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^ _ ^j *,^»«- ■^•v*** n**-* 





'*^ •*>... 





CW.'J .K. 
S^ 585 




-* . 




I. SCt^t S.ato of €t)ti)ence. 

II. 5l5etD Xtialflf* 

III. Special merDitt&. 

IV. Xttate at max, 



AND. /^/C,i'x 

V. mepleaDetfi?, ^^g%^ 





Containing %^t IXt^ i^ibtfiott fif (ttt^S U. 

tottj (tmt ni. IV. ana v. 




* ft 


ESSAY li. 


nm %xiaiei, &c. 

(i.) Of Mis'triaL 

ACTION of debty brought upon the cooper v. 
ftatutc of Ed. VI. for tithes ^ and the f'srowni. 75. 
plaintiff declared that one was feifed of the J^« ^^^}^^ 
reftory of Elvely^ alias Kirkley^ in Kingfion aw'idcd! 
upon Hull^ in his deniefne as of fee ; and 
being fo feifed, on fuch a day, at Elvely^ 
alias Kirkl^y did demife to the plaintiff the 
faid reftory, with the appurtenances, to have 
and to hold, i^c. for years, and that by vir- 
tue thereof he had been and was thereof pof- 
fefled, and that the defendant fuch a. day, 
and before, and always afterwards, hitherto 
held and occupied thirty acres of land in 
Swandlandy in Kingjion, in a place called 
T. and that the tithes did belong to him. 
The defendant pleads. Nil debet per pa-- 
iriam I and after verdift it was alledged, 
in arreft of judgment, that the iffue was 
mis-tried, becaufe the Venire facias was of 
Elvely alias Kirkley, and it Ihould have been 
of Swandlandi where the tithes grew. 
Vol. III. B I cannot 

C ^ 1 

I cannot find this cafe in any other author t 
from the marginal note, I conceive the Court 
adjudged the Venire facias mifawarded^ 

^""1^^^!}^^; ^^i^^ brought zxi aftion of trefpafs againft 

cock,and others, -^^, j^i /• i*. ^ Y** 

M. 24. Car. ha^cotky and others, for taking away drvers 
Styles, ^37. parcels of ribbon from him. The defend- 
For'anew ants pleaded, by way of juftification, the 
TmCS^hf cuftom of London againft hawkers ; videlicet, 
caufebcingtricd to take away warcs from any that fold them 
SflSi^"^' ^ ^nd down the ftreets. 

The plaintiff replied, that there was no 
fuch cuftom^ and iftue was taken upon it, 
and thereupon the cuftom was certified by 
the mouth of the Recorder, and a trial upon 
it in London, and a vcrdift for the defend* 
ants. The plaintiff moved in arreft of judg- 
ment, that it was a mis-trial, becaufe it 
was before thofe who were interefted in the 
caufe, and therefore defired there might be 
another trial. Roll Juftice faid, it k againft 
hatural equity, for one to be judge in his 
Trial ow^ caufe, although the other party admit 
it to be fo, and therefore it is a mis-trial> 
though it were at the requeft of th& plain- 
tiff, becaufe it is againft natural reafon* 
8 E. IIL f. 6^. 5 Ed. III. Z. 9 H. VIL 
/. ai. mU 38 Eliz. in the Exchtqiier. The 
prayer of the plaintiff cannot help the trials 
for the confent of both parties cannot change 
the law, much lef& the prayer of one ,of 
the parties. HaUs^ of counfel with the de- 
fendants, ai^ed, that it was Wot a mis-trial, 
and faid this concerns them in ix>int x>f pri- 
vilege of the city, and not merely in j)oint 
of intereft, before whom the judgriient was 
given. 2dly. The confent of the party hath 
barred him of the advantage which othefwife 


t 3 3 

lie ilriight have had. But Roll Juftice an^i 
fwered, here is point of intereft as well as 
point of privilege, for part of the goods 
taken conae to the benefit of the city, and there- 
foj« they ought not to be their own judges, 
for this is againil natural reafon, and (b it 
is a mi$*trial. But it doth not appear here, 
whether the Mayor and Aldermen be another 
corporation or not, and diftinft from the 
corporation alleged, which certified this cuf-^ 
torn by the niouth of the Recorder ^ and t\m 
is the fole doubt in the cafe; The Ctmrt ^- 
dered thai there fifonld be a new trials ex^ 
tept cauje Jbewn to the Contrary. ^. fVhe^ 
ther there Jhall be a repleader^ or a new fV* 
nire ? , 

This was replevin: Lord MountagUe was Hiuv.Suai 
feifed of the ihnour of Gloucefier^ extending j^"^'^^ ^^^ j^, 
into divert eountieSy and confiding folely of c. b. Entr. ri 
fervices without deniefnes i within which ho- J^ski'.^ri***** 
nour there is a cuftooi that each tenant dy- Vid. Br. Avow* 
ing feifed of an inheritance^ fliall pay for 2' rv! IT 
each rtieffuage and cottage 5 s. and for each Replevin. Cuf. 
acre of pafture . • * . and for each acre of fo much t^^ 
meadow .... Cff i*. for which fums the bai- <iyi"s ^^ifed, 
lifF of the lord or his deputies may dif- training aii 
train* Sir Tho. Reedy a tenant of the faid ^^f^^i. , 
honour, died Icued or an ellate in fee-fim- whence th© 
pie or tail, after whofe dcceafe the bailiff oy^^rto^^e 
diftrained in an acre of which Sir Tbo. UTued* i 

died feifed in Denford, in the county of 
Nortbamptony which acre is within the ho* 
nour of Gloueefter aforefaid i and noccj that 
the cuftom aforefaid was for diftraining any 
beafts upon th^ land within the honour* And 
upon replevin brought^ iffue was taken upoil 
the cuftom, axx! Venire fwas from Den^ 

Pa Jord^ 

t 4 1 

f^rd. And the cuftom being found, it wai 
moved in. arreft of judgment, 

I . For the unreafonablencfs of the cuftom. 
1. For the mis-trial. 

With refpeft to the firft point, a variety 
of arguments were ufed, fro et con; but as 
the Court did not give judgment upon that 
point, they are here omitted. 
. ^ As to the fecond point, If this was a mis- . 
trial ? it was argued by Maynard and Barnard 
^r the defendant, that this is not a mis-trial, 
but that the Ventre facias from Denford is 
good enough, for it ought to be from the 
county df N. or from the county of Glou^ 
seJieTy or frorp the vill. of D. i. It cannot 
be from the body of the county of N. in- 
ftfmuch as it does not appear that the honour 
is in this county only j for it doth not ap- 
pear that the honour is extended out of 
D» yet in truth the honour is extended into 
feveral counties/ 2. It cannot be from the 
honour of Gloucejiery for an honour is only 
an accumulation of fervices ; and although an 
honour may confift of demefnes and fer- 
vices, yet this honour hath only fervices, and 
it cannot be fliewn that a Venire facias was 
% Leon. 36. ever yet from an honour, becaufe that Little^ 
Hob?^a66. ^^^'s argument may be ufed j videlicet^ if 
»Rob.Ab.6i7 fuch thing could have been done, it would 
PL4. Et. 326. have been feen before this time, therefore they 
PI.5.5C10.200. concluded that the venue could not be from 

an honour, any more than from a foreft, 
I Rep. 127. 3. Therefore if it cannot be 
from the two places before-mentioned, of 
ncceflity it ought to be from the vill. of 
Denfordy where the capture is fuppofed. And 
to prove this, they relied upon a cafe be- 
tween Row et Litcbfordy 16 Jac. in B. R, where 


r 5 ] 


tjpon iflue joined upon a cuftom of the Sta^ 
Tiaries, a Venire facias was from the vill. where, 
i^c. and not from the Stanariesy nor from 
the county. Vide 22 H.Yl. 35. Where a 
Venire facias fhall be from the vill. and not 
from the county. Et vid. Cro. a. 8. 

But, admitting that it was not a good trial 
by the common law, yet they faid, that this 
being after verdift is aided by the ftat. 21 Jac.. 
cap. 13; for, by this ftatute, if a Venire iCro. 162,17^ 
facias be from one place, where it Ihould be 
from two, if it be after verdift, it is aided, 
Cro. I. 480. and vide a cafe upon this point 
T. 1649, in B. R, Simpfon and Golden^ Entr. 22. 1 ro. 617, 6it. 
Car. I. Ro. 107. 

But to this it was anfwered by the plain- por plaintiff 
tifPs counfel, and fo agreed fer Cur\ that this Cur*. 
is a hiis-trial, and that not only by the com- 
mon law, but alfo fince the ftatute. 

I. By the common law : if land held of 
a manor be in another vill. the venue ihall be 
from both ; for if the iffue is to be tried of 
a greater extent than the venue^ as if the 
venue be of King-Street y where the ifliie is 
of St. Margarety this is a mis-trial, for the 
venue ought to be as large as the thing to be 
tried. Hcb, 76. And Simonds et Burlowe's 
cafe, Cro. 2. ArundelVs cafe, Co. 6. And aCro.405. 
alfo on the other part it feems that the venue 
ought not to be larger than the iflue, for 
if the venue be of a manor and vill, where 
it Ihould be of the manor only, this is not 
good, as was held T. 12 jac. in B. R. Ro. 

And it is not neceflary for us to enquire 
if the venue here ought to be of the body 
of the county, or of the honour ; (but it 
fecmed to the Chief Jufticc that it could not 

B 3 be 

I ^ 1 

be of the honour, and he ufed the argument 

of Littleton fi parentes conquerantur, Qc. be* 

iiiift.8i.b. fore, and of Ld. JDy^r, 376. Co. i. 81, 

PrsV^iiiits. (*^^^* ^^4*) tKat error does not He upon a 

judgment in the Cinque Ports^ becaufe no fucH 
writ hath ever yet been brought) for it is 
fofficient to prore, that it ought not to be fronn 
Denford, and fronn D. it nfiay not be j for how 
can the vifne of D. try a cuftom of the ho-, 
nour of Glouc^er^ where it does not appear 
by all the pleadings that .D, is within the 
faid honour ?, therefore, for the fame reafon 
that it might be from D. it might be from 
any other vill, in the couiity oi Northampton. 
vid.^ 16, 17^. 2. This is not aided by the ftatute, for the 
* ' ^' ' ftatute which aids this mis-trial, if any would, 
i^ the ftatute 21 Ja(. c, 13. And this fta- 
tute, as the Chief Juftice faid, only aids mis- 
trial in two cafes, 

I . This ftatute only aids where the venu^ 
ought to be from feveral places, 

a. This ftatute only aids where one of the 
places is truly named ; but in our cafe it is 
not fo, for the ftatute does not extend xxx 

And fo fer totam Cur\ after feveral argu-» 

Judgment. rncnts at the bar, the judgment was ar- 

reftjed, and a Venire facias de novo awarded, 
if the plaintiff chofe to tal^e it j but they 
agreed that he might be nonfuiced if hfi 

Hob. 16. Nota^ That th^ Court did not give their 

»id.9, 13,15, opinion as to the cuftom, nor as to the 

place from whence the Venire facias ihoukj 

The Chief Juftice obferved, that there was 
not any known place mentioned in the avowry 
as there ought to have been 1 but inafmuch 


[ 7 ] 

9s it T^f$ ^ftcr ver^i&y it was gpo4 «noug^ 
otherwiie if there had been ^ depiurrcr bcr 
forp v^rdidt, for the want of it upon fpch 
demurrer would h^ye made the avowry b^, sid. fo. xo. 
and fp he faid the books are r/econciled. 

By 4 yinn, c. i6. ^ 6. wits of Fmr^ are 
to be de corpora ^on^itafus. 


Aftion of covenant was brought in Hamp- Gilbert ▼. 
Jbirey and breach aflignjed for not repairing a ^^r"',/^ ^ 
houfe in J^kjhire^ and the iflue joined wa$ i sid. 1 57. 
non inf regit convjsntmem^ and verdift in Hamp- ^T^IIIy!^^^ 

Jhire for plaintiff. figned in ano- 

And it w^ mpved, in arrefl: of judgment, an^triXn^ 
that this was a mis-trial ; and of this opi- ^^^ is a mij- 
nion was the Court upon co/ifideration (exr Tlcv. 114. 
ccpt Windham) for they faid, that this was 7C0.2, 3. 
a fpecial iffue, upon which nothing irquld be i Keb/575. 
given in evidence but the not repairing of 
the houfe, which is in Bcrkjkirei and al- icrcioi, 
though the privity remains, this a&ion being ^^^cn'^^ 
proper, between thofe who are parties to the 
deed and not aiSigixees, ^c. yet not any elec- 
tion could be giyen tp the pJaintifF in thi$ 
cafe, for which reafbn it feemcd to thenci 
|hat }t was a mis-t;riaL 

Aftion upon the cafe for m efcapcj upon Hopping ▼/ 
wfne proceis, was jbrpught ijci £^et^ againft ^'^^^^ b;^°* 
the Sheriff of the county of Devon, and the i su. 364- 
declaration was of a talcing at Topjhmy which pofcd^'^n Inol 
is in Devmjhirej and that the dcfendajnt fuf- t^er county, 
fered him to efcape at Exeter. And after Itii^^ra 
verdift for the plaintiff it was move^i, in ar- ^^" ^« •'^tcnd. 
reft of judgnaeAt, becaufe the plaintiff had there^byHab'eas 
declared againft tie Shcriif of Bev^njhire for corpus, &c. 

r r ^ 1 • 1 • • J * Keb. 350, 

4n pcape at Mi^(Ur, which is a city and county 

9 4 of 

» • 

[ 8 ] 

of itfelf, and not part of the county of Devon} 
7 Co. *. a. and for this it was at firft ftayed, 

a Browni. But, at another day, judgment was given 
l*Andf %. ^^^ ^^^' pJ^intifF, by all but Twi/den Juftice ; 
pi. 2a.* for being after verdi6t, it (hall be intended 

thiat the defendant had the cuftody of his 
prifoncr in Exefer,- either upon Habeas Cor- 
pus^ or upon frefti purfuit. But per ^wijden 
this is too foreign an intendment. | 

1 And. 291. Notay In this cafe it was faid, that in Not^ \ 

^Thc'^ud'ge tinghamy which is a city and county, the ' 

fat in one coun- judge fits in thc city, and tries the caufes 
S^'crTfntr of the county at large, 
ther, upon the The jury wcrc, and gave their verdidt, 
wufe°^ ^^^ ^n the county at large, but the clerk took and 

recorded their verdidt in the city. 

And judgment wa? given for the plaintiff. 

Lander and Beht for rent brought in Middle/ex. The 

jal^n.fnBfkt defendant pleaded an entry before the rent 
Comb. 75. became due, and that he was held out, (^c^ 
inMkidiefex" ^^ fuch a placc in Hertfordjhirey where thc 
pieainHert- land lay 5 and iffue was taken thereon, and 
^""'^ tried in Middlefex, 

P ember ton moved, in arreft of judgment, 
Ms-trial. that this was a mis-rrial. 

^remain contra. It is ^ided by the ftatutc 
of JeofaileSy Croft ^ and Waters'^ cafe, in Saun^ 
dersy adjudged (I believe he meant Craft and 
Boit. I Saund. 247) Wife and Mderlf^ cafe 
in C B. in Saunders. 
l-ocaiity. P ember ton. A local juftification will alter 

the cafe, and the locality was neceffary in our 
cafej otherwife in the cafe in Saunders ^ (which 
was agreed by the Court) the later judgments 
are contrary to Wife and Adder If ^ cafe j fo 
fer PoUexfen in Jennings and Hankef% cafe. 


[ 9 ] 

Curia. This is a mis-trial, and a Venin facias 
de novo was awarded. 

The plaintiff declares, that he was the firft Edgborougu*, 
inventor of the horizontal mill, for which ^"fjac^Jf. 
he had letters patent for fourteen years, and b- R- comb.B4* 
that notwithftanding which, the defendant fordftiir ", tr^ 
made another mill, like, 6?^. and damages, inMiddiefex, 
l3c. Verdio: 'pro quer . 

Bolt moved, in arreft of judgment, that 
it was a mis-trial in MiddlefeXy the mill be- 
ing made in Staffgrdfloire^ where only the 
caufe of aftion arifeth. 

Obj. Bulwers cafe. Anfw. In that cafe there 
are two tortious afts xhtrt-yjecus in our cafe. 

Here the letters patent are only aji induce- 
ment to the aftion. i Cro. 143, 183. 

He is the offender who ufeth the art, and not 
he that makes the mill, which the Court denied. 
PoUexfen projudicio. 

The caufe of aftion arifeth in both coun- 
ties. Fide 7 Co. Bulwer's cafe ; but admitted, 
that before Bulwer's cafe, the opinion was, 
that the a6bion ftiould be brought where thfe 
original faft was done. 

Obj. That it is not averred, that no other 
ufed this art before the plaintiff, at the time 
of granting the patent. 

2njw. It appears by the record quod primus 
' invenijety i^c. 

Obj, Notwithftanding that, it might be yfed 
beyond fea, 

Anfw, Admitting that, yet it fhall be good, 
and within the ftatute, for that fpeaks only 
of new manufaftures within this realm, which 
flolloway agreed, 

The Court over-ruled the c?i:ceptions, and 
gave judgment pro quer\ 


i 10 } 

Smkh V. Seph* Debt Ofx bond made at Chejiery on plene ad^ 

c?mb.^iif." ^' fniniftravit pleaded, it was tried here by 
Bond at Chef- miufmus to Cbeftcr, and a verdift for the 

tcr tried here plaintiff: it was now moved in arreft of 

judgment, that the bond being made at 
Cb^iTy ought to be tried there > but it was 
adjudgi^dj becaule it was not pleaded, that 
the party dwelt there, or had whereby to be 
attached there, that there would be a failure 
of juftice, if it could not be tried here ; 
* and Mlnjhew and Jreton (per J)olben) was iad* 

judged accordingly. 

Judgment for the plaintiff. Vide FU:^ 

Comb. 30, 4?. Jurifdiilion^ 20, 57.; gnd Jennings and Hm^ 

)t.(fy's jpafe, Vide f aft y IX. (2.) 

Heath V. wai- Upop looking into the record there was n(> 
fex?T.i2Geo! iffuc joincd, for it was et praed* the defend- 
II. B. R. ^nt, inftead of the plaintiff, ftmiliter : it was 
* int"ppMrs therefore objefted, that the Chief Juftice had 
ed \^7ori°'"" ^^ commiffion to try any iffue. And the 
^uft be dif. doubt was, what to do, for the Jury ha^d beesi 
miifcd. fworn. And upon advifing with the Bar, the 

Chief Juftice difmifled die Jury, for he could 
not call the plaintiff, or fuffer the defendant 
v.i5tra.a67- toukp a vcrdifit. 


t " 1 


(2.) 0/ Locality qf Trial. 

Vide ante IX. (i.) tender v. ElSof. 

pO VENANT Uid at Marvin, in the county Lady Caiveriey 

^ of Cbefier, upon a dcmife of an houfe Levin ^p^'o'* 

fituate at Cbefter: and feveral breaches were w, ni. b. r. 

^ffigned 5 videlicet^ for non-payment of rent, ^°^ovcnIX 
and for not keeping the hou^ in repair. The and fevcrai 
defendant pleaded riens arrear j "and that he ^^n'^cl'rone be, 
had kept the houfe in good repair, ^c. where- ingiocai, tried 
upon feveral iffues were joined, and the ty^yl'^d'ed"" 
caufe was tried by mittimus before the Chief ^^^^ vcrdia. 
Juftice of Cbefier at the laft Afljzes, where the 
plaintiff obtained a verdi<5t, and feveral da- 
mages upon the feveral iffues : And now it 
was moved by Sir Bartb, Showery tha.t this 
was a misr-trial as to the repairs^ for it appears 
the houfe is fituate in the city of Cbefter^ 
which is a diftinft county, and the iffue be- 
ing local, could not be tried by a jury de vi- 
cineto de Tarvin in (om, Cejir\ and to that 
opiaion the Chief Juftice at firlb inclined ; 
but afterwards, the whole Court held, that it 
was aided after verdift by ih^fiat. 16 and 17 
C^. 11. being tried by a jury of the county 
where the a6lion was laid. 

8 Error 

[ II 3 

Leeds V.Power. Effor tum tfi reddUiofie judicii in ^n eieil- 
I stra.417.* * ni^t in C. B. in Ireland, quam in affirmatione 

ejtifdem in B. R, there. 
Howtocom- 'The beginning; of the .term I moved for 
roent of errors tjh.e common- rulc, that the plaintiiT Ihoulq 
jreS,^ ^'^"^ affign his errors, it not being ufual to take 

out a fcire ^fdciaSy as we ' do on writs of er- 
ror from C. B. When that rule was out, I 
moved again, upon an affidavit, that we could 
Per Strange-, find iiobodf concemcd for the plaintiff in 

Huxic ^*^°Bur- ^^^^^y ^^d had fixed it up in the office ; that 
ton. In an irifh therefore we might be at liberty to fign a 
J^d\h/fame'^ non pros, elfe if we fhould be put to fend the 
rule. rule over to Ireland to be ferved, the delay 

Wafirs"v.^B^- would bc as great as in the cafe of zjcire 
laritine, I had facias^ and it being a writ of the plaintifTs 
lfflrmy"motk)r own fuing out, he muft be apprifed when 

was the due time to come in and profecute it. 
Whereupon the Court made a new rule, that 
unlefs errors were affigned within four days 
after fixing a new note up in the office, the 
defendant in error (hould be at liberty to figa 
^ nonpros. 

Within the time errors were affigned; and 
on the arguing, Reeve objefted, that it is an 
qeftment for lands in the county of Dubliny 
and yet the trial is at the King's court in the 
county of the city of Dublin. 
. Strange contra. This Court will not take 
notice that they are dillinft counties, but 
rather intend the city to be part of the county, 
that the county of the city of Dublin is the 
county in which the city of Dublin lies. Or 
if they fhould, yet the trial may be right, for 
it runs pcjlea die et loco infra content\ which 
hcus infra ccntentus may be as well the place 
within the county of Dublin where the de- 
mife is hid to be made, as any other. 


[ 13 r 

Or admitting it a trial out of the proper 
county, yet it is helped by the i6 and 
17 Car. IL c. 8. which is enafted in Ireland 
by 17 and 18 Car. IL r. 12. being a trial by 
a jury of the proper county, for the award of 
the venire is previous to any mention of the 
county of -the city, and commands the fherifF 
of the county to fummon twelve men of his 
county, and then the trial is had by the jura^ 
tores unde infra fit mentio. 

If this be not right, there never was a 
proper trial of any caufe arifing in the county 
of Dublin ; for the King's courts fitting in 
the city of Dublin, it is there all the trials 
of thofe caufes are had : juft as here, where 
caufes of Middlefex are tried in the fame place 
where the King's Bench fits. We haye in- 
fiances, ia England of county caufes being 
tried in cities which are counties alfo, as at 
Worcejier, where both are tried in the fame 

The Court faid, they muft intend them 
diftinft counties j but as to the other points, 
they went over to be inquired into. And af- 

In anfwer to the objedtion made the laft 
term, that the lands lay in the county of Dub-- 
linj aod the trial was in the county of the 
city of Dublin, Strange now cited an aft of 
parliament made in Ireland 17 and 1 8 Car. IL 
€. 20, which appoints the trial of caufes 
arifing in the county of Dublin to be at Ni/i 
prius in thie fame place where the King's 
courts fit, in the county of the city of Dub-- 
lin. So the judgment was affirmed. 

N. B. There being fuch an exprefs aft of 
parliament, I thought it not neceflary to put 
it on jche former foot of being a trial by a 

C «4 1 

jttry of the proper 6ountfi which would hifi 
irtite ante. been a fufficient anfwer : for Pa/cb. i o ^. ///. 

B. R. La^ Calverley *Ui Sir Richard Lemngi 
in covenanti die cafe was ient into the county 
Otttb.44?* p^atine of Cbeftery on a local plea of a mat- 
ter arifing in the county of the city of Chejlerf 
the mittimus to the C y, was to award a ^eniri 
to the Iheriff of the county of Cbefter^ which 
was done accordingly ; and after verdift pro 
quer\ moved by Sir Bartb. Sbowity in arrell 
of judgment, that this is a mis-trial, not aided 
by the ftatute o^'y€ofail$ ; being a trial in ^ 
wrong county : but the Court held it was 
aided : and diat is a ftrohger cafe than this^ 
where it appears the trial was by a jury of" 
the proper county, as it was not in thdt cafe i 
and in ddivering the refolution of the Courts 
Ihlt C 7. cited Cheni^. v. Brigs in Bk R^ where 
he iaid it had been fo held likewife^ and io it 
X Saund» 046* Craft ^. Beite* 

At Guildhall coram E^re^ C J. de C* Bi 
Shelling V. Far- In an aftion of trcfpafs atid imprifonmen€ 

men .1. co* ^^^ ^^^^ ^^^^ .^ ^^^ j^^j^ Indies, the plaintiff 
istra*^6. 1^^ them ail (being tranfitory) in Londoiii 
We^i'n the ftod inter alia declared for feinng the plain- 
Eaft Indies is ^|p houfc, fituatc atud LondcH praed" in fc^ 

j»)t triable here. * . ' , ^,. t ^ \ - c\ ji 

rocbta et warda praed * It was objetled prid 
ief that the trcfpafs as to the houfe was 
local, and they could not give evidence of 
feifuig a houfe in the Eafi Indus. And 
Eyrty C. J. refufcd to let the plaintiff give 
evidence as to the houfe, comparing it to the 
cafe of rent for a houfe at Bartadoes, wher« 
it has been held you may bring covenant for 
Vide Poll. the rent in England^ but an aftion of debt| 
Moftyn and ^hich IS local, canttot be brought here* 

Fabrigas. « Q^ 

[ «5 1 

- » 

On the 8th of June, in laft term, Mr. Moftyn r. 
Jtifiia Gould came pcrfonally into Courts to ^^j^'^g;^ ^j^ 
acknowledge his feal affixed to a bill of ex- B/R.cov^'.t6i« 
ceptions in this cafe j and errors haying been xurf nII^i 
affigned thereupon, they were now argued. Trcfpafs'ani 

This was an aftion of trefpafs, brought in ^^l^J"!^^^ 
the court of Common Pleas, by Anthony England by a 
Fiihrigas againft John Moftyn, for an affiuk Sr^S^a 
and faife imprifonment 5 in which the plain- governor of 
tiff declared, that the defendant on the ift of nlch^^ury*^ 
September J in the year 177 1, with force and committed v 
arms, ^c. made an afliult on the fjud An- caT *" ' 
thtmy, at Min&rca, (to wit) at London afi>rc- 
faid, in the parifli of St. Mary-le-BfiWy in the 
ward of Cheap, and beat, wounded, and ill- 
treated him> and then and there imprifoned 
him, and kept and detained him in priu>n there 
for a long time, (to wit, for the fpace of ten 
%(tondis) without any reafonable or probable 
caufe, contrary to the laws and cuftoms of 
this realm, and againft the will of the faid An'^ 
tbofr/y and compelled him to depart from 
Minorca aforefeid, where he was then dwell- 
ing and refident, and carried, and caufed to 
be carried, the faid Anthony from /Minorca 
laforefaid to Carthagena, in the dominions of 
the King of Spain, 6f r. to the plaintiffs da*- 
tnage of £. io,ooo. 

