
. the commiffioners had fuch power it would be nugatory, for
the goods would be removed before fuch examination could be
had.-: — I think the^tf^* 10 Geo. i.ck. to. Je3. 13, is com-
pulfive upon the commiffioners to grant the warrant to theofficef
to enter and fearch, upon his. oath of fufpicion tljat teas^ &t.
arc.fraiidulently concealed; fo it points out the very perfon liable,
if any injuiy be done, and no goods found; and it is reafonable

and

Tbxkitt Tkbm 13 Geo. IIL 1773. 441

and juft that the informer who obtains and executes th^ wanant
fhould be anfwerable in this cafe ; and in my qpinion the pro<«
dudlon of the warrant of itfeif is not a fufliciem juftification*
Whether, upon the trial, the information would have been admif**
fible evidence for the defendant^ ia not now for the court to de« '
termine ; but as it was then cdled for, by the plaintiff, I think it
ought to have been produced ; but as no evidence was given at
the trial of any probable caufe or grottnd of fufpicion that Ua
was fraudulently concealed by the piaintiif, the jury foutida ver-
dift for him, and gave the whole damages in the declaUration ;
and lam of opinion he muft have judgment.

GeuU Jufticc— It is not nec^flary to determine whether an
a£lion will or will not lie againft the commiffioners; but thus
much I will fay, that if a warrant, like the prefetit, fliould be
granted by them, upon a frivolous, vain and groundlefs fufpicion,
an zBtion might well lie againfl tliem; but I do not give any
opinion as to this*

The officer by his own aft having obtained the warrant, I
think it is not neceflaiy now to determine, whether he was then
bound to execute the uime* The ftatute fays, if the officer (hall-
have caufe to fufjpe3, &c. then upon'his oath fetting forth the
ground of his fiiipicion, the commiffioners may grant a warrant
authorizing bim to enter, fearch, Uc. no evidence was given of
the ground of the defendant's fufpicion, he ought to have (hewn,
to the court and jury the caufe of his fufpicion ; fuppofe the de*
fendant. had been ooliged to have pleaded fpecially, X think he
could not have juftificd under the warrant iuone^ but muft have
pleaded the fa£>s upon which he grounded his fufpicion, and if,
upon the fa3s pleaded a probable caufe had been (hewn, he might
(perhaps) have been juftificd in the opinion of the jary, although
no goods were found ; 1 am alfo of opinion that judgment muft
be given for the plaintiff.

Blackftone Juftice— Upon the firft argument of this cafe I was
and ftill am of opinion that judgment muft be given ioi the
plaintiiT. I think this is not fuch a warrant as a£lually com*
mands and requires execution, but I look upon it as a permiffion
to the officer -to afi at his peril. ■ ■ I (hould rather think the
commiffioners would be liable to an af^ion, if there was not
good grouitd of fufpicion laid before them before they granted
me warrant, but I give no opinion as to this<-*After the officer
has acquired the warrant, I think it remains ftill. in his optioa
whether he will execute it or not.

Nora

U% TiizKiTT TuM 13 £eso. nL 177a-

Nares Juftice-— I am of opinion with my Lord Cbief Jaftice
and my brothers^ that the plaintiff muft have judgment; and fo
J was upon the firft argument.

By the i2th^S. of tht Jlat. to, Geo. i. ch. 10. power is given
to the ofScer's, in the day-time to enter ail wartkoupu^^ &c* ufed
for keeping coff'eef tea^ &c. and to take accounts thereof, &c.
this fed. only' has refpeft to dru^fis, grocers, &c. &c. &e.
or other perfons felling or dealing m coffee^ Ua^ &c. by whole*

. fale or retail ; but the legiQature feeing that coffee^ tea^ &c.
might, be fraudulently concealed in ^vate kotyfes^ made fiir«
ther provifion hyfeS. 13. for the fecurity of the JiiijeS with
refpe£l to the officer's power of entering into frivate hai^to
fearch, &c. the officer himfelf, who makes mformation that
goods are concealed, muft be the perfon authorized by warrant

. from the commiffioners to enter, fearch, &c« who have a dif^
cretionary power to grant fuch warrant. — ^In the prefent cafe, the
officer informs on oath, acquires a warrant, enters and fearcbes
the plaintiff's houfe, but finds nothing, and an action of trefpaft
is brought. — What ought the officer to have (hewn b^dcs the
warrant ? He ought to have proved upon the trial, that be is an
officer, that he made information on oath of the caufe and ground
of his fjifpicion, and whs^t that caufe and ground rfMpUwn was,
that the jury might judge whether there was any probable caufe
or ground of fufpicion, that tea was fraudulently conceald in
the plaini^iff's houfe; but he proved nothing of this; d demm
apparentibus et n6n exiftentibus eadem efi ratio^ it would there*
fore be very ftrange indeed for the cot^ to fay h<f is juflified
under the warrant alone; if a commiffion of bankruptcy oe fued
out agdinfl a perfon not liable to be a bankrupt, and he be declared
a bankrupt thereupon, and his goods be feifed to the ufe of the
affiffnees, trefpafs lies arainft the affignees who cannot juftify
unoer the Lord Chancellor's commifnon alone, but mull Ihew
every requifite necefTary to prove the pany was liable to be 9
bankrupt; [See 2 Wiljon^ 382-]

Judgment for the plaintiff, per totom curiam.

ft Black. Rep. Dewcll v€r/us Marfhall. C. B.

911. s. c.

In repiem T N replevin, the plaintiff declares for taking and detainiii|
the jury at the X J,;, goods at the parifh of -4. in a certain place there
tlreftthcde- <^a'Jcd5. The defendant, as churchwarden bnd overfeer of the
fendant hit poor of the parifh of ^. avows (under the Jlat. 43 Etiz. ck. t.
damaget^a jj^Q^ j^^j the taking the goods as a diflrefs for the poor's rate;/
^oiryVriT ^^ which the plaintiff pleaded in bar that the defendant took the
imie. ^ goods

Tfemmr Tbxh 13 Gbo. IIL I77d» 4to

foods of his own wrong, without an^ fuch caufe alteged hy the
defendant ; iflue being thereupon joined and tried, a verdift was
found for the defendant ; but the jury did not afiefs any da-
mages. The defendant figned final judgment the 3d oiMay iaft,
when the prothonotary allowed him 42/. iar« cofts#

It was .now moved on the behalf of the defendant, that a writ
of inquiry might iflue to inquire what damages the defendant
had fufiained by reafon of the premifes, for that the defendant
is intitled to recover treble damages by xhejiat. 43 El. ch. a.
Ji3. 19* by reafon of th^ wrongful vexation, with his cofls a)fo
in that part.fulbdned ; whereupon the court made a rule to ihew
^aufe why a writ of ii^quiry fliould no^ iflue*

Upon (hewing caufe it was objefled for the plaintiflT, }%
That the defendant having already figned final judgment and had
his cofts taxed* had made his eledion, and now comes too late.
fldly. That the damages mull be aflefled by the Jam€ Jury who '
tried the ifluCy as appears by the tgthJiB. of the idxajtatute.

But per curiam^ ^ fame jury who tried the iflue may aflefs
the danla^s; but if they do not, we muft do juftice, and award
a writ of inquiry to the flieriif ; and a writ of inquiry was ac-
f ordingly ifluea to afl*efs the defendant his damages.

Rowning Gent vtrjus Goodchild Gent. sBUck-Hef*

This record is entered of Trinity term in the 12th year of King
George the Third. Roll 665.

SufM ^OHN GOODCHILD, late of Ipjwich in the [A^onoii
(towit)^ county aforefaid, gentleman, was attached toanfwer Jjj^^*^*^/^g,
to Benjamin Rowning gentleman, in a pleaof trefpafs againftVde!
Ijpon the cafe, Qc. and whereupon the faid B. R. by John putyport-
Atrfy his audmev complains, that whereas the faid J\ G. on "Jjj|"^f*
the nrftday ol May in the year of our Lord 1770, and long be- ofiettcrT^S-
. forev was, and from thence hitherto hath been deputy pod- riimtcoufi*
mafterof the town of Ipfimeh^ in the faid county of Suffolk; jypoft-town.
and whereas alfo the faid B* R* on the fame day and year afore- ^^q^. '^^
faid, and long before and afterwards, was an inhabitant of and 182.]
within the faid town of Ipfrvich^ whereof the faid J, G. on the *^'?*«*^**^
fame day and year aforeiaid, .had notice, (to wit) at Ipfmck afore- J" "^y ^^
faid, in the ^lid county of Suffolk ; and whereas alfo the faid m«ft?r of
Jf.G* as being deputy poft-mafler of the faid town of Ipfmck as ^^^"''^* (j'
aforeiaid, ought to have delivered all letters fent by the poft, £ep?og.nd
and brought to him the Gud 7. G* at the poft-office of the faid detaining the

town pJ«ntiff;«l«.
%xn dircaed

444 TannTT Tbhm 13 Geo. III. 1773*

to himi M town ofMwich^ direBtcd to any perfon or perfons being inhabitants

ttwealonaMc of thcfaid town ofl^/itnch^ to or at the place o^ abode of fuchpcr-

the^defendadt ^^^ ^^ pcrfons to whom the fame letters were refpcftively direfted,

•oghttobate Within a reafonable time after fuch letters were fo brought to

deiwered to him the faid Jl G. at the faid poll -office of the town of Iffwich

^■^ aforefaid; and whereas that alio on the firft day of jifril in the

' year of our Lord I77«f divers letters, (to wit) ten letters dircftcd

to him the faid J?. A. at the faid town ollpfaick^ were fent by the

poft for him the faid B. R. and were then and there brought to the

faid J. G. at the poft-office of the faid town of Ipfmch^ and re-

• . ceived by him the faid John Goodchild thcve^ (to wit) at Jp/ioich

aforefaid, in the faid county of Suffolk; neverthelefs the faid

y. G, well knowing the premifes, but not regarding his duty in

^ that behalf, did not deliver the faid letters or any of them to or

at the place of abode of the faid B. R. within a reafonable time

after the faid letters were or any of them was fo brought to and

received by him the faid J. G. as aforefaid, but on the contrary

thereof, he the faid J, G, wrongfully and injurioufly kept and

detained the fame letters, and every one of them, from the faid

B. R. for a long fpace of time, over and above a reafonable

time in that behalf, (to wit) for the fpiace of ten days, that is

to fay, at Ipjwick aforefaid, in the county of Suffolk aforefaid,

to the damage of the f^id B* R* of tool, and therefore he brings

fuit, &c. -

Fiei,ii* And the faid^. G. by George Hill his attorney comes and dc-

*"'^fc«!*** fends the wrong and injury when, &c. and lays that he is noi
premi cu guilty of the premifes above laid to his charge, in manner and
form as the faid B, R. above complains againit him,' and of this
he puts himfelf upon the country; and the faid B. /?. doth the
fame likewife; therefore the fhenffis 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, &c»

On the trial of this caufe before my Brother Whttaker^ at the

laft afEzes held at Bury Saint Edmunds^ in and for the county of

Suffolk^ a verdi£l ^was found for the plaintiff, with one (hilling

' damages and 40J. cofts, fubje£l to the opinion of this court on

the following cafe, which ilates,

Cafelbrt&t That the defendant during the time in the declaration in that
•pinion of the behalf mentioned* was, and now is deputy pofi-mafter of the
•^'*' town of Ip/wich in the county of Suffolk^ under the appomtment

of the poft-mafier general ; and that the plaintiff during aJl
that time was, and now is an inhabitant of and within the faid
town of Ip/wich^ and that lie and his place of abode iUre^ are
well known to the defendant*'

That

Tbikitv TtfUM 13 Gbo. III. 177S« 446

. That previous to the vcar ofour Lord 1741, the letters whicB
Were brought by the poft from London direEled to the inhabitants
of Ip/wich^,yrtTc delivered to them at their lefpefiive places of
abode by the deputy poll*mafter of Ipjwich For the time being,
at the legal rate of pofiage only ; but tne inhabitants of Ipfmtk
coofhintly for time immemorial, until the faid vear 174 it paid
to the letter-carrier employed by the deputy poft ^mafter for. the
time being a recorapence of one penny )&«^ letter for the dc.
livery at their refpedive places of abode, of all letters which
• were brought by-thc poft from all parts of Norfolk and Suffolk^
over and above the legal rate of poftage, being delivered at a
different time of the day from tbofe which were brought by the
London poft. . * '

That in the faid year 1741, the poft from London to Ifjmch
was eftablifhed (he days in a week mftead of three, upon which
occafion publick notice was given to the inhabitants.by the com-
mon cryer of the town, that fuch of them as chofe to have their
letters delivered to them at their pla'ces of abode, muft pay to
the letter-carrier a recompence of. one halfpenny for each letter
as well for tbofe which previous to the faid notice were de«
livered without recompence, as for thofe for which one penny .
recompence had been paid.

That the greateft part of the inhabitants complied with this no-
tice, and have ever fince voluntarily paid to the letter-carrier either
one' halfpenny over and above the legal. poftage for^the delivery
oi each- letter at their places of abode, or have agreed with the
letter-carrier and paid her a quarterly or yearly allowance for the
delivery of all their letters, except three per fons who gave the
letter-carrier a Chriftmas-box.

That the plaintiff hath, ever fince the faid year 1741, paid the
recompence o'f one halfpenny for the delivery of e^h letter at
bis place of abode until Apriliyj^^ when he refufed any longer
to pay the fame.

That the letter-ckrrier does not receive any falary from the
defendant^ for delivering the letters, nor does ihe account to the
defendant for any part of the recompence flie receives from fuch
delivery but applies the fame to her own ufe.

That on the firft day of April 1772 • the defendant received at

declaration) whiqh
not deliver at the place of abode of the plaintiff in Ipjmch^ but

the

446 t'BiiriTTTKiM 1$ Gjbx). nt 1773.

iWe tumt remained with 'the defendant's knowledge it liis fiud
<toffice for ike fpace of ten da^» as flated in the declanUoo*

Oh this cafe the quefiion fubmitted, for the opinion of die
court is, whether the defendant as« poft-mafler of Ipfhidk is
obliged to deliver the letters to the inhabitants of Ifjwuk at their
f dpe&ive places of abode ?

Jliomas WaUter £or the plaintiff.

Jamts Forfttr for the defendant*

This cafe was argued twice at the bar ; the firft time in Hdary
tenp lad by Serjeant Walker tor the plaintiff, and Serjeaat
Forjler for the deiendant, the fecond time by Serjeant ^for
the plaintiff^ and Serjeant Burland for the defendant, in Ea^
term lafi*

The Serjeants for the plaintiff arcrued this cafe^ firft upon die
principles of the common law; and fecoodly upon die fiitutes
. concerning the poll-office.

i/f, They infifted that any man who undertakes to carry goods,
is liable to an afiion at common law, be he a common cairier,
or whatever he is, if through his neglefi the goods are loft* or
the party, whofe goods they are, comes to any harm, althou^
it be not alleged in th^ declaration that the paity undertaking to
carr}' the fame is to have a reward for his pains.; and for this
was cited the cafe of Ofggs verfus Bernard^ i Ld* Haym. 909.
wliere every undertaking of this kind is debated and coniidered»

The cafe of Wheatly verfus Low^ Cro. Jac. 667. was cited
at full length for the plaintiff, whiph was an aftion noon the
cafe, wherein the plamtiff declared, " That whereas ne was
*^ obliged to y. S. in 40/. for the payment of so/, and the
*' bond being forfeited, he delivered lo/I to the plaintiff to the
•« intent he mould pay it to J. 5. in jpart of payment, yb^dZs
-^^ mora: that in cohfideration thereof the defendant affumed,
*' &c, and affigns for breach that he had not paid ; whereupon
** the oblicee had fued Wheatly for the debt, &c. ; the defend^
*' ant pleaded non affurnpftt^ and verdi£l for the plaintiffs and
" it was moved in arreu of judgment, that this is not any con-
*' iideration ; becaufe it is not alleged that he delivered it uoto
*' the defendant upon his reqU^ft ; and the acceptance of it to
'* deliver to another ^a^ mora^ cannM be any benefit to the de*
" fendant to charge him with this froimi{e;JednaM altocatitr:
** for being that he accepted, this moncv ip deliver, and pm-
*' mifed to ddiver it, it is a good conikwraticip lo chaige hm ;
** wherefore it w^ adjiKlged tor the plaintiff. Andtxrat beiog

** broagbt

Trinitt Term 18 6so. III. 1773> 447

** brought, and this matter only afflgned for error, the judgnient
** was affirmed." And in a Ld^Saym. 920. this cafe is men-*
tioned bv the judges to be moil folemniy adjudged. 'And fo
(fir Hou Chief Juftice) a bfure being trufted with another man's
goods^ muft be taken to be a fumcient confideration, if the
£ailee once enters into the truft and tadies the goods into his pof^^
feffion; and that a breach of a tfuft undertaken voluntarily will
be a g€>od ground for an a^ion oii the cafe for ntmfeafance^ a Hen*
7* 11. tf. £• is a ilrong cafe to this matter.

They alfo cited for the plaintiff a declaration in Raft,* Entr.
13. ^« m an a^on upon the cafe for planting thorns or a quick*
fet hedge in the plaintiff's hedge or ditch fo negligently, that they
became dead and rotten; which is laid to be upon a voluntary
^umffit^ without any confideration whatever mentioned therein.

So if the poA-mafter or any other perfon voluntarily receives .
a letter to caurry, and to deliver the lame to a certain perfon to
whom it is direfied, he is bound to deliver it accordingly, whe-
ther he gets a reward for fo doing or not.-i — So if one fends
mods by a carrier ^whether he be a common carrier or not] to
£e by him ddlivered to A. B. at York; the carrier muft deliver
the goods at his peril, and it is incumbent upon him, to find
out and deliver uie fame at Ywrk : to the perfon to whom they
are dm^ed ;- fo, before any ftatute for erefiing poft-oflices, a
•letter-carrier receiving a letter to carry, was bound to deliver the
iame to the perfon so whom it was direfied, in a reafonable
tiae ; and in £siling to deliver die letter he would do a wrong,
-which nothing, at common law, could excufe him from, but the
uiiperfeBion of the diredion of the letter. *

The platmiff 's cMinfel cited DoSor Morl^ the man-midwife's
-cafe; he was fent for to the wife of A. B^ who was with child»
and near the time of her delivery ; he accordingly vifited her ; and
•when the time of her delivery was come, and ihe was under
labour-pains, DoOorMorUy was again fent for, to come and de-
liver her, but he negleded fo to do, and ihe died for want of
proper afiSfiance; A* B. the hulband brought an afiion againft
the I>o3or, and recovered toool. damages.

(Stfd<(/Jttilice«— That was for a reward to be given by A. B. to
Dodor Mtn-ley.

Counfel for the plaintifr-The Do3or had undertaken, and
thqr rtUed upon him to do the bufinels accprdingjy.

44B Triwitt Tbbu 13 Geo. III. 17;7.

tdty^ The plaintiflF's counfel confidered the cafe at liar, opcfti
the fiatutes for ere£ling and efiablilhing a poft-oiEce; the £rft
Jlat. is 12 Car, 2. ck, 35. the preamble whereof (hews that the
office was efbbliflied and erected, for carrj^ing and recarrving
letters withjpeed and fafe difpatch ; fo^that ior greater Jheed aod
4ii/patch (this mtift mean«that) fucbi letters znuit be d^vercdxo
the perfons to wliom the faime are dire6led, and that they mull
hey^ delivered appeairs from ilie whole tenor of this ftatute. See

Thtjlat. 9 Ann. ch. 10. is equally expreffive that all letters
fent by the general -poft muft be carried and delivered to the per»
fons to whom the fame ai;e fevcrally dtre3ed ; as it was at com-
mon law, where any letter-carrier accepted the trull of carrying
a letter from one to another, he Mir?& obliged to deliver t/ to the
perfon to whom it was dircfcled ; if he neglefted fo to do 1^
was guilty of a breach of his undertaking, and was liable to an
adion for damages.

The J/al, 4 Geo, 2. ci. 33. for obviating a doubt vrhicfa hatli
arifen concerning the ufuai allowance made upon delivery of
letters fent by the penny-poll to places out of the cities olLmUc9
and Wejltmnfter and borough ot Soutkwark^ and the refpedive
fuburbs thereof, was cited to ihew that fuch letters muft be deli-
vered to the feveraland refpe&ive perfons to whom the fame are
direfiedf within the limits often miles from London and We^im-^
Tb« rale of Jlcr^ by the exprefs words of that ad ; and that 'whatfoever is the
sTk^ft ^ rule and pra£lice with refpeft to the penny-poft, muft be the fame
J^^biU^g ^ with refpeft to the general-poft. They confidered all thcfc fta-
•atof paria-.tutes minutely, and faxd the heft rule to conftnie them is by the
"»»*• rules of the common law, from whence they inferred, that every

I'wiUwuai, letter fent by the general-pqft muft be carried^ conveyed and dc-
asi. livered to the perfon to whom direfled ; afld that if the law was

not fo, and the poft-mafter was not obliged fo to deliver the
letters, it would be a ftop and' great difadvantage to the trade of
this kingdom.

The cafe of Barnes verfus Foley ^ poft-mafter of Batk^ B. H
Mic. 1766, determined in 1768 was cited; the deicndant FeUf
gave publick notice to tlie inhabitants of the city of BaiA, that
one halfpenny would be demanded for every poft-letter deli-
vered to them at their refpeflive houfesor places of abode, over and
above, or befides the poftage ] the plaintiff 5aniej beinc a houfc-
keeper in Sa/A, the defcndaiit demanded and received of him
one fliilling for the delivering twenty- four -poft-letters to hhnat
his houfe over and above ,and befides the ufual poftage, where-
upon the plaintiff brought his a£Uon againft the defendant lor
6 money

TwKty Tebm is Geo. III. 1778. 44§

money had and received for his ufe ; and after feyeral learned
argun)ent$ at the bar, tlie court gave judgment for tlie plaintiff
Barms that the adion well laid, becau^ the halfpenny per letter
was not accounted for, or carried to the revenue of the po&-
office; but the court of B. R, gave no opinion upon the general
queftion, which was, whether tlie poft>ma(ler of BaiA was not
obliged to carry and deliver to the inhabitants at their refpedive
boules at Ba/Ji, all poft-Ietters direOed to them refpe£lively with-
out any reward beudes the ufual poAage.

There was another cafe of Sioci verfus Harris pod-mailer of
the city of Gltmceftcr in Eafier term 1771, B. R. much like tbe
prefent cafe at bar; Harris gave publick notice to the inhabit-
ants of Gloucifier^ that they mud either pay an halfpenny over
and above the ufual poftage, for every letter delivered to them
at their refpe^livei houfcs, or mud fend for their letters to the
pod-office; whereupon the plaintiff Stocky who was well known
to Harris^ gave notice to him, to deliver all letters direfied to
him f Stock) at his lodgings at fuch a houfe in Gloucefter^ for
the common a^d ufual poilage ; and in his declaration afligned
for breach, that the defendant Harris did not deliver to him the
faid Slock a pod-letter dire£led to him within a reafonable time,
but wrongfully and injurioufly kept and detained the fame;
upon the trial, the jury found the fa3s above, and that letters
coming by tbe general -pod had always been delivered at their
houfes for the ufual podag^; upon argument the court of B. R,
gave judgment for the plaiixtiff. ^

The cafe at bar dates, that previous to the yeac 1741, the
letters which were brought by tne pod from London^ cQreded
to the inhabitants of IpJwicl^^ were delivered to them at their
refpeftive places of abode, by the deputy-pod-mader of Ipjimch
for the time being, at the legal rate of podage only ; m the
Gbucefter cafe the fpecial verdi£l finds that always before and
until the notice given by the pod-mader there, all pod-letters
had been delivered to the inhabitants to whom direded at
Gloucrfler^ at the ufual and le^al rate of podage, without pay-
ing an halfpenny ptr letter beddes ; there is no difference be-
tween thefc two cafes, for there can be no cudom as to time in
this matter, becaufe the pod-oRice was ere3ed within the time
of memory ; there can be no local law ; the law at Ipfunch fas
to pod-letters) being the fame as the law at Gloucefter. So tne
counfel for the plaintiff concluded, that it appears by the com-
mon law, the datutes, and the cafe oiStock and Harris^ the plain-
tiff ought to have judgment.

Counfel for the defendant — Although it mud be admitted
that letters mud be carried by the gencral-poft into every city .
Vol. III. * c c or .

450 TbiJ^itV 'Term, 13 Geo. 111. 1773-

or towri to which they are direfted, yet it doth not follow, thai
the defendant as poft-mafler of If [with is obliged to deliver the
letters to the inhabitants of Ipfwick^ at their refpeftive places
of abode, by the common law, or the ftatutes*

It is faid for >he plaintiff, that if a man Undertakes to do a
ihmg, he is obliged to do it although there be no condderation ;
but this certainly would be nudum pailum: indeed, if a roan
undertakes to cany a tfiingjiifely and deliver it to a certain pcr-
fon, and enters upon the trufi, by receiving it into his pof-
feffion, he then bejcqmes obliged to perform the truft by carr}'ing
tjie thing fafely, and. delivering it according to his undertaking
although there be no confideraiion ; for, whoever undertakes to

!)erform a truft for another, miift not let that per/on SuSen hj
lis negligence.

It is admitted that the bell rule for expounding afls of parlia-
ment is by the maxims and rules of the common law according
w Sayil 39. 1 Williams 252. and many other books; but it
cannot from tliencc be inferred that if a man had fet himfelf
up as a letter-caiTicr from town to town, before the time of the
ftatutes refpefting the general -poft-officc, that he would have,
been oblij^cd to deliver the letters to the fcveral and refpcftivc
pcrfons to whom fuch letters were direfted at their Ijoufes in
thofe towns, if th-? undertaking was only to carry the letters
from town to town; the makers of tliefe ftatutes had in view
publick convenience, and the publick revenue ; trade and com-
merce was only in cities and great towns, and the legldature
' could only have in view the trade and commerce of thofe cities
knd towns, and not the Jioufes and places of abode of e\'ery in-
dividual pcrfon there, and clfewlierein the kingdom; it is con-
ti.'nc^^ed on the other fide tliat the poft-mafier is obliged todc-
. liver every letter fent by the poft-ofBce at London to the perfon
to whom it is direfted, at his place of abode, let him IKc where
I he will in the kingdom, at any private alone-houfe or cou.agc;

b'ut furefy the legiflatUre could never intend that the poft-roafter
at the citv of Wells Ihoirld go over MenJipp, or the nrft-miifler
at Alnwick (hould go over ChtvioU-hiliu to deliver poll-lcticrs to
perfons, dwelling on the other fide of thofe hills ; that theV
(hould be obliged to fend out men and horfes to every fide of
the poft-towns, which muft nfeceffarily occafion a vaft cxpence,
and would be a great detriment to trade?, as well as to the re-
. venue; befides iA many places it would be lieceffar)' for the
poft-mafters to keep packet-boats. This cafe is not like the cafe
of a common-carrier, for in refpeft to him there is no law but
the common ; the general-pojl-gfiice is by ftatute.

Lord Chief Jufticej-I lived in a place ninety miles from Lon*
don^ zni ten miles diftant from- the neareft poft-tow^, in the

road

Tkinity Tbrm 13 Geo. III. 1773. 451

road to another poft-town, and was charged no more thai) the
ufual and legal poftage for my letters, brought (and delivered) to
tne from London. ^

Counfcl for the defendant But fuppofe the place of de-

livery had laid out of the poft-road, mult the pcrfon carrying the
miiil have gone out of his way? It is fubniitted he would, ,

not have been obliged, fo to do; becaufe of the great incon-
venience which muft follow from the delay it would occafion ;
contrary to the Jiaiute of 12 Car. 2. c. 35. the preamble whereof
fays that the poft-ofiice was eftablilhed tor carrying and re-carry-
ing letters with ipeed and fafe difpatch ; inconvenience is as good
an argument for conftruing thefe ^o/k^w relating to the poft-
oCice; as it i^ of the law in the cafe of common carriers, who
arc anfwerable for goods whereof they are robbed; for, if the
Jaw were otherwife it would be very inconvenient to thepublick,
becaufe carriers might combine with robbers.

The Glouce/kr cafe differs from the cafe at bar, for ever fince
the year- 1741^, the inhabitants of Ijffwich have paid the recom-
pence of an halfpenny for the delivery of each letter at their
fevecal places of abode ; but in the Gloucejier cafe, the halfpenny
was never paid at any time fince the erecting of the poft-office ;
the judgment in ti.at cafe was founded upon the ufage of
never having paid the halfpenny ; but the uf?ge in the prefent
cafe (or thirty years lad pad, has been for the inhabitants of
jyivick to pay the halfpenny.

Then the counfel for the defendant objefted, that it is flated
in the declaration that this a£tion is brouglU' againli the de*
fendant as deputy -poll-mafter of the town qf Ipjmch^ and that
tUe'a6lion doth not lie againd him ; but ougnt to have been
brought againft his mailer the poil'mafter^general, according
to the opinion oi IIoll Chief Juftice (which is the better opinion) Dler^jS.bto
agaiuft the other three judges in the cafe oi Lane and Co//<7«,'pl. 38.
1 Ld, Raym. 650, 6ji. The court took time to confider until
tJiis i«rin, when tliey gave judgment for the plaintiff to the
following cffetJ.

Curia — It doth not appear until the time of King James i.
that tliere was any office in this kingdom for carrying on a
foreign coiTcfpondence ; in Rymer's Feeder a^ vol. tg. Jol. 389.
there s a reqital of a proclamation oi an office for conveying
letters to foreign parts, and all other perfons are prohibited
to interfere, fo it belonged to the prerogative of the crown, as it
feems. In the year 1632, the fame olEce was granted ; ^n^ in
1635 another proclamation touching the fame office, 19 vol*
Rym. Fad.foL 649.

G G 2 In

45!1 TRimrr Tsbm 13 Geo, III. 1773.

In the year 1637-, there was another proclamation, when a
ktter-office within the King's own dominions was added to the
foreign letter-office, Rym^ Fad, vol, 20. JbL 192; in which
proclamation there were fome prohibitory claufes.

- In the year 1640 the office was fequeftered, Rym. Fad. vol
Uo.foL 429. thus it was until the troubles, which aboat that
time began to break out in this kingdom. From that time un-
til the reftoratibn, fee the tranfaflions, and ^ordinances of the
Houfe of Commons in their journals, in the years 1642, 1644,
1649, ^654? whereby it appears the letter-office grew to be a lu-
crative office. See ?x{oScoheU\ afts and ordinances,yo/: 51 1 , 356.
in what manner this office was executed and carried oil until

• the 'Rrftoratian^ when the /latute of 12 Car. 2. cA. 35. was made
for crefting and eftablifhing a poft-office ** for carying and
*' re-carrying letters by pods, to and from all parts and places
•' within England, Scotland^ and Ireland, and feveral parts beyonc

. " the feas, the well ordering whereof is [therein faid to be
** of a general concernment, and of great advantage, as wef
*• forprefervationof trade and commerce as otherwife." Another
a£l of parliament was alfo made in Scotland in the time of King
WiUuLm for eftablifliing a poft*office in. that part ol Great Britain:
both which afts continued in force until after the union of the
two kingdoms -, when for convenience, and national profit, the

Jtatute of 9 Ann, M. 10. was enafted for eflablifliins a general-
poft-office throughout all the [then] Queen's dominions, &r.
whereby ih^ Jlatute of 12 Car, 2. and Uilliam 3. [for Scotland]
were repealed.

The queftion, in the prefent cafe, doth not arife upon any
private contraft, not is it like the cafe of a common carrier ; but
mufl be determined upon conftruftion of \hcjiat. 9 Ann. ch,
10. which was made for the general benefit of the people of
tliefe kingdoms, and with a political view to the better fccuring
the revenue arifing from the general -poft-office.

SeS, 2. Enafts that one general-poft-office fliall be creficd
within the city of London, from whence all letters, 6?c. may
be with fpeed fent- into any parts of this kingdom, and that
one poft-maftcr-general fhall be appointed by the crown ; which
poft-mader, and his deputy and deputies, and his and their- fcr-
vants and agents, and no other perfon or perfoms whatfoever, ihall
from time to time, and at all times, have the receivings taking
up, ordering, difpatching, fending poft, or with speed, carrvij^
and DELIVERING of all letters and packets whatfoever which
fliall be fent to afad from all places oi Great Britain^ &c.

There

Tw»iTY Tb«m 13 Gbo. hi. J773. ' 453

/

There is one general oiEce of the inafter in London^ the centre
of a large circumference ; in every other poft-town» he has par-
ticular offices (executed by his deputies) which are centres of '
Jefs circles; London is the grand Terminus a quo where he re-
ceives a letter ; the place of abode of the perfon to whom a »
letter is dire&ed, is the Terminus ad quern; viz. Ipfwick, to
which town he carries the letter; and there delivers it to his
deputy in his office ; io that the poi^-mafler is to receive^ carry
and deliver all letters, which (hall be fent to and from all places
of Great Britain^ &c. as he receives a letter from one perfon, he
is to carry and deliver it to another perfon according to the di«
reflions ; but in the prefent cafe, the poil-mafter is lo far from
delivering the letters direfted to the plaintiff at Ipjwich^ that ^in
truth) he retains them ; he receives them at his office in Lfindon^
and delivers them into his office at Ipfwich^ which is no more*
than giving them with his right hand into his left ; he mull do
more, he muft remove them out of his office at Ipfivich as mucH
as he did out of his office at London^ and muft deliver them to
the perfon at Ipfwich as direfted ; /iS* 17. of the Jlal. of Queea
Aim enaQs, that no perfon or perlons, Wc. whatfoe^er other tt^a
the pofi-mafter-general.and hi^ deputies fhall prefume to receive
carry or deliver any letter or letters; and the court of A R.
have determined that the poft-mafter cannot take any thing more
than the lawful . poftage for \ki^ carrying 2xA ddivering\^\xj^x%\
and by fe3. 39. no more fhall be taken or paid than the rates
mentioned there. TiyfeS. 40. the letters muft not be detained;
if the party to whom a letter is direfted cannot be found it muft
be returned^ but if the poft-mafter doth not make ihquiry for
the perfon to whom it is direScd, bow can he properly return
the letter ; SeSl. 30, touching refufal to pay the poftage 'fliews
that the ftatute means a perjonal delivery ; fee this^fl. 30. and
compare it with7?5. 15, which fays that letters are to be de-
livtred according ta the feveral .and refpeftive dire3ions of the
fame upon pain of forfeiting five pounds for every offence againft

the tenor of the aft. ^See ih^ Jlatute of 4 Geo. 2. ch. 33.

whereby it is enaftied, th^t pennv-poft-nien carrying letters out
of London, Wejlminfter^ or Souinwari, may demand and take a
penny.at the time of the delivery, and fliall not incur any penalty;
whicn ffiews the uniform fenfe of this word delivery.

In fli'ort, if letters were not to be perfonally delivered, or
left at the places of abode of the perfoni to whom direfted, it
would be a heavy charge, and a great inconvenience to the fub-
jefts of this kingdom; this ftruck the generaUpoft-office in
London, which is but a greater poft.town than other poiU
toiyns ; there is no difference between poft-towns, as to this
matteri they are only centres of lefs circles than Londoru

CG 3 It

454 Trinity Teiim 13 Geo. HI- 3773.

It "Was objcfted for the defendant that be is only a dcpiUy-
poft-mafter, and that this aftion cannot be maintained againft
iiim, but ought to have been brought agauift the pofi-maflcr-
gcneral ; but we are all of opinion that tiiis a£lion well lies
dgainft the defendant ; for that deputy-poft-mafters are fubfifting
iiibftantial officers, and anfwerabjc lor their own misfeafancer,
and nonfeafances, and the bufincfs of the poft-office could not
be executed without them ; they have original offices, under the
coiitroul of the poft-mafter-general ; this cafe is like the cafe of
Stock verfus Harris, in Eqfler term 1771, B. i?. wherein judg-
ment was given for the plaintiff; and we are all of opinion that
judgment muft be entered for the plaintiff.

N4>la. It was faid by one of the judges, that though there
is a penalty of y. given for every offence againll this flaiuU of
Queen Ann^yti as a man rnay fuffer much more, by the deputy

i^oll-mafter not doing his duty, this 2\ftion on the cafe well liei
or damages ; fee 2 Wilfon 14^. refolved tliat an a£lion upon the
cafe for talfly and malicioufly fuing.out a commiflion of bank-
rupt which was afterwards fuperfeded, is a very proper aflion
at law for d^ijnages, although the Lord Chancellor nas powerbv
the Jlatutes of bankrupt of ^ Ceo. t, and 5 Geo. 2. to give 200/.
damages, ^

Carty verfus Afhley, C- B.

idmcnt 'TT^ HIS was a rule made upon the motion of Serjeant
V^J!f . f^a^Uer, for the plaintiff to (hew caufe why the pruceed-

Amendmtnt
of a r.7«i<

tbere being'' ings fiiould not be fet afide, becaufe there were not fiFiceti days
not fifteen betNveen the te/le and return of the tapias ad hfpondcndumy the
^tt^TtT^ fame being tehed the 11th dav of June fthe firft dav oF thin
ritMrnthereof, term] and returnable in ei*kt days qJ the Holy Trinity [ihc 13th
* Black. Rep* ol June.']
918. !5. C. ^ ^

Upon Serjeant Davy's coming to (hew caufe againft this rule,
the court enlarged the fame iintil another day, and made a rale
upon the defendant to fhew caufe at that day why the plainiiiT
ihould not bavQ leave to amend the capias ad refpondendum.

Per Gould J — Although this court cannot amend an ori-
ginal writ, becaufe it iffues out of the court of Chancery; yet
this court can amend all mefne procefs, and jlfo an attachment of
privile^i which is in the nature of an original ; no error can be
afligned in mefne procefs, this is a mere xniflak^ of the officer
J]the filacerj and ought to be amended, '

TfiiiyiTY Te^m 13 Geo. IIL 1773. 456

Pdr Narts J. — ^Juftice ought not to be delayed forfiich a mere
flip as this. In the cafe of Athnfon verfus Taylor, q lyUfon 117.
die capias ad rejpondendum was iet afide, becaufe there were not
fifteen days between the tejle and return thereof* but witliouc

cofts. ^Note^ The reporter heard no more of this motion,

therefore ^uart the books ot the Cecondaries, whether the matter
was ever moved again.

Walter and another verfus Stewart a prifbner in the *Biai:k.Repu

Fleet. ^''•'•^- •

npHE defendant 5/<ftyar/ was arrefled on the 18th of OSor treaty f«Wlftt
•*• her 1772^ hy virtue of a capias ad rtjpdndendum returnable between the
on the morrow of All fouls in Michadmas term laft, and on thai Jie°(kfcSiic
day [the 3.! of Novembn\ he was committed to the FUct. . w|k> ita

primer, tkt
pUiotiiTif not obliged to decUre agamft him within two ternH according to the nilet of the court.

On the 7th day of jfunc^ being the Effoyn-day of this prefent
term, [and not beforej jthe plaintiffs di:;clared ^gainfl the dc^
fendant ; and it was moved by Serjeant Davy on behalf of the
defendant that he might be difcharged out of cullody of the
%varden of tlie Fleet hyfuperfedeas, becaufe the plaintifis had not
declared againft him wit))iii two terms, inclunve of the. term
vherexn the capias ad refpondendum was returnable according to
the rules and praflice of this court ; a rule wa$ jnade to lliew caufe«

Upon fliewing caufe by Serjeant Kemp m behalf of the

filaimifT, it appeared to the court upon afQdavits, that ^ treaty-
Of an accommodation between the plaintifis and the de-
fendant was commenced on the a^th day of January in //i-
lary te^m laft, and was from thenceforth continued, and not f

ended, until about the middle of Eajler tenn laft ; tliat the de-
fendant propofed to pay down 15/. in part of the debt and
cofts to tne plaintiffs, and to give them a bond and wslrrant of
attorney to confefs judgment thereupon for the remainder, being
46/. to which the plaintiffs confented and agreed ; whereupon
the defendant executed a bond and warrant of attorney accord*
ingly, which was delivered to the plaintiffs or their attorney;
but the defendant not being able to raife and pay down the 15/.
in part according to his propofal, the plaintiffs, about the middle
of Eafler term lad, delivered up to the defendant the bond and
warrant of attorney, fo the treaty of accommodation then ended ;
arid afterwards, on the ojb day of June as aforefaid, th^ plaintiffs
declared againft the defendant in cuftody of the warden of the

ricet. - ^

a G 4 P^T

4S6 TbiSity Term 13 Geo. III. 1773.

Per curidm. It is for the benefit of prifoners that plaintlfli
vill liften to propofals of accommodation, but no plaintiff woHld
li{le;n to fuch propofals, if prifoners fhould thereby become iu-
perfedable ; the defendant hirafelf hath been the occafion of tlie
, plaintiff's not. declaring within the time limited by the rules and
pra£lice of the court, and therefore the rule to fliew caufe why
zfuperjedeas ihould not iffue muit be difcbaiged.

MICHAELMAS TERM

14 Geo. Ill, 1773.

iBtackltep, .

j»6- s- c. Beau verfus Bloom. C. B.

[cMllidBeauy. ^

[Oiccupiffof Norfolk Zp^JLLI AM BLOOM, late of LudUm in
ameOuage (to vvit) the county oi Norfolk^ Blachfmxth^ was attached

Vtohit'com- ^° anfwer Robert Beau, of a plea of trefpafs iipcn

^inon in the the Cafe, £3c. And whereupon the faid Robert by Join Howft
Lord'i waftc, his attorney complains and lays, that he the faid Robert on the

Mftoro*to cut ^^^ ^^Y ^^ J^h *" ^^ Y^^^ ^f ^^^ Lord 1772, and for the fpace
juihesasan. of two yeavs then lad paft, was, and from thence continually
aeiedto hit hitherto hath been, and ftill is lawfully poffeffed of and in, anil
TOon^l^^"* the occupier of a certain meffuage and divers acres, (to wit!
Special aaion ten acres of land with the appurtenances, lying and being in
upon the cafe the paH/h of Ludham in the county of Norfolk; and by rcafon
S'/^aiS?n t^^^reof the faid Robert during all the time aforefaid had. and cf
ki» light of right ought to have had and ftill of right ought to have common
common and ol pafture in and up6n a certain wafteor a)nfimon called Ludhim
lind*u^kr^ ^^M otherwife Ludham Common, otherwife Ludham Commtm
ruOiei upon Paflure, in the parifh of Ludham aforeiaid^ ct>ntalning by efti-
the commoji mation 500 acres in the faid couijty of Norfolk, for all his
h!j?c3ttY/by commonable cattle, levant and ceuchant upon his faid meffuage

an ancien(

and

MicKABLiiAS Tebm 14 Gbo. III. 1773- 457

and land with the appurtenaaces, every year at all times of the
year, as belonging and appertaining to his faid mefTuag^ . and
land with the appurtenances ; and the faid'A^r^ further fays,
that there is, and from time whereof the memory of man is
not to .the contrary there hath been, an ancient and laudable
cuflom, that every occupier of lands and tenements in the faid
pariO) of Ludkam^ who is intitled to have fuch common of pafture
m and upon the faid wa/le or common as aforefaid, hath uied and
been accuftomed to mow and cut down ruOies, growing and being
in and upon the faid wafte or commotk^^^^ year, in and during the
fummer-quarter of the year, according to the (?U^y(? of cdm^
putation of time heretofore ufed in England^ and to put and
place the fame ruflies fo cut down ia heaps in and upon the faid ^

ttfojle or common to be dried and cured, and to take and carry'
away the fame when dried and Cured for litter for the cattle (o
levant ^nd couchant as aforefaid, of every fuch occupier of lands
the tenements in the parlfli of Ludham aforefaid ; who is in-
titled to have fuch common of pafture as aforefaid ; yet the faid
William well knowing the premifes, but contriving and mali-
cioufly intending to injure and prejudice the faid Robert in this
behali , and to deprive and hinder him of the benefit and advantage
of his laid common of pafture belonging to his faid mefluage and
lands, and alfo to deprive and hinder the faid Robert of the profit
and advantage of mowing, cutting down, taking and carrving away
the rufiies growing and being in and upon the faid wajie or
common for litter Tor his cattle as afoilcfaid, while he the faid
Robert was poflefled of, and occupied his faid melfuage and
land with the appurtenances, and had fuch right of common of
pafture as aforefaid, and alfo had fuch right of mowing, cutting
down, taking and carrying away fuch ruihes growing and being
in and upon the faid wafle or common in mann^ aforefaid, fur
litter for the cattle of the id!A Robert^ levant and couchant upon his
faid meifuage and land with the appurtenances aforefaid, he the
. faid WiUiam^ (to wit) on the faid hrft day of July, in the year of
our Lord 1772, and on divers other days ana times between
that day ana the day of fuing fort{| the original writ of the faid
Robert at the parifli aforefaid, wrotigfully and injurioufly fpoiled
mowed and cut down divers, (to wit) ten acres of the grals and
ruflies then growing and being in the faid wa/le or comrfion^ and
wrongfully and injurioufly took and carried away divers, (to wit)
fifty waggon loads of the grafs and ruihes fo {)y him tne faid
Wnliam mowed and cut down' as aforefaid, in tne faid wafle or
common^ whereby the faid Rabert could not for a long time, (to
wit) during all the time laft aforefaid, have, ufe and enjoy his
- faia common of paftlire, and his faid right of mowing, cutting
down, taking and carrying away nHhes in and upon the faid
ivq/le or common for litter For the cattle of the faid Robert as
^orefiudi in fo ample and t>eneficial a maimer as he ought to

have

JAoa Michaelmas Term H Qbo. III. I77f.

have bad and. enjoyed the fame, but during all that tiznevas
deprived of great pact of the profit and benefit thereof. (There
was another count in trover for two waggon loads of rufiies)
which the plaintiff lays to his damage.

The defendant pleaded not guilty: iffue being joined thereon,
the fame was tried at the laft affiles for the county of Norjolk,
when a verdi£l wax found for the plaintiff, and general damages
given upon both the counts in the declaration,

Serjeant Sayer moved in arrefl of judgment, and took fevera]
exceptions to the declaration, i/f. That a cuftom to take a profit
in the foil of another is ba^, and to prove this he cited Gate-
wood'^ cafe, 6 R^p. 59. b, where it is refolved, that a cujiom for
the inhabitants in a vill within any ancient meffuage there to
have common of pafture, is bad. To which it was anfwereJ
for the })!aintiff, that Gaifwood's cafe does not apply to the cafe
at bar, for it does not prove that an occupier of land may not
have common in the foil of another, and may alfb by cuJIom
have a right to cut down and take rufhes for-litter for his cattle
kvant and couchant on his land. And to (hew that a cuftom to
take a profit in the foil of another is good was cited for the
plaintiflN 3 Lev. j6o. The Mayor and Commonalty ofTjyna H^s
verfus Taylor ^ where it was refolved by the. whole court, that a
cuftom for freemen of Lynn^ being owners or mailers of fhips, to
dig for ballad in the foil of the Hayar and Burgeftes of Lyn^ is
good, although fuch freemen and maflers of ihips are not incor-
porated, or members of the corporation, and Gatewood's cafe
was there cited to (hew the cuftom was bad; fo a cujiom to dry
nets upon another's foil is good ; alfo a cuflom of the Hundred
, of Wirkfworth in Derbyjhire to dig for lead in another's foil is
good, which is certainly to take a profit in another's foil. — It is a
good cuftom^ that when a man hath agiilcd his cattle in my
park, in ; the time of a great fnow, for neceffity to cut the
branches of the oaks for them. 1 JioU, Abr. 560.^. 12. — The
court over-ruled this objeftidn.

2. It was objeSed by Serjeant Sayer ^ that the title to the
common is ill fet out in the declaration, for it only alleges that
the plaintiff ^^Pojpffed of a meffuage and' lands, and by reafon
thereof, he, of^ right, had and ought to have common^ &c^
and cited 1 Ld, Raym. 266. Dorney verfus Cajhford. To which
it was anfwered for the plaintiff, that this is an a6lion for a
tort againft a ftranger, a mere wrong- dqer, and it is fufficient
for the plaintiff to allege that he is pojpjfed^ &c. he need not fet
out any title whatfoever, and this hath been the conftant and
uniform way of declaring in a6lions for difturbances of cofknum
ddidijimilar wrongs ever fince th^ cafe of Strode verfus ByrU. 4

MtcHAELKAs Term 14 Gbo, III. 1773. 45g

Mod* 418. which wa$ ana£lton of the cafe fctting forth that he
was poireffed oi a tenement and of a clofe ot pailure, and a rood
of lane), &c. in Skipton Mattel, and that he had right of co'mmom
in MtnSp foreft for his cattle, &c, as thereunto belonging, that
the defendant did dig and make coneys-boroughs in the faid
loreft, and fet nets and gins there by which his fheep were
damnified, and he deprived of common^ &c.; upon a writ of error
brought in ,8. S. the queftion was, whether the declaration was
good or not ? becaufe it fets forth that the ^\zmi\S L^itimi pof*
Jcjffionatus fuit dc temmcnto^ &c» which [it was objecledj was not
fufficient to intitle him to his a3ion. but that he ought to {hew
a title by cujiom ox pxefcription or otherwife, and not declare
upon ihs hare poffeffton without any other right; for he claiming
a profit arifing oiit of another man's foil, ought to have fet
forth a particular eftate to himfelf, either by grant, prefcription
or fome conveyance, and not to fay that he was pojfejfed, (3c*
and ought to have comrnon^ &c^ as belonging to kis tenements^
without {hewing how, or in >vhat manner, which is fo uncertain
that no i{rue can be taken upon it ; therefore [it was faid] the
plaintiff ought to have {hewn the commencement of his eftate,
and ho\^ he came to be intitled to the common^ ^which mull [in
this cafe] be either appendant, or nothing, and if fo, he mu{l
fet forth the beginning of it, that the.defendant might give him

an anfwer. But aiter much argument and debate upon the

matter the declaration was adjudged to be good, and that the
plaintiff need not fet forth his title, either by prefcription or
grant, i. Becaufe it is an a£lioh grounded upon Xh^ pojffffion
again{l a wrong doer ; to which .a£lion, a title would be only an
inducement. 2. That he need not fet out any title whatfoever,
becaufe (as to the defendant who did the* injury) it ftands in*
different, whethe." plaintiff is owner of the foil or riot ; the de.
fendant's b'ufinefs is to anfwer the wrong alleged to be done by

him. It is true if it had been upon fpecial pleading, as in

trefpafs for diiftraining his cattle, and the defendant had pleaded
that he was owner of the foil, and fo juftified the taking, the
plaintiff in fuch cafe mu{l have replied and {hewn a title by grant

orj)refcription or fome othpr conveyence. And Iqftly, [}^^

re{olved] that this matter is not traverfable; for, upon the ge-
neral iflfue a riglit of common muft be proved and given in evi-
dence, otherwife the plaintiff cannot maintain his a3ion, but
tohal right is not material, and fo the judggi^ent of the C. B.
was afihrmed, and [as the report fays] the law fettled in this point.

Domey verfus Cajhjord, x Ld. Raym, 266. (cited for the de-
fendant) was ca/i for obftrufling a private way. The plaintiff
declared that he was poffeffed Tor a term of years of a houfe,
^o4 th^ be and all tngfe >vh0f<c I^A^te be had in the houfp

from

46o Michaelmas Tbrm U Gbo. III. 1773,

from time whereof, &c. habnerunt & habere debuerunt a trey
., &c, that the defendant obftruded, &c. upon the general ifl'uc
pleaded, verdift for the plaintiff. But after divers motions in
.^ arreft of judgment; by the whole court judgment was arrcAed.
For though it had been good to declare againft a wrong-doer
that he [plaintiff] habere debuit viam^ &c. as was lately ad-
judged in C. B. in Strode verfus Birch, yet here the plaintiff has
laid a ^ut ejlate in hirofelf, when he is but leffec for years, '
which IS impoffible, for he cannot have the eftate of any other
but only his own. To which it was anfwered, that the plain-
tiff Dorney had no occafion to fet out any title whatfoever, but
[ as the cafe fays] it had been good to declare againil a wrong-
doer, that the ^\zmi\S Dorney habere debuit tnam, &c. but having
taken upon himfelf in pleading to fet out a title, and having fet
*out a bad one, it (hall be taken moft ftrongly againft him. — ^But
in the cafe at bar, the plaintiff hath not let out any title what-
ever ; poffeffion being iufficient againft a wrong-doer. And of
thai opinion was the whole courts

Serjeant Sayer ^dly objefted — ^That it appeared by the decia*
ration that the plaintiff claimed the right xj6 cut and take the
ruihes on the wajle for litter for his cdttle, as a right appen*
dant to his right of common, which cannot be in their nature
and quality ; for a thing incorporeal cannot be appendant to a
thing incorporeal, and both thefe rights are incorporeal, and cited

Tyrringham*s cafe, 4 Rep, 36. b. ^To which it was anfwered

that the right to cut and take rujhes, lie, is not claimed or
alleged to be appendant to the right of common, but it is alleged
to be a part of, or as a circumftance of the plaintiff's right of
common, and is a very reafbnable and ufeful part tliertof, and of
that opinion was the whole court.