The defendant pleaded, ift, Not Guilty ; 
upon which iffue was joined, adly, A fpcciai 
juftification, that the defendant at the time 
when, £5?r. and long before, was governor of 
the fame ifland of Minorca, and during all that 
time was inverted with, and did exercife, all 
the powers, privileges, and authorities, civil 
and military, belongir^g to the government of 
the faid ifland of Minorca, in parts beyond 
the leas $ and the faid Anthony, before the 


feid time when, &Ci (to wit) on the faid t^ 
of September^ in the year aforefaid, at the 
ifland of Mimrcd aforefaid, was guilty of a 
riot, and was endeavouring to raifc a^ mutiny 
among the inhabitants of the faid ifland, ia 
breach of the peace : whereupon the faid 
Jobriy io being governor of the faid ifland o£* 
Minorca as aforefaid, at the faid time, wheoj 
6f^. in order to preferve the peace and go-* 
vernmerit of the faid ifland, was obliged to, 
and did then and there order the faid Anthony 
to be baniflied from the faid ifland of Mi^ 
norca ; and in order to banifli the faid An^ 
tbony^ did then and there gently lay hands 
upon the faid Anthony ^ and did then and 
there feif^ and arrcfl: him, and did keep and 
detain the faid Anthony ^ before he could be 
baniflied from the faid ifland, for a fliorc 
fpace of time, (to wit) for the fpace of fj^ 
days then next following; and afterwards 
(to wit) on the 7th of September, in the 
year aforefaid, at Minorca aforefaid, did car- 
ry, and caufe to be carried, the faid Anthonyy 
on board a certain veflel, from the ifland of 
Minorca aforefaid to Cartbagena aforefaid, as 
it was lawful for him to do, for the caufe 
aforefaid \ which are the fame making the faid 
aflault upon the faid Anthony^ in the firfl: count 
of the faid declaration mentioned, and beating 
and ill-treating him, and imprifoning him, 
and keeping and detaining him in prifon for 
the faid fpace of time, in the faid firft count of 
the faid declaration mentioned, and compelling 
the faid Anthony to depart from Minorca afore- 
faid, and carrying, and caufing to be carried, 
the faid Anthony from Minorca to Cartbagena, 
in the dominions of the King of Spain, where- 
of the faid Anthony has above complained 


C 17 j 

^ainft him, and this he is ready to verify ; 
wherefore he prays judgment, (^c. without 
this, that the faid John was guilty of the faid 
trefpais, affault, and imprifonment,' at the 
parifli of St. Maty le BoWj in the ward of 
Cheapj or elfewhere, out of the faid ifland of 
Minorca aforefaid. Replication de injuria Jud 
propria ab/q. tali caufd. At the trial the jury 
gave a verdift for the plaintiff, upon both 
iffues, with {^. 3000 damages, and ^. 90 

The fubftance of the evidence, as ftatii by 
the bill of exceptions, was as follows : — On be- 
half of the plaintiff, that the defendant, at the 
ifland of Minorca^ on the 17 th of September 
177 1, feifed the plaintiff, and, without any 
trial, imprifoned him for the fpace of fix days 
againft his will, and banifhed him for the fpace 
(^twelve months from the faid ifland of M/- 
norca to Carthagena in Spain. On behalf of 
the defendant j that the plaintiff was a native 
of Minorcay and at the time of feifing, im- 
prifbning, and banifhing him as aforefaid, was 
an inhabitant of and refiding in the Arraval 
of St, Phillip'Sy in the faid ifland ; that Mi^ 
norca was ceded to the crown of Great Britain, 
by the treaty of Utrecht y in the year; 17 13. 
That the Minorquins are in general governed 
by the Spanijh laws, but when it ferves their 
purpofe plead the Englijh laws ; that there are 
certain magiflrates, called the chief juflice 
criminal, and the chief juftice civil, in the 
faid ifland ; that the faid ifland is divided 
into four diflrifts, cxclufive of the Arraval of 
St. Phillip's ; which the witnefs always under- 
ftood to be feparateand diftinfl: from the others, 
and under the immediate order of the governor; 
fo that no magiftrate of Mabon could go there 

Vol. III. C to 

to excrcife any funftion^ without leave fifft had 
from the governor : that the Arraval of S(^ 
Phfllif^ is furroundcd by a KnewaU on one 
fide, and on the other by the (ea, and \^ called 
the Royalty, where the governor has greater 
power than any where elfe in the ifland s and 
where the judges cannot interfere but by the 
governor's confent ; that nothing can be exe- 
cuted in the Arraval but by the governor's 
)eave^ and the judges have applied to hini, the 
witnefs, for the governor's leave to execute 
procfft there. That for the trial rf murder 
and other great ofiences ccMnmitted within the 
faid Arraval^ upon application to the go« 
vcrnor, he generally appoints the ajfeffem' cri- 
tninal of Mabofti and for lefier ofences, the 
Muftaftnph ; and that the faid John Mofiyny at 
the time of the leifing, imprifoning, and ba* 
nifhing the faid Anthony y was the governor of 
the faid ifland o{ Minor ca^ by virtue of certain 
letters patent of his prefent Majefty. Being 
fo governor of the laid ifland, he caufed the 
faid Anthony to be fei<ed> imprifoned, and 
baniflied as afore&idy witbout any realbnaUe 
or probable caufe, or any other matter al- 
ledged in his plea, or any aft tending 

This cafe was argtied this term, by Mr. Bui- 
tery for the plaintiff in error, and Mr. Peck^ 
hanty for the defendant. Afterwards, in Hilary 
term 1775, ^J Mr, Serjeant Walker y for the 
plaintiff, and Mr. Serjeant Glynny for the de- 

For the plaintiff in error. There arc two 
queftions, ift. Whether in any cafe an aftioa 
can be maintained in this country for an im- 
prifonment at MSnvrcay upon a native of tiat 
place ? 

t 19 1 

jdjy V S.upppry)g an adion vyiJl. Ueagaiiail; 
any other pcrfpn, whcthec it can be. niaintain- 
e4 agaiAft tfee Governqr, afting as fuoh in tb^ 
pcqdiar.diftrift c^ the Jrrav^l o(SL Phiilip\i 

Ip.the cjifci^y^pn.of bqth thtfe queftions, the 
copftitution.ojE! the ifland o( Minor ca^ and of 
th^ j^ra;v,a/ qf ^/..PA///if *s, are material* Upon 
tb^,: record it appears^ that by the treaty of 
Utr^Jbt, the inhabitants had their own. proper- 
ty :^n4 J,a^ys preferved to then). The.record 
fmhcx ftai:cs> that the Arraval of *9/. Phillip's^ 
wber? the pcefent caufe of aftiqn arofe, \%/ub- 
je§ tp th^.ipdiBcdiatje controul and order of the 
go^&rnQr ojuly^ and that no judge of the iQand 
can execute any funftion there, without the 
particular leave of the governor for that pur^ 
pofe. - ift. If thw be fo, and the lex loti 
differs from the law of this country \ the lex 
kci muft decide, and not the law of this 
cojontry. , The cafe of Robinfon verfus Bland^ 
1 Bar* 1078, does not interfere with this po- 
fitippj: fpr the doctrine laid down in that cafe 
is, w,heri5 a. tranfaftion is entered into be- 
xmgx)(.Britifo fubjeft^ with a view to. the laijo 
of^ Engl^ndi the law of the place can never be 
the rule which is. to govern. But where an.aft 
is done, as in this cafe, which by the law of 
England would be a crinnie, but in the country 
where it is commitpe<i is no crime at all i th^e 
lex loci cannot be the rule. It was fo held by 
Lord C". 7. Fratt^ in the cafe of Pons verjks 
'Jobnfojfi^ fittings after Trinity term 1765. . 

ad.. In criminal cafes, ah offence committed 
iQ fpr.?ign parts, caiinpt, except by particular 
ftatutes,. be tried in this, country, ift Vezey^ 
246^ The Mififi Jpdia, Company vfirjus Camp- 
kll If crirp^s c^mu^ittcd abroad cannot be 
tried here, mych \th QMgbt civil inj,uric*, be- 

C ' ijr ' caufe 

[ ^ J 

Caufe the latter depend upon the police and 
cdnftitution of the country where they occur, 
ind the fanrie conduft may oe actionable in one 
country which is juftifiable in another. But 
in crimes, as murder, perjury, and many other 
offences, the laws of mod countries take for 
their bafis, the law of God and the law of na- 
ture ; and therefore, though the trial be in a 
different country from that in which the of- 
fence was committed, there is a greater pro- 
bability of diftributing equal juftice in fuch 
cafes than in civil aftions. In Keilway 202. 
it was held that the court of Chancery cannot 
entertain a fuit for dower, in the IJle of Many 
though it is part of the territorial dominions of 
the crown of England. 

3d. The cafes where the courts of Weft- 
minjier have taken cognizance of tranfaftions 
arifing abroad, feem to be wholly on contra6ts> 
where the laws of the foreign coftntry have 
agreed with the laws of England y and between 
Englifh fubjeds ; and even there it is done by 
a legal fiftion j namely, by fuppofing under a 
videlicet y that the caufe of aftion did arife 
within this country, and that the place abroad 
lay either in London or IJlington. But where it 
appears upon the face of the record, that the 
caufe of aftion did arife in foreign parts, there 
it has been held that the Court has no jurifdic- 
tion, iLutw, 946.* Aflault and falfe impri- 
fonment of the plaintiff, at Fort St. George, in 
the Eaji Indies, in parts beyond the feas ; 
videlicet, zt London, in the parifh of St. Mary 
le Bow, in the ward of Cheap — It was re- 
folved, by the whole Court, that the declara- 
tion was ill, becaufe the trefpafs is fuppofed 
to be committed at Fort St.' George y in parts 
beyond the feas, videlicet, in London ; which 


' [ 21 ] 

is repugnant and abfurd : and k was faid, by 
the Chief Juftice, that if a bond bore date at 
PariSy in the kingdom of France \ it is not 
triable here. In the prefent cafe, it does ap- 
pear upon the record, that the offence conv. 
plained of was committed in parts beyond the 
feas, and the defendant has concluded his plea 
with a traverfe, that he was not guilty in hon-- 
dofiy in the parijh of Sl Mary le BoWy or elfe- 
where, out of the ifland of Minorca. Befides, 
it Hands admitted by the plaintiff; becaufe if 
he had thought fit to have denied it, he Ihould 
have made a new aflignment, or have taken 
ilTue on the place* Therefore, as Juf^ic^ 
Dodderidge fays, in Latch. 4. the Court muft 
take notice, that the caufe of adion arofe out 
of their jurifdiftion. 

Before the ftatute of Jeofails ^ even ii^ cafes 
the mofl tranfitory, if the caufe of aftion was 
laid in London^ and there was a local juftifica- 
tion, as at Oxford^ the caufe mufl have been 
tried at Oxford^ and not in London. But the 
ftatute of Jeofails does not extend to Minorca : 
therefore this cafe flands entirely upon the com- 
mon law i by which the trial is bad, and the 
verdidt void. 

The inconveniences of entertaining fuch an 
aftion in this country are many, but none can 
attend the rejefting it. For it muft be de- 
termined by the law of this country, or by the 
law of the place where the ad was done. If 
by our law, it would be the higheft injuftice, 
by making a man who has regulated his con- 
duft by one law, amenable to another totally 
oppofite. If by the law of Minorca^ how is it 
to be proved ? There is no legal mode of cer- 
tifying it, no procefs to compel the attendance 
of witneffes, nor means to make them anfwer. 

C 3 The 

t la ] 

The confeqiiencc wbuld be, ifo cnciert^ge tvtry 
dJf^ffefted or mtitmous foldier to bring adfions 
agairift his officer, and to ptit hirti ilpcrn his 
defence, without the power df prcW^ing fitter 
the kw or the fadts of his cafe. 

11. Point. If an aftion t^ould lie ag»nft 
any other perfon, yet it cannot be maintained 
againft the Governor of Minona^ afting as 
ftch, within the Arraval of St. Pbitlip"^. 

The governor of Afwf<?rtf^, at leaft withtto the 
diftrift bf St. PhiUifs, is abfolute : both the 
civil and criminal jurifdiftion vcft in fairti as 
^tjufrme power^ and as fuch he fe afetdunt*. 
able to none but God. But fuppoftnglte ^erc 
iiot abfolute, in riiis cafe, the aft compSained 
of was done by hinn in a ju(Scial caff^tjity as 
crinninal judge ; for which no man is iwvfwer* 
tible, I SaU^. 396. Groiivt)ett wrju^ BurwelL 
^ Mod. 118. Shtyw. Pari, cafes 24. Button 
vetlfus Hoivelly are in point to this pdfttioni 
%tit nfibre parricularly Ae Irfft cafe i ^here ift 
trefpafs, aSatllt, and falfe impriftifnmttit, «he 
'defendant juttified as governor of Bar'b^&es^ 
•under an order of Ae council of -ftate m Bot'^ 
iadoaesy u^ade by himfeJf and the council, 
againft the plaintiff (who was the deputy gb- 
vernor) for mal-iadnftiniftratiofl in his office j 
♦and the Hotife of Lords determined, th&t the 
'aftion would iiot lie here. All the grounds 
and reafons ui^ged in that cafe, and ^1 t\vt in- 
conveniences pointed out againft that adron, 
hold ftrongly in the prtfent. This is ^h ac- 
tion brought againft the defendatft for'Whetthe 
•did as Judge ; all the records and evidence 
"U^ich relate to the tranfaftion arc in Minorca^ 
and cannot be brought here 5 the laws there arc 
different from what they are in this country j 
ftnd as it is faid in the conclufion of that «rgi»- 


E aj ] 

ment, government muft be very wedc indeed, 
and the perfqns entrufted with it very uneafy, 
if they arc fubjcft to be charged with anions 
here^ for what they do in that charafter in thofe 
countiries. Therefore, vnleis that cafe can be 
materially diftinguiftied from the prefent, it 
will be an authority, and the higheft authority 
that can be adduced, to (hew that this action 
cannot be maintained ; and that the plaintiff 
in error is entided to the judgment of the 

Mr. Peekbemi for the defendant in error. 

Firjl. The objc&ion to the jurtfdiftion is 
now too late j for wherever a party has once 
fubmitted to the jurifdiftion of the Court, he is 
for ever after precluded frem making any ob- 
jc6tion to it. Tear Book 22. H. VI. fol. 7. Co. 
Lin. 127. i. T. Raym. 34. i Mod. 81. 1 A^d. 
273. 2 Lord Raym. 884. 2 Fern. 483. 

Sicotidlyy An aftion of trefpafs can be 
brought in England for an injury done abroad. 
It is a tranfitory aftion, and may be brought 
any where. Co. Litt. 282. 12 Co. 114. Co. 
IMt, 261. b. where Lord Coke fays, that an 
obligation made beyond feas, at Bourdeaux \h 
Francey may be fued here in England, in what 
place die ^aimiff will. Captain Parker biou^t 
an a£Hon of trefpafs and falfe imprifonment 
agarrtft Lord Clive for injuries received in India^ 
and it was never doubted but that the a<n:ion 
did lie. And at this time there is an aftion 
depending between Gregory Cojifnaul, an yfr- 
ffienian merchant, and Governor Verelft^ in 
which the caufe of adion arofe in Bengal. A 
bill was filed by the Governor in the Exchequer 
for an injunfbion, which was granted ; but on 
appeai to the Houfe of Lords, the injunftion 
was diflblved j therefore the fupreme court of 

C 4 judicature. 


[ U ] 

judkature, by diflblving the injunftion^ ac- 
khowledged that an aftion of trefpafs could be 
maintained In England, though the caufc.of 
aftion arofe in India. 

Thirdly^ There is no difability in the plain-- 
tiff which incapacitates him from bringing this 
a6tion. Every perfon born within the ligeance 
of the king, though without the realm, is, a 
natural born fubjedt ; and as fuch, is' entitled 
to fue in the king's courts. Co. Litt. 1 2^.' The 
plaincifF, though born in a conquered country, 
is afubjeft, and within the ligeance of the king. 
2 Burr. 858. . 

In I Salk. 404. Upon a bill to foreclole a 
mortgage in the ifland ofSarke, the defendants 
pleaded to the jurifdi6tion, ijiz. that the iQand 
was governed by the laws of Normandy, and 
that the party ought to fue in the courts of the 
ifland, and appeal. But Lord Keeper IVright 
over-ruled the plea; " otherwife there might 
be a failure of juftice if the Chancery could not 
hold plea in fuch cafe, the party being here." 
In this cafe both the parties are upon the fpot. 
In the cafe oi Ramkijjenfeat verjHS Barker, upon 
a bill filed agaiiiit the reprefaitatives of the 
governor of Patna^ for money due to him as 
his Banyan ; the defendant pleaded, that tlie 
plaintiff was an alien born, and an alien in- 
fidel, and therefore could have no fuit here. 
But Lord Hardwicke faid, " as the, plaintiff's 
was a mere pcrfonal demand, it was extremely 
clear that he might bring a bill in this Court ;" 
■ and he over-ruled the defendant's plea without 
hearing one counfel of the other fide. 

The cafe of the Countefs of Derby, Keilway 

202. does not affeft the prefent qucHioni for 

that was a claim of dower } which is a local 

aftion, and cannot, as a tranfitory aftion, be 


[ 25 ] 

tried any where. The other cafes from Lauh 
dnd .LHiwx<^^9 were either local aftions, or 
queftions upon demurrer i therefore not ap-. 
plicable to the cafe before the Co^urt^ for a 
party may avail hicnfelf of many things upon 
a dcmwrer, which he cannot . by a writ of 
crron The true diftinSlion between tranft^ 
tory and heal aflions is, the former may be 
tried any where ; theJUtter cannot^ and this is 
a traniixory aft ion. But there is one cafe 
which more particularly points out the dif* 
tindion^ which is the cafe of Mr. Skinnevy re- 
ferred to the twelve Judges from the Council- 
board. In the year 1657, when trade was ' 
open to the Ea/i Indies y\it poffeffcd himfelf of 
a houfe and warehoule, which he filled with 
goods at. Jamky ; and he purchafed of the king 
at Greai Jamby the iflands of Baretha. The 
^ents of the Eaft India Company ajqulted his 
f&rjmy feifed his warehoufe, carried away his 
i;W5, and took and pojfejfed themfelves of the 
iflands of Baretha. Upon this cafe it was pro- 
pounded to the Judges, by an order from the 
King in council, dated the 12th Jfrily 1665, 
" Whether Mr. Skinner could have a full re- 
^' lief in any ordinary court of law ?" Their 
opinion was, *^ That his Majefty's ordinary 
" courts of juftice at Weftminjler can give re- 
** lief for taking away and fpoiling his Ihip, 
^^ goods and papers, and aifaulting and wound-^ 
^^ ing his pcrfo^i, notwithftanding the fame 
was done beyond the feas. But that as to 
the detaining and fojfejfing the houfe and 
^' iflands in the cafe mentioned, he is not re- 
*^ licvable in any ordinary court of juftice. '* 
It is manifeft from this cafe, that the twelve 
Judges held, that an aftion might be main-^ 
tained here for fpoiling hi^ goods, and feifing 
hi$t perfop, bccaufe aw ^ftion of trefpafs is a 



[ 26 3 

' tranfiHfy a<^ion j but an adioft cotjld iK>t be 
imaimained for poi&fl^ng the houie. ^id laiKi, 
bedaufe it is a lo€al adion. 

Fourth Poiat. It is contended that General 
Mofiyn governs^ as all abfolute fowmgns do, 
artd that ftet fro rafione voluntas is the oiUy 
Tule of Ws condiKft. From whom does the 
governor derive this defpotiim ? Not^fi?c»n 
l;he king^ for the king has no fach power, and 
thci'cfore c«nnot delegate it to another. Many 
cafes itave been cited, and much apgiijment Im 
been adduced to prove that a nnan is not Ye* 
iponfi'ble in an aft ion for what he has done as 

. a Jtidge ; and the cafe of Dtatton verjus IkfS&ell 
has been much dwek upon ; but that cafe has 
noctiie leaft refemblance to the ppefent. The 
gr^Qild 'of ihat decifioft was, that .Sir J^bn 

' JfftftonWBB afting with his €4)uncil in a judicial 
capacity, in a-matter of pablic accufatlon, and 
agre^Ue to the laws of Bfarbadois^ and only 
fct the law fake ks courfe againft a criminal. 
But Governor Moftyn neither fat as a militaiy 
<M-as a civil judge ; he he^d no accufation, he 
entered intso no proof; he did not €ven fee die 
prifoner j bet in direft oppofition to all laws, 
mtA m violation of the fifft principles of jofkice, 
foBowed no rule but his own artxtrary will, 

, and went oat of his way to per&cuce ^e inno- 
cent. If that be fo, he is refponfiWe for the 
iRJury he has done : and fo w^ the opinion of 
tht court of C B. as delivered by Lord Chief 
Tuftice Be Grey on the lanotion for a new tmah 
If Aegovetnor bad fccured him, faid his Lord- 
fhip, nay, if he had barely con^mitced him, 
that he miglit have been amenable to juftice \ 
and if he had inamediately ordered a prosecu- 
tion upon any part of lus condud, it would 
have been another 4ueil:ion 5 but the governor 

^Itnew he could -no more imprifon him for a 


[ *7 1 

%W^Viemonth (and the banifhmf nt for a year is 
*a cofrtkiuation of the original imprMbnment) 
than that he could mflift the torture, Lx)rd 
BelUMiafit^i cafe, a «9i^/ifc. 625, PaJ. i2, ^, 3. ViJePoftio, 
•fe a cafe in point to fhew that a governor abroad 
is'^cfporffible here: and the ftat. 1-2 W. 3/ 
jjalRd the fenne year, for making governors 
abroad areienaHe here in criminal cafes, affords 
'^ fti^ng inference that they were already an- 
Iw^ralble for civil jnjurids, or the legiftature 
'^dtfM^ 'Ae fame time have provided againft 
*-#r*!! hfSfcfifief. But there is a late decifion not 
"ffiftihgiiHhable • frl)m the cafe in queflnon^ 
"Cemyn vi^s 'Sabim^ ^)vernor of Gibraltar^ 
'Mich. 1 1 . Ge^. a. The declaration stated, that 
' the plk?ritiff was a matter carpenter of the of- 
fice of ordnance at Gibraltar j thiit Governor 
' Se^4ne tried him ' by a court-martial to w*iich 
•lie fr^ 'not ftibjeft, thalt he iinderwfeftt a fen- 
•tencte of 5 00 laihes ; and that he was compelled 
*> ^epafcrt from Gibrahar^ whidh he laid to his 
'ifemage of ^. 10^000. The dcf<jftdafit pleaded 
hot gtiilty, and jiiftifi^d under the fenteisce of 
the cbiirt martial • Thei*e was a verdift for 
the ^aJntiff, with £. 700. daniages* A writ 
(Of e^ror was brought, but the judgment af- 

W-ith f^a to the Arratal of St. Pbi^ifs 
'bemg^ ptfcuKir. diftrift tmder the iitimediMc 
aiftftority of the governor alone, the pinion of 
lirtd Chief Juftice De Grey upon 'the mottiem 
' ^for a new trial, is a corrtpllete anfwer : " One of 
^^ the wJtncfles in the caufe (fajd his LordftJp) 
^^ reprdfeMed to the jury, that in fome partieu- 
*' lar -cafes, efpecialfy in criminal matters, 
*^ the governor refident upon the ifffand, docs 
** ttc^rcife a legiflativfe poiver. It *was grois 
*^ ignorance in that perfon to imagine fiach a 

*^ thing i 




[ 28 ] 

thing ; I may fay it was' impoffible, that a 
*' man who lived upon the ifland in the ftation 
*' he had done, fhould not know better, than 
to think that the governor had a civil and 
criminal power in him. The governor is 
*^ the king's fervant ; his commiflion is from 
** him, and he is to execute the power he is 
*' invefted with under that commiflion j which 
'^ is, to execute? the laws of Minorcay under 
*' fuch regulations as the king fhall make in 
♦' council. It was a vain imagination in the 
'* witnefles to fay, that there were five termims 
*' in the ifland of Minorca 5 I have, at various 
** times, feen a multitude of authentic docu- 
ments and papers relative to that ifland, and 
I do not believe that in any one of them, 
the idea of the Arravalof St. Pbillip\ being 
** a diftinft jurifdidion, was ev^r ftarted, 
^' Mahon is one of the four terminosy and St* 
** Phillip's, and all the diftrift about it, is 
comprehended within tYizx. termino-y but to 
fuppofe that there is a diftinft jurifdidtion, 
^' fep^rate from the government of the ifland, 
" is ridiculous and abfurd," Therefore as the 
defendant, by pleading in chief, and fubmit- 
ting his caufe to the decifion of an Englijh jury, 
is too late in his objeftion to the jurilcijftionof 
the Court 5 as no difability incapacitates the 
plaintiff" from feeking redrefs here ; and as the 
aftion which is a tranfuory one is clearly main- 
tainable i^ this country, though the cayfe of 
aftion arofe abroad, the judgment ought to be 
affirmed. Should it be reverfed, I fear the 
public, with too much truth, will apply th« 
lines of the Roman fatirift on the drunken 
MaYius to the prefent occafion j and they will 
fay of Qovernor Mofiyny as was formerly faid 



[ 29 ]. 

• ... 

■ - ' jHSc ejl damnatus inanijudicio ; 

and to the Minorquinsy if Mr. Fabrigas (hould 
be deprived of that fatisfadtion in damages 
which the jury gave him. 

At til viSrix frovincii floras • 

I^rd Mansfield. Let it ftand for another 
argument. It has been extremely well argued 
on both fides. 

On Friday ayth January^ ^7S5> ^^ ^^^ ^^^Y 
ably argued by Mr. Serjeant Glynn, for the 
plaintiff, and by Mr. Serjeant IValker for the 

Lord Mansfield. This is an aftion 
brought by the plaintiff againft the defendant, 
for an affault and falfe imprifonment \ and part 
of the complaint made, being for banifhing 
him from the ifland of Minorca to Cartbagena 
in Spain, it was neceffary for the plaintiff, in 
his declaration, to take notice of the real place 
where the caufe of adlion arofe j therefore he 
has ftatcd it to be in Minorca j with a videlicet, 
at London, in the parifli of St. Mary le Bow, 
in the ward of Cheap. Had it not been for 
that particular requifite, he might have ftated 
it to have been in the county of Middle/ex. 
To this declaration the defendant put in two 
)leas. Firfiy " not guilty/' fecondly, that 
le was Governor of Minorca by letters patent 
from the Crown i that the plaintiff was raifing 
a feditioji and mutiny -, and that in confequencc 
offuch fcdition and mutiny, he did imprifon 
him, and fend him out of the ifland ; which 
as Governor, being inverted with all the pri* 
vileges, rights, &f^. of governor, he alledges 
he had a right to do. To this plea the plain- 
tiff does not demur, nor does he deny that it 

I would 

I! 3<5 1 

would be a juftification in cafe it were true : 
but he denies the truth of the faiS ; and puts 
in iffue whether the faSl of the pjea is true:* 
The plea avers that the affault for which the. 
a6J^ion was brought arofe in the ifland of JVf/- 
norcUy out of the realm of England^ and no 
where elfe. To Ihis the plaintiff has. made 
no new alfignnfient, and therefore by hi^ re- 
plication \i,t admits the locality of the cauCe oC 

Thus it ftopd on the pleadings. Af the 
trial the plaintiff went into the evidence of his. 
cafe, and the defendant into evidence of his ;, 
but on behalf of the defendant, evidence dif- 
ferent fro(n the fads aljedged in his plea of 
juftification was given, to fhew that the Ar-^ 
iraval of St. Phillip's, where the injury com- 
plained of was done, was not within eithpr of 
the four preqinfts, but is a diftrifl: of itfelf, 
more immediately under the power of the go- 
vernor ; and that no judge of the ifland can 
exercife jurifdiftipn there, without a fpeci^ 
appointment from him* Upon the fafts qf 
the cafe the judge left it to the jury, who 
found a verdid for the plaintiff, with jiC'3^Qc> 
damages. The defendant has tendered a bill 
gf eKpeptions, upon which, bill of exceptions 
the ca.ufe comes before us ; and the great dif- 
ficulty I have had upon both the arguments, 
ha^.beeri tp be able clearly to comprehend what 
the qweftipn ia^ which is meant fcrioufly to be 
brpught before the Court, 

If I underft^nd the counfel for Goverinor 
Moftyn righti wha.t they fay is this : the plea 
Cff not guilty is totally immaterial j and fo is 
thp pka of jtjftificatiqn, becaufe upon the 
plaiptifTs own fhewing it appears, lil, that 
^e cajpfe. of adtipn arofe m^Minorca^ out of the 
8 realm j 

C 31 ] 

realm f idty, that the defendant was governor 
of AiBnorca^ and by virtue of fuch his autho- 
rity imprifoned the plaintiff. From thence it 
is ^^ued, that the Judge who tried the caufc 
ought to have refufed any evidence whatfo« 
ever, and have dire6ted the Jury to find for the 
defendant: and three reafons have been af- 
figned. One, infifted upon in the former ar- 
gument, was, that the plaintiff, being a A//- 
norquiriy is incapacitated from bringing an ac- 
tion in the king's courts in England. To dif- 
pofe of that objection at once, I fhall only fay^ 
it is wifely abandoned to-day ; for it is impoi^ 
fible there ever could exifl: a doubt, but thiit a 
fubjedl: bom in Minorcdy has as good a right to 
a|>peal to the king's courts of juftice, as one 
who is born within the found of Bow bell ; 
and the obje<5tion made in this cafe, of its not 
being ftated on the record that the plaintiff wa^ 
born fince the treaty of Utrecbiy makes no dif- 
ference. The two other grounds are, ift, that 
the defendant being governor of Minorcay is 
anfwerable for no injury whatfoever done by 
him in that capacity: adly, that the injury 
being done at Minorcay out of the realm, is not 
cognizable by the king's • courts in England. 
— As to the firft, nothing is fo clear as that to 
an a£tion of this kind the defendant, if he has 
any juftification, muft plead it; and there is 
nothing more clear, than that if the Court has 
not a general jurifdiSlion of the fubjeft-matter, 
he muft plead to the jurifdiShny and cannot 
take advantage of it upon the general ijue. 
Therefore by the law of Englandy if an ailion 
be brought againft a judge of record for an aft 
done by him in his judicial capacity, he may 
plead that he did it as judge of record, and that 
wiU bq a complete juftification. So in this 


[ 3^- ] 

cafe, if the Injury complained of bad 'been 
fdone by the defendant as a Judge, though it 
arofe in a foreign country where the technical 
diftindion of a Court of Record does not cxift:> 
yet fitting as a Judge in a court of juftice, fub— 
jeft to a fuperior review, he would be within 
the reafon of the rule, which the law of Eng-^ 
land, fays fhall be a juftification ; but then it 
muft be pleaded. Here no fuch mattfer is 
pleaded, nor is it even in evidence that he fat 
as Judge of a court of juftice. ^ Therefore I lay 
out of the cafe every thing relative to the Ar-^ 
ravel of Sl Phi/lip's. 

Thtfirjl point then upon this* ground is, the 
ikcrcdnefs of the defendant's perfon as Gover- 
nor. If it were true that the law makes him 
that facred charafter, he muft plead it, and fet 
forth his commiffion as fpecial matter of juft:i- 
fication ; becaufe primd facie the Court has jvi- 
rifdiftion. But I will not reft the anfwer upon 
that only. It has been infifted, by way of dif- 
tinftion, that fuppofing an aftion will lie far 
an injury of this kind committed by one indi- 
vidual agaihft another, in a country beyond 
the feas, but within the dominion of the crown 
of Englandy yet it fhall not emphatically lie 
^againft the governor. In anfwer to which I fay, 
that for many reafons, if it did not lie againft 
any other man, it (hall moji emphatically lie 
againft the governor. 

In every plea to the jurifdiftion, you muft 
ftate another jurifdidion ; therefore if an aftion 
Js brought here for a matter arifing in fFales, 
to bar the remedy fought in this Court, you 
muft ftiew the jurifdiftion of the court of 
Wales i and in every cafe to repel the jurifdic- 
tion of the king's court, you muift ftiew a more 
proper and more fufficient jurifdiftion : for if 


'trore isnb other Woi&'of trial, thirilbne witl 
gfre the king's coxiVts*a jurifdiftioti, ' Ncjw ih 

"tnls^ cafe no' other jwifdiftida ii fixewn/ ,eveh 
lo'iiitithasih arg'iifneiitr And ffilie^ king's 
cbum 6lf juftice.canADt hold plea hi fbch'caf^, 
Tio othci court canf • do It. For' J? is, trufjr fiid 
that a governor is lA the n^t\)rj^ of i vlceJ-OjT; 
apd therefore locally j dufitfg Bij( go^ffMntrrl, nb 

^tiVilf br criminal ac^'oii will lie iik^i^ft him : 
the'feafon is, becaiTfei/upon pfbiieft^He wotrld 
be fubje(^ tO'lmpriibnment. 'Birt.ncrey. the in- 
jury fs faid to have hiij^jp^ned 'inWiti i^rrAdaf'df 
Si. Pifillip% where; without hii ieaVe" kor-ju- 
riiai^ion can exift:.\ If 'that;bf fq, thtfre'cati 
be no remedy whatf6evei*> if it is!nbt iri:thb 
king's courts: BecauicP \dieh he is 'out of the 
goverAitteht, and h returned. withJi?^ properfjr 
intt> this country, there are not evrin his e!tfe£ts 

-Jdft In the ifland to be. attached.;';* -''-- '- - 
Another very ftroqg r&afbn. Which Was al- 

;luded to by Mr. Serjekrlt G^;/^, would' ^lorie 

'be decifivei' and it is this : That tijough the 
cha)ijge brought againft. him is for a 'ii^il injury, 

•yet iti's fifceWife of a crimwal nafurerhcckuk 
It is* in 1?^^^ of the authority- delegated to hirh 
by the iing^s Uttdrs pitenf, under the . gfeit 
ieaL " Now if every tiling comrnitted within 
a dominion; is t/lable by the courts within tha:t 
dominion, ftt the effcd^of extent ofthtkl^^s 
letters patent j whJch , gave Idie aUtftority, cah 

'crfly be tried, in "the kiiig^s Coiirts j for nb 
queftion concernirig the feigrtory, can' be tried 

; within thp feigrtory itfelf: Therefore,^ Wliefe ji 
queftion refpc6ting the feigriory'ariies in thp 
proprietary government's, or betWeeli two prof- 
vinces o{ JMMca^ or in the ipbf Man^ iris 

' cognizable by the king's * coiirrs in UngldfCd 
only. In the tafeiaif the' Jj?^ ^ MdH * it was fb « 4 inii. ^%^ 
Vol. III. D decided 

C 14 3 

<3ccLded.m the time of Queen Elizahetbyhy tte 
chief juftice and many of the judges. , Sq that 
emphatically xht governor muft be tried in ^ng- 

landy to fee whether he has exercifed the au- 


thority delegated to him by the letters patent, 
legally and properly j or whether he has abufcd 
'it, in vjolatipn of the lawsi of England^ and the 
truft lb repofed in him. 

It doe$ not fpllpw from hence, that let the 
vCaijife' of: a^ion arife where it; may, a man is 
not. entitled to makeufe.of every juftificatioii 
his cafe will admit of, which ought to be a 
defence to him. If he has ai^ed right accord- 
ing to die authority with which he iiS inveffed, 
Jie muft lay it before theGourt by way of plea, 
and the Court will eiercHe their ludgment 
.whether it is a fufficient juftification or not. In 
this cafe, if the juftification had been proved, 
the Court might have confidered it as a fuf- 
ficient anlweri and,, if tliip. nature of the cafe 
would Tiave allowed of it, might have" ad- 
judgedj that the railing a mutiny was a good 
ground for fuch a fummary proceeding. I 
can conceive cafes in time of war in which a 
governor would be juftifie^, though he:a6tcd 
.very arbitrarily, in which he could not be 
juftified in time of peace^. .Suppofe, during 
a fiege, or upon an mv^K>ii oi Minorca, the 
governor fhoyld jucj^ proper, to fend an 
hundred of the inhabitants opt of the ifland, 
from motives of m/ and general expediency -, or 
fuppofe, upon a general fufpicion he fliould 
'.take people up as fpies ; upon, proper circum- 
ftances kid before the Court, it would be very 
^fit to f^e whether he had adled as the governor 
lof a garrifon ought, according to the circum- 
'fiances of the cafe. But it is objefted^ fup- 
poflng.thedcfendant^tohave.a6tcd as the Spa- 

4 /f^P 


ntjb governor was empowered to do before, 
how is it to be known here that by the laWs 
and conftitution of Spain he was authorifed lb 
to a6l. The way of knowing foreign fews iJ, • Foreign uws 
by admitting them to be proved as faff Sy and ^''f^as!^'^''^'' 
the Court muft aflift the Jury in afcertaihihg 
what the law is. For inftance, if there is a ' 

French fettlement, the conftruftion of which 
depends upon the cuftom o£ Paris j witnefles 
muft be received to explain what the cuftom 
is ; as evidence is received of cuftonris in re- 
fpe6t of trade. There is a cafe of the kind I 
have juft ft^ted*. So in the fupreme refort be- Feaubert v. 
fore the king in council, the privy council de- cha^; ^^'^' 
teffnines all cafes that arife in the plantations, 
in Gibraktir or Minorca, in Jerjey or Gnernjey \ 
and they inform themfc}ycs, by having the law 
ftated to them.— As to fuggeftions with regard 
to'^the difikulty of bringing witnefles, the 
Court muft take care that the defendant is not 
furprifed, and that he has a fair opportunity of 
bringing' his evidence, if it is a cafe proper in 
other refpefts for the jurifdiftion of the Court. 
There may be feme cafes arifing abroad, which 
rniy not be fit to be tried here ; but that can- 
not b^ the cafe of a governor, injuring a man 
contrary to the duty of his office, and in vio- 
lation of the truft repofed in him by the king's 

If he wants the teftimony of witnefles whom 
he cihnot compel. to attend, the Court may do 
what this Court -did in the cafe of a criminal 
.profecution of a woman who had received a 
'perifion as an officer's widow : and it was 
charged in the indiftmcnt, that flic never was 
fiiaified to him; She alleged a marriage in 
S^otldnd, but that flie could not compel her 
witnefles to come up, to give evidence. The 

Da Court 

[ 36 1 

Court obliged the profecutor to confent that 
the witneffes might be examined before any of 
. the judges of the Court of SclTion, or any of 
the barons of the Court of Exchequer in Scot- 
land, and that the depofitions fo taken fliould 
be read at the trial. And they declared, that 
they would have put off the crial of the indi£t- 
ment from time to tinaej for ever, unlefs the 
profecutor had fo confented. . The witneffes 
were fo examined before the Lord Prefident of 
the Court of Seflion. 

It is a nnatter of courfe in aid of a trial at 
law, to apply to a court of equity, for a com- 
miflion and injunftion in the mean time ; and 
where a real ground is laid, the Court will take 
carethatjufticeisdonetothe defendant, as well 
as to the plaintiff. Therefore in every light 
in which I fee the fubje6t, I am of opinion that 
the afbion holds emphatically againft the^e^'fr- 
nor, if it did not hold in the cafe of any other 
perfon. If foj he is accountable in this Court, 
or be is accountable no where j for the king in 
council has no jurifdi£tion. Complaints made 
, to the king in council tend to remove the , go- 
vernor, or to take from him any commiffion, 
which he holds during die pleafure of the 
Crown. But if he is in Exgiand, and holds 
nothing at the pleafure of the Crown, they 
have no jurifdiftion to make reparation, by 
giving damages, or to puniih him in any fhape, 
.for the injury committed. Therefore to lay 
down in an EngUJh court of jullice fuch a mon- 
ftrous propolition, as that a governor afting 
by virtue of letters patent under the great leal> 
is .iccountablc only to God, and his own con- 
fcience ; that he is abfolutely defpotic, and can 
rpoil, plunder, and affedl: his Majefty's fubjeifts, 
both in their liberty and property, with im- 

1 37. r 

puniiy. Is a ddftrine that cannot be main- 

In Lord Bellamonf^ cafe> o. Salh 625, cited vidcPoft xi. 
by Mr. PeckhatH^ a motion was made for a 
trial at bar^ and granted, bec&Dfe the Attorney 
General was to defend it dn » the part of the 
king; which ftiews plainly that fuch an ac- 
tion exifted* And in tVay verfus Tally y 6 Mod. 
195. Juftice Powell fays, that an aftion of falfe 
imprifonmcnt has been brought here, againft a 
governor of Jamaicay for an imprifonment 
there, and the laws of the country were given 
in evidence. The Governor of Jamaica in 
that cafe never thought that he was not amen- 
able. He defended himfelf, and poflibly 
IhewiKl, by the laws of the country, an aft of 
the affcmbly which juftified that imprifonment, 
and the Court received it as they ought to do. ' 
For whatever is a juftification in the place 
where the thing is done, ought to be a juftifi- 
cation' where the cafe is tried. — I remember, 
early in my time, being counfel in an aftion 
brought by a carpenter in the train of artillery, 
againft Governor SabinCy who was governor 
of GibraltaTy and who had barely confirmed 
the fentence of a court-martial, by which the 
plaintiff had been tried, and fentenced to be 
whipped. The Governor was very ably de- 
fended, but nobody ever thought that the ac- 
tion would not lie 5 and it being proved at the 
trial, that the tradcfmen who followed the train, 
were not liable to martial law 5 the Court were 
of that opinion, and the Jury accordingly found- 
the defendant guilty of the trefpafs, as having 
had a (hare in the fentence; and gave £. 500 

The next objeftioq which has been made, 
is a general objeftion, with regard to the mat- 

P3 ter 

t 38- I 

ter arUing abroad ; o^9ie}y, that as (ihe caufe 

of aftion arofe abroad, it cannot be tried here 

in England. 

Where an ac- XhcFC IS a farfti^ ^od fukftanHoi diftinftion 

h"in tife p'ro- ^ ^^ ^^ ^^% ^ trials. I ftfttc thcm 35 dif^ 

per county. fcrcnt xkAti^s i -xi^ fuhfioHttd diftinftion . is3 

where the proceeding is in r^m, aod, .'Where the 
effeft of the judgment cannot be had^ if it isr 
laid iaa wrong pkcfe- That is the cafe .of all: 
ejeftments, wher6^ pc^flion is to be dcUvcmd 
by the Sheriff oi the county \yaxvA. as triris in 
England are in pjyrticujar couwtie?, 'tbeofpccrs 
ar^ county officers j therefore the ^judgnnent 
could not have effe^h if the ra^ioo- was not 
laid in the 'propet; county. ' . 

Wkh f egM:d to- niatters that arife out of thn 
roalm, there is a f^hftantiai diftinfition . of la-^ 
cality too i for there are ,fome; cafes that, arife 
qut.of the. realm,, which^ ought notto jbe tried 
any wliere feutin the jcountry where they arifci 
as; in ti^e c^fe alluded to by Serjeant fFaiktr : 
if two perfons fight in France^ and both. ha|>r 
pening cafyajly to*^be here, one (hould bring 
afi^iftion of afiaidt againft the other, it might 
fete a doubt whether fuch an aftion could be 
rnaincained here 5 bj^caufe, though it is not a 
criminal profecution, it muft bei laid to be 
againft the peace of the King 5 but the breach 
of the peace is merely local, though the treP 
pafs againft the perfon is tranfitory.p There- 
fore without giving any opinion, it might per- 
haps be triable .only where both parties at the 
time were fufcj^s. So if a« aftion were 
brought rektive to an eftate in a foreign coun- 
^y> ^here th$. queftion was a matter of title 
otily, and not of damages, there might be. a 
folid diftinftion ofi iocalit^\ 
• Rut 

t 5j» 1 

But there is likewtfi^ a formal diftinftion» 

ti^Mch artfes from the niode of trial : fbr triaU 

in England being by jury, and the kingdom 

bei^g .divided iftto bounties, and ^ach count^ 

confidered as a feparate diftriA or principality, 

it is abfoiutely rieeeffary that thcfre fliould be 

feme cdvinty where the aAion is brought irf 

particular, that there may be a procefs to the 

mcriff of tha( GOiinty, to bring a jury jfrona 

thence to* try it. -Thw miatter of fcMin goes to 

att c^ies that arife abroad : but the law niakes' 

a di(lin6ti6n between t¥anfitorj a<5tions and &- 

tol a&ions. If the matter which is the caufe 

df>a tn&i(itory a£lidn arJfes within £hc realm, it 

may be laid in kny county, the place is n6c 

materhlls and if an inipr^onment in A^^ 

Jti^Xt may be laidin <f«rr7, and tHt(pgh puovcd 

t^'bc done in MidMeftXy the place not being 

mattlria), it does nob at all prevent thi plMfa- 

taff recovering damages: the place of tranfi* 

tory 'anions is neVer miaterial, except where by 

particular a^s of parliament it is made if^ ; as 

in the cafe of church wardensr and conftables,' 

and other cafes which require the action to be 

brought in the county. The parries,- upon fuf- 

ficient ground, haVe an opportunity of applying 

to the Court in time to chaiige the venue; but if 

they go to trial without it, that is no objeftion/ 

So all aftions of a tranfitory nature <that arife 

abroad may belaid as happening in zxiEngliftf 

county. But th^reare occafions which makp 

it abiblutely neceflary to ftatc in the declara- 

ti<»), that the caufe of aftion really happened 

abroad; as io the cafe of fpecialtics, where 

the date muft be fet forth. If the declaration 

ftates a fpecialty to have been made at IFefi* 

minfter irH Middle/ex^ and 'upon producing the 

deed, it bears date at Bengal^ the aftion' ia 

D 4 gone 

• • '> 4i.' 

t95«:it.bfifa«fe M\X^ ^hc^.varitme between 

g^r rte : i^e § ,^r^: infteumcnU TJhcre is 
As^.^oflMPOoin rtfeifeQllP-'«po» the ^aiutA 
6 Ri^df. JL: But I put. the ^^hic&xon^ 
ijgOB. 1^ iiatvijgc. . I f«ft : i|-XingiyiU|Pi«i. tbut 

gEOVMad *^j}^f t^e «^ue 4a^ lor /dofcnptioikof tliub 
Ql^ist |M^ ftatei it 4$: a .v^^antie. ■ vfidt tfctfttf 
\^:h^Ap :^^^: ^^^. inv/eQte^ a fiAioiis'^aaiit 
^ fftidVdi? party AiaUrfirft fct out^ihc. di>a»; 
if ripiion trui)^ and tli^h.giye.a.'z^effi^r otflir'/w 
f9;;rD;|and fof:,(he fake of ftri^i Jby^vti/Vfr//ds/s: 
iij tile .goip^y of A6V<%i^, Or • any- .QlJicr; 
if^y. Bu| BO judge f yer tiiought f h^ when/ 
^^4^iarjuion.ftidJn'!ft G«v^i tiiz^-w'* 

?//^^ tljftt rthe pjainfiff iiMewrt. it waa- i* 

law m!r never 6^^^ ^ ;^?. ^^ .aj?^^V» ofr/flm ^ wcfy coui;^ 
he contradifted, t^-%% jp.^^jxisj ^wh^di are ffiv^sttedlbr.'thp. 
enffot which %i^^%nfi^»Cj^jfti?ei stnditi&.ajcprtaiflruici* 
they were in- tjj^t i^^lp^^g ofjaw ih?U»?v€r;t 61:00^ 

^v^^ShSur'. ^^^P <ifif?StrAe ^ad for ,wiiich, ii: waiifirt 

pofe they may yisiitc^j-tivt foT cvtfy Other p^rpftfe^it m4y":be- 

>ecom,adidtea, c^^a4^^^,:;5^^p^y. th? fi^tipii, invcttted ifti 

ti>ff^ caifesj U bajciy for .t{ie fftodft of triabiW* 
^very^qther j)jjftBof€, therrf^re, kihaijl b^wiH, 
trafiijfled,^ut,i^qt for the purpofeiof^ 
qaufe {^l not be fried. S<^rV>Jthe.cafc ^^ 

^^}9P&^&^?4:i ^.^^ finally determined ionwr- 
jcaxs fgc^ Uj3or\. a §(5i;ion pf :th^ t^fi^ of wfiti' 
t^keaj^uti a the; vacation, whicl^jlbcar <iate .ata< 
of the j^^ft d%y of the, tej:rn,.it;wfts heldi that 
the fidtiQa ftia^l not- b© cqmr^i^od. fo ^a tot. 
iljvalid^te tlic-Wfit, by ayerrii^g rh^t it iflfiaed- 
>» Burr. 967. QB a da^ ijn the vacatian : befiayfe tfee fi&ipn 
iptas . iny 5g|ed for the furtl^cra^ce of jufticc, 
4Ad to-niake the writ a{>pear right, in form- 
But where the frfie time of fuing oyt a latitat:. 


t ^1 

Jrximac^ ihsmii may! i^^Jb^^n^^t theJatiM 
wm fucd 0ut:^ar thd CmvfesLTs, notwffihftatiuliiig^. 
the ^ti^i I am icMf i^ bfa^ve, tl^t fom& 
%aiigii:4iaw beetle aikided to, inaccuraceljr* 
i;^eii.'dowii^i afid itt^r0peply f^rinted^ ^vriiere 
tittiCocnrthas beeti niader to fay; that ai men' 
diey^ve.i>fi^>way of thinking, and asjtidge^ 
tbcfrtii^ve tmodKi^ which is ah absurdity;' 
\dierea9,tiQitfa6t^ they: only meant to fu^pdrt; 
tJiBciiftion^ I will ratntion a cafe or two^ to 
{bcvrjAoLt tfaM is tile meaning of it. 
^ in 6).'Afdi^» '4ia8« 'tiifyjcafc of Reherts verjh 
Homage \% thus ftatvd-: the plaintiff deckred' 
tfaat^he. defendant became bound to him at^ 
Eort^t. D^d^ in the Eaft Iridies kc London^' 
i&iusb' a'bdnd ; upon demurrer ^he objedion^ 
wasy . thit the bond appeared to haine beeft^ 
fealcd^and delivered at Fort St. David's, m the ' 
EafiM^f '0nd therefore the ckte madb it' 
locals ^andi by confequmice, ' the dedaratioh - 
Qu^tico have been of a bond made at Fcrt Sti 
Bm/iUs, ia th< EuJUndies^ viz-, at ^ftingtm^ 
ipi the comity oi Midd^rx i or in fuch a ward 
c^p9xaQ:^^'xti London, and of t^at opinion was 
theiwhoIeCoiirt. , This is an inaccurate ftate 
o^the^ cafe; i But in a Lord Raym, ib4'2, it is" 
iponQ truly reported^ and ftated as foUows : It- 
a^pearidiby tht declaradon^ that the bond was 
Tifidde^u London, in the ward of O&^^ar^ r upon ' 
oyer, the^bond was fct out, and it appeared 
upon ihe face of it to be dated at Fort- 'St. 
George in the fiia/ Indies -, the defendant' 
pleaded the^ variance in abatement, and the 
plaintiiF demurred, and it was held bad : but 
the Court (aid that it would have been good; if 
laid.^ Fort ,St. George, in the Eafi Indies^ to 
wit, lit London, in the ward of CAeap. The 
pjjjcftion .there was, that, they had laid it, 


iUftiy*^ for thbjr had laid die bond as made «t 
Imd^ni whereas^ when the bond <wfts pro^ 
^MxAy"" i£. appeared to be made at 'ai|6cher 
pjace^ wiiijsh was a. variance. A^.cai^ was. 
qt)oflcd iirom Latchj and ft cafe from huPwjch^^ 
oa :^Q former ^umeht rbot I wflb mention* 
a eaifepofterior in pdiiic df time, where both 
thpief; cafes were .cited> and na regard 'at: alt 
pitdto themt and Itharis the cafe:of ::?^itfr 
^s^^Cxfiok^ 10 ikfeii 2f5v It vtras a;» kdiori' 
of covenant upon a deot indented ^'itiwa^ob^ 
jc& the declaration, that the defimdandis 
fiid:in die declamtion toxovenant at i^if^^ 
GeergCL, m the JEafi IndUs $1 and upoa the-o^er 
<\f ;Che deed it bore date at Fort Sl Gcqt^ and 
thcsefbret tbeCotirt^.as was pretended; hiuL^no^ 
jviHididion; Laich. foh 4. ^LtUfwyche^^Oi 
luOcdiChief Ju&ice Parker iaid> that knai^n 
will lie ran England upon, a deed d^^ in £(>^ 
reign parts i or'clfe the party cspjh^cndre-J 
medy ; but then iik the d[eclaration a' pbte ifi* 
En^hnd mu^ht 2\\tA%i^ pro fo^ma^ ^Gene-* 
rally ipeaking,.the deed, .upon) theoyrr of'itr, 
muft be confiftent with the declaration ^^Isttt in 
tbefc cafes> frsptiw ntcxffiutemy if th^'aneon- 
fiftency be as little as poifihle^ k i& hoD to be 
regarded ; and here the contradk being of 
a. voyage which \vas.;to he perfiornhed •froR^ 
Ewt St. George to Great Britain^ doei import, 
that /'w/ 8t. George As^ different from Grea0 
Britain ; and after taking time to.confider of 
it in Hilary term, the plaintiff" had his judg- 
ment, notwithftanding the objedtion. There- 
fore the whole amounts to this j that where 
the adtion is fubftantially fuch a one as the 
Court can hold plea of, as the mode of trial is 
^y j^^y* and as the jury mull he called to- 
gether by procefs dircfted to the Ihcriff^ of the 

county i 

r 43 ] 