Serjeant Sayer /^hly objefted to duplicity in the firft count,
' which (he faid) cbnfifted of a claim of two diftin6l and feveral
rights, viz. ^ right of common, which doth not lie in prendre^
for the plaintiff cannot.cut and take away the gfafs from off
the common, but can only^ feed and take it by the moutlis of his
^cattle; and a right to cut and take away rufhes, which lies
wholly in prendre, cannot be joined in the fame count with
• * the right of common, which doth not lie in prendre. To which
the Jike anfwer was given as to the ^d objettion, viz. That the
rigfit to cut and take the ruflies is only a circumftance attend-
ing, or part of the right of common, and that both together may
be reafonably taken and confidered as one united right, for the
tuftom is, that whoever occupies land in the pari(h of LuJkam,
and has a tight of common in the wqfie, has alfo a right to' cut
and take ruihes there, he cannot have one without the other,

according

• MicHAEiAiAs Tbum 14 Geo. III. 177S.- 401

according to the 'x:uftom laid in the declaration, and found to
be true by the verdi^L And of that opinion was the whole

court.

Serjeant Sayer iipon his firft raoving this cafe alfo objefted-^
That the latter count in trover could not be joined ; but now,
upon (hewing caufe he Candidly gave up this objeftion ; the
very fame having b*een made and over-ruled in Majl verfus Good»
fon^ in Nbck, term laft, ante.fd. 348. Serjeant Wilfon (who
drew the declaration) was of the plaintiff's counfel.

Judgment for the pTaintifiT, per to tarn curiam.

Mary Leader widow verjus WWYwim Moxton, Richard ainack.R«f.
Barwife and Thomas Taylor. C.B. 9*4. s.c ,

A CTION of trefpafs upon the cafe, wherein the plaintiff [ConuBifiiMw
■"• declares, That long betore and at the feveral times of com- *" ^ P*^***
jnitting the feveral grievances next herein-after-memioned, fhe arWoary di".
was, and from thenceforth hitherto hath been, and (lill is feifod cretion: tec
in her demefne as of freehold, that is to fay, for and during the I*"*'*^H
term of her natural life, if (he continues fole and unmarried, |-** j '^**
of and in divers, (to wit) fix meffuages or dwell ing.houfes with SpcaaiaaMn
the appurtenances, fituate, {landing and being in a certain fireet »r^^« «fc
or lane called OldjCraveUane^ on the eaft fide of the faid ftreet Jf^^J*"
in the parifh of Saint George in the County of Mxddlefex^ and nifingdM
which laid feveral meffuages. and dwellin^-houfj^, at the afore- ?**'^J?,^'
faid times of committing tlie faid refpethve grievances herein- JJ^in-,
after-mentioned, were in the poffeffion of certain tenants thereof hovfet is
refpeftively to the plaintiff, that is to fay. ope of the faid mef- Or^wi-^htf^,
fuaffes or dwelling-houfes then wa^ in the poffeffivn of one J(JJge ^^
Wuliam Tucker z^ tenant to the faid plaintiff, another thereof was lightiiocKe
then in poffeffion of one John Duncan^ as tenant to the faid *»•"*«• ^*««

iilaintiff, another thereof then was in the poffeffion of one Wil^ oUaraaei.
iam Sparks^ as tenant to the plaintiff, another thereof then was
in the poffeffion of one Alexander Grieve as tenant thereof to the
plaintiff, another thereof then was in the poffefGon of one Janus
Smxih as tenant thereof to the plaintiff, and the remaining one
then was in the poffei&on of one John Bee/wank asleuant to the
plaintiff; all which faid feveral meffuages or' dwell ing-hoiifcs
then refpe^ively fronted, and each of them did and doth front
the faid ilreet called Old Gravel-lane^ and each of them th^
had, and ftill of right ought to have a door and paff^ge from the ,
ground-floor thereof refpe£lively in the faid ftreet, and alfo cer-
tain lights and windows placea in the ground-floor of all the
6 laid

i62 Michaelmas Term 14 Geo. III. 177^-

faud xnefTuages or dwelHng-houfes refpe£Uvcly lo the fiud fbtM^
whereby the light and air from the faid ftrect came» and Jlill
of right ought to come into the faid mejQTuages and dwdlirig-'
houles refpeflively in the ground-fldors thereof refpethvely ;
ncverthclels the defendants well knowing the preraifes« but ma-
, licioufly and wrongfully contriving and intending to hurt and
prejudice the plaintiff in her aforeiaid eftate, of and in the afore-
laid meiTuages or dwcllin^-houfes with the appurtenances, and
to render the fame of little or no valu6 to her whilft fhc was
fo feized thereof as aforefaid, (to wit) on the firft day of 7ifH^
^772, and on divers other days and times between that day and
the day of fuing forth' the ori^nal writ of the plaintiff in this
behalf, at the parifh aforefai.d, in the county aforefaid, wrong-
fully and injunoufly raifcd and caufed to be raifed the faid flreet
Th« Gnva. tdWeAOU Gravel-lane^ and the foil and pavement thereof be-
■'"• fore audi in the front of the faid feverat mefluages or dwell ing-

houfes of the plaintiff, and of each of them refpe3ively by then
and there placing and laying divers great quantities of wood,
f boards, timber, planks, earth, .ftones, gravel and foil, in and

upon the faid flreet there, to a much greater height than the
faid flreet or the foil and pavement thereof were before raifed,
tliat is to fay, to the heighth of fix feet more and higher than
the fame flreet, or the foil and pavement thereof before were
raifed, and fo near and fo clofe to and againft the faid fronts of
the faid feveral m^jfTuages or dwelling-houfes, and the front ot
. each of them refpeftivelv towards the faid flreet, that theaforc-
faid doors and paffages of the faid feveral meffuages or dwelling-
houfes, and the doors and paffages of each of them refpediveiy
from the ground-flopr thereof refpeftively unto the faid flreet,
and alfo the faid lights and windows of the faid feveral meffuages
and dwelling-houfcs refpeSively^ in the ground -floor thcroof
refpeftively, through which the faid light and air before came
from the faid flreet intd the faid meffuages or dwell ing-houfes,
and each of them refpeftively in the ground-floor thereof, be-
came and were and flill are totally blocked up and obflru£led»
clofed and darkened refpeflively, fo that the laid tenants and
inhabitants of the faid meffuages and dwelling-houfes refpec-
tively could^ot p§ifs through, or go out of the fame refpettivc
doors or paffages thereof into the faid flreet, and which they ufed
to pafs and go, and flill of right ought to pafs and go into the
faid ftreet, and alfo from thence back into the faid meffuages,
and the light and air which biefore came into the faid meffuages
or dwelling-houfcs refpeftively, through the fame lights and
windows or any of thefn into the faid meffuages or dwelling*
houfes or any of them in the ground-floor thereof refpeftively,
but were ana flill are totally obflrufted, hindered and prevented
by the means aforcfaid from fo doing ; by reafon whereof the

plaintiff

Michaelmas TsRiii 14 Geo. Itl. iHi. 46^

|>tainti(rhath been andilil] is greatly prejudiced and injured Ifi
her afore faid eftate, of and in the atorefaid mefluages or dwelt*
' ing-'houfes with the appurtenances and each of them refpeftivcly ;
and the fame mefTuages or dwelling-houfes are become and each
of them refpeQivelyi is become thereby of little or no value to
her; and the greater part of the aforefaid tenants, (to wit) the fald
Wilfiam Sparks^ ^ames Smithy AUxandcr Gfiei'e^ and Jfohn Beef-
uank^ four of the aforefaid tenants to tfae faid plaintiff* of hef
faid meffuagcs or dwelling-houfes refpcftively, by reafon of the
prcmifes, have refpeSively qiiltted and left the faid four mef-
faa^es add dwelling-houfes, which were in their rcfpcftivc pof.
feflions as aforefaid, and the plaintiff cannot procure any other
tenants for thofe mefTuages or dwelling-houfes, but the fame
remain and each of them refpeftively remains empty and un-
tcnantedj and the aforefaid other tenants to the plaintiff, (to wit)
the faid iVilliam Tucker and John Duncan^ two of the faid tenants
to the plaintiff of the faid remaining two meffuages or dwelU
ing-houfes of the plaintiff, have and each of them refpeaively
has foreborn and refufed to pay any rent to the plaintiff for thole
meffuages and dwelling-houfes within their refpefiive poffef-
fions (ince the committmg of the faid grievances, and flill re-
fufe to pay any rent to her, and threaten and are going to quit
and leave the poffeflion of the faid two lafl mentioned meffuages
or dwelling-houfes refpe£tively, by means and on account of
the premifes aforefaid, {to wit) at the parifh aforefaid, in the
faid county of MiddUjex ; and the plaintiff avers that fhe at
tlie faid feveral times of committing the aforefaid grievances,
and flnce thofe times was and continued fole and unmarried,
and flill continues and is fole and 'unmarried, (to wit) at the
parifh aforefaid in the county aforefaid. There are other counts
iti the declaration to the like effe3 for the fame caufe of a£lion,
which the plaintiff lays to her damage of — -^ pounds, G?c.

The defendants pleaded the genial iffue, and this caufe was
tried before the Lord Chief Jufticc Dt Grey at the fittings after
Hilary, term laH, when a f erdifl was found for the plaintiff, and
170/. damages, fubjeft to the opinio^ of the court upon theifol-
lowing cafe, viz.

It appeared in evidence at the trial^ that the plaintiff was Cafic (latea fct'
owner for life of the houfes mentioned in the declaration, and «^ <>?>««>« <^
which .fh)od in Old Gravel-lane : the fame beipg a lane opening
immediately into one of th^ flreets mentioned, and authorized
to be pavfci in and by a certain a3 of parliament paffed in the
xith year of his prefent Majefly*s reign, intituled •• An aft for
paving JVatping-fireet in the county ^Uiddlefex^ and the feveral
iireets ana pafiage» leading into the fame ; and for removirfg

464 ' Michaelmas Tbmu 14 Geo. III. 1773.

a]I*«DcroacbiDent5 and obfiru£Uons therefrom, and preveming
the like for the future ; and for opening a paflage trom Her-
^ mitage-JlreH into NightingaU-lane ; and for paving fuch paflagCt
and the eaft-fide of Nig/UingaleJane."

That on the 26th of July tyji^ two thirds and upwards of
the houfeholders and landlords or owners of houfes and tene-
ments within Old Gravel-lane aforefaid*' did in purfuance ol the
faid zSt apply by petition to nine and more of the commiflionas
in the laid aa named and appointed at a meeting of the
commiffioners for putting the laid aft in execution, exprelling
. their defire to have the faid lane paved and cleared of all in-
croachments, nuifance$,obQru£):ions and annoyances; whereupon
the faid commiflioners, at the faid meeting, being nine or more
in number, did make a certain order whereby it was ordered
that the prayer of the faid petition be granted, and that the fe-
veral powers vefted in thele commiflioners by the faid aft in
coiifeouence of the {aid petition be carried into execution at their
requeit.

In confequence of the above petition and order, the commif-
fioners contracted with the defendants to pave Old GravdJane^
who accordmgly proceeded to pave the fame ; and did^ purfuant
to the orders y' the faid commiffioners^ raije the footway contiguous

to the faid houfes to the height of fix feet hut in a regular de-
fcent, and compleatly finiflied the faid pavement by the fourth
day of July 1772, and by fo raiiing the footway in manner
aforefaid, obflruaed the doors and zvinaows in the groundfloors of
the plaintiff's houfes in the declaration mentioned, and oc-
cafioned the feveral injuries to the plaintiff complained of in the
declaration.

Before the bringing of the prefent aftion the plaintiff did.
within fix months after the caufe of complaint, appeal to the
' juilices of the peace at a General Quarter Seflions held for the
county of M?^$/^Ar,firftffiving twenty-one days' notice in writ-
ingot her intention to bring fuch appeal, and of thc'njattcr
thereof to the clerk of the commiflioners, and did enter into
fuch recognizance in that behalf as is direfied by the faid afiof
parliament ; and upon the hearing ot Fuch appeal, the faid court
of Quarter Seflions difmifled fuch appeal, apprehending and de-
claring that that court had no jurifditlion^in the matter.

That before the bringing of the prefent a£lion the clerk of
the commiflioners was requefted by the attorney for the plaintiff,
to give him a copy of the order figned by the comnfiflioners
unoer which the prefent defendants a£led, or the names of fuch

com-

Michaelmas Terai 14 Geo. III. 1773. 465

comminioners who figned fuch order, but which rcqucft the
faid clerk did not comply with, but refufed fo to do; where-
upon the prefent ad ion was brought after twenty days previous
notice in writing to the clerk of the commilTioners, and alfo to
the defendants.

In order to prove the a£lion to be commenced within the
time limited by tlic aft, a ca/nas ad refpondcndum (iiFued out of
this court) was produced and i:ead in evidence, and which
appeared lo have ilFucd on the 15th day of December 1772, and
was returnable the 20th day o{ January laft, and was futd out
with intent to declare in the prefent aSion upon the appearance of
the defendants thereto, and upon fuch appearance did declare <
again (I them as above fet forth. Whereupon a verdift was
found for the plaintiff, fubjeft to the opinion of the court upon
the two following qucllious:

ijl Q. Whether the above aftion will lie againft the de-
fendants under the circumilanccs of the cafe?

2d Q. Whether the capias ad refpondendum ought to
have been read in evidence to prove the time
of the commencement of the fuit ?

Serjeant Davy for the plaintiff was beginning to argue, when
the court flopped him and faid the defendant's counfel ought to
begin, and fpeak firll as to the latter qiieflion ; and then <o
the firft.

Serjeant Walker for the defendant — I contend that the capiat
ad refpondendum ought not to have been read in evidence to prove
the tune of the commencement of the fuit, becaufe that writ
is not the commencement of an aftion in this court; the plain-
tiff ought to have produced and fhcwn in evidence to the jury
her original zorit fued out within the time limited by this aft of
parliament; for fhe alleges in her deqlaraiion that the defendants'
on the firfl day of June, and on divers days and timev between
that day and the day of/'uing/orth her original writ, did the da-
mage and injury (he complains of; — fo, where the ftatute of li-
mitations is pleaded to ^naff'umpfit in this court, and the plaintiff
replies by Ihewlng that a capias ad refpondendum was fued out
within fix years next after the caufe of a6lion accrued, it will not
take it out of the ilatute,

G^u^/ Juftice — If the capias ad refpondmdum be fued out within
fix months [as it appears to be], the original muft be prefumed
to be fued out within fix mouths, for it immediately precedes the
capias.

Vol. III. H H Blackftont

466 Michaelmas Term U Gbo, IIL 1773.

»Bttrro.95o. Blocifi^one Judice^-^The latitat is the commencement of the
10969. a£lion m the King's Bench^ and yet it fuppofes a hill of hiiidUJtx

tra/com- ^® ^^^ iflued before ; 1 think the capias ad refpondtndum was
nencementof very rightly admitted to be read in evidence to Ihew the com-
a fait inC. P. mencement of the fuit.

is good evi-

original.] Serjeant JVcdker — ^As the court feera to be of opinion that the

€apias was properly admiilible to be read to Ihew the commence*
ment of the fuit, I ihall go on to the other queflion, and en-
deavour to (hew that this a&ion doth not lie againft the defend-
ants under the circumftances of this cafe.

By a claufe in the a£l of parliament mentioned in the cafe for
paving Wapping-Jlred^ ^c.foL 550, 551. the commiflioners arc
authorized and empowered from time to time to caufe, order and
direS the faid ftreet, &c. to be paved^ repaired funk or altered^

in fuch manner as they {hall think fit. ^The defendants have

done nothing but what the Commifliioners ordered. The
commiilioners have power to fink or alter the pavement as they
think fit; they have power to alter ; then they have power to
raife the pavement : it to raife it an inch» they may lawfully
raife it a foot> or fix feet, as hath been done in the prefcnt
cafe; for the legiflature intended that private property (hould
give way to the publick good; and therefore under the circum-
tfances of the cafe this a£Uon doth not lie.

Again ; the aft of parliament hath provided [^foL 590.] " That
if any perfon (hall think himfelf or herfelf aggrieved by any
thing done in purfuance of the aft, fuch perfon may appeal to
the Quarter Seflions within fix calendar months after caufe of
fuch complaint ihall have arifen, &c. and the juftices ihall hear
and finally determine the caufe and matter of fuck appeal in a
fummary way, and award fuch cofls to the -parties appealing or
appealed a^amll as they the faid juftices Ihall think proper; and
the determination of fuch Quarter Seflions fliall be final, binding,
and conclufive to all intents and purpofes." The legiflature
faw that fome injuries muft be done, and therefore gave this
]>ower to the juftices at the Quarter Seflions, whofe determina-
tion is to be final; the party aggrieved muft apply to the Quar-
ter Seflions for redrefs, and has no right to bring this aftion.

Blackflone Juftice — It appears by the ftate of the cafe that the

, plaintiff did, within fix months after the caufe of complaint,

properly appeal lo the Quarter Seflions, and upon hearing the

appeal the fame was dilmifled, the juftices apprel^ending that

that court had no jurifdiftion in the matter.

Serjeant

MiChablmWT^bm 14 Obo. III. i77ii 467

Serjeant Walker — The court of King's Bench would Lavd
granted a mandamus to obh'ge the Quarter Seifions to take jurif*
diclion of, and finally determine the matter; '

Blackjlone Juftice — ^The Quarter Seftions have no jurifdiftion
to give the plaintiff fatisfaciion in damages.; they have only
power (by the aft) to give cojls: fhall the party injured [as the -
prefent plaintifFbas been] be precluded from bringing her afiiou
in this court, and laying her cafe before a jury, to have fatis-*
fa6^ion in damages? I am of opinion (he ihall not be precluded.

Serjeant tiavy was ready to haVe argued for the plaintiff, but
the court told him they were of opinion that judgment mufl
be given for the plaintiff, and therefore he had no occafion to
give himfelf any trouble^

Gould Jufticcr— I am Very clearly of opinion that, this a£lioil
well lies againft the defendant ; that the aAion was cotnmenced -
in due time, and that the capias ad refpondendum was very pro*
perly read in evidence to prove the time of the commencement
of the fuit*

Every man of common fenfe muil underftand that this a£l
of parliament ought to be carried into execution without doing
fuch enormous mjury to individuals, as hath been manifellly
done to the plaintiff in this cafe ; wherever a truft is put in
commiQioners by a3 of parliament, if they^ mifdemean them*
felves in that truft they are anfwerable crimmally in the King's
Bench ; if they aggrieve and damnify the fubje6t, as they havd
done in the prefent cafe* they are anfwerable in this court ctw-
liter in damages to the party injured ; there are no negative
words in the (latute to exclude the courts at iVtftminJicr from
having jurifdidion in this Cafe, on the contrar)' the a6l of par*
liament recognizes their jurifdiflion, where it limits the time
for commencing a6lions a^ainit perfons for any thing done in
purfuance of the aft. Behdes, the Quarter SelEons have no
power or jurifdiftion to give any fatisfaftion in damages, fo
that it would be very grievous to the fubje3s indeed, if the
courts at Weftminfter were not open for them to obtain juftice by
, the verdi6l of a jury in fuch a cafe as this.

Blackftont Juftice-^I am of the fame opihioh ; the Quarter
Seftions have no power to make the injured party fatisjfadion
in damages; the commiflioners are authorized to j^Jt/^, repair^
Jink and alterthe ftreets ; this ftreet caMed Old GraveUane^ where
the plaintiff's houfes ftand, was ordered to be paved^&c. binder
the optional daufe, as it is called [in the aQ, 7^/^590.] upon

H H s petition

466 MickAELMAs Term 14 Geo. III. 1773.

f>etition (of two thirds of the houfeholders and landlords of the
loufes there) to the commiflioncrs, who have power by that
claufc in the a£l to -rate and aflefs the inhabitants of fuch (Ireet
one fhilling and fixpence in the pound ; is it confident with com-
jnon fenfc that the plaintiff muft pay is, 6d, in the pound to
have her houfes buried, and the lights and free paffage of her
houfes obftrufted and hindered? 1 think the conimiflioners luve
a3ed arbitrarily and tyrannically, and that the damages are too.
fmall.

Mr. Jiiftice Nares was of the fame opinion; and fpoke to the
like eHett, and judgment was given for the plaintiff.

HILARY TERM

14 Geo. III. 1774.

[Setpoft. The Provoil of Eton -College and the fame College
^^3 ] ver/us The Bifhop of Winchcfter and Fountain, Clerk.

C. B.

Noea. The Surry '^O JIN' Bijliop of Winchefkr, and Thomas Fountain

record i« en- (to v!i\)J clcrk have been fummoned to anfwer unto Edward

HiiVy^term. Barnard doftor in divinity, Provoft of the college-

13 Geo. 3. royal of tlie Blcifed Mary pi Eton near Windfor in the county of

Buckingham and the fame college, that they permit the faid

Cr^j\x\t\jrtttrg^ provoft and the fame college to prefcnt a fit perfon to the church

intprdtt <i{ in oi'JVorpkfdon which is void and in the gilt of the fsme provoft

grofs!'""*" and the lame college, G?r. And thereupon the hid J>rovoJi and

college by J^ohn Edmonds thcirattorpey complain, lor that the

provoft of the faid college-royaf of the Blelled Af^ry of EJon

near Windfor in the county of Buckingham and the fame college

were feifed in grofs as ol fee anid right, in right of the faid

' ' 6 " college

HiLABT Term 14 Geo. IIL 17T4. 46g

college of and in the advowfon of the church of Worpltfdon That the
aforelaid, and being fo thereof feifed, the faid church hereto- f^^V^
fore, (to wit) on the 8th day of OSober in the year of our Lord p'ii^ntcd to
^7^5* ^Worpltfdon aforefaid, in the county of «S«rry aforeiaid, the church
became vacant by the death of one Stephen SUeck the then ixir )>e*ng^vac«ie
cumbent thereof, and thereupon it then and there belonged tp " *^ ^'
the provoji of. the faid college for the lime then being, and to
the faid college in right ot the fame college, to prcfent a fit
pcrfon to the faid church fo being vacant as aforeiaid, whercr
upon the faid Edward Barnard then provojl of the faid college^
and the fame college in right of the fame college, then and there
prefentedto the faid church, fo being vacant as aforcfaid, one 7<7/il>
Burton doflor in divinity their clerk, who, upon the faid prefenta- »'»« John
tion of the faid then provojl and college, was admitted, inllituted ?"J**? ?**^*
and induced into the fame in the time of our Sovereign Lord ^o was ad*
the now King; and iht Jfrovojl of the faid college, and the fame roicted, «fc,
college in right of the (aid college, being fo feiled of kind in the
faid advowfon as aforefaid in form afore faid, the faid church
afterwards, (to wit) on the 13th day of February in the year of That on 13th
our Lord 1771, at IVorpleJdon aforefaid, became void by the *Jf^' J^^V
death of the faid John Burton the then laft incumbent thereof, became"void
and ftill is vacant, and for that reafon it then and there be- by the death
longed, and now ftill doth belong, to the faid now provqft and ofDr.Bunoh,
college in right of the faid college to prefent a fit perfon tUcani 'indit
to the faid church fo being void as aforefaid ; and the faid Bijkop now belongs
and Thomas Fountain hinder them, and will not permit them io to plaintiff to
to do ; wherefore they fay that they are injured and have fuf- a^endanct^
tained damage to the value of two hundred pounds, and there- hinder, &c,
fore they brmg their fuit, (^c.

And the faid John bijhop of H^nchjler and Thomas Fountain The blAop
clerk, by Thomas Francis their attorney, come and defend the P[^**** '***' **•
force and injury, when, i^c. and the faid, bijliop fays that the ^j^J^f^ |,m j^,
faid church of Worpltfdon is within the diocefe of Winchtjlcr^ ordinary,
and that he neither has nor claims any thing in the faid church
but the admiiTion, inftitutioii and indu6iiou of parfons to the
fame church, and what other rights belong to an ordinary of the
fame church; and this he is ready to verify : wherefore ne prays
judgment whether the faid provojl and college^ without afEgnin^
a ipecial diilurbance in him the faid bijnop .in this behali, '
ought to have their aftion thereof againft him, G7(C. And the ^he incum-
faid Thomas Fountain fays, that the [eixA provojl and colUgi ought rhat^he Uplif- •
not to have their adion thereof againft nim, becaufe he fays, he fon im^rfnr*
the faid Tliomas Fountain is, and on the day of fuing out the faid on theprcfen-
original writ of the idiiA provojl and college was, parfon impar- ^fcntKin§,
fiine^ of the faid church, upon the piefentation of the tord wbofe ticie b

deduced from
King Charles the xi, who waf (eiCed in fee, and prefented CIA* Moore.
IX H 3 C^orge

4^0 HiJUARY Tbbm 14 Gbo, hi, 177-*.

George the third the now King: and thib &id Thomas Fountain
further fays, that the Lord Charles thefecond^ late King of Efig-
landf was feifed of the advowfon of the church aforefaid asof one'
in grofs as of fee and right, in right of his crown oi England; and,
being fo feifed thereof, prcfented to the faid church, being va-
' cant, one^harles Moore bis clerk, who, upon the prefentation of
the faid late King, was- admitted, inftituted and induAed into
the fame in the time of peace, in the reign of his faid late Ma-
jefty King Charles the fecond; and his faid late Majefty King
Charles the fecond^ being fo feifed of the faid advowlon» after-
fCing Jamet Wards at Worplefdon aforefaid died ; upon whofe death the faid
the 4(1 feifed. advowfon deicended to Janies the fecond late King of England^
as brother and heir of the faid late King Charles the fecond^ wlio,
by reafon thereof, became feifed of the faid advowfon as of one
in grofs, as of fee and right, in ri^ht of bis crown of England:
^nd being fo feifed thereof, the faid late King James thtficoifd
Abaicatedthe abdicated the government and crown oi England : and there-
crown, upon afterwards the Lard William and the Lady Mary lawfully,
rightfully and in due manner became and were King and Queen
of England^ &c. by reafon whereof the faid King JVtUiam and
King William Queen Mary were feifed of the faid advowfon as of one in
^do*'^ grofs by itfelf as of fee and right, in right of their crown of
Mary7eire<i, England: and the faid King and Queen being fo feifed thereof.
The Queeji the faid Queen afterwards, at WorplefJon aforefaid, died without
K^^' wir ^^^^ ^^ ^^^ body, after whofe death the faid late King Wilham
3d"cifed. **" ^^ feifed of the faid advowfon as of one in grofs by iifelf as of
fee and right, in right of his crown of England: and being fo
feifed thereof afterwards at Worplefdon aforefaid died; after
whofe death the Lady Ann^ lawfully and rightfully, and in due
Qaecn Ana manner and right, became and was Queen of England^ and was
loiKd. feifed of the faid advowfon of the faid church as ot one in grofs by
itfelf as of fee and right, in right of her crown of England: and
being fo feifed afterwards at Worpkfdon aforefaid died without
' heirs of her body ;- after whofe death tl e late King George the
jirjl^ lawfully, rightfullv, and in due manner, and of right be-
came and was Kin^ of (^reat Britain, &c, and was feifed of the
faid advowfon as oi one in grofs by itfelf as of fee and right, in
King George right of his crown of Great Britain: and the faid fete King
and ' V^^*^^' George tkejirjl being fo feifed of the faid 3dvowron, tlie faid
dcac'h^of * church became void by the death of the faid Charles Moore^ and
Charles being fo void, it belonged to him the faid late King George ike
*rovoft of * jf^ to prefent a fit perfon to the faid church fo void, and one
Iton by fienry Godolphin provojl of the faid college, and the faid college,
ufurpatioa ufurping upon the faid late King George the Jirjl^ prefentcd ta
upon the the faid church fo void Thomas Carter clerk, who, upon the
fent!^d Tho. prefcntation of the faid Henry Godolphin provojl of the faid coHegt ,
iF§« Carter, and of the faid college, was adn^itted, inftituted ?uid induQcd into

the

Hilary Term 14 Geo. III. 1774. 471

the fame'; and the faid King George the Jirfl^ being fo feifed
of the faid advowfon, afterwards at WorplefJan aforefaid died,
upon whofe de9th the Lord George the jicond^ as only fon
and heir of the faid late King George ththrft^ lawfully, right-
fully, arid in due manner became King of iGreat Britain^ &c. and Kmg Geoist
became feifed of the faid advowfon as of one in grofs by itfelf, *Y*''^**» i,
as of fee and right, in right of his crown of Great Britain; and acath of*
the faid late Lord King George thefecond being fo feifed of the Thomu Car.
faid advowfon, the faid church became void by the death of the ^^yheproToft
faid Thomas Carter^ and being fo void it belonged to him the gfttr^^oi
faid late King George thefecond to prefent a fit perfon to the fiid prefeDted
church fo void, and one Henry Bland provoft of the faid college, St!?*
and the fame college, ufurpins upon the faid late King George thf *"^
fecond^ prefented to the faid church, fo void, George Harris
clerk, who, upon the prefentation of the faid Henry Bland pro-
vop of the faid college, and of the faid college, was admitted, in-
ftituted and induQed into the fame; and the faid late Lord
George the fecond being fo feifed of the faid advowfon, the faid
church became void by the death of the faid George Harris^ Tfcit tlic
whereby it belonged to the faid late King George the fecond to ^^"'^'^/^'^j^
prefent a fit perfon to the faid church fo void, atid Benjamin j^S^f^
Bijhop of Winchefter^ ufurping upon the faid Lord George the ft- Oedrge
cond^ collated to the faid church Stephen Sleech, who thereupon |J"™ •"*
was induced into the fame; and the faid late King George the bi&JJTof*
Jecond, being fo feifed of the faid advowfon of the laid church, Winchefter
afterwards at Worplefdon aforefaid died ; upon whofe death the «oU«J«d
Lord George the third the now King, as grandfon and heir of the s{cJch"y
faid late King George the fecond^ lawfully, rightfully» and in due ufurpation.
manner became King of Great Britain ^ &c.' and became feifed King George
of the faid advowfon as of one in grofs by itfelf as of fee and tli^thurch
right, in right of his crown of Great Brtain^ and yet is feifed being vacant
thereof; and being fo feifed thereof, the faid church became WAc**"th
void by the death of the faid Stephen Sleech, whereby it belonged pi„?lSff« pre!
to the faid Lord the ncAv King to prefent a fit perfon to the rented Joho
faid church fo void, Jind Edward Barnard .provojl of the faid Burton by
college, and the faid college, ufurping upon the faid Lord the "^•*^P*^**"'-
now King, prefented to tlie faid church, fo void, John Burton
clerk, who, upon the prefentation of the faid Edward Barnard
provoft of the laid college, and of the faid college, was admitted,
inllituted and induded into the fame ; and the faid Lord the
now King being fo feifed of the advowfon, the faid church be-
came void by the death of the faid John Burton^ whereby it TV«t the
belonged to our faid Lord the now King to prefent a fit perfon ^^^^^ jj^'^i'
to the faid church fo being void ; and the faid Lord the nowJJ^JbofBurr
King prefented the faid inomas Fountain clerk to the faid church ton, the now
fo bemg void, who, upon the faid prefentation of the faid ^"Jf/^?"^*
Lord the now King, was admitted, inllituted and indu6lcd into Jant Foun °*

H H 4 the uiQ.

47a

Hilary Term 14 Geo. III. 1774.

tlic fame cliurch in the time of peace in the time of the prefcnt

King, and long before and at the time of fuing out the faid

original writ ot the i^iAprovo/l and college was and yet is parfon

imparfance o{ ihc faid church upon the prefentation aforefaid;

^ho tnverfes without tkis, that the faid provoji of the faid college, and the

tile ^^voft^ ^^^^ college, were fcifed of the faid advowfon of the cliurch of

and college of Worpltjdon aforefaid in manner and form as the faid provqjl and

£tofl. college have above alleged ;« and this he is ready to verify:

wherefore he prays judgment if the faid provoJl^nA college ought

to have their faid action againfl him, £^^.

Thomas Walker,

Replication
to the plea of
the biiliopt

Writ to the
biihop to ftay
ttotil the plea
be deter-
jniord be-
tween the
plaintjffi and
Founutn*

The proYoft
and college
take ifTue
t*pon the In-
cumbent's
tfivr.e,

IncuTjSrnt
joias iU«.c.

Vmref^ciat
awdudcd.

And the faid provoji and college, as to the faid plea of tlie
faid bifhop above pleaded, for that the faid biihop claims no-
thing in the faid church nor the advowfon thereof but the ad-
miflion, inflitution and indu61ion of parfons to the fame church,
and what other rights belong to an ordinary as ordinary* of the
fame church, prays judgment and a writ to the faid biQiop,- &r.
It is therefore confidered that the faid provoji and college re-
cover againfl the faid bifhop their prefentation to the faid
church, and have a writ to the fame bijliop that notwithfland-
ing the difclaimer of the faid biJIiop he admit a fit perfon to
the church aforefaid, at the prefentation of the faid provoji and
college, &c, but let execution thereof ftay until the aforefaid
plea between the faid provoji and college and the faid Thomas
Fountain be determined, but no amerciament againfl tlie faid
b]fliop becaufe he excufeth himfeif of iheimpedinK-nt, £>r. And
as to the aforefaid plea of the faid Thomas Fountain by him above
pleaded in bar, the faid provoji and college fay, that they, by
reafon of any thing in that plea alleged, ought not to be barred
from having their aforefaid attion againfl him, becaufe they
fay, as before, that the faid provoji of the faid college aiul the
fame college were feifcd of the advowfon of the church of
WorpUjdon afe»rcfaid in manner and form as the faid proi^Jl
and college have in their faid declaration above alleged, and
this they pray may be inquired ,of by the coantiy. And the
faid Thomas Fountain doth the like, £t?c. therefore the fhcritf
is commanded that he caufe to come here in eight days of the
purification of the BlcfTed Mary^ twelve, &c, by whom, 6?r. and
who neiiher, £i?c. to recognize, £?c. becaufe as well, Wr. At
which day the jury between the parties aforefaid wa^ re-
fpited between them here until this day, (to wit) from EaJUr
Jay in fifteen days then next following, unlefs the King's juflices
affigned to take the aflizes in the county aforefaid by form of
the flatute, i^c, fh dl come before on Wednffday the thirty-firfl day
oi March next, pall, at Kingjlon upon Thames iniht faid county;
and now here at this day come as well the faid provoji and the

faid

Hjlary Term u Geo. III. 1773. 473

f«id college as the faid Thomas Fountain by their attorney afore*
faid, and the aforefaid julliccs before whom,'' &c. have fent here
their accord in thefe words, (lo wit) Afterwards, that is to fay, jj^^ ^^^
on the day and year and at the place within mentioned, came as
well the faid provojl and tliefuKie college by John Edmonds their
attorney, as the faid Thomas Fountain by Thomas Francis his at-
torney, before Sir Richard ^idams Knt. one of the barons of his
Majefty's court of Exchequer at Wejiminjltr^ and George PerroU
Kfq. one other of the barons of the fame court, jullices of our
faid Lord the King afligned to hold the aflize^ for the within
written county of Surry according to the form of the fiatute,
fc?f. and the jurors of tne jury, whereof mention is within made,
being fummoned to be upon that jury, being demanded, come,
(to wit) Sir Timothy Waldo Knt. lAofi:s Waite^ John Levy, Richard
Carpenter Smithy Herbert Thomas, Daniel Ponton, Samuel Gillam,
Nicholas Leach, John Rogers, Samuel Plumbe, Jojeph Hifco^, and
Thomas Hurjl Efqrs. and are fworn upon that jury, and being
chofen, tried and fworn to fpeak the truth of the matters within
contained, on their oath fay, that long before the diilurbance Special vW^
above complained of, that is to fay, on the 7th day of May in *^^'
the year ol our Lord 1683, the Lord Charla thefecond late King ^j^j .,,
of England was feifed of the advowfon of the church aforefaid as 16S3, cha. «.
in grofs as of fee and right, in right of his crown of England^ *^»« ^^'^^^^f
and being fo feifed thereof, prefentcd to the faid church, being "^ ^^^^
vacant, one Charles Moor his clerk, and that the faid Charles Moor.
Moor upon the prefentation of the faid late Kitig was admitted,
inftitutcd and inau£lcd into the fame in the time of peace, in
the reign of his faid late Majefly King Chdrles the fecond: and Thattbe
the jurors upon their oath further fay, that the Kings and KlngtaiKl
Queens of England continued feifed of the advowfon of the S^^f^V^
church of WorpUfdon in grofs as of fee and right in right of the feifed of the^
, crown of England, until the time of making the atl of parlia- advowfon in
ment herein-after-mciitioned ; and tlie jurors upon their oath ^«« »»«'* «^«
aforefaid further fay, that long before the time of the difturbance Sof parJia-
within complained of, and before the making of the aft of par- ment foUow-
1 lament herein-after-roentioned, (to wit) ort the 30th day of '"*'
January in the third year of the reign of Lord Janus the fecond Th.^ ^^^
late King of England, Cffc. and in the year of our Lord 1687, by the faid aa,
a certain indenture tripartite then made, and which faid in- ^^/o'^^N*"'
denture was fhewn and produced in evidence to the jufiices and Jentu're of"*
jurors aforefaid, between his Grace the moft Noble Charles then that date,
Y^xj^^iASomtrfet Earl oi Hertford^ V ikoxxni Beauchamp Dehatch,
Baron Seymour of Trowbridge^ and Knt. of the moft noble order
of the Garter, and her Grace the Right Noble Lady Elizabeth
Dutchefs of Somerfet then wife ot the faid Lord Duke, and fole
daughter and heir of Jofcelyn then late Earl of Northumbetland
4cceafed of the .firll part ; Thomas Beach of WeJLAfton in the

county

474 HiLAKY Term 14 Gbo. III. 1774.

county of Wilis Efq. and Hetiry ChamMon of the Inner Tempk
London Efq. of the fecond part; the Right Honourable James
Earl of Suffolk, the Right Honourable EUzabeth Countefs
Dowager ot Effex, the Right Honourable Sir John EnJe Knt.
Chancellor and Under-treafurer of his then ^lajefly's court of
Exchequer and one of his then Majcfty's moft Honourable
Pri\7 Council, and the Right Honourable Elizabeth Lady Sey^
fnour mother of the faid Lord Duke and then wife of the faid
^ John EmUy and Sir Orlando Gee of Ifleworth of the third
ofKirby"^ part; the reftory of Kirhy OverUowes in the county of Yori^
Overbiowesy and alfo the freehold and inheritance of the Honour of Pei-
and *^^°-^ worth in the county of Svffix were conveyed (among other
^th^werc ' things) to the ufe and behoof of her Grace the faid Duchefs of
Icttied to the Somerfit^ for and during the term of her natural life, without
Sh^k *^ ?* impeachme^jt of of for any manner of wafte ; and from and
Pocheft of af^cr her deceafe, then to tne ufe aftd behoof of his Grace the
Someriet for faid Duke of Somerfd, for and during the term of his natural
life. life ; and from and after the determination of their efiates, and

K«fn«fnaer to ^^ ^^ ^^^^ (hould refpediveiy determine, the remainder thereof
truftees Co to the ufe of them the iziA Thomas Beach 9^x1 A Henry Champion
pref«rYe con- ^j, J ^hcir heirs, during the natural lives of his and her Grace
BMODdert! ^^ hot A Dukc and Lady Duchefsand the furvivor of them, wfon
trull to fupport and preferve the contingent ufes and efiates in
and by the faid indenture limited from being defeated and de-
flroyed, and for that end to make entries and bring a^ons as
occafion (hall be, but neverthelefs to permit and fu&rthera the
faid Duke and Duchefs of Somerfet during their refpe^ive na-
tural lives to receive and take the rents, iflues and profits
Remainder to thereof for their own ufe and benefit ; and from and after their
Algernon ^ dcccafes, then to the ufe of Algernon Earl of Hertford, the iSrft
fb'd,*ihe fi/ft f"^" of ^^^ '^^'^ hoxA Duke on the body of the faid Lady Duchefs
fonofthe begotten, and of the heirs male of the body of 'the laid Alger^ '
laid Duke tad ^^;, iffuing ; and for default of fuch iffuc, then to the ufe and
Si mile.*" behoof of Lord Edward the fecond fon of the faid Lord Dukc,
Kcmaioder on the bo^y of the faid Lady Duchefs begotten, and the heirs
to '*>« ^"«°**» male of the body 6f the faid Lord Edward iiTuing; and for dc-
oth«foniof ^^^^ of fuch iflue, then to the ufe and behoof of the third fon
%kt faid Duke of the body of the faid Lady Duchefs begotten or to be begot*
and Duchefs tgn^ anJ the heirs male of the body of fuch third fon ifluing; and
la uii-jnaic. j^^. jgfj^yjj ^f fych- iffue then to the ufe and behoof of the fourth
fon of the body of the faid Lady Duchefs begotten or to be
begotten, and the heirs male of tne body of fuch fourth fon
• ifluing ; and for default of fuch tfiue then to the ufe and behoof
of the fifth, fixth, feventh, eighth, ninth, tenth, and all and
every other fon and fons of the body of the faid Lady Duchefs,
begotten or to be begotten, feverally and fucceffively, one after
the other as they (hould be in feniority of age and priority of
birth, and the heirs male of the body and bodies of each and

every

HiiJLBr Tebm 14 Gbo. JIL 1774. 47ft

every fuch fon and fons lawfally ifluing, the elder of tbe faid
fon and fons, and the heirs male of his body ifluing, being always
to lake and be preferred before the vounger of fuch fon and fbns,
and the heirs-male of his and their body and bodies ifluing ; and Reowiadert*
for defauh of fuch iffue, to the ufe ol the iffucs females of her **.'^i?*
Grace the faid Lady Duchefs and the heirs of their bodies,to be ^Hchcftln
begotten, and for default of fuch iflue, to fuch ufe afid ufes as tall geaerd.
her Grace the iaid Lady Duchefs by any deed or writing tmder f'!?^**'**
her hand and feal, executed by her in the prefence of three or ^^ D«ch«b
more credible witnefles, whether (he be then fole or under co* Aooid dUaft
veiture, (hould direS, limit and appoint ; and in default of fuch ^ "^^'SJt
limiution and appointment* then to the ufe and behoof of the /ec^*^

right heirs of the faid Lady Duchefs for ever. ^And the jurors DucheiB and

aforefaid, upon their oath aforefaid, further fay, that the faid ^ ^^|[<-
CkarUs Duke of SomtrfU and the faid Elizabeth Duchefs of JJ^^Jj^
Somer/ci in the faid indenture mentioned afterwards, and long Duchcia dM,
before the difturbance aboVe complained of, died, leaving iflue leaving ifliie
Algernon Earl of Hertford, afterwards Duke of Somafet, their clSXeT^
elde(l fon, and Catharine their daughter, and no other iflue ; and and no ochcr
the jurors aforefaid upon their oath aforefaid further fay, that '^^^
tlie faid Duke of Algernon afterwards and long before theai&urb-
ance within complained of, died, leaving iffue Elizabeth now ^^^I^JF*'*
Duchefs of Northumberland his only child. And the jurors |^°iijj^;.
aforefaid upon their oath aforefaid further fay, that the faid ta^th smr
Catharine daughter pf the faid Duke Charles, afterwards and long 5**^^
before the dimirbance within complained of, intermarried with u^hitMiy
Sir WiUtam IVyndham Baronet, and afterwards, and long before diiid*
the difturbance within complained of, died, leaving ittu^Charles ^*^1||^
afterwards Earl oiEgremont hcrcldeft fon, and the hiACharles Earl STwlauIm
oi Egremont, afterwards, arid long before the difturbance within Wyodiua
complained of, died, leaving iffue George now Earl otEgremont ■n**.^^^
his eldeft fon. And the jurors aforefaid upon tfieir oath afore- ch«r5ei«f-
laid, further fay, that the faid provq/l and college, before and at ttmaHt Eail
the time of making the aft of parliament hcrcinafter-mentioned, ^^ Egremont
were feifed in gro/s as of fee of the advowfon of the church of wb<M«ed
Petworth, and the Chapdries of North Chapdznd Dungton within leanng
the faid parifli of Petworth, in the county of Suffex. And the Oeorga now
jurors aforefaid upon their oath aforefaid turther fay, that in the ^^^^^'
4th and 5th years of the reign of King William and Queen Mary, ThitpUintifli
late King and Queen of England, a certain aft ot parliament ^^^'f "^^ «
was made and jpaffed for dividing the Qiapflrits of North Chapel *i*^*^
and Qungton aforefaid from the pariih of Pttworth, and ereftmg aa wm
them into new parifhes, and for fettling the advowfons and feifed in fte
rights of patronage of the faid reftories of Worplefdon, Kirby ^^J^^^^
Overblowes, and hkewife the advowfons and rights of patronage Petworth.ftc

And that in
the 4 Sp 5 of William and Mary, an zCt of pirlUmcnt wat maJe for fettling the adrowioas of WdrpleiV
4ofT^ Kirby Ovcrb)owei| and t*etwartb, &c«

of

476 Hilary TeSm U Geo. III. 1774.

of the ireftories of Petworth, North Chapel, Dungton, Qewer,
Farnham-Royd, and Catton, and the vicarage of Long Ho^JUy,
which faid atl of parliament follows in thefe words, (to \s\\)
IntVfe An aft for dividing the chapelries of North Chapel and Dungton

^^**' * from the parifh oiPetworth, and erefling them into new panihes,
and for fettling the advowfons and rights of patronage of the
retVories of Petworth, North Chapel, Dung ton, Cleu-er, Farnham-
Royal, WorpUfdon, Kir by Over bl owes and Cation, and the vicar-
age of Long Horjley: for the fettling the advowfons and rights
of patronage and prefentation of and to the churches herein-after.
The erwen mentioned, according to the agreement in that behalf made bc-
pation of tween, their Majefties, patrons of the churches and reclorics of
hanT-RcTir" ^^^^'^^ '^ ^^^ county of Berks, and Farnham-Royal ii> the county
and Worplcf- oiBucks, and Worhlefdon in the county oi Surrey; and his Grace
don, and the Charles Dulce of ko}njerfet, patron of the churches and refiories
Jf^Xirb"'''" of Kxrby Overbloxves alias Kxrby Overlawes and Cation in the
Ov«rblowc5, county of Vori, and of the vicarage of Long Horjley alias Horjley
and Catron Long in the county of Northumberland, and the pravajl of the
H tfle*^* college royal of the Bleffed Mary of Eton, near unto JVindJor, in
andthepbin- the faid county of Bucks, and the faid college, patrons of the
oflfs patrons of church and reftory of Pelworth in the county ot Sifjfcx, Be it
Pctwotth. enafted by the King and Queen *s moft excellent majellies by and
with the advice and confent of the Lords Spiritual and Temporal
The aa veft$ and Commons in this pref^nt parliament aflembled, and by the
^i^orKlrb *"t^o^i^y of the fame, That the faid advowfons and perpetual pa-
OverWowcs, ifonagcs and fights of prefentation, of and to the laid churches
Cattonjind and reftofies ot Kirby Overblowes alias Overlawes and Cati(m, and
itt uUc^oWn^ of and to the vicarage of Ij)ng Horjley alias Horjley Long, (hall be
* fettled and veftcd, and the Tame was thereby vcfled and fettled
in their Majefties and their heirs and fucceflors, and that iheir
Majefties their heirs and fiiccefiTors flialJ from henceforth Hand
and be feifed thereof, and of every of them in the right of the
crown of England for ever. But inafmuch as the right of pre-
fentation to the faid churches and reftoiies ot Clewer and Yarn-
ham-Royal (being under value) is in the Lord Chancellor, Lord
Keeper, or Lords CommiiTioners of the Great Seal of England for
the time being, Be it furtlicr enabled by the authority aforcfaid,
that the right of prefentation to the faid church and rctfcor>' of
Kirby Overblowes alias Kirby Overlawes (being above value) and
the vicarage of Long Horjley alias Hoijlcy Long, from time to time
as they (hall refpeftively by death, ceflion or furrenderof the rc-
fpeftive prefent incumbents, or otherwife, become void, from
henceforth for ever hereafter be, and is, hereby vefted and
fettled in the faid Lord Chancellor, Lord Keeper, or Lords
Commiflioners of the Great Seal of England for the time being,
any thing herein before contained to the contrary notwiihlUnd-

ing.