Goun^; matter of: form is added to. the fic« 
tiQB> td fay it is in that county, . and then 
the vvlKxle of dse enquiry is, Whether it is an 
a^iioa that ought to be maintained. But can 
it be doubted, that a&ions niaybe maintained 
heve> not only upon contradts, which fellow 
the peribn, but for injuries done by 
fubje£t; especially for injuries wb^e the whole 
that is prayed is a reparation in damagesj or 
fatis£u5tion to be^ made by procefs againft the 
perfon or his effedts, within the jurifHi6tion of 
the. Court ? We know it is within every day's 
experience. I was embarraiSed a great while 
to find out whether the counfcL for. the. plain* > 
tiff really meant to make a qucftionof it. In 
fea batteries the plaintiff often lays the injury 
to ihove been doner in JM&ddlefeXy and then 
proves it to be done a thoufand leagues diftant 
on die otther iideof the Atlantic. Tiiere are' 
cafes of offelices on tite high feas, where it is 
iA neceflity to ilay in-the declaration, that it 
waad;)ne upon the high feas ^ as the taking a 
Ihipv^ There is a cafe of that fort occurs to 
my Lmeniory ^ : the reafon I remember it is, 
becsufe there was a queftion about the jurif- 
dtdion. There likewife was an a6tion of 
that kind before Lord Chief Juftice Lee^ and 
ariotber before me, in which I quotltd that de-^ 
termination, to. fhew, that when the Lx>rds 
Gommiffioners of prizes have given judgment^ 
that is conclufive in the aftion ; and likewife 
when they have given judgment, it is conclu- 
five as to the cofts, whether they have given* 
cofts or not. It is neceffary in fuch actions 
to fl:ate in the declaration, that the fhip was 
taken, or feifed on the high JeaSy videlicet, in 
Cheapjide. But it cannot be ferioufly con- 
teiicjed that the judge and jury who try the 


r 44 r 

caufe, fancy; the fhip is failing in CheapJideT 
no^ the • plain < ft?nfe of it is, that as ai> adtion 
]}es ib England lor the fhip wliich was cakeii 
oo.the high leas, Cheapfide n named ais a ve- 
nue; which i is faying no mope, than that the 
party prays the aiftion may be tried in Londmt. 
But if a pany were at liberty to offer reafons 
of faft contrary to the truth of the cafe, there 
would be no end* of the embarraffment. At 
the Jafl Sitrings.there were two aftions brought 
by jirmenian merchants, fpr alTauks and- tref- 
pafies' w the jE»^ Indies ^ and they, are very 
Ikong authorities. Serjeant 6/^w.faid, that 
the <Jefetidant, : Mr. Vereijiy was very ably 
afliiled: fohe was, and by men who would 
have taken the objcftion, if they had thou^t 
it maintainable^ and the aftions came on to be 
tried after • this cafe had - been? > argued once $ 
yet the counfel did not think itbould be fbp- 
ported; Mr^ VereJfi would have been gkd to 
, make the obj^dtion ; he would not have left it 
to a jury, if he cOuld have ftopped them Ihorr^ 
and faid. You fhall not try the a£fciDns at alk I 
have had fbmc actions before m^, rather go- 
ing further than thefe tranfitory aftions ; that. 
)s> going to cafes which in England would be 
local a<5t}ons : I remember one, I think it was 
an a6lion brought againft Captain GamHer^ 
>)?ho by order of Admiral Be/cawm, had pulled 
down the houfes of fome futlers who fuppiicd 
the navy and failors with fpirituous liquors; 
axKl whether the a6t was right or wrong, it was 
certainly done with a good intention on the 
part of the ' admiral, for the health of the 
faiiors was affeftcd by frequenting them. They 
wei:e pulled down ; the captain was inattentive 
enough to bring the futler over in his own 
fhip, who would never have got to England 

otherwifc j 

I 45 3 

odierwifej arid as fooh as he came here he 
was advifed that be fhould bring an adion 
againft the Captain. He brought his a6bion, 
and one of the ^ counts in the declaration Mnas 
for pulling down the houfcs. The obje&ion 
was taken to the count for pulling down the 
hpuics j and the cafe of Skinner and the Eafi 
India Conipany. was cited in fupport of the 
objeftion* On the Qtlier fide, they produced 
frpiD 2k Qfianufcript not« a cafe before Lord 
Chief Juftice ^r^, where he over-rukd the 
obja5tbn; and I over-ruled the Qbje<9dQn 
upon [this principk, namely, that the repa- 
ration here wfts perfonal, and for damages, and 
that ptherwife there would be . a failure of 
jiuftice^ for it ^|is upon the coaft of Nova^ 
Scotia, wliere th^rc . were no, regular courts of 
judicature: i?ut if there had been, Captajn 
Giufibier mighfi never go there again ; and 
therefore tjae^ rea^n of locality in fuch. an 
a£t:ioa \n EngU^nd did not hold. I quoted a 
cai^^pf ^n injury of that fort in t\\tEafi Indiesi 
whqf e, §v€» in a courtof equity. Lord Hardwi^h 
had dii^e^ed . fatisfadtion to be made in da- 
mages : that cafe before Lord Hardwicke was 
not qiuch contefted, but this cafe before me 
wasi fully. and feriotifly argued, and a thoufand 
pounds damages given againft Captain Gam- 
bier,- . 1 do not quote this for the authority of 
my jftp^oion, becaufe that opinion is very likely 
to be. erroaieous, but I quote it for this rcafon; 
a thoufand t pounds damages, and the cofts, 
were a conGderable fum. As the captain. had 
aftedby the oi-ders of Admiral Bojcawen, the. 
reprefentatives of the admiral defended the 
cauie, ^pd paid the damages and cofts reco« 
veix:d...The cafe was favourable i . for what the 


t 46 ] 

admiral cKd was certainly well intended $ and 
yet there was no motion for a new trial. 

I recolie£t another caufe that came on be- 
fore me ; . which was the cafe of Admiral Pal- 
lifer. There the very gift of the aftion was 
local : it was for deftroying iifhing huts upon 
the Labrador coafi. After the treaty of P^w, 
the Canadians early in the feafon erefted huts 
for filhingj and by tb^t noeans got an ad- 
vantage (by beginning earlier) of the filher- 
men who came from England^ It was a nice 
queftion upon the righc 6f the Canadians. 
However, the admiral, from generail prin- 
ciples of policy, ordered thefe huts to be de- 
ftroyed. The caufe went on a great way. 
The defendant would have ftbpped it Ihort at 
once, if he could have made fuch an objec- 
tion, but it was not n^ade. ♦ There are no lo- 
cal courts among the Efqumaux Indians upon 
that part of the Labrador €oafi ; and therefore 
whatever injury had been done there by any 
of the king's officers, Would have been altoge- 
ther without redrcfs, if the objcftion of loca- 
lity would have held. The confcquencc of 
that circumftance fheWs, that where the reafon 
fails, even in aftions which in England would 
be local aftions, yet it does not hold as to 
places beyond the feas, within the king's do- 
minions. Admiral Palli/er's cafe went off 
upon a propofal of a reference, and ended by 
an award. But as to tranfirory aftions, there is 
not a colour of doubt but that every aflion 
that is tranfitory may be laid in any county in 
Englandy though the matter arifes beyond the 
feas ; and when it is abfolutely necefTary to lay 
the truth of the cafe in the declaration, there 
is a fidtion of law to alfift you, and you (hall 


C 47 1 

not make ufe of the truth of the cafe againft 
that fidiion^ but you may make ufe of it to 
every other purpofe. I am clearly of opinion 
not oi^yagainU the obje&ioDs m^> but that 
there do^ not appear ^z queftron upon whicli 
the objedions could arife* 
The thr^e other Judges concurred. 

Per Cur\ Judgment affirmed* 

1 bad fame thoughts of Jhortening the Plead- 
ings in this cqfty but after conjidering how much 
they contribute to the underftanding of the argu-^ 
fnet^Sy I thought it advijeabk to let them ftand^ 
as r^oried by Mr. Cooper. 

•I t 


I 48 3 

« • • 


(3*) Of imperfiB J^er6ii£ff/- 

M. 26. Car. 2. A7Q 5^y^ — Twijden J. fald that |t had* feccn 

^'L'cHa uot adjudged, where Jfi an aftion-for words 

locJuscftTe^r- thc defendant pleaded not guilty, and the 

ba, in an aftion Ty^y found QUod locutus eft vtrhu — that this 

lor wortls is ■^ ' 

irapcrfc<5t vcrdift was impcrfeft, and the plaintiff could 

not have judgment. 

Vide poft Rex v. fFoodfalL 

Matthews v. In an aftk>n upon the cafe, the plaintiff d^- 
crn^'.'^B.R'/^ clared upon the cuftom of the realm, and that 
isid.244. the defendant on the loth oi May was a com- 

Adtion upon . -ii i*«/r»iyf r m ^ 

thc cafe againft Hiott Carrier, and the plaintirr the 6th of May 
^^^^^^^^^ was poffcffed of ;^. 50. and that afterwards, on 
famedcciara- the famc day and year laft- mentioned, he de- 
^'°Dv""^ b!"^' livered it to the defendant to carry, and he 
I Vent. 365. neglefted fo to do, 6?r. And he alfo declared 
I Keb.870. jjj trover for the fame fum, and the defendant 

pleaded not guilty, and verdift for thc plain- 
tiff generally, and it was moved i|i arrcft of 
Ttfeemsthat ift, Becaufc he had not well recited and 
Ser^^ilroit fl^ewn the cuftom of the realm, and had not 
to be recited in allcdgcd that he was a carrier at thc time of 
againii^a car- ^^^ delivery, but fome days after : 
her. Qu.? And alfo that trover and an aftion upon 

442. ^^' **^ tlxc; cafe may not be joined, becaufc the one is 

- • 6 founded 

i 49 ] 

{bonded upon a t&rf, aad the othei- tipqn 

But oil the othep part it was anfwered) that 
^..j^t^9M^ i^ good ^Q^ugh ; for as to 
joining of trover and cafe, one plea goes to the 
whole, fciL Nui. guiity^ And as to the mif- 
recital of the cuflom of the realm, it is pare of 
the common law, and therefore the declaration 
is good enough without recital, and a bad re-* 
cital does not vitiate in fuch cafe. 

And there is a diverfity between the recital Diverfity bc- 
of the common law, and of a ftatute; for if a monTawand™^ 
geneml ftatute is mif-recited, this makes the ^tute as to re- 
declaration bad, b^caufe the law is formed in TSo. 96°^6g?* 
words in which, there is not any variance, but 2Cro.224. 
if the aftion is founded upon the common 4 co. 1 3?'a. 
law, and the cuftom is mif-recited, yet the de- ^^ ^o- 57. 
claration is good, becaufe this is not written- 
law, and formed in words, but the fubitance of 
it well known. 

But p£r Curiam the declaration and yerdid): Kot guilty 
are bad, for. although not guilty may go to ""y be a good 

, , ' • , ,. -,® , * -^ % r % Jff»e where the 

both, yet the verdidt ought not to be for the verdia may not 
plaintiff generally, and although the declara* ^®^*^®'^' 
tion may be good without recital of the cuf- vide the cafe oe 
torn of the realm, as Hob. fays, yet the better ^^^^^^^^^1 
way is to recite it. Vide Sid. 181, 233, 244. car. z.b.r. 

InAmi verjus Goodfon, M. 13. G. 3. C. S. 
3 fTilf. 348. Plaintiff declared for a tortious ob^ 
ftrudlion of an ea/ement (which he held under 
an agreement from the defendant) $ and added 
a count in trwer. vThe Court was of opinion 
the Utter count might well be joined with the 
^rmer, that being founded upon tort. 

ToL.III. E This 

C ^ I 

Rex. V. Wood- This cauTe firft came \k($rc' thje Cdwt <m 

5Bur.'2i'6i. Mr, Lee thtn moved, on behalf' of the dc- 

No^Sr'^ fendant, to Jfay the entering up judgment againfi 
1770. himy upon the verdift found in this caufe. 

fo/a uS— °" A erofs-niotion was made at the feme time, 
vcrdia,dcfond* by the counfel for the Crown, for Ae dc- 
^LuS^g^a^d ** fendant to fhcw catufe why the verdift fitoukl 
pubiittiing, not be entered according to the legal mpart 
^' of the fnding o( the Jmj. 

It was an informaticm againft the defend- 
ant, by the Attorney-General, for printkig, 
and publifhing in the Public Advertifer, a 
fcditious libel figned Junius. 

Upon the trial, the Jury found him guilty 
of the printing and puUiJimgy only. 

The Court granted rules to ftiew catife, 
upon each of thcfe two adverie motions j and 
ordered them both to be brought on upon the 
fame day. 

Accordingly, on Tuefday ;^ July 1770, 
xraufe was reciprocally fhewn on each. 

Seijeant Glynn and Mr. Lee argued for the 
defendant : Mr. Thurlow, (Solicitor General) 
Mr. Morton^ Mr. Wallace^ Mr. Dunning^ iind 
Mr. fValkery for the Crown. 

On the part of the defendant, it was in- 
fifted that the verdift, as foundy did not 
amount to find Mr. fFoodfall guilty of the 
charge in the information j but rather to 
acquit him of it. For, he is charged with 
printing and publifhing this as a libel, with a 
maliiious and criminat intention : But the Jury 
find him guilty of printing and publifhing, 
cnly. Whatever the Jury do hot find implies 
a. negative : but this goes further; it fays ex- 
prefsly, that they find this and this only. 

A criminal 


[ 5« 3 

A criminal motive goes to the conftruftion 
pf the offence : a criminal intention is its ef* 
fence. • And this the Jury have negatived. 

They arc * judges of law and faSt^ as far as 
law is involved in faft. They may take this 
upon them : and here they have done fo. 
They meant to acquit him of all criminal in- 
tention : and one of the jurymen has made an 
affidavit, ** That he meant to acquit him of 
** all criminal conftruftion : and if he had 
^ thought that that could not have been thus 
" done, he would have acquitted him.'* 
Therefore this cannot be confidered as a ver- 
dift of conviAion by twelve jurymen. A ver- 
dift ought to be found clearly, fully, and dif- 
tinftly: it cannot be fupplied by inference; 
neither can it be amended by any notes of the 
afibciate, in a criminal cafe, i Salk. 53, Bjsx 
v. Bold. I Salk. 47, Rex v. Keate. 

They alfo cited Cro. Jac. 210, Cooke v. 
Laneday j and Telverton 1 06 ^ and Drury v. 
Dennis i 2 Rollers Abridgment y 693. Title, 
** Verdi6t," Letter, S. fL 5. between Baugb and 
Pbilipsy referred to by 'Ld. Ch. J. Vau^an^ in 
the cafe of Rowe v. Huntingiony Vaughan, 7 5, 
76. Who there fays, ** That finding the point 
*' in iflue, by w/^ of argument^ in a general 
*' verdift, is never permitted ; not though 
** the argument be neceflary and conclufive.'* 
There can be no fupply by intendment, in 
any cafe ; much lefs in the prefent, where it 
is impoflible to fupply the verdidt by intend- 
ment, becaLufc nobody can know what the 
Jury did intend, or by what rule, or upon 
what principle they decided j unlefs affidavits 
from the Jurymen were allowed to be read. 
Another authority that they cited, was the 
cafe pf Shelly v. Alfofy in Telverton^ 77, 78, 

E 2 whicl^ 

[ 5^ 3 

which was a finding of the affumpCt by fo- 
reign implication ; " which is not good,'* as. 
it is there faid, " i^pon any general iffue :*' and 
it is there lajd down, " th^t the Jury ought to 
*5.give their, verdid precifely according to 
^ their charge/' 

They infifteci, that the verdift ought to re- 
main in the words of the Jury ; without ex- 
punging any of their words, or fubftituting 
others in their places, or controlling them un- 
der any pretence of legal conftruftion. They 
ought to be left as they ftand ; that the de- 
fendant m^y have the benefit of a writ of error 
to the Houfe of Lords ; if the opinion of this 
(^lourt flxould be againft him* 
" They . hoped, however, that the prefent 
finding would be efteemed by the Court to 
amount to an acquittal of the defendant. 
; ifeut, if thp Court fhould not go fo far as to 
Hold it tantamount to an acquittal, there 
ought, at leaft, tQ b^ a venire facias de novo. 
It certainly is not a convidtion : and if it be 
not an acquittal, it can be no more than an 
imperfedt verdift. And if a verdift be imper^ 
fe£li there muft be a venire facias de ncn)o», 
But we hope for his difcharge, as upon a ycr- 
dift of not guilty. 

On the part of the profecution, it was ar- 
gued that the prefent verdift could not be 
confidered as a verdift of notguilty. It po- 
fitiveiy and explicitly finds Kim guilty of the 
printing and puhlifbing : and it docs not im- 
port any negation of his guilt, as to the reft. 
The word " only '* does not import the exclu- 
fion of any thing hut fails: it canqgt pclude 
conclufton of law. ' ' » ' \ 

It is certain that a verdicc...|^apr^o^^ be 
amended in niatteri^ oi fa&;^ bij^ ^t ii|iaylbe 


C S3 1 

trfefted in point ofform. The officer takes 
as note fliort : but the neccffarf finilhing of 
the fentence may be fupplied. 

The Ibbftance and matter of this iflue is 
fufficiently found : the Court may order it 
into a proper form. The law here implies 
the intention. The printing and publifhing 
was all that the Jury were to inquire about. 
This verdift is not imperfeft: nor is there' 
any need of fupplyin^ any thing by intendment. 
The intention muft be coUedled from th^ 
libel itfelf. The intention is the gift of the 
offehce. The verdift ought to be entered. ac- 
cording to the true meaning and intention 
of the Juiy. Something is always to be added 
to ihery verdift : the entry is never in the 
very idfentical words ufed by the Jury ; which 
are always concife^ and not full and formal 
enough to ftand fupported againft a writ of 

Whether a jury may or may not take upon 
themfelves to judge of matters of law, they 
muft at leaft do it at their peril. But here 
they have not done it at all : they have not 
determined, that this paper is not libellous. 

So that whether they may at their peril do 
it, or whether they may not, they have not 
here rifqued that peril. The import of their 
verdidt is a general finding of the faSlSy with- 
out exprefling any fenfe of their own upon the 

In the cafe of the King againft Beere^ re- 
ported in 12 Mod. ai8. 2 Salk. 217. i Lord 
Raym. 414. Cartbew, 407. and Holt, 42 2 i 
the Jury, as to the writing and colleifing of the 
libels only, find him guilty, prout in indiSa-^ 
mento /ufponitur : and as to all other things 
c^^d in the indiftment, fr^ter Jcriptionem 

E3 ^' 

[ 54 ] 

et colleSimem^ they find him not guilty. The 
charge was for compofing, makings writing, 
and collefting fcveral fcandalous, falfe, and 
feditious libels. The finding was — ^^ quoad 

fcriptionem ct coUeftionem libellorum in 

indiftamento mentionat' tantum, quod de- 
" fendens eft culpabilis i et quoad totum re- 
^' fiduum in eodem indiftamento content*, 
*' quod defendens non eft inde culpabilis." It 
was holdch " that the bare writing and col- 
^/ lefting the libellous matter was crinriinal/' 
and " that the general finding fhall be taken 
'* to be criminal;" and Turton and R&kehy 
cited fome cafes to prove, " that the writing 
** of a libel, without publifliing it, was pu- 
*' niftiable by in^iiftment." 
. They alfo cited Moore, 194. Dyef, 362. 
Hobarty 54. Moore, 888. 1 Lev. iii. ahd, to 
prove that the word " only" might be rc- 
jefted, 2 Saunders y 380. Co. Litt. 227. 

Serjeant Glynn replied; enforcing the for- 
mer argument, and denying that the caife of 
Beere, or other cafes now cited, were like the 
prefent cafe. 

Lord Mansfield — It is much too late in 
this term, for any thing to be further done in 
this caufe, with any efFeft. Let it ftand over 
to next term. 

Cur^ advis^. 

.On this day (Tuefdcy 20th November 1770) 
his Lordship delivered the opinion of the 

"This comes before the Court upon two rules 5 
Thtfirji (obtained by xht defendant) " to Jiay 
*' the entering up judgment on the vcrdidl in 
^' this caufe ;" the Jecond (obtained by the 
Attorney General) ** that the verdift may be 

** enterect 

t 5.5 J 

^^ enter-ed actcrJHig -to the legal import of the 
^^ finding of the Jury." 

The laft rule muftj from the nature of it, 
be firO: difcui&d i becaule the ground of ar- 
.gnnaent upon th^ other cannot be fettled, till 
this is difpqfed of. 

Upon this rule* it ,is ncceflary to r^ort the 

The pro&cutiofi is :aa information againft 
the defendant, .for printing and fuhlijhing a 
libel, in the Pubjic Adveftifcr, figned " Ju- 
" Nius :" The tenor of which is fet out, with 
rp'oper AVEHMBNTS as to the meming of the 
libel, the JubjeSl matter^ and the perjons^ con- 
cerning which and of whom \t ipeaks i with 
iKNXJENDOs filling up all the blatnkjBii and the 

-USUAL efith£t&. 

In fupport c^, die pcpfeftutjQl^,. they proyf<J, 
by Natbmiel Cro^4er^ ^^ that ]^e bought tbe 
'^ paper prod^rced- and twelve more, from Qa^ 
^^ fields the defendant's pu]>l)j^i£r. In the :de- 
fehdant'js ;piibHfh»^ tOQtPt at.>th/e corner of 
hy JUw^;,tbat he igMs o&en therej )hAS 
occafionally feea the prinutig-roqpij and 
** iwshad.papem in the printing-rpojn." .' 
. They re^d the ^paper produced : ffnd ' th? le- 

\Der>iez^tf<^vvdth the information. . 

<i€9rge Harris i r^ifler . of :pampH]kts and 
Dewa-paper$> prt>yed ^^ that therde&nd^Bt, by 
" himfelf and fervants, paid the dtity for ad- 
** *vertifem«itis in. the Public Advertiftr. That 
•* ;he defendant had paid, himfelf; and all 
'' the payment! w^re on his Account ; That 
*' the defendant ha3 made the ufpal affidavit $ 
*' . and has heen allowed the (banap duty for 
'< fuch p9pec9 as were unibld* That the du«* 
** ties for advertifements in the paper in quet- 
^^ tion wete paidby the defendant's feFy:ant ^ and 

E 4 "the 


[ 56 1 

'^ the receipt given on the defendant's ac-* 
'* count." 

William Lee^ clerk to Sir John Fielding^ 
proved *^ That he often carried advertife- 
^^ ments for the Public Advertifer, to the dc- 
'^ fendant's at the corner of Ivy Lane. That 
*^ he generally paid ready money. That he 
** has feen money paid to the defendant for 
*' advertifements ; and he had a receipt from 
*' the defendant, figned by him, the 29th of 
«^ November i for >£• 32, for printing advertife- 
" ments in the Public Advertifer." 

On the part of the defendant ^ they called no 

His counfel objefted UjemecXxkiZ innuen- 
DOS : but they principal^ applied to the Jtiry, 
to acquit the defendant, from the paper being 
INNOCENT, or not liabU to^ the epithets given 
k by the information -, or, that the defendant's 
intent in publifliing did not diferve tie epithets 
in the information. 

There was no doubt but that the evideacef, 
ifcreditedy amounted to proof o£ printing and 
puilijhing by the defendant. > 

' There may be cafes where the fa& proved 
as a publication may be jufiified or excufed as 
lawful or innocent. For, no &£fc which is n6t 
criminal in qafe the paper be a libel, can 
amount to a publication of which a defendant 
ought to be found guilty. 

^Mtno queftion of that kind arofe in this 

Therefore I direfted the Jury to confidet 
«* Whether All the " innuendcs " and all the ap^ 
*' plications to matter and perfons made by the 
♦' information^ were, in their judgment, the 
V TRUE MEANING of the paper.'' If they 
thought otberwye^ they fhould afquit the de- 
«' ' fendanc ; 

r 57 ] 

fendant : but if they agreed mtb the informa^ 
tioHj and believed the evidence as to the public 
£afi(m^ they fhould find him guilty. 