Hilary TerM 14 Geo. III. 1774. 477

ing. And that the faid advowfons, perpetual patronages and And veftt the
rights of prercniaiion of and to the faid churches and reflories a<lvowfon«of
ol Qcwir, Farnham^Royal and Worplefdon, {hall be fettled and Sm'^RoJr'
vefted, and the fame are hereby vefted and fettled in the provoji and w«Tpier.
and college-royal of the Blefled Marv of Lion near unto Wind- ^«" »" ^}^
jor in the county of Bucks and the laid college and their, fuc- ^^^j'^^^'aJIft
celfors, and that the i^x^provojl and college and their fucccflbrs
(hall from henceforth (land and be feifed thereof, iind of every
of them, in the right of the faid college for ever, and be enabled
to prefcnt to the fame refpeftively upon every avoidance thereof,
and the faid refpeclive advowfons, rights of prefentation and
perpetual patronages of the faid refpeftive churches and re6lories
of tUvcer^ Farnkajn- Royal, and Worpltfdony are hereby fettled ind
vefted in the faid provoji and college and their fucceffors, and
the faid provqft and college, and their fuccefl'ors, (hall and may
ufe and maintain any writ of quare impeJit, darrein^ pre/eniment^
or writ of right of advowfoa for and upon any dtflurbance that
fhall or may at any time or times hereafter be given to them»
in or about theprcfenting to any of the faid rectories or churches,
as fully to all intents and purpofes as if they had adual feifm ,

of the faid advowfons, and had formerly prefentcd clerks to the
fame, who upon their prcfentations had been admitted, inftituted
and indufted into the lame reftories and churches, the ftatute of
Mortmaine or any ftatute or law, ufage or cuflom to the cbntrary
notwithflanding. And whereas there are, and from time immemo- The aa 41-
rial there have been within the parifh of Pet worth in the faid coun- vide» the •
tv of Sffjpx, two diftinft chapelries, the one of them called A^f;r/A p^l^^ ^^
Chapel^ and the other called Dungton alias DunSlen, which faid the two
chapelries were under the care oftheparfon oi Petworth^ and he chapelrict
fuppHed the fame with chaplains from time to time at his own ^**"«'n» *"<*
charge to ofliciate in the faid chapels : Now may it picafe yoiir three diftina
Ma jellies that it may be cna6ied, and be it enaftcd by the King parilhe*.
and Queen's moft excellent Majeflies, by and with the confent
of the Lords Spiritual and Temporal, and Commons, in this pre-
fcnt parliament aifembled, and by the authority of the fame,
That from and after fuch time that the church ol Petworth (hall
become void bv the death, ceffion or refignation of Edward PeU
ling do^lor of divinity, the prcfent reflor and incumbent thereof,
or by any otlicr ways or means, the faid chapelry of NorthChapel,
and the meffunges, lands, tenements and hereditaments, included
within the bounds and limits of the fame chapelry, (hall tVom The chapelry
thenceforth be, and the fame are hereby enafted and made to ©^ North
be a parifh of iifelf to all intents and purpofes, wlioHy and a*ofo- ^^^'J**]-,^*)!^
lutely diftinft from the faid parifh of Pdwoith, and divided panOj f.om
wholly from the fame, and fhall be called the parifli of North P.cvvoril)*
Chapel, and the parifh of North Chapel (hall be extended to and
contained within the fame ancient bounds and limits which now
do, and anciently did bound che faid chapelry of North Chaptl,

and

478 HiLiRT Tjsam 14 Qed. III. 1774.

and have been repttted and looked upon a$ the bounds and Iixaits
thereof, and the faid chapel called Norlh Chapel fliall be the
parifh church of the faid pariih of North Chapel^ and the faid
pariih of North Chapel ihall to all intents and purpofes l>e a
rc£lory of itfelf, and the tithes of all the lands, tenements and
hereditaments, fituate and contained within the faid ancient bounds
and limits of the faid chapelry of North Chapel fhall from
thenceforth be payable and pizid to tlie re&or of the faid pariih
of North Chapel and his fucce/Tors for ever, and the faid reclory
(hall be therewith endowed for ever, and that the dwelling-
houfe heretofore ufed for the habitation of fuch perfon as from
time to time oiHciated in the faid chapel called North Chapd as
chaplain there, with the barns, (tables, out-hoafes and orchard,
garden and yards thereunto belongings and one clofc of ground
containing by cftimation four acres, commonly reputed the gUte
belonging to the faid chapel, fliall be from thenceforth. enjoyed by
the re£lor of the faid parifli of North Chadel and his fucceflor^ for
ever, and (hall be the glebe of the faia parifli of North Chapd
for ever : And be it iurther ettaQed by the authority aforefaid,
that from and after fuch time as the faid Aurch of Petwortk
The chipciry fliall bccome void by the death, ceffion pr furrender of the faid
AaH^S^^a" J^^ftoT Pellifig, or otherwife howfocver, the faid chapelry of
dimna pirlA Dungtorty and the meflua^es, lands, tenements and hereditaments,
from Pet- fituate and included within the bounds and limits of the faid
wo^th. chapelry of Dungton, fliall be a pariffi of itfelf to all intents and

purpofes diftinfi from the faid parifli of Petwortk^ and divided
wholly from the fame, and fliall be called the parijh of Dut^iow^
and the faid parifli of Dun^ion fliall be extended to, and con-
tained within the fame ancient bounds and limits which now
do and of ancient time have bounded the faid chapelry of
Dungton, and been reputed or looked upon as the bounds and
limits of the faid chapelry of Dungton^ and the chapel, called
' Dungton chapel, fhall be the parifli church of and tor the faid
parifli of Dungton^ and the faid parifli of Dungton fliall to all
intents and purpofes from thenceforth be, and ihall be accepted,
reputed and taken to be a re&ory of itfelf, and the tithes and
tenths of all the lands, tenements and hereditaments, fituate and
contained within the faid ancient bounds and limits of the faid
chapelry of Dungton^ (hall from thenceforth be payable^ and paid
to the redor of the pariih of Dungton^ and his fncceflbrs for
ever; and that it ihall and may be lawful to and for the faid
D^k *'S ^"'^c oiSomtrfet^ his heirs and ailigns, by any writing or writ-
merret^may' ^^pf ^T inftniments, under his or their hand and fcal, or hands
annex ten and feals, to annex and add to the faid re^ory of Dungton for
acrea of land gyg^, any parcel 6t parcels of land or cround lyiftf within the
SrfidHrT" bounds or limits of the (aid chapelry ox Dungton^ of \tmii he is
or he or they ihall be then feifed in fee-fimple npt exceeding in

tho

Hilary Tebm 14 Gbo. III. 1774; 479

the whole ten acres, upon fome part whereof a convenient houfe
with out-houfes may be erefled for the habitation of the refior
and incumbent of the faid re£lory or parifii church of Dungton
and his fucceiTors for ever ; which faid lands from and after the
fealinj? fuch writings and inftriunents of annexation fliall be,
and mail be accounted and efteemed and taken to' be tiie
glebe of the faid reflory of DungUn, and be holden and
enjoyed by the re£lor and incumbent of the faid re£lory and
parifli church of Dungton and his fucceflbrs for ever, the fia-
tute of Mortmaine, or any ftatute or law to the contrary
thereof in any wife notwithlianding. And be it further enafiet),
that from and after fuch time as the faid church of Petworik
fliall become void as aforefaid, all the tithes of the lands in the
bxi parifti of Petworlh^ lying within the bounds and limits
hereinafter-mentioned, (that is to {ay} all the lands lying on the
fouth-fide of the lane beginning from liotherbrifke^ ana leading
eallward by crofs-lands and naflingchowrnt^mus and Gorekiil^
and onward to Egdeant common^ and from Rotherbridgt weftward
by the river, as far as the faid river runs betwixt the pariflies of
Pawcrth and Tillingion on the fouth-fide of the faid river, (hall
be holden, taken and enjoyed by the re£lor and incumbent of
the faid re&ory and parim church of Duttiion, and his fucceflbrs
for ever, in right of the faid church of Vungton^ as a portion of
tithes $mnexed to the faid rcfiory of Dungton for ever ; yet fo,
neverthelefs, that the faid lands laft mentioned fliall for ever re-
main and not ceafe to be parcel of and within the faid parifli
of Pdworth^ and fliall pay taxes to the repairs of the laid parifli
church of Petwortk^ and to the relief 61 the poor, and repara-
tions of highways in the laid parifli of Pdwortn^ as now it doth
and formerly hath done, and that the faid lands (hall not be
contributary to the repairs of the faid pariQi church of Dungton^
nor the rchef of the poor, or repairs of the highways in the faid
parifli of Dungton. And be it further enabled by the authority The aA vefts
aforefaid, that the faid Duke of Somerfei and tlie Lady Eiizaidk the adTowfon
Duchefs his wife and their heirs and afligns fliall for ^ver hcrearfter ^ ^^u^lf'ei
be patrons of the faid parifli churches of Petworth, North Ckatd and'oBngton,
Sind Dungton f and be enabled to^prefent to the fame, feveraily in the Duke
?nd refpefiively, upon the firft avoidance of the faid church of Jjt^^|j-*[*
Petwortkp and upon every after avoidance of the faid refpedive and rtleir"'
churches of Petwortk^ North Chapel and Dungton refpettively, hdn.
and the refpe£live advowlbns, rights of prefentations, and per*
petual patronage of the faid refpedive churches and refiories of
Pttworth^ North Chapel and Dungton^ are hereby fettled on and
veiled in the faid Duke of Somtrfct^ and the faid Lad/ Duchtfs
his rmfty and their hein and ajjigns^ and he the faid Duke of
Somcff^^ and the faid t.ady Duchys his xmfc^ and their hdrs and
1 dfligns.

480 Hilary Term 14 Geo. IIL 1774.

affigns, (hall and may ufe and maintain any writ of quare im*
pedity darrant prefentment^ or writ of right ojadvowfon for or upon
any difturbance that fliall or may at any time or times heieaftcr
be given to him or them in or about the prefeniing to any ot
the faid re6lories or churches, as fully to all intents and purpofcs
as if he or they had had a£>nal feifin of the faid advowibn, and
formerly prefented clerks to the fame, wlio, upon his prefenta-
tion, had been admltt^d,^ inftitiUed and inducted into the fame
refiories and chnrches, any law, ufage or cuflom to the contrary
thereof in any wife notwithftanding; and be ft further enaficd,
that from and after fuch time as the faid church of Pettvorth
Ihali firft and next become void as aforefaid, the inhabitants of
the faid rcfpeftive parilhes of North Chapel and Dun^ton, fhall
and may have and clert churchwardens, overfeers ot the poor
and furveyors of the highways, and all parifh officers rcfpeflivcly
within the faid refpeftive parilhes, and make and lay, and affefs
taxes and affeffments upon the refpeftive parifhioners and inlia-
bitants of the faid refpefclive pariihes refpe6lively, towards the
repairs of the faid refpeftive parifh churches, maintenance of
their rcfpeftive poor, and repairs of the highways within the
faid refpeftive pariihes, as fully to all intents and purpofe^ as the
parifhioners of other parifhes within this kingdom of Eng-
land may lawfully do, and that from and after fuch firft and
next avoidance ot the faid church of Petworth aforefaid, the rc-
Jpeftive reftors and parfons of the faid refpeftive pariihes of
North Chapel and Dungton^ for the time being, fhall and may,
for ever, have and take, receive and enjoy fuch antf the like ob-
lations, obventions, fees and duties, within the faid refpeftive
parifhes, as other reftors and parfons of other reftorics and par-
fonages may do by law ; provided neverthelefs, that the faid
chapelries of North Chapel and Dungtan, during the incumbency
of the faid Doftor Pellmg in the faid parifh of P^/ry^r/A, fhall re-
main, continue and be parcel of and within the faid parifh of Pet^
worth to all intents and purpofes^ and in fuch and the fame manner
as now the fame are, and fljall pay all. their oblations, obvcmions,
tithes, fees and duties to the faid Doftor Pelting, as reftor and in-
cumbent of and in the faid church oi Petworth, in the faid man-
ner as they fhould or ought to have done if this aft had not
been made ; and be it further enafted by the authority aforefaid,
that the Utile Manor within the faid parifh of Petworth, com-
monly called the Manor of the ReSlory of Petworth, with the
rights, members and appurtenances thereof, fhall, imniediatelv
. from and after fuch time as the faid -church of Petworth fhall
become void as aforefaid, be for ever annexed to the Honour
of Petworth^ and together with the fame, be holden and enjoyed
by the lords owners of the faid Honour of Petworth, m part
pi the faid Honour of Petworth for ever, and in lieu and re-

compencc

kiLARY Tebm lA Geo. III. 1774. 48 1

tompence thereof, the rcftor and parfon of the church of Pet:-
worth and his fucceflbrs fliall from thenceforth for ever have,
deceive and take out of the Honour and Manor qfPetworth an4
the demefne lands thereof, one annuity penfion and yearly rent
xiiUn founds^ being niuch more than the yearly value of the
faid littk Manor ^ to be paid linto the faid re£lor or parfon of the
faid church ol Petworth and his fucceflbrs, yearly and every year
for ever, at the two jnoft ufual feafls or days of payment in the
year, (that is to lay) tlse feaft o^ Saint Michael the Archangel^
and the Annunciation of the BU/fed Virgin Mary, by even and equal
portions ; and if the laid annuity or yearly rent of ten pounds
fhall be behind and unpaid, in part or in all, by the fpace of
twenty days next over or after any of the faid feaft days on
which the fame ought to be paid, that then and fo often, it
fliall and m?y be lawful, to and for the faid parfon of Pdxvorth
and his fucceflbrs, to diftrain for the fame iri the deniefne lands
of the faid Manor ofPetworlk^, and the diftrefs therie found to
take, keep and detain till the (aid rent fo in arrear, and his or
their charges in and about the recovery thereof he or they (hall
fuftain^ befully fatisficd andpaid, favmg always to all and every Saving the
perfon and'perfons, bodies politick and corporate, (other than right* of
their faid Majeftiesi their heirs and fucceflbrs, and the faid Duke ■" P^'^^*
and Duchefs and their heirs, and the faid provojl of the faid IhelrMajcftie*
college-royal of the Blefled Mary of Eton near unto Windjbr^ and the Duke and
the faid college and their fucceflbrs) all their rights of prelenution ?"^^^^!*"**.
to the faid churches or any of them, and all their eftates, rights, EtonCoUcye
titles, interefts, claims ana demands, of, in and to the faid ad- and their fuc-
vowfons, patronages and prefentations, of and to the faid rec- "J**"^ '®^**®
toriesj vicarage and churches, or any of them, in the fame man-'^,* ^®^'
ner and as fully to all intents and purpofes as if this a£l had
jiever been maide, any thing herein to the contrary thereof in any
Vife notwithftanding. And the jurors aforefaid, upon their oath
bforefaid, further f^y, that the manor of the reftory of Petworth
in the laid re<^ited a3 above-mentioned, hath, ever (ince the
making^of the faid a6l, been held by the faid Dukes of Somerfct
and Earls oi Sgremont^, who have been refpe6Uvely intitled to,
and have enjoyed the faid Honour of Petworth^ in the faid in-
denture mentioned, under atid by virtue of the faid indentures
as annexed to and parcel of the Honour qfPetworth aforefaid ; and
the jurors aforefaid, upon their oath aforefaid, Turther Jay, that the
annuity*, oenfioo and yearly rent of ten pounds, mcntione'd in the
faid aa oT parliament, has been conftantly paid to the reftor of
Petworth for the time being, and that the faid reftory of Pet^
worth hath, ever* fince the making of the faid aft, been divided
into ^ree diftin£l re£U>ries, called by the feyeral names of
Petworth^ North Ckapel and Dungton; and that the faid
three reQories have been conftantly held (ince the making
. Vol. yi. II of

4«i Hilary Term 14 Geo. HI. 1774.

of the faid a£l under feveralanddiilinfl prefentatlons ; and that IV-
worthy North Chapel and Dungion, aforefaid, have from the making
of the faid a£l, been three feveral and diftinQ pariflies, and'that the
That the faU faid a3 has^ in all other refpe3s been compleatly carried into exe-
*^Vd^ **?** cution from the time of making thereof till the year of our Lord
execatioa* 1760. And the jurors aforefaid, upon their oath aforefaid, fur-
ever fince the ther fay, that (ince the making the faid a3, the faid church of
S5^*"lo! ^^^h Overblowes hath feveral times become vacant, and that
'^ from the time of making the faid a3 until the faid veai* of our

Lord 1760, the Kings and Queens of England for tne time be-
ing, in right of their crown of England^ have from time to time
prefented their clerks to the faid church of Kirby Overblozves^
and that fuch clerks have been and were refpeSively inftituted
and indu£led and had poffeflion of the faid church under' fpch
prefentations as aforefaid. And the jurors aforefaid, upon their
oath aforefaid, further fay, that in the fame year of our Lord
J 760, the faid church of kirby Overblowes became vacant by the
death of the reverend Doftor Chapman late incumbent thereof,
and thereupon the faid CharUs ^vloi Egremont claiming a right
of prefentaiion to the faid churfch^ by virtue of the faid indenture
above-mentioned, as having his right to the faid prefentation^c^
by and under the Jhid provifo and faying claufe of the faid aQ of
parliament, prefented one. John Metcalfhk clqrk to the faid church,
and the [iid John Mdcalfv^dA upon fuch prefentation admitted, in-
'ftitiited and indufted into the laid church, in the time of peace^in
the reign of our fovereign Lord the now King, and is now the in-
cumbent and parfon thereof. And the jurors aforefaid, upon
thtir oath aforefaid, further fay, that on the 13th day of Fe-
bruary in the year of our Lord 1771, the faid church ol Uvrplef-^
Jon became vacant by the death ot the faid John Burton clerk,
doftor in divinity, and thereupon our faid Lord the now King
prefented the faid Thomas Fountain clerk, the now defendant, to
the faid church ; and the jurors aforefaid, upon their oath afore-
faid, further fay, that within fix months, from the time of the
death of the faid John Burton clerk, the faid late incumbent of
the faid clmrch, the {dxdprovojl and college prefented one Stephen
Abthorp clerk, doftor in divinity, to the faid church ; and the
jurors aforefaid, upon their oath aforefaid, further fay, that the
faid John Bijhop oJWinch'Jler^ before the commencement of this
fuit, refufed to admit, inftitute and induEl either the faid Thomas
Fountain or the faid Stephen Abthorp into the faid church, and
that the faid church, on the faid 13th day of February in the
faid year of our Lord 177 1» became vacant, and ever unce that
time hath been, and (till continues vacant, and that the faid
church of Worplefdon is of the true value of three hundred and
Jeventy pounds by the year ; and the jurors aforefaid, upon their
oath aforefaid, further fay% that fix months did not elapfe from
1 • the

ti^Ukic Tbbm U Geo. ttL 1774. 490

kfae time of the death of the faid J^hn BurtoA cltrk^ do^ iti
divinity, before the ifluing out of the original writ ol.quan im*
fabt in this caufe by the faid^r^^ ana college; but whether Bo^whetiterp
upon the whole matter aforefaid, our faid Lord the King had a *«• ^J^^'*
tight to nrefent the faid Thomas FoiMain to the (aid church of ^of'tte*
WorpUfion or not, the faid jurors aforefaid are altogether ig* conn,
nonmt, aiid pray the advice of the court here thereupon ; and
if it Ihall feem to the court here, that our faid Lord the King
iiad no rkht to prefent tlie faid Thomas FataUain to the faid
charck of fK»flefihny then the jurors aforeiaid, upon their oath
aforefaidt lay, that, the (aid Thanuis Fauniain unjuftly hinders the
laid ptavoft and college from pttfenting a fit perfon to tlie iaid
church fo being vacant as aforefaid, and they afleft the damage^
of the faid^r^p^and college by reafon of the difturbance afore^
laid, befides their coils ana charges by them about thsirfuit iii
this behalf expended) to Jix /killings and eight fence, and fbrthole
cofts and charges to tmejpmling: and if it ihali feem to the court
here that our laid Lord the King had a right to prefent the faid
Thomas Fountain to the faid church olfVorbufdon i then the
jurors aforefaid, upon their oath aforefaid, lay, that the faid
' Thomas Fountain does not unjuftly hinder the iaid provoft and
adlege from prefenting a fit perfon to the laid church of Irorplef-
don^ in manner and form as the faid provojt dni college have
above thereof complained augainft him. And becaufe the Cma^id*
Juftices here have not yet adviled what judgment to give of and/^'*"''*
upon the premifesi day is given here to Uie parties aforefaid^
until r,-, '■ ., ' . to hear th^ir judgment of and imon

the premifes, for that the faid juftices of our uud Lord the liing
are not yet advifed thereof, &Ck

The prpvoi^ of £ton eollcEe and the fame college, [Seetoie46i
verjits the Bifliop of Winchcftcr and Pountoin *?6*f '^'^*
clerk. C.B;

^T^ H E plaintift broiight a ijuare im^eiit l6t hindering them An etching

ing.fo feifed. the church became void on the %i\io{ OBobcr ^^y^^l^^^'
176^, by the death of one Stephen Sleech^ whereupon the plain- totMtoe»ch
tiffs in right of the college prefented Jfdhn Burton^ D. D. who other, pm.
Vas admitted, inftituted and indufted ; that on the lath of ^JJ^^^^^^
February 1771, the church became void bv the death of DoQor ^^ g' *"^ ^*
y. Burton^ and it belonged to the plaintitfs in right of the col- bceriaedof
lege to prefent a fit perfon to the ?hm ch being lb void, and the *J^''°/^^?^
defendants diftucbed them» to theilr damage of 200/. 'y b/, a.

cantiM recover of C. the tenementt grtttcd to Wm,]

i I a The '

484 HiLAky ^Term 14 Gbo. til. 1774,

s^an'mptttit. The bifliop pleads his common plea, that he claims no rig^
A fliort ft«te but as ordinaiyi
of tbe plead«

The defendant Thomas Fountain pleads, that he is» and on the
day of fuing out the original writ was, par/on imparfonet of the
faid church upon die prefentaiion of his prefent Majefty King
George the third, whofe title to the advowfon thereot be de-
duces from King Charles the fecond, by alleging that King
Charles the fecond was feifed in fee, and prefented one Charles
Moore, who was admitted inftituted and mdu3ed ; that CkarUi
the fecond died feifed and the advowfon defcended to King Jama
the fecond, who, being feifed in fee thereof^ abdicated the
goyemment and crown o? England: and thereupon King William
and Queen Mary became lawfully feifed in tee thereof; that
Queen Mary died, and thereupon King WUliam vras feifed ; that
iting William died feifed, and Queen Ann became lawfully feiied
in fee ; that flie died, and King George the firft became lawfully
feifed in fee, and being fo feifed the church became void by the
death of Charles Moore^ and one Henry Godolphin provoft of the
college of Eton, by ufurpation upon tne crown, prefented Thomas
Carter^ who was admitted, inftituted and induced ; that King
George the firft died feifed and the advowfon defcended to King
Georgette fecond, who being feifed thereof in fee, the church
became void by the death oi Thomas Carter^ and one Henry
Bland, provo/l of the college of Eion^ by ufurpation upon the
crown, prelented George narris, who was admitted, inftituted
and induced ; and King George the fecond being fo feifed, the
cliurch become void by the death of George Hams : and Benja^
fnin Bijhop oJWincheJler, by ufurpation upon the crown, collated
Stephen Sleech, who was thereupon indu6led ; that Kiiig George
the fecond died feifed, and the advowfon defcended to King
George the third, who thereupon became and is feifed in fee
theieof ; and being fo feifed the church bedaroe void by the death
6i Stephen Sleech, whereby it belonged to his prefent Majefty to
prefent, and the plaintiits, ufurping upon the now King, pre-
feoted John Burton, who was admitted, inftituted and indufied;
and his prefent Majefty being fo feifed the church became void
by the death of John Burton, whereby it belonged to our Lord
the now King to prefent a fit perfon to the church, who pre-
fented-the defendant Thomas Fountain, who was admitted, infti-
luted arid indufted, and before and at the time of fuing out the
orrginal writ, was and yfet is parfon imparfonec of the faid
Travcrfe. church upon that prefentation ; without this that the plaintifii
were feifed of the faid advowfon of the church of Worplefdon in
manner and form as they have above alleged; and this, &c.
wherefore he prays judgment, &c.

The

Hilary Tebm 14^ Gbo. IH. 177^. 485

The plaintifis reply in the common form to the bi(hop*s plea, R^pUcntwa.
and take iflue upon the traverfe in the incumbent's plea, and
thereupon iflue is joined.

This caafe came dn to be tried at the Ltnt aflizes held for
the coumv of iSiirry after Hilary term, in the 13th year of his
prefent Majefty, when the jury found a fpecial verat£l, which*
may be thus briefly ftated, [viz.) that on the 7th day of May Thefpedii
1683, King Charles the fecond was feifcd in fee of the advowfon ^J^^^TSJ
of the church {ol WorpUTdon) in queflion, to which (being va- ,ecotdat
cant) he prefented one CkarUsMoor, who was admitted, inftituted length befon.
and inducted ; that the Kings and Qeens of England were feifed
of the fatd advowfon in fee until the making of the a£l of par-
liament following ; and that before the fame ad, viz. on the
30th ol January 1687, by indenture of that date xnade between '
Charles Duke of Somtrfet and Elizabeth his Duchefs of the firft
part* Thomas Beach aitd Henry Champion of the fecond part ;
Jama Earl ol Suffolk^ Elizabeth Countefs Dowager of ^^^ Sir

an Erule Km. Chancellor of the Exchequer, and Elizabeth
y Seymoyr^ his wife, and mother of the faid Lord Duke, and
Sir Orlando Gee^ of the third part. The refiory of Kirby Over-
blowes iii Yorkflure^ and the mheritance of the Honour of Pet-
worth in Sujfex were conveyed to the ufe of the Quchcfs of
Sotnerjet for life ; remainder to the Duke of Somerjet for fife ;
remainder to trullees to preferve contingent remainders ; remain*
der to Algernon Earl of Hertford^ the firft fon of the Duke and
Duchefs in tail-male; remainder to the fecond, third and every
other fon and fons of the Duke and Duchefsin tail-male ; re-
mainder to the iflues females of the Lady Duchefs in tail gene-
ral ; and for default of fuch iflue, remainder to fuch ufes as the
Lady Duchefs (whether fole or under coverture) fhould dire3,
limit and appoint; remainder in fee to the Duchefs.

That the Duke and Duchefs died, leaving iflue Algernon Earl
ol Hertford i afterwards Duke ol Somerjet^ their fon; and Catha'^
rine their daughter; and no other iflue;

That the faid Duke Algernon died, leaving Elizabeth now
Duchefs of Northumberland his only child.

*

That Catharine the daughter of Duke Charles and his faid
Duchefs intermarried with Sir William Wyndham Baronet, and
died, leaving Charles afterwards Earl of Egremont her eldeft fon,
who died, leaving G^{7r^^, now Earl ol Egremont.

Th^ iht provojl and college of Eton^ before, and at the time
of making the a£l of parliament hereafter-mentioned, were

1x3 feifcd

48Q HltART TbBM 14<j£0.tIL 1774.

feifed in fee of the advowron of the church of PHtpank, and
the cbapelries of North Chapel and fiun^lpn wkbin the parilh of
Pctworth in Sujfcx.

The aft of That in the A & 5 years of William zvA Mary^ aa a£l of par-
pviiam^Cr liament was made for dividing the faid chapejries from the parilh
of Petworlh, and ere3ing them into new ^ ari^s, and .for
fettling the advowfons ol WorpUfdon^ Kirby OtferiUdts^ ao^
Pctworth^ i^c. according to the agreement in that beb&tf made
~ between their Majefties, patrons of the churchy of Gewer ii^
BerAs^ Famkam-koyat in Bucks and WorpUfdt^ in Surry^ and
the Duke of Samtrftt^ patron of the churches oi Kirby Overt
hlowcs and Cotton in Yorkjhirt and Long HorJUy in Northumber-
land: Rnd the provq^ oi Eton college and the college, patrons
pi the church pf Petworth in Sujfex.

Whereby it was en^fied. That the advowfons of Kirby Ovef'^

bloxve^t Cation and Lon^ HorJUy^ Ifaall be and are thereby fettle4

9nd veiled in their M ajefties and'their fuccefflbrs in right of their

crown forever; and that the advowfons of Ckwer^ famhan^

Royal said Worplefdon^ (hall be and are thercfby fettled and vefied

in the provqfi and college of Eton and their fucceflbrs for ever;

. ^nd that the advowfons of Petworth^ North Chapel and Dungton^

ihall be and are thereby fettled and vefted in the Dukeof S^xur*

^aYiBglntfae fet, and the Lady Duchefs his wife,, and their heirs ;^Zr«W the

•ft, the rightt. rights of all perfons (others than their MajelUes, &c, the Duke

^c! (except)* ^"^ Duchefs and their hfeirs, and Eton college and their fuccefibn)

(o the faid advowfons of the faid churches or any of them.

That the a£l of parliament hath been carried into execution
ever fince the making it until the year 1760; and that the church
of Kirby Overblowes hath feveral times been vacant fince the
making the a3, and from that time until the year 1760, the
prown hath presented to that church*

r ' That in the year 1760 the church of Kirby Ov^rblowes became

vacant, and Charles Lord Egremoni thereupon' claiming a right
of prefentation thereto, by virtue of the faid indenture, as
havmg his right to the faid prefentation faved by and under
the faid provifo in the faid aft, prefented one Jbhn Metcaif
thereto, who was admitted, inftituted 4nd indu£lcd to the faid
^hurch,

That on the 13th of February 1771, the church oiWorpUfdo^
became vacant by the death of^Doftor Jfohn Burton^ and ihere-
tipon his prefent Majefty prefented the defendant Tlumas Foun-
fain to (I^e fai4 churcb,

That

HiLABY Term 13 Geo. III. 1774* 487

That within fix months from the death of Doflor John Burton
the plaintiffs prefented one Doftor SMhen Abthorp to the faid
church of JVorpUfdon: and that the (aid John bilhop of Win-
ch^ftcr before tne commencement of this I'uit refufed to admit*
inftitute and indud either the faid Thomas Fountain or Stephen
AbthoTp: dxidi that the faid church of WorpUJdon on iht, 13th
day 01 February lyjt became vacant, and ever fince hath been
and ftill continues vacant, and the fame is of the true value of
170/. by the year ; and that fix months did not elapfe from the
time of the death of the faid DoQor John Burton^ before the
iffuing out the original writ of juare impedit in this caufe by the
plaintiffs ; but whether his Majefty had a right to prefent the
defendant Thomas Fountain to the church of IVorplejdon or not,
the jurors are ignorant, and pray the advice of the court
thereupon, 0r.

This fpecial verdi£l was well argued at the bar laft Michaelmas
term, by Serjeant Giynn Recorder of London for the plaintiffs,
and by HUlone of the King's Serjeants for the defendant Foun^
tain : and again, in the prefent terra, by Burland another of his
MajeRy's Serjeants for the plaintiffs, and Serjeant Kemp for the
. defendant.

Charles Duke olSonurfd being feifed of the reftory of Kirhy Theargu.
Overblotves in Yorkfhire, and the Honour of PetwortnmSuf ex ^ meat for th»
on the ^oih ol January, 1687, conveved the fame in ftria fettle- ^|^^**'
inent as ftated in the fpecial verdiS, wherebv it appears that
JjovA E^remant, as being heir to Catharine the heir -female of the
Ducheis of Somerfet by Duke Charles, is well intitled under that
fettlement to the reftory of Kirby Overblowes and the Honour of
Pdworth,

The Duke having the Honour qf'Petworth, and his feat there,
was defirpus of having the reftory andadvowfon of the church of
Petworth, which was then in the poffefEon of, and vcfted in the
provojl and college of Eton; the Duke not having any Isenefice
or advowfon, whereby he could tempt the college to give him the
rcfiory of Peizvorth in exchange, applied to and prevailed upoiji '
the crown to give to the college (amongft otheV things) the ad-
vowfon of the church of Worplefdon (now in queftion) and the
Duke, in return, agreed to give the crown an equivalent, wz,
the rcftory of Kirby Overblowes (among other things).

- Whereupon it was agreed that the advowfon of Worplefdon ^

fhould be veiled in Eion college, and their fucceffors, the reftory *
of Petworth in the Duke» and the reftory oi Kirby Overblowes in
the crown for ever. .

114 In

488 Hilary Term 14 Geo. IIL 1774.

In order to carry the agreement into execution, the zBt of par«
liament of the 4 £? 5 of WiUiam and Marv was made, whicn i^
ftated vnbatvn in the fpecial verdift \ the legiflaturedonot make
nfe of words of convej'ance, but they enaft that Kxrby Overt
blowes (hall be vrfted in the crown, that Worpkfdon Ihall be
vefted in Eton college, and that Kirby Overblgwa ihall be ve/lc^
in the Duke for ever.

At the time of making this aft, the Duke was only tenant for
life of AzrAy Overbiowes, under the fettlemcnt of 1687, wliich
was a fecret at the time of making the aft, in which there is a

faving claufe^ which faves to all perfons . (other than the crown^
the Duke and Duchefs and. their heirs, znd Eion college) all
their rights of prefentation to the faid churches, as fully as if
the aft had never been made; by means of which ^w'l^, and
under a limitation in the fcttlement of 1687, Chants late Eail
of Egremont in the year 1760, prefented John MeUeLlfto the
church of Kirby Overblowes (then vacant), who was aidipitted^
indituted and indufted ; but from the time of making the aft
until the year 1760, the aft has in all refpefts beefn carried into

' execution ) and until the year 1771, Eton college have not, fioce
the making the aft, b^een hindered or difturbed by the crown in
prefenting to Worplefdon^ but that church becoming void on the
i3th of Tcbruary 1771 9 the crown^ by their ancient title to
the advowfon tnerebf, prefented the defendant fountain^ and
thereupon the provojl and college of Eton h^vc brpugKt the pre-
fcnt writ of quare impedit.

The queftion is, whether the advowfon of the church of
WorpUfaon is to be reftored to iht crown^ which depends upon
the conflruftion of this aft of parliament, which faves Lord
Egremonf^ right of prefentajtion to Kirby Overblowes^ and as to
that matter, it is the faihe to him as if the aft had never bee^
made.

Objc£led for But it is objefted on the part of the defendant, the prcfentea
the defendant, ^f ^^ crozun, that the crown has been deceived by Charles Duke
of SoTnerfit, wljo had only x an ellate for life in the reftory of
Kirby Overblowes, which if the crown, or the legiflature,'had
known at the time of making the aft of parliament, that aft
would not have pafled ; that private afts of parliament are to be
conftrued accordmg to the rules and principles of the common
law, and therefore this aft is to be confidcred as a legal convey*
ance by way of exchange, and that the crown- having been de-
ceived in the exchange, may, after near feventy years pofleflion
under the aft of parliament, divcft the college of Eton of the
church of Worplefdon now in queftion.

The

HiLAAY T£K>( 14 Geo. III. 1774. 489

The agreement or bargain was in truth between the college Anf#ef»
^d the Duke only, the college made no bai^in or agreement
with the croxvn^ but agreed with the Duke^ that if he would
procure thcrti an equivalent fthe advowfon of Worfltfion) they
would convey the re£lory ot Petworth to .him; the Duke did
prevail upon the crozim to give WorpUfdon to Eton College^ and
they in return gave Petworth to the Duke; the confideration
between the crozim and the Duke was nothing to the college of
Eton: it was certainly intended that the crown fhould receive of
Jhe Duke an equivalent confideration for the living of Worblef-
don^ and it muft be admitted that the ^rown hath no title to
. Kxrby OverUoxves^ and in that refpeS have been deceived, by
the Dtike^ who was only tenant thereof for life, fo the crowa
hath received no equivalent confideration from the Duke; but
the collie had no right to inquire into the Duke's title of
(Kirby OverUotves then fuppofed to be) the equivalent for the
crotun^s giving WorpUfdon to the college; if the crozun hath any
remedy, it muft be againft the heirs of the Duke of Somerjd
who did wrong to the croztm, and not againft the college who
J)rought a good title (to PeiworthJ to market, and did no wrong ^

to, or deceived the crown^

It is faid on the other fide that this agreement and a£l of par-
liament carrying it into execution, .are to be conftrued and con-
fidered by (he court as a legal conveyance between all the three
parties, and as if it had been executed by a deed of exchange ;
and therefore it may be proper to confider the nature of a con-
veyance or grant by exckange, and what are ik's* operations and
efifeQs, and to ftiew from thence that this a£l of parliament
cannot operate as an exchange at law, for that an exchange cannot
})e made petween more than two parties. .

If there be two men, Mid each of them is feifed of a Anexcbaojf,
quantity of land in one county, and the one grantcth his land to ^***^ *'**•
the other in exchange for the land which the other hath, and in
like manner the other granteth his land to the firft grantor in
exchange for the land which thq firft grantor hath. In this cafe
each may enter into the other's land fo put in exchange without
any livery or fdfn ; and fuch exchange made by parol of tene-
ments within the fame county without writing is good qnough.
Lit, feS, 62. And if the lands or tenements be in divers
counties, viz. that which the one hath in one county, and
that which the other hath in another county, there it behoveth
to have a 'deed indented^ made between them of this exchange,
Liit. fea. 63.

And if an exchange be of lands of any eftate of inheritance tii^ ^g^^ ^
pr freehold, ^t hath a condition and warranty iixicident and annexed it.

'^ ^ to

490 Hilary Tekm 14 Geo. III. 1774.

* to It roadc by the word exchange^ implied in every grant of cr-
change: a condition^ to give a re-entry upon all the land given in
4 Rep. III. exchange if he be put out of all, or part of ^ the land takta in
Yew!^'s*c' ^^^^S^» ^nd * warranty ^ to enable him to vouch, and to rc-
Shep.*Tou^hl Cover over in value fo much of his own land again given in ex*
fioaey ^90, change as (hall be recovered from him of the land taken in ex^
»9i. &c, change^ if he be fued for jt : So that upon every exchange^ cither
party, if he be put out of, or Ipfe by a£lion the land he taketh
\xi exchange^ hatn double remedy agamft the other; and yet this
remedy £>th go only in priviiy^ and ihall not go to an aJIignee.
^-*As if A* exchaf^ge land with B. and B- be put out of all or
part of the land upon a title paramount^ by a recovery in a real
^ion or othcrwile ; in this cafe, B. may enter iipon his own
land a^in which he gave in exchange ; or elfe, it it be in an
, a£lion l)rought, he may vouch A> upon the xuarraniy in law, and
fiiall recover as much in value agamlt him of the land he gave,
as he bath loft of the land he took in exchange, — ^But if B. alien
his land taken in exchange^ to C. and C. be put out of all or part
of the land upon a title ^aram(7tiff/, C. in this cafe, can neither
enter upon< the land given to A. in exchange upon the condition in
law, nor vouch A. to warranty ^ and recover over in value upon
the warranty in law ; and yet A. in this cafe, Ihall have the
like remedy againft C. the aflignee upon the condition and ttwr-
ranty both, as he had againft B. ; but if A. himfelf implead
C tor the land he ^ve to B. in exchange^ C raav make
life of this warranty in law by way of rebtUter againft A^ — ^And
in all thefe cafes where one of the parties is put out of all or
part of the land^ or out of part of the ejiate Dy «ntry, and the
other party enter upon the other's land upon the condition in law,
he may enter upon the whole land and avoid the whole ex^
change; but if he he impleaded for a part only, or for the whole,
and a part only be recovered from him ; in this cafe he {hall
. recover fo much in value of the other land only as he hath loft',
and no more : As if an exchange be of three acres for tliree
acres, and after, one of the parties is put out of one of the acres
by the entry of a ftranger ; in this cafe he may enter upon the
whole three acres he had given in exchange^ and fo avoid the
whole exchange if he will. — ^And if A. and B. be joint-
tenants for lite, and the fee fimple to the heirs of -<^. and A. ex^
change this land with C. in fee, and then die, and JS. enter an^
avoid the exchange for his life (as he may)* in this cafe C. may
avoid the whole exchange aiid enter upon his own three acres
again : So if he in reverfion diffeife his tenant for life, and then
exchange the 4and, and, after, the tenant for life enter ; in this
cafe the other party may defeat the whole exchange. But in this
cafe of an exchange of three acres for three acres, if one of the
acres were gained byT^/fl^'/r, and the dijfexjee bring an aSion

and

Hxi^AHT T£RM U 6bo. III. 1774* 491

^nd doth recover it againft the diffeifor^ in this cafe, if be vouch
x)ver the other party to the exchange he ihall recover To much in
Tahie only of the -three acres he ^ve in exchange^ as the acre he^
hath loft, and no more.

This conveyance by way of exchatise (which was formerly very a deed or
frequent) whether it be by word or deed indented, or which way conTcysoce
ibever it be made, it muft be made by this word exchange, which. "°^°J5^
is a word fo appropriated to this thing z!&i)vtyrordfranh-marriage change with*
is to a sift in/r^nk^marriage^ neither of which can be made or de- out the mnl
icribed by any circumlocution, 5A^^. r<7wrA/?. 298, 290. For if I "chMge.
give to a man an acre of land by deed indented, and he by the
ume deed gives unto me another acre for the fame acre, nothing p^^^ ^^
paiTeth without £1^, iii}^ wot A exchange benottn. Finch. 103, m]!. the wo
104. In every exchange rightly made, this word excambium im- fermntamn^
ports in law tacitly a conditton, and alio a warranty ^ the one to 7^^^^^
give a n?.entry, and the other, voucher and recompence, -and all in "*** *^
refpefi of the reciprocal confideration, the one land being given
in exchange for the other, but it is ^J^edal warranty^ for upon
|be voucher, by force x>f it, he (hall recover no other Una in
value but <Hily that which was by him given ki exchat^e^ foraf«
inuch as the mutual confideration is the caufe of the warranty^
therefore it ejuends pnly to the land reciprocally given, and not
(o other land, 4 ^tp. \%ua.h^

But there is no mutuality or reciprocahty between three parties^
it^can only hthciMietn tioo parties^ if A. gives to ^. and B.
gives to C. and C. gives to A. by agreement, there is no mutu^
ality or confidiration within the idea of an exchange; the warranty
l^uns only m. privity between the parties in the exchange; Eton
f^lege gtAntta nothing to the ci^cwn, therefore the college cannot
be bound to warrant the reflory of KirbyOverblowes to the crown^
which was given to the crown by the I)uke of Somerjet^ fo the
folUffe cannot be evifted of the advowfon of Worplefaon^ which
lias been veOed in them by a£l of parliament for near feventy
years, aqd nqt by way of conveyance in exchange.

The word exchange, which is thconly operative word to make
that kind of legal conveyance, is not once mentioned in the a6i:
of parliament, ^twas the only inftanceof a conveyance of lands ,
at common law, by which a fee or freehold could pafs without
livery, g Ed. a. ut. Co. Lit. 50.' Perk fed. 253. Ero. Exchange^
pL 1%. So th;|t without the word exchange the a£l of parlia-
ment cannot operate as an exchange.

Another reafon why the ad cannot operate as an exchange is
{hUy viz. th^ a9, immediately 4}poii the making thereof, vefted the

re-

492 Hilary Term 14 Geo. IIL 1774.

refpefiive liviugs or advowfons in the rcfpeSivc parties, but in
the cafe of a deed of exchange the parties thereto have no free,
hold in them before entry into the lands ; it muft be executed
by entry or claim in the life of the parties, or it can never take
cneft. Co, Lit, 50. 3 Mod, 1Q5. Perk.feH. 284, 285. Fitz.Abr.
' Exchange^ fL 10. — If this haa been an exchange of land and the
' Duke had aied, could his heir hav6 entered r In the cafe of
exchange of a reverfion, it could not take effeft at law before
attornment; fo in the cafe of an exchange of one living for
another, it is void unlefsthe parties ?xe induBed heiorc death.

In all exchanges the eftates muft be equal, but the Duie of
Somerfet had only an eRate for life in Kirby OverU&wes^ the
croxvn and the college had a fee in their refpeSive livings, fo this
a3 of parliament cannot operate as an exchange^ but may be good
as a conveyance, or by way of vefting the feveral advowfons in
the parties refpeSively. ^

This agreement carried into execution by a£l of parliament
cannot be conftrued as an exchange, tft^ Becaufe it is not be.
tween two p^uties. 2^', The word exthange is not once men*
tioned in the a6l. Z^ly* ^^^ ^^^^ ^^ cham is not neceP

but the a£l vefts the Several advowfons inftantly. And ,
By the a£l it is not neceffary that the feveral eftates f
equal.

If the court (hould give judgment for the defendant, conGder
what would be the coniequence ; the a£l of parliament would be
made void as if jepealed, the new erefied pariflies made within
the old parifh of Petworth muft be extinfi and diflblved, and
become chapelries as before \ the new houfes for the parjms
thereof demolifhed, the popr thereof not to be fupported, the
rent to the reSor of Petworth given him in confideratidn of the
Little Manor added to the Honour of Petworth muft ceafe» al-
though the a£l of parliament fays thefe things (hall continue bx
ever: And becaufe Lord Egremont has title to- Kirh Over^
bldxves which is-faved to him, the aft muft be now confmeredas
void ab initio: the reftors may be called upon to refund even-
farthing they have received under the a£l of parliament, an^
what may be the bad confequence if judgment be given for the
defendant, no man can tell ; but it is numbly inflfted on the part
of the college that this is not an exchange^ and if it is not, the
crown has no title or ground to ftand upon.

But fuppofingthis could pofliblybe confidered as an ^Jcriaai^f,
the frown hath not been evifted of the church of Ki^h 0^-
blowes, for the prefenution to that church by the late £3irl of

Hilary Tebm 14 Geo. lit. 1774. Agi

Egr€tnont in 1760, can only be -confideredas an t^ur potion upon
the €rownt and to avoid an exchange there mud be an eviUton ;
and if \ht exchange was perft^fl and good atfirft, hord Egremoni
cannot defeat it ; if it was voidable, it is not vet avoided, but h«
is put to his 0^c, as he claims Kirb^ Overblowes under a title
paramount to the title of the crown^ and his u/Urpation upon the
crown doth not evi£l the crown of that re£lory, 9 Ed* 4« 2i* Bro.
Exchange^ pL is, 13. Peri, Jeff. 209. fiefides, the rflate of the
crown in Kiriy Overblowes cannot be defeated but by qffkefoundr,
or matter of record ; for if land be|;iven tp the King by deed in-
rolled upon condition^ if the condiiion be broken, the donor can-
not "CBter without office founds for the efiate which commenced
by matter of record ou^ht to be defeated by matter of record^
2 Roll. Abr. 2tg.pl. 2. if this is an exchange it is a matter o^
condition^ for if the one party hath not a title the condiiion is
^broken, the crown cannot enter but by matter of record ; there-
fore fuppofing the crown tp be divefied of Kirky Overblowes^ yet
the crown cannot claim WorplMon without office found. Stamf.
prerog. 55. and even after office found the crown is not in pof-
feflion hcforejazure. Stand' prerog. 54. 4 Rep. 58, 9 Rep. 96.
There muft be an office una ajeizure before the crown can take ;
and in fome other cafes there muft be ^ifdre facias: for where a
common perfon is put to his affion^ the crown is put to ^fcirc
facias.

The counfd for (he plaintiff's concluded, that the principles
upon which an exchange are grounded are not at all applicable to
.this cafe; the Duke of Somerfei gave nothing to Eton tollege, the
King gave nothing to the Duke of Somerjety Eton College gave
nothing to the King, fo there is no intercourfe of exchange ht^
twecn Eton college and the crown; but the title of the plaintiffs
to the church in queftion is veiled in them by the a£l of par-
liament which cannot be avoided, or their title fo veiled in them
thereby be eire£led by a wrongful a6l of the Duke of Somer/it^
the plaintiffs not being privy thereto. 2^//v, If the crown fu£!ers,
and is defeated of their title to Kirby Overblowes^ the crown is
, in tlie common cafe of other perfons, and muft feek recoinpence
from the party doing the wrong. 3^//^, This a£l of parliament
muft continue forever, unlefs repealed by anothjcr ad ; it can only
be invalid as to the right of ftrangers, but the parties them-
felves muft fubmit to the lofs, if any has happened thereby to
any of them. Or j^thly^ If wrong has been done to the crown^
the crown muft acquiefce in the lofs of Kirby Overblowes ^ or -
feek a fatisfa&ion ironr the perfons who did the wrong, the
Duie's heirs.

1. The crown being patron of the church ollVorblefdon (now jn Council for
qucilion) the Duke of Samcrfct^ patron of Kirby Overblowes, and «*»« defendant.

the

4Q4 Hilary T£BM 14 Geo. lit 1774.

. the pravofi and cottege of Eton patrons of the church of P^-
worth and two chapelries belonging to it, a^-eed to make aa fx*
change^ viz. the crown^ upon the requeft of theDa^, agreed to
give WorpUfdon to the colkge^ in exchange for which, the cMegt
fl^edtogive Pdworth and the two chapelries to ihtDuke:
And as an equivalent to the croztm for WorpUfdwiy the Duke agreed
to give Kirky Ovcrblowes to the crown: this was the nature of
the contra£^ and flipulatjon when the parties applied to parKa«
ment to have it carried into execution, and to make and ereft
the parifh of Pctworth and the two chapelries into three fepanrte
and diftin6l parifhes, which was ena3ed accordingly, and has
been carried into execution, and aequiefced in.until the late Lord
Egrcmont, in the year 1760, prefented to Kiriy OverUawesi and
thereby eviScd the crown.

2. Private afls of parh'ament made to carry the agreements of
piurties into execution, are to be conftrued by the rules aod prin«
ciples of the common law; the nature of this agreement is
clearly a legal exchange^ carried ii^to execution by the a£l.

3. But the Duke of Somer/it being only tenant for life of
Kirby-Ouerblowes; and got having an equal eflate therein to the
eftate which the crown and the ^college bad in Kirby-Over-
blowts and Pctworth^ the crown was liable to be evifted of Kirhy

Overbbwes.

4. The late Lord Egrenumt has eviQed the crown byprefent-
xng to the church of Kirby^Overblowes^ by an elder title which
is laved by the aft, and therefore the crown has the fanic right

I and title to the church of WorpU/Hoh (now in queftion) as if

I the exchange and a£l of parliament had never been made.

j It is faid by the counfel for the plaintifTs that this is not a

legcU exchange^ for that fuch exchange cannot be made between

' ^ three parties, only between two; but why a mutual and reci-

procal agreement to make exchange may not be between three^

I four, or more parties, (it muft be fubmitted) no fi^ood reafon

I has been given on the other fide ; although it muft be admitted

that no cafe of conveyence by deed of exchange is to be found
in tlie books between more thain two parties thereto. Suppofe
the Dtike of Somerjet had been feifed in fee of Kirby Ovamowes^
the exchange would have been mutual, equal, and reciprocal be*
tween all the three parties, and the exchange could not have beeii
avoided ; but the Duke having only an eflate for life, the crown
has been deceived^ and therefore, upon the Jaw and princijries
of an exchange^ has a right to prefent to the church in queftion
uader the old title.

The

Hilary Term 14 Geo. IlL 1774. 495

The legiilature could not intend to do injuftice, bat if the
crown has no title to WorfUfdon which they gave to Eton coHege,
in exchange for Kirby-Overbloxues^ injuftice will be done to the
crown J who have been ^^^ thereof, and fo the a3 is vpidt
lecauie both the crown and parliament have been deceived.

The court being clearly of opinion that tlie plaintiffs mull have
judgment, flopped the counfel in replying upon the fecond argu-
ment of thiscaie.

Curia — ^The court has no doubt, and very little to fay upon
this matter. The Duie of Somerfct having a feat at Petwortk
was defirbus of having the advowfon of tnat church in his fa-
mily, which was in podeflion of Eton College; the Duie^ not
having any living to tempt the college to give him, Petworth in
. exchang^j prevailed upon iht crown to give the living in queflion
to the colteg-e, aiid the Duke gave to the crown the church of
Kirbv'Overhlowes (fuppofed then to be an equivalent for Worplef^
Jon,) This beings agreed, and the Duie wanting to make three
advowfons out ot one, an aft of parliament is made to carry
this into execution, which docs not make ufe of words of con-
veyance, buti;g^j the feveral advowfons in.therefpcftive parties
for ever, viz. WorpUfdon in the college^ Petworth in the Duhe^
and Kiriy-Overblowes in the crown;' ^t the time of making the
aft the Duie waS only tenant for life of Kirby^Overtlowes, which
was then a fecret, (and fo continued till the year 1760,) ^nd
there is a {aving claufe in the aft which faves to all perfons
(other than the crown, the Duie and Duche/s and their hars^ and
jEton CoUegeJ all their rights of prefeniation to the feveral
churches, as fully as if the aft had never been made; by which
faving claufe and under a limitation in the fettlement of 1687,
CharUs late Earl of Egremont in the year 1760, prefented J^oan
Mdcalf to the church of Kirby-Overblowes who was not dif-
turbed by this agreement, or by the crown. Lord Egremont
having a clear title under the fettlement, which was faved by
the aft.

In-i 77 1 the church of JVorp^don ^in queflion) became vacant,
and the crown under their ancient title prefented the defendant
Fountain thereto, fuppofing the whole agreement void, where-
upon the plaintiffs have brought this auare impedit; and the
cueftion is, whether the prefentation of hoxA Egremont to Kir by ^
Overblowes fets the whole agreement afide, and the title to prc-
fent to the church in aueftion be reftored to the crown, which
depends upon the conftruftion of the aft of parliament, which,
in refpeft to Lord Egremont, is the fame as if it had never
been made.

Private

4g6 tiiLAar Tbrm 14 Geo. fit. 17/4.

Private ads Private ads of parliament muft be canftrued according to th^
of parliament principles of the common ]aw» and therefore it is faid, that, from
ftnMdlcwd- ^^® nature of this agreement or contraS, it muft be conftrued
ingtotha to be An exchange at common law^ which is a mode of oonve}--
principles of ance that has particular properties of it's own, and conveys a fee*
tihie^commoo gnjp[g without livery; and, before the {laiute» of frauds, miglil
have been made by paroU without deed or writing ; the word
excdmbium^ or exchange^ is faid, by the beft writers upon this fub-
jeS, to be abfolutely neceffary to this mode of conveyance; the
eflence of an exchange is when one efiate in land is given in con-
fideration of another, hence if one part fails the other will fail
alfd; in fome cafes It may be faid to be the beft mode of cob-
veyance, as in dealing with a djifeafable title. The tfk€t of an
exchange arifes from the remedies ; . t^. An implied ctmduion of
re-entry. ^J. K./pecial warranty^ thefe are incidental to an «c-
thange; a condition of re-entry is intire and indivlfible, he cannot
See Touch- enter Into a part of what he gave in exchange^ for he cannot judg«
^5»^^® how much he has loft, it is given againUa firanger; but if tne
«8c« firanger be impleaded and vouches, no more is to be recovered
than the value of what was loft ; befides the warranty arifing
from an exchange is only lineal warranty^ arifing from operation
of law, for the law vfm not raife a collateral warranty becaufe
of hard confequences attending it ; an alienee can neither enter
nor vouch, but he may make ufe of xht warranty in law byway
cA rebutter ; if tenant In tail hy exchange conveys abafe foe,
each IfTue may determine the exchange during his time, there-
fore it fcems to be the very elTence of an exchange that the na-
ture of ths eftates exchanged be^qual, that the land given by A.
to B. may be a recompence for the land given by B, to A,
There is no cafe to be found of an exchange in the legal
fenfe and meaning of that conveyance between more than two
parties ; for if A. gives land to B. and B. gives land to C. and
C. gives lands to A. if C. be evifted of the land given to him by
J5. ; C. cannot enter upon A. becaufe A. gave nothing in ex-
change to C: fo A. IS not bound to warrant the land to C,
which was given to hhn by B. ; this accounts for the defendant's
counfel not being able, with all their induftry, to find one cafe
The aft can- ot an exchange between three perfons ; befides the aft of par-
liS*a*"eed of '*^™^^^ cannot be conftrued to operate as a deed of exchange^
txcbanr€^ be- ^be word exchange not being once mentioned therein ; the aft
caufethe makes ufc of no words of conveyance, but vefts the feverai
T*** *^* . advowfons in the refpeftive parties, under the agreement.

Hence it i^ clear that this aft of parliament cannot be con-
ftrued by the rules and principles dt a convej'ance by way of
exchange ; but although the a« doth not operate as an exclum^e,
yet it fupports and executes the agreement between the parties,

fcving

itkiu

Hilary Term U Geo. III. 1774. 497

faving the Earl of Egremont's right. Let us fuppofe it was ah
agreement, touching land, between A. B. and l. by feoffment ;
Jf. (the college J m confideration of land from C (the crown J en-
feoffs B. {ihc DuirJ of other land with warranty; and B. *n con-
fideration of other land from A, enfeoffs C. of other land with
warranty; C\ is impleaded by a ft ranger (the Earl oi EgremcrdJ
for the land whereof B, enfeoffed him, whci cupon C. vouches
B, to warranty ; J5. cannot vouch over A. to warranty^ becaufe
A. did not enfeoff" B. of that fame land whefeof B. enfeoff.a C
and for which land C is impleaded ; fo the croum wouki re-
cover in value againll tlie Dui^, and the lofs would fall where ^
it ought, upon him who brought a bad title.

The* crown grants a good title to the college, the college grants
a good title to the Duie, the Di^ie grants a bad title to the
crown, the college have broken no contraft with the crozvn or the
Duke; but ,the Duke was the only wrong doer; the advowfonS
lying in grant, doth not differ from the cafe put of a feoffment
of lands, the nature of the agreement in» both is the fame, and the
trown htinv a party doth not alter the cafe; nor is it material,
at prcfent, in what manner Lord Egremont afferted his title to the
church of Kirby Overilowes,

By the whole court, rcfolved there cannot be an exchange at
common law between more than two parties, the things given
and taken in exchange run in parallel lines, and cannot pafs into
three lines or a triangle.

Judgment for the plaintiffs, per totam curiam^

Nathan Goodnght (on the demife of William Rolfe * Biack.keiL
and Elizabeth his wife)- ver/ks Frances Harwood. ^'^^'
In cjedlment. C. B.

^HE plaintiff" declares that William Rolfe and Elizabeth his Wh-ther a
**• wife on the 20th day of Oclobcr, in the feventh year of ^"hH^^'^J.
his prefenis Majefty at WeJlminJUr, demifed to the plabtiff' uneChich d^h
melTuage, ten chambers, and ten rooms, with the appurtenances not app«ar,
in Lincoln' S'Inn, and the liberty of the Rolls, and in the parifli ^t»fo»o<*
of Saint Dunjan m the WeJ, in the cbumy of Middlefek, to hold {j KJi.
the fame to the plaintiff* and his afligns from the 29th day- of ttinedadif-
September then laft paft to the full end and term of ten years ; g*^*"*^^^^
by virtue of which demife the plaintiff" entered^ and was pof- thrformer
fefled thereof, until the defendant on the 23d day of 0 Sober, iii wiUbutin
the faid feventh year, entered into the faid tenements in arid upon J*^*! P^rticu-
the pofleffion ol the plaintiff", and ejefted tim from his farm, known "iaii
Vol. IIL KK his ke a rcToca-

4^8 lilLABY l^KBlVt 14 G£0. III. lift.

tbfi of the his fatd term therein beiog not expired ; and ftili keeps him oMt
former tviiif of the Dofleflion thereof to his damaire of 20/.

rit/hallnoCt - °

end of the The defendant pleaded noi guilty; and iflue being joined

cafci p. 5x6.] thereon, this caufe came on to be tried before Lord Chief Judice

J)e Grey^ at the fitting in Weflmiitfier'hall after Eafier term in

the twelfth year of his prefent Majefty, when the jury found the

following fpecial verdia, viz. . '

ijtecial TCTw ^^^ jurors upon their oath fay, That by certain indentures of
iidL leafe and releale duly executed* the faid leafe bearing date the

day before the day 01 the date of the faid rekafe, and the releafe
being tripartite and bearing date the 3d day of ^tfril 1688, and
made between 7i7A« Lacy of Tottenham High Crojs in the county
oi MiMtfex £{q. of the firil'part, Edward Audsx of London
merchant of the fecond part, and John Gardiner Efd. Edmund
bethick merchant, John P^ys gentleman, and John HardeJIy
gentleman, of the third part, the laid John Lacy in confiderauon
of a marriage then intended, and which was afterwards duly
had and folemnized between him and Su/annm Rttdge^ eldeft
daughter of the faid Edward Rudge, and of the fum of 4000/.
the marriage portion of the faid Sti/anna^ did grant and convey
to the faid John Gardiner^ Edmund Dethick^ John Peffys, and
J^hn Hardejty^ and thci/ heirs, divers freehold mefluages, lands,
tenements and hereditaments in the counties of Effex znACam-
bridge therein mentioned, to hold them the faid J. G* £. /).
J. P. and J. H. and their heirs to the ufes following, that is to
fay, from and after the folemnization of the faid marriage to the
iffc of the faid Jfhn Lacy and his afligns for his life, without
impeachment of wafle, with remainder to truftees to prefer\'e
contingent remainders, remainder to the faid Sufanna and her
aligns for her life; and from and after the feveral deceafes of
the faid John Lacy znASufanna^ then to the ufe of the firft fon and
aHand every other the fon and fons of the body of the faid JbA«
Lacy on the body of the faid Sufanna to be begotten fucceffively,
and the heir^-male of fuch firft and other fons fucceffively law-
fully iffuing ; and for default of fuch iffue, then to the ufe of all
and every the daughter and daughters of the body of the faid
Jofin Lacy^ on the body of the faid Sufanna id be begotten, and
the heirs of their refpe£Uve bodies as tenants in common, and
not as joint-tenants, if there fhould happen to be mcwre than two
fuch daughters living at the time. of the failure of fuch iffue-
male ; but if there fhould happen to be but one or two fuch
daughters then living, then to 'the ufe of the faid J. G. E. J).
J. P. and 7. /f. their executors, adminiftrators and afligns, for
the term of five hundred years upon trufly if there ihould happen
to be but one fuch daughter living at the time of the failure of

ftfch

ItkLAKY Tebm 14 Geo. tit. 1774; 499

fuch ilFue-nialei then to raife thereout the fum of 4000/. for
the portion of fuch one daughter to be paiid her at her age ot
eighteen years or day of marriage, ivhich ihould firft happen^
with intereil for her maintenance in the mean time; and in cafe
there fhould be two fuch daughters then living, then upon tru/l
to raife the fum of 6000/. for the portions of fuch two daugfa*
ters equally to be divided between them fbare and ihare ilxLe^
and to be paid to them refpeftively at their ages of eightcan
years or marriage which (hould fir A happen, with interefi for
their maintenance in the mean time; and troih and after the de-
termination of the faid term of five hundred years, then tc tkc
vft of the right heirs of the faid John Lacy for ever.

That by a private a£l of parliament made and pafled in the
feventh year of the reign of her late Majefty Queen Arm^ and in
the year of our Lord 17081 intituled, an a£l for veiling divers
Inanors, melTuagesv lands and tenements of John Lacy Efq. in
the counties of EJftXy Cambridge and MiddUJeXj in truftees, to b^
fold for payment of his debts, making provifion for his children
tiiiproviaea for, and other purpofes therein mentioned, redting
the faid indentures of Icafe and releafe, or fettlement of the 2d
and 3d days of April i688t and the feVeral ufes and eftates thereby
limited, of and in the faid freehold lands and eflates in the faid
tounties of IffOc and Cambridge^ and alfo reciting as in the
faid afi is recited ; it was by the faid a6l among other things
en^£lcd, that all and every the freehold manors, mefiuaffes^
lands, tenements and hereditaments, in and by the faid recited
indentures of leafe and releafe panted and conveyed, ihould be^
and the .fame were by the faid a£l veiled, eilated and fettled
from and after the s^tTi of Decej?iher 1708, in and upon John
Rudge^ Edward Rudge of London merchant, Roger Lacy of Lon^
don haberdafher, and George StrudwicA of London filhmonger^
and their heirs and alTigns, to the ufe of them and their h^irs
end aifigns, freed and abfolutely difcharged of and from th^
ufes, trails, eilates and limiutions in the (aid releafe and fettle*
ment exprelfed or declared, but fubjeft to the trvfis therein-
after mentioned and exprelfed, and among other trufts^ to fell
the faid fettled eflates, together with divers other freehold copy-
hold and leafehold eilates in the faid a£l mentioned, and thereby
to raife the feveral fums of money in the faid a£); mentioned for
the feveral purpofes therein exprelfed, and then upon trufi to
raife the fum of 10,000/. to be by the, faid 7. i?. E. R. jK. Z.
and G. S. or the furvivors or the furvivor of them, or the exe-
cutors or adminiilrators of fuch furviyor, with the confent and
approbation of the faid John Lacy the father, his executor^ or
adminiilrators, as (oon as convenient might be laid out and
difpofed of in the purchafe of freehold manors, ^fluages,

K K a lands

50O HiLAKY Term 14 Geo- III. 1774.

land$ or tenements of an eftate of .inheritance in fce-limplc in
poflcflion in England, to be fettled, conveyed and affured to fuch
nftSj upon fuch trufts, and to and for fuch intents and purpofcs,
and under and fubjc61 to fuch provifoes and agreements as in
and by the faid recited deed or fettlement were mentioned, ex-

{>reffed and declared of and concerning the freehold meffuages,
ands, tenements and hereditaments thereby, or mentioned to
te thereby conveyed in lieu and full fatisfaclion thereof, and of
all other lands, tenements and hereditaments, thereby intended
to be thereby fettled therein, covenanted or agreed to be
fettled.

That the faid fettled and other pftates in the faid aft of par-
liament mentipned were by the faid truftees fold, and the faid
fum of 10,000/. was thereby raifed, but the fame was never
laid out or invefted in the purchafe of any lands, but ftill re-
mains un-inveftcd in the hands of the reprefentative of the fur*
viving truftce in the faid aft of parliament named.

That the faid John Lacy the father died, in the year and

that the faid Sufanna his wife died in the year and that

they left iflue of their two bodies two fons, namely John Lacy
of Lincoln s Ann Efq. their eldcft fon, andyfr/Aar Lacy Efq. their
fecond fon, and three daughters, namely Sufanna^ ERzabcth^ and
Mary,

That the faid Arthur Lacy intermarried in the year 1728 with
Elizabeth Burgoyne, by whom he had iflue two fons, namely
Arthur and John who both died infants of tender years, the
iaid Arthur dying in the month of April 1731, and the faid
John in the year 1734 ; and alfo one daughter Elizabeth.

That the faid Arthur Lacy fon of the faid John Lacy and
Sufanna his wife, died in tlie month oi September 1737, leaving
the faid Elizabeth one of the leflbrs of the plaintiff his only
furviving child, and that the faid Elizabeth did, in the month
aijune 1753, intermarry with the faid JVillm?n Rolfe the other
Icflor of the plaintiff.

That the faid Stifanna, the eldeft daughter of the faid John
iMcy and Sufanna his wife, died in the year 1721, without iffue
and unmarried, and the faid Elizabeth^ the fecond dauditer of
the faid John Lacy and Sufanna his wife, intermarried, in the
year 1725, with John Bfcoe Efq. and died in thd year 1762,
leaving iifuc by him one daughter and onlv child namelv Ann,
who in the year 1754 intermarried with kobcrt Goodckild^ and
which faid Ann is fiill living. *

That

Hilary Term 14 Geo. III. 1774. 501

That the faid Mary, the third daughter of the faid John Lacy
and Sufanna his wife, did in the year 173^ intermarry with the
reverend Bennet.Stevmfon doftor in divinity, and died in the
year 1760, leaving iflue by the faid Bennd Stevtnfon one fon,
namely Bcnnet Steven/on^ who is now living and unmarried, and
alfotwo daughters, namely Sufanna who died in the year 1769
without iffue, and EMzabeth who is flill living.

That the faid John Lacy Efq. of Lincoln s-inn, the eldeft fon of
the faid John Lacy dndSu/anna his wife, being on the 16th day of
April 1748 fcifed in fee of the chambers and premifes in the faid
declaration of eje£lment mentioned and poflrcffed of a confldcrable
perfonal eftate, and alfo intitled to tlie intereft of the faid fum of
10,000/. and to the rents and profits of the lands th/erewith dire£l-
ed to be purchafed by virtue of the faid fettlement of the ^d of
April 1688, and the (aid a6l of parliament herein-before fet forth,
made his will in writing July attejitd to paj's real ejlates^ and did
thereby devife in manner following, (tnat is to fay), •' I John The w*// of
Lacy of Lincoln' s-inn in the county of Middkfex, finding within LincoinVlan
jnyfelf frequent notices of mortality, and not knowing how Efq. 4at«d
fpeedily, fuddenly, or in what manner I may come to my end, i^tkof
and being now in perfcft health, mind and memory, do make ^^"^ '^^'
this my laft will and tejlament with my own hand as follows,
I give, devije and bequeath all -my real and perfonal eftate of what
nature or kind foever and wherefoever, unto my dear and well
beloved friend Mrs, Frances Harwood now of Maiden-Jane in the
parifh of Covent Garden Wejlminfler, and Iier heirs, executors, admi-
nijlrators and afftgnsfor ever, defiring her, and accordingly it is my
xmll, that fhe pay the following gifts and legacies; to my niece
AnnBifcoe the lum of one hundred pounds within tw calendar
months after my dcceafe, to Mr. John JVeftly of the Ttmple at-
torney at law ten pounds, to Jonathan IVelis Efq. ten pounds,
(thefe for mourning), to my fervant William Qegg, if living with
me at the time of my death, twenty pounds over and above
what may be due ana owing to him, and I likcwife in that
cafe give him all my linen and woollen apparel, I mean apparel
only, and to the maid who mav be living with me at Lver two
guineas; and I do hereby conftitute and appoint the faid Mrs.
Frances Harwood to be the /ble executrix of this my laft mil and
teflament, revoking all others by me heretofore made. In witnefs
whereof I have hereunto fet my hand and feal this 16th day of
Aprd, in the year of our Lord 1748.

John Lacy,

That in the fummer of the year 1756, the faid John Lacy of,
Lincoln's 'inn, being in like manner feifed in fee of the chambers
and premifes in the faid declaration of ejefiment mentioned, and
alfo poffefled of a confiderable perfonal cftatc,and likewife intitled

KK 3 ta

b07i HitAKY Tekm 14 Geo. HL 1774.

to the faid interell in the faid fum of 10,000/. and to the rente
and profits of the lands and tenements therewith direfUid to be
purcnafed by virtue of the faid fettlcment of<the 3d oi April
1688 and the faid a£i of parliament before- mentioned, did
make and duly publijh another mil and tefianunt in zifxtiing, in
(he prejence ^ three fubfcrilnng xvitneffes who duly attejled thej'ame.

That the Yhat the difpofidon made by the faid \^n Lacy in the faid will

•aShM^W/ 9f^^yf^^ ^75^y ^^^ different from tne difpo/itwn thereof in ^

in 1756, faid will 0/' tfu year 1748, but in what particulars is unknown

different from to the faid far ors; but thefaid jurors /ay, that they do not find

.thajmx74?.. if^^i the faid teftator cancelhd his faid will of the year tjRo^ or

that the faid defendant deftroyed the fame^ but what is Become

of the faid will the jurors aforefaid fay 4hfiy arc altogether

Ignorant,

That the faid teftator John Lacy Efq. died in the month of

Jfune in the year 1767, leifed in ice of the faid premifes in the

faid declaration mentioned without iflue, and was never ms^ri^,

ThttElisa- and that the feid Elizabeth the wife of the faid William Rolfe^

WToro?the* '^^^ ^^^^^ ^^ *^ plaintiff, is the niece and hei^efs at law of the

piiimiff itthe faid teftator John lacy.

teftator^s heir

« i«w? Tfhat after the death of the faid teftator John lAcy^ and bc^

fore the time within mentioned, in which the trefpafs and cjefl-
ment within mentioned is fuppofcd to be done, the aforefaid
defendant, into the tenements in the faid declaration within
mentioned with the appurtenances entered and was pofleifed
thereof, and that afterwards, that is to fay, on the ^oth day of
ORober^ in the feventh year of his fa^id Majefiy the now King,
the aforefaid William Rotfe and EMzabetk his wife into the tene^
ments aforefaid with the appurtenances in the declaration within
fpecifipd upon the poffefflon of the faid defendant thereof en-
tered, and then and there, (to^it) ^aWrflminfler within men-
tioned, did dcmife to the laid Nathan the faid tenements / with
the appurtenances, to have and to hold the faid tenements with
the appurtenances, from the 29th day of September then laft paft,
to the full end and term of ten years then next following, and
fiillj^ to be compleat and ended ; and ^hat by virtue of the faid
demife, the faid Nathan entered into the (aid tenements with the
appurtenances and \yas poflelTed thereof* and that the faid Nathan.
being fo ppffeffed thereof, the faid dcfendijnt afterwards (that is
to fay) on thewithin-men^ipned 23d day of QSober^ in the
feventh year aforefaid, into the faid tenements with the appur-
tenances upon the nofleflion of the faid N^han thereof did en-
ter, and thic faid Nathan from the poffeflion pf the tenements
aforefaidj his term aforefaid being npt yet expiredi did eje£k and

Hu^byTerm 14 Geo- III. \*I7A. 603

amove ; but whether upon the whole matter aforefaid, above in
form aforefaid found, the fald defendant is guilty of the tref-
pafs and ejectment in the faid declaration mentioned, in fuch
manner and form as the faid Nathan hath above againil her com-
plained, or not, the jurors fay they are altogether ignorant, and
thereupon they pray the advice of the juftices of our Lord the
King of the Bench here ; and if upon the whole matters afore-
faid, by the jurors aforefaid, in form aforefaid found, it fliall ap- .
pear to the laid juftices of our &id Lord the King of the Bench,
and to the faid court here, that the faid defendant is guilty of
the trcfpafs and eje£lment, then the jurors aforefaid fay, that
the faid defendant is guilty of the faid trefpafs and eje£lment, in
manner and form as the faid Nathan hath by his declaration
within complained, and then they aifefs the damages of the faid
Nathan by reafon of the trefpafs ,and ejefclment aforefaid, be*
fides his cofts and charges by nim about his fuit in this behalf
expended, to one fcilTing, and for thofe cofts and charges to
forty fliillings ; but if upon the whole matters aforefaid, by th6
jurors aforefaid, in form aforefaid found, it fliall appear to the
juftices aforefaid, and to the faid court here, that the faid Frances
is not guilty of the faid trefpafs and ejeOiment, then the faid
jurors on their oath fay, that the faid defendant is not guilty
of the faid trefpafs and eje£lment as the faid defendant hath in
pleading alleged, &c.

This fpecial verdift was twice argued at the bar, fviz.J in
EaJUr term laft, by Serjeant Hill for the plaintiff, and Seqeant
Glynn for the defendant ; and in Trinity term laft, by Serjeant
BurlandioT the plaintiff, and Serjeant Vavy for the defendant*

Serjeant Hill for the plaintiff— The jury have found that John xft Argti*
Lacy of Lincoln* S'inn Elq. was feiled in fee of the chambers and »efttinE^»
premifes in queftion, and on the i6rh day ol April 1748 made ^*"° *^ **
his will in writing duly attefted to pafs real eftates, and did
thereby give, devife and bequeath all his real and perfonal eftate
whatfocver to the defendant Frances Harwood^ and. her heirs
for ever, defiring her to pay a few gifts and legacies to certain
perfons, and did thereby appoint her to be the lole executri^c of
that his mlL

The jury have further found, that in the fummcr of the year
1756, Mr. Lacy^ being in like manner feifed in fee qf the cham-
bers and prexnifes in^ueftion, did make and duly publilh an-
other mil and teflamenp in writing, in the prefence ot three fub-
fcribing witncfles who duly attefted the fame; that tlie difpo.
fition made by Mr. Lacy in the will of the year 1756 was djf-
fercnt from the difpofuion thereof in the vnll of the year 1748,

KK 4 but

5Cft HihAjLY Term 14 Geo. HI. If 74.

to the faid interell in the faid fum of 10,000/. and to the rails
and profits of the lands and tenements therewith direfteid to be
purchafed by virtue of the faid fettlement of •the 3d of -^n/
1688 and the faid a£l of parliament before-mentioned, did
make and duly pubtijk another tpill and tefiament in writings in
the prejence (^ threejuhfcnbing mtnejfes who duly atte/led the farm.

That the That the difpofidon made by the /aid ]ohn Lacy in the /aid will

inSher*^ fl//A^^<r«r 17^6, was different from the difpqfuwn thereof in ifu

in 1756, faid will oj tfu year 1748, but in what particulars is unknown

<iiffercntfrom to the faid jurors ; but thefaid jurors /ay ^ tKat they do not And

.UMtinx74V tfi^^ the faid teftator cancelled his faid will of the year 17^6, or

that the faid defendant deflroyea thefame^ but what is become

of the faid will the jurors qforefaid fay ih^y are altogether

i^norant^

That the faid teftator John Lacy Efq. died in the month of

Jfune in the year 1767* leifed in fee of the faid premifes in the

faid declaration mentioned without iflue, and was never ms^ri^,

ThatElitt- and that the faid Elizabeth the wife of the faid William Roffe,

WTorofthe* '^^^ '^'''^'' °^ '^^ plaintiff, is the niece and hei^efs at law of the

pitinturitthe faid teftator John lacy.

teftator's heir

at Jaw, j}^3^ jjfj^j. jj^g jgj^^j^ Qf jj^g f^i^ teftator John Lacy, and be-

fore the tiipe within mentioned, in which the trefpafs and cjefl-
ment within mentioned is fuppofed to be done, the aforef^Md
defendant, into the tenements in the faid declaration within
mentioned with the appurtenances entered and was poflefled
thereof, and that afterwards, that is to fay, on the 20th day of
OHober^ in the feventh year of his fa^id Majefiy the now King,
the aforefaid William Roife and EUzabeih his wife into the tene^
ments aforefaid with the appurtenances in the declaration within
fpecifipd upon the poffeftion of the faid defendant thereof en-
tered, and then and there, (to -wit) at Wrflminfler within men-
tioned, did demifc to the faid Nathan the faid tenements r with
the appurtepances, to have and to hold the faid tenements with
the appurtenances, from the 29th day of September then laft paft,
to the full end and term of ten years then next following, and
fully to be compleat and ended ; and that by virtue of the faid
demife, the faid Nathan entered into the faid tenements with the
appurtenances and was poflelTed thereof* and that the faid Nathan
being fo ppffeffed thereof, the faid defendant afterwards (that is
to fay) on thewithin-men^ipned 23d day of QBober^ in the
feventh year aforefaid, into the faid tenements with the appur-
tenances upon the noffeflion of the faid N^thcm thereof did en-
ter, and the faid Nathan from the poffeftion pf the tenements
^iforefaidj his term aforefaid being npt yet cxpiredi did eje£k and

amove;

Hu^byTeem 14 Geo- til. 1774. 603

amove ; but whether upon the whole matter aforefaid, above in
form aforefaid found, the faid defendant is guilty of the tref-
pafs and ejectment in the faid declaration mentioned, in fuch
manner and form as (he faid Nathan hath above againfi her com-
plained, or not, the jurors fay they are altogether ignorant, and
thereupon they pray the advice of the juftices of our Lord the
King of the Bench here ; and if upon the whole matters afore-
faid, by thejurbrs aforefaid, in form aforefaid found, it fliall ap« ,
pear to the laid juftices of our faid Lord the King of the Bench,
and to the faid court here, that the faid defendant is guilty of
the trefpafs and ejeftment, then the jurors aforefaid fay, thsft
the faid defendant is guilty of the faid trefpafs and ejeftment, in
manner and form as the faid Nathan hath by his declaration
within complained, and then they aflefs the damages of the faid
Nathan by reafon of the trefpafs .and ejefclment aforefaid, be*
fides his cofts and charges by him about his fuit in this behalf
expended, to one fhilling, and for thofe cofts and charges to
forty fliillings ; but if upon the whole matters aforefaid, by th6
jurors aforefaid, in form aforefaid found, it fliall appear to the
juftices aforefaid, and to the faid court here, that the faid Frances
is not guilty of the faid trefpafs and ejeOiment, then the faid
jurors on their oath fay, that the faid defendant is not guilty
of the faid trefpafs and ejeflment as the faid defendant hath in
pleading allegedi &c.

This fpecial verdlft was twice argued at the bar, fviz.J in
Ea/ier term laft, by Serjeant Hill for the plaintiff, and Serjeant
Glynn for the defendant ; and in Trinity term laft, by Serjeant
Burland for the plaintiff, and Serjeant Davy for the defendant*

Serjeant Hill for the plaintiff— The jury have foi
Lacy of Lincoln' s4nn Elq. was feifcd m fee of the chambers and meatinEaAe?

) found that John xft Argti*
Lacy of Lincoln' s^inn Efq. was feifcd in fee of the chambers and "*"**°^^^
premifes in queftion, and on the i6th day of April 1748 made J*"° *^
nis will in writing duly attefted to pafs real eftatcs, and did
thereby give, deviie ana bequeath all his real and perfonal eftate
whatfoever to the defendant Frances HarzvooJ, and her heirs
for ever, defiring her to pay a few gifts and legacies to certain
perfons, and did thereby appoint her to be the lole executri.% of
that his zvilL

The jury have further found, that in the fiimmcr of the year
1756, Mr. Lacy^ being in like manner feifcd in fee qf the cham-
bers and premifes in^queftion, did make and duly publifti an-
other W// and tefiamenf in writing, in the prefence ot three fub-
fcribing witncfl'es who duly attefted the fame; that the difpo-
fition made by Mr. Lacjf in the toill of the vcar 1756 was dif-
ferent from the difpofition thereof in the zoiU of the year 1748,

KK 4 but

b02i HitAKY Tekm 14 Geo. HL 1774.

to the faid interell in the faid fum of ip,ooo/. and to the rents
and profits of the lands and tenements therewith direfldd to be
purchafed by virtue of the faid fettlemcnt of^he ^doiJpril
1688 and the faid a£l of parliament before- mentioned, did
make and duly publijh another mU and trttanunt in ztfriting^ m
the prejence y thru fuhfcribing mtnejfts who duly alte/Ud thtjame.

That the Thai the difpofition made by the/aid ]6\^n Lacy in t&ejaid will

inShTr W/ 9f!^yf^^ 1756, was different from the difpqfuwn thereof in ^

in 1756, Jaid will 0/' me year 1748, but in what particulars is unknown

different from to tKe foxdjurors; but the faid jurors /ay ^ th'at they do not And

-thatiDX74V ihai the faid Uftator cancelled his faid will of the year 17^6. or

that the faid defendant dejlroyed, the fame^ hut what is become

of the faid will the jurors aforefaid fay -they ar& abogether

i^orant.

That the faid teftator John Lacy Efq. died in the month of

Jfune in the year 1767, Jeifed in fee of the faid premifes in the

faid declaration mentioned without iffue, and was never nuM'ri^,

ThatEliM- and that the faid Elizabeth the wife of the faid William Roffi:,

wSrofthe* "^^^ ^^^^^ ^^ ^^® plaintiff, is the niece and hei^fefs at law of the

plaintiff itthe faid teftator John lacy.

teftatDr*8 heir

« Jaw, j|,3^ j^f^^jj. jj^^ j^^^}^ ^f jj^g fjjj^ teftator John Lacy^ and bc^

fore the tiipe within mentioned, in which the trcfpafs and cjefl-
ment within mentioned is fuppofed to be done, the aforefiuid
defendant, into the tenements in the faid declaration within
mentioned with the appurtenances entered and was poflefled
thereof, and that afterwards, that is to fay, on the 20th day of
ORober^ in the feventh year of his fs^id Majefly the now King,
the aforefald William Rotfe and Elizabeth his wife into the tene^
ments aforefaid with the appurtenances in the declaration within
fpeciiivd upon the poffeffion of the faid defendant thereof en-
tered, and then and there, (to^it) at Weflminfler within men-
tioned, did demifc to the faid Nathan the faid tenements / with
the appurtenances, to have and to hold the faid tenements with
the appurtenances, from the 29th day of September then laft paft,
to the full end and term of ten years then next following, and
fully to be compleat and ended ; and that by virtue of the faid
dcmife, the faid Nathan entered into the (aid tenements with the
appurtenances and was poflelTed thereof, and that the faid Nathan
being fo ppffeffed thereof, the faid defendant afterwards (that is
to fay) on the^within-men^ipned 23d day of Qffober^ in the
fef enth year aforefaid, into the faid tenements witli the appur-
tenances upon the nofleflion of the faid NqtAan thereof did en-
ter, and the faid Nathan from the poffeflion pf the tenements
^iforefaidj his t^rm aforefaid being npt yet cxpiredi did eje£k and

aifuavc;

HilabyTerm 14 Geo. III. lj^74. 503

amove ; but whether upon the whole matter aforefaid, above in
form aforefaid found, the faid defendant is guilty of the tref-
pafs and ejectment in the faid declaration mentioned, in Aich
manner and form as the faid Nathan hath above againfi her com-
plained, or not, the jurors fay they are altogether ignorant, and
thereupon they pray the advice of the juftices of our Lord the
King of the Bench here ; and if upon the whole matters afore-
faid, by the jurors aforefaid, in form aforefaid found, it fliall ap-^ .
pear to the laid juftices of our (aid Lord the King of the Bench,
and to the faid court here, that the faid defendant is guilty of
the trefpafs and cjefhnent, then the jurors aforefaid fay, thsft
the faid defendant is guilty of the faid trefpafs and ejeftment, in
manner and form as the (aid Nathan hath by his declaration
within complained, and then they aifefs the damages of the faid
Nathan by reafon of the trefpafs ,and ejefclment aforefaid, be-
fides his cofts and charges by nim about his fuit in this behalf
expended, to one fhiiling, and for thofe cofts and charges to
forty fliillings ; but if upon the whole matters aforefaid, by th6
jurors aforefaid, in form aforefaid. found, it (hall appear to the
juftices aforefaid, and to the faid court here, that the faid Frances
is not guilty of the faid trefpafs and ejeSment, then the faid
jurors on their oath fay, that the faid defendant is not guilty
of the faid trefpafs and ejeflment as the faid defendant hath in
pleading alleged, &c.

This fpecial verdift was twice argued at the bar, Cviz»J In
Eajter term laft, by Serjeant Hill for the plaintiff, and Seqeant
Glynn for the defendant ; and in Trinity term laft, by Serjeant
Burland for the plaintiff, and Serjeant Vavy for the defendant*

Serjeant Hill for the plaintifT— The jury have found that John xft Argti*
Lacy oi lincoMs'inn Elq. was feifcd mfee of the chambers and meat in EA?
premifes in queftion, and on the i6th day o{ April 1748 made ^^ *^
nis will in writing duly attefted to pafs real eftates, and did
thereby give, devile and bequeath all his real and perfonal eftate
whatfoever to the defendant Frances Harwood, and her heirs
for ever, defiring her to pay a few gifts and legacies to certain
perfons, and did thereby appoint her to be the fole executrix of
that his xvilL

The jury have further found, that in the futmner of the year
1756, Mr. Lacy^ being in like manner feifed in fee qf the cham-
bers and premifes in^queftion, did make and duly publilh an-
other mil and teflamtnp in writing, in the prefence ot three fub-
fcribing witncffes who duly attefted the fame; that the difpo.
fition made by Mr. Lacy in the vnll of the year 1756 was iif--
ftrtnt from the difpofition thereof m the mil of the year 1748,

K K 4 but

604 Hilary Teem 14 Gbo. HI. 1774*

to the faid intereil in the faid fum of so,Qoo/. and to the renia
and profits of the lands and tenements therewith direfleid to be
purchafed by virtue of the faid fettlement of «the ^d of ^rz/
1688 and the fafd a£l of parliament before-mentioned, did
make and duly publijk another ztnll and tefiarnent in wnting^ in
the prejence (^ three fuhfcribing tmtneffes who duly atteJUd thtfamt^

That the Y%at tht difpofidoH made by the faid \o)iin Lacy in thefidd will

i^ShTr*!!^/ 9f^^y^^ 1756» "'^^ different from the difpqfitwn thereof in ^e

in 1756/ fud will of ilu year 1748, but in mhat particulars is unknown

different from to the faid jurors; but tht faid jurors jay ^ that they do not And

«»««tt«74«^ thai tht faid Uftator cancelled his faid will of the year 17 «^ or

that the faid defendant deftroyed^ the fame^ but what is become

of the faid will the jurors cforefoxd fay ^thfiy are atogeiher

Ignorant.

That the faid teftator John Lacy Efq- died in the month of
7une in the year 1767» leifed in ice of the faid premifes in the
laid declaration mentioned without iflue, and was never m2^f ifd,

Thattiist- and that the faid EJlizabfth the wife of the faid William Rolfe^

lefforofSie* '^^^ 'cfTor of the plaintiflP, is the niece and hei^-efs at law of the

piaimiff iithe faid teftator John Lacy.

teftatofs heir

That after the death of the faid teftator Jfohn Lacy^ and bc^
fore the tiipc within mentioned, in which the trefpafs and cje3«
ment within mentioned is fuppofed to be done, the aforefij^d
defendant, into the tenements in the faid declaration within
mentioned with the appurtenances entered and was poITefied
thereof, and that afterwards, that is to fay, on the 20th day of
03ober^ in the feventh year of his fs^id Majefiy the now King,
the aforcfaid William Roife and EJizabetk his wife into the tene^
ments aforcfaid with the appurtenances in the declaration within
fjpeciiipd upon the poIFefflon pf the (aid defendant thereof en-
tered, and then and there, (to ^it) at Wrflminfler within men-
tioned, did demife to the faid Nathan the faid tenements ^ with
the appurtenances, to have and to hold the faid tenements with
the appurtenances, from the 29th day of September then laft paft,
to the full end and term of ten years then next following, and
iuWy to be compleat and ended ; and that by virtue of the faid
demife, the faid Nathan entered into the faid tenements with the
appurtenances and was poftelTed thereof, s^nd that the faid Nathan.
being fo ppffeffed thereof, the faid defendajnt afterwards (that is
to fay) on the withinrmenppned 23d day of Qdober^ in the
feventh year aforcfaid, into the faid tenements with the appur<
tenances upon the pofleflion of the faid N^ihqn thereof did en.
ter, and th^ faid Nathan from the pofleflion pf the tenements
^iforefaidj his term aforefaid being npt yet expiredi did eje£k and

a9\Qve ;

91 Jaw.

HxlabyTe&m 14 Geo. III. 1774. 503

amove ; but whether upon the whole matter afore faid, above in
form aforefatd found, the faid defendant is guilty of the tref-
pafs and eje£^ment in the faid declaration mentioned, in fuch
manner and form as the faid Nathan hath above againfi her com-
plained, or not, the jurors fay thejr are altogether ignorant, and
thereupon they pray the advice of the juftices of our Lord the
King of the Bench here ; and if upon the whole matters afore-
faid, by thejurors aforefaid, in form aforefaid found, it fliall ap- .
pear to the laid juftices of our &id Lord the King of the Bench,
and to the faid court here, that the faid defendant is guilty of
the trefpafs and eje£lment, then the jurors aforefaid Tay, that
the faid defendant is guilty of the faid trefpafs and ejedment, in
manner and form as the {aid Nathan hath by his declaratioa
within complained, and then they aflefs the damages of the faid
Nathan by reafon of the trefpafs and ejeilment aforefaid, be*
fides his cofts and charges, by nim about his fuit in this behalf
expended, to one (hilTing, and for thofe cofts and charges to
forty fliillings ; but if upon the whole matters aforefaid, by th6
jurors aforefaid, in form aforefaid found, it fhall appear to the
juftices aforefaid, and to the faid court here, that the laid Frances
is not guilty of the faid trefpafs and ejefiment, then the faid
jurors on their oath fay, that the faid defendant is not guilty
of the faid trefpafs and ejedment as the faid defendant hath in
pleading alleged, fi?c.

This fpecial verdift was twice argued at the bar, Cviz.J In
Eajier term laft, by Serjeant Hill for the plaintiff, and Seqeant
Glynn for the defendant ; and in Trinity term laft, by Serjeant
Burlandiot the plaintiff, and Serjeant Davy for the defendant.

Serjeant Hill for the plaintiff— The jury have found that John ift Argn*
Lacy oi Lincoln^ s -inn Efq. was feifed m fee of the chambers and »e«t»nEAf

Sremifes in queftion, and on the 16th day o{ April 1748 made **"" "^
is will in writing duly attefted to pafs real eftates, and did
thereby give, devile and bequeath all his real and perfonal eftate
what foe ver to the defendant Frances Harwood^ and her heirs
for ever, deflring her to pay a few gifts and legacies to certain
perfons, and did thereby appoint her to be the fole executrix of
that his xuilL

The jury have further found, that in the fiimmcr of the year
1756, Mr. Lacy^ being in like manner feifcd in fee qf the cham-
bers and premifes in^queftion, did make and duly publifh an-
other W// and teftamenf in writing, in theprefencc ot three fub-
fcribing witnefl'es who duly attefled the fame; that the difpo.
fition made by Mr. Lacy in the xeill of the year 1756 was dif^
ftrcnt from the dxfpofition thereof in the will of the year 1748*

KK 4 . but

604 Hilary Term 14 Geo. III. JL774.

but in what particulars is unknown to the jurors; but the jurors
fay, that they do not find that the faid teftator cancelled his faid
p)ill of the year 1756, or thit the faid defendant deftroyed the
fame, but what is become of the faid will^ they fay they are alio-
gether ignorant.

No man can die with two different wills of the fame premifes ;
the making a fecond different will is a revocation oi the firft ; the
jury have found that the difpofition made by Mr. Lacy in his
zvill oi 1756 v/as different from the difpofition in his will ot
1748, therefore the zvill of 1756 is a revocation of /A/i/ of 1748,
the latter zvill being different from the former cannot confiil or
ftand with it, fo is a revocation thereof. Ilardr. 375.

1 admit that a fubfequent zuill may be made fo as not to de-
ftroy but confift with a fprmer; for the teftator may have feveral
parcels of land, which he may devife to feveral perfons, by
divers zvills, and yet all (land together, as making all togetlierone
fingle %mll of all his lands; that is not the prefent cafe, for it doti
■ not appear by this verdift that the latter zvUl was conliftent with
the former; but it appears to be inconfiftent with the former,
the teftator having made a different difpofition thereby; by which
different difpofition, the jury muft be underftood to mean a drf^
Jerent difpofition of the fame lands and premifes in queftion,
whereof Mr. Lacy was in like manner feifed in fee in 1748, and
in 1756.

The jury have found that Mr. Lacy made another will dfferent
from the former, but in what particulars it differs, is unknown
to them ; if it was not different^ but was a like devife of the
fame premifes to the defendant Harzvood, ftie fhould haveclaimed
under it, for an heir at law (hall not be difinherited by an
intendment that the latter will is the fame with the lirft ; if the
defendant Jiarwood has any title to the premifes in queftion, it
is a derivative title under the lojl zvill oi the teftator ; (he (hews a
title under a will in 1748, but can fhc iourt adjudge that to be the
loft w?ll of Mr. Lacy^ when the jury have exprefly found be
made another will in 1756 dfferent from the former? The con-
tents whereof (I hurnbly contend) are not ncce(rary to be (hewn
by the plaintiff, becau(e he claims under the heir at law who
has an original primary title to the eftate of her anceftor.

The jurors fay that they do not find that the teftator can-
celled his will of the year 1756, or that the defendant de-
ftroyed the fame, but what is become of it they fay they arc alto-
gether ignorant : it did once exift, they do not find that the teftator
(cancelled it, and not being produced or found to be confiftent

with

HilakyTerm 14 Geo. III. 1774. SOi

with the zoiUof 1748, it doth not appear upon this record Aat
the defendant hath any certain title to all or any part of the
teftator's real eftate, and therefore I pray judgment for the .
plaintiff who claims under the heir at law of the ^eftator Mr,
Lacy,

Serjeant Glynn for the defendant — ^The queftion upon this
fpecial verdi£): is, whether the zviil of 1748 is not ftill a fubfifting
n/i7/, which is found by the jury to be cluly made by the tefta-
tor Mr. Lacy in h^cverba^ whereby he hath given, devifed and
bequeathed to the defendant Harwood and her heirs, all his real
and perfonal.efiate whatfoever, except a few perfonal legacies ;
I am to contend that it is a good fubfifting wiU^ and muft ftand
and remain fuch until it be contradiflcd by fome fubfequent mil
or deed of the teftator.

• But the jury having found that in 1756 Mr. Lacy made another
mil and a different difpofition therein ^rom the difpofition in his
tbrmer will, it is obje3ed that the former will is thereby re-
voked; but [in anfwer] it is alfo found to be unknown to the
jurors in what particulars the latter tvill was different from the
former, and for any thing that appears upon this verdi3 the
latter will may be confident, and may well uand with the former
will, and it is. admitted by my brother Hill that a fubfequent
will may be made fo as not to deftroy but.coniift. with a former ;
that a teftator may have feveral parcels of land, which he may
. devife to feveral perfons by divers wills and yet all ftand together
as making but one will; it was therefore incumbent on the plain-
tiff to have (hewn to the court and the jury that the fecond will
was inconfiftent with, and a revocation of the firft. The couit
cannot fay that the fecond will was of lands, becaufe the jury
have faid the particulars thereof are unknown to them; and
indeed they rcfufed upon the trial to find that it related to
lands, though they were then told that it was attefted by three '

>vitneffes.

It is objefled that it doth not appear upon this record, that
the defendant hath any certain title to all or any part of the
tefiator's real eftate, becaufe the contents of th<} fecond vnll are
not found and afcertained, but are unknown to the jury fo the
heir is intitled to recover ; but in anfwer to this, the jury have
found a certain good will in hac vcrba^ whereby the defendant
has a clear title to the premifes in queftion ; and ought to have
judgment as the plaintiff has not Oiewn, nor the jury found any
hSt or deed amounyng to a revocation thereof; or that the
teftator had a itiind or intention to revoke the fame; an animus
repocandi is as neceflary (o revoke, as an animus itftandi is to
make a will.

i06 Horary Term 14 Gso. HI. 1774*

Tkfi cafe of Hitckms of the demife of Nqfioarthv againft Ba^et^
Pmrkameni cafis 146. is a cafe iiv point for i\m defeadant, upod
which Z rely, a Saik. 592. S. C. 3 Ai?^. 803. S. C* and in fevend
cd^r books.

. Serjeant Hill in reply — ^I admit that an animus revocanH is as
Mce wy to revoke* as an afdmtu Uftandi is to make, a wUlf here
l^ppears an animus reoocandi of the teftator* for it is found thai
in 1756 he did make another witl^ duly attefled by three fub-
Ccrihinff wiinefliss, and that the difpofition in the fame was dif^
firent £om the difpofition in the taill of 1748, which (hews a
mtnd to revoke the fame ; and there is a material diftinAioa be-
tween this and the cafe in Pari, cafts 146. for there it is found
that the teftator conduht et fecit oHud Uftamentum in fcrijftis,
&c. but it is not found that he made any different difooiition
therein, here it i$ found Mr. Lacyimdc a SJferait difpoution by
his win in xj^^*

ftd Arsnneflt Serjeant Burland for the platntifT^The ({ueftion is, whether
io Trinity the toUl of tjA% u a fubfifling wUlf If it is, the defendant has
^-^ a flood title; if it does not fubfift, but is revoked, the plaintiff
S3 CO* 5. who claims under the heir at law muft have judgment to recover
poffei&on bf the premifes in queftion.

It is certidn that no man can die with two toills^ the laft muft
prevail; Aim is a great difference between a mil with fubfe^
^uent eadidls thereto, conirming the fame in part or in the
whole, and confiftent therewith; and a former and latter will
different and contradifiory to each other with refpeft to the
pofition of the fame lands or eftate of the teftator ; fuch will and
tmkcils may wdl fiand together, and make but one wUl^ but two
different and contradi£U>ry wills of the fame lands cannot fiand
together, the latter will muft prevail, for it amounts to a revoca-
tion of the former. [See t Vezey 178. 186.]

Revocations of viUs have been conflrued favourably for the
fake of the heir at law ; before tke^atnte cf frauds^ if a man
had faid he would alter his will when he came to fuch a place,
and he had died before he came thither, the wuill would have
been revoked without writing. 1 Roll. Atr. 614. //. 1. Dier
Q.i0.-^But it never was doubted but a revocation may be by
deed ; as if a man devife lands to another, and afterwards makes
a feoffment to the ufe of liis nnU^ this wa» always held a revo-
cation. 1 /M?. jUr. 614. fl. 2.—^ if a man devifes lands to
one, and afterwards deviies the (ameto the poor of fuch apariih*
which is void becaufe the poor have not a capacity to take,
yet it is a revocation of thft firft wiUt t Rott. Ah. 614- //• 4* —

A fcoSment

HrtimT Tejo* 14 Gro, III. 1774; 807

A feoffment without liverjc, or a bargain and fale witbwr in*
rollment, or a feoffmem made by a man to tke ufe oS himlel{«
although the old ufe remains in him, are revocations. I cito
thefe cafes (and many others nught be cited) to Ihew, that re**
vocations are favoured for the heir at law ; [oce Par/ons verfus
Freeman^ 3 AlL 741. 1 fVii/Sm 310. fame cafe. Anii^ fol. 6.
J)arky verlus DaH^. And in Lord Lincoln's cafe a man makes
a fettlement upon a lady that he intended to marry, which nevec
took effefi, yet a revocation.]

In the cafe of Biickins verfus Baffct^ Pari, cafes 146. which
is relied on as a cafe in point for the defendant, the verdiA
tliere found that the teftator made aJUud tefiamentum^ which piuft
be taken to mean a duplicate of his unU: but if it had beefi
fotmd diat he made a mU diffcrad from the firfi, it would bav^
amounted to a rcoocatom^

The difpofition made by Mr. Liicy in his wiU of 1756 was
different from the difpofitix>n made in the vnll of i7'4S, but the
verdi£l doth not find what the difference was, whether in the
whole or in what part; the defendant cannot have the whole
vrhich is devifed to her by the wiU of 1^748, becaufe the jury
have found that the «;i7/ of 1756 is different: what iht difference
is between the former and the latter will is wholly uncertain, U^
the heir at law {hall take: but one thing is certain^ viz. thai
the latter mil differs from the former, therefore revokes it.

Serjeant Davy for the defendant — The cafe of Hitchins verfus
Baffet in Pari cafes 146. ^Mod. 203* Salk. t^^%. and in other
books, is exadly like the cafe at bar. Mr. Lacy in 1748 devift^d
all his ^ftate whatfoever to the defendant in fee, except a few
fmall perfonal legacies; in 1756 he made another wiU which
the jury fay was different^ but in what particulars is unknown to
them ; and they fay that they do not find that the tefiator can«
celled; or that the defendant deftroyed the willol 1756, but what
fs> become of it they are altogether ignorant. — ^They never faw
it, ib could not find' any thing touching the contents thereof,
for they had no evidence of it's contents ; how then cquld they
fay that it was different^ at the fame time they declare themfelves
isnorant of the particulars of M^i^ difference ? — For any thing
that appears the latter will may be fo made as not to revoke or
deftroy, but to confift with the former, and fiand as part thereof,
and both may make one will.

Irhe cafe of Coward verfus Marjhal^ Cro. JEliz. 721. " Upon
'* a fpecial verdift was; one by his unll devifed his lands
^' to /. his youngcft fgn, and bi$ heirs, and afterwards married

508 Hllaky Term 14 Geo. III. 1774.

'* a^in, and by another rvill in writing devifed the land to his
*• wife for life, paying annually to /. his youngeft fon and his
' •* heirs fuch a rent : whether this fccond will was a revocation
•• of the former was the queftion ? And Andtrfon SLni.GlanmlU
.** held it to be no revocation, but that both may Hand, although
** they be by feveral writings, unlefs it be manifeilly contrary
•* to the firft will, or that there be an exprefs revocation therein ;
** but they ought to ftand together if they may, as if made by,
" and in one arid the fame writing; and here his intention ap-
** pears, that he had not any purpofe to alter it as to his Ton,
•* out only to provide for his wife, whom he afterwards
** efpoufed; and by the appointing of the rent to his fon, it
** appears that his intent was that the reverjion fhould be to his
** foui" This cafe {hews there may be two different wills with
different difpqfitions therein, and yet both may ftand together as
confiftent and reconcilable.

I fubmit it with great deference to the court, that in this cafe
it is a queftion of faft, and not of law, whether the former will
was revoked or not, by the latter.

Lord Chief Juftice — If a man makes a wiUoi lands, and after-
wards levies a fine, or makes a feoffment, the jury find thofe
fa£ls, but leave it to the court to adjudge whether tne fame be a
revocation in law or not.

Gould Juftice — Whether a revocation or not, may fometimes
be a queftion of law, and fometimes of fafi ; in a cafe of Jitner
verfus Titner, where there were interlineations in a twZ/, the late
Lord Chief Juftice Wilmot left the queftion of revocation^ as a
faft to the jury.

Black/lone JuMce-^Devi/avit vel^non, fcems to be like revoca-
vit vel non.

Serjeant jDfli{y — ^The jurors fay that they do not ^nd that the
teftator cancelled his willoi 1756, but they do not fay that they
dojind that he did not cancel it ; the court will give judgment
upon the fafts which the jury dojind, and not upon what the)'
do notjind.

* In the cafe of Glazier verfus Glazier, which was folemniy
argued in B, R. about two years ago, a man made his zn//, and
afterwards made another will; the fecond will appeared, and
was a clear revocation of the firft, for the fecond had a claufe of
revocation in it; the teftator afterwards cancelled the laft anV/,
and died without republifhing the firft; all this appeared to

the

Hilary Term 14 Gbo. III. 1774. 509

the court, who were all of opinion that the firft zt/i7/ became tlie
teftator's lail will^ for the cancelling the lad was a republication
of the firft ; and for any thing that appears in the ipecial ver-
clift in the prefent cafe, Mr. Lacy cancelled his will of 1756,
for it hath not been produced, and the jury fay they are altoge-
ther ignorant, &c.

1 beg leave to conclude with the laft words in Hitchins verfus
Bajfet^ Pad. cafes 149. " No man can affirm that every mil
•• muft neceSarily be a revocation of a former, for the fecond vnll
" might be of another thing, as goods, or of another parcel of
" land, or in confirmation of the former. If in thefe and many
*• other like cafes, a latter xvill is no revocation of a former,
•* how can it polTibly with juftice be concluded, that a latter
** will without contents, purport or efFeft, (hall be a revocation
•• of a former. And though the jury have in this cafe believed
" the witnefles, and found that another vAll was made, it may
*' be of dangerous confequence, and will overthrow the ftatute
" of frauds, S3c, [as to revocation of wills'] to conftrue this a
" revocation without knowing the contents ; for no will can be
•* fecure againft the fwearing of a new will^ iLthere be no ne-
" ccffity ot (hewing it or proving what it was."

Serjeant ftfr/iin^ in reply — It is objefled that the jury fay
they arc ahogether ignorant what is beconje of the will in 175^*
that they never faw it, fo had no evidence of the contents
thereof, or that the difpofition made thereby was different from
the difpofition in the mil of 1748. In anfwer to this, they
have found infaQ that the difpofition in the latter will was dij^
Jerent ; if they have found the evidence only of that fad it would
have been ill ; Mr. Lacy in his life-time might fhew the latter
mil to fome of the jury, and convince them he had made a
different difpofition ; the court cannot now fay that the juiy had
no evidence to find as they have done.

I contend that the firfl will docs not exlft, becaufe the jury
have found that' the teftator made a fecond will, and thereby
made a different difpofition, which is a revocation of the firft ;
fo there is no title found for the defendant, and the plaintiff
muft recover.

The court took time from lafl Trinity term until this term to
confider of their judgment, when three of the judges being of
opinion againft one that the plaintiff muft have judgment, they
delivered their xc(ptEki\e' of miotic Jeriatim,

Nares Juftice, (having ftated the fpccial verdiS) — It is found
ih^i Elizaoetk the wife qi William Roffe, Iclfor of the plaintiff, is

the

Sia . kii^aY Tfiiik 14 Gbo. tit l^Ui

ihe niece and heir at law of the teftator yohn Lacjy (6 the plain-
tiff's title is certain, and he muft recover, unlefs the tviU dt
1748, found by the jury in hac txrba^ under which the defendant
claims, be ftill fubfifting ) the queftion therefore is, whether tkaf
will oi 1748 is, or is not revoked by another will mtAt in 1756
found by the jury to be different^ but in what particulars is un-
known to them ; but they fay they do not find the teftator can-
celled his wiU of' 1756, or that the defendant dcftroyed it, and
what is become of it they are altogether ignorant*

, Here is a fecond will in writing found to be different frbm
the firft, which fecond zdll is not found to be cancelled or de-
ftroycd, thereof it muft be confidcred as in btintr^ and having
made a different difpofition from the firft, it is a revocation
thereof, aiid has defeated the defendant's title. The zvill belongs
not to the heir to keep, and confequently nottofliew; in plead-
ing he is not bound to profert; it is enough that there was a
fubfequent wiU. And as the latter may confirm or be confiflcnt
with the former, vet it may not be lo; and the confiftency is
not to be prefumedagainft an heir at law. Show. Pari, cafes 148.
efpecially as the latter wiil in this cafc^is found to be different
from the former. Where a man is a ftranger to a will and does
not claim under it, or to a deed and does no claim the thing
comprifed in the grant, (3c, he may plead without a profert».
10 Mp, 93. b. Bro. ^nflrans de fails ^ (3c, pi, 102. (3c, (3c^

The firft will is a general difpofition by the teftator of all tiis
real and pcrfonal eftate whaifoever to the defendant and her
heirs ; eight years afterwards he makes another xmlt^ and a dif
ySrr«^ difpofition^ but in what particulars is unknown; one can
fcarcely think he gave his chambers in LincMsAnn [the only
vremifes now in queftion] to a fingle wonian^ xkt fecond wxi
oeingcxprefly found to be difierent from* the jfr^? is inconfiftenl
therewith.

It has been faid at the bar that the court VnuR look into the
»///, but in this cafe no whole perfe& loft mll^ppcxcs^ and all pre*
fumptioh againft the heir is excluded, the court will never pre*
fume any thing againft him^ 1 Show, g^i.Carth. 8i.

This is a revocation within the very word, of ihtj^af* «g
Car. ft. ch. ^.feU. 6. which fays^ " No detnfe in writing fhau
" be reoocabU 0 therm fe than byfome other will or codicil in writ^
** ing^ (3c." Here is another hfiU in writing found by the jury
to be different from the formeri which is fumcient for me to de-
termine this to be a revocation. I am therefore of opinion that
, judgment ought to be given for the plaintiff.