•if the Jury were obliged xo ftnd»whether the 
paper was' a libely or whether it was a libel to 
Jiuh u degree as to deferve the epithets given it 
by the information J or to require proof of the 
exprefs intent of the defendant in printing and 
publiihing; ^d of its being tnaticious tofucb a 
degree as to deferve the epithets given it by the 
infbmnatiOA, then this direftion was wrong. 

In fupport bf it, I told them (as I have, 
fronUnndifpeftfible duty, been oblig'-d to tell 
every jury upon every trial of this kind) to the 
foUowiiig effeft. - . - 

That, ^^ Whether the' papyri -meaning as 
••.*afttdgt54'Jbythe infofrnpjadt«i, was in law b, 
""BiBBt^*' was^a queftion^ia^^y Vipon rkitface 
^f $bi Tiiivkd y i6ty aftc^ convi^on, a -defend- 
ant^ma/ move ih arreft af"jiidgftne4it,Sfthisf 
paper is not a libel. - "^ yi '' 

^:5Sfyil^'tXi^^li^ epithets in the ii^orn^ti&fivftY^ 
fema^'i^fiffems yf iaw^' ^6W-the prihiif^^ ih^ 
publijhing. • \^ ^ '^^^ <' > ' ^y; 

' '^TOia l^pPi&f fl^i exprefs maRce^ ^^r was -re- 
^iltilV'^dy ill' moft cafes, is' ifnpbflible to^be 

-:^hdtthei^veftiia finds only what the 1d^ 
i^f' fpim th^nfift. Therefore, after con* 
viftion, a defendant rxiay, by iffidavit^ l^n 
the ^|r^/»fhib guilt. *• • » ' : ^ 

That where an aft in itf elf indifferent ^ if dontir 
with apattlcofer irttent becomes criiTiindl \thert^ 
thiB intend fffuft be proved and found: but 
where the -aft Msf in: itftlf«7f/aw/i^/, (as irt this 
cafe) th^ p|:0ofi of }uftifi<::ation or excufe lies on 
^t defendant \ and in failure thereof, the /a^ 
ifflr^/^^ac]Hfrtinfttuntent« ^ r 


[ 58 ] 

The Jury ftaid out a great while, lAany 
hours. At laft, they came to my houfe ; (the 
objcftion " of its being out of the county'' being 
cured by confent.) In anfwer to the ufual 
queftion put by the officer, the Foreman gave 
their verdidt in thefe words — " Guiity of the 
" printing and publijhingy only," Nothing 
more paffed. 

The officer has entered up the verdifl: literal- 
ly ; withic^ut fb much as adding the ufual words 
of reference, to conne<5t the verdidt with the 
matter to which it related. Upon this^ the 
two rules I have ftated were moved for. 

Upon that obtained by the Attorney General j 
the affidavit of a juror was offered by the coun- 
fel for the defendant. 

But We are all of opinion, " that it can net 
** be received." 

Where there is a doubt, upon the Judge's 
report, as to what pafTed at the time of bring- 
ing in the verdift ; there the affidavits of jurors 
or by^ftanders may be received, upon a mo- 
tion " for a NEW trial,'' or to reftify a miftake 
in the " minutes :'* Bat an affidavit of a juror 
never can be read, as to what he then thought 
er intended. 

This motion confifts of two parts : Firft, 
** to fill up the formal words of reference j** 
the fecond, " to omit the word only.'' 

We are all of opinion, " that the frjl is a 
*' technical omifTion of the clerk 5 and ought to 
*' he Jet right:*' as to the fecond, "that the 
♦' word ONLY mufljiand in the verdiA." 

There is no ground from any thing which 
palTed, to ex; lain the fenfe of the Jury fo as 
that die officer mi^ht have entered a general 

Jfo argument can be urged for omitting tfyt 


C 59 1 

Ywrd ^^ onfy^* which docs ndt pBore *^ that 
« k<»fi have m^i& tUngh'h^mei'^ 

And dierefore it is a queftion of la\(r, upon 
the face of the verdidb* 

The ^ETENOANnr's motion ftiuft be con*- 
fidcred upon the. gro«md of Ae word **' o»^" 
STANDING. Was it ^mH^tedy ^ek-e could bb 
w doubt. 

** Guilty of printing tilid pubiHhing/' 
where there is no other charge, is *.*.ootl-. 
tV :" For, notkiftg mort is <o be founi by the 

In the cafe of the King and William^ the 
Jury found the defendant guilty of printing 
and publifhing the North Briton, *< N* 45." 
The clerk chtA-cd it up, **/ QuiLxy,'* And 
no objedion was ever niade. 

Where there are tmre chaises than on^ 
guilty of fome, ^* ^^fy," is an acquittal as to 
die nfi. 

But in this information, there is no chai^ 
^4f^ii*^/*for i^rinting and publifhing. 

Clesffly, there can be no judgment, of ac- 
quittal ; becaufe the faft found by the Jury 
is the n}ery crime they were to try. 

The only queftion is. Whether, by any pof- 
fibility, the word " only*' can " have a mean- 
" ing which would affeS or contradiS the 
« verdift.*' 

'* That the laxvy as to the fubjeft matter of 
** the verdift, is as I have ftated," has been 
fo often unanimoufly agreed by the whole Courts 
upon every report I have made of a trial for 4 
Ubel, that it would be improper to make it 9i 
queftion now^ in this place. 

Among thofe that concurred, the Bar will 
recoUeft the dead and the Hving not novtf 



C 60 ] 

And we all again declare our opinion^ 
** that the direAion is right and according to 
*' law/' 

This dircftion, though often given with an 
expreft requeft from me, ** that if there was 

the leaft doubt, they would move the 

Court," has never been complained of in 
Court, And yet, if it had been wrong, a new 
trial would J)e of courfe. It is not now com- 
plained of. 

Taking then the law to be according to this 
direftion, the queftion is, ** Whether any 
*' meaning cari be put upon the word *' only,** 
*^ as it ftands upon the record, which will af^ 

If they meant to fay '* they did not find it a 
^« !iM;' or " did not find the epitbets,* or 
^^ did not find any exprefs malicious intent;** 
it would not affeft the verdidt ; becaufe none of' 
thefe things were to be proved, or found either 

If, by *' only," they meant to fay, " that 
** they did not find the meaning put upon the 
*' paper by the information j" they Jhould have 

If they had exprejfed this to be their mean- 
ing, the vcrdift would have been inconjiftent 
and repugnant ; for they ought not to find the 
defendant guilty, unlejs they find the meaning 
put upon the paper by the, information: and judg- 
ment oi acquittal ought to have been entered up. 

If they had exprejfed their meaning in any of 
the other ways, the verdidt would not have been 
afieftedi and judgment ought to be entered 
upon it. 

It is impoflible to fay, with certainty. 
What the Jury really " did mean." Probably 
they had different meanings, 
• ' • If 

[ 6i 1 

If they could poiljbly. mean that jR\iic\ if 
t^freffed^ would acquif ij^e d^fisfldantj he ought 
not to be concluded by this verdift. 

A%:\%$^h}fiyjme of them might mean flot 
to find the* vibok icnfe and flxpiofiation ,puc; 
upon the pap^r by thcinnu^noos in thq in- 
formation. . ^ 
..If a doubt arifes from an.anibigpous,and 
lirijafual word in the verdift^ the^ Cowt ought, 
to lean in favour of a venire de novo. . , . 

We.arc uncjcr the UJs difficulty \ becapfe, in 
favour of a defendant ^ though the verdidt be 
/«//, thct Court qfiay jgrant a new trial 

JAnd. we ar? all ot opinion, upon the whole 
of the cafe, ^' that there fhouldbe a yenirx 

" OE NOVA." 

; Mr. . Attorney General faid, the original 
paper was loft j or, at leaft, was never returned 

Lord Mansfield. Nothing of that Ibrt 
will vary the juftice of the judgment. 


[ 62 ] 

IX. i£^oll)er 20Mm teQ^ifting 

(4.) Of New Trials on the Ground 
of Irregularity^ &c. 

^deanteVl. Leeman vtrjus Mletiy and others^ 
^/VII. Rujfell verfus Ball. 

Vieary ▼• - A T »£/^ i>^^"^^ the ifluc was u^n /ullage, 
^Tf^^iliz. x\ ^^^ two church -books were given in 
jMo.45i.n.6i6. evidence 5 one of which was delivered to the 
written^cv^ Jury in court by confent of the parties, and 
dcnce to the the Other was afterwarcfs delivered to the Jury 
thTfoilcitorsf out of court, by the folicitor on one fide, 
-which evidence without the confcnt of the Court, and this was 
«iiK:cd^u" court, indorfcd upon the poftea. The queftion was. 

If the verdift fliould be void ? And the Juf- 

tices differed in opinion, Popham and Gawdy 

that it Ihculd not j Fenner and Clench^ that in 

V. M0.452. the cafe oiLandy zndMetcalfe in C. B. 23 Eliz. 

it was agreed to be good law, where the Jurors 
being confulting upon their verdift, and feeing 
out of the window one of the witnefTes, they 
called to him, and defired that he would again 
declare to them what he had teftified in Court, 
and he did, and nothing more ; yet for this 
the verdift was adjudged void. But in the 
principal cafe, the book was delivered in 
evidence, and the other party had anfwered 
to it. Therefore qu^re ? Nota. the books for 
avQiding a verdift, 14 H. 7, fo, i, a. DoSlor 


i ' 

[ 63 ] 

et Studenij fo. 126. 4 Ma. Bf^. FerdiSf, 477.^ 
II /?. 4, 16. 35 H. 6. ^z. Examination^ 17. 
^Jf the defendant appears and makes defence, Thermoiin t- 
he AkJI never have a new trial, for want of du« ^*«' ^- ^ 

, W. J. If. K» 

notice/ 2 saik. 646. 

No new trial 
_,,.-. -. . ^ /• rf* /• .for want of no- 

Tbis * was an action of trelpafs for cutting tice after de- 
down and carrying away twenty trees of plain- ^^^' 
tiflTs. As to twelve of the trees, defendants pay and othe«! 
juftified for eftovers ; and as to the remaining h. ?• Geo. a. 
eight, pleaded not guilty, and two fcparate if- ^j^ftVcrdJa 
fues were roined thereupon. for plaintiff, 

-,*'.,, .^ r %t 1 • 2ind moderate 

At the tnal the merits were fully determin- damages not fet 
cd as to the ifllie joined upon the juftification ^^^^ 
for eftovers ; but plaintiff gave no evidence 
upon the Not Guilty, and no notice being taken 
thereof, the Jury found a ,verdi6t for plaintiflF 
generally, and gave five fhillings damages^ 
but omitted to acquit the defendants on the 
Not Guilty ; whereupon defendants moved to 
fet afidc the verdift, and obtained a rule to 
fliewcaufe, which was afterwards difcharged 
on hearing counfel on both fides. The verdid: 
appearing to be juft, and the damages mo- 
derate, the Court would not overturn the ver- 
dia ; but left plaintiff to enter up his judg-? 
ment as he fhould be advifed. 

Baynes for defendants. Chappie for plain- 

The words (and the /aid plaintiff likewife) Grave v.cufft. 
after ifTue tendered by defendant, were omit- ^'2^^^^$. 
ted in the ifTue delivered ; but inferted in the simiUteromit- 
record ofniji prius. Burnett moved to fet afidc *^ 
the verdift, infifting upon this as a material 
variance, and had a rule to fhew caufe. But 
it appearing that Mr. Lacy, defendant's coun- 
fel, at the trial, had objefted to the evidence 
I given 

C ^+ 1 

given by plaintiff in point of laW, (which is 
making defence) thau|h he did not crofs ex* 
amine, the rule was Wcharged. Qmyns and 
Draper for plaintiff; Eyre and Burnett for de- 

Thompfon v. - Damal moved to fet afide the vcrdidt, die 
eT^gIo 2. record of niji prius differing from the ifllie-* 
Bamcs,475. book delivered, the defendant's name being 
Jeei'nifipdus infcrtcd in the paper-book, in joining iffue, 
record and iffue. inflead of plaintiff 's 5 but in the record plain- 
^f jf^^^''*^ tiff's name was infcrted, and the iffue properly 
joined ; but two iffues being joined, and a ge- 
neral vendift found for plaintiff. Court refufed 
to make any rule* 

Norman v. Ricbard GiateTy fummoned and returned as 
SSd'af- ^ nifi prius jurat, did not attend the Affizes; 
fault ill Nor- but One Ricbard Sbeppardy a freeholder, who 
I? Barbs', 45*3.^ was vcrbally fummoned to fcrve as a juror on 
A wrong ju- (hc Crown fide, and never had been at the Af- 
veSiafdtafi!ie. fizcs before, did attend both courts (as he 

imagined himfclf in duty bound to do) ; when 
Ricbard Geater was called on the nififrius fide, 
Ricbard Sbeppard (thinking himfeif called) 
anfwered, and was fworn as a juror* 

Defendant infifted, that the verdift was null 
and void, the trial not having been by twelve 
but by eleven jurors only. 

Neither party knew any thing of the mif^ 
take till after the trial. It was urged for 
plaintiff, that defendant ought to have chal- 
lenged Sbeppard i that after recording the ver- 
dift, no averment can be admitted againfl the 
record. That Sbeppard* % place of abode was 
different from that of Geater, which would 
have been good matter of challenge. And if 
de&ndant could aver againft the record, yet 


flW aifea is cured by the -ftatutt 34 Hi 8. c; 3a 
The •4rerdi<9: 'was for jgtetimifF, damages ont 
Mlmg'i' Aiid iUord XMe( Jfiftite Letj who 
tried the tat}fe> hid certified; to entide piaiA* 
tifFtdcoft*. F&Ckr\ By the flat lite 3 Geo; 2; 
all tha twelve jbroris Ought to^ be drawn out 
X^the bo3t^ arid i^i hamb of'Rubard Sheppard 
%ai never put into the box: The €oart are 
hot bound by the record. Here has been no 
triii; . This is not mktter of jchaHenjgej il'dr is 
the<kfr£l cured by^the ftatute 32 H- 8., The 
mic on Ridiiard ShepparU to ftiew caufe why 
an attachment^ was difcharged: The inilcfto 
fte.w caufe wHy the verdift (houid not be fct 
afide, was made abfolute; Prime for plaxntifFj 
Booth for defendant i Leeds for Rf chard Skepi^ 

- This *ra5 ah aJJtion for Breaking and enlkeri ^^ • ^^ 
fetepteiotiflP's ctofe, t^c. Defendant juftified TVnj m:' 
might of * waf . Piamtrff ireplted :ex$ra ^iam; s^rnls, 454,- 
tvherfeon iflue was joined j and a fpeci^ Jurjr Motion for 
feftd view applied for ahd granted. The name "Sun name 
bfe llenr^/IJip^incoii of AhefdUtt>tt\ in Goth' pf oa? of the 
Di^m^ Bftjuir^, Was taken out of the free- miAaken. 
holders book, and he ftood as a jury man^ ind 
Was* rettlrried amohg the bther jurors, in the 
pannel aririeied to the writ of Vtnird facias j 
ihd Was ftimmoned, and did attend both on 
the view and dt*the trial. After a verdift foi* 
plaintiff oh the merits of the caufe^ defendant 
inoyed to fet afidfe the verdift, Mr. Luppin- 
toti'i tbriftiari name being Harrj and not Hen-^ 
ry I and produced an ajffidavit thereof from two 
perfohsi i^et CUr^i this affidavit oiight not 
tp be received in a motion for a hew trial. 
The record, arid all thie jury procefs, are uni- 
form, Mr. LuppificoU is the real perfon re-i 
Yoi. III. F turned 

Love and Ap- 
^eton, V. Jar- 
rett* £.196. !• 
Barnes, 457. 

Paper- book 
received and , 
paid for, but 
returned on 
difcerning the 
replication to 
be bad, with 
notice of the 
xnidake. Ver-r 
diA obtained 
without do- 
fence fet afide. 

' Hicks a^aini^ 
" Young. 
M . %o G. 2. 
JBameSy 458. 
Vcrdidl for 
defendant in 
replevin (who 
f)rought down 
the record) fet 
afide, the jplain- 
tiff not appcar- 

curned and intended to be a juror, and there 
is no. pretence, that the verdift is unjuft* . It 
is commonly underftbod that Henry and Harry 
are the fame name ^ or that Harry is the fame 
name as H^ry corruptly fpelt. The rule tp 
ihew caufe why the verdi/ft fhould not be fe.t 
lafide, was difchgrged. Belfield for plaintiflfj^ 
ttijfey for defendants 

Defendant had time to plead by a judge's 
order, rejoining gratis. Plaintiff delivered a 
paper-book, containing a bad jreplicatioji, and 
an ifTue joined by defendant. Defendant's 
agent's clerk received and paid for the paperr- 
book J but his m^fter perceiving the replicar 
tion to be bad> returned the book to plaintiff's 
agent, and gave notice of the miftake, not- 
withftanding which plaintiff went on to trial, 
and had a verdift, without defence. Rule 
abfolute to fet afide the verdift, without 
tofts^ Skinner for plaintiff; Draper for de- 

In replevin, plauitifT did not appear at the 
affizes, defendant brought down the record,, 
and his counfcl infifting ftrongly on a verdi<5^, 
Mr. Baron Reynolds, before whom the caufe 
was tried, complied, and a verdift was found 
for defendant, though plaintiff did not appear-^ 
Upon application' by plaintiff to fet afide the 
verdict, the Court, after hearing the Judge's 
report, ordered the pojlea to be amqnded, and 
a nonfuit to be returned inftead of a verdidi for 
defendant ; and that defendant fhould pay 
cofls of the motion. Prime for plaintiff i Drar 
per for defendants 


C «7 ] 

In geffment j the Fenire facias was awarded w«cdcn on 
by miftake, returnable 911 the morrow of the *^ ^^cmif? of 
Jfcenjion, inftead of eight days of the Purifica-^ saondws^ wu 
Hon. Defendants, though their witneffes at- ^^o^.and 
tended the affizes, made no defence at the G.atBamcMlp, 
trial, but confeffed leafe, entry, and oufter, j^f^^^^f v*' 
and fuffered plaintiflF to take a verdift, relying nirc being re. 
on the miftake in awarding the venire ^ return- da'^^aftlrthe 
able at a day fubfequent to the aflizes, 'till affixes, 
after which return, and default by jurors, there 
could be no niji prius. The jury procefs was 
made returnable at the proper day : the Court 
held the variance material, on the authority of 
tVQ cafes cited by plaintiff's counfel, Eaftard 
a aL verfus Barf let t, T. 3 G. 2. Dale verjus 
HolmeSy M. 4 G» 2. in B. R. Verdidt fet 
afide on payment of cofts. Prime for defendants^ 
Dr^er and fVynne for plaintiff. 

Motion, per Draper for defendant, for a Fitch qui tam 
new trial, after verdift for plaintiff, in an ^^^'^tG!lT* 
aftion upon a penal flatute (wherein no de- Barnes, 464. 
fence was made at the trial) founded on twTeTthe^iruJ 
a variance between the iffue delivered and andninprias 
the record of niJi prius, the words following, "^^ vuie poft 
(viz,) And thereupon the /aid plaintiffy by ix. (ii.)the 
George Boldero, his attorney^ faith, being ^ vide ame 
omitjied in the iffue delivered, though put Thompfonv. 
into the record* This was admitted not to be 
a material variance affefting the merits, and 
in civil aftions helped by the ftatute of Jeo- 
fails j but not in an adion on penal ftatute. In 
aftions brought by original writ, the method 
is torecite the writ, and then to count j here is 
nothing but recital, without any count. By 
ftat. J 8 Eliz. a particular method is prefcribed 
to the profecutor ; he muft declare in perfbn, 
or by. attorney. Plaintiff, in this cafe, may^ 

F 2 poffibly. 

i 68 i 

pofTibly, be under twenty-one years of age^ 
and, if fo, cannot fiipport this aftion, whereiA 
he cannot declare by his prochein amy. 

The Court, after hearing Prime pro quer^j 
did not incline to think the variance material, 
or to favour the diftinftion made per Draper, 
But as plaintiff's agent had made a blunder, 
and the merits had not been tried, ordered a 
new trial, and cofts to attend the event. Vide 
pofi IX. (ii.) 

Griffiths V. y his was an aftion aeainft the defendant as 

Williams, /• ,.*-', 

E.27G.3.B.R. an attorney for negligence in not entering up 

eT^i v'^-io j^dg^'^^^^t* o" a- warrant of attorney, againft a 
Paying mo- * Creditor of the plaintiff, by which he had loft 
whcre^^hraT^^^ his fecurity. The defendant pleaded the ge- 
mand is for uii- nci^al iffue, and afterwards obtained a judge's 
niTes^by a'^' ordcr for paying money into court. Notice 
judge's order was given to the defendant by the plaintiff's 
cl^Ts H-regi^^ attorney, that the payment was irregular, and 
but if the piainl that he fhould not take the money out of 
lioiSymitrhe coutt ; buc about ten days before the trial, the 
thereby waives plaintiff's agent took the money out of court, 
amUannot^af-^' ^^^ aftcrwards the plaintiff obtained a verdift 
terwards have a for the cxaft fum paid into court. 

vcrdi(5l, unlefs r\ r in 1 • j 1 

he recovcrmore ^u a former day. Bower obtained a rule to 
thaiithefum fij^w caufc why the verdift which had been 

'n^id 111 

Thepiaintiif giveu for the plaintiff, lliould not be fet afide, 
is bound by the ^^^ ^ Verdidt entered for the defendant. \ 

adisof hisattor- -rx 7 it; /i i ^ 

ney's agent in Uougld^ and Mtlles now Ihewcd caufe, and 
town. contended, that as this was an aftion in which 

unliquidated damages were claimed, the de- 
fendant could not pay money into court as of 
cotrrfe. But even if it could, this was too 
late, it being after plea pleaded, i fVilJn iSJ* 
Barnes y 279. And that irregularity is not 
cured by the plaintiff's agent taking the 
money out of court; for the plaintiff cannot 


C 69 ] 

be in a better fituation by thofe ineans^ than 
he would have been, if the defendant's at- 
torney had paid the money into his hands. 
And eyen in that cafe, unlefs there had beep 
a plea puis darrein cofitinuance, the plain- 
tiff n^uft have obtained a yerdift : for nothing 
can !)e taken advantage of under the general 
iffue, but that which happens before plea 
pleaded. Sullivan verjus Montague, Dougl. loj, 
Reynolds verjus Beerlingy Dougl. io8. n. 47. 
Befide the agent's taking the money out of 
court, ought not to conclude the plaintiff, af- 
ter his attorney had exprefsly given notice to 
the defendant's attorney, that he would not 
take the money. 

The CQunfel in fupport of thp rule \yerp 
ftopped by the Cpurt. 

XsHURST, J,= — This payment qf money wa? 
originally irregular; for this is not one of 
thofe aftions in which money could, ftriftly 
fpeaking, be paid into court ; but that irregur 
larity w^s waived by the plaintiff's taking it 
out of CQurt* 

He fliould have applied to difcharge the 
rule as irregularly obtained; but inftead of 
that, he received the money, which was paid 
into cpurt, and went down to trial. It is no \ 
pbjeftion that the agent in town took thp 
pioney ouf pf court, ^pecaufe he ^^led as the 
plaintiff's attorney in townj, aqd therefore th^ 
plaintiff is concluded by his afts. 

BuLLBR, J. — Where the defendant \s en- 
titled to pay money jntp court, it is a matter 
ofcourfe before plea pleaded; and now, even 
after plea, it is perpetually done by obtaining 
a judge's order for that purpofe. No incon- 
venience enfues to either party frorn this prac- 
! F .7 ti<;ei 

[ 70 3 

tice ; becaufe if any ex^ence has been incurred, 
that is ordered to be paid at the time df ob- 
taining the rule. And this tends to the fur- 
therance of juftice J for if the defendant pays 
into court tvhat is really due, the plaintiff 
ought in juftice to take it. That is the cafe in 
general. It is true, indeed, that the defendant 
in this aftion could not in ftriiftnefs pay nnioney 
into court, becaufe it is founded in damages : 
but if the plaintiff had intended to objeft to 
it, he ihould have applied to difcharge the 
rule. But he has acquiefced under this order by- 
taking the money, and therefore is eftopped 
from faying that the defendant could not pay 
money into court. It has been faid, that 
this is to be confidered in the fame light as if 
the defendant had, after plea pleaded, aAiially 
paid fo much money to the plaintiff as a fa- 
tisfaftion, in AVhich cafe, iinlefs there had been 
a plea puis darrein continuance ^ the plaintiff 
would have been entitled to a verdift. But 
this is extremely different from that cafe ; For 
there the payment would be. the aft of the 
party, but this payment under a rule obtained^ 
is tjie aft of the Court, and therefore coula 
not be pleaded puis darrein continuance. Then 
as to the agent's taking the money out of 
court, it is the fame as if it had been done by 
the plaintiff himfelf. Fdr where there is ar^ 
agent in town, all notices are given to him, and 
are not fent into the country. 

Grose, J. — Here the objeftion, if good, is 
waived J for the plaintiff is eftopped, by tak- 
Jng the money out of court, from taking advan- 
tage of any irregularity. There was time 
enough for the agent to have written into the 
country after he had taken the money out of 


r 7t 1 

court; and after that^ the plaintiff ought not 
to have proceeded to trial. 

The Court made the rwle abfolute, direft- 
ing that the plaintiff ihould have cofts to the 
time of the money being paid into court, and . ^ 
that he (hduld pay the defendant the fubfe^ and]^aft,i^« 
aijent cofts (a)^ ^*9« 

F 4 IX. 