Btachfitme

Hilary Term 14 Geo. III. 1774. 51 i

Black/tene Juftice — ^Upon firft confidering thf« fpccial vercKft
I thought it imperfeS, infomuch that no judgment coiiki be
given thereupon, and therefore that a vemireftictas dt nffoo muft
have ifTued ; but. upon more mature coniiderationy I now think
the verdiAis fufBciently perfeft, hot repugnant or inconffflent in
itfelft and'tbe jury have found all the fafls they can find.

The principal fafis found are, i. That Elxzahtlh the wife of
William Ro^t is the niece and heir at jaw of the teftator. ft. That
(he is disinherited by the will in i748« And 3. That the teftator
in 1756 made and duly publifhed another zt/tV/; that the difpofitioff
made therein was d^erent from the difpofition in the xmU of
'748, but in what particulars is unknown ; but the jurors fay that
they do not find that the teftator cancelled his will of 1756, or
that the defendant deftroyed the fame, but what is become
thereof* they fay they are altogether ignorant.

The queftion is, whether the faSs thus found amount to a te^
vocation of the firft will^ fo as to let in the heir at law ?

I am of opinion that the xvill of 2748, is not revoked at com*
mon law, nor fince tbe^A^. 29 Car. 2. cA. a . and I rely upon the
cafe of Sir Henry KxlUsretfs zvill; in ejeclment, the jury found
a fpecial verdid, that oir Henry Kiltegrew was feifed in fee of the
lands in queftion, and on the 12th day of November 1644, made
his will m writing, and devifed the premifes to Mrs. JSerUey
for life, remainder over to Iknry Killegrew [Sir Henry*t natunu
fon] in tail, and that he made Mrs. Berkley \\\% executrix ; that
afterwards in 1645 the faid Sir Henry KilUgrew made a&ud tefia*
tnentum^ but what was contained in the faid laft-mentioned xmlt^
t)r what was the purport or effeft thereof ,juraiorcs penitisigna^
rani ; after this cafe had been argued in the moft folemn manner,
it was adjudged that the fubfequent xviU which did not appear
was not a revocation of the former. Pari, cafes 146. 3 iSod*

203. Salk. 592. Hard. 374. From the determination of this

great cafe in parliament it follows, that a fecond xuiU^ unlefs the
contents thereof be found, is not fufficient to revoke a former
will; for it may or may not be confiA^nt with the former; a
fecond wiU of lands may be fo ^lade as to be confiftent and ftand
with a former toill of the fame lands. Coward verfus Marflml^
Crc. JEIiz* 72 1 . How can it be known that the fecond will in the
prefent cafe was a revocation of the former, when it never was
found or feen ; I think the cafe before the court falls within the
reafon of the three ban)ns in Hard. ^71. it is not found that
any lands were devifed by this fecond mil, fo that it may or
may not be confiftent with the former, and where the matter
Hands indiffcrentir th^court will not fuppofe a revocation of a

1 former

Sia . Hilary Tfiiik 14 Geo. tit l^Ui

\he niece and heir at law of the tcftator ^okn Lacy, To the plain-
tiff's title is certain, and he muft recover, unlefs the tvili o(
1748, found by the jury in kttc verba, under which the defendant
claims, be ftill fubfifting ) the queftion therefore is, whether thiU
mil of 1748 is, or is not revoked by another will mdde in 1756
found by the jury to be different, but in what particulars is un-
known to them ; but they fay they do not find the teftator can-
celled his taiU oi 1756, or that the defendant dcftroycd it, and
what is become of it they are altogether ignorant.

, Here is a fecond zvill in writing found to be different frbm
the firft, which fecond xtMl is not tound to be cancelled or de-
ftroyed, thereof it muft be confidered as in b6ri(r, and having
made a different difpofition from the firft, it is a revocation
thereof, and has defeated the defendant's title. The will belongs
not to the heir to keep, and confequently not to (hew; in plead-
ing he is not bound to profcrt; it is enough that there was a
fubfequent wiU. And as the latter may confirm or be confifient
with the former, vet it may not be fo; and the confiftency \i
not to be prefumea again ft an heir at law. Show. ParL cafes 148.
efpecially as the latter mil in this cafe is found to be different
from the former. Where a man is a flranger to a will and does
not claim under it, or to a deed and docs no claim the thing
comprifed in the grant, (3c. he may plead without a proferU
10 Rip. 93, b. Bro. Ifionjirams defaits, (3c. pi. 102. &c. &c^

The firft will is a general difpofition by theteftator of all tis
real and perfonal eftate whalfoever to the defendant and her
heirs ; eight years afterwards he makes another wilt, and a dif-
^r«^ difpofition, but in what particulars is unknown; one can
fcarcely think he gave his chambers in Lifi coin's -inn [the only
vremifcs now in queflion] to a fingle woman $ xht^cond wilt
oeingexprefly found to be different iiomih^jirjl is incoflfiftent
therewith.

It has been faid at the bar that the court Vnuft look into the
will, but in this cafe no whole perJeEl loft wilt ^ppezrs^ and all pre-
fumptioh againft the heir is excluded, the court will never pre*
fume any thing againft him^ 1 Show. g^i.Carth. 8i.

This is a revocation within the very word, of thtjiai* ag
Car. ft. ch. ^>Jeil, 6. which fays,. " No detnjiin writing Jkalt
" be revocable otherwije than byjome other zoitt or codicil in wrii^
** ing, &c" Here is another vnll in writing found by the jury
to be different from the formeri which is fumcient for mc to de-
termine this to be a revocation. I am therefore of opinion that
. judgment ought to be given for the plaintiff.

Btacitflone

Hilary Tehm 14 Geo. III. 1774. 51 i

Elackftene Juftice — Upon firft confidering thfs fpccial rercKft
I thought it imperfed, infomuch that no judgment coilkl be
given thereupon, and t,faereiore that a vemiujkaas de n0vc muft
have ifTued ; but, upon more mature coniiderationy I now think
the verdiAis fufBciently perfed, not repugnant or inconffflent in
itfelf^ and'tbe jury have found all the fa6b they can find.

The principal fa£ls found are, i. That Elizaieih the wife of
William Roffe is the niece and heir at jaw of the teftator. ft. That
(he is difiikherited by the mli in i748« And 3. That the teftator
in 1756 made and duly publifhed another iz;t7/; that the difpofitioff
made therein was different from the difpofition in the mil of
27489 but in what particulars is unknown ; but the jurors faythat
they do not find that the teftator cancelled his mil of 1756, or
that the defendant deftroyed the fame, hut what is becoine
thereof* they fay they are altogether ignorant.

The queftion is, whether the fa£b thus found amount to a f^«
vociition of the firft willy fo as to let in the heir at law ?

I am of opinion that the mil of 1748, is not revoked at com*
mon law, nor fince ihe^ai. 29 Car. 2. cA. 3 . and I rely upon the
€i^(€ of Sir Henry Killegrew*s will; in ejeclment, the jury found
a fpecial verdid, that oir Henry Killegrew was feifed in fee of the
lands in queftion, and on the 12th day of November 1644, made
his xmU in writing, and devifed the premifes to Mrs. Berkley
for life, remainder over to Henry Killegrew [Sir Henry's natural
fon] in tail, and that he made Mrs. Berkley his executrix ; that
afterwards in 1645 the faid Sir Henry Killegrew made a&ud tefla^
ftuntumy but what was contained in the faid laft-mentioned xmU^
t)r what -was the jpurport or effeft thereof ,juratores peftftisigno^
rani; after this cafe had been argued in the moft folemn manner,
it was adjudged that the fubfequent zviH which did not appear
was not a revocation of the former. ParL cafes 146. 3 Mod.

203. Soli. 592. Hard. 374. From the determination of this

great cafe in parliament it follows, that a fecond zuiUy unlefs the
contents thereof be found, is not fufficient to revoke a former
will; for it may or may not be conQjRcnt with the former; a
fecond will of lands may be fo piade as to be confiftent and ftand
with a former mil of the fame lands. Coward verfus Mar/halt
Cro. £Iiz* 72 1 . How can it be known that the fecond will in the
prefent cafe was a revocation of the former, when it never was
found or feen ; I think the cafe before the court falls within the
reafon of the three ban)ns in Hard. ^71. it is not found that
any lands were devifed by this fecond xuill^ fo that it may or
may not be confiftent with the former, and where the matter
Hands uidiffertntir th^court will not fuppofe a revocation of a

1 former

the niece and heir at law of the teftator yohn Lacy^ fo the plaiti*
tiff's title is certain, and he muft recover, unlefs the will di
1748, found by the jury in kite vcrba^ under which the defendant
claims, be ftill fubfifling ) the queftion therefore is, whether that
mil of 1748 is, or is not revoked by another will mdde in 1756
found by the jury to be different^ but in what particulars is un-
known to them ; but they lay they do not find the teftator can-
celled his will of' 1756, or that the defendant dcftroyed it, and
what is become of it they are altogether ignorant.

, Here is a fecond tvill in writing found to be different from
the firft, which fecond xvUl is not found to be cancelled or de-
firoyed, thereof it muft be confidered as in Mn/r, and having
made a different difpofition from the firft, it is a revocation
thereof, arid has defeated the defendant's title. The nnll belongs
not to the heir to keep, and confequently not to (hew; in plead-
ing he is not bound to projert: it is enough that there was a
fubfequent wiU. And as the latter may confirm or be confiftent
with the former, vet it may not be {q\ and the confiflency is
not to be prefumed again ft an heir at law. Show. Pari, cafes 148.
efpecially as the latter will in this cafe is fount! to be different
from the former. Where a man is a ftrangcr to a will and does
not claim under it, or to a deed and docs no claim the thing
comprifed in the grant, (3c. he may plead without a prqfert^
10 Rep. 93. b, Bro. M^nflrans defaits^ &c. pi. 102. &c. &c^

The firft mil is a general difpofition by the teftator of all tis
real and pcrfonal eftate whalfoever to the defendant and her
heirs ; eight years afterwards he makes another wilt, and a dif--
ferent difpofition, but in what particulars is unknown \ one can
fcarcely think he gave his chambers in LincoltCsAnn [the only
vremifcs now in que ft ion] to a fingle woman ^ ^xtJecondwiA
ocingexprefly found to be diflferent trom'thejfry? is inconfiftent
therewith.

It has been faid at the bar that the court VnuR look into the
»i//, but in this cafe no whole perfe6l lafi will ^ippczrs^ and all pre*
fumptioh againft the heir is excluded, the court will never pre*
fume any thing againft him^ 1 Show. g^tXarth. 81 •

This is a revocation within the very word, of the ^4/. 29
Car. ft. ch. ^.ft£l. 6. which fays>. ** No dexnft in writing Jkall
" ht revocable oikerwije than byfome other mil or codicil in wrii^
** ing^ &c." Here is another zvill in writing found by the jurj^
to be different from the formeri which is fumcient for me to de*
termine this to be a revocation. I am therefore of opinion that
. judgment ought to be given for the plaintiif.

Btackfione

Hilary Tehm 14 Gfio. III. 1774. Sli

Blackfiene Juftice — ^Upon firft confidering this fpccial rerdift
I thought it imperfe£i, infomuch that no judgmefit couki be

S'ven thereupon, and t,herefore that a vemiu facias de n^tfO muft
ive ifTued ; but, upon more mature coniideration^ I now think
the verdiAis fufBciently perfe£l, iiot repugnant or inconffffient in
itfelf^ and-tbe jury have found all the fans they can find.

The principal fafts found are, i. That Elizaheih the wife of
William Ro^t is the niece and heir at jaw of the teftator. ft. That
(he is disinherited by the will in 1748* And 3. That the teftator
in 1756 made and duly publifhed another zt/tV/; that the difpofitioff
made therein was d^ercnt from the difpofition in the will of
X748, but in what particulars is unknown ; but the jurors faythat
they do not find that the teftator cancelled his mil of 1756, or
that the defendant deftroyed the fame, but what is becoise
ttiereof, they fay they are altogether ignorant.

The queftion Is, whether the fafis thus found amount to a re*
vocation of the firft wiUy fo as to let in the heir at law ?

I am of opinion that the toiU of 1748, is not revoked at com*
Bion law, nor fince ihtjlat. 29 Car, 2. cA. a . and I rely upon the
cafe of Sir Henry Killegrew^s will; in ejeclment, the jury found
a fpecial verdift, that §ir Henry KiUegrew was feifed in fee of the
lands in queftion, and on the 12th day of November 1644, made
his wiU in writing, and devifed the premifes to Mrs. JBerUey
for life, remainder over to Henry KiUegrew [Sir Henry's naturiu
fon] in tail, and that he made Mrs. Berkley hi$ executrix ; that
afterwards in 1645 the faid Sir Henry KiUegrew made aiiud tefia*
tnentum^ but what was contained in the faid laft-mentioned xoill^
x>x what was the jpurport or effeft thereof ^juraiores penitisigna*
rani; after this cafe had been argued in the moft folemn matmer*
it was adjudged that the fubfequent will which did not appear
was not a revocation of the former. Pari, cafes 146. 3 Mod.

203. SaU. 592. Hard, 374. From the determination of this

great cafe in parliament it follows, that a fecond zviU^ unlefs the
contents thereof be found, is not fufficient to revoke a former
will; for it may or may not be confUlent with the former; a
fecond will of lands may be fo ^ade as to be confiftent and ftand
with a former zvill of the fame lands. Coward verfus Mar/halt
Crc. £liz. 72 1 . How can it be known that the fecond will in the
prefent cafe was a revocation of the former, when it never was
found or feen ; I think the cafe before the court falls within the
reafon of the three banms in Hard. 371. it is not found that
any lands were devifed by this fecond will, fo that it may or
may not be confiftent with the former, and where the matter
^nds indifferentir th^court will not fuppofe a revocation of a

1 former

Sia . itiLARY Tfiftk 14 Geo. tit l??4i

the niece and heir at law of the teftator yokn Lacy, Co the plain-
tiff's title is certain, and he muft recover, unlefs the tviUot
1748, found by the jury in kac verba ^ under which the defendant
claims, be ftill fubfifling $ the queftion therefore is, whether thai
will of 1748 is, or is not revoked by another wiU mftde in 1756
found by the jury to be different, but in what particulars is un-
known to them ; but they fay they do not find the teftator can^
called his awTZ of 1756, or that the defendant dcftroycd it, and
what is become of it they are altogether ignorant.

, Here is a fecond will in writing found to be different frbm
the firft, which . fecond laUl is not found to be cancelled or de-
firoyed, thereof it muft be confidered as in btin/r^ and having
made a different difpofition from the firft, it is a revocation
thereof, and has defeated the defendant's title. The zmtt belong
not to the heir to keep, and confequently nottofliew; in plead-
ing he is not bound to profert; it is enough that there was a
fubfequent will. And as tne latter may confirm or be confiftent
with the former, vet it may not be {o\ and the confiflency is
not to be prefumea againft an heir at law. Show, ParL ca/h 148.
efpecially as the latter mtt in this cafe' is found to be different
from the former. Where a man is a ftranger to a xviU and does
not claim under it, or to a deed and does no claim the thing
comprifed in the grant, (3c, he may plead without a profert*
10 Rep. 93. b. Brc» l^nflrans de fails, kSc. pL 102. 0c, fijc*

The firft will is a general difpofition by the teftator of all liis
real and perfonal eftate whalfoever to the defendant and her
heirs ; eight years afterwards he makes another mU, and a drf-
ferent difpofition^ but in what particulars is unknown ; one can
fcarcely think he gave his chambers in Lincoln s-inn fthe only
vremifes now in queftion] to a fingle woman; xhtjecond uni
Deingexprefly found to be different from the jfr^? is incoafiftent
therewith.

It has been faid at the bar that the court Ynuft look into the
will, but in this cafe no whole perfe£l lafi willzppcajn^ and all prc^
fumptioh againft the heir is excluded, the court will never pre*
fume any thing againft himi 1 Skew. g^i.Carth. 8i.

This is a revocation within the very word, of the Jtui* tg
Car. 2. ch. ^.feii. 6. which faj's,. ** No devtji in writing Jkail
" be revocable otkerxvife than byjomt other wiH or codicil in writ*
" ing, &c." Here is another vjill in writing found by the jvrf
to be different from the formen which is fumcient for me to de-
termine this to be a revocation. I am therefore of opinion that
. judgment ought to be given for the plaintiff*

Blackjone

HiLAkY T£fiM 14 Gfio. III. 1774. 5tl

Black/fene Juftice — ^Upon firft confidering ilm fpccial rerjift
I thought it imperi'e3, infomuch that no judgmem cotiM he
given thereupon, and therefore that a voire facias it nfftjo muft
have iflued ; but, upon more mature con(ideration« I now diink
the verdi£lis fufGciently perfeS, not repugnant or inconitflent in
itfelf^ and-the jury have found all the fa£b they can find.

The principal fa£b found are, i. That Elizaieih the wife of
William Roffe is the niece and heir at Jaw of the teftator. &. That
(he is difiikherited by the mU in 1748. And 3. That the teftator
in 1756 made and duly publiihed another tt«7/; that the difpo&tiotf
made therein was d^erent from the difpofition in the wiU of
<748> but in what particulars is unknown ; but the jurors faythat
they do not find that the teftator cancelled his wia of 1756, or
that the defendant deftroyed the fame, but what is become
thereof^ they fay they are altogether ignorant.

The queftion is, whether the fafts thus found amount to a re^
vocation of the firft willt fo as to let in the heir at law ?

I am of opinion that the zvill of 1748, is not revoked at com«
mon law, nor fince tbe^«^. 29 Car, 2.ck.Q. and I rtly upon the
cafe of Sir Henry KiiUgrew's zvill; in ejeclment, the jury found
a fpecial verdift, that Sir Henry Killegrew was feifed in fee of the
lanids in queftion, and on the 12th day of November 1644, made
his will m writing, and devifed the premifes to Mrs* Btrktey
for life, remainder over to Henry Killegrew [Sir Henry*% natural
fon] in tail, and that he made Mrs. Berkley his executrix ; that
afterwards in 1645 the faid Sir Henry KilU^rcw made aUnd Ufla*
fnentum^ but what was contained in the faid laft-mentioned wil/^
or what was the purport or effeft ihereoUjuraiorespenititsigna^
rani; after this cafe had been argued in the moft folemn manner,
it was adjudged that the fubfequent toiU which did not appear
was not a revocation of the former. Pari, cafes 146. 3 Mod,

203. Salk* 592. Hard. 374. From the determination of this

great cafe in parliament it follows, that a fecond xmll^ unlefs the
contents thereof be found, is not fufiicient to revoke a former
Tvill; for it may or may not be coniUlent with the former; a
fecond wiU of lands may be fo ^lade as to be confiftent and ftand
with a former will of the fame lands. Coward verfus Mar/hal^
Cro. Eliz. 72 1. How can it be known that the fecond will in the

Jirefent cafe was a revocation of the former, when it never was
bund or feen ; I think the cafe before the Court falls within the
reafon of the three barons in Hard. 371. it is not found that
any Ismds were devifed bjr this fecond will^ fo that it may or
may not be confiftent with the former, and where the matter
ilaadf indiffcrmter th^court will not fuppofe a revocation of a

1 former

5U. Hilary Term U Geo. til. 1774.

former will fokmnly made: it may be concerning other lands, or
no lands at all; in fhort, it may be an exafl tranfcript of the
former^ for any thing that is found by the jury.

It is obje£led for the plaintiit that it is found, that the dif-<

!)ofition made in the fecond mil was different from the difpo*
ition in the former ; different in what? we are totally ignorant;
no body can anfwer thefe doubts ; but they muft be anfwored,
in my opinion, before we can fay this is a revacation; any giving
of a ring or mournings may be different, but might Hand and be
conCIlent with the zuill of 1748.

Nothing {hall be prefumed upon a fpecial verdifl, nothing
fpecifically appears touching the will in 1756, and the argument
lor its being a revocation^ ieems to me t(^ be fallacious, for it
doth not appear what were the contents, thereof, et de non ap-^

parentibus et non exijlentibus eadem ejl ratio.' Prefumptions arc

always in the affirmative, there cannot be any negative prefump-
tions; no prcfumptfon (ha)i arife from a diverjity^ wvXeX^tkat
s Atk. 171. divtrjity be fhewn and found; if I under Aand ihcjlat, of 29
1 Vefcy 19a. £^^^ 2. of Frauds^ feS. 6. If a will is revoked by writixg^ that
• writing muft appeal-; there -is not a cafe in the books of a re-
vocation^ unlefs it appears; the prefent attempt is fetting up
another will that doth not appear. The opinion of Lord Hale in
Hard. 376- " That a fecond fubftantive independent will,
• •* though it doth not by exprefs words import a revocation of
" a former a;;//, nor paffes any land, will yet amount in con-
" flruftionof law to a revocation;** cannot now be laWi

It was faid at the bar that revocations of wills have been con-
flrued favourably for the fake of the heir at law; but I think
that the title oi the heir by inheritance, is not better titan the
title of a devifec under a will folemnly made, efpecially in a
commercial country; and a will (hall not be revoked by a fub-
(equent writing unfej's that writing be alfo agood will within tlie
jftatute oijrauds, Egglejlen et al' verfus Speie^ Mich. 1 fV, & AL
3 Mod, 2^8. This caib fcems not to favour the heir, and is al-
lowed in I Peer JVms. 344. And according to the doElrine laid
down in that cafe it is incumbent upon the heir to make out,
and fiiew to the court that the fecond will revoked the firft; it
mull not reft in prefiimption or conjeflure, the fecond will muft
appear, or the contents thereof muft be found; I therefore
thnik it our duty, under the Jlatute oi frauds^ feS. 6. not to fct
up a fecond wiu in the dark, which neither we nor the jury
ever faw, and are wholly ignorant of the contents thereof; the
heir might av<ul himfel/ by deftroying the fecond will to defeat

both

Hilary Term 14 Geo. III. 1774. 5IS

both the mils. Upon the whole, Iain of opinion that judgment
ought to be given for the defendant.

G^a/flf Juftice — I intirely agree with my Brother Nares^ that
judjrmcnt ought to be given for the plaintifiF, and fliall confine
my ideas tothc words of the fpecial verdift, touching the real
cftate of the teftator, and not meddle with the perfonal eftate,
becaufe the ecclefiaftical court has the proper jurifdiE^ion as to
that. The point now before the court leems to me to be quite
noxfd^ and not like the cafe of Hitckins and Bajfet^ which is fo
much relied upon for the plaintiff; the jury in that cafe found
the teftator made aliud tejlamentum^ but it feems to me, if they
had found that Sir Henry KiUegrew made aliud tejlammturri dij^
Jereni from his former will it would have been adjudged a re*
vocation thereof; in the prefent cafe it is found that Mr. Lacy
by his will of 1756 made a different difpolition from the dif.
pofition in his mil of 1748« but in what particulars is unknown
to the jurors;, however it is clear the firft and fecond zmlldxc
different; the defendant had accefs to the firft will^ therefore Qie
muft have had accefs to the laft, and ouglit to produce it, as (he
claims under the teftator's lafi will^ or the heir, whofe title to the
fee.fimple is clear, muft have the land ; the jury have found that
the latter will was executed in the prefence of three fubfcribing
•witneffes, therefore it may fairly be prefumed it was a devife
of land ; and being found to be different from, is a revocation
of the former.

Lord Chief Juftlce De Grey — After fo full argument of this
cafe, I ihall fliortly point out the ground of my opinion*

The firft thing that occurs upon this record is, that the heir
has an original title to the eftate of her anceftbr, who is the
teftator; the dcvifee claims a derivative title under him,'but that
title wili not be good and fufficient if it was not intended by
the teftator at the time of his death; when a man hath once
declared properly what his mind \% as to the difpofition of his
lands, upon doing that^ he is prefumed to continue of the fame
mind tijl his death, unlefs tne contrary appears; the fame
prefumption will ftand upon a fecond will or declaration of tiis
mind properly.

Ar other thing — As a man may make his idtt gradatim, and
by different inftrumcms, fo he may revoke it partly or totally ;
all the inftruments, when compared with each other, may either
be confiftent, ftand all together and conftitute one will^ or the
latter may partly or wholly revoke the former ; a codicil is jire-
fumed to confirm dLvnllf the proper inftrument to revoke a mil

Vol. III. LL i«

514 HiLABY Team 14 Gso. IIL 1774.

is another fubfequcnt mil; but if two mils ve confident, or
inay ftand together, they ought to fiand together, as in the cafe
of Cro. EMz. 7a ». Coward verfus Marjhd^ where the latter iwi?
did not revoke the former, but might well ftand with it.

In the cafe of Hiichins verfus BcJTcU^ the court of King's
Bench, at firH, had great doubt whether a (econd vjUI without
looking into the contents the^'eof, would not revoke the firil
wilti but at length it was determined in that court, and ulti«
mately in the Houfe of Lords, that it would not revoke (he firft
tmlL Thus I take the law to ftand at prefent ; although this be
fo, yet when the contents of a fecond imll are fo far found as in
the prefent cafe, I am convinced thilt this mil of 4748 is not
the lad will of the teftator,

Suppofe the will of 1756 had almoft been totally deftroyed by
rats or vermin, and only thefe few words of the teftator's owq
liand- writing had remained legible, viz. this is my lajl will 3^»>
fflaie^ and evidence had been given to a jury that the mil onco
exiftcd entirely, that it was properly attefted by three witneffes,
find that the difjpofition therein was different from the wiU in
1748, I think It would have been fufficient evidence, that this
was a revocation thereof. So fuppofe the whole of a fublequcAt
uill was deftroyed except only tne beginning^ thereof in thefe
words, viz. *• As to all my eflaU I givt^* and the ending with
the teftator's name, this would be evidence of a total revocation
of a former will of a tefiator, and that he meant a new difpofu
tion of his eftate thereby, and whoever claims under his laft
zvitl^ muft flieW that this fubfecjuent xviU once exifted. and thai
the teftator thereby devifed his eftate to fuch perfon claiming
under the teftator s laJl mil, — So fuppofe thus much of Mr.
Lacys will of 1756 had appeared and been found, viz. '* I Jfokn
*' iMcy have given my eftate by my will in 1.748 to Frances
*• Hiirwpod, but now I intend to give my eftate differently,'*
and all but thofe words liad been deftroyed, this would have
been a revocation, and th^ devife^ could not have taken under
ihefirftwiV/,

It is found by the fpecial verdi3 that Mr, Lacy's eftate, and
the ftate and circumftances of his kindred and fainily were the
fame in 1756 as in ^748 nearly 5 that the defendant Mrs. Har-
ivopd is no relatioi^ to him at all*

Another thing — Mr, Ijicy made and duly publifted his wUlol
1756, in the prefence of three fubfcribing witnefles who duly
«ittefted the fame, fo th^t one catmot g^t it out of one's mind
that this W9S a tiM of his lamds; and it is fpMnd tb^ he. thereby

intended

Hilary T^am 14 Gso. III. 1774. Sl5

intended to make a Sffcrmt dsfpofitlon thereof; we know his
former intention was changed as to the difpofition of hi^ eftate^
but in what particulars we do not know ; the defendant claims
under the laft will^ the laft vnU is found to be made in the vear
ty^S^ therefore it is incumBent on her to produce and mew
it, and that Jhe has a title under it, and was the lail objefi of
the tefiator's benevolence; and then if it will ftand with the
former, flie will uke ; flie muft fliew the laft will becaufe ihe
claims under a derivative title, under Mr. Zac^'s laft vnll.

If we eftablifli the mlloi 1748 we muft prefume that the laft
inftrument of 17 j6 did not at all affe£l the teftator's real efiate;
fomething or otlier muft be prefumed, or the defendant cannot
take under Mr. Lacy't laft will^ but there fliall be no prefumption
againft the heir at law.

Suppofe a man makes two wills without any date, and by one
he fives his lands to A. and by the other he gives the fame
lan£ to B. neither of them fliall take, but the lands (hall de-
fcend to the heir, although the teflator'« intention is moft clear
againft the heir, and that either A. or B. fliould have the
lands.

• The laft -2^ being found to be different from the former, is
a revocation thereot until you compare theit), and fee that they
can ftand together, in this caie efpecially where the Jury have found
that Mrs. Harwood hath not deftroved the laft ; if ttie jury had
found that flie deftroyed the latter, (the contents being unknown^
it would have been prefum^l againft her; the heir at law mutt
take the land becaufe it is ffbt effe£lua]Iy difpofed of: the heir at
law is never called upon to produce the will of his anceftor ;
but it would have been incumbent upon a devifee under the mU
of 1748, in pleading, to have fliewn that the fecond will would
ftand with the former.

The Jury fay that they do not find that the teftator cancelled
his wilfoi 17561 whereby it appears he intended to ihake a dif.
Jereni difpoution ; and we muft take it, that fuch his intention
continued until his death.

There are in the books many cafes of revocations of wills^ not
mentioned in ih&Jlatute oijratds^ 29 Car, a. cap. 3. the 6th
JcQ. whereof runs .thus, viz. " No devife in writmg of lands,
** &C. or any caufe thereof fliall be revocable otherwife than
" by fome other will or codicil in writing, or other writing de-
" claring the fame, or by burning, cancelling, tearing or obli-
" terating the lame by tne teftator himfelf, or in his prcfence,
*' or by his direfUoas and confent ; but all devifes andbequcfts

L L a •* oi

516 Hilary Term 14 Geo^ III. 1774.

** of lands fliall remain and continue in force until the fame
•• be burnt, canccUedi torn, or obliterated by the tefiaior, or his
** dire£Uons, in manner aforefaid, or unlefs the fame be altered
*• by fome other will or codicil in writing, or other writing of
" the devifor ; figned in the prcfence of three or four witncffe$
•• declaring the fame ; any former law or ufage to the contrary
•* notwithftanding."— — A man mAes his will of lands and
afterwards makes a bargain and fale without inrolment, or a feoff-
ment without livery, or a fettlement upon an intended marriage
which never takes effeft, or marries a woman without making
any fettlement, thefe are all total revocations of his txnU; or if
a woman makes her wilt and afterwards marries, this is a re-
vocation, although (he furvives her huftand; a iportgage is a
revocation ^ro tanio; thefe are all held to be revocations though
not mentioned in ihtjlatute o^ frauds; and the cafe now before
us feems to me not to be a revocation within thatjlaiute: but
however that be, the jury having found that Mr. Lacy duly
made a latter will in 1756 (different from the former), and
having found that it is cancelled or deftroyed, it ftill exifts, and
whatever are the contents thereof, it is that under which Mrs,
Harwood muft claim. I am therefore of opinion that judgment
' rauft be entered for the plaintiff.

of e^r behg Judgment for the ^plaintiff.

brought in

the King*i B«n^» that court uoanimcufly reverfed tb\t judgment ; and a writ oS error being broqglit
in parliament, the Houfe of (jordi, 9th May I77S« (upon hearing the opinion of tbeBaroot of the
Exibequer^ in favour of the judgment of the court of Kwg*t Beivb) affirmrd the judgment of tbtt
court; (b th»t there wnfiiaifyjiutpiuntfir thi difiadsntt ^ BUck. Rep. 937.

a Black. Rep. Goodtitlc, on the dernifc of Alexander Newman, ver/u^
93** Martha Newman, widow. C. B.

Ke'h^fe irJECTMENT of lands in the county of MiddU/ex, tried
and recei^"ing ^^^ 7^^ ^f May 1773, whcn a vcrdltl was found for the

rents of three plaintiff, fubje£l to the opinion of tliis court on the following
wotherM**** cafe refeyved, which ftates that,

goardiany is a fufficient feifin by a pofthpmous fon, who died ^ &▼« week^ oldy to b^ the defceat to hit
iilters-of the half-blood and convey it to a collateral hclr.J

The cifc. Alexander Newman, the late huiband of the defendant Martha

Newman^ was the purchafer in fee of the premifes in queflion,
in the plaintiff's declaration in eje£lment mentioned, which
confift of the four freehold mefTuages or tenements of inherit
ance herein-after particularly mentioned, tfiz.

\Jl. A meffuage late in the tenuj>of Andrews,
zd. Another late in the tenure of Mr. Beer.
3</. Another late in the tenure of C/ac/i.

^h.

Hilary ^EmJt 14 Geo. Itt. 1774, 917

j^ih. And another late in the tenure of Trcdway,

That Alexander Newman the putehafer had two wives, and
had iflue by his firft wife two daughters^ who were both living
at the death of their fathefi who died feifed on the founh day of
juni I760, leaving the defendant Martha Newman his widow,
his fecond wife Ofifient with a fon, who was bom fix weeks after
the death of the faid Alexander Newman the father, and was
baptized by the name of Alexander^ and lived five weeks and
.three days^ and then died.

And that the leflfor of the plaintiff is the heir at law of thd
said Mexando' Newman the infant fon.

That with reijpe£l to the firft of the faid mefluages late in th«
occupation of Andrews^ the fame was in the occupation of the
faid Alexander Newman the purchafer who died in the pofleflion
thereof I and after his death, the fame continued in the pofleflion
of the faid defendant Martha his widow^ and of the two daugh^
iers of the faid AkxOnder her hufband who refided with her, and
were both under age at the time ot their father's death, but are
fince married. And the faid infant fon was alfo born in the fame
houfe^ and died therein^

^d. As to the fecond of the faid meifua^es in the occupation
of Mr. Betr^ the faid Mr. Beer' lived therein at the time of thd ^

death of the faid Alexander Newman^ and has continued in pof-
feflion thereof ever fincet as tenant from year to year^ and hia
rent payable quarterly ; and he paid to the defendant the widow
of the laid Alexander Newman^ the quarter's rent which accrued
due next after the death of the faid Aleicander her hufbandi
and has conftantly paid his rent from that time to the faid
defendants

^d. As to the third hleffuage iit the ocdtipation of the faid
Claci; the faid Gack was in the pofTeflion thereof when the
faid Alexander Newman died, and hired the fame by the week^
and paid fouler rent to the defendant the Widow, after the death
of the faid Alexander the father, before the birth of the fon^ and
during his life-time^ and fome further rent after his death.

4th. As to the fourth melTuage in the occupation of the faid
Tredway, the faid Tredway was in pofFeffion thereof when the faid
Alexander Newman diedi and contmued in pofFeffion two months
afterwards^ and paid rent to the defendant the widow by weekly
payments^ fome of which was paid betore the birth of^ the /&«^
and fome paid afterwards during his life, and the houfe has been
fince inhabited by different tenants.

LL 3 The

51 a Hilary Tebm 14 Geo. III. 1774.

The qtleftion for the opinion of the court is, whetlier, under
thefe circumftances, the plaintiff is intitled to recover in this
eje&nent any and what part of the above-mentioned premifes ?

This cafe was well argued at the bar in Trinity term lall by
Serjeant IValker for the plaintiff, and Serjeant Glynn (or toe
defendant ; and in Michaelmas term lall by Serjeant BurUnd fot
the plaintiff, and Serjeant Hill for the de^dant.

^•rjeantWal. It was argu^d for the plaintiff, that the infant pofthumous
^^'ynT^jJon died loft a3ually feifed in fu by defceni of the premifes
trimiaft. j^ queftiou \ that upon the death of the father the premifes de«
fcended to his two daughters by the firft venter, who, together
with the mother being enjient with a fon, were then in rightful
poffeflion; that tipon the birth of the fon, fix weeks afterwards,
the eflate of the daughters was divelled out of them, and the
mother then became and was guardian infocage to her fon, and
that her poffeflion, and receiving the rents and profits as ftated in
the cafe, was the a£lual poffemon zsAfeifin of the fon, and
will carry the defcent of the premifes to the leilbr of the plain-
tiff, who is his heir at law. i h^. \\. h. Bro. Defcent, fl^ 58*
DoB. and Stud* Whitcomhe verfus Whitcombe, Preced. in Cane.
28o« where the entry of the mother as guardian infocage to her
infant fon fhall gain zpoffeffiofratris. The poffeflion of a leffee
for years is the poflemon of him who has the freehold ; the
leffor of the plaintiff as heir at law to the infant fon, who by
^ bis guardian [his mother] was laft aSually fifed of the free^

hoidCT^^' hold, has a good title to recover : and Co. liti, 1 j, treating of
uet 41. S. p. the (Io£lrine of pojfejjio fratris^ and 3 Rep. 41, 42. RaUhfes
^^'c^p' ^€^ make this clear beyond a doubt.— A copyholder in fee
i3*Viiier, ^^ Hcence makes a leafc for years, the leffee enters, the copy*
512. ' holder having iffue a fon and daughter by one venter, and a ion
by another, dies ; the eldeft fon dies before admittance ; it was
adjudged that the land (hall defcend to the daughter of the
whole blood ; that the defcent of copyholds of inheritance fluJl
be dire3ed according to the maxims and rules of the common
law. A Rep* 2). moore i^^.pL 272. In the prefent cafe the
infkiit (on was \n, poircflion as much as it is poflible (or an. infant
to be, for he was borei, lived and died in one of the melTuages
in queltion ; which undoubtedly gives a title to the heir of ue

whole blood ^The law will prefume that the mother entered

rightfully as guardian to her intant fon, and not wrongfully.

Sefjeant For die defendant it was argued— That poffeffio fratris, is a

Glynn in very rigid rule and principle of law, which ought not to lie cx-

TCn. tenn tenied, but conflrued as tavburablc as may be in behalf of the

daughters in tlie prefent cafe, who are clearly Iwirs to their

father

UihARY Tfiftic i4 6sa tit. Iff 4, il^

faultier the pufchafei^ in fee» the infant fon being dead withotit
iflue.

That, to make a pofftffiofr^Ari^^ there bUght to be an aRual
Jiifin^ that a po^ble, bonftrudive ^^7^/^ in law^ is not fuffict^nl
to take the eftate from the daughters, and that the infant foil
Was never affuaUy feifed. It is not found or ftated in the cafe^
that his mother entered as his guardian^ but that (he and the two
daughters of her hufband continued in the pofleflion from the
time of his death, and that fix weeks after his death the Ton was
born, and died in the fame houfe ; that this was a continuance
of the oM eftate in herfelf and the daughters, or in the daugh-
ters onty, for the law will adtudge the pofleflion in thoft who
bad lawful right to have pofleflion, [namely] the daughters.-^
That the court cannot determine upon thie fa3s ftated in the
cafe, whether the mother was in pofleffion as guardian to her
fon, or how otherwife ; fiie had a riffht to have her quarentinei
{uit.) to continue in her late hufbanas capital mefluage for forty
days after his deceafe, Ak does continue, and at the end of th6
forty days the daughters are thert to take pofleflion. — Hiat it
does not appear by any a£l ftated in the caie whether Qie con*
tinued in pofleflioa ^& guardian to her infant fon, or as a tre/i
pc^tr^ or for her quartniine^ in order to have her doufer^ which
(he could not have without itV being afligned to her.

GouiJ Juftice — If dower be not afligned to her Within forty
days, may flie not continue until it be afligned to her? I think
the court would not turn her out until dower was afligned
to hen

Counfel for the defendant — It muft be admitted that the heir
has no right to turn her out before doWer be afligned to her. •

But the court is now upon the conftru3ion of a hard and
fevere law, which is not to be favoured; will the court then fay
that the mother held the lands as cuardian to her fon, when flie
might be in pofleflion and hold tne fame in fome other way»
or under fome other right, or pretended right, for any thing

that appears to the court by the ftate of the cafe? Upon the

death of the father, the law did caft the defcent in fee upoii
the daughters, who being in pofleflion were aSlually fiifid ; if
the daughters were a3ui3ly feifed of the freehold, thatjcifin ot
the freehold could not be divefted out of them by the birth of
a pofthumous fon, without an aSual entry and claim> for ^Jijfin
in law will not be fufficient in this cafe to carry the eftate to

the leflbr of the plaintiff". The Jiifin of the daughters isaffual

nnd infaSi but the Jeifin of the infant was only a/afin in lazo^al

LI. 4 moft:

^

516 Hilary Term 14 Geo^. III. 1774.

** of lands (hall remain and continue in force until the famo
•* be burnt, cancelledi torn, or obliterated by the teftaior* orbii
*• dircfHons, in manner aforcfaid, or unlefs the fame be altered
*' by fome other will or codicil in writing, or other writing of
•* the devifor ; figned in the prefence of three or four witncfles
** declaring the fame ; any former law or ufage to the comraiy
" notwithibnding.'*— — A man msfkes his mil of hnd% and
afterwards makes a bargain and fale without inrolment, or a feoff-
ment without livery, or a fettlement upon an intended marriage
which never takes effeft, or marries a woman withont making
any fettlement, thefe are all total revocations of his wiil; or if
a woman makes her will and afterwards marries, this is a re-
vocation, although flie furvives her hulband; a mortgage is a
revocation ^r(? tanto; thefe are all held to be revocations though
not mentioned in the Jlatute o^ frauds; and the cafe now before
us feems to me not to be a revocation within thatjlatule; bnt
however that be, the jury having found that Mr. Lacy duly
made a latter will in 1756 (different from the former), and
having found that it is cancelled or deftroyed, it ftill exifts, and
whatever are the contents thereof, it is that under which Mrs,
Harwood mufl claim. I am therefore of opinion that judgment
' muft be entered for the plaintiff.

* But a writ _ - - , « f • . • /r

of error being Judgment for the ^plaxni^Jf,

brought in

the King*i Bench, that court uoanimoufly reverfed th\i judgment \ and a writ of error Ei;j^g broa^liE
in parliament, the Houfe of J-ords, 9th May 1775, (upon hearing the opinion of thf Bironi of the
Exibequrr^ in fiivour of the judgment of the court of King^s Bench) affirmed the jocfgmcntof fb*t
court; fo that there W2ifiiaify judgment fir tbi defendant, % BUck. Rep. 937.

a Black. Rep. Goodtitlc, on the demifc of Alexander Newman, verfm
^3^' Martha Newman, widow. C. B.

j'rfoMh'^Te EJECTMENT of lands in the county of Middhfix, tried
andrccei^ing ^^ 7^^ of May 1773, whcn a verdift was found for \ht

renti of three plaintiff, fubjeft to the opinion of this court on the foHowiug
^"^^^l **'• caf(^ refejrved, which ftates that,

guardian, 11 a fufficient feiHn by a pofthtimous fon, who died at fiye wcek^oldy to bv the dcfcent tohii
iiiters-of the half-blood and convey it to a collateral hcir.J

The cstfc. Alexander Newman^ the late hufband of the defendant Martha

Newman^ was the purchafer in fee of the premifes in queftion.
in the plaintiff's declaration in ejeflment mentioned, which
confift of the four freehold mefluages or tenements of inherit
ance herein-after particularly mentioned, viz.

\fl. A meffuage late in the tenuj>of Andrews*
2d, Another late in the tenure of Mr. Beer,
3(/. Another late in the tenure of C/flc^.

1

i

lliLARY Term 14 Geo. ItL 1774, 917

4/^. And another late in the tenure of Trcdway.

That Alexander Newman the putehafer had two wives, and
tiad iflue by his firft wife two daughters^ who were both h'ving
at the death of their father^ who died feifed on the fourth day of
juni I760, leaving the defendant Martha Newman his widow,
his fecond wife enfient with a fon, who was bom fix weeks after
the death of the faid Alexander Newman the father, and was
baptized by the name of Alexander^ and lived five weeks and
.three days^ and then died.

And that the lefibr of the plaintiff is the heir at law of th^
said Alexander Newman the infant fon.

That with reljpe£l to the firil of the faid mefluages late in th«
occupation of Andrews ^ the fame was in the occupation of the
faid Alexander Newman the purchafer who died in the pofleflion
thereof^ and after his death, the fame continued in the pofleflion
of the faid defendant Martha his widow^ and of the two daugh-^
i^rs of the faid Alexander her hufl>and who refided with her, and
were both under age at the time ot their father's deaths but are
fince married. And the faid infant fon was alfo born in the fame
houfc) and died therein*

S^. As to the fecond of the faid mefluages in the occupation
of Mr. Beer^ the faid Mr. Beer' lived therein at the time of thd ^

death of the faid Alexander Newman^ and has continued in pof-
feflion thereof ever fincej as tenant from year to year* and hift
rent payable quarterly ; and he paid to the defendant the widow
of the faid Alexander Newman^ the quarter's rent which accrued
due next after the death of the faid Alexander her huiband^
and has conilantly paid his rent from that time to the faid
defendants

%d. As to the third ir&effua^e iit the occupation of the faid
Gack; the faid Clack was in the pofTefSon thereof when the
faid Alexander Newman died, and hired the fame by the week^
and paid fon^e rent to the defendant the Widow, after the death
of the faid Alexander the father^ before the birth of they^;i, and
during his life-time^ and fome further rent after his death.

4/^. As to the fourth melTuage in the occupation of the faid
Tredway^ the faid Tredway was in pofFeffion thereof Wheii the faid
Alexander Newman died^ and contmued in pofTeflion two months
afterwards^ and paid rent to the defendant the widow by weekly
payments, fome of which was paid betore the birth of^ the /^»^
and fome paid afterwards during his life, and the houfe has been
** ^e inhabited by different tenants.

1.L 3 The

516 Hilary Term 14 Geo^. III. 1774.

** of lands fliall remain and continue in force until the (ame
•• be burnt, cancelled/ torn, or obliterated by the teftator, or his
" dircftions, in manner aforefaid, or unlefs the fame be ahered
*• by fome other will or codicil in writing, or other writing of
•• the devifor ; figned in the prefence of three or four witncffe$
** declaring the fame ; any former law or ufage to the contrary
" notwithftanding."-— ^A man mafkes his mil of lands and
afterwards makes a bargain and fale without inrolment, or a feoff-
ment without livery, or a fetUement upon an intended marriage
which never takes effeft, or marries a woman without making
any fettlcment, thefe are all total revocations of his wiS; or if
a woman makes her will and afterwards marries, this is a re-
vocation, although fhe furvives her hufband; a mortgage is a
revocation ^ro tanto: thefe are all held to be revocations though
not mentioned in the Jlatute o^ frauds ; and the cafe now before
us feems to me not to be a revocation within thatjlaiute; but
however that be, the jury having found that Mr. Lacy duly
made a latter xmll in 1756 (different from the former), and
having found that it is cancelled or deilroved, it flill exifts* and
whatever are the contents thereof, it is ikat under which Mr,
Harwood muft claim. I am therefore of opinion that judgment
' muft be entered for the plaintiff.

* But a writ _ , - ,«/•.• /r

of error being Judgment for the ^plaintiff-

brought in

the King*i Bench, that coort uoanimoufly reverfed tbU judgment \ and a writ of error being bioagbt
in parliament, the Houfe of ^rdi, 9th May 1775^ (upon hearing the opinion of the Baiont of the
Mx'befuer, in favour of the judgment of the ^ court of King's Beneb) afilrmrd the judgment of tb«
courts (o that there siiA finally judgmm for tbfdi/eiuUnu % Black. Rep. 937.

aBiacicRep. Goodtitlc, on the demifc of Alexander Newman, verfu^
93** Martha Newman, widow. C. B.

^ifon/h^fe irJECTMENT of lands in the county of Mddkfex, tried
ImdreceUiDg ^^^ 7^^ of ^^ *773» ^hcn a vcrdia was found for the

rents of three plaintiff, fubjeft to the opinion of this court on the following
^^l^fi ^"^ ^'* ^^'^ refepved, which ftates that,

goardiaiiy is a fufficient feifin by a pofthpmous fon, who died ^t five weeks old> to bar the defcenttobis
iiiter»of the half-blood and convey it to a collat:ral heir.]

The cstfc. Alexander Newman^ the late hufband of the defendant Martha

Newman, was the purchafer in fee of the premifes in queftion,
in the plaintiff's declaration in ejeflment mentioned, which
confift of the four freehold mefTuages or tenements of inherit
ance herein-after particularly mentioned, viz.

\fl. A mefTuage late in the tenuj>of Andrews,
nd. Another late in the tenure of Mr. Beer,
^d. Another late in the tenure oiClaci.

hiLARY ^ehm 14 Geo. Ml. 1774, 917

4/^. And another late in the tenure of Tredway.

That Alexander Newman the purehafer had two wives, and
had iffue by his firft wife two daughters^ who were both living
at the death of their father^ who died feifed on the fourth day of
Juni iySo, leaving the defendant Martha Netvman his widow,
his fecond wife enfietit with a fon, who was born fix weeks after
the death of the faid Alexander Newman the father, and was
baptized by the name of Alexander, and lived five weeks and
.three days, and then died.

And that the Icflbr of the plaintifF is the heir at law of th^
said Alexander Newman the infantjon.

That with reft>e£l to the firil of the faid mefluages late in th«
occupation of Andrews, the fame was in the occupation of the
faid Alexander Newman the purehafer who died in the pofleflion
thereof^ and after his death, the fame continued in the pofleflion
of the faid defendant Martha his widow^ and of the two daugh^
Urs of the faid Alexander her hufl>and who refided with her, and
were both under age at the time ot their father's deaths but are
fince married. And the faid infant fon was alfo born in the fame
houfe^ and died therein.

^d. As to the fecond of the faid meifua^es in the occupation
of Mr. Beer, the faid Mr. Beer' lived therein at the time of thd '

death of the faid Alexander Newman, and has continued in pof-
feflion thereof ever finccj as tenant from year to year^ and hi*
rent payable quarterly ; and he paid to the defendant the widow
of the faid Alexander Newman, the (juarter's rent which accrued
due next after the death of the faid Alexander her huiband^
and has conftantly paid his rent from that time to the faid
defendants

^d. As to the third nlefluage iit the occupation of the faid
Qack; the faid Qack was in the pofleflion thereof when the
faid Alexander Newman diedj and hired the fame by the week^
and paid fon^erent to the defendant the Widow, after the death
of the faid Alexander the father, befdre the birth of ihcfon, and
during his life^time^ and fome further rent after his death.

4M. As to the fourth mefluage in the occupation of the faid
Tredway, the faid Tredway was in pofleflion thereof When the faid
Alexander Newman died^ and continued in pofleflion two months
afterwardSi and paid rent to the defendant the widow by weekly
payments, fom^ of which was paid beiore the birth of the /^ji«
and fomc paid afterwards during bis life, and the houfe has been
^fioce inhabited by different tenants.

LL 3 The

520 Hilary Term 14 Geo. III. 177^*

moft ; the right was in the fon, but tlie a3ual freehold aniftijm
is in the daughters ; fo the leffor of the plaintiff cannot re-
cover, the fon never having been aBuaUyfeiJed.

in brejking Gould Juftice — 1 dp not mean to give any opinion at prefenc ;
Scfirftmo. *^^ queftion is, whetlier tlie pofthumou* fon died laft aSuaUy
mtntin'Vn^Jiifed in fee of the premifes in queftion? I take it that ^JtijU
tifflbUft, in latui\sxiOi2i{\iSiz\cnipoff'effiofrairis; if a man is feifed in.
fee-fimple^ and hath iflue a fon and daughter by one venter^ and
ii fon by another venter^ and clies, and the cldeft fon enters and
dies without iflue, the daughter (hall have the land, and not the
younger fon, yet the younger fon is heir to his father, but not
to his brother; but if the elder fon doth not enter into the land
after the death of his father, but die before any entry made by
him, then the vounger brother may enter and (hall have the Iana»
as heir to his father; but where the eldeil fon in the cafe afore*
faid enters aftei* the death of his father and hath poffeffion^ there
the fifter (hall have the land, htczMk poffejjiofratns dtfeodojim*
plid facitjororem effe haredem. liti.Jed, 8. If the elder fon
die before he hath entered, J apprehend the younger brother
takes no notice of his elder brotberi but makes himfelf heir to
his father.

/ Lord Coke well obferves that almoft every word of iiasJeSion

of Littleton is operative and material; that the brother muft be
in oBual poffeffion^ or his fifter cannot inherit ; there muft be an
a6l done oy him to gain pofleffion,' in order to make her bii
heir, fhe muft be hares faBa : there muft be an aSual entry by
her brother, or by hi& guardian in chivalry or infocage^ to make
her his heir.

The father dies in one of the houfes in queftion, leaving bis
Vfife enjient in pofleffion of all the premifes in queftion, (he be-
ing intitled to guarentine, might be holding the premifes by way
of compulfion to have her dower afligned to her; but there if
no fa£l ftated in this cafe to (Hew in what way fhe claimed to
keep pofTcfTioh and take the rents and profits, whetlier to compel
afTignment of power, or to maintain her fon and the daughters
of her late hulband, or as guardian infocage to her fon, for fhe
being the next of blood to whom the inheritance cannot dc-
fcerid, was his lawful ^«arfl&'fl« mfocage. Cq. IStt, 88. a. I fay^
nothing of this appears to the couit ; which will hardly incline
lo favour a pojfejjio Jratris in this cafe.

The birth of the fon in one of the houfes was accidental,
which feems to mc not fufiicient to give him aSualfeifin ; I
think, as at prcfent advifed, it ought to appear to th^ court

that

UiLABY Term 14 6&o. III. 1774. 521

tliat there was an exprefs entry by guardian, and that we cannot
make any intendment upon fuch a cafe as this.