I ?a 1 

IX. Df ot!)erfl|Batter0teQ)ectinsF 
netjj trials, &c. 

(5.) Of granting a new Trial of ter^ 
two concurrent F^erdi^s, 

Vide ante V. tyndal and others, verfus Brown^ 
& VI. Clerk verfus Udall. ■ " ^ 

?aVk.649.M, DER Holty Ch. J. After fecpnd verdiftpr^ 

6 Mod. 22. ' ; 'the fame fide, it is not fit to grant a »ew 

Improper to trial, bccaufc the Judge did not like the vcr- 

trial after fccond dift • Qut if there wcrc any practice in obtain-* 

vcnliftoafarh^ -^gjj^j^.jgp^^^ - . .- . • - 

Goodwin XT, After, two verdifts for the plaintiff^ the dc- 

^G^'^B^ pendant moved for another new trial. It was 

4 BiirV. xidL an aftion of trcfpafs ; and ' the trials had been 

^^T^'Z. inCbefier.' " ^ '' ' '' ^ ' " 

new trial afrer *..Xn, ^ r 3 At 

two vcrUias for The defendant was aipt attqrncy. At th^ 
pUintifR • f^^^ ^j-jaj^ jjje Jury found that He Tiad aftcd 

beyond bis office and authority, or his duty as 
an attorney j and gave a verdid for the plain- 
tiff: which vcrdi<5t was fet afide, and a. new 
trial granted. ' The fecond verdi^ was alfo 
found for the plaintiff: which fecond yerdidt 
was now prayed to be fet afide alfoj^ and a 
third new trial was prayed. "A rule was made 
Vpon the plaintiff, to fhew caufe. 

Upon fhewing caufe,' Mr. Morlctfs report 

was readi and t;he qiieflion was niuch liti- 

gated: but it is not neceffary to fpecify the 

particulars ; becaufe only the general dodrine 

♦ * - laid 

r 73 1 

laid down is meant tq be here taken notico 

Lord Mansfield. — There is no ground The general 

to fay that a new trial Ihall not be granted, af- f^f^"*^ ^^'"'** 
ier a former new trial has been once granted 

Thttc IS an index to a Report*book *, which . * i fuppofc 

miftakes a decifive particular reajm in a par- me^nt ^h*Ma. 

ticular cafe, for a gbwexal r«/^. See Modern <Jern, where the 

Cafes, Index, under the word ^^ trial.'^ 1" After Atrial 

But there is no fuch general rule as has been ['^^^f*^?^^, 

, o €t trial denied * 

fuppofed, A new trial nnuft depend upon an- " Sed. qo. * 
fwering the ends of juftice. 

However, in the prefent cafe, he faid, he 
jlid not fee any reafon for a new trial. He 
^bferved that here is no queilion of right, nor 
any great value ; aqd upon the whole, he was 
clear that no new trial ought to be granted. 

Mr. Juftice Yates was clear, that a fecond 
new trial might ht granted, as well as a firft, 
if the reafons fof granting it were fufficient. 

Bqt he alfo phoughr tl)a.t in the prefent cafe 
there was no fuflicient reafon for granting one, 

Mr. Ju^ic^ Aston.— The cafe of Gwime 
vtrjus Poole et al\ in 2 Lufw. 935, which 
cites OJliel and BeJ/ey's cafe in Sir T. Jones, 
(114, does not contradidt the pofition — 

^ Tfiat an attorney may exceed his autho- 
" rityianc} jurifdidtion ; and if he adls fo with 
f' his knowledge, may be guilty as a trefpaffer.** 

And the cafe of Moravia verfus Sloper et al\ 
in C B. Comyns 574, recognizes the doftrine, 
'* that in juftifying under the procefs of an in- 
" ferior court, it is neceffary to fhew it to be 
" within the jurifdiftion." 

Upon the; whole circumftances of this cafe, 
he concurred, that no new trial ought to be 


[ 74 T 

% Mr, Jujitce Hewitt.-^IF an attorney knows 
that the cafe is out of the jurifdi6lion of the 
inferior court, I think he wiil beahfwerable; 
cfpecially, if he knows it clearly. Here, he 
did know it. And befides this, the Jury 
have found that He even went beyond and out 
of his duty as an attorney. 

The granting a new trial a fccond time, 
muft depend upon the circumftances of the 
cafe : it is very difficult to lay down any certain 
rule. Indeed, if two or three juries have de- 
termined upon the fame point, and the ftme 
circumftances, it may be a matter of difcre- 
tion, not to grant a new trial, but to leave the 
matter at reft. 

Upon the circumftances of the. prefent cafe, 
po new trial ought to be granted. 

Per Cur' unanimoufly-r- 

The Rule to (hew caufc why there fhould 
pot be a new trial, was pischargep. 


C 71 ] 


}X. ^etiier iS^fitmsi xtti^tttixis 

(6.) . 0/* granting new Trials iff 



Vide note VIII. Wright ex demifs* Clymer ver-* 
Jus Littler £s? «/. et fofi IX. (i6) G«?r?i- 
• title verjus Bailey. 


N ejeSlment after a trial at bar, Seijeant 
Wright moved for a new trial, becaufe the Argent v. Sit 

^ Marmaduke 

verdift was contrary to evidence: the Court Dareii,H. 

thought fo* too. Rokeby was for if, on the ^^^^;^*^ 
rafc in StyUy c^teri contra ; for per Holt, Ch. J. * Ncwtmi af- 
the rcafon of granting new trials upon verdifts '*•: ^^'^.^^ ***!• 

. n • 1 r *v. • 1 /• 1 refuled incject* 

agamft evidence at, the aflizes is, becaufe they mcnt, becaufe 
are fubordinate trials appointed by Wefi. 2, scd.'^vidc"^^' 
c. 30. UH de paucis articulis i3 facilis eft exami^ smith and 
natio. And there have been new trials an- ^*^^*^ 
ciently, as appears from this : that it is a good 
challenge to the juror, that he hath been a 
juror before in the fame caufe i but we muft 
not make ourfelves abfolute judges of law and 
faft too ; and there never was a new trial after 
a trial at bar in ejeftment, but in cafe of ill 
praftice, for the plaintiflF may bring a new 
ejeftment '\ upon this a new trial at bar was 
denied in Sir Richard 1temple*s cafi, where 
the Jury found a point of law on the ftatute of 
bankrupts againfl the opinion of the Court. 


[ 76 3 

BV««er,on the In cjeSiment. Upon the trial a verdidl paffed 
^^^n%GTi\x% for defendant, but a new trial was granted, the 
Pctcbcr. M. morto;ae;e deed under which defendant claimed, 

8 G. 2. Barnes, o to • r • i_ V /i. 

^o, ' appearing to be a counterfeit by the ftanip^ 

vcrdiafor the dye which imprelTed it not being made 'till 
^*count«-feu^d" feveral years after the date of ihe deed. Where 
iked^ (ct aiidc. matter of tide is the difpute, and defendant ob- 
tains a verdift, a new trial is always denied | 
but this is an extraordinary cafe where the rip- 
venue is concerned, 

i^rookes, on In*eje5lment. Upon motion for a new 
Mctcc v. Bkid. trial, ifiiT. l^aron Jdamsy before whom t^e 
'wy^.T.t%Gto, caufe was tried, reported to the Court, that 
*' vcrdS too*4 the verdict (which was a general verdidt fox the 
5npart,b^n plaintiff) was good in part and bad in partj^ 
^enc. agreeable to evidence 4s to lands in pofTelEota 

of one of defendant's tenants; contrary tp evi- 
dence as to lands in pofTefllon of another ter 
nant. 12 Med. ?7 j. 2 Salk. 648, 3 Salk. 362, 
were Quoted to fhew that where a verdift is 
good in part it muft ftand, Rule, that plain- 
tiff fhall take poffeffipn qf that p^rt of the 
premijOTes only as to vy^hich the Judge reported 
in favour of the yerdid^ Martyn for defend^ 
ant, Poole for plaintiff. 

Vide N" IV* lluddlejlone verfus Brigflock an4 

Leightonr. The defendant. Sir Edward Leightcn\ fa- 

il^r^MomM. ^^^^> mortgaged, and aftprvyrards fqld the ma- 

1710. T p. Will, nor of Balfleyy in the county ojf ]\iGntgQmery, i^i 

i Eq!ca.Tb. Wales y to his b/other the plaintiff, and upon his 

525. PI. 4. death the now Sir Edward Leighton fet up an 

truft-eftate°de! ^1^ intail Created about two hundred years fince, 

vifcd to be fold, and got into poffeffion. The plaintiff brought 

j.s.if the w;U an ejc<itment, which w^s tried m frales, and a 


C 77 ] 

VerdiA paffcd for the defendant upon pfo'^ i)c difp'ufed, af- 
ducing an old inquifition finding the intail ; Svour^/th© 
but there was no deed produced creating this wiii, equity 

.. *■ *^ will grant a 

intaif. ' perpetual in* 

The plaintiff at law brought his bill in this jtta^on. 
Court, fetting forth that the writings were a|l 
in the defendant's hands, and praying that 
they might be produced, and that the de- 
fendant might not let up a title under any truft- 
term. Upon which Lord Cowper decreed, 
that the trial Ihould be upon the mere right in 
anejeftment; and that no truft^term, mort- 
gage, or leafe, ftiould be fet up, but that 
the defendant fhould make title only under the 

Accordingly it was tried in - Shropjhire^ 
where, before Mr- Baron Frice^ the now de- 
fendant Sir Edward Leighton had a verdift ; 
but the Judge certifying againft it, a new trial 
was granted to be at ;he bar of the Exchequer, 
which was had, and a verdift for the plaintiff: 
there was afterwards a trial likewife in the 
King's Benchy and a verdift again for the plain- * 
tiflf. And now on the equity referved, it was 
prayed that the plaintiff fhould have a per- 
petual injunftion with cofts. 

Lord P^r^^r.— The plaintiff has no reafon 
to complain (as he does) of the inconvenience, 
that there is no end of trials in ejeftment, for 
the tw6 firft were found againft him 5 but it is 
true, the two trials at bar, which were by the 
direftion of the Court, being for him, I do 
not fee what this Court has been doing, unlcfs 
it Ihould now grant a perpetual injunction. If 
a truft-eftate be devifed to be fold, and on a 

^ bill brought againft the truftees to fell, the heir 
contcfts the will j after two trials, the Court 

. will grant a perpetual injunftion. In the cafe 


t 78 1 ^ 

^a) . c^ Ac JStff / of (a) B^tb verfus SberWjny the 
c«nr*46if **^* titk^was ^ mere legal one j where, after feveral 
So after fevcrai cjeftincnts and flvc verdifts for the Earl of 
™m, ancT:^ Satb, he brought a bill of peace for a perpe^ 
dias in all, ia tual injundtioH. Lord Chancellor Cowpef 
wlurequity^on thought this to6 much for him to grant, but 
a bill of peace lecmcd to rccommend it to the plaintiff as a 
pwpetuai \n- caufc proper for the Houfe of Lords j and qxx 
junaion. 2Xi appeal, the Lords granted a perpetual iwr 

junftion, which I take as a reverfal of Lord 
Comper\ decree, and as a precedent in the 
higheft court of what ought to be in this cafe, 
Confequeptly it is very improperly faid, that 
only the Houfe of Lords in fuch cafe fhould 
grant a perpetual injunftion ; for that houfe 
on appeal gives fuch a judgment as the Court 
below ought to have done. This Court, in 
direfting trials, and ordering writings to be 
produced, has been doing nothing all this 
while ; if it cannot grant a perpetual injunc- 
tion, which really, after fo many trials» feems 
to be for the benefit of both parties. 
Equity win As to the objeftion, that in the cafe of th0 
the rather grant Lord Batb verfus Sberwitiy the Lords would 

a perpetual in- , -^ , i • • n* i. - - 

junaion where not havc granted a perpetual injunction, but 

triai"orVhrre ^^^^ ^^^ being an odious caufe, tending tor 
tijecaufeagainft baftardizc a noble perfon after' his death ; I 
r^st-e'ft^ndis anfwer, it did not tend to baftardize the Duke 
odious in its na. o{ Albermarlcy but to make him the legitimate 
'""• fon of Radford. 

However, the principal cafe is fuch as not 
in its nature to be entitled to any favour ; for 
the defendant Sir Edward Letghion is contend^ 
ing againft a purchafe, under which there has 
been poffeffion for very many years ; againft a 
fale made by his own father to his brother; and 
is fetting up an old intail of about two hund-* 
red years (landing to defeat this purchafe -, and 

5 if 

C ?9 1 

if there was not the cleared proof Imaginat>ld 
of fuph an intailj (as pofHbly there was not) 
the Jury were ih the right not to find it. It ij 
ccnainly ari inconvenience in the law, that 
there fliould be no end of trials in cjeftment ; 
and that one trial in a real aftion (which perr 
haps may be a trial by niji prius) Ihould be 
final, when at the fame time twenty trials in 
eje(9:ment and at the bar in JVeJiminJier Hall 
will not be conclufive j but this cannot proper- 
ly be urged in the prefent cafe, when upon the 
two or three fi|-ft.eje6lments the verdifts went 
againft the now plaintiff, who, had they been 
conclufive, muft have been barred. 

But as to the cofts in this.Court, the plaintiff 
William Leighton has had relief by producing 
the Writings, and preventing the defendant 
from fetting up any old terms ; and it does not 
appear that the defendant Sir Edward Leighton 
(the lieir of an ancient family) has fo far mif- 
behaved, as that he ought to pay cofts i 
though he- Ihall lofe his own cofts, the right 
appearing againft him i but the plaintiff to 
have the cofts at law for all the trials. 

This decree was affirmed (a) in the Houfc fa) 
of Lords with £. 40 cofts. ^^^ '7^ 

Upon ai trial at bar in ejeSlmenty the parties smith ex dc 
agreed to a fpecial verdift as to a point of law S**^?!?*!^'^* V 

S^ *^ /- -i' /• t *^ -n 1 Parkhurftet^. 

anfing upon a family lettlement. But there Hii. Term, 

being a queftion of fa6t in which they did not "stri*iioi^* 
agree, that was left to the Jury, who found it Nev^r tmfs 

for the plaintiff againft the weight pf the '^a'^^^Z 

eviderice. after a trial ac 

The defendant moved for a new trial, and ^^^ 
three objeftions were made. 1. TJiat it was 
after a trial at bar. a. That it was in the cafe 
of a fpeciaji verdift. And, 3. That it N^as in 


t ?a 1 

fcjcttmerit. Thefe points were folerrinljr argu- 
'ed at the bar^ and the Court took time to coil* 
fider of them; 

And as to the firftj the Court held, that lA 
• the cafe of a verditft agaihft evidence^ its b^ihg 
a triil at bar was no dbjeftion to a riew tri^l, 
Vzhich had been granted in the tafe of Biwdt&y^ 
and in the cafe of Sir Cbrifiopher Mufgrave v» 
Nevinfon. Pof. lo Geo. l; i Stra. 584. 

As to the fccond obje6tion> thefy gaVe no 
bpinion, it not being neceffary to dieterihine it 
Upon the rule they intended td prbnbunce iA 
this cafe^ 

As to the thil-d obj^dioHi they fti-ongly in^ 

tlined, that the verdift not being final iii 

ejeftment, a new trial ought not to be granted^ 

Sir r. J. 124. but upon very particular circumftances^ wher6 

^!t^*Atgent^ juftice is no otherwife to be attained. And 

v,sirM.Ddreii. they obferved, that ho Cafe had been cited 

of a new trial in ejeftment after ft trial 
at bar. 

. But the point upon which the ilew trial iii 
this cafe was denied wasj becaufe they faid 
the evidence was doubtful, and in fuch a cafe 
a verdift at bar ought to ftandk 

Gooc!titie, on Sir Fletcher Norton, on behalt of the plain- 
Are" and fiff, ftiewed caufe againft granting a rifcw tHalj 
others, veifus in an ejeSment -czxilCj wherein a fpecial jury* 
othlT """^ had given a verdid for the plaintiff^ the heir 
E.8G.3.B.R. at law of the teftator j and the defendants had 

^ConTradiatry ttlOV^d tO fct it afidc. 

Evidence in xhc QUESTION was Oil the cxecutloii of a 

jidgrnot'dif- will. The te^lator's name was fyefton. 

thefcrdia^^is ^^- J^^f^^^^ Willes read thfc Report of Mn 
there was evi- Baron Swytht who tried the caufe \ which was 
f dcsf ^ ^^'^ ^^^ particular and circumftantial ; importing^ 

in general, that the evidence was contradidory i 


fetit tkt he douW not declare kimfelf td Be diC- 
iTatisfied'with the f ehdiftf as there was evidericd 
bnbothfideS; . . • - -. •- '3::: 

Lord'^ANsFiELb thought it a Vejfy ^dng 
cafe for a new trial; He faid, iti beifig atii 
ejeiimn^'Czic i^ rip reafon at all dgaiiyft 0".int- 
ing a new trial :* for^ though a ne^ cjeftfiient 
may be brought, yet here will b6 a ^hari^ of 
poficffioii.; by which the defendant wilttle a 
fufFerer. This objeftion agairift granting af 
new trial, ** becaiife a new geftnrtcrit may be 
brought/' has bcenpver-niled again and again* 
An attefting witnefs to a will has here dome to 
Iwear againft her own atteftation; Upon the 
Whole of th6 evidence reported, it is a Clear 
cafe for re-confiderationi 

Mr. Juftke Yates^-^NcW trials are often 
granted in ej eft ment- cafes as well as in others; 
where the party praying a new trial would fuf- 
fer by a change of poflcflion* 

In the prefent cafe, I thinks the Witrieflcd 
ought not to have been adnnitted to give evi- 
dencle againft their own atteftation. 

There are cafes where vm witnefs has fup- 
ported a will, by fwearirig that the other two 
atteftcd^ though thofe othei* two have de- 
nied it 

Mr. Juflke Aston was of the fame opinion; 
^Every Qne of thefe witnefTes has acknow-^ 
ledged their having attefted this will. I 
think clearly that it requires a re-confidera- 

Mr. "fufticiyfihtsZ^ concurred; and thought 
the weight of the evidence appeared to be on 
the fide of the defendants; 

Lord Mansfield.' — I hav^e feveral cafes, 
both upon bonds and wills, where the attefta* 
tion of witneffes has been fupportcd by the 

toL.IIIi G cvidenc* 

evideace-of the other witneffes, againft that or 
the a(teijbing witneflies who denied their own 

. It is of terrible -confequence, that witneffes 
to wills fliould be tampered with, to deny their 
owii attcftation. , . 
. TKerefbre — Let the rule be made abfolute, 
for fetting adde this vprdid ; and a new trial 
^c/had:. but it muft i)e upon payment of 
. Rule accordingly. ' 

*^ * V ^ 

j> *< i .. • 

^* *■<,"•» 

' 'T 

'1-t t 

• r * 

w i. 


t 83 1 

ing netD %xiM, &c. 

(7.) Of the MifionduB of Witneffes, 

F/V^ ^»/tf III. The ^^en 1). the B^ilifFs:and 
Burgeffes of Bewdley. 

IN order to a new trial an affidavit was read, George v. 
that one of the witneflcs had declared that i aho'e/r. 
he had got a guinea to ftifle the truth. Gould — 7 Mod. 31. 
An affidavit of him who had the guinea v^crc * 
fomething, but his faying is nothing. A wit- 
nefs's laying a wager in the caufe,- is ho hin- • 
drance'to his being a witnefs, for the other has 
an intcreft in his evidence, which he cannot. ' / 
deprirfe him of. 

I cannot find this cafe elfewhere reported,' 
nor any other cafe upon the fubjeft. 

I (hould not Jiave made a' feparatfe head of 
this one cafe, if I couM, with propriety, have 
infcrtcd it under any other.— -Upon the whole, 
I thought it bettet thiis'to infert it, than drnit 
the cafe. - - . . ' . . ^ 


» > ■.« . 


I » 



t 8* } 

i^. i>f'otl)et letter jfteii()«cft!ts^ 
mt» ICtiaig, &c. 

(8.) J^ew Trial ndt granted fof 
want 6f Evidence which might 
have h^en originally produced » 

'Vidediite IV. Letgoe v. Duri^ Wheeler v^ PiU. 

Anonyraoo*. A NEW trial was granted becaufe^thc 
M.8W.3.C.B. /^ counfel were abfcat, not thinking the 

J Salk. 645. "^"T^* •] , % r 

s.c.iSaik.273. cauie. would come on» and no defence was 
* i^ttiaifor ^^i buj: a like motion was denied in B^R^ 
the abfence of per Holty C. J. Alio in onc Coffin's caie> a 

Sen?l!^ Or*^*" ^^"^^ came on at feven in the mornings aad an 
Vide 6 Mod. old witnefs could not rife to be there time 
Farefll*i.56^' CROugh j but it was denied, unlefe he would 
videpoft. make affidavit of what he knew, and would 

anfwer fo that the Court might judge of ir^ 

2uk1 how it was material. 

Pitts, ^d-VTitsv. It was moved -for a new trial* becaufe the 
MichfTo wiu. defendant having pleaded a compofition, had 
3. B. R. forgot to carry down witneflcs to prove the 
^ewtriai for fubfcribcrs hands 5 and the motion was denied, 
omiffion of the bccaufe the debt was honed. And Hole, C. J. 
party rcfufed. |.q;ncnibered where debt on a bond was brought 

againft an heir, who pleaded riens fer dijcenty 

but the verdift went againft him, by omitting. 

' to bring the fcttlemcnt to the trial >. and the 

- •' Court 

t «5 1 

Court being moYC^, jc&fed %o gMW.a new 
trial, becaule it was an honeft debt. 

An inquiry found four yoltintary efirapes, Fordv.Tiiif, 
for which FcrJ, warden of the Fleet, forfeited B*R^s/li^6^3. 
his office : iflues hereupon were tried in B. R^ s.c. FamdL 

at the bar, - 'te'riainot 

One efcape wa6 proved by a witnefs, who g^twiforde. 
was afked if he was ' never burnt in the hand tioaAee?M^ 
for ftealing a tankard; he anfwered. No. A "•"*»*♦*• 

. t ° J i jt • 1 Vide ante 

new tnal was movied for upon producing the 

record of the convidion, and the Courc denied 

the motion, ift, Becaufe it was a trial at bar* 

adl)r, It is no reafon for a new trial, that you, 

for the defendant, came not prepared i and the 

Chief Juftice fatd S^am'^ cafe was a hard caie. 

FUe 3, Kei^. 365, 369. a Lev. 114, eS ^s^^^ 

Pafch, 4 Am, Bf R. t^tween Cogkcroft and 

Smth. That the party's evidence was not 

ready, was held no reafon for a new trial, 

though at niJifriHs i and a new tri^l was di^ 


?<?r Cur\ a new trial o\}gh€ n^t la b©^^ Wi«ei>^^ 
granted for want qf evidence, which the party ^^*«- ^'^' J- 
plight haye had at the trial, and had not ; out 6 Mod. m. 
if it be proved that endeavours have b^iecn ufed*, new*u»H * 
but prevented by fome unforefeea accidcjK, as wantof^yi* 
ftcknefe of the witaefs, Sfc, it me^ be good. *^^*\ 
caufe of new trial. 

Per Cur\ a new tiiai is never graitfed for . JJ- 3 Ann», 

«, ^ r ' 'J L r L inTB. R. 6Mod. 

want or evidence whereot the party was ap- a2». 

prifed, and which fc6 might Kwe hftd at the NiswtHainot 

Tnai^ * of evidence, of 

. . ■ ' • -which the party 

i . ■ . roi^t^have ha4 

G 3 Alt 

price V. ■ "At Guildball coram Raymond^ C.J. 

Brown, Hil. 

i2Geo. istra. Upon payment after the day, and before 

^91. Evidence , . \ I »i^- • - 1 J J t. 

bringing the acnon, it was pleaded to be a 
payment of the principal and all intereft then 
due :•. oil evidence it appeared a grofs (um was 
paid, which upon computation did not amount 
to the full" intereft, but it was fworn that the 
plaintiff accepted it in full. I objcfted that 
they. ought to prove it as they had pleaded; 
biit the Chief Juftice thought it well enough, 
upon which there was a verdift. And the 
jiext term I moved on affidavits of the falfity 
of the defence, and that we did not expefl: 
any defence, and therefore were not ready to 
contradift the fingle witnefs, who fworc to the 
payment of the money. But the Court would 
Nonewtriai grant no new trial, faying it would be of daA- 
whCTc party crerous confcqiience, to fuffer people to be fet- 

might have bad ^ • 1 r i 1 1 

evidence en ting up ncw cvidcncc, alter they knew what 
firft trial. was fwom bcforc. . 

Hichards v. The qucftion was. Whether there are grounds 
f^iT*' Atk*^' enough for a new trial ? ' 

319.' The faft to be tried in the caufe was, 

of granting a Whether Mr. Georze Richards gave the mort- 
a ftggcftion gage m queition to the derendant in equity. 
l^n^Sed Upon the trial, in order to difcredit the 
of a particular cvidcncc of onc B^c^ the moft material wit- 
th^Xe^t;! nefsTor the defendant in equity, the plaintiff 
prepared to give brought a pcrfon to fwear, that this witnefs 
an anfwcr. ^^^ ^j^^ defendant was not in England at the 

time he fwore to the fa£t. 

Several affidavits were read, upon the mq^ 
tion, on behalf of the defendant in equity, to 
prove that Bare was aftuaUy in England^ at the 
time he fwore to the fad. 


c 87 r 

: It was infifted therefore,, by hk cotinfel, 
that the credit of Bere being invalidated, as. 
hath been mentioMd, weighed greatly* with'thc 
Jury, .and was the principal reafon^that inw 
duccd thenn to giv€ the verdict for the plain- 
tiffin equity. 

It was infifted likcwifr, that the defendant 
in equity was not prepared to do any mbre 
than to lupport the general charter Qf hi? 
witnefles, or otherwife coald have -given" the 
fameanfwerte is able to do now, Ifhcshad 
been aware of the objeftion. 

Lord Chancellor.— This is: an. applica- 
tion for a new trial, which connes before the 
Court after a confidcrable length of timej as ' '?" * *'* 
the verdidt was given in November- laft, . 

The ground for the new trial is, that the de- 
fendant in this Court was furprifed with, evi- 
dence he was not aware of, and fo he was not 
prepared to anfwer it. 

A great many objeftions have been made to 
this motion, both upon general and particular 

The firft objeftion. That this is an applica- 
tion for a new trial, after a verdidt found by a 
Ipecial Jury upon a trial at bar. 

I do agree, that formerly lome countenance a diftm^Hoa 
has been (hewn to this objeftion, a diftinftion Syfb^wlen 
taken between trials at bar, and at niji frius, trials at bar, and 
becaufe the latter are fubordinate to the other, fn^heS^fToftS 
and therefore not of fo folcmn a nature. Qpcen and the 

But this point was folemnly confidered upon geffcs ^hc^2 
the cafe of the ^een and the Bailiffs and icy, eleven 
Burgeffes of Bewdleyy i P. IVill. 207, where bned*ctcrmincd 
eleven iudges aeainft the fingle opinion of • ^^^ ^"?^ 

XK ^ ri' ^ c^ 1 r, 77 1 ^ • J 1 oughttobe 

Mr. Juftice J^^hn Powdly determined that a granted, 
new trial ought to be granted. ' ^^^* *"^® ™* 

Ai^othef general ob^edtion was, that it is 

Q 4 contrary. 


edjltrarf lO die rules in courts of eomirtoh 

F(ir it was f^id, they neycr grant & ricw 
trial th^re for want of the acisendancie of wic« 
ocffep, or of ^ party's not being ready, 

The rcafpn is plain, bec^ule the iflbc thcrci 

is barely drawn out upon the fyi,^ which is to 

be tried;^ and it is impoIChle to teil^ whether 

♦ jury found ^ ^rdift upon the merits, or 

\ipon a difcrediting of witneiTes ; and courts 

4t commoA law might fee afide a verdifk nine 

times in ten, if it Ihould be a ground for a 

new trials -that one of the parties was not ap- 

prifed pf the evidence on the other fide. 

. IS? ^"*mj ^^ But thte^ It i; fai(^, and materially toa^ dia« 

here, i^niy " there is z difference between iffues at common 

ijiforw the con- j^^ ^nd iffues direfted by this Court, becaufe 

icicnce of the , . /• • i • ^ i • > i 

Court, and the intcat of U here is pnly to. inform the con- 

tted7w"fthc fcicncc. <rf the Court, and therefore not tied 

fame iirianefs dowH to the fame ftriftnefs and regard for 

of verdias as i^jerdifts as courts of eonlmon law. 

courts of com- , - > r i 

moniaw. But lit the prclcnt cafe, there are nq 

the'^defendapt g^ounds for a ncw trial, the perfon .who 

befoi e the tnai, makes an affidavit oj\ behalf of the defendant 

'Jllmpr'ove'r^ in equity fwcars, that he gave Richards notice 

j^erfontobe a fortnight bcforc th^ trial, that they would 

kdo^'SiJit on the other fide attempt to prove Bere 

out the particiu abifoad, which though it w^s not fo particular 

Mr pbcc where, . {r' i t i 

hdimatnttor 38 to point out th? Very place where they 
tfie d(^i?ndajino vvQuld ftxew him to. bc, yet was fufficient no^ 
^il!^tti\^ tice for Ricburds. to prepare to encounter diis 

^uieniie. ^vidctlce. 

yuie|ja(i,E£. The cafe of the MiQmey^Gowral 'oetfuA 
^'^*\ M^f^^^tnery has been nrientioncd, in which I 

granted a new trial, but upon very diflfercnt 
ve^fofi^ from the prefent. 

I was then ^ware of the inconTenience 
flhv^h might arife from granting new trials, 


yjpdn the difcovcry of new evidence reladhg 
to the fai«c fad ; but what I placed the chief 
weight upon Wsl$, that the evidence there was 
iti the harnds of the relators themfelves, and 
there was no kind of danger of perjury, and 
therefore can be no precedent in the prefent 

There is another reafon that weighs with 
nie, that the new tfial is prayed ort- behalf of if there is evi-. 
the plaintifF at law, and if it had been better ^'^^.t *pg^^ 
made out, I fhould not have inclined to grant* of, he may fuf- 
it, becaufe it was in his power to have been ^^^J^oTblscom^ 
iionfuiteds for if his counfel had been of opi- ingback to this 
nion that there was evidence that they were h3ve%de'J^"^*^ 
not apprifcd of, and too ftrong for them to anotucr iiiue at 
encounter, they might have advifed him to ftllid^nsThe^" 
fufibr a nonfuit, and then he might have come nonf^it. 
back to this Court for new direftions, who 
Woukl have ordered another iflue at law not- 
withftanding the nonluir. 

Upon the whole, there are no grounds for 
a new trial, and of extreme dangerous confe- 
qucnce, to grant it merely upon a fuggcftion, 
that the party was not apprifcd of this evi- 
dence, ^nd therefore was not prepared to give 
an aniwer, 

A motion was made for anew trial: the stacev.Mab. 
queition was as to the forgery of a certain 1754^ 2 v^zey 
paper, relative to the cftate qf Captain Gir- 55^- "^riai. 

Againft it, it was faid, Juftice FdJIeTy , who New trial 
tried the iflues, had certified, that he was fa- 2^""^"*'7 *^^^' 
tisfied with the verdift ; and two cafes were the amfdcnce 
cited: the firft, an aftion of trover broug-ht of the court 

^ 111- f I ^ was not ravished » 

anfibng fcveral dther things for an ewef, where- although the 
in evidence was given, that thofe particular /„ ff^VuTof th© 
goads were 4clive^ed to one, who took them venhti, aiui 

" info ^'^^^J"® i^ wouW 

C 90 J 

not be ^rnntea iHto lus cuftody> "was anfwerable for, and dH 
whicSr^ae? "^^ deliver them. A motion :was. made for a 
and will not ' new trial i for that looking into Mr. Deard^s 
ducc*n^,"o?^° books it was found, there were twQ ewers: 
.^niwcrs to, evi- whcrcas upoH thc material evidence, on which 
^^' the converfion was fowd, it, was one ewer 

only : but that was denied, for the Court faid> 
the parties might have introduced this evi- 
. dence before. The other, Walker v. Scot^ 
B. ft. HiL 1749-50 i which was an aftion for 
criminal con verfation, and a motion for a new 
trial on evidence, that the plaintiflf was mar- 
ried to another, and therefore was not huA)aad 
to the woman, and could not maintain* 
tjon ; and that the evidence given was infa- 
nious : but this was denied, becaufe it would 
be dangerous, if the Court was to permit the 
credit of evidence to be impeached by fubl^- 
quent evidence, which was. in the party's 
power before : and the fa6l of marriage might 
have been gon,e into before. 

J^orfi ^HANCELLOR.r-T-If thj^ had been an 

appliicafipn fpr a n.e>y trial i/i a court of com- 

tnon law> in the ordinary courfe of proceed* 

ings there ; J beiieve ip is not iiich a cafe^ that 

it would be granted ; for they hold ?hefe WQrr 

tions for new trials by pretty ftrift rules. 

New triais^f THcy havc been a modern introdu&ionj and 

riSifoiV"m"to by ^^^ difcretion of the courts introduced, io 

avoia Afficuities order to avoi4 tt|e di(fiqjjUies pf defeating ver- 

GraS'here in ^^^^ by attaint, in which it was difficult to 

caiuoj inherit- prevail. But howcvcr, on motion^ for hew 

iue,^°/>^hc7e trmls at law the rule is, that if a yerdia: is 

the Court was mven on evidence fairly, according to pro- 

not fatisfied, ^ . J .U T i J ' 

nartirniariy on p^r noucc, and the Judge does npt report, 
fargeiy that he is diffatisfied with it, or that it wa§ 

againft evidence ; the Court will not grant it, 
in order to. introduce, jnew evidence or new 


t 9t 1 

anf^ers to evidence ; foi- the parties are fup^* 
pofed to come prepared to fiipport the cha-^ 
fafters of the witneifes on either fi4e, which 
is always prefumed, and is right for courts of 
law to adhere to that s otherwife it would be 
endlels. But this Court direfts ifTues to be 
tried at law to. inform the confciejice of the 
Court as to h&s doubtful before ; and there- 
fore experts in return fuch a verdidt and on 
fuch a cafe, as fhall fatisfy the confcience of 
the Court to found a decree upon ; if there- 
fore upon any material and weighty reafon, 
the verdift is. not fuch as to fatisfy the Court 
to found a decree upon, there are feveral 
cafes, in which this Court has dirc6ted a new 
trial for further fatisfaftion, notwithftanding it 
would not be granted, if in a court of common 
law ; becaufe it is diverjo intuitu^ and becaufc 
the Court proceeds on different grounds. 
. This is known to be the ordinary rule^of 
this Court, where a matter of inheritance is in 
queftion ; for the Court fays, an inheritance is 
not to be bound by one verdift, if any fort of 
pbjc6tion arifes to the trial ; and that notwith- 
ftanding the objeftipn of inconvenience in ex- 
amining over and over, which objeftion has 
not prevailed. This extends alfo to a perfonal 
demand, where of confiderable value, and 
where the Court is not fatisfied with the 
grounds, on which the determination was made 
at law, and when an objeftion is made and 
fupported by proof j and (particularly in a cafe 
of forgery^ new trials have been granted, and 
that by judges who have fat here, who have 
been as reluftant as any, and who inclined to 
adhere to the rules of common law. I re- 
member a cafe in Lord Kin^^ time relating to 
a rent charge, granted out of the eftate of 


r » 

[ 9» ] 

Mr- Hsckmcre, m Dtvonjhire. It had been 
twice or thrice tried at common law, tried up©a 
diftrefs taken on the rent charge, and an 
avowry, and where the queftion was fingly 
whether it was a forgery or not, and upon aU 
thofe trials verdift was found for the de«!. 
■ A bill was, notwithftandijig, brought her* 
to fet it afide for forgery i and Lord King fent 
Jt to trial under an Ifllie direftcd by the Courtt 
and, J believe, there was a new trial after that; 
and notwithftanding all thole verdifts. Lord 
King made a decree to have it brought into 
Court and cancelled here, the former trials not 
being to the fatisfaftion of the Court. Un- 
doubtedly therefore it Is in the difcretion of 
the Court to grant new trials, if they tliink fit, 
if there is a ground for it upon the dircum- 
ftances here; and the queftion is, Whethef 
there is fo or not ? I own, t had very great 
fufpicion, when it was on before me upon ex- 
ceptions ; however I did not think fit to deter- 
mine it, but fent it to a Jiiry. The Judge 
has declared, he is well fatisfied with the vci-- 
dift; and if nothing appeared to me, but what 
appeared to him thereon, I think, I fliould 
have been of the fame opinion with him. My 
opinion, therefore, in granting a new trial i$ 
grounded upon new evidence, which was not 
before the Jury there, and which is material, 
I'cannot fay, that my confcjence is fatisfied as 
to the grounds and truth of the evidence, upon 
which this verdift is given. I proceed there-. 
fore upon the principles of this Court in di- 
recting trials, and not to break in upon the 
rules wiich are wifely.laid down by courts of 
jdw, as to'granting ne^vtrials j and ihall there- 
fore direS another trial'-wpohthtfeiffijes': but 
it iHofi'be^ri payawnt-oP-ccfc. ' 


C 95 1 

Aflbenpfit \ipon a pcomiffory note; de- cookev.scrnr. 
fendanc pleaded that the plaintiff accepted pf J'^^^i^ 
fome chefts of tea in fatisfadlion, upon which . i Wiifo'n, 9S. 
iffue was joined, and there tvas a verdi<S: for ^^^"^^^l J^J 
the defendant i it wa$ now moved on behalf of want ©f cvi- 
the plaintiff by Sir John Strarjge and Mr. ^^^^^ l^lf' 
Crovrh for a new icial, upon an affidavit that been produced 
the plaintiff took this to be a fham plea, ancj ^ '^ ''***' 
that he had a letter under the defendant's 
own hand, wherein it appears the defepdaTit 
had diipofed of the tea to another perfon, and 
wherein the defendant fay? he will pay the 
plaintiff his tnoney due upon the not^ ; which 
letter the j^intiffdid not produce at the trial, 
ftinkii^ the plea was a fham, and that the 
defendant coujd not poflibly prove it. 

But per Curiam, new trials are never gra-nted 
i^n the'motion of a party, where it appears 
he m^t have produced and given material 
evidence at the triSl, if it had not bee^i his 
own default, becaufe it would tend to intro- 
duce pejTJury, and there would never be an 
cnd<rf caufes if once a door was opened to 

Stippofc in a /cire facias upon a judgment . i« » ^^^ fe- 
die defendant has a. releafe, he. is fummoned, mSitrthVdil^* 
aadhasian opportunity of pleading it, and does ^^^^^^^ ^"^^a 
not, he fhail never have an audita querela s mits to pieaoTt, 
this is a very ftrong cafe at bar, for tFic plain- Jg^^J) l^^^^ 
tiff has notice of the defence of the defendant querela, 
in his plea, and ought to have ^me prepared 
to faifify it at the trial. 

And Dennifon^ J > ■ ■ faid he remembered a ^^^^ *^[« 
cafe of a horfc plea, where the defendant plcadr Et wlircn & 
cd lie gave the plaintiff a horfc in fetisfeftiop. f^wing.' ^^^ 
Plainiiff looted upon it as a horfc (or flwrn) 
plea indeed, but the defendant, *t the trial 
' proved k a true plea. Rule to ^(hftw a^ufe wh^ 

/ there 

f ^4 I 

thefe (hould not be a new trial was dif^ 

Korris v. Debt upoft a bond j defendant pleaded a 

Freeman. oreneral relcafc ; plaintiff replied non efi faSum. 

ioGeo.3 c.B. thereupon mne was joined j the cauie was tncd 

3Wiuf.38. at the laft affizes for the county oi tForceJler^ 

A. 4iew tn dl ^ t^ * 

grantea, aitho' before the Lord Chief Baron Parker^ when a 
tiiere was evi- ycrdift was fourid for the defendant. Serjeant 

dence on both. ^- , - . , ^^. 

fides, becaufe iViir^j mov^ed for a new ttiai, upon an affidavit 

fUbfcribin"^ ^^^^ ^^^y ^^^^S <^ircunnftances of forgery and 
reieafe, were peijury appcafed tipon the trial, whereupon 
^rSuei &c. ^^^ Court made a rule to fhew caufe. The 

Chief Baron reported, that at the trial the de- 
fendant produced a general reieafe, fbppofed 
to be executed by the plaintiff the loth of O^- 
lo^er 1768, to yrhich J^lierf and G^^appeared 
to be fubfcribing witneffes. Albert was called, 
and fwore that in O Sober 1768, he was fent 
for, to go to the plaintiffs houfe to be a wit- 
nefi; that he went thither, and there faw the 
plaintiff feal and deliver the reieafe produced 
\x\ evidence,- and alfo faw the defendant exe- 
cute another general reieafe to the plaintiff, 
(that the other fubfcribing witnefs was a poor 
- labouring man, but- he was not called to prove 
. the reieafe) ; that this was done about one 
o'clock that day, at the plaintifFs houfc,. which 
IS about thirty miles diftant from JVorceJier. 
- . John Webb^ a clergyman, and Jojefh Coilivs, 
were called for the plaintiff, who fwore tftey 
had often feen the plaintiffwrite, and that the 
plaintiff's name fubfcribed to the rcleale, :was 
not of his hand- writing, as they believed; and 
* .^ that on the loth and nth of O Sober y the 

plaintiff and witneffes were at IForcefier.zSL 
day; it was the mayor's ' feaft-day. Then 
Thomas Homer vfSLS called, (for plaintiff, who 
^ ^ ^ fwore 

% 9S 1 

iiVpFC'ke heard die defendant fay, be wbuld 
let judgment go by default in this caufe, and 
file a bill in Chancery againft the plaintifiF for 
an ^cQunt, and did Jiot* pretend he had any 
releaie from the plaintiff*. It alfo . appseared, 
that the declaration in this c£^a& wasof ?Wi{f/)r 
term* 1768, and that the releaie was not plead- 
ed until Trinity term laft- In reply, the de- 
fendant called feyeral witnefles, who fwore 
they believed the name fublicribed to the re- 
leaie produced, to be the plaintiffs hand- 
writing; upon fumming up die evidence, the 
Chief Baron acquainted the Jury, that he 
thought the, ilrength of the evidence was with 
the plaintiff, but they found a verdidb for the 

Serjeant Davy, for the defendant againft a 
new trial, infifted, that there never was a new 
trial gnwited, fingly> upon a Judge's report- 
iag, that the ftrcngth of the evidence was on 
the iide 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 altliongh it is fworn (by the witneffes for . 
the plaintiif ) that the plaintiff and the witneffes 
tothercleafe wcr^ ,zt . ff^orcejier on the. loth 
and iiihofOilGi^er 1768, yet the witncfs .-^Z- 
^^r/ did nox fwear, i^at the. releafe was exe- 
cucedron the day it bears date, it might be 
drawn and .written^.tjnthe loth,, and not exe- 
cuted .till ibme days after $; the aliii, only goes 
;:o fidfify its being executed lon the loth; the 
Chief. B^ron hath not^rcported, that the verdict 
is. contrary to evidence. . Stajeant Narss. was 
ab(Hit:lo reply, when: die Co«art> without .hear^ 
iag:hi^ w^^ofapimf>n>.there ought a 
inSw tnai*' ^ . »• . ♦.-,,.. i' . . 

t Curia. 

r ' 
• « 


There are , ^ Curia4 Xhcre are tnan^ cale$ \«4iefe tkl! 

cou'rtw^iu^^^^^^ Cojurt will, grant new triaU, noiwithfl»iiding 
a new trial, thcrc.was efrldcnce on bo^iidcsy as Mrhere && 
chern^s evi- thc light iiAch tiot bceiii/di^iir at die ttiai vrkiKk 
dence given on ^ght and ought to have been ; we thittk tte 
^ other /ubibribkigM mtneis Geff ought to iutve 
been called .and exatnined «o the execiiCioiiHoC 
the rekafe> and he not having been caliedy^^aflT 
think it would be hard the phiotiff IbouliAk^ 
bound by this verdift, efpecially as the i^lpifif 
is jaot in the power of the plaini^ify. ttn^ 6^t 
cannot prefer an indi6tment for forgery,.. ^51*C^ 
Lord Chief Juftue faid, he thought the #vi^^ 
dence.was very iitrong on the part of 4^- |plaiti« 
tiff, and that if the caufe bad been.(triied>b^fil( 
him, he would (under the circum£kaaGi»^ Ap-: 
pearing) have c^^d out for G^the osheiprubA^ 
fcribing^ whnefs^ and if be had niDt btert pM«* 
duccd, heihooald have thought it. a very ^long^ 
cafe for the plaintiff, and direfted the Jiiry-Cd^ 
have found a verdid for him* A new trial was 

dift V. Mafon Cafe for money had and receivedj to -recover 
-6 g''^^^'^ R ^^^ pnmtunts upon certain policies of infuil»nce 
i)iH nford and Underwritten by the plaintiff. This was tntd 

^ wherl'a^ti- ^^^^ ^^T^ Mansfieldy at ishe fifiungMifter laft • 
Ticy does not ap. Mtchoehnos term as GiiUdhalPy 'W^n-diie'fol^ 
ofit^Tbcm^ ^<^wing faas appeared. Thw the defeiNkmt 
gal, the Court wete JVefi India merchants/ and had ftCfim:f * 
Tnevv^'tn-aNin ^^ the= iflanda captuHsd by tfee Fnnchh^ w.* 
order tu let the That it wasa^ convnon practice to ^upjpil^ the^ • 
proo"that\r>^^^ iflandg wichprovifiows ftomlr-Handf n^tijiA*. 
fo : but he ftafidiog .they were in the liands-of ^ ett|f)oyH 
ihewni^ontbe (faot tfao ^defendsMSi who^nAed as* their ^R. 
tl^hi ^iTh^an ^^^«^s,.ifead for .thUi>poif<>fe"^a»plof#jBt©j|ii*.- 
cneronsiiieg"^ tral vcffcls, and had caufed them to bii'4iA<|er<^ 
inafubjcaj - written" 

[ 97 3 

Wt-itt^ri by the plaintiff from different ports In 
the Continent to Ireland, thence to Madeira 
and St. Thomas ; and to all q£ them was an- 
nexed the liberty of ping t9 a$^ of the captured 

It had been long doubted whether thefc po*- 
licks were legal : but in the cafe of the Bella 
JudiM>a (a), whereon a fimilar policy was ef- (») 
lefted^ the Court were of opinion that the af- Mo^t tTuxjviich. 
furad could not recover. *5 g. 3. 

The |daimiffi in confequence of the above cafe the coui t*^ 
decifion^ had refufed to pay where there had ^®5=;^«^^ p^'"*^'- 

a 1I#kS« ground of an 

Tlic defendant's cbunfcl at the trial contend- ^"^^^ars" h^vinj 

Ml 1 1 been laid on 

ed, that as tnefe vt^ages were illegal, and as provirionsin 
both the parties were in pari deliElOy the maxim ^"^^^^^^ 
of law meiior eft conditio pojjidentis ought to 
prevail \ but Lord Mansfield^ being of opinion, 
that thefe policies were not illegal on the face 
of them, direfted a verdift for the plaintiff. 

Bearcrcft now moved for a new trial to let 
the defendants into evidence to prove, that 
this kind of trading was fo notorioufly illegal^ 
that the plaintiff muft have known it to be fo j 
that the reafon why this evidence was not of- 
fered at the trial, was founded on a prefump- 
tion that the jury of their own knowledge muft 
have concluded, that the illegality of thefe 
centrals was known to the parties at the time 
of making them. 

Lord MANSFiEiiD, C*. J. — This, upon the 
face of iti is the cafe of a neutral veffel. It is 
no where laid down that policies on neutral 
propcrtyi though bound to an enemy's port, 
arft voidy And indeed I know no cafes that 
prohibit even a («bje6t trading with the enemy, 
except two; one of which ?§* a*fhort note" in 
RiUL Abr. (b), where trading with Scotland, *(b) 

Vol. III. H ^h^^ .Koj1.Abr.173, 

[ 98 ] 

then in a general ftate of enmity with this 
kingdom, was held to be illegal; and the 
other was a note (which is now burned) which 
was given mp by Lord Hardwkkey of a refer- 
ence in King fFtlliam'% time to all the Judges, 
whether it was .a crime at die common law to 
carry corn to the enemy in time of war ; who 
were of opinion that it was a mifdemeanor. 

By the maritime law, trading with an enemy, 
.is caufe of confifcation in a fiibjedt, provided 
he is taken in the aft j but this does not extend 
to a neutral veffel. 

AsHHURST, J. — The defendant makes this 
application to the Court in order to fupply his 
own negligence, when it is evident he was not 
taken by furprife at the trial. If it does not 
appear on the face of the policy that it is void, 
it ought to bave been fhewn by evidence j but 
no fuch evidence was offered. 

BuLLER, J. — As to the illegality of the con- 
traft being within the knowledge of both par- 
ties, fuch a faft is not to be taken for granted : 
what paffes between two parties can never be 
fuch a matter of notoriety as fliould be left to a 
jury to prefume. 

Rule refufed. 


t 99 ] 

IX. Moi^tx ipattergteijpeding 
nei» Itmis, &c. 

(9.) VerdiB wro7tg delivered by the 
iBoreman amended. 

O.N a morion (made the i8ih inftant) to 
Jet afide a verdiSt, as being given in by denS ano!^' 
the foreman^ contrary ro the opinion and ^^«'*- t. 30 and 
intention of eight of the Jury — It appeared rBurr.3^83. 
that the defendant ivrftified under a riffht of a , Thurfday2 3d 

i . i-i ^ Tunc 17 s** 

way, over the plaintiflF's ground, to two clofei veniia'deii. 
of the .defendant's, viz. Broadfncor md Three- foreign nm- 
Acres7 upon which, two different ifftas were trarytothc 
joined 5 viz. one upon Ac right of ^ way °entt°^^^^^^^^^^ 
5^ Broadmoor I the other, upon the right of a ofthcj«ry. 
way to! the three- Acres. And, the foreman j,;?J'^L'e affi. 
gave in the verdift as a general verdift for the davit that it was 
defendant, upon both iffues- But eight of the [Il^wiSc'ir^ 
Jury made affidavit " That it was the mean- the jury to find 

,, 1 /• I fv othcrwife than 

" iNG and INTENTION of trie whole Jury to the vcrdia Ue- 
" find the former iffue for the defendant ; and Uvcred. 
'^ the LATTER for the plaintiff: and that 
this miftake was difcovered by them, an 
hour afterwards \ but not rill the Judge 
WAS GONE to his lodgings." And upon 
the Judge's report it appeared that, though 
there was indeed evidence on both ficjes, yet 
the weight oli the evidence was (as it appeared 
to him) on the fide of the plaintiff, as to thi$ 
latter iifue. 

H ^ N. B. 


[r IOC ] 

K. B. The foreman had declined making 
any affidavit; becaufe, he faid, he (hould 
make himfelf appear a fool, to the Court of 
King's Bench. 

This matter .was much litigated by the 
counftl on. both fides. The counfel for the 
plaintiff mentioned the cafe of Baker v. 
Miles y in C. B. in Af. 4 Geo. 2. B. R. S. P. 
where eleven of the jurymen fwore " That 
'^ the foreman had miftaken their vcrdiftj** 
and it was thereupon fet afide. 

The Court were all clear that this was a 
mijiakej arifing from the Jury's being unac- 
quainted with bufinefs of this nature; and 
from the AfTociate's omiffion in not afking the 
Jury particularly " how they found each re^ 
" fpeBive ifTue," and in not making the Jury 
&lly underftand their own finding ; and that it 
was agreeable to right and juftice, that the 
^ifiake Jhtntld be rectified- 

And they had no doubt about the faS of 
this miftake; from the affidavit of the eight 
jurymen, cowfirmtd (as they held it in efFc6t to 
be) by the foreman's declining to make any 
affidavit at all; efpecially, ais the Judge's 
-note^ fhewed the weight of ^t evidence to have 
been for the plaintiff, as to this latter ifTue. 

And Lord Mansfield and Mr. Juftice 
Den I SON thought that as it was a mere Jlip, 
there might htfome method of rectifyino 
the verdi£f according to the truth of the cafe ; 
from the Judge's notes, if they were fufficiently 
particular; v/it hovt fendivg the ilTue to be 
tried over again, at a great expence. 
vi4«4?oftix. And the cafe of Newcombe v. Green^ in 
^^^'^ 1 Strange 1 1 97, was mentioned ; where the 

jioftea was amended by the Judge's notes. And 
Lord Mansfield faid, that at kaft .they could 


• • • 

fet afidc the verdift without cofts. But diffi- 
culties occurring how the cofts would be, ia 
fiich a cafe; 2i%one iflue was ftill found for, 
and was in truth clearly for the defendant* 
Therefore Cur advis\ 

And now Lord MansfielPj feeing* Mr, 
Idortm in Court, who was concerned for the 
plaintiff, and had (on his behalf) moved to 
SET ASIDE the vcrdift, took occafion to menr 
tion this cafe 5 and faid they had thought of itj 
and he had talked with his brother fnimat* •[whofeor- 
too, about it :- but however, he was not now ^^'^^n engage. 