Blackfione Juftice — ^This is a very nice and difficult queftion,
upon which 1 (hall give no opinion at prefent. It does not appear
that the mother entered as claiming dower ^ or as guardian to her
fon; her keeping in pofleffion feems merely accidental, then a
Ton is born, the whole is cafual, and this law of poJfeJ}iofrairis^
&r. is a very hard law.

Narei Juftice — ^There are fome cafes which have not been
cited, and I Oiould be glad to have fome of the difficulties (ap-
pearing to me in this cafe) removed, for one would be forry to
De obliged to give judgment again ft the daughters, and uke from
them the eftate which was their father's. Whether the fon was
aSuaUy feijid or not is the queflion; it is not ftated with what
view the mother entered, (he is not related in blood to the

daughters. My Brother Gould has faid (he might be holding

the premifes as compulfary to have her dower affigned; but how
can her polTeflion be confidered as compulfary upon an infant of
five weeks old, who could not poffibly affign her dower? Nature
mufi, and will prefume that (he was in and kept poiTeffion for
the benefit of her fon; I dcfire to have this matter well con*
fidered.

Serjeant Burland for the plaintiff— -The Ie(ror of the plaintiff Xo Micbaef-
IS heir at law to Alexander Newman the infant fon and heir of fflattennut.
the purchafer of the premifes in aueftion who died feifed in fee,
and the queftion is, wnether pojfejiofrairis (hall take place ? I am
. to contend that it (hall.

It is determined that it is not neceflary that the heir fhonld be
aBuaUy fetfed: that the po{reffion of tenant for years is the pof-
feffion of the reverfioner ; for if the father maketh a leafe for
years and the lelTee entereth and dieth, the eldeft fon dieth during
' the term before entr)r or receipt of rent, the younger fon of the
half blood fiiall not inherit, butthefifter; becaufe the po(reffion
of the leffee for years is the po(reffion of the eldeft fon, fo as he
is aduatty feifed ol the fee- (imp le. Co. htt, tg. a. The pof^
feffion ot the leffee for years maketh the aftual freehold in the

eldeft [on. Co. liit. 243. a. And it is the fame thing whether

the leffee be tenant from week to week; or from year to year,
or for half a year, or for years, ftill the poffeffion of the leffee

is the a£lual poffeflion of nim who has the inheritance. ^The

fame law is laid down with refpe£l to copyholds of inheritance..

A Rep. 21. Moore i2g. pi. 272. In the prefent cafe the in-

lant fon was in a£lual poffeffion as much as an infant poffibly.

could

62% HiLABV Tebm U Geo. III. 1774.

couM be, for he was born and lived during his whole Hfe in oM

of the houfes.

But this is not the whole ftrength of the plaintiff's cafe; for
the mother, who was neareft in blood (and could not inherit} Uh
her Ton, his guardian bv law» was in poffeffion during his whole
Ii£e; fo that aiTuming tnis propofltion to be true (which cannot
well be denied) that ihe w^a guardian infocage, her entry is the
entry of the heir, her infant fon. 3 Rep, 40, 41, 4s. ' t hi*
1,5. Co. Copyholder^ [tQ, 41. Bitr sgi, 292* JVhitcombe xcn\i&
Wkiicombgy Preced. in Canc\. 280. 14' Viner ^\^. Stirling Tcrfua
Pcrdington^ before Lord Hardwicke^ determined that the mother
receiving rents for her infant daughter was conftdered as
guardian infocage at law, and much ftronger in equity; this laft
cafe proves that where the mother enters generally,, and receives
rents for an infant daughter, fhe (hall be conftdered as guarSam
infocage. So in the cafe at bar the law will prefnme that the
mother entered rightfully in behalf of» and as guardian to her
infant fon» and not wrongfully*

It was obje£led upon the former argument that the mother
might enter as for her quarentine: in anfwer to ihai^ the forty
days were expired before the birth of the fon ; there is another
anfwer, viz* (he was only intitled to continue in the caplal
meflTuage^ and had no right to enter into any other part o(^ the
premifes ; befides, a widow cannot enter for h^f dmoep before it
be aifigned to her ; ihe muft bring her writ (f dower, but in
this caie there was iio perfbn to aflign to her dower, but herfeif }
ib it muft be taken that (he entered generally and rightfully at
guardian in behalf of her fon. 8 ^z. pi. 6. Bro. Defcent.pl* 1^
Nota [fays Brooie] that the feifm of the guardian m*akes the heir
of the infant of the trhole blood to be the hetr, andtbefifief of
the half blood was thereby barred ; this is a clear cafe for the
heir, of the whole^blood, an^ that ward/kip cannot alter the com*
monlaw.

Lord Chief Jullice De Grey-^1( the law be fo» we cannot de-
termine to the contrary, i^n iuconveniencei or the hardfliip of
the law.

In Michael- Serjeant liiU for the defendant— If the court fliall detertnii^

u Geo"* *". favour of the plaintiff in this cafe, I humfaty^ conceive thcjr

eo- 3- ^jjj gQ further to fupport a fojtffio fratris tfasn any Court hal

yet gone; the qneftion is, whether the infant fon was aShudfy

Jei/id: for wlioevcr claims as heir -by • defcent moft make

himfelf heir of the whde blood to the perfon laft aSuaOf

Jeifed.

This

Hilary T^bm 14 Geo. III. 1774* 523

This qaeftion depends opon, and muft be determined by dtf- •
tinffuifliing between an aaual fafin in deed, and ^fifinin law..
When a nian dies feifed, the law cails upon, or gives the heir a
lawful fe^, but to give the heir an aSual fifin^ there muft be
fome aaioTkt, to obtain fuch oBual fafin^ he muft either enter-,
in per/ant if he lawfully can or may, or (if an infant) by his,
guardian.

There are four houfes ; in one of them the father, mother and
two daughters dwelt all together; for two others of them, the
tenants paid rent weekly, their tenure was from week to week;>
the other was held by the tenant from year to year, under a rent
payable quarterly. The premifes being in this fituation, the
lather died leaving his wife enjieni of a Ion ; add before he was
born fhe received rent from the tenants of two of the' houfes
which was payable weekly; but (he could not receive it as
guardian to her fon before his birth, fhe could only receive it
as a diffeifor or an abator, it could not poflibly be by a rightfiil
receipt, flie was a mere ftranger to the daughters by her huf*-
band s former wife; (he gained the freehold by disseisin or by
ahatemmtt - which could not be divefted out of ner by the birth of
the poflhumous fon, therelore he was ntvct aBuallyjiifed.

If the fon had been bom in the life-time of his father, and
the mother left in poIFefBon and receipt of the rents, fhe mieht
then have been confidered as guardian to the fon; for in that
cafe the defcent would have been immediately to himi and not
to the daughters ; but as the fon was pofthumous, and the mother
had entered before his births and difTeifed the daughters (as I
sqpprehend) by receipt of the rems, (he not declaring with what
intention or by what right or authority (he entered, how can
the court fay that flie entered rightfully as guardian to her fon ?
The caie ftated beinff totally filent as to that matter. It ought ta
appear to the court by ibme aS that (be entered in behalf of her
ion anima clamandi as his guardian, 6 Mod. 44. cafual, accidental
mtry will not be fufficient to make a poffeffiojrairis.

As to the boiife which was held by Beer from year to year, it
appears by the cafe that hs paid to the widow the quarter's rent
which accrued due next after her hu(band's death, but whether
Mil/ was before the. birth of the fon does not appear; of this
uncertainly I have a right to take advantage (as being in pof*
feflion) and to (ay that me received the rent for the ule of the
daughters ; for if one receives my rent, it is at tny eiefiion if I will )
charge Jiim with a dijf6fin by bringing an affile or other a£lion,
or have an account, Cro. Car. 303. Litt./ea, 588, 589. So in
this cafe it was in the clefirion of the two cuuigbters to have

1 brought

624 Hilary Term 14 Geo. 111. ifii.

brought an affize againll the mother, or an a6lLon for money r^^
ceived for their ule. When the daughters came of age it way
their intereft to eletl, that the mother fliould be in of the free-
hold as a djffeifof or an abator^ for if the freehold had been iti
the daughters at the time of the birth of the fon« that would
liave divefted the eftate out of the daughters; if a perfon will
enter by wrong, he cannot fay lie entered as guaraiarii for he
cannot qualify his own wrong; fo if a man enter as guardian
where he is not guardian, he is a dijfeifor^ i Roll. Abr. 662. pL 3.
So if a man enter into my land claiming a leafe for years he is a

^ffeifor, 1 Roll. Abr, 662 ^pL 2. And if a man enters into

land of his own wrong, ana takes the profits, his words to hdd
it at the will of the owner cannot qualify his wrong, but he is
a djfftifor. Co. Utt, 271 . a. he cannot make a wrongful a£l to
be good and lawful.

If J* hath two fons by divers venters^ and dies feifed of focage
land, and the lord feiles the land to know who (hall be his
tenant, and for the faving of his rent, and leafes it for feven
years for the fuflenance of the daughters of the laid Jf. faving his
rent; this doth not make fuch feifm in the eldefl fon, but that
after his death the fecond fon fhall have the land. So if the
eldeft fon» being an infant, rcleafes to zn'^bator after the death
of his father, thai (hall not make fuch a feifln in him but that
it ihall defcend to the younger fon. 1 Roll. Abr* G^y. {K.) pli
J J 2 Co. Litt. 15, a. was cited to prove what 1 do not

controvert, [namely] that if the land be in leafe for yfearsatthe
death of the father, and fo the fon cannot enter, the law wili
j^ ve him an aBual feifm which wil I be a fufficient p^ejjiofrairiss
but in this cafe, as to three of the houfes, at leafi, here i& UO
tenant for years, and the mother not being guardian for the
daughters before the birth of the fon receives the rent by wrongs
fo is a dijpnfor or an abator^ as I faid before, and the fon was
never feifed by her as his guardian in focage^ 3 Atkins 469. No
cafe hath been cited to prove that an entry betore the birth of a
pofthumous child (hall be confidered as giving an affual feifin to
that child, if a fon; the entry of the mother could not be in be-
half of the fon, becaufe fhe was not gitardian to him at the

time fhe entered. ^This is a very hard a£lion, and is brought

to ftrip the daughters of the eftate which was their father's, and
unlefs the court be bound by authorities to the contrary, they
will give judgment for the defendant, which I am willing to
believe my Brother Burland (in bis own mind) wiOieSj although
be is of counfel for the plaintifif.

Serjeant Burland for the plaintiff, iil reply — The mother muft
be conGdered in this cafe to have been rightfully feifed of the

whole

HiLABY Tebm 14 Geo. IIL 1774. 52S

whole premifes in behalf of her fon as his guardian in/ocage^ and
not as a diffeifor^ or abator ^ or of any part thereof as tenant in
dower ^ for in this cafe {he could not endow herfelf. Litt. Je3»

123. There Is only one cafe wherein a widow can endow

herfelf, and that is after judgment in the King's court, where
the hufband dies feifed of lands, foroe part holden by knight's
.Jtrvice^ and other part in focage. htt. JtEt. 48. Co, litt. 38,
39. fo that the mother was feifed of all the tenements as guar^
maH to her fon, as I before faid.

My Brother Hill has cited feveral cafes to Ihew that where %
perfon enters into the lands of another wrongfully^ he may be
corSiAcTzAz&didiffeifor or an abator ^t the election of the party;
to which I anfwer, that in fuch cafe it muft appear to the court
that fuch entry was intentionally wrongful; but no fuch intention
to do wrong appears in this cafe; for the mother being in pof-
feflion at the death of her hufband, the right of inheritance Mot
being in the daughters, was divefted out of them the moment
|he fon was born, and then (he was feifed as his guardian ; fo
that this is not like any of the cafes cited by my Brother HilL
If no explanation was made touching the mother's entry, the
law (which prefumes no wrong) will adjudge the entry was law-
fully made in behalf of her fon, of whom Ihe was enjient at her
hufoand's death.

Lord Chief Juftice De Grey — If the eftate vefted in the daugh-
lerSy I believe the profits are loft to the pofihumous fon.

Serjeant Burland — ^Yes certainly fo, if the profits did belong
10 the daughters until the fon was born. Where a perfon is in
by wrong, and afterward that wrong is purged, then the perfon
is in in the nature of a remitter^ though it is not a remitter.
From the moment the fon was born the daughters had no Cio. Cmt.
cleftion to bring an affize or an afiion of account againft the 303f 3«4-
mother, fo could not then make her a dijfafor or an abator. My
Brother Hill cited 3 Atk. 469. I coniefs I cannot fee how that
cafe applies to the prefent cafe. As\it doth not appear to the
court that the mother was in poiTeflion by wrong, the law will
prefume (he entered by right in behalf of her fon as his guar*
dian: and whatever my wifhes may be, the law, as I conceive,
is with the plaintiff, and therefore I muft pray judgment for
him.

Lord Chief Juftice De Grey (having flated the cafe as above)
delivered the opinion of the whole court to the following eOcd.

This is an eje£lment brought by the heir of a pofihumous
fon, to recover the premifes in queftion,. which were purchafed

bjr

fia6 HiuiRT Tbbm 14 6u. IIL 1774.

by ht$ father, who died feifed thereof in fee-fimple the ^tfa ixy
of Jun€ 17609 leaving two daughters by his firfl wife, and his
fecood wite ^mi of this poftbumoiu fon; the wife and daiigh-
ters remained in the fame houfe where the father died, then the
wife received fome rent for the houfes, and afterwards in 7k/f
1760 the fon was born, and in his life-time the widow received
more rent, then the fon died, having lived five weeks and three
days, and flie received fome more rent after his death.

Lands in fee-fimple muft defcend to the heir of the wiok
blood of the perfon laft aSually feifed thereof; this is a maxime
of the law ot England which has fubfifted for ages, as appears
- by BraB. hh. ^-Jol. 65. Brittan cap* tig. foL 271. and FUkL
lib* 6* cap. x.fea. 14. Although this may fometimes be veiv
hard upon fome children of the half blood of thejperfon laft
^Qually feifed^ yet we muft take the law as it is, ana determine
accordingly.

The aueftion therefore is, whether this pofthumous fon was
/ aBuaUyJeiJed of the premifes in queftion ? Upon the death of the

father, his two daughters would have been good tenants to the
pradpe before the birth of the pofthumous ion, who could not
lay his title before he was born; the law vefted the Jeifin in law
in the daughters upon the death of the father, and in Tike man-
ner veiled the Jeifin in law in the fon the moment he was born ;
if the daughters had aliened, or been difleifed, the fon would not
have been aSually ftifed^ but would only have had a right of
entry upon the pofieflion of the alienee or dijfeifor. Ths was
the ground of my Brother Hill\ argument, namely, that the
daughters were diifcifed by the mother, and that the fon died
having only a right of entry ^ fo was nevtr aQually Jeifed. But
the daughters were in a3uai pofieflion as well as the mother,
(of one houfc) from the time of the death of their father,
until the birth of the fon, and were alfo in adual pofleflion of
the other three houfes by the poffelfion of the tenants thereof,
whether any rent had been due, received or not received be-
fore the birth of the fon, %Rep. 41, 42. j^Rep. at. Moore
125. Co, htt. 14, 1 j. And the rent which vras due and re*
ceived before the birth of the fon belonging to the daughters who
were' aSually feifed. for hy Babington [Chief Juftice C £.J
Trin. 9 Hen. 6. s^. a. If a man has iiTue a daughter and dies,
his wife being enfient^ the daughter may lawfully enter, and
if file dies. Tier heir may enter and take the profits for
the time, and afterwards if the wife, being en^ent by the
anceflor paramount, is delivered of a fon, the km may enter,
notwithflanding that the heir of his filler is in by defcent,
but he (hall not have an a£lion of accotmi or any remedy for
the ijfues in the mean time before his birth, becaufie that their

entry

HiiAKT TxBM u On. III. 1774. 527

ealiy wai congeakU until be was born; ud if a church be*
eomcn void, and the fitter or her htit pre/int^ and their prefencee
beinftiiuted and indufied before his birth, he Ihall not have ad«
vantage of the avoidance, and yet by fucb prefentation be ihall
0Ot be out c^ pofieffiom

At the time of die birth of the ion [in the prefent cafe] hit
mother %yas in pofleflioo as well as the daughters ; the moment
be was bomihe became \m guardian inficage, and upon fuppo-
fition that nothing was done to hinder it, the law will prelum^
that ihe entered u guardian to her fon as foon as he was born*
and nothing appears to the contrary upon the fa6ls fiated in the
cafe ; (he was in without any declaration of her intention how (he
was in, ^nd a£b without any words amount in law to an entry,
for a£b without words may make an entry, but words without an
ad {%ni* entry into the land, &c.) cannot make an entry. Co.

It was objefled that .the mother bdng in one houTe, and re*
ceiving the rents of the others, was a d^jftijor^ or that it was in
the ele£lion of the daughter to make it a dijffafin. Cro. Car. 303. .
And that if one enters as guardian who is not lb, he is a diji
Jiifar. 1 RM. Jir. 662. L?-]//. 3.' ■■ .. In anfwertothis the
fatls in the cafe are, that the mother continued in jpofleflion
from the death <)f her hufband, received the rents under leafes,
her pofleffion was general, it doth not appear that (he oufted the
daughters or made any a£hjal or particular claim, (he might con-
tinue in the houfe by quarentine which continued until the fon
was born, and the entry of one is the entry of the others wiio
have right to enter. 1 Roll. Air.y^o, 741. H guardian by
nurture make a leafe by indentureto one being in under the
title of the infant, rendering rent to himfelf, which is paid ac«
cordindy yet this is not any dijfdfm to the infant. % Roll. Abr»

It is to be obferved that the title of the daughters expired on the
birth of the fon, before any e1e£lion to make the mother a djfcifor
was made, that the law will not prefume a wrong: there nc^'er
was any determination that the mother's entry or polfeflion was by
wron^ in a cafe like this, and it is impoflible to fuppofe in this cafe,
that tne whole rents and profits of the premifes m queilion were
not applied by the mother to the common ufe of the daughters,
herfelf and the infant fon; indeed, if the mother had entered as

fuardian io the daughters, (he not being ihtk guardian^ it would
lave been a difftifin; fo if {he had entered for her dower wlien
it was not aifigned to her; the pofleflion of the mother and
daughters, was Die pofleflion of the daughters, and when tlie fon
was born the eftace was divefted out of the daughters and not

bcforeii

528 Hilary Term 14 Geo. IIL 1774.

before, then the fon was in aElual pofleflion and feifin of the pre*
mifes by his mother, who had a right to the pofTeflion as being
his guardian by law [namely} the perfon next of blood to whom
the inheritance cannot defcend, her pofleflion was the pofief-
fion of her fon. 3 Rep. 42. Moore 125. A guardian need not
be afligned. The feifin of the guardian of a fon by the fecond
venter (hall ouft the daughters of the firft venter. 8 Affize 6.
-—Upon the whole, we are all of opinion that the premifes in
queflion belong to the leflbr of the plaintiff^ and therefore we
give

Judgment for the plaintiffl

Venderheyden ver/us De Paiba. C. B.

''**^'*"^ 'T^HIS was an aftion upon the cafe upon feveral promiJTes,
SioTejt- wherein the plaintiff declared, Firft upon a general t'lii^.

change on the bitotus ajfumpJU for 2oo/. for money had and received by the
Sr Ikf *d"' defendant for the ufe of the plaintiff on the 6th day of Novem-
antpran^fe^ ^tfr 1773. — ^A Tecond count for 200/. paid, laid out and ex-
ti»f«iy itiilm- pended by the plaintiff for the defendant at his, infiance and re-
*f^**»«^^«> queft. — ^A third count for 200/. lent and advanced by the plain-
^^»Tb^* tiff to the defendant at bis like inftance and requeft.

came a bonk- * •

rapt and afterwards plaintifl^ was fued and oUiged to pay the bi)U Reiblved the plalatif CooM aoC

ffove any debt 'under the commiilion. \^^Mtu /^* 1 3y 262 ejtba yd."]

To this declaration the defendant pleaded, that after the 14th
day, of February 1729, and before the iffuing out the original
writ of the plaintiit, (to wit) on the lyth day of November 1772,
- the defendant became a bankrupt within the true intent and
meaning of the fbtutes concerning banknipts made and pro-
vided, and that the faid feveral caufes of anion in the faid de-
claration mentioned did accrue, and each and every of them did
accrue to the faid plaintiff before the time when the faid defend-
ant fo as aforefaid became bankrupt, and concluded to the coun-
try; whereupon ilTue being joined.

The caufe came on to be tried by a fpecial jury before the Lord
Chief Juftice De Grey, at the fittings after Michaelmas term laft
in London^ whena verdift was found tor the plaintiff, 156/. 15J. 2d*
damages, and 40J. cofts, fubje£l to the opinion of this court upon
the following cafe, which ftates.

The cafe That ^n the 3d day of June 1772, the defendant drew a bill

SnVon'^f ^^ of exchange on the plaintiff as follows. *' London 3d 3W

court! ** ^772t two months after date,* pay to my order one nun-

" dred and forty-two pounds ten fliillings tor coals delivered

** by

, ITiIaiiyTbrm i4GBo. III. 1774- 52g,

** T>y your order. — Rowland Ik Paiba. — Mr. Dirk Vanderheytlen
*• Budge Row.'* — ^Which bill the plaintiif accepted, and on the
fdme day^ and at the fame time the defendant gave the plaintiff a
mmorandtm as follows*

•• London^ 3d Junt 1772, drawn this day on Mr. lUfk Van*
•• derheyden for one hundred and forty-two pounds ten (hillings
•* two montlis after date, which I promifc to pay when due*
*• ''^'-'— Rowland DePaiba:'

Before the faid bill became due the defendant indorfed the

fdme to one Mr. Del FcJlie; that^ the bill draw;n on the

plaintiff became due the 6th day of Auguft 1772^ on which day
It was prefented to the plaintiff for payment; but the plaintiif
not paying the bill, the fame was noted for non-payment, and
Mr. Dd Vdllie the indorfee and holder of the faid bill applied to
his attorney in a day or two to writeHo the plaintiff, which at->
torney informed Mr. Del Valhe^ he could not get intelligence
Vfhere the plaintiff lived all that year, nor till iht July or Augujl
following, and then hearing where he lived he demanded pay«
zhent as aforefaid; and the plaintiff not paying the fame he was
arretted at the fuit of the faid Mr- Del Val/ie^ on the third day of
November 1773, and paid the debt of 142/. tos, together with
interett and cofts, amounting in the whole to 156/. 1 ji. 2d. for
Which fiim, and on the defendant's undertaking, this a£lion is
brought*

That in November 1772 the defendant became banktupt, and
a Commiffion iffued againft him the 17th day of the fame month
of November, and he afterwards obtained his certificate which
was allowed by the Lord Chancellor the 3d day of February 1773*

The queftipn for the opinion of the court is^ whether the
plaintiff is intitled upon the iffuejoined to recover of the de^
' I'endant the fum paid by tlie plaintiit as aforefaid^

This cafe is figned by Serjeant Walker for the plaintiff^ and
by Serjeant Davy for the dejfendant* And was argued by them
in this terra. ■ t, '

It was argued for the p1ainti#*, that no debt was owing to
him by the defendant until after the time he became bankruptf
and therefore the plaintiff could not have come in and fworn to
any debt under the commiffion; and tht cafes of Chilton verfus
IVhiffin and Cromwell, ante^foL 13. and Goddard verfus Fander-^
heyden, ante^foL 262. werc^ cited as direftly in point.

Vol. III. MM Serjeant

5|0 HihAMr T«iiM 14 Geo. IK. 1774.

Serjeant Davy for the defendant, endeavoured to^diftisguifli ^
this cale from the two cafes above cited; that thofe cafes were
anions <M^i^ fpecial undertakings to indemnify, &c. but the
prefent a£tion is upon three general county olindeintatus affiimp^
jSt^ for money had and receivedi^-money laid out and expended,
-v-and money let and advanced.-^

But ^r curiam ; this cafe cannot be confidered in any other
light than as an indemnity; and is exa6lly Yikp the cafe of Oukan^-
• verfus JVhiffin and Croikwdl^ which was a promife to pay the

money upon tlie bill when due, or to fumilh money for that pur*
pofo; tAat was* a parol promife; iii the prefent cafe the promife
IS in writing; there was no debt owing by the defendant .Df
Paiba to the plaintiff Vandcrhcyden before he paid the money to
- Del Vallie^ and therefore the plaintiff could not come in and
prove any debt under the commiflion. The cafe ol.Goddard
verfus Vandcrhtydtn is [in reafon and fpiritj alfo in point with
the prefent cafe. The court alfo held the declaration in thi.\
c:afe well enough, iox in truth the plaintiff ha^ paid, laid out aod
expended money {or the defendant after he became bankrupt*
Quefrt the cafe of Bemafdijlon verfus Cou/dand cited by Nares
Juflice^ as like the prefent cafe.

Judgmcint for the plaintiff.

Abfent Lord Chief Juftice Dc Grey^ and Blackflone^ Juftice.

Wn^tverfus Ruflel. C. B. Entered ^of Michaelmas
term lafl. Rqlb 484 to 486 :

rwherc 1 London, r^HN RUSSELL, late of the Hay-Market, in the
bond if giTcn J parifti of Saint James, in the liberty of JVe/lminfier,

Jhe^rtft ^ ^^^^ county of Middle/ex, Blackfmith and Viftualler, was fum-
Md fidelity of BDOHcd to aufwer George Wright in a plea that he render to him
« broad clerk 500/. which he owes to and unjuftly detains from him, faTc.
**d h^lSr' ^^ whereupon the faid George by Thomas Strong his attorney
afterwanii''^* complains, that whereas the faid Jfohn on the 13th day of July
takeiapartner in the year of our Lord 1771, at London, (to wit) in the parilh.
kn**ted**of ^^ ^^^^ Mary le Bow in the ward of Cheap, by his writing obli-
the foreSei, «atory then and there by him made, and fealed with his feal, ac-
they ihaii not knowledged himfelf to be held and firmly bound to the faid
^^^^'*^f- G«^r#« in the faid 500/. to be paid to the laid George when he
fidelity n>fuch ^^ ^'^ J^^ (hould be thereunto afterwards reijueftedy yet the
partneribip. iflid^Aff^ often although afterwards reauefied by the faidCeo;j^eto
See Bvchy p^y the fame, hath not yet paid the faid 500/. or any part thereof
LucMyfTem ^® *^^ ^*^^ George, but the faid John hath hitherto intircly re-
Rep* k. B. ftifed and Itill refufes to pay the fame to the faid George, to the
%^i ti, where ^ '
ths dgOiiae of this calb h dlfpotel«»Sce alfo Sgrhr 1, Fsrktr, t T. R. K. B. aSy]

damage

HiiiARt tgns 14 Geo. III. 1774. 831

damage of the f^id George of 20/. and therefore he brings (uit,
" &c. And he' brings here into court the faid writing obhgatory
which teftifies the faid debt in form aforefaid, the date whereof
is the fafne day and year in that behalf above-mentioned. -

And. the faid John by Charles Stamford his attorney comes Defendint
' and defends the wrong and injury, when, &c. and prays oyer ^^'^'^ioynot
of the writing obligatory, and alfo of the condition of the J^b?/M$fe*t"'
feme writing obligatory, which are read to him^ in thefe forth and then
Words, (to wit) Know all men by thefe prefents, that we Tf^l- *^*J* g"**"'
ti^m Baird of Baldwins Gardens^ in the parifh of Saint Andrews Jilt it is »«
Molborne^ and Jfoltn Rujfdl of the Hay-market^ in the parifti of bit dctd.
Saint Jamts*s in the county of Middle/ex^ Biackfraith and ViQu-
aUer, and John- Gregory matter of the academy in Coventry. Court
Hay -market^ in the parifh of Saint Martin s in the Fields^ are
held and firmly bound to George Wright Efq. of Baldwin's Gar^ '
4kns in the parilh of Saint Andrews, (all in the faid county of
MiddUfex) in the fum of 500/. of lawful money of Great Britain^
to he paid to the faid George Wright, or his certain attorney,
executors, adminiftrators or afligns, lor which payment well and
truly to be made, we bind ourfelves jointly and feverally for
and in the whole, our and every of our heirs, executors and ad-
miniftrators firmly by thefe prefents, fealed with our feals, dated
this 1 3th dav of July in the year following, and twelfth year of
the reign of our Sovereign Lord George the Third, by the crace
of God of Great Britain, France, and Ireland, King,' aefend^r of
the faith, &?c. and in the year of our Lord 1771. Whisreas the
above-bounden TfT/Afliw 5^»Vflf havlrig contracted and agreed with
the above named George Wrigkt Efq. to live with and continue
to ferve him in the capacity or ftation of a broad-cl&rL Now
thfe condition of the above-written obligation is fuch, if the faid
William Baird fhall and do ferve, abide and continue with the
laid George Wright in the faid capacity or ftation of broad-clerk^
and duly, faithfully and honcftly according to the beft of his
ikill and knowledge, exercife himfelf therein, and alfo duly
follow and perform the advice, dircQions and orders of the faid-
George Wright in that fervicc or bufinefs, and likewife be juft >
and true to the faid George Wright in all things relative thereto,
and no ways wrongfully detain, embezzle or purloin any money,

{roods, chattels or eFfefts whatfoever ot or belonging to him the
aid George Wright which fhall or may during fuch fervice be com-
mitted or come to his the faid William Baira's cuftody or keeping;
and alfo if the faid Wil/iam Baird do and fhall during his fervice
keep juft, true and fahhful accompts in the faid George Wright's
books of all monies received and paid, aiid of all other matters and'
things relating to his the faid William Baird\ ftation or employs
which fl>aU (as aforefaid) come to. ^his management or difpofal,

M M ft ' and

532 Hilary Term 14 Gbo. III. 1774.

and from time to time pay all monies which he (hall receive of
6r belonging to, or by the order of the faid George Wright iitto
his hands, and make and give up true and fair accounts of all bis
the faid WilUam Baird's a£lings and doinss in his faid employ**
ment, without fraud or delay, when, ana as often as he ihall be
thereunto required, (he the faid George Wright duly performing
his agreement) then this above -written obligation to be void and
of none effeih other wife the fame to be and remain in Cull
force and virtue; which being h^ard and read, the faid ^Aff
Rujfelt faith that he ought not to be charged with the faid debt
by virtue of the writing obligatory aforefaid, becaufe be faith that
the faid writing obligatory is not his deed, and of this he puts
himfelf upon the country, G?r. and the faid George Wright doth
Id Plea, the like. And for further plea in this behalf, the faid ^^Aii
That ac the RuJfM by leave of the court here for this purpofe firft had and
tnTkine the obtained, acc9rdlng to the forYn of the ftatute m fuch cafe made
obligation the and provided, faith, that the faid George ought not to have or
plaintiff car- maintain his faid aftion thereof againft him, becaufe he faith that
"rlde^rf a* the faid George Wright in the condition of the fame wTifing
brewer on hi» obligatory named before, and on the faid thirteenth day of J^y%
i3WTk account in the twelfth year of the reign of the faid Lord the King,
a^mner'^^and ^ibovefaid, at London aforefaid, in the pariih and ward aforefaid,
until fach a exercifcd and carried on in his own name only, and for and on bis
day and year, own account, and without any partner, the trade of a brewer,
and that he fo continued to exercife and carry on the fame for 9
long fpace of time, (to wit) from the faid 13th day of July in the
faid twelfth year until the 26rh day of December then neixt fol-
lowing, and no longer, (to wit) at London aforefaid, in the pariih
and ward aforefaid. And the faid John RujTcU further faith, that
the fervice, capacity and ftation ot a broad-clerk in the faid con-
t dition mentioned, at the time of the making of the faid writing
obligatory, was meant and intended to be executed and per-
^ formed by tlie faid William Bait d to the faid George Wright in
the faid trade of a brewer, fo carried on by the faid George
Wright only, and on his own account, and not in partnerfhip
with any other perfon ; and the faid John Rujfdl further faith,
tliat the faid George Wright afterwards, (to witj on the fame day
*Wh nthe ^^^ ^^^^ 1 aft, aforefaid, entered into partnerfliip with one John
piainiifr en- Delafield in the faid traid of a brewer, and continued in part-
tcred into nerfliip with the faid John Delafield for a long time, (to wit)
the^trad^'^i'h ^^^^ thcncc hitherto, and during the time laft aforefaid, hath
J.D. , carried on the trade in the joint names of him tlie faid George
Wright and the faid John Delafield^ (to wit) at London aforefaid, .
in the parifli and ward aforefaid; and the faid JiAn Rnjfell fur-
ther faith, that the faid William Baird after the making of the
faid writing obligatory, (to wit) on the faid 1 3th day of ^tf/y, in
the twelfth year aforcfaia, at London aforefaid, i^ the parifli and

ward

HitAKY Tbum 14 Geo. III. 1774. 888*

vard aforefaid, entered and %vas received into the fervice of the
faid George Wright^ and continued in the fervice of the faid
George Wright from thence until the faid George Wright fo as
aforeiaid entered into partnerfhip with the faid John Delcffield
as aforefaid, (to wit) until the faid 26th of December then next
following^ and tbt faid William Baird quiued the fervice of the
faid George Wright in the faid trade or bufinefs carried on by hirii
the faid George Wright alone and on his own feparate account,
and afterwards, (to wit) on the fame day and year laft aforefaid
at London aforeiaid, in the parifli and ward aforefaid, entered
into the fervice of the faid George Wright and John Delafield in
their faid partnerfhip trade; and the faid John Rvffetl furthei: «»dU»taU
faith, that during all the time that he the faid JViUiam Baird *• £^|^
remained and continued in the fervice of the faid George Wright cierk ferwa
alone, he the faid ^z/£am ^oaW did duly , faithfully and honeltly, the plaintiflT
according to the beft of his fkill and knowledge, exercife himfelf j|®"*» ^.*
in the faid capacity and ftation of broad-clerk^ and did alfo duly i^ttd^
follow and perform the advice, dire£lions'and orders of the faid
George Wright in that fervice or bufmefs, and was likewlfe Juft
and true to the faid George Wright in all things relative thereto,
and no ways wrongfully detained, embezzled or purloined any
money, goods, chattels or effe£ls whatfoever, of or belonging to
him the laid George Wright^ which during fuch fervice was com-
mitted or came to his the faid William Baird's cuftody or keepl
inj^, and did' alfo,' during fuch his fervice, keep'juft, true and
faithful accompts in the laid George Wright*^ books of all money
received and paid, and of all other matters and things relating
to his the faid William Baird's* ftation or employs which came
to his management or difpofal from time to time during fuch
his fervice as aforefaid, ana did from time to time pay all monies tad accoonted
which he the faid William Baird received of, or belonging to, toWn ]«%-
or by the order of the faid George Wright into his hands ; and
that he the faid William Baird irom time to time during fuch
time of his employment as aforefaid, when thereto reouired,
made and gave up to the faid George Wright true and fair ac-
compts ot all his the faid WiUiam Baird's adings and doings in
his faid employment, without any fraud or delay, (to wit) at
London aforefaid, in the parifh and ward aforefaid; and this he
the faid John Ruffell is ready to verify ; wherefore he prays
judgment if the laid G^^}^^ ^n]^^/ ought to h^ve or maintain his
faid a£lion againft him, &Cp

George ma.

And the faid George as to the faid plea of the fdiid John laftly Repikatkn.
above pleaded in bar fays, that he by any thing ixi that plen
alleged, ot^t not to be barred from having his aforefaid aaion
thereof maintained againft the faid John^ btrcaufe protefting that

M M 3 the

PZ4 Hilary Tbkm 14 Geo. flL 1774.

fhe faid plea and the noaiters therein contained are iM fufficient
in law to bar the Lid George from having his aforefaid a6iion in
this behalf againQ the faid John^ ' and to which ^hc faid Gecrgt
hath not any occafion, nor is he in any wife bound \iy the lav
of this realm to anfwer; neverthelefs, for replication in this be-
half the faid George faith, that true it is that the faid George at
the time of the execution of the faid bond and conditicxi, (to wit)
on the i^th day of July in the year of our Lord i77i» cxcrcifed
and earned on in hi:? own name only, and for and on his owa
account and without any partner, the trade of a brewer, and
that he fo continued to exercife and carry on the fame from thait
day until the 26th dav of December then next following, and no
longer, as the faid yohii hath above in his faid plea alleged ;
bat the faid George furtlier faith, Uiat the fervice, capacity and
llation of a broaa-clerk^ in the faid condition at the time of the
making of the faid writing obligatory, w;as meant and intended
to be executed and performed by the faid Wilbam Baird to the
faid Geor^, in the faid trade of a brewer, fo then carried on b^
the faid ueorge; and the faid George did afterwards, (to wit) om
the faid 26th day of December in the year of our Lord 177%
aforefaid, (to wit) at London aforefaid in the parifli and war4
aforefaid, take into partnerihip in bis faid trade of a brewer» and
in the fame brewhoufe and premifes wherein the faid George fo
cxercifed and carried on the buGncfs of a brewer at the time of
jthe making cf the faid writing obligatory, the faid John Dda^
field mentioned in the faid plea, and continued in pattnerfhip
witli the faid John Dela^ld from thence hitherto, and during
the time lad aiorefaid ; and that the faid IViUiam Baird after the
inaking of the. faid writing obligatory, (to wit) Jh the 13th day
of Jmy^ in the year of our Lord 177 1 aiorefaid, at London afore*
faid in the parifh and ward aforefaid, entered and was received
into the fervice of the faid George^ and continued in the fervice
of the faid George, from thence until the faid George fo took
inta partnerfhip the faid John Belafidd in his faid trade at the
faid houfe and premifes where the faid George fo carried on his
faid bufinefs at the time of the making of the faid writing obli*
gatory; and the faid William Baird' upon his the faid George's fo
taking the faid John Delafield into partnerihip aforefaid, was con* >
tinuedjn his faid oflSce of broad-clerk at the faid brewhoufe, and
in the faid brewery bufinefs fo carried on at the (aid brewhoufe
and premifes from thence until the ill day of September in the
, year of our Lord 1772, (to wit) at London aforefaid in t4ie
parifh and ward aforefaid, and was not ever during that time
difcharged from his faid office by the faid George IVrighi and
John Ddafield, or either of them ; and which laid continuance of
the faid Jvilliam in his faid office is the faid quitting the fervice
of the faid George hy the find Wi^m and ^uterin^ mto the fer,

vic^

HitAHY Tbbm U Oeo. IIL 1774* S3*

rice of the faid George and 7^^« Belafidd mentioned in Ae
laid plea of the bXAJohn Rujfell: and the faid George further
faith, that the faid IviUiam^ after the faid George had fo takei]i
the faid John Delafield into partaerfhip as aforefaid, and whi)e
the faid PTiltiam fo continued in his faid office of broad-clerk of
the faid brewhoufe as aforefaid, (to witj on the 19th day of Breach ef dit
Augujl in the year of our Lord 1772, at London aforcfaid in th^ SsimS'thtt
parifli and ward aforefaid, received in his faid office a hm fum of the broad-
money, (to wit) the fum of 147/. 13 J. on account of the faid clerk receite4
George and his (aid partner, and was afterwards, (to wit) on the "JJJJ^J^*
fame day and year laft aforefaid, at Z^n^^ « aforefatd in the pariOi accauntTLi
and. ward aforefaid, requefted by the faid George to pay the fame did notac-
to the faid George and John Delafield, yet the faid William^ did """,^^*^,^
not, when he was fo required, pay or caufe to be paid, not ^^e p«u
hath he at any time or times hitherto paid or caufed to be paid nen.
the faid fum of money fo by him received as aforefaid, or any
part thereof, into the hands of the faid George ^liii John Dela»
Jield, or either of them, but then and there wholly refufed and
negleSed fo to do, contrary, to the form and effefi of the faid
condition ; and this he is readv to verify : wherefore he prays
judgment and his faid debt together with his damages on occafioH
of the detaining thereof to be adjudged to him, £?c.

John Surland.

And the faid John as to the faid plea of the faid George, by Dcmnncr*
him above in reply pleaded to the faid plea of the faid John by
bim lailly above pleaded, iaith, that the faid replication and
the matters therein contained are not fufficient in law for the
faid George to have or maintain his faid a£lion againft him the
idiA John, to which faid replication, in manner the fame is above
pleaded, the faid John is not under any neceffity nor obliged by
the law of the land to anfwer; and this the fd!iA John is ready*
to verify: wherefore for want of a fufficient replication in thia
behalf, the {did John prays judgment, and that the fdiiA George
may be barred from having or maintaining his aforefaid a£lioa
thereof againft him, &c,

George mil.

And the faid George fays, that the faid plea of him aboyc JoinJerto
pleaded in reply to the faid plea of the faid jiA», by him above *«««»«'•
fecondly pleaded in bar, and the matters therein contained afe
fufficient \n law for the^faid George to have his aforefaid a3ion
thereof maintained againft him the faid John; which faid replt«
cation, and the matters therein contained, he the faid George is
ready to verify and prove as tlie ^ourt here (hall order: wher*.
fore inafmuch as the fazd John hath not anfwered the matters
contained in the faid replication, hor any \vife denied the iiutife*

M M 4 ^Ut

j530 Hii^aryTekm 14 Geo. III. 1774.

but hath altogether refufed to admit the verification thereof, h^

the faid George prays judgment and his debt aforefaid together

with his damages by him mftained by reafon of the detention of

Giria difit' that debt to be adjudged to him, (3c. Biit becaufe the juftices

^#Wrupoii i^gre will advife amongft themfelves what judgment is to bq

p einurrcr, -^^ j^^ ^^ premifes, concerning which the parties aforefaid

have put themfelves on the judgment of the court here before

they give judgment thereupon, day is therefore given to the

parties aforefaid here, until in fifteen days of Saint Martin to hear

judgment thereupon, becaufe that the faid juftices here are not

Venire twar- yet fully advifed thereon, &c. And to try the faid iffue above

Mxnxrj joined betvyeen the faid parties to be tried by the country, the

*'♦ iheriffs are commanded that they caufe to come here in fifteen

days' of Saint Martin aforefaid, twelvt, (3c. by whom, €?f - and

who neither, (3c. to recognize, (3c, becaufe as well, (3c. the

fame day is given to the parties here, (3c.

Afliwtfbte Debt upon an obligation dated the t3thdayof July 1771.

of thcplea4- fhe defendant prayed oyer of the obligation ^nd condition,
which are both above fet forth verbatim, ift. He pleads ni?a
eft Jailum^ (which is at prefent out of the cafe.) 2dly,That the
plaintiff Wright the obligee ought to be barred, becaufe he [the
defendant] Jays that Wnght on the faid 13th day of July cxer.
cifed and^carried on in his own name only the trade of a brewer,
from that day until the 26th day of December ibllowing, and no
longer ; and that the fervice of a broad -clerk in the condition
mentioned, was intended to be executed by the faid William
Baird to the faid plaintiff in his trade of a brewer, fo carried on
by him on his own account only; and that the plaintiff on the
faid 26th day of i)^C(f/«^er entered into partnerfhip with one Johri
Delafield^ and carried on the trade from thence iiiiherto in ihcir
joint names; that William Baird on the 13th day of July 1771
entered into the fervice of Wright and continued with him
therein from thence until he entered into partnerfhip with Dtla^
Jield the faid 26th day of December^ when Baird quitted the fervice
of Wright in the bufinefs carried on by him alonf^ and after-
wards on the fame day entered into the fervice of Wright and
Helajield in their partnerfhip trade; and that during all the time
that Baird continued in the fervice of Wright alone, he \Baird\
" did duly, faithfully and honeflly, according to the heft of his
(kill and knowledge, perform the condition of the bond to the
faid Wriglit^ as the fame is above fet forth.

The plaintiff replies, admitting the fafls lafl above ftated,
and further fays, that upon his taking Delajield into partnerfhip,
Baird vf^s continued broad-clerk from thence until the ifl day
%>i&pt€mber 1772% JWid^as not difcharged by Wright ^nd Dela-

Hilary Term 14 Geo. III. 1774. 637

jUld or either of them, and which faid continuance of Baxrd m
his ofEce is the faid (juitting the fervice of Wright and entering
into the fervice of ^n^A/ and i)^/a/&rW mentioned in the defend-
ant's plea; and that Baird afterward, on the 19th day of Auguft
1772, received in his faid office 147/. 135. on account of
Wright and his partner, and was requelied by Wright to pay the
fame to him and Ddafield^ but that Baird had not paid the fame '

to them or either of them, but has neglefled fo to do.

The defendant having demurred to the replication, and the t^^^ mwxM
plaintiff joined in demurrer, this cafe was argued in this term is aa iiTiuibU
by Serjeant Hill for the defendant, and Serjeant Burland for the plea wicbln
plaintiff. !?'!S"'"L

* . of an or4er Mr

time.
Serjeant Hill for the defendant — I am to contend that Baird » Black. Rep.
has performed the condition of the. bond, and that the breach 5*^'^
affigned by the plaintiff in his replication is no breach thereof ia
point of law.

It is admitted by the pleadings, thjlt from the time of the execu*
tion of the bond, the 13th o\July 17711' until the £6th of Decern^
^er following the plaintiff carried on the bufinefs alone^ and that
.during that time oaird ferved him as his broad-cUrk juflly and
truly, according to the condition of the, bond given to the plain-
tiff Wright [only] by Baird and his two friends, who were
bound with him to ferve Wright whilfl he carried on the bufinefs

fdone and not in partnerQiip with any other perfon. It alfo

appears and is admitted by the pleadings, that on the 26th day
oi December 1771, the ^WintiS Wright took D^laJUld as a partner
into the brewery bufinefs, and that Baird continued to fcrvc
them in the partnerfhip ; and it is alleged as a breach of the
condition, that after Wright had fo taken Delafield into partner-
fhip, Baird, while he continued broad-clerk to them, received
X47/. 13J. on account of Wright and his partner^ which he
(Baird; upon requeft) refufed and neglefted to pay to them or
either of ihem. Suppofing this allegation to be true, it is not
a breach within the condition of this bond, efpecially in the
cafe of an a£lion againfl one of ihejiireties as this is. And the
reafoning in the cafe of Lord Arlington verfus Merricie, 2 Saund.
. 411, 412, G?r. is yery applicable to the prefent cafe; Merricke
was furety {or fix months for Jfcnkins deputy-poflmafler, in a
bond to Lord Arlington poftmafter-general, and a breach of the
condition fl//^r the fie months being afTigned it was held ill, be-
caufe Merncke was only bound as furety for Jenkins for Jix
months and no longer. In the cafe at bar, although RnJTell was
bound for an indefinite time as furety ioT Baird while ne con-
tinued broad-clerk to Wright alpne, yet hP was not bound as

furety

53B Hm^^ry Term 14 Geo. Ill, 1774.

Turety for JJmr</ while he was broad-clerk for Wright and Dela/ieU
in partnerlhip; fo the breach afligned is not within the condition*

\ In the cafe oiStoughton verfus 2)^^% Style 18. cited by Taj^
den J^ s Sound. 414. by the name of Horlon and i)av, where,
h) the condition of a bond it was recited that a Iheriflf had ap-
pointed the defendant bailiff of a hundred within his county, if
therefore the defendant fhall duly execute all warrants to him
direSed^ that then^ &c. it was adjudged that the words all iuar»
rants fliall be intended only all warnuits which (hould be dire&cd
to the defendant as bailiff of the faid hundred, and no other war.
rants. So in the prefent cafe it is recited in the condition, that
whereas William JBaird having contraQed and agreed with tie
plaintiff George Wright to live with and continue to Jerve him in
the capacity or flation of a broad-clerk. Now the condition,
&r. is fuch, that if, &c. it clearly appears from hence that die
defendant Rvffell was only furety for Baird while he continued

broad-clerk to Wright alone, and no longer. Simp/on verfus

Fields fecond cafes in Canc\ 22. where difurety is not liable a|
Jaw he fliall not be made liable in equity.

It is averred by the defendant in his plea in bar, diat the fer.
rice of a broad-clerk in the condition mentioned, was meant and
intended to be executed and performed by the faid Wilbam Bedrid
to the faid Georee Wright in the faid trade of a brewer, carried
on by the faid George, Wright only, and on hi^ own account,
and not in partnerfiiip with any other perfon ; this averment is
traverfable, and not being denied by the plaintiff in his repli.
cation, muft betaken to be admitted and confeifed by him to be
true* That the intent of a man lies in averment^ and fo may be
traverfed, Brooke tit. Averment, pi. 50. 1 Sali. 196. Griffith
verfus Harrifon. 4 Mod. 249. 5. u

Serjeant Burland for the plaintiflP ^The breach affigned is^

that after the plaintiff Wright had uken DelafieU into partner*
fliip, Baird while he continued broad-clerk to them received
147/, igj. on account of Wright and his partner, which he
f Baird, upon requeft) refufed and negle£led to pay to them, or
either of them ; this is admitted to be true by tne demurrer,
and how it is made a queftion whether it is a breach of the
condition.

The condition is, that Baird (hdill be juft and true to Wright in
all'things relative to the bufinefs, and fliall no ways wrongfully
detain, embezzle or purloin any money, goods, ftc of or belonging
to Wright : it is conteffed that Baird has detained and embezzled
money belonging to Wright and his partner, therefore he has cer-
tainly detained and embezzled ^^m^ money oi and belonging to

Jiruxt Tjkh 14 Gso. IH. 177^ ea^

Wright^ tki« ^ppe«i«d to inest firft view, in fo ftrong a light to \m
Si breach pf the conditioou that I could not vdl conceive what
couid be (aid to the contraiy . My Brcdier BUI makes a diiFeienoe
between Bmrd and Yiv&furitics : but in tna h there is no difference,
for whatever wo,uld be a breach of the condition as to Baird^.
would certainly be a breach as to the defendant Riiffdl\a%furtty''^
After the partnerihip commenced Baird continued in the fervide
<of Wright as well as his partner* which the demurrer admits,
and that he lias embezzled the money of Wright as well as his
partner, therefore the breach is well afligned*

The cafe of Lord ArUnglm verfus hUrride^ a^aand. 411*
.wascon&aedcoiix months; and is not- like the prefient cafc
wherein the time is indefinite.

. Serjeant HUi was about to reply; but without hearing hta
the whole court were W opinion for his client the defendant*

C¥na— -The fa3s upon the pleadings are, that Wright from,
the I'gth day of July 1771, until the 86th day of Duemker foU
lowing* carried on the DufineCs alqfle and during that time took
and employed ^air^ as his broad-cleri^^n office of great truft in
the receipt and payment of money within and without doors ;
two friends became bound for his honefly, and that he (hall
render a true and juft account to Wright; who afterwards with*
out the knowledge or intervention of the Jureties takes a partner
into the brewhoufe ^ Baird continued to be employed in the
fame bufinefs for the partners, in which he had before been em«
ployed by Wright alone ; and during his continuance in the . .
Service ot the partners, he received money belonging to them in
partnerihip, and did not account for tnat money to them or
either of them, and thereupon the queftion is, whether this is a
breach of the condition ?

It is truly faid that the defendant [theTur^^] ought not to
be bound beyond the fcope of his engagement, which was to be
anfwerable (or the fidelity oi Baird to Wright only, not to Wright
and any other perfon or perfons* The cafes cited for the de*
fendant are appofite, that of the poft*office in 2 Saund. 411. is
very near the prefent, and fo is the cafe of the (herifTs baiiiiF

there cited by Tmfden. Courts of equity are favourable to

furetits^ for where they are not ftri£lly bound at law, a court of
equity will not bind them,-

The defendant Rujfdl engaged for Baird\ faithful fervice to

^ Wfight ; when Wright took m a partner there was an end of

t\ic obligation ; the condition is confined to Wright only, and

the

640 HiLAEY Term 14 Geo. III. 1774.

the breach afligned is for non-payment of the money to Wrigii
and Dclafield^ or either of them, which is not within the con*
<iition. The defendant Rvjfdl and the other^r^^ might have
confidence in Wright^ that Jie would be careful with refpeft to
the condufi of BaxTd in his office oJF broad-clerk^ which they
might not have in any partner with Wright: and for any thing
that appears to the court, the defendant Ruffdl had no con-
ception of being engaged for Baird\ fidelity to any other perfon
, befidcs Wright.

The defendant's plea is well pleaded ; for the rule is« when
the defendapt craves and fets out the oyer of the condition, to
plead generally the performance thereof ; this is a good bar to a
common intent, until the plaintiff replies and alleges a brearh
within the condition of the bond, which he has not ddne in this
cafe, and therefore judgment muft be entered for the defendant.
Whereupon Serjeant Buriand moved for a few days' time to con-
fider whether he would not amend the replication upon payment
of cofts, which was granted; fo judgment was pronounced nifi^
&c, by the whole court ; I never heard that this matter wa^
ftirred again^ fo fuppofe the defendant had his judgment.

EASTER

Ml

EASTER TERM

14GB0.III. 1774.

Tyflcn Efquire demandant, verfus Clarke tenant.