. . I ^ ments were 

going to give any opinion i but only to fron now in the 
pefe what fecnKd to him the moft proper me^ ^^^^ ^"^^-^ 
thod of coming at it. 

The cafe of Newcombe v. Green, itfclf, is 
not applicable to this cafe : but there is ano- 
ther cafcj of Mayo v. Archer, in i Strange 
514, 515, where the queftion was, " Whether 
*' a farmer who bought and fold potatoes 
" could be a bankrupt :" and the fpecial ver- 
dift did not fet forth the quantities he had 
bought and fold 5 though they were f roved at 
the trial. The Court did not there award a 
yenire facias de novo ; but amended the fpecial 
verdid, in that refpeft ; which cafe is more 
applicable to the prefent cafe, than that which 
was cited ; for here they ordered the fpecial 
verdift to be amended : though the plaintiff's 
motion was only " that a Venire facias de novo 
" might be awarded," 

But another cafe has been mentioned to me, 
which is applicable to the principle of this 
cafe; though not like the particular faft. It 
is that of Dayrell v. Bridge, 2r. aa G. 2. 
fi. R. trefpafs for cutting down an oak-tree—' 
the defendant pleaded feveral pleas j one of 
which WJ|s, " Not guilty.''' At the trial, a ge- 

H 3 neral 

neral vcrdift was taken down, and to entered ; 
and x^c Court reHiJied the verdiSy by expung- 
ing the finding on all but the " Not gyiky :" 
. It appearing that nothing was in queftion 
(at the trial) but "whether th^ place where 
*- the tree ftpod, was parcel of the nuanor, or 
*' not." In the cafe of Newcomb v. Greeny 
• None are feveral cafes * were cited on the fame fub- 
s'rSpa'- ic<a : th.ough the cafe it/ilfxi not th? prefent 

- ir97. But Cro. Cafc. 

v'sbypp.^^'"' If ^he Court fets the matter right, they'.k. 5:3. Ihould proceed according to the whole truth of 
fcil^^F^rv. the cafe. The Judge who tried th? caufe 
HtVder, in LU- agrees to the fadt difclofed in the affidavit of 
rime? were ^hc eight jurymcn : whereas your firft affida- 
citcU. yit^ on which the rule was nfiade, was an affi- 

davit of only four of them. 

Therefore what I wou^l propofe is, that you 
fliould make your motion, and have a rule to 
fhew caufe, why, upon reading the affidavits 
of thcfe eight jurymen, the verdift Ihould not 
be AMiNDED and set KiauT, according to the 
truth of the finding. 

Note. — 'Such a motion was afterwards 
made; and a rule to " fhew caufe" granted. 
But it never came before the Court ^y more : 
it plainly appearing that the Court, upon de- 
liberation among themfelves, had come^ to an 
opinion *^ that in this fliapc the verdidl might 
' '' be fet right." 


C 103 1 

IX. Motljer fl©atters:refpe(tln3 
netD Xrtal^, &c. 

(10.) Of amending the Pofea. 

A Writ of error was brought to reverfc a poynes ▼. 
judgment given in the Common Pleas i-^anci?, h. 
in an aftion of trefpafs, and the error aiTigned \jtXi^^lx, "It! 
was, that in the poftea there is no affjciacion ^^'y'^^I'I^]: 
to the juftice of aflize expreflVd, as ought to verfc a imir.- 
bc. Roll Chief Juftice anfwered, this is the ^X '"'^J''^'^ 
fault of the clerk of the AfTize : therefore let to the yvnige. 
him attend and fljem caufe why the foftea. Jhall An^endmcat. 
not be amended. 

This caufe was tried at niji prius before the wiiiiam? 
Lord Chief Juftice, and a verdia taken by "^^^^JZuV., 
miftake of the affociate generally for the plain- 8 Geo. 2. Barnes 
tifFagainft both defendants, inftead of finding ^' a verdict 
the defendant Edward Jones not guilty ; as to taken generally 
the other defendant, verdid: was found for the ng,i^ft^tv^^o i'c- 
plaintifF, damages /. 200. , Plaintiff moved fendanrs, when 

*, , ^ r y n <v one of them 

that the return or the foftea^ as to jones^ niouidhavc 
might be amended, which was ordered on the ^^"^^ ncquittcu. 
Chief Juftice's report, and hearing counfel on 
both fides. The return of the pftea is the aft 
of the Chief Juftice, and muft be made as it 
ought to be : it was urged by defendant's 
counfel, that the verdift as to the other de- 
fendant, was contrary to evidence; but be 
that fo or not, the verdift being right in part, 

H 4 cannot 

t 104 1 

Viae poll IX. cannot be fet afidc. DantaU and Wrighp for 
<'4:) defendants \ Eyre for. plaintiff. 

Hankey, Rule to lh€\y caufe why thtp§/iea {kiovkld 

weiu&c.Igianft not be amendeUi by returning tSe. verdift on 
Smith. H. 15 f^ixt /i&/r^ inftead of thejfry? count, according to 
4/^ * * the finding of the Jury, was made abfolute, 

Iaez"h^Tt^^ upon the report of Mr. Baron 'Carter^ before 
turoingthever- whoHi the caufc was tried. It was ordered, 

•iliftead l!f fne ' "^ ^^^ ^^ affociatc do amend the popa in Court 5 
firft count. that defendant have four d^ys .aft?i^- the 

amendment to move in arreft of judgment ; 

and th^t plaintiff do pay defendant cofks of 

this application^ Prim^ for plaimiffi BoofJe 

for defendant, 

Ncwcombcv. In covcnant the breach was afligned in 

f.Ts^J-^iiS' non-payment of £. 270 mortgage -money, 

Poftea^mehd- j^nd.on the trial the Jury gave a vcrdid for 

^otcl''*"'"^** jC-274- ii'J'- damages ;. and Mr. Jv:i1ice 5//r- 

ne^ entered it fo in his minutes, 'o'^^i the clqrk 
o(nt/i prius had only marked 1 jr. damages ot^ 
the dijiringas. 

The Ciurt was now moved, (o alter the 
indorfement, by making it agreeable, to the 
Judge's notes^ And Mr. Juftice Denifon hav^ 
jng conferred with him^ and reporting the 
matter to be as above ftatcd, the Court or-» 
dered it to be amended accordingly. 
' ' ' • . Vid^ Auger and IVilkimy poji IX. (19.) 

Eddowcs and jljjumpfit tried before Lord Mansfield^ at 
HorkTns'fnd -^ Gmidhall, at the fittings after laft Michaelmas 
another, cxecu- term. The declaration contained feveral 
R.^othG.^"!' counts; fome upon promifes made by the 
BK.D0vg.361. teftator, others on other promifes by the de- 
is a seuc!a\ vcr- fcndants themftlves. To the firft fet of counts 


flene adminiftravit was pleaded, and the gene- diftona^ecU. 
ral iflue to the others; and the Jury having ration confiH- 
found for the plaintiffs with {^. 1^17 damages, iounts,foiw5 
a gene)ral vcrdift ivas e^nttrW' by the officer; ^^^ftem w^ 

At. the trial, the only 'qiieftion ^Hras, Whether bad in point of 
the plaintiffs were entitled to intereft on the If^nce^fils^OTi 
value of goods fold by them to the teftator ? been given oa 
They were wholefale linen drapers, and the {J^ft^^^'cou^^^^^ 
teftatbr an Amertcatt merchant, and it appeared the xerdia miif 
to have been the ufage of the American trade, [S^ej^g^ ^ 
fbr merchants here to allow their American notes, 
correlpondents twelve months credit, and* then 
to charge them five fer cent, for ihtereft, and 
for the tradefmen here, to allow the merchants 
fourteen months credit, and then to charge 
five fer cent. This was hardly dilputed by 
tiie defendants, and his Lordfhip held, tnat 
t-hough, by the common law, ,book dcfbts da 
not of courfe carry intereft, it may be payable' 
in confecjuence of the ufage of particular 
branches of trade 5 or of a fpecial agreement ; 
or, in cafes of long delay under A^exancius and 
oppreflive circumftances, if a jury in their dif- 
cretion (hall think f?t to allow itV Biit 'none 
of the articles for which' the teftator was in- 
debted to the plaintiffs had been delivered 
faUf-teen mcnths before his death y fo that no in- 
tereft was owing when he died, and the de- 
fendants contended that the ufage did not 
bind the executors. Lord Mansfield^ however, 
and the Jury, thought otherwife. 

In the lafl term, the Solicitor-General oh- 
tained a rule to fhew caufe why the judgment' 
Ihould not be arretted, on the ground that the 
verdiftw^s general, and the counts inconfift-* 
^ht, and fuch as require different judgments to 
be entered, ;:;/2. judgment de bonis tejlatoris 
on thofe where the promifes were laid to be by 


[ xo6 3 

the teftatorj and* de bonis propriis on the odiers. 
-f- Some time afterwards, Baldwin, for the 
plaintiffs, obtained a crofs rule for the de- 
fendants to fhew caufe why the pofisa ihould 
not be amended by the judge's minutes, and 
a verdift entered for the plaintiflS, only on 
the counts to which the evidence given at the 
trial applied, and for the defendants on the 
others. — Both thefe rules came on to be ar- 
gued this day. . 

The Solicitor-General, for the defendants, in- 
filled, that, if the Court were to alter the 
poftea, they would, in fadfc, do what was pro- 
perly and exclufively the province of the Jury, 
for that the verdift would then be the ail of 
the Court. 

Lee, for the plain tiflfs, contended, that this 

was not a new fort of application^ and eked a 

V. ante. cafe of Newcombe v. Green, in Strange, where 

it appeared by the judge's minutes that the 

(a) jury had found for the plaintiff with ^. 274. 

Arche^rl^BfRr ^ ^ •^' damages, but the officer only entered a 

E. 8 Geo. I. vcrdi(5l with u. damages, and the court di- 

whcre^a Venire rcfted an amendment to be made according to 

de novo was the judgc's minutcs (a.) 

MTIffidavk^ Lord Mansfield * faid it was impolTible to 

whiciTthc^ believe there was fuch an abfurdity in the law, 

thought mate- as that a mere miftake of the officer fkould be 

"f *J! **"L7J***^5 without a remedy, and that neither the iuderc 

were notfound, , . ' ' »> o 

inthefpeciai nor jury could poinbly have proceeded on 

prov^'aTtC '^^^^ ^^^^ ^^ ^^ evidence of before thenn : 
trial ; but the and hc mentioned a cafe of one Gibfon, who 
the^crdiiftt^be ^^ ^cen tried for robbing Mr. Francis, and 
amended in that convi&ed, and a miftake being difcovered in 
'^^•'vkieaifo the verdift, upon confultation with all the 
Bois V. Bois. judges at his chambers, it was correfted from 
». I Lev. 134. ' minutes figned by the jury, and the prifoner 



C to7 ] 

BviLBH J Jujiicet faid there was this dif- 
ttndbion^ that if there was only evidence at the 
trial upon fuch of the counts as were gpod and 
confiftentj a general verdid might be altered 
from the notes of the judge, and entered only 
on thofc counts, but that if there was any evi- 
dence which applied to the other bad or in- 
cpnfifteiit cpunts . (a& for inflance in an aftioa 
for words, where fome aftionable words arc 
laid, and fome not a&ionable, and evidence 
given of both fets of words, and a general 
verdift) there the pojtea could not be amended, 
becaufe it would be impoflible for' the judge 
to fay, on which of the counts the jwy had 
found the damages, or how they had appor- 
tioned them •: that, in fuch a cafe, the only 00 
remedy is by awarding a Venire de novo (b.) v. wuidl^f*' 

He meotioned an inftance where Sir Fletcher ^^^ ^ ^2;' 
Norton had moved for and pbtained a Fenire was done, aod 
di novo in a cafe of that fort (c.) SiS^to^ 

The rule to arreft the judgment was dif- ancient mie o£ 
charged, and the other rule made abfolutej ^"^(c) 
but on the payment of cofls, including thofe Grant v. Aiiie. 
of the motion, in arrcft of judgment. vite'ix.*^i9.) 


E ^^ 1 


(i I . ) IVot granted in penat ABjqnSy 
where the VerdiB is for the De-^ 


&jrnwiir,Bart. fk CTION for a pcnaltv in killing an hare* 

qoi tam y. Day. . /-% ^i • ii*c' * * ^j 

r5tni.899. /JL not being qualified, 
wa^'^i^^f '^^^ J"^ found for the defendant, contrary 
w-\^jiiapro" to the direflion of the Judge: but the Court 
*(!:. , refofed a new trial, faying it fiad n^^ bcea 

TTiis on the • i /• /• '^v ^ • 

same uw. cameu larar as a penal achon. 

Fkch who as • This was an a£kion brought on one of the 
rJ^M-^ penal ftatutes madi to preferve the;gsrm¥J 
«. 2. Barnes^ wherein defendant obtained a veTdi6t;'|»laJh^- 
^vcr«iia ibr tiff moved for a new trial, and the Jttdgc'be* 
Men^it». fore whoni the caufe was tried, reported the 
« th/xai»r^ verdi6l to be contrary to evidence, Notwith--^ 
I^JfeS'vidll** ft^nding which, the rule to Ihew cauft why a 
ante IX. (4.) ricw trial fhould not be had, on payment of 
SwDccaufic, cofts, was difchargedi becaufe no inftahce 

could be fliewn wherein an aftion on a penal 
ilatute, in which a verdift was found for de- 
fendant, a new trial had ever been granted, 
Willes and Agar for plaintiff; Wynne for de- 

Mattifon qui An aftion was brought upon the late fta- 
SI?. M.19 gJi. tutc againft horfe-racing for the penalty 5 and 
a stra. 1238. xkit Jurv found a verdicb for the defendant, 

6 contrary 

C 109 -] 

contrary to plain evidence; and the Court ^cw trial 
denied a new trial, there being no proof of where not 
any miflbehaviour in the defendant, or tarn- ^""Jruiafo^ 

PflAi^Wlt^'ttftJlit* - And 'Jllil , WJIS mthin defendant a- 

the reafon of ca{e^ jn.tIiC.E^;ijicquer where ondfeft^tT* 
verdifts for defendants are' never fet afide for againfthorfe- 
penalties in the cafe of duties ; and this is ex- [o be f« tfilic. 
cepted out of the ftatute of Jeofails, as much I'.Rayra.ej. 
as indictrncnts. v. poA. 

^ tarn upon the game aft for killing a jcrvois qoi 

hare, verdift for defendant; motion for a new ^»^^'-^- i^^^e* 

trial, becaufe the Judge who tried the caufe i wiis. 17. 

refufed to admit a perfon to be a witnefs, who .^ ^^^^J^ 

was a parifhioner of the fame parilh wlferc tion,^v^iit«t, 

the hare was killed; but C J. i^r.faidi he <«^thesamcaa. 
did not remember that ever a new trial had 
been granted in the cafe of a penal aftiooi 
and fo per Cur\ the nwtion was refufed^ 

In an adicrn upon the ftatute againft bri- Fonerea q-v, 
bery, there was a verdift for the defendant ; Geo. 3. ^ ** 
and now Serjeant Forfter moved for a new c. b. 5 Wiu, 
trial, as being againft evidence. But per to^ ^ a new ti-iai 
tarn Curiam^ we never grant new trials in l^neyergranred 

o • 11 J • 1 1 /-in adtions upon 

actions on penal laws; and it has been fo penaiuws, 
held for more than fifty years paft. where veniia 

T^r r^ ^ A jx y r ' tr r tor dcfendaat- 

The Court condemned the cafe m 2 Kep. tws on the 

22$. ftatvite againft 



[ iro ] 

IX. Df otl)rr5Patter0teQ>ectto5 
neto trials, &c. 

( 1 2 •) Of new Trials in criminal 


(a.) In the nature of Civil Proceedings, 
(b.) In aSlual^ Criminal Profecutions. 

(a.) In the nature of Civil Proceedings. 

Vide XIL The ^i»^ v. Roger Philips^ Mayor 

of Caermartben. 

Rex V. Lord TNFORMATION in the nature of a qM 
r7C^T'B^R. A warranto for fifhing in the river 72ww»x, 
A Ley. 179. in a place extending to B. in feven pariflies, as 
inforil^rtumsr apP'^ars upon the record. After verdid: for 
«cc arc cured the defendant^ it was moved in arreft of judg* 
TOuThlsan ir- mcttt by Mojnard^ that the vemre was taken 
formationtnthe of one parilh Only, where it ought to have 
waml^nto for^ been of all, and that it wa& not cured by the 
ri^Jri^hamw. ^^^"^^ oi Jeofails j being an informadon which 

is excepted out of the ftatute. i Cro. Rex v. 
Tatht, and alfb in the new ftatute 16, 17 
Car. 2. is the fame excepnon of all appeals, 
indiSments^ informations^ and informatitms upon 
penal ftatutes. To this it was anfwered that 
this is the fault of the profecutor himfelf who 
fued out the Venire facias^ ergo he ought not 
to take advantage of his own defaults And 
the provifo excqpts iafbnnations> &:c. upon 
X penal 

penal laws only, which is not the cafe here. 
And as to the opinion in Talbot* s cafe, they 
faid^ it Teemed unrealbnable, to hold that the 
king was not bound by the law, not being 
named, for it appears by the exception that 
the parliannent underftood that the king was 
bound though not named, otherwife there had 
not been any occafion for the exception. And 
if he had been bound, if the exception had 
not been in thofe cafes, he fhould be bound in 
this cafe which is not excepted. Twifden and 
fFild held this cafe not cured by the ftatute. 
Eale Jemb contra fcf adjournatur. And after- 
wards in Mkbaelmas term the verdift was fet 
afidc upon afidavitSy that the Jury caft lots iJX^'ttl^ 
for their verdift, and gave it according to lot j verdia. This i 
fo the exception here was not determined. ^^ ^ ^^"^ 

The queftion was, if upon a trial, a point in Queen and 
law be ftarted by the judge, and the counfel ^^^^^^ 
do not take it up, but inlift upon other fadbs, Coun'Comwan. 
which are found againft them; whereas had H.i2Ann.B.R. 
the counfel infifted upon the matter of law Mod. 202. 
ftarted by the Judge, the verdift muft have „ew tri^,a'* 
paffed for them, whether this is fuflicient caufe point of law 
to move for a new trial ? J^g t^,L'h 

Chief Juftict Parkbr.— The granting of thecounfcidid 
new trials is of late original; it began about the "*when ^ram- 
year 1652, when the firft new trial was granted jngncwtnais 
for exceflive damages. Experience (hews, vtdepoft,and 
that they are erantable, as well for a fault in ^^' ?« ^"^ ^ 
the judge, as jury, m caufes tried at ntft prtus^ able. saik. 649. 
becaufe a judge of niji prius afts rather in a 
minifterial than judicial capacity; and the 
ground and foundation of granting new trials, 
when either the judge or jury are to blame is 
one and the fame, viz. doing juftice to the 
party, . 


The queftton in this cafe, I take to be chifr i 
Whether we arc fo bound down by forms of 
law, as that though vfc fee a verdift given 
contrary to a point of law (which the Judge 
himfclf took notice of, and yet for want of the 
counfel's doing their duty to their client^ was 
not infifted upon) we cannot grant a new trial i 

When a point of law arifes, whether the 
counfel infift, or not infift upon it, the judge 
is bound to dired: the jury accordingly^ 

But yet, if the fupporting of this verdid, be 
of no more ill confequence, than in point of 
cods, and the party has another remedy left 
him, then I am of opinion, that the party 
ought to fufferfor the negle£fc of his counfel. 

But if the verdict binds and concludes the 
right of the party, then I think it hard, that 
the party fhould lofe his right, by a miftake, 
or flip of the counfel. 

PowYS /enicr. — It would be a vaft incon- 
venience, if the bare ftirring of a point at n(fi 
prius, and which for ought appears, neither 
judge, counfel, nor jury thought upon more^ 
fhould be a ground for granting a new trial ; 
for it may be, the realbn why it was not in- 
lifted upon by the counfel was, becaufe they 
knew the other fide had evidence, that would 
give it a full anfwer, by quite altering the 
fad. What happens now accidentally, may 
hereafter happen defignedlyj matter may be 
Aided in by the counfel, and then dropc,; only 
in order to move for a new trial ; and it is 
better to fuffer a particular inconvenience, 
than open ,the way to a general mifchief< 
Miftake of a Eyre* — Miftake of judge or jury, a good 
g'J^^caufe for* c^ufc of granting a new trial ; but never yet 
granting a new heard, that the miftake o( the counfel was fo* 

ItemiftaK* of The counfel ftands in the place of his client j 
couafti. and 

C U3 ] 

and. therefbreL'if the cou^el waive a point, it 
h dm f^eas. iCtbe client 4id it himfeif* 
. tgiwYS^Junior. — If a defendant in an aftion in debt upoa 
o£dt1)t ujpoh a bond who has a good defcftct ^^^^"ati^^ 
upon, the medts^ -fl^iouldjby advice of counfel, has a good de- 
hazard- his caufe upon a dcrnurrcr, which is [^"SsXcu'w* 
adjudged againft him^ this miftake df counfei ha:(ard his caufe 
wcwld not be .aEowed in Chancery, as a good rJ^'Je t^ulvn 

C^fe of relief *. no relief aftcr- 

Parkeri Chief yufiice.^Thcre muft be no '^''^'• 
liew triil. And 1 fo far affent to my brothws, 
that though a verdid Ihould leave the pirty 
remedilefs, yet if the counfel does not only, 
not iflfift, but exprefsly waive an objeftion, &r« 
that then theire ought to be no new trial. 

Upon the trial of an information in the na« The King r* 
turc of a qiio warranto for exercifing the office ^q^^^'^ ^l* 
pCMayor of Shaftejbury^ the Jury found a ver* i stnu* lii/ 
diijk for the defendant} and upon a motion about^rncw^*'* 
for a niew trial, great doubts arofe, whether trial, m an info]> 
after a verdia for the defendant, there could ^fj^f l^uo 
be any new trial, though the Judge fhould warranto, for 
cmify (as he.did in this cafe) that it w4s a ^IS^Sfor 
verdid a^inil evidence. of shafieibury. 

Aft^ the point had been twice fpoken to 
in B* R» it was adjourned propter difficultatem 
to be argiied before all the Judges o( England, 
who being this term alTembled at Serjeant*!^ 
Inn, the following arguments were made. 

I>£ifTOH[.*--'Ncw trials can only be granted 
by die fsiperior . courts, and not by any inferior 
o&ea.. Trials at the afllzes are fubor(&iate 

* At coflMiioii .law> in fuch cafes, the courts fre- 
qaentfy ^ye leave to withdraw a demoxrer, even after 
argadH^m/ sihd to ptead, upon payment of Gofts4 .. 

'■■»-• .... f - , , 

Vol. IIL I trials^ 

[ 114 ] 

trials, and under the infpeftion of the fupcrior 

court out of which the record iffues. In Stiles 

*v. ante VI. ^gg. which was the firft ♦ new trial that ever 

fton° & Q.u" If was granted, it was faid by Glynne, thit the 

this was the court in thefe cafes has a jadicial> but not an 

arbitrary difcretion. I muft agree that gene- 
rally no new trial (hall be granted after a trial 
xWin.Rep.207. at bar, but yet in xh.tfcife facias againft Bewd- 
Vide ante III. j^^ q-^^^^ j j Ann^y which Wa^ brought to the 

bar, and the Jury refufed to find a fpecial ver- 
dift, the Court ordered a new trial. 

It is objeftcd, that this is a criminal pro- 
ceeding. But we fay, that fince 9 jinna^ 
c. 20, it has a mixture of civil. The relator is 
liable to cofts, and the ftatutes of Jeofailes 
extend to it. And why Ihould not this be 
confidered in the fame view as Manddmushy 
upon which new trials are granted frequently. 
The original writ di quo warranto^ was mere- 
ly civil. Old. N. B. 107. Sid. s^* 86. 2 Inft. 
282. Rajial^ 540. OldEfit. 133, 134. aindupon 
that the franchife, which was a civil right, 
might be feiftd. Formerly, indeed^ upon an 
information in the nature of a quo warranto^ 
the party could only be punifhed for the 
ufurpation. TeU i^ol'Cro. Jac. 260. i Bulji. 
54. Co. Ent. from 527 to 564. But now 
judgment of oujier may be pronounced. 

Thefe rights are of a high nature, and it 
would be a great inconvenience, to tie them 
up ftrifter than aftions. Suppofe the Jury 
fhould refufe to find a fpecial verdift, or the 
Judge fliould miftake the law, will there not 
be a failure of juftice,^ if a new trial cannot be 
had? Mich. 2 Geo. Rex v. Inhabitantes de 
fValtbamftoWy in an indiftment for not repair- 
ing the highway, and Regina v. Inhabitantes 


.[ "5 ] 

de conC WiltSy for fufFering Lacock Bridge to 
be in detay, new trials Were granted. 

P^gelfyy Serjeant, — This is a difcretionary 
qucftion, wherein no defc6t of power is to be 
fuppofed. The defendant cannot plead Not 
Guilty. 2 Inft. 282. 2 Co. 24. b. 28. b. Hardr. 
423. Cro. Jac. 43. 5 but muft difclaim; or fliew 
his right* 

It is the prerogative of the Crown, to de- 
termine* civil rights by way of information. 
Thus the King brings his information of 
intrufion in the Exchequer^ which is but a 
common ejeftment. And (o informations by 
way of devenerunty which is in efFcft an aftion 
of trover; and in thefe cafes new trials are 
everyday granted. Co. Ent. 390. And in thofc 
cafes there is a fine. 

It will be no objeftion that the year is ex- 
pired; for this profecution was commenced 
within the year, and the judgment muft be the 
fame, becaufe it is to avoid all mefne afts. Co. 
Ent. 527, 530. Trin. 8 Ann. Regina v- Barber. 
That was an information of this nature againft 
the defendant, who claimed