The trial at the bar of the C B» in a writ of right patents

JPRANCIS JOHN TYSSEN Efq, brought his ^m/lnaek.R«^

g^r/VA/ againft George Qarke and demanded certain 'mef- M»«
fuages, lands and tenements in the parifli of Saint John^
Hackney^ in the county of Mxddlefex ; the 'tenant by his plea put
him felt upon the Grand Assize, and the mfe being joined
wpon the nure right, this caufe came on to be tried oxiWednef^
4ay the 4th day of May in this term, before the LbRD ChI£P
Justice De Grey and the reft of the Lords the Judges of
THE Court of the Bench at JVeflminfter^ by the Grand
Assize, fviz.y James EfdaiU^ James Hodges, Phbp Dyot, George
Mercer, John JValford, Knts. John Spiller^ Gerrard Howard^ Cad*
tvallader Coker, Roger Griffin^ Jojeph Keeling, Thohas Coggan, Lo*
max Ryder ^ William Adaxngton^ Thomas Parry ^ CharlesShipherd^
and Thomas Lockwood Efqrs. who feverally malde the following
oath, fviz.J *' I Sir James Efdaile do fwear that I will fay the Lit.fea.
" truth whether George Clarke hath more mere right to hold the 5«4«
" tenements which Francis John Tyjftn Efq. demands againft
" him by his writ of right, or the faid Francis John TyJfen to
V have them as he demandeth, and for nothing to lett to lay the
«? truth, fo help me GOD.'*

Thefe fixteen recognitors of the Gn and Assize being all
fworn, Henry Fothergul Efq. fecondaVy to William Mainwaring
Efq. chief protlionotary of the court read the pleadings, which
^re inrolled amongft the pUas of land of the term of the
Holy Trinity in the thirteenth year of his prefent Majefty's
reign, in the 439th Roll.

• ^ ' * Walker,

i4Si Eastee Term 14 Gio. HI. 1 77^*

Walker the junior fcneant, of counfel for the tenant, having
opened the pleadings, Davy the King's fecond ferjeant opened
the tenant's right and title to hold the tenements in quefiion ta
him and his heirs to the following efiefl*

Serjestnt Daty for the tenant — HThe demandant alleges iit his
count, that his lather Francis Tyffen Efq. was feifed of the tene*
ments in queAion in his demefne as ojfee and right within/x/y
years laft paft, and that from Francis his fatheX the ri^ht de-
fcended to him, and therefore he now calls upon my client the
tenant to ihew his right and title to hold the tenements in fee.

In the years 1705 and 1706 Francis Tyffen Efq. grandfather of
the demandant, being feifed in fee of the manor of Hackney ^ com<>
monly cadled the Lord's Hota^ and Sir Edward Norlney Kni,
(then attorney-general to Queen AnnJ being fteward of the
courts of the manor, iiTued a precept under his hand and fea\
dire£kd to certain cuftomary tenants of the manoFi in d^e nature
of a writ of ad quod damnum^ commanding them to go to the
wafie grpund ot the manor near to the meffuage of one Thomas
Fumders at Stamford-kill within the manor, and there to view
and fet out, by metes and bounds, how much of Aai wajle
, ff^u^d might be inclofed to be holden and enjoyed by the faid

Thomas Flanders^ to his own proper ufey with the confent of the
tord of the manor, and without prejudice to the tenants thereof,
or of any others the Queen's liege rubje£b pafling by that way ;
ibis precept Was iffucd by the fteward on the 1 1 tli day of te-
bruary' tj^^y dire3ed as I have mentioned; accordingly, feven
cufiomary tenants of the manor having been at the wafie ground
near the meffuage of Thomas Flanders^ and viewed the fame,
afterwards at a court-Jeet and general court-baran of the manor
held on the 28th day of March 1706, made their return to the
precept y (xiiz.J that tney went to the wajle ground near the dwel-
. llng-houfe of ThomaS Flanders at StanqoraJiiU within the manor,
and there did view 3nd fee, and by metes and bounds fet out
how much of the wcjlt ground Thomas Flanders might inclofe
for his ozvn tf/e, with leave of the lord of the manor, and with
the conlent of the cufiomary tenants of the manor, and the di-
menfions thereof, but that Mr. Flanders was to maintain the
water-courfe which is by the foot-path fide; and that Mr. Flan-'
Jers nor his heirs nor qffigns^ fliould not build any thing at thc!
north end within the breadth of the houfe that Mr. Flanders
then dwelt in, or rented of one Mr. Haffted^ that might be al
forefialling. or prejudice to the fame, without the confent of ^/Ir,
Halfiei or his kdrs or affigns^ and thus ftbey retumedl it mighl
** be done without prejudice to the lord of the manor or the tenant !
of the lame, or any of the Queen's liege fubjei£b pafling thai

way,

Eastbr TBRi^i 14 Geo. III. 7774. 543

way, mi tUs they judged to be a true return of the precept Iq
them dire£led* This is figned by all the tenants who made the
return f and by Sir Edward Northey the fie ward of the manor witk
his own hand.

By this precept and the return thereof it appears that Thomas
Ftamers had a grant of the ground in/ee^ ior ii is to inquire
how much, of the wa/le ground migjtit be inclofed, to be held
and enjoyed by Thomas Flanders to his own proper ufe; aint
the return is, that he may incrofey^r his ovm ufe ib much, fee
out by metes and bounds, and that neither he nor his heir^ and
affi^ns^ fhould build fo and fo, which words " heirs andajEgns^*

f lainly fbew that he had a fee^ and that Sir Edward JNortheif
that eminent ^awyer] underftood it fo. — ^This I humbly contend
will amount to a proof of a title or Jeifin in fee in Thomas FIoa^
ders^ out oi the ancefioFS of the demandant^ and that his father
was not Jii/ed injee within ^xty^years next laft pafled before tha
ifluiBg lorth of the original writ.

Having op^ed the evidence whereby we (hall endeavour to
Ihew, that the demandant's ancefiors have not been feifed within . '
Jixtv years ; I fliall now proceed to open to you the tenant's righi
and title*

In the-vcar 1736 one Roger OJbaldeJlon an attorney, being feifed
i» poflefiion in fee of the tenements in queftion, by leaje and re^
Uaje of the %^ £3 25th of February 1736, mortgaged the fame
in fee to John Clarke the father of George Clarke the tenant*
[whofe heir he is] for fecuring the fum ot 1000/. and intereft,
which deeds were properly regillered ; and no doubt or quefiion
was ever made by the lord of the manor, or hy his fieward or any
other pejrfon, of the power of Ofbaldejlon to make Ma/ -mortgage
infee.

Afterward^ the intereft due upon the mortgage not being
punfkually paid, it was agreed that Mr. Qarke (the father of the
tenant) (bouJd. purchafc of Ofbaldejlon the equity of redemption.
in fee: accordinglv, by indentures of leafe and rdeafe, of the i3tK
£^ 14th of Decemier 1742, between Roger 0/balde/ton and Sarah
bis wife of the one part, and the faid John Clarke of the other
part, OfbaUefkon in confideration of 1280/. which was then owing
and due ibr principal money and interefi, and of 290/. more
making in all 1500/. releafed the equity of redemption in fee of
the premifes in quefiion to John Clarke^ covenanted to levy ^ '
fne thereof to his ufe infee^ alfo that the tenements were Iree
from iflcumbraiices» and wer« only fubje6l to a quit-rent of
10/. pet annum^ payable to the lora of the manor, and alfo that.

ha

644 £Ast£A T£RM 14 Geo. lit 1774.

he liad a good title to mnt and convey the premtfes in Jelt^
JitnpU: which deeds of Uafe and rtkaft of 1742 were alfo pro*
perlv regiftered, and. no doubt or queftion was ever made by
the lord of the manor, his Reward, or by any othef perfon of the
power of OJbaldcJlon to make that conveyance in fee.

In Mchadmas term in the fixteenth year of King Geotgt the

fecond zjine was accordingly levied between yokn Clarlu (the

late father of the tenant) plaintiff, and Roger 0/baldeflon and

s Sarah his wife deforceanis, of the tenements in queftion with

. proclamations according to the ftatute, to the ufe of the faid

Jfohn Clarke and his heirs, ^A deed fM of attornment was

alfo then executed by OJbaldeJlon and all the other perfons in
pofleflion of the premifes in queftion, whereby they attorned
tenants to Jfohn Clarke^ who entered into the tenements in 1749^
and continued in poHeflion till 1769, when he died ieifed thereof^
whereupon G^pr^^ CZdr^^ the tenant, his fon and heir entered
and has been in poirefTiqn ever fince, and now is feifed in fee i
this is the tenant s right and title, which will be proved, and
then we hope, that you gentlemen of this Grand Assiz£ will
find a verdifl for the tenant.

Tlie evidence for the tenant, was produced and proved in thi^
order, •

1^, The mortgage in fee (for fecuring 1000/. and intereft) by
OJbaldeJlon to John Clarke by kaje and rdeafe of the '24 & 25
oi February 1736 was proved and read,

2dly^ The leaJe and releafe of the 13 £? 14 of December i742t
whereby OJbaldeJlon releaied and conveyed to John Clarke the
equity of redemption of the premifes in queftion injeejimple in
confideration of i joo/.

3//^, Thiejine by OJbaldeJlon and his wife to John Clarke with
proclamations was admitted by the counfel for the demandant^
and that by virtue thereof John Clarke entered and became
Jajed injee^ that he diitAjeiJed^ and that George Clarke the tenant
is his heir; and it was alfo admitted that neither did Francis
Tyffen the father, nor Francis John Tyffen his fon [the demandant]
at any time within five yeaVs next alter the proclamations had
and made, purfne his title, claim or intereft in or to the tene-
ments in queftion, or any part thereof by way of a£lion or law-
ful entry,

^thly^ The deed poll executed by OJbaldeJlon and the perfons
in poifeflion dated the aad of Decemier 1742, whereby they at*
torned tenants to John Clarke was proved and read.

ISAaTjiit Tbbic 14 Geo. III. 1774. 545

Sfhiy^ It ivas alfo proved by feveral witneflfes who knew John
Garic, that he was in pofleflion and received the rents and profits
of the tenements in queftion from the year 2742 until his death,
and that he died in the year 1760.

6thly, Then Serjeant Daty called upon the demandant to pro*
duce the book or court rolls of the manor wherein the precept
and return [which he had before opened and flated] were en*
tered ; a book of the courts of the manor was accordingly pro-
duced by Mr. JViail the fteward» in which there is an entry of a
precept iflued by the fieward of the courts and a return tnereto.
by certain cuftomary tenants of the manor) the tenor whereof is
as followetln which was read«

•• Manerium de Hack-*^ " Curia Vijus Franci Plegii Domini Re-
" ney Communit^r^ I *• gina cum Curia Baron' Generali
•• vocatutn^ The. [ •• Francifci Tyjfen Armgeri^ &c. &c.
•• Lord's Hold. J " 88 l£irtn 1706.

*' tjham ad hanc Curiae Homagium prteJiflum fuper Sacra*
*' mentum fuum firefentai quoddam aliua Pnceptum gerentem da-
** turn dectmo oBaoo die Januarii ultimi preteriti per prefatum
*' Senefikailumfub manu etjigillofids emanatum et quibujdam Cufio^
•* mariis tenenttbus Mamrii prediSi direS^m^ precipiens iis ac-
** cedere ad Vaftum Fundum Manerii predidi prop} Mfjfuag^um
** Thomas Flanders apud Stamford-Hill infra Manenum pre-
** diSum^ et ibidem uitueri et per metas et bundas exponere
*' quantum V^K^ fundi prediSi inciudi poffit^ tenendum et gauden-
*' dum per prefatum Thomam Flanders ad proprium ufum fuum
•• cum conjenju Domini Manerii prediSi et fin} frejudicio Tenentium
'* ejufdem^ autaliquorum aliorum Legeorum di8a Domina Regintt
♦• perviam illam tranfeuntium: et qu^d ad hanc Curiam Septeni
*' tenentes cuftomarii Manerii prediili quibus preceptum prediduiH
** direSum fuit ftcerunt Rctomam Precepti predi&i in hifce An-
•* fflicartis verbis feauentibus^ viz. Hackney manor, The Lord's
*• Hold. We whole names are here-under written^being cufto- .
*' n^ary tenants of the faid manor • near the dwelling-houfe of * Were feemi
" Thomas Flanders at Stamford-hilt within the faid manor, and ^^^ ^^

want*

** there did view and fee, and by mefes and bounds fet out how ing, but this
•* much of the faid wafte ground the faid Thomas Flanders may in- »• ■» ««>^
•• clokfor his own u/e with leave of the lord of the faid manor, ^J^^J^
** and with the confcnt of us cuftomary tenants of the faid manor, book.
*• and the dimenfions are as fulloweth, Crq/s the common at the
•* fouih^nd ten rod and a half the weft fide by the foot-bath
*• twenty-one rod^ and th^ north-end is five rod^ and toe eaftfide
*' is twenty-two rods but Mr. Flanders is to maintain the %^.
«' ter.courfe which is by the foot-pativ fide, and that Mr. Flan*
Vol. IIL N N . : - ''ders

<■ ^i nor Au ieirs n^r 4fflgm 8ial4 not bujU any thbg at the
^ nocth-end, within the breadth of the houfe that Mr. tiowikrs
** dwells in oc rents of Mr* HfUfted that 9»ay be a foreftalting
' ^* or prejudice to the fame, witthout tbe conient of Mr. Bdjud
** Of his heif-s or ai%DSt, and thus it may he done wilhoiiit pve-
V jiidifre to tbe lord of the manor or the tenants of the fame, or
** amy ot the Queea's liege fabjeQs fjiafling that way; aad tliis
** %ve judge tp be a tfu<e rftum of this precept to us.dh'eded,
** blearing date the i ith day of Fekruary 1705, and in the fottfth
** year of the reign of our Sovereign Lady Anne by the grace
•' qf Qod {^.ueen of fygland^ ScdtUmd^ France and Ireland^ de-
•* fender of the faith, &c. Jam^ HuUim—Tho. jhdai — Tko.
•* King— Richard Town/end— Edm. mft.— George Taylor [X]
•• ki« n^tk^TAo. Pcritns j[X] his xnart."

This h the wbok of tbe tenant's rigllt* title and evidence in
fvibftance and effed, ^n4 here Serjeant l>^vy refted fads cafe*

* Serj^rant KiUhv the demandant Thtprecepi ilTued By Sir

Edward Northey in 1706, in tbe nature or a writ of ad quod
4amnum^ clearty prqyes a utie in the then lord of the manor to
the ioherkance ot the wqfie which is the /die of tbe tenements
in qi»eftioii» and no title has been, ihewn to take tbe inheritance
^t of the tord 4»f the manor abov^ 6q years.

The anceftors of the demandant have been lords of the manor
cf Ha-ciney- for many generations; Francis his grandfather was
lord thereof before the year 1700, and died feifed in fet m 1710,
Vhen t)]ie jame defcended to Francis Tyffen his eldeft Ion and
^ir [ari4 fadier of the demandant] who entered and died feifed
in f 7 17, ibon after whofe death the manor defqended to the de-
yiand^t who was his poAhumous and only C^n*

0^ldtfion\iftv^'^\xi poifeflion and pretending tobefeified in

/h in 1736 mabes a mortgage to the tenant's father, and after-

Wyards in 174a Qonvts/% tp him the equity of redemption ti»^^^;

Q/hl^on was only a tenaku for yeara to the demandant's an-

^flftpr, as y(t Ihall Ihew to yov.

lit ha$ beon the ufage and cufiom of this manor for the lords
)hpri?pf to vtnake lea/5 to their tenants of parcels of the mafic
grpund Sot the terms of 40, 50 pr 60 y<^rs» and previons'to the
^Anting Aj<^h leafes, it has been the^ufage for die Arwavd to
IJPTue preq^a. li^^ iluU which bath bee|i produced* to iBMire
i& the ns^ure of a writ of ad quod dfunmm whether H wmila be
anof d»m^g^ to t|)p l0r4, the m»m&, or ^e fohieQ, if fwb a
fMpel of wq/le Ihould be ineJofed for the lord to let % leafe

thereof

thcreoC to ^ t«pam ; aod there n^ver ws^s sm iniUace of a jro'i'
qi fuch w^/k »» 7^^. •

' Upon this ufage or cuftom the precept whkh has beea pi;oMcdl
was ifliied by Sit £dm(vrd Northcy the ileward; in coxi&(^ucaco
whereof a Itafc was granted by the lord to Thomas Flanders for
if^vy^OTkSi yoar^ who entered and built upon the wa/k (the pfe«
BM(e«, in (^AHiAion} and enjoyed the fame until ij2oot xjzx^
ii^hea he di^i ; leaving a wi(U>w Calhannfi Flanders^ and fevexaL
^«tther$ or nephews.

Catharine Flanders took adminifiratiou to her late hulbandt^
and" thereupon became intitled to the leafehold premifes, toofc

SofltsffioH thar«ot add enjoyed the &mc a& pecfonal eiUte timil
er d^tb; but if Thomas Flanders had died feifed in fie of feba
tenement^ the &H}e would h»ve gono to his hiother, and noc
tp bi& widow.

Catharim Flanders yis^e her toUL dated the 1 9^th day of NaveM*. ^
ker 17961^ and therebv direfled the pi-emifes to be fold by her exe**
cutof UagiT Q/bddeJlon^ aad fooa afterwards died '^ the leQtt oC
lOJ. ^^r annum appears to have been paid, by Thomas Flanders ,
\if \»9i mdaji;^ and by O/batdefiott biniielf; fome o£ riiefep^y-
wcto^si were mad^ wbJe the demandant was an in&nt and a ward
«( \ik^ cowl of Cbincery^ narticularly by Caiharine'ihR widow .o£
Thomas Flanders whom OJbaldeJlon reprefents, fo that the jiiiiM
had no operation at all, the parties thereto having no eftate in
ihe hinds whereof ^finc CQuld be levied* it was a nullijiy and a
de<ek by (^aidefiovk.

Thore is na ground or reafon to iay thaft Flanders or (^^^
i^ie everpurchafed the^£» if he had (hewn his title deedto Mr*
^ohn Qg^^ ix would have appeared that he was only pof&:{{e4 ^

of a term for years under the lord of the manor ; it Uiems to be
a dire£^ fraud between QJh<ddcfimi and Qarh the fether of ihe
leoant: it is not materia) whether Jjohn Qarkt was apurchajQac
£q9 ^ \'«lu4>ld confideration without ^notice or not, {or we ajce
90W upon thQ iTKrtf ri^ in a court o£ law, and not ia a court q^
Q^vilv.-x'^f^The evid^^i^Qc (^r the detoaodant wa^ tbg;vgonr ij^xa
as follows*

H^^y, Tyffeth fworo^-^I ai&tbe firft cpufinof Fronw^ John T\£(n
tfefr (krmxA^t vk^ i% th^ oiily fon of Francis TyJ^en his fiiSer^
late lord of the manor of Haekn^^ who di^d about the» yeajT
1717, whom I knew and well remember, he was the eldeft fon
f f tWi d^mMidaAt'^gppd-fathc^, wh/(» was k>xd of the maoor of
iMm^\ apd died 4^o^t the- yea^r 17^0 as I bave heaid^ the dc^
4piiiydllM vas born after the death of his father, and is his only fon.

N N ft ^ Mj;

MS ' Easter Term 14 Geo. HI. 1774.

Mr. Wall fworn — I haN'e been ftcward and deputy-fteward of
this manor about thirteen years, thefe are the court-books of the*
manor whereby it appears, that the demandant's grand-father,
and himfelf have been lords of the manor of Hackney ever
fince and before the beginning of this century.

Mr. WaU was about to prove the ufage of the manor (from
entries in the court-books) for the fteward of the court for the
time being to iffuc {\xz\\ precepts as before mentioned, in order
for the lord to^grant Uajes of parcels of the toqfte for years, and
that there is not one inftance to be found wherever the lord
granted a fee; but Serjeant Davy obje£led.

That fuch evidence of ufage within the manor is not admif-^
fible, arid cannot a(re£l the prefent quefiion; for if the lord of
the manor has thought fit to grant a Jee^ he fliall not take ad-
vantage of a cuilom or ufage againft his ovfn grant; for what I
infift upon is, .that we haye given fome evidence in order to prove
that the lord granted a fee to Flanders from the words ktirs
andajjigns of Flanders in iht precept iifued by Sir Edward Northey
and the rdurn thereof by the tenants which recites the precept.

Lord Chief Juftice — You have only produced the precept of
the fleward to the tenants to inquire, &c, and their return
thereof, you have not produced any grant (f a Jet to Thomas
Flanders.

Serjeant Davy — ^\Vhat I humbly infill upon is, that we have
given evidence in order for the Grand Assize toprejitme that
the. lord granted an eftate in fee to Thomas Flanders^ and that the
mere right is with the tenant to hold the premifes in queftibn;
but the lord fays, " Whatever prant I have made to Flanders
" yet I fay there is a cuftom to grant only lea/is for years."

Serjeant Hill for the demandant — I do admit that if my Bro-
ther Davy had produced a grant in fee from the lord, we could
not have encountered that by this cuftom or ufage, but the evi-
dence produced, is only pre/limptix^ evidence 01 z grant in fee;
I will prove that thefe precepts • never preceded a grant in fee,
but only leafis for years.

Serjeant Davy — The objeftion is not anfwered; the lord had
a right to grant what eftate he thought fit, and he has been out of
poueffion ever fince the year 1706.

tbJ'cyS^^of ^^* ^^*^^ Juftice— From the year 1706 to 1736, there is

» a ma,^ to ^ "^^ ^^Y Certain orconclufivc evidence either way, only prrjumptiu

tnnt * ' evidence?

Eastek Tebm 14 Geo. III. 1774. 549

evidence; I have !io doubt but that this evidence to Ihew the Lcifeionly/if
ufage or cuftoni is admiflible. In 1736 we find tlie lord out of ^Sljft^!^.
potreilion, but how the pofleflion was from 1706 until 1736 j^w^fCTU
doth not yet appear. In 1706 a precept is iffued, and the tenants deace of a
return that they have fet out the metes and bounds of the wafle V^^^^^^*\
which Thomas Flanders may inclofe for his own ufe^ with leave of
the lord and tenants, and wnich will not be prejudicial tdthe lord,
the tenants or the Queen's fubje£ls, which is very properly faid
to be like a writ oi ad quod damnum; but this is not a grant in
fee; 1 delire to be underftood not to mean any thing againll the
weight of the evidence of \}sMt precept and return^ wherein are
the words Thomas Flanders his neirs and a^gns, but the lord'$
permifTion and the tenants* confent that Flanderr may inclofe,
furely does not amount to a grant in fee; we muft take it, that
this precept iflued in confequence of fome cullom, and this evi-
dence now offered is to illuftrate that cuftom; if the cuftom be
proved as opened it will not be conclufivc evidence, but cer-
tainly it is aamiflible.

Gould Juftice-— 7I am of a dififerent opinion, and think this is
• not now competent admiflible evidence; the terms of the return
of the precept are " that neither Thomas Flanders his heirs jor
** affi^ns (hould build fo and fo ;" dijreehold was intended to be
granted to Flanders ; there were houfes built upon the gronnd
before the deed poll ^attornment in 1742, which is evidence that '
from the year 1706 there has been an enjoyment by Thomas
Flanders as being Jeijed infee^ efpecially when confldered toge-
ther with the words heirs or affi^ns in tlie return of the precept.
If wc were in the cafe of an ejedment, twenty years poffeflion
would be a fuSicient title for the tenant ; the pofleflion of the
tenant and of thofe under whom he claims for nxty years is the
fame thing in the prefent cafe; it is not pretended that the lord
could not grant infee^ it is not any cuftom that gives this title',
the lord of the tnanor mi^ht as well grant in fee as lor years;
.here is evidence, in my opmion, that the lord granted to Flanders
in fecn

Blackjlone Jiiftice — I agree with my Lord Chief Juftice that
this evidence to fliew the ufage or cuftom is admiflible; my
^Brother Gould fays here is evidence of 2i grant by the lord of the
manor to Thomas Flanders infee^ \i it had been fo there would
have been an end of the matter, but this inftrument of the pre^
cept and the rdurn is on\y prepimptive evidence of Migrant; the
reftri6lion that Flanders^ his heirs and q/figns^ fliall not build fa
and fo is only a prefumption of a grant tn fee; on the other fide
•for the demandant, they wan^ to fliew a prefumptive evidence,
<ibat the grant was of a term for years ^ there may be f uch prefumpm

9S0 EAi^^'Ek Ti»M 14 Gm. Ill ^ 1 774*

tive tviAeace on the fide of the demandant; «ind it ougMt to he
admitted.

ffares Juftice — I am of opinion with my Lord and Brother
' Bkckftone that the evidence now oflfirred is very proper and dd-
mrffible; my Brother Gfmld obiefts thcrt this is letting in evi-
dence contrary to a grant mad6 by the Jord to Flanders in fit
trpwards of fixty years before the ifTuiiig of iFie demandant's
^rit ; kt ITS cbnfider what the evidence is that the tenant has
=given, k is nothing more than evidence that the lord had t
^owerr W Aie precept and the return thereof, to graki to Handets
Ufrd his heirs if he fo pleafcd ; it is executory^ not an a£ltia]^r«i#
txecuied^ here is nothing to (hew that fuch grdfit was ever mad^
or compleated, the tenant has. not pretendta to fef up -any fuch
grant: here is only tifmiii prefumptidn of a grants as it appears
to me, and thcrelore the other fide may give evidence of a
mftom to the contrary, \rhich is very proper to be admitted id
my opinion*

Gould JufticC' — I ground my opinion upon the long^ time of
|)offeffion; I think upwards oi fixty years' poffeflSon in this cafe
implies a good title;

Then Mr. Wall the fteward was examined. He produced
■JS^veral court-books of tlie manor, wherein are many entries of
freo^ts from time to time iffucd by the ftcwards o! the manor
ior the time being, commanding the tenants to fee, inquire and
return how much of the wqfte the lord fnay inclofe, tinthotft
|>rejudice to his tenant^ or the King's fubjefts; and, being toM
Ijv the court he might refer to tlic entries in the books, Mr,
fraU read many entries of precepts and returns thereof, and pro-
duced fomc leafis made in purfuance of foch precepts and returns^
particularly he read one of thefe precepts and returns of the fiSih
day of January 1703, and then produced a leaje granted upon
^^nta precept and return to Thomas AJkeea for thiny-tM»o years.—
He read another of the fame kind of the ft ift day of April 171 j,
and produced a leafe in confequence thereof, to one Gainage for
ypars. He. read another of September 1 66 1 , and a kafi for years
made in confeqnence thereof to one Jeremiah French^ of part of •
the wafle for him to inclofe, brfid upon, and make into gardeu
ground for his own houfe.

Lord Chief Juftice — ^Are any of thefe kafes entered in tht
court books ? . " -

• Mr. Wall the fteward — ^No my lofd. He then read another
. frecefd ^ndrtturnoftht 18th day oi/^rH 1707, and a k^ for

years

EASTKk Tarn 14 Gzo. III. 1774. 551

ycatrs made in purfuance thereof to one 7okn Qarke — ^And' an-
other of the fame in i/ofi, and a kafe to William Francis for 41
years at ftOJ. per annum, — Another of t^e like in the year 1740,
And it appeared there were a great number of entries of other
prtcMs ^d returns of the fame fort, and that kafes for years
had oeen ufually granted in purfuance thereof — ^And Mr. Wall
further depofed, that he could not find in the books of the maaor
one entry or cafe of a grmt in fee by the lord,

Thomas Fojhrooke was called to fliew tliat the premlfesin

Jueftion were a chattd^intereft of Catharine Flanders the widow of
homas Flanders, -^Hc depofed that he knew the ground ia
queftion near 60 years ago, that when Jbe firft knew it, it was
wajle-ground^' he thought that Thomas Flanders firft built fome
little houfes upon it, who died between 50 and 60 years ago«
ftnd left a wioow whofe name was Catharine^ to whom, he ber
lieved, the houfes belonged, but did not remember that ih^
lived in any of them — ^That he knew Roger 0/balde/lon who built
fome of the houfes, three or four of them; that there Vere no
great houfes built before Ofialdefion came into pofleflion, that
there are three or four great houfes, and three or four froall
ones, feven in all, and that the fon of Ojbaldejion told him tlie
houfes belonged to Mr, Tyjfen the lord of the manor; thatTX^-
mas Flanders left a brotdeir, and three or four nephews and
nieces, and that Roger Ojbaldejion AicA about ten years ago.

Charles Gwilt^ produced from the Ecclefiaftical Court a copy
of the tiS of that court to prove that adndni/tration of the per«
fonal eftate of Thomas Flanders was granted to his widow Catha*
rine^ which was read in evidence, and held to be good without
producing the original letters of adminifiration, notice having
been given to produce the letters of adminiftration.

The original will of Catharine Flanders dated 1 ath day of No*
vernier 1726 was produced from the Ecclefiaftical Court and read,
whereby fce direfts the premifes in queftion to be fold to make
good the legacies, and makes Roger 0/baldeJloti and A. Bayly
Joint-executors, but by a codicil [alio produced] revokes A.
Bayly s being executor, ixA m^kc% OJbaUefton fole executor and
refiduary legatee; and by the ^8 of the Spiritual Court for the
probate of the ztM it appeared that Ojbaldejion was the only a6ling
executor*.

Samuel Hillier produced and proved fome original accounts
taken before a mafter in Chanc?ery between 1722 £? 1726 in a
caufe of Tyffen yerfus Tyffen dependfing there when the denlandant
was an inrnitand a «;ar/of that court, m which account the re.

14 N 4 ceivcr

65S Easteb Teem 14 Geo. III. 1774.

ceivtr charges himfelf with four or five years rent received of
Catharine Flanders^ and two years rent after 1726 (when flic
died) at 10s. ficr annu/n lot the premifes in queilion tor the ufe
of the demandant tJien an infant and lord of the manor of Ilaci-
ney; and tiiat after titat time the yearly rent of loj. is returned
in arrear.

It was alfo proved that ThoTn^s .Flanders had a real elbtc at
Waliham^ and that Ibon after his death his nephew entered aiid
enjoyed the fame.

nvhete pre. miliam OJbaldrJlon, the fon of Alexander Ihtt OJbaldepn who
d^'Z\lZ was the fon oiRogrr OJbaldeJlon, bein^ called and fworn,— dcpofed
ffvenofa that he had in his hand a paper writing indorfed '^ a couy of a
»«!«^ fp ■ •• draught of a leafe from Francis Tsjfcn formerly lord of the
J^J^jj"/* *• manor, loTharnqs Flanders, of the ground in queftion for 41

iBeridenccto ♦* years:** Another draught of a leafe of the like tenor which

iodace»prc- was found amongft the writings of the demandant by his at-
SrSjatof I ^^""P^y wa* ^^^^ produced by Mr. Dann his late attorney.— But
le»(e.J Serjeant Davy oDJe£ied that ihcfe dniughts could not be read in

evidence; for that no proof had yet been given to the court that
fuch leafe or leajes ever exifted, that zlea/e might have been 19
contemplation but never carried into execution ; that diere is a
great ditterence between a draught of a Uqfe and an examined cojjy
thereof, thefir/l doth not prove that any &<i/?'ever exifted, but
the latter is U>me proof that a leaJi did once exift, and mav be
read, if the original is loft or deftro)Td, or cannot be found j fo
he inriile4 the draughts could not be read,

Serjeant Hill for the demandant — Anfwercd that fomc lenji
to Flanders muft have once cxiftcd, becaufe it hath been already

J roved that the premifes in queftion have gone from Flandm to
is widow, and jfrom her to Roger OJhdieJloh in a courfc as a
pcrfbnal cftate ; that rent had been paid for it to the lord of the
manor as for aJeafehold; that one draught comes from, and iv
found aniongft the papers of Roger OJbalaefom that the demand-
«nt being a pofthumous child, and his deeds and writings being m
the court of Chancery, there is a pfcfumpiion that his counterpart
of the leafe m^y be loft; that taking all thefe circumftances toge-
ther, here is a reafonable groUnc^ for the court to pei*n»it thofe two
draughts to be read/

Serjeant Glynn for the demandant alfo — ^Anfwered that there
SraiigitS'H^ere not offered as an evidence to eftablifh a leafe, but
to (hf \y that there was a leafi in contemplation, and that there iS
<» great prefumption that the premifes in queftion arc UqfthoU, and
Tk^/re^ho(df fhftt th? tenant h^s only ^wcnprefumptivc evidence

Easter Tbbh 14 Geo. III. 1774. 559

oF a^ grant in fee by the lord of the manor, and that thefe drattghts
agreeing wtih other cii'cumfiances already proved ought to be read.

Mr. Ga;;//, clerk to Mr. El Jerion the demandant'^ attorney—,
proved that he had fcarched an.d looked over every deed of the
demandant in his pofleilton* in the room where be keeps the
fame, and could not find any lea/i to Flanders,
* .

SerjeantGr^^ for the demandant— Aiifwered that thefe drat^kis
were not produced and offered as conclufivc evidence of a uaji^
but infiiled they were admiifible evidence to induce ^prefumptian
that a Uafe once exifted ; and properly encountered the title
made by the tenant, which was no more than a title by prefump-
tion ; and whether the evidence is fleight or Arong is for the con-
sideration of the gentlemen of this Grand Assize, and therefore
it^)ught to go to them. .

Serjeant Davy in reply — Said that his objefiion was not an*
.fwered; that unlefs thefe draughts go to prove that fucha leafe
was executed and once exifled they are no evidence at all ; that
fearch having been made and no leafe to be found, was (if any
thing) rather a proof than no kaJe ever exifled ; that when •
evidence is offered of a deed fupppted to be deflroyed or lofl, it
is neceflary, i//, To prove that fuch deed once exifled. ^dly^
That it is deflroyed or lofl, and that diligent fearch hath been
made in a proper place or places and it cannot be found; or
3^/y, That It is in the hands of your adverfary, who refufes to
produce it upon notice fo to do ; after having done this, a rea-
fonable proof may be ^iven of a copy or the contents of fiich
deed ; a draught alone doth not prove that a deed did ever exifl,
without other circumflances, as letters between the parties, in-
ilru£lions to counfel, S3c. &c, fo he concluded thefe draughts
ought not to be read,

•Lord Chief Jufticc— .The tenant claims under z grant Jrom
the lord injee^ and has only produced prefumptive evidence
thereof; the demandant infills that the premifcs in queflion 'ar«
only ledfehold; he has proved that rent has been paid for the

. fame as upon other fimiiar leafes which have been produced atid
read bjr the fleward of the coufl of ^he manor; he has alio
proved that the premifes have been enjoyed as part of the per*

'Jonal eftate of Thomas Flanders^ and that there is no inflance to
be found in the court books of siny grant ojajet by the lord in
confequence of fuch precepts and returns thereoi as have been
read; and therefore I think thefe draughts ought to be read as
^ tesSoTvAAt prefumpiim evidence that there may have been fuch

. • k^c 9s this onc^ ^xiiling; efpecially a» fi^arch has been pro-

perly

»54 Eastek Tbiim U Gno. in. 177*.

J^crly made for a fco/f ambttg the lorJs deeds, and. none can ht
band* The reft'ot the judges were of the fameopinioo, fo thfc
draughts of ka/is to Thomas Flanders for 41 years were read.

BUcAfttme Juftice— It appeats in evidence that Roigtr OJb(d^
dfiji^n, was the fo!e executor of Catharine Flandefs, and refiduary
legatee of her perfcnal eftace, and that two years rent was paid
after her death ; fo that rent mull have been paid by Roger jO/tal'
defion. Here both fides refted the evidence, which iht Lord
u&ff Jnjlice fummed up to the following effeft.

' Lord Chief Juftice Tie Cr^^f— Gentlemen of this Gratji>
-Assize ! you are to determine this qtieftion as to the mtfe right
between the parties, without regarding the feffin of the tenant
or ttefe fnom whom he claims for any titne te/s than fixty yean
next before the day of ifluing the deman Ant's . wrr/ of right
which was the tsoth day. of November in the twelfth year of his
pnefent Majefty's reign in the year of oar Lord 1771, for if the
tenant or thofe under whom ne claims have been wrongfully
fdfed in poffeflion for lefs time than 60 yeare that is not to bar
the demandant of his rigkt^

The anceftor of Mr. Tyffm at thfe beginning of this centurv
was lord of the manor ^Hackney ; the lord of a manor otiy
may inctefe as much of the wafte or common within his manor as
lie pleafes, leaving fufficiem for the tenams; birt the grantee
of a lord cannot inclofe any part of thie wafte or commsn
-%'ithout the confent of the tenants of the manor as well
as the- lord; and therefore, you fee that the lord of this
manor has, in many inftances, procured the confent of the
tenants for himfelf and thofe to whom be has made leafes of
. part of the zoafie^ to intlofe theTame and to build thereupon,
as hath been proved to you from the many entries of precepts to
inquire, £^c» m the nature of writs of ad quod damnum and the re-
turt^ thereof, and from leafes made in confequence thereof,
which have been produced by the fteward of the court of the
manor and read to you.

It appears that this ufage has prevailed for abont too years ;
that there is a return of oneot thefe precepts \n 1706, which
• fet« out the-dimenfions of the ground in queUion upon the wafe
which Thomas Flanders might inclofe arrd enjoy /i>r his own nfc,
and fays that he fhould maintain a certain water-courfe, and
that neither he, his heirs or ajfigns^ fhould b\iild foand fo, as is
^xpreffed in the retufh which has been read to you.

It appears that Thomas Flanders was in p^feffhn rf>ove 60 years
.agO| but it does not appear that he had ^ny grant in fee 01 the

premifes

EabteH Tbbm 14 Gso. IIL 1774« 555

fsremifes in ^eflion ; that after his death his wife took ^adf^mu
^ration of hi« perfonal c/IaU^ enjoyed the premifes and paid iOJ«
pir annum rent tor the fame to tl^ lord m the manor until her
death ; that Ae made her will^ and 0/halde^n fole executor
thereof and refiduary legatee, wherein (he gives him power to
(M the premifes in cmeftion to make good the legacies in the
mil H the perfonal efiaie fbould not be fufiicient ; diat O/bal"
Jkfion then got pofleillion of the premifes and paid the rent for
a year or two. At this time the manor Wad defcended tw«
defcents fince the year 1706, for the demandant was born in
»7i7-

^oKn Qarkt (the father of the tenant) when he took the niort«
gage in i73o« could have no good title without having recourfe
CO the lord of the manor, from whom the fame muft be derived^
nor does it ^tpp^^r that he made any inquiiy about it ■ 'In

1742 Ofbddc^on releafed the equity of redemptton iaftt^ and a
frnt was levied by him and his wife to the ufe of John Clarie in
Jee^ who feems to have taken the title upon the length of pof<»
<£efl]on, for there is not the leaft reference to any title, of OJtat^
iJe/lon, fo that tiiere is'a ground to fuppofe fome fraud in him,

George Oarki the heir of John Ciarie is jiow in polTeflion, and
the queftion for you to try is, whether you fee fofficient ground
tp ^rg/um^ that in the year 1706, or thereabouts, there was a
grant by the then lord of the manor to Thomas Flanders in Jet
teterving a quit^rent "h or whether there was only a kt^t to him
for 41 years which was expired in 1747* or thereaboute ? Ooe
of thefe two fafis you are to prefumke^ for iliere is nothing mose
than pr^mpHve evidence on cither fide.

The counfel on the part of the tenant Mr. Qarki rely on
thefe circumftances, nri. that the tenanu of the manor made a
return to the precept in 1706, feuing fonh that they had viewed
the wafte ground and the dimenfions thereof by the rod wjiich
mi^ht be inclofed by Thomas Flanders Jor his ^nun ufi^ wittiout
prejudice to the lord or the tenants of the manor of the Queen's
fubje£ls, and that Flanders nor his heirs or affigns (hould build
thereon lb and fo; but thi» doth not imply di grant in Jee to
' Flanders. -^'^li is alfo obferved for the tenant, that Flanders.
his heirs and ifffigns were to do fome things, as appears by the
return of the precepts, this is only a circumftaace, aaul doth not
imply a grant in Jee : I obferve tlMit moil of thefe inquiries by
the tenants of the manor are, whether it would be prejudicial
if the Urd of the manor hirafelf (hould indofe^ bat there is no
fuch rtinm as this for a tenant to inclofe reibwiing hinit ^
beirs a$id a£igns^ not tp build fo and fo*

Another

656 Easter Tehm 14 Geo. III. 1774.

• Another matter relied upon for. the tenant is, that if it was
^leaft to Flanders in 1706 for 41 years, the fame expired in
1747, and from that time until the commencement of this fuit
(beinjj about 25 ywrj^ the demandant took no notice thereof,
and it this had been an ejeSment he would have been barred ;
this is much relied upon as a Urong prefumption that there had
teen a grant in fee to Flanders » — ^As to the fine, if the party rd«»-
for thereto was only tenant for years, it did not put the land-
lord out of pofleflion.

The counfel on the part of the demandant Mr. Tyjftn rely
. upon the ufage of thele precepts to inquire and the returns
thereof and the leafes *made in confequence thereof for 100
years lad paft, but it mud be obferved this is only circumftance:
they alfo fay the premifes have been enjoyed and gone in-courfe
^?L per fond eftate: but as to thai^ the title at the death of die
widow Flanders feems to be fomewhat doubtful ; another thing
relied on is, that if Clarke the tenant fuffers, it is by his father's
default, for he took the eilate from OJbalddlon without any tJtic
•deedi, upon the mere poflelfion of OJoaldefton; indeed this fliews
John darkens negligence ; another obfeivation is made from the
receiver's.accounts pafled in the court of Chancery, that the rent
was received as due upon a leafe^ and not as a quit-rent ; but Mzj,
I think, is of no great weight, for the recewer makes out the
accounts.

Now I will ftate the fubftance of the evidence on the part of
the tenant. From the precept and return thereof and the* whole
trsOifafiion thereupon in the year 1706 no grant in fee ap-
pears from the lord to- Tkomas Flanders, nothing but circum-

Jlan€es. In the mortgage of 1736 by lea/i: and rdeafi^ Of-

baldefton coven^ints that he has a right to convey in fee fubjecl
to a quit-rent of loi. per annum payable to the lord of the
manor ; in 1742 O/baUeJhn releafed tne equity of redemption in
fee to yohn Clarke^ there is no evidence of any fraud between
them; there is a covenant that the eftate is free from incum-
brances except the quit-rent, and to levy \fine: afterwards in
1742 a >f/f« was levied by Ofbddejlon ana his xvife to the ufe of
loan uarke the father of the tenant in fee, who is admitted to
. be his heir; poffeffion has been proved to he in the father and fon
from that time until this; and a deed poll of attornment of OJ-
baldeflon and the tenants to John Clarke has been proved ; ths^
as is prefunud, might be ^>fee.

The fubftance of the evidence on the part of the demandant.
It has been proved that the demandant's anceftors have been
in poffeffon and lords of the manor of Hackiuy.^ before the year

1706; .

Eas*ek Term U Geo. III. l??4. 557

1706 ; evidence has been given of the ufage to \SvLt precepts to
inquire and make returns thereto in the nature of writs of ad
quad damnum^ whether if the lord (hould inclofe luch a parcel of
wafte it would be prejudicial, G?c. that if the r^/nm was, that
it would not be prejudicial, &c* he ufed to inclofe fo much Tet
out in fuch returns by metes and bounds, and ufed to make
Uafes thereof for terms of vears ; and to be fure he might have
granted the fame injee it he Had pleafed; but by the ufage it
appears they were all leafes for year?, and there does not appear
one inftance of a grant tnfee ; ^ut the ftewards faid he never
faw any entry of ixxcYiUaJes in the court-books of the manor.

As to the draught of the leafe which came out of OJbaldcfiorC%
hand, if one was to form a conje3ure, it would be that Mr.tjiffen's
attorney at Aat time made that draught: a draught is the leaft
kind ot evidence ; the intended leflee might refufe it, either be-
caufe he wanted to have a fee^ or did not like the covenants or
conditions therein; nothing appears to be done in confequence
of the draughts^ fo there is a doubt whether there was ever any.
^Uafe or not^ It is firange how both parts of a lea/c (if there
ever was one) could be loft or deftrojred; xlOJbaldefton bad de-»
flroyed the originai leaje^ onQ would think he would alfo have de«
ftroyed the draughty but there is no evidence of any fuch de-
firufiion, for there is no evidence of. any lea/e^ nothing but
circum/tances : the counterparty fuppofed to be m the hands of
the lord of the manor is alio loft (it ever there was one;) if there
was a leaji it might be for .99 years for any thing that appears,
and. if it was for fo long term, the right is ftiJl in the tenant
Clarke; t think thefe draughts the very weakeft evidence to prove
that a Uafe exifted ; if you prejume there was a leafe from the
(lender evidence of thefe draughts^ you mufipre/ume it was 'for
the term of 41 years: this is the fubftance of the evidence on
both fides, upon which you are to determine whether the tenant
has a greater title to hold the tenements in queftion to him and
hi$ heirs or whether the demandant has title to hold the fam^ to
him and his heirs as he hath demanded them.

The recognitors of the Grand Assize withdrew for about [•AnewtrUi
the fpace oflialf an hour, and then brought in a verdift for the 7^^V^

J * « J, " '^f "**t IC-

oemandant.* mfed : and it

feeiBf that no
new trial will be {noted on awritofrighs except the vcrdia be flagrantly wrong. See % Black* RtP*

Proceedings

59»

V&QCnspiVQS 1» A WUT OF RlG9T^

The original
writ of right.

Tboietom
indorfedon
the\mt of
r^ght*

The writ of
fratid cafi*

Froceedii^ in a writ </ right paienS between Tyfiea
£iq. demandant^ and Clarke tenant.

r^EORGE the Third, by the grace of G O D, of Greai Bn^
^^ tatm^ France »i4 Ireland^ King, defiesder of the faith, &r. to
the Iheriff of Mi^^yEx greetii^. Command George Qarkt ihik
hf jofily, and without delay, render unto Francis John T^en
Efq.' ten m^ffuages^ ten gardens^ onejhdp^ two coackJtonfes^ three
Jlahles^ and two acres of land with the appurtenances^ in the farijh

2 f Saint John Hacinev\, which he clainM to be bis right and in-
eritance and to hola of us in chief, and whereof he complms
that the faid Geot^e Clarke unjuiUy deforces him, and unlefs bo
fiudl fo do, and it the laid Franfis John ihall give you fecurity
of Brofecuting his claim, then fummoa by ^ood fummoners the
&ia George Clarke that he appear before our juftices at WefimnfUr
iu eight days of Saint Mlaijt to fiiew wherefoi e he hath not
done it, and have you there the fitmmoners and thi« writ. Wit-
Befs Ourfelf at ffyhniti^er the twentietli day oi Novemher^in^
twelfth year of our reign.

. Mot.

{John Doe.
and
Richard Doe.

The fummoners of the wUhln^inanied George Clarke ar9
James jbrmftrong and David Simp/bn.

And- at the moft ufual door of the parifh church of Saint John
Hackney within mentioned on Sunday the 29th day of Dtcember^
in the year within written, immediately after divine fervice and
fermon ended, x I did caufe public proelamation to be made ac*
cording to the form of the ftatute in iuch cafe made and providetL

{John Wilkes TL{(^,^
and > Sheriff.

Fred. Bull ^{^1. J

George Clarke the tenant having been legally fummoned, did
not appear at the return of the original writ, but made default,
thereupon a writ of grand cape imied, the tenor whereof here
follows.

GEORGE the Third, by the grace of G O D, of Great Bri-
tain. France and Ireland ^ King, defender of the faith, &c. to the

fberiS

ftortff of MiddUfac ^roetiog. Take into our hands by the view ot
hoiieft and laivtul men of your county, ten meJfuagcSf ten g^r-
dens^ one Jhop^ two coach Jgoufes^ thrteJlaUes^ and two acris of
lanJf with the appurtenances^ in the panjk df Saint Jt>hn Hackney^ ,
vtich francif John Tyjfen Efq. in our court beforeour juftices
at Wejlmit^ler claims to be his right and inheriunce, and to
hold of us in chiefs and whereof he complaint that Georgt
Clarke unjufi^r deforces hire, bv onr writ rf writ, through the
default' of the faid George Clarhe: and the day of the caption
^ad^ known to our juALces at Wejimnfter by your letters fcaled,
and fummon by |^d fuaunoners the faid George Clarke that ho
be before our juHices at Wejimnfter Jrom the day of Eafler in
fifteen days, therebf to anfwer and to fhew whcrefpre he was not
m our court before our juftico at Wejlminfter in dtkt days of
Saint Iblary laft paft as he was fummpned, and have you
there the names ot thofe hv whofe view you fliali have wne
this, the fummoners and tnis writ. Wiinefs Sir Wiliiam Dc
Grey Koit. at Weftminjler the latb day of Februaty jn the twelfth
year of oar reign.

The tenant having appeared, and &ved his defauk at the re-
turn of the writ oigranacape, the demandant declared, and the
tenant pleaded the gtenera) iflne; whereupon, the mife beins
joined upon the ;n^r^ right, xht ioWoyMxnfwrit of fnmmons iflued
to fummon ' four Koi^its to make deSion of the Grand
' Assize.

GEORGE the TMrd. by die grace of GOD, of €reai Bri. Writ ofjfai-
tain, Srana and Ireltmd, King, defenda- of the faith, f?^r. to the J^*'JJ^^^
fiieriff of hbddkfex grectiog. We command you that by good eua tbe
^ fummoners you ifummon four lawful Rnights of your county. Grand Aflue.
girt with fwof ds, that thev be before our juftices at Weftmnfier^
on the morrow of All fouls, to make ele£lion of our Gran d
Aaiiz^E between Francis John Tyffen Efq. demandant, and
George Claris tenant, of ten mejuages^ ten gardens, onejkop, two
coach-houfes, three /fables, and two ficres y land with the appur-
tenances, in the jbarijh of Saint John Hackney in your county,
whereof the faia George Garki in our fanie court hath put liiiri-
.felf upon our Grand Assize, by ]>raying a recoEiiition to be
made whether he hath a greater title to hold the teuometits
aibrelaid, with the appurtenances, to him and his heirs as tenants
thereof as he now hoiys the fame, or whether the faid Franas
Jokn TyJ'ea hath title tp hold the lame tenements, with the ap-
piutenaaces as he hath demanded the fame, and have you there
the names of die fummoners, the Knights, and this writ. Wit«
iiefa Sir WilliaM De Grey Knt. at Weft/mnjier the 30th day ofjyne
ia tbe tfaijrteeiith year of our reign*

m/!es.
6 Iho

600

pEDCEfiDmoS tN A WbII" OP RlGHT^

The flierifT having done nothing upon the writ of fummons
ot four Knights, the following alias writ offwmmtms ifliied. re-»
turnable^^OT the day of Saint Martin injificai days.

writ of fttm-
motisoflottr
knights*

knighti.

GEORGE the Thirds hy the grace of GOD. of Great Bri^
tairiy France and Ireland^ King, defender of the faith. He. to the
fheriff of M^i^l^A* greeting. We command you, 2A before we
have comipanded you, that b)r good fumraoners you fummod
four lawful Knishts, &c. (as in the firft writ of mmmons ver^
batimj witnefs Sir Wtlliam Dt Grey Knt. dxWefiminJler^ the 6th
day of November^ in the fourteenth year of our reign.

WiOes.

Theretttra By Virtue of this writ to me direfied, I have caufed James
of^tMhat EfdaiU^ James Hodges, Philip Dyot, and George Mercer, four law-
^^'^of ^ ful Knights of ray county girt with fwords, to be fummoned by
Henry, tar^ufon and Jokn'fvhittaker my bailifTs, to be before- bis
Majefiy's juSices at the day and place within mentioned, to do
as by this writ they are required, and as I am within com-
manded, the faid fummoners are and each of them ismainfrizeJ
by Join Doe and Richard Roe.

f Stephen Sayer Efq. ")
Theanfwerof^ and S- Sheriff.

Imiliam Lee Efq. )

The four Knights above-mentioned appeared in court, at the
return of the alias writ of fummons $ and, being placed in the
jury-box, on the north-nde of the court of the bench, were fe-
verally fworn lawfully and truly to choofe twelve Knights girt
with (words, of themlelves and others, which beft know and will
declare or fay the truth between the parties.

The four Knights having chofen of themfelves and others
twenty four a writ of venire facias iflued, the tenor whereof here
followeth.

GEORGE the Third, by the grace of GOD, of Great Bri*

tain, France and Ireland, Kin^;, defender of the faith, &c. to the

fheriflFof Middlefex greeting. We command you that you caufe to

come before our juftices at Weflndnfier from the day ofEafter in

one month, James EfdaiU of BunhilKro^, James Hodges of High*

gate, Philip Dyot of Dyotflreet, ^Geofge Mercer of Margaret^

flreet, John Waif or d of BunfiilLrow, Edward Hawkins of Lenum*

flreet, Knts, John Spiller of Chrijl -church, Gerrard Howard of

' Hampflead, Robert Cary of the fame, Guy Bryan of Chrift^hurch^

Cadwalladcr Coker of Old flreet^ Roger Griffin of Iftington^rotLi^

Booth 97.

The writ of
vtgire/acia^.

Tyssbn Dbmaksant verjus Clabkb Tenant. 561

JofepK Kdlivg oiClerienweli, Thomas Cogan oiJ^gton, Lotnax
By£roir "" '" * ~

i^a;

: FincfiUy^ William Addin^ton ol Southampton-row ^Thomas

^arry of Berncrsjlrett, Charles Shepherd ot BuUlrode-ftreet^
Thomas Lockwooa of Edwardjlreet^ George Rdd of Wfon
Green^ Harry Parker of Newman-Jlreet^ WiUiam Baker of Port'* •
manjquare^ Jpfeph Wihon.oi Queen Ann-Jlreet^ and Leonard Morfc .
of the fame Efqrs. recognitors chofen to make recognition of
our Grand Assize, brtween Francis John Tyjfen Efq. demand- •
ant, and George Clarke tenant, of ten.mfffuages^ ten gardens, one
Jhop^ two coach-houfes, three flqbles^ 'i\nd two acres of land with
the appurtenances, in the parijh of Saint John Hackney in your -
county, whereof the faid George Clarke in our fame court hath
put himfelf upon our Grand Assize by praying a recognition
to be made, wtiether he hath a greater title to nold the tene-
ments aibrefaidy with the appurtenances, to him and his heirs as
tenants thereof as he now holds the fame, or whether the faid
Francis John Tyjfen hath title to hold the fame tenements with .
the appurtenances as he hath demanded the fame, and have you
there this writ; witnefs Sir William DeGrey Knt. at Weflminjler
the i«th day of February in the fourteenth year of our reign.

• Here next follows the entry of the whole record upon the
roll [number 439) among ^Atf^/foj of land of Trinity term in
the tnirteenth year of King George the Third.

MIDDLESEX, {to .vfh) Francis John Tyjfen Efq. by John The count
Vernon his attorney demands againft GeorgeUarke ten meffuages, "po."^*^"*
ten gardens, one Jhop, two coach-houfes, three Jlables, and two ^ "* ^
acres of land with the appurtenances, in the panfli of Saint John
Hackney, as his right and inheritance by writ of the Lord the
King oiri^ht, and thefeupon he faith that Francis Tyjfen Efq.
father of him the (dA^^ Francis John, was feifed of the tenements
aforefaid with the appurtenances in his demefne as of fee and
right in the time of peace, in the time of ihe Lord George the
firft late King of Great Britain, (to wit) tvithin fixty years now
la/l paft, by taking the efpkes thereof to the value, &c. and from
tne laid Francis the father, the right defccnded to the faid Francis
John, who now demands as Ion and heir of the faid Francis
his father, and that fuch is his right he offers, £?c. And the TK^*^*"*^
faid George Qarke hy John Swale his attorney comes and de- J^^j^
fends the right of the laid Francis John Tyffen, and the feifm of
the faid Francis Tyffen when, fi?^. and the whole, (3c. and what-
foever, 0t. and mpftly of the tehemeiits aforefaid ^% of fee
and right, fi?c. and he puts himfelf on the Grand Assize of Thetenint.
our Lord the king, and he prays a recognition to be made, whe- conclude hii
iher he the faid George Clarke has a greater title to hold the jl*^^^
tenements aforefaid with the appurtenances to him and his heirs ^^'

a$ tenants thereof as he noyr holds the fame, or whether the

Vol. UL o o faid

56o

monsoflottr
kJUfhU*

PaOCESDINGS tN A WbI'T OP RlGHT^

The IheriS having done nothing upon the writ of fummom
ot four Knights, the following alias writoffummms iifued, re«
turnable^^;» the day of Saint Martin injifieen days.

GEORGE the Thirds hy the grace of GOD, of Gnat hri.
tain^ France and Ireland^ King, defender of the faith, \ic. to the
fheriff of Middlefex greeting. We command you, a^ before we
have comipanded you, that b)r good fumraoners you fummoti
four lawful Knights, &c. (as in the firft writ of lummons vtu
ifltimj witnefs Sir IVilliam Dt Grey Knt. at Weftmnflcr^ the 6th
day of No-oembtr^ in the fourteentli year of oiir reign.

Wxlks.

Theretttin

By Virtue of this writ to me direfied, I have caufed Jaim
'^ EfdaiU^ James Hodges^ Philip Dyot^ and George Mercer^ four law-
«««..of I^ ml Knijhts of ray county girt with fwords, to be furamoned by
knighttt Henry, rargufon and JohnWhittaker my bailiffs, to be beforebis
Majefiy^s juftices at the day and place within mentioned, to do
as by this writ they are required, and as I am within com-
manded, thefaid fummoners are and each of them is- fnainpriui
by Join Doe and Richard Roe.

The anfwer

r Stephen Sayer Efq. '
"^ and

[mUiamleeBSq. )

of) ' ani * 1 Sheriff.

Booth 97.

The writ of

vmre facias*

The four Knights above-mentioned appeared in court, at the
return of the aha^ writ of fummons; and, being placed in tlie
jury-box, on the north-iide of the court of the bench, were fe*
verally fwom lawfully and truly to choofe twelve Knights g^il
with (words, of themlelves and others, which belt know and will
declare or fay the truth between the parties.

The four Knights having chofen of themfelves and othcn
twenty-four a writ of venire facias iffued, the tenor whereof hcK
foUoweth.

GEORGE the Third, by the grace of GOD, of Great Bru

tain, France ^nd Ireland, Kin^, defender of the faith, &c. 10 4e

flieriffof Middle/ex greeting. We command you that you caufetl

come before our juftices at Weft mincer from the day ofEafierix

one month, James EfdaxU of Bunhill-rdu^, James Hodges oT^ffc

gate, Philip Dyot of Dyot-ftrtet, *Gto)ge Mercer of Margati*

Jlreet, John Waif or d of BunhilLrow, Edward Haxvkins of Imm

Jlreet, Knts, John SpilUr of Chrijl-church, Gerrard Howarii

• Hampflead, Robert Gary of the fame, Guy Bryan of Chriflulwrik

Cadwalladcr Coker of Oldflreet, Roger Gnffin of Iflington'Tm

3^

Tyssbn Demandant verjus Clabke Tenant. 561

Jofeph Kdlini ol CUrkenwdl^ Thomas Cogan oHJ/lhigion^ Lomax
Rytkr of FinckUy^ William Addineton of Southampton-row^ Thomas
Parry of Btrnersjlrect^ Charles Shepherd ot BulRrode-Jlrut^
Thomas Lockwooa of Edwardjlreet^ ^^^^S^ ^^ ®f ^^^n
Green^ Harry Parker of Newmanjlreet^ Witkam Baker of Port* '
manjquare^ Jofeph fFiliqn.of Queen Annjlreet^ and Leonard Mor/e .
g[ of the famerlfqrs. recognitors chofcn to make recognition of
J . our Grand Assize, brtween Francis John Tyjfen Efq. demand-
j| anC, and George Clarke tenant, of ten.mrffuages^ ten gardens^ one
5I Jhop, two coach'hou/eSf three flables^ 'qnd two acres of land with

\ the appurtenances i in the parijh of Saint John Hackney in your *
^^\ county s whereof the faid George Clarke in our fame court hath
put himfelf upon our Grand Assize by praying a recognition
y I to be made, wncthcr he hath a greater title to hold the tene-
[ ^t ments aibrefaid, with the appurtenances, to him and his heirs as
L,^ tenants thereof as he now holds the fame, or whether the faid
M^ Prancis John Tyjfen hath title to hold the fame tenements with ,
■ ^;. the appurtenances as he hath demanded the fame, and have you
■jUj there this writ; witnefs Sir William DeGrey Knt. at Weflminjler
^ the i«th day of February in the fourteenth year of our reign.

15

' Here next follows the entry of the whole record upon the
roll fnumber 439) among /A<;^/faj of land of Trinity term in
^g the tnirteenth year of King George the Third.

MIDDLESEX, [to ytix) Francis John Tyjfen Efq. by John The count-
rtfif' V^^^^^ his attorney demands againft GeorgeClarke ten mefftiages^ ^vori^mtix
'^^i ten gardens^ one Jhop, two coach-houfes, three Jlables, and two ^ "* *•
g rf^ acres of land with the appurtenances, in the panjh of Saint John
: ^^ij^ Hackney, as his right and inheritance by writ of the Lord the
j^cft^ 'KXtigol right, and thereupon he faith that Francis Tyffen Efq.
ll^ father of him the {d!iA Francis John, was feifed of the tenements
aforefaid with the appurtenances in his demefne as (ffee and
right in the time of peace, in the time of ^e Lord George the

ODt ^rj' Ais father, and that fuch is his right he offers, &c. And the Th« defenct;
l^titb,^'jfaid George Clarke hy John Swale his attorney comes and de- ^J.^
oui^'^j fends the right of the laad Francis John Tyffen, and the feifm of

^i9/,^Jthe faid Francis Tyffen when, 6?c. and the whole, (3c. and what-
1^/1^1 foever, S?c. and nioftly of the tehemeiits aforefaid as (f fee
fef^ ii^"^ ^iff^> ®^' ^"^^ ^^ P"^s himfelf on the Grand Assize of The tenint.
I /fa8?'^]0i>ur Lord the king, and he prays a recognition to be made, whe- condudes hlf
g^^TKIherhe the faid George Clarke has a greater title to hold the jl^^^
^of'J'^itenements aforefaid with the appurtenances to him and his heirs Au*^-

Tcn d In M tenants thereof 9$ he noy^ holds the fame, or whether the
r Vol. IIL o o faid

56o

writ of funi«
moos of lour
knighu*

PlU)CESBlK6S tN A Wsit OP RlGHT*

The JherifT having done nothing upon the writ of fummons
of four Knights, the following alias writ of fummons iflued, re«
turnMeJrom the day of Saint Martin injifieen days.

GEORGE the Third, by the grace of GOD, of Great Bri^
iain^ France and Ireland, Kuigt defender of the faith, dc. to the
fheriff of Middle/ex greeting. \Ve command you, a& before we
have comiTianded you, that b)r good fummoners you fummon
four lawful Kni|jhts, &c. (as in the firft writ of himmons ver*
batimj witnefs Sir tVtUiam Dt Grey Knt. at Weftndnjler^ the 6th
day of November ^ in the fourteenth year of our reign.

WiOes.

Theretttra By virtue of this writ to me direfied, I have caufed James
of^tmRas EfdoiU^ Janus Hodges, Philip Dyot, and George Mercer^ four law-
montof^ ful Knights of my county ^irt with fwords, to be fummoned by
luightt. Henry Fargufon and JohnWhittaker my bailifTs, to be before* hu
Majefty's juSices at the day and place within mentioned, to do
as by this writ they are required, and as I am within com-
manded, the faid fummoners are and each of them ismainprized
by Join Doe and Richard Roe.

Booth 97.

The writ of
vtairt facias.

e Stephen Sayer Efq.
f^ and

Imiliam lee Efq. 3

The anfwer of^ ' an^ * t Sheriff.

The four Knights above-mentioned appeared in court, at the
return of the ahas writ of Jiimmons : and, being placed in the
jury-box, on the north-nde of the court of the bench, were fc-
verally fwom lawfully and truly to choofe twelve Knights giit
with (words, of themlelves and others, which beft know and wilt
declare or fay the truth between the parties.

The four Knights having chofen of themfelves and others
twenty-four a writ of venire facias ifliied, the tenor whereof here
followeth.

GEORGE the Third, by the grace of GOD, of Great Bri-

tain, France and Ireland, Kin^, detcnder of the faith, &c. to the

fheriff of Middlefex greeting. We command you that you caufe to

come before our juftices at Weflmr^er from the day ofEafler in

one month, James Efdaxlt of Bunhxll-roinf, James Hodges oXKxgh*

gate, Philip Dyot of Dyot-flreet^ *Geo^e Mercer of Margaret^

Jlreet^ John Waif or d of BunmlLrow, Edward Hawkins of lamon^

flreet, Knts, John Spiller of Chrift -church, Gerrard Howard oi

' Hampjlead, Robert Gary of the fame, Guy Bryan of Chrift^kurci,

Cadwalladcr Coker of Old flreet^ Roger Guffin of Iflington-road.

: '

^

A

r ■ ^ • .,

Tyssen Dbmanbant verjus Clakkb Tenant. 561

Jofcph Kdlins oiCUrhnwtlU Thomas Cogan QiJ/Sftgion, Lomax
Ayderoi FinckUy^ William Addin^ton 61 Southampton-row ^Thomas
Parry of Btrncrsjlreet^ Charles Shepherd ot Buljlrodejlreet^
Thomas Lockwood of Edwardjlreet^ George Rdd of Jjjfon
Creen^ Harry Parker of Newman-Jlreet^ WiUiam Baker of Port* *
manjquare^ Jofeph Wihon.oS, Queen Ann-Jlreet^ and Leonard Mor/e »
of the fame Efqrs. recognitors chofen to make recognition of
our Grand Assize, baween Francis John Tyjfen Efq. demand- ■
anf , and George Clarke tenant, of ten.mfjfuages^ ten gardens^ one
Jhop, two coach'hou/eSf three flables^ '(^d two acres of land with
the appurtenances^ in the parijh of Saint Jfohn Hackney in your *
county^ whereof the faid George Clarke in our fame court hath
put nimfelf upon our Grand Assize by praying a recognition
to be made, wncther he hath a greater title to hold the tene-
nients aibrefaid, with the appurtenances, to him and his heirs as
tenants thereof as he now holds the fame, or whether the faid
Francis John Tyjfen hath title to hold the fame tenements with .
I the appurtenances as he hath demanded the fame, and have you

^ • there this writ; witnefs Sir William DeGrey Knt. at Wejlminjler
i ' the i«th day of February in the fourteenth year of our reign.

• Here next follows the entry of the whole record upon the
roll fnumber 439.) -among ^^(f^/foj of land of Trinity term in
the tnirteenth year of King George the Third.

MIDDLESEX, [to ytix) Francis John Tyjfen Efq. by John Thecounr
Vernon his attorney demands againft GeorgeClarke ten meJTuagesi "r*,'^J*'**
ten gardens^ one Jhop, two coach-houfes, three Jlables^ and two * ^
acres of land zmth the appurtenances, in the panfli of Saint John
Hackney^ as his right and inheritance by writ of the Lord the
King of right, and.thefeupon he faith that Francis Tyjfen Efq.
father of him the {2X6! Francis John, was feifed of the tenements
aforefaid with the appurtenances in his demefne as of fee and
right in the time of peace, in the time of ihe Lord George the
firft late King of Great Britain, (to wit) within fxty years now
ia/i pa/i, by t^ng the e^lees thereof to the value, &c. and from
the laid Francis the father^ the right defccnded to the faid Francis
John, who now demands as Ion and heir of the faid Francis
his father, and that fuch is Aw right he offers, G?c. And the Th« defenct;
faid George Clarke hy John Swale his attorney comes and de* JS*^^
fends the right of the laad Francis John Tyffen, and thci feifin of * *^*
the faid Francis Tyjfen when, 6?c. and the whole, £?c. and what-
foever, &c, and moftly of the tehcmems aforefaid as of fee
and right, &c. and he puts himfelf on the Grand Assize of Thetemnt
our Lord the king, and he prays a recognition to be made, whe- conduaeshif
i iher he the faid George Clarke has a greater title to hold the 5^^ !^
tenements aforefaid with the appurtenances to him and his heirs '^^^'

a$ tenants thcre9f as he noyr holds the fame, or whether the
VoL UL o o faid

56o

Tht alUt
writ of fum-
mom of ibur
knishts*

pBOCESBtNGS iN A WbiI" OP Ri6HT«

The JherifT having done nothing upon the writ of fummons
ot four Knights, the following alias writ offummcns iflued, re-*
turnable^tf/n the day of Saint Martin injifieai, days.

GEORGE i\\t Third, by the grace of GOD, of Great Bri^
tain^ France and Irdand^ King« defender of the faith, tfc. to the
ftieriflFofM^.jtf^^jf greeting, vVe command you, as before we
have comipanded you, that b)r good fummoners you fummoQ
four lawful Kniehts, (dc. (as in the firft writ of himmons vct*
batimj witnefs Sir William Dt Grey Knt. at Weflmnjler^ the 6th
day of November^ in the fourteenth year of our reign.

WiOts,

Thccettira By Virtue of this writ to me direfied, I have caufed Jama
^^J^ ^^^\ j''**^*^ Hodges^ PhiUf Dyot, and George Mercer^ four law-
moiitecSrar ^' Knijorhts of my county ^rt with fwords, to be fummoned b^
kaighttt Henry farfufon and John^Wkittaker my bailifTs, to be before-hu
Maje(ly*s juftices at the day and place within mentioned, to io
as by ibis writ they are required, and as I am within com-
manded, the faid fummoners are and each of them is' maiajniud
by Jblkn Doe and Richard Roe.

: (&<rjhi<9iSs^ Efq.)

The anfwer of) and > Sheriff.

ImOiamLeelSii. )

The four Knights above-mentioned q>peared in court, at the
return of the alias writ of fmmmons; and, being placed in the
jury-box, on the north-fide of the court of ike bench, were fe-
verally fvrom lawfully and truly to choofe twehre Knigfats gia
with (words, of themlel ves and others, which beft know and will
declare or fay the truth between the parties*

97.

Tlievritof

The four Knights having chofen of themfelvcs and othen
iwentyfonr a writ of venire Jadas ifliied, the tenar ynhcrcoi hoc
followeih,

GEORGE the Third, by the grace of GOD, cliGreatB^.-
tmn^ France and IrcUnd^ luni;, defender of the faith, &c. co the
IherilTof MidJJf/ex greeting. We command you that yoa caakn
come before our juftices at WeftmaaJter from ike day ofEdtsr it
one mcmtk^ Jamts EfJmU of BnnkUUv^, Jama HaJkes eAB^
gaie^ Phhfi D\oi o( DyoiJIrtei^ Geaifj^e Mercer of Margafd^
/treet, Jokn U^ford of BaJall^aw, £da;ard Hanobmi oC Irmm-
Jrect, Knts. John S}r,lUr of Ckrjfi-ckmrck, Gerrard Hammrdd
Hamfjicad, Reiert Cory of the bme, Gmv Bnmm cf Ckwi/iuimnk,
Cadz^'aHadcr CHer ol' OUJreei^ R^ger'Cr^ 6[ f/bngtam^rmi

r

< ;'

Tyssen Demandant ver/us Clakke' Tenant. 561

Jofeph Kdlinff ol CUrkenwell^ Thomas Cogan oi J/Rngton^ Lomax
Bydcr of FmcfiUy^ William Addin^ton of Southamtton-row^ Thomas
Parry of BernersJlreet, Charles Shepherd o( BMrodeJlrttt^
Thomas Lockwooa of Edwardjlreet^ George Reid of IJ/fon
Green J Harry Parker of Newman Jlreet^ Wiuiam Baker of Fort-^ '
manjquare^ Jofeph Wihon.oi Queen Annjlreei^ and Leonard NLorfe «
of the fame JBlqrs. recognitors chofen to make recognition of
our Grand Assize, baween Francis John Tyjfen Efq. demand- •
ant, and George Clarke tenant, of ten.mrffuages^ ten gardens^ one
Jhop^ two coach Jioufes^ three flabUs^ *qnd two acres of land with
the appurtenances^ in the parijh of Saint John Hackney in your
'. .^ county^ whereof the faid George Clarke in our fame court hath
put himfelf upon our Grand Assiz£ by praying a recognition
4 to be made, whether he hath a greater title to hold the tene-
:; ments aibrefaidy with the appurtenances, to him and his heirs as
( tenants thereof as he now holds the fame, or whether the faid
» Francis John Tyffen hath title to hold the fame tenements with .
the appurtenances as he hath demanded the fame, and have you
;j there this writ; witnefs Sir William De Grey Knt. at Wejlminjler
g,. the 12th day of February in the fourteenth year of our reign*

Here next follows the entry of the whole record upon the
roll Tnumber 439) among Mtf ^/fflj of land of Trinity term in
I the mirteenth year of King George the Third.

MIDDLESEX, [io y^ix) Francis John Tyffen Efq. by John Tbewunr
^ Vernon his attorney demands againft GeorgeClarke ten mejfuages:^ upoaa writ
^ ten gardens t one Jhop, two coach-houfes, three Jlables^ and two **'*•'•
j^< acres of land with the appurtenances, in the panfh oj Saint John
^ Hackney^ as his right and inheritance by writ of the Lord the
^/ King of right, and.ther^upon he faith that Francis Ty£en Efq.
father of him the faid' Frj/ictJ John, was feifed of the tenements
» aforefaid with the appurtenances in his demefne as of fee and
jj nght in the time of peace, in the time of fhe Lord George the
^ firft late King of Great Britain, (to wit) within ftxty years now
^^P^f by t^ng the efplees thereof to the value, fi?c. and from
the laid Francis the father, the right defcended to the faid Francis
John, who now demands as Ion and heir of the faid Francis
his father, and that fuch is his right he offers, &c. And ihe Th« defenct;
",.> faid George Clarke hy John Swale his attorney comes and de- ^^^^

fends the right of the laid Francis John Tyffen, and the feifin of

^ the faid Francis Tyffen when, £5?^. and the whole, (3c. and what-
*^^ foever, G?c. and mpftly of the tencmems aforefaid as ff fee

ond right, (3c. and he puts himfelf on the Grand Assize of TheteiwBt,

our Lord the king, and ne prays a recognition to be made, whe- conduoci hif

ther he the faid George Clarke has a greater title to hold the ^^^^

tenements aforefaid with the appurtenances to him and his heirs •*^'

f^ ai tenants there9f as he noy holds the fame, or whether the

Vol. in. o o faid

66o

Pbocsedings In a Wmt of Right^

Tht oTui
writ of (bill-
monsoflbiir
knishts*

The retnni

ofdieniSM

writoffam-

montofibiir

kni^hU.

Booth 97.

The writ of
vairtftcias.

The JherifF having done nothing upon the writ of fummoni
of four Knights, the following abas writ offwmmons ifliied, re-*
turnableyr<?«i ikt day of Saint martin in fifteen days.

GEORGE ,the Third, by the p^cc of GOD, of Great Bri.
tdn^ France and Ireland^ King, defender of the faith, ^c. to the
flieriff of MV/t^l^x greeting. We command you, at before we
have commanded you, that by good fumraoners you fummoa
four lawful Knights, ^c, (as in the firft writ of lummons ver*
batim) witnefs Sir William De Grey Knt. zaJVe/iminfter^ the 6di
day of November ^ in the fourteenth year of our reign.

. . WdUs.

By virtue of this writ to me direfied, I have caufed Jama
EfdaiU^ James Hodges^ Philip Dyot^^nd George Mercer^ four law-
ful Knights of ray county ffirt with fwords, to be fummoned b^
Henry Fargufon and JohnWhittaker my bailiffs, to be before- bis
Maiefty's juftices at the day and nlace within mentioned, to do
as by this writ they are required, and as I am within com-
manded, the faid fummoners are and each of them is- mainprizei
by John Doe and Richard Roe.

e Stephen Sayer YS({.^
The anfwer of J and V Sheriff.

Imaiam Lee Efq. }

The four Knights above-mentioned appeared in court, at die
return of the ahas writ of fumnmns: and, being placed in the
jury-box, on the north-fide of the court of the bench, were fc-
verally fworn lawfully and truly to choofe twelve Knights gnt
with fwords, of themlelves and others, which bell know and witt
declare or fay the truth between the parties.

The four Knights having chofen of themfelves and othen
twenty four di writ of venire facias iflued, the tenor -whexeoi hew
followeth.

GEORGE the Third, by the grace of GOD, oi Great Bri^

tain, France and Ireland, Kin^, deiender of the faith, &c. to the

flieriff of Mtddlefex greeting. We command you that you caufett

come before our juftices at Weftminjler from the day of Eafter if

one month, James Ffdaile of Bunhill-rdta, James Hodges oxIS^*

gate, Philip Dyot of Dyotfireet, ^Geoige Mercer of Margwrd'

Jlreet, John Watford of BunhilLrow, Edward Hawkins of Loom-

flreet, Knts. John Spiller of Chrijl -church, Gerrard HtnaardJ

' Hampfiead, Robert Lary of the fame, Guy Bryan of Chrifl^hurAt

Cadwallad^r Coker of Oldflrett^ Roger GriJ^n of I/bnglon-rotd,

TYfiSBN Demandant verjus Clabke' Tenant. 561

Jofeph Kdlini oi Ckrkenwell, Thomas Cogan <J[ J/Rngton^ Lomax
Ryder of Fincfdey^ William Addin^ton of Southamtton-row^ Thomas
Parry of Bernersjlrcet^ Charles Shepherd o( BulRrodeJlreet^
Thomas Lockwood of Edward-Jlreet^ George Reid of IJffon
Green^ Harry Parker of Newman Jlreet^ WiUiam Baker of Port'^ '
manjquare^ Jofeph Wihqn.of Queen Annjlreei^ and Leonard Mor/i .
of the fame*fefqrs. recognitors chofen to make recognition of
our Grand Asmze, baween Francis John Tyjfen Efq. demand-
ant, and George Clarke tenant, of ten/mfJfuagtSy ten gardens^ one
Jhop^ two coach Jioufes^ three flables^ -qnd two acres of land with
the appurtenances t in the parijh of Saint John Hackney in your ^
. county y whereof the fatd George Clarke in our fame court hath
put himfelf upon our Grand Assize by praying a recognition

X to be made, whether he hath a greater title to hold the tene-
ments aforefaidy with the appurtenances, to him and his heirs as

t tenants thereof as he now holds the fame, or whether the fald
Francis John Tyffen hath title to hold the fame tenements with .
the appurtenances as he hath demanded the fame, and have you ^

3 there this writ; witnefs Sir William DeGrey Knt. at Wejlminjkr

•^, the 12th day of February in the fourteenth year of our reign.

Here next follows the entry of the whole record upon the
roll fnumber 439.) among the pleas of land of Trinity term in
1^ the tnirteenth year of King George the Third.

MIDDLESEX, {to Mt) Francis John T^en Efq. hy John The want-
jpj. J Vernon his attorney demands againft George Clarke ten meffuages; "P**.*^* ^**
01 ^^ gardens t one Jhop, two coach-houfes, three jlahles, and two **"•'•
1 ^ acres of land with the appurtenances, in the panjh oj Saint John
f^ Hackney, as his right and inheritance by writ of the Lord the
jiV ^^"g of right, and thereupon he faith that Francis Tyjfen Efq.
father of him the id^xA Francis John, was feifed of the tenements
aforefaid with the 2if^\xncvii^nce% in his demefne as of fee and
^\ right in the time of peace, in the time of ihe Lord George the
\^ firft hiic King x){ Great Britain, (to wit) within fixty years now
' ^^ tifi* ^y ^^^S ^^^ ^^^^^ thereof to tne value, &c. and from
the laid Francis the father^ the right defcended to the faid Francis
Ui J?^^* ^ho oow demands as Ion and heir of the faid Francis
%'^ Ins father, and that fuch is his right he offers, &c. And the The defcnct;
*^^^ feid George Clarke hy John Swale his attorney comes and de- ^^^^
•^yj fends the right of the md Francis John Tyjfen, and the feifin of
V^: the faid Francis Tyffen when, £5?^. and the whole, &c. and what-
n^p foever, &c. and nv)ftly of the tenements aforefaid as of fee
^^} and right, (3c. and he puts himfelf on the Grand Assiz£ of The teiwnt.
■^j^ our Lord the king, and ne prays a recognition to be made, whe- condudei hif
y^ ther he the faid George Clarke has a greater title to hold the ^^^^
S^ ^^nements aforefaid with the appurtenances to him and his heirs ^^'

In: ai tenants thereof as he now holds the fame, or whether the
Vol, m. o o faid

66o ^ Pbocbkdings In a Weit op Right^

The IheriS having done nothing upon the writ of fummons
ot four Knights, the following akas writoffummons iiTued, re^
turnableyr^^R the day of Saint Martin injiftten days*

Thfe tJ-m GEORGE the Thirds by the grace of GOD, of Great Bri^

wtitof fum- tain^ France and Ireland^ Kuig, defender of the faith, tfr. to the

j^Moffiwr flieriffofMrf^^;if greeting. We command you, aS before we

^^ have comzpanded you, that by good fummoncrs you fummoii

four lawful Knights, Qc, (as in the firft writ of lummons xf^r^

h^imj witnefs Sir IViUiam De Grey Knt. at JVeftndnJler^ the 6th

day of November^ in the fourteenth year of oiir reign.

, . WilUs.

Thcretnni By Virtue of this writ to mc direfted, I have caufed James
**^*rf f" £^i7!f, James Hodges ^ Philip Dyot, and George Mercer^ four law- .
moot of 1^ ml Knights of ray county firt with fwords, to be fummoned by
knightt* Henry, rargufon and John^YVhittaker my bailiffs, to be before- his
Maiefty's juftices at the day and nlace within mentioned, to do
as by this writ they are requirea, and as I am within com-
manded, the faid fummoners are and each of them is- mainfriud
by Join Doe and Richard Roe.

: , ' (Stephen Sayer E{<1.^

The anfwer of J and V Sheriff.

ImiliamLee^q. }

The four Knights above-mentioned appeared in court, at the
return of the ahas writ of /iimmons ; and, being placed in the
jury-box, on the north-ude of the court of the bench, were fc-
verally fwom lawfully and truly to choofe twelve Knights girt
with Iwords, of themlelves and others, which bell know and will
declare or fay the truth between the parties.

BMtb97. The four Knights having chofen of themfelves and others

twenty-four a writ of venire facias iflued, the tenor whereof here
followeth.

The writ of GEORGE the Third, by the grace of GOD, oi Great Bri-

ii/tmrtfitias, tain, France and Ireland, Kin^, defender of the faith, &c» to the

flieriff of Mtddleftx greeting. We command you that you caufe to

come before our juftices at Weftndn/ler from the day ofEafter in

one month, James Ffdaile of Bunhilt-ro)^^ James Hodges oiHigh^

gate, Philip Dyot of DyotMreet^ ^GeoYge Mercer of Margaret^

Jlreet, John Waif or d of BuruiilLrom, Edward Hawkins of Lmum^

Jlreet, Knts. John Spiller of Chrifl -church, Gerrard Howard of

* Hampfiead, Robert Caty of the fame, Guy Bryan of Chrift^hurch^

Cadwalladcr Coker of Old-Jlrea^ Roger Grjffin of Jflinglon'romd.

Tyssen Demandant verjus Clakke Tenant. 561

Jojipk Kdline ol CUrkenruell^ Thomas Cogan oi J/Bfiglon^ Lomax
JRyder of Fincnley^ William AdSn^ton of Southampton-row^ Thomas
Parry of Bernersjlrctt^ Charles Shepherd ot BuIJlrodeJlreet^
Thomas Lockwooa of Edward-Jlreet^ George Rnd of Uffon
' Greats Harry Parker oi Newmanjlreet^ Wiaiam Baker ol Port'* '
manjquare^ Joftph Wittonsii Queen Ann-fireet^ and Leonard Morfe t
of the fame Elqrs. recognitors chofen to make recognition of
our Grand Assize, b^wecn Francis John Tyjfen Efq. demand- •
ant, and George Clarke tenant, of ten.meffuages^ ten gardens^ one
Jhopy two coach Jioufes^ three flabUs^ '(^d two acres of land with
the appurtenances t in the parijh of Saint John Hackney in your -
county^ whereof the faid George Clarke in our fame court hath
put nimfelf upon our Grand Assize by prayinz a recognition
to be made, whether he hath a greater title to hold the tene-
ments afbrefaidy with the appuaenances, to him and his heirs as
tenants thereof as he now holds the fame, or whether the faid
Francis John Tyjfen hath title to hold the fame tenements with .
the appurtenances as he hath demanded the fame, and have you
there this writ; witnefs Sir William DeGrey Knt. at Wejlminjler
the 12th day of February in the fourteenth year of our reign.

• Here next follows the entry of the whole record upon the
roll fnumber 439.) -among /^tf ^/(foj of land of Trinity term in
the tnirteenth year of King George the Third.

MIDDLESEX, {to Vn) Francis John Tyjfen Efq. by John The wont-
Vernon his attorney demands againft GeorgeClarke ten meffuages, "P?^* *"*
ten gardens^ one fhop, two coach-houfes, three Jlables, and two **"•'•
acres of land with the appurtenances, in the panfli oj Saint John
Hackney, as his right and inheritance by writ of the Lord the
King of right, andthereupon he faith that Francis TyJJen Efq.
father of him the faid Fr^/zaj John, was feifed of the tenements
aforefaid with the appurtenances in his demefne as of fee and
right in the time of peace, in the time of fhe Lord George the
firft hMtY^KngxA Great Britain, (to wit) within fixty years now
loft tafl, by uSiing the tfpUes thereof to the value, &c. and from
the laid Francis the father, the right defcended to the faid Francis
John, who now demands as Ion and heir of the faid Francis
his father, and that fuch is his right he offers, &c. And the The defenct;
faid George Clarke hy John Swale his attorney comes and de- ^^**\*'
fends the right of the laud Francis John T^en, and the feifin of
the faid Francis Tyjfen when, £5?ic. and the whole, (3c. and what-
foever, ^c, and moftly of the tehemeiits aforefaid as of fee
and right, &c, and he puts himfelf on the Grand Assize of The tenant
our Lord the king, and ne prays a recognition to be made, whe- conduoci hif
ther he the faid George Clarke has a greater title to hold the ^^^^
tenements aforefaid with the appurtenances to him and his heirs '^*'-

ai tenants there9f as he noyf holds the fame, or whether the

Vol. in. o o faid

56o Pbocbedings In a Weii* of Right.

4 I '

The JherifF having done nothing upon the writ of fummons
of four Knights, the folbwing alias writ of fummons ilTued, re-»
turnableyrt?;^ the day of Saint Martin in fifteen days*

Thfe d/f«i GEORGE the Third* by the grace of GOD, of Great Bri^

wtitof fom- tain^ France and Ireland^ King, defender of the faith, tfr. to the
J^httl!^"*' flieriffofM^({tf^;if greeting. We command you, a$ before we
have comnianded you, that by good fummoners you fummofi
four lawful Kni/^hts, &c. (as in the firft writ of lummons ver^
batimj witnefs Sir William Dt Grey Knt. at JVeflminfter^ the 6th
day of November^ in the fourteenth year of our reign.

mites.

Theremra By virtue of this writ to me direfied, I have caufed James
of^tMhtt EfdaiU^ James Hodges^ PhiUf Dyot, and George Mercer^ four law-
nontori^ ful Knights of ray county cirt with fwords, to be fummoned by
knights. Henry, rargufon and John^WhituUter my bailiffs, to be before- his
Maiefty's juftices at the day and nlace within mentioned, to do
as by this writ they are requirea, and as I am within com-
manded, the faid fummoners are and each of them is- mainfrized
by John Doe and Richard Roe.

: , ' f Stephen Sayer Efq.^

The anfwer of J and V Sheriff.

ImUiamLee^q. )

The four Knights above-mentioned appeared in court, at the
return of the ahas writ of fummxins ; and, being placed in the
jury-box, on the north-ude of the court of the benchy were fe-
verally fworn lawfully and truly to choofe twelve Knights girt
with iwords, of themlelves and others, which bell know and will
declare or fay the truth between the parties.

Booth 97. The four Knights having chofen of themfelves and others

twenty four a writ of venire facias iflued, the tenor whereof here
followeth.

The writ of GEORGE the Third, by the grace of GOD, ol Great Bri^

facias, iain, France and Ireland, Kin^;, defender of the faith, &c. to the

flieriff of Mtddleftx greeting. We command you that you caufe to

come before our juftices at Weftminjler from the day ofEafier in

one month, James Efdaxle of BunhilLro)^, James Hodges ox High*

gate, Phtbp Dyot of Dyotflreet, *Geo>ge Mercer of Margaret^

flreet, John Walford of mnmlLrow, Edward Hawkins of Unum^

flreet, Knts. John Spiller of Chri/l -church, Gerrard Howard oi

' Hampfead, Robert Gary of the fame, Guy Bryan of Chrift^hurch^

Cadwalladcr Coker of Old-flreet^ Roger Griffin of ipin^n^roml.

Tyssbn Djsmandant vtrjus Clakke Tenant. 56 1

jfofeph Kdling oi Qerkenwell^ Thomas Cogan oi J/Bfiglon^ Lomax
JRydiroi Fincnlty^ William AdSnpon olSouthamtton-row^Thomas
rarry of Berncrsjtrcet, Charles Shepherd ot Buljlrodejlreet,
Thomas Lockwooa ol Edward-Jlreet^ George Rnd of Uffon
Green^ Harry Parker ai Newman-Jlreet^ WiUiam Baker ol Port'* •
manjquare^ Jofiph Wihon.oi Queen Ann-fireet^ and Leonard NLorfe *
of the fame£lqrs. recognitors chofen to make recognition of
our Grand Assize, b^ween Francis John Tyffen Efq. demand-
anC, and George Clarke tenant, of ten.mrffuages^ ten gardens^ one
Jhop^ two coachJioufes^ three flables^ 'qnd two acres of land with
ihe appurtenances ^ in the parijh of Saint John Hackney in your ^
county , whereof the faid GeorgeClarke in our fame court hath
put himfelf upon our Grand Assiz£ by prayinz a recognition
to be made, whether he hath a greater title to nold the tene-
ments aforediid, with the appuaenances, to him and his heirs as
tenants thereof as he now holds the fame, or whether the faid
Francis John Tyffen hath title to hold the fame tenements with ,
the appurtenances as he hath demanded the fame, and have you
there this writ; witnefs Sir William De Grey Knt. at Wejlminjler
the 12th day of February in the fourteenth year of our reign*

• Here next follows the entry of the whole record upon the
roll Tnumber 439.) among /^tf^/roj of land of Trinity term in
the tnirteenth year of King George the Third,

MIDDLESEX, {to v^it) Francis John T^en Efq. by John The count-
Vernon his attorney demands againft GeorgeClarke ten meffuages, upwia writ
ten gardens^ one Jhop, two coach-houfes, three Jlahles, and two ^ "* ^
acres of land with the appurtenances, in the panjh oj Saint John
Hackney, as his right and inheritance by writ of the Lord the
King of right, and thereupon he faith that Francis TyJJen Efq.
father of him the faid jFr^/zaJ John, was feifed of the tenements
aforefaid with the appurtenances in his demefne as of Jet and
right in the time of peace, in the time of ihe Lord George the
firft late King of Grrfl/ Bn/a^Vi, (to wit) within fixty years now
la/itafl, by t^ng the efplees thereof to tne value, &c. and from
the laid Francis the father, the right defcended to the faid Francis
John, who now demands as Ion and heir of the faid Francis
ms father, and that fuch is his right he offers, &c. And the Th« defenct;
faid George Clarke hy John Swale his attorney comes and de- ^^^^
fends the right of the laid Francis John Tyffen, and the feifin of
the faid Francis Tyffen when, 6?^. and the whole, (Sc, and what-
foever, &c. and nv)ftly of the tehemeiits aforefaid as of fee
and right, (3c. and he puts himfelf on the Grand Assiz£ of The teiwnt.
our Lord the king, and he prays a recognition to be made, whe- conduoet hff
"ther he the faid George Clarke has a greater title to hold the 5|*^^
tenements aforefaid with the appurtenances to him and his heirs ^ft***-

a$ tenants there9f as he noyf holds the fame, or whether the

Vol. in. o o faid

66o

ThtaTus
writ of (bfii-
monsoflbiir
kmshti*

Theretttni
oftfaeniSM
writof (am-
snootofibiir
kjiighu.

BMtb97.

The writ of

veairtfaeias.

Pbocbedings In a Weii* op Right^

The JherifF having done nothing upon the writ of funinions
of four KoightSy the following a&as writ cffummons iflued. re-
turnahhjram ike day of Scant Martin injifteen days*

GEORGE the Third, by the grace of GOD, of Great Bri^
tain^ France and Ireland^ Kmg« defender of the faith, &f . to the
(heriff of M^(t^(^;r greeting. We command you, at before we
have comipanded you, that b)r good fummoners you fummon
four lawful Knights, £?r. (as in the firft writ of himmons ver^
batimj witnefs Sir William De Grey Knt. at Weftmnjler^ the 6th
day of November^ in the fourteenth year of our reign.

WiOes.

By virtue of this writ to me direfied, I have caufed Jantes
EfdaiU^ James Hodges^ Philip Dyot, and George Mercer^ four law-
ful Knights of my county ffirt Mrith fwords, to be fummoned by
Henry, far gujon and Jokn'Whittaker my bailiffs, to be before- his
Maiefty's ju&ces at the day and place within mentioned, to do
as by this writ they are required, and as I am within com-
manded, the faid fummoners are and each of them is- mainprixed
by Jblin Doe and Richard Roe.

e Stephen Sayer £fq.
0 and

ImUiamLee^q. )

The anfwer of^ ' an^ * 1 Sheriff.

The four Knights above-mentioned appealed in court, at the
return of the ahas writ of fummons; and, being placed in the
jury-box, on the north-nde of the court of ike bench^ were fc-
verally fwom lawfully and truly to choofe twelve Knights ^rt
with iwords, of themfelves and others, which bell know and will
declare or fay the truth between the parties.

The four Knights having chofen of themfelves and otiiers
twenty four a writ of venire facias ifliied, the tenor whereof here
followeth.

GEORGE the Third, by the grace of GOD, of Great Bri-
tain, France and Ireland, Kin^, defender of the faith, &c, to the
flieriff of Maddlefex greeting. We command you that you caufe to
come before our juftices at WeftminAer from the day ofEa^ w
one month, James Efdaxk of Bunktlf-rd^, James Hodges oiBgh-
gaie, Philip Dyot of Dyotflreet, ^GeoYge Mercer of Margaret-
Jlreet, John Waif or d of BunhilLrow, Edward Hawkins of Z«w«-
Jlreet, Knts. John Stiller of Chri/Uhurch, Gerrard Howard o\
' Hampflead, Robert Gary of the fame, Guy Bryan of Chrift-church,
Cadwalladcr Coker of Oldflrea, Roger Griffin of Wngton'road,

Jo/epn

Tyssen Demandant vtrjus Clabke' Tenant. 561

Jfojiph Kdline oi Qerkenrudl^ Thomas Cogan oi J/lbiglon^ Lotnax
Ry^r of Finadey^ William Aidxn^ton of Southamtton-row^ Thomas
Parry of Berncrs-ftrcet, Charles Shepherd o( BtMroieJlrett^
• Thomas Lockwood ol Edward-Jlreet^ George Rdd of IJff'on
Green^ Harry Parker of Newmanjlreet^ WiUiam Baker of Port-* *
manjqudre^ Jqfeph Wition^ol Queen Annjlreet^ and Leonard Morfi »
of the fame Efqrs. recognitors chofen to make recognition of
our Grand Asmze, b^ween Francis John Tyjfen Efq, demand- •
ant, and C^(^r^^ C/ari^ tenant, oi tenmrffuages^ ten gardens ^ one
Jhop^ two coach Jioufes^ three ftqbles^ '^nd two acres of land zuith
ihe appurtenances^ in the parijh of Saint John Hackney in your *
county^ whereof the faid George Clarke in our fame court hath
put himfelf upon our Grand Assiz£ by praying a recognition
to be made, wnether he hath a greater title to hold the tene-
ments afore(aid, with the appurtenances, to him and his heirs as
tenants thereof as he now holds the fame, or whether the faid
Francis John Tyjfen hath title to hold the fame tenements with .
the appurtenances as he hath demanded the fame, and have you
there this writ; witnefs Sir William DeGrey Knt. at Wejlmnjler
the 1 2th day of February in the fourteenth year of our reign.

• Here next follows the entry of the whole record upon the
roll fnumber 439) ' among /^^ ^/(foj of land of Trinity term in
the tnirteenth year of King George the Third.

MIDDLESEX, [io yiit) Francis John Tyjfen Efq. by John The count
Vernon his attorney demands againft GeorgeClarke ten mejfuages^ «P<^4*«t
ten gardens^ one Jhop, two coach-houfes, three Jlables, and two ® "• *•
acres of land zvith the appurtenances, in the panjii oj Saint John
Hackney, as his right and inheritance by writ of the Lord the
King of right, and thereupon he faith that Francis Tyjfen Efq.
father of him the {zxA' Francis John, was feifed of the tenements
aforefaid with the appurtenances in his demefne as of fie and
right in the time of peace, in the time of ihe Lord George the
firft late King of Great Britain, (to witj within Jixty years now
lafl pajl, by tsuung the efplees thereof to the value, Sc. and from
the laid Francis the father^ the right dcfcended to the faid Francis
John, who now demands as Ion and heir of the faid Francis
his fiuher, and that fuch is his right he offers, 3c. And the Th« defenct;
faid George Clarke hy John Swale his attorney comes and de- ^^^^
fends the right of the laid Francis John Tyffen, and the feifin of
the faid Francis Tyffen when, fisfic. and the whole, (3c. and what-
foever, &£. and n\oftly of the tenements aforefaid as of fie
and right, C3c. and he puts himfelf on the Grand Assiz£ of Thetcmnt.
our Lord the king, and he prays a recognition to be made, whe- condudei hif
ther he the faid George Clarke has a greater title to hold the ^^^^
tenements aforefaid with the appurtenances to him and his heirs Aff^-

a9 tenants there9f as he noy holds the fame, or whether the

Vol. IIL o o faid

S62 pKocfiEDmGS m a Writ of Right,

J/Taeis fiid Francis John Tv/fen has title fo hpld. the fame tenements

joijied upon ^Jth the apput-cenanccs as he has above demanded the fame,

WriTTr*^''®^- and the faid Francis John T^en doth the Hie: therefore

SuMMOMc the fheriff is commanded that he fummon by gpod fuaimoners

or loiir four laWfVil knights of his county girt with {words, that they

eicS the^ ^^ ^^^^ ^^ ^^ morrow of Alt fouls next coming, to make eleftion

Craad /fftxt. of the ajizc aforefaid ; the fame day isgiven U> the parties afore-

aid here, to hear theeleftion of the afpze aforefaid, c?c. as which

day here come as well the faid Francis Join Tyffi^ as the faid

GfOr^t Clarke: by their attornies aforefaid, aod the (herifF hath

yktnmis sm not Jentthe writ ; therefore as before, the fheriff is commsnided

mifitkrevt, i\^^^ j^^ fummott by good fummoners four lawful Knights' of his

wMsof'four county gin with fwords, that they be htr&Jrom tk day of

knishti. Saint Hiartin mffuai days ne«t coming,' to make ele^lion of Ine

affize aforefaid, the fame day is given to the parties aforefaid

here tcJ hear the elcftion of the affize aforefaid, &c, at which

* day here come as welt the faid Francis John Tyfftn as the faid

The return ^^rge Clarke by their attornies aforefaid, and the iheriff, (to

thcttaf; wit) Stephen Sayer Efq- and WiSiam Lee Efq. now returns that

he had caufed to be lummoned James EFdaile^ James Hodges'^

Philip Dvaltznd George Mercer\four lawful Knights of his county

trrt with fWords, by Htnry Fergtifbn and John Whittakcr his
dififfs, to be here from the day if Saint Martin^, in fifteen days
aforefaid, to do as (he fame writ commands and requires, and
that the faid (ummoners are and each of them is mainprized by
Tlktfftmr ^^^ ^^^ ^"^ Richard Roc^ whereupon the faid James EfdailL
kmghftipw J^mts Hodges ^ Philip Dyot and George Mercer^ four lawful
jM-ar and eic^ Knights of the county aforefaid, girt with fwords, being called
the (7r«^ in their proper perfons- cojne, and being fworn upon their oaih
^*^ in the prefence of the parties aforeliid, chofe of themfelves and

others twenty-four, (to wit) James EJdaiU^ James Hoi^es, Philip
Dyoty George Mercer^ John IValford^ Edward Hawkins^ Knights,
Jdhn Spitkir^ Gerrard Howard^ Robert Cary^ Guy Bryany Cad^
toallader Coker, R^gcr Griffin^ Jojeph Keuing^ Thomas Cogan^
Lorriax Ryder^WilSam Aimi/igton^ Thomas Parry y Charles ^nep*
herd, Thomas Lockxvood, George Reidj Harry Parker, IViltuim,
Bakert Jofiph tVilton, and Leonard Uorfe, Efqrs. good and law*
ful men of the county aforefaid, who neither are of kin to the
. faid Frands John Tyfftn nor to, the {^xA. George Clarke, to make
recognition of the Grand Affize aforefaid, therefore the fheriff
Wbereypon " Commanded that he caufe them to come here on the o8ave of
»yimrefaciat Saint Hilary to make the recognition aforefaid, the fame day
li awaraed. is given to the parties aforefaid here, 6?c. at which day here come
as well the faid Francis John TyJfen, as the faid George Ctarie by
tlieir attornies aforefaid, and tKe fheriff hath not fent the writ,^
. ' .-' therefore as before the fheriff is commanded that he caufe them
tO'CQme h^tc^ from the day ofEafler in one moniK V^ make the
1 ' r^9P§nition

ill :.

iJTJ li:^

/■in

■ TySSBIT DbMANDANT t«?f^ CtA»KB TfiKAN^. SM

:£a(7 Tecognition aforefaid, the fame day is given to the parties ^fore*
? t; faid here, &c. at which day here come as well the faid fronds
Le«!^' ' yoAn Trffen as the faid George Cfflrie by their attomies afoireiaid*
-1= and the recognitors of the ajpu, whereof ipenf^ion is above made, xbc itcof-
LiiL- being called come, and. certain* of them, (to wit) Jafftes Efdaik^ nito" of th«

ex 1 James Hodges, Philip Dyot, George Mercer, John Walfiitd, Knts, ^^ «*««»
L..'i JohnSpilUr, Gerrard Howards CadmaHadcrCok^r, Roger Qriffin^
LS rfhi^ S?fiP^ Ke&ingy Thomas Cogan, Lomax Ryder, WilRam Aefdington^
]: L jThomas Parry, Charles Shepherd, and Thomas Lockzoood, Efqrs^
rmi being ekSed, tried and fworn upon their oath fay, that the laid md being
cMT-' Francis John Tyjfen hath greater title to hold the faid tene- fworn gave •
< o(L incrtts with the appurtenances to him and his heirs, as he above Jcmandwt^

demandeth the fame, than the faid George Clarke, to hold the
...f . fame as he now holdeth them, as the faid Francis John Tyjfen

by his aforcfard Wrji^hath fuppofed; therefore it is confidered Jadgmenc
that the faid Francis John Tyjffen recover his feifin againft the faid «»»»« !>« dp
George Qarke of th^ tenements aforefaid, with the appurtenances, ^jj^rj^ '
to hold to him and his heirs, quit of the faid George Qarke and his '*•'*'
heirs for ever ; and the faid teorge Qarke in mercy, &c. Mercy.

In the Common Pleas, Eajier term, in the thirteenth
^ear of the reign King George the Third.

TYSSEN Efq. againft Clarke, Thurfday the 13th of May, The role of
upon reading a rule made between the faid panics on the 9th of ^'L!?'^
February in Hilary term laft, .and upon hearing counfel on both I!ln*ient,in4
fides, and the demandant by his counfel hereby cenfenting that ii 'before
the tenant upon the trial of this caufe fliall give In evidence ™«nt»o"<^ 1«
^^j.j that a^i7^ was levied in Af/cAo^/maj term, in the fix teen th year P******'
^j* of the reign of his late Majefty Kihg C^c^r^^ the Second, between
John Qarke the late father ot the laid tenant in this caufe as
plaintiff, and Roger 0/baldeJlon and Sarah his wife deforceants
of the tenements in the demandant's declaration mentioned, and
that the fame was ingrofled and after\Yards publickly and openly
read a^d proclaimed according to the form of tne fiatute in
fuch cafe made and provided, and that fuch^;?^ was levied to
the ufe of the faid John Qarke and his heirs, and by virtue tliereof
^( the faid John Qarke entered into the faid tenements with the

•iu: iJ appurtenances, and thereby bccsuncjei/ed thereof in his deme/he
'■^p( as of' fee, and that he died feifed afterwards, and that the laid
''jjy George Qarke the tenant was his heir, and that neither did

,,' Francis Tyjfen the father, ngr Francis John Tyjfen the fon, at any

V|^^. time withm five years ne;ct after the proclamations had and
made, purfue his titl<:, claim or intereft, in^gr tp the faid tene-
ments, or any part theregf, by way of aftion or. lawful entry-,

and

6tf4 Paooebdings in a Wait op Rxght^ &:c.

and the tenant hy his counfel hereby confentin^ that the de-
mandant on the faid trial, fhall jje at .liberty to give in evidence
that they who were parties ito the faidjf/i^ or any of them, at
the time of levying the {aid fine had nothing in the fremijts :
it is ordered that the fecond plea pleaded in this caufe be (Iruck
out. By the court,

On the motion of Serjeant TVdker for the tenant, Serjeant
Burland for thedemandant.

FothergilL .

THE END OF THE THIRD VOLUME.

[rRIMT£0 BY U. B^VO^'XK AND SON*, ftRtbCS-mtEET.J

3 blDS 0b2 a3H b3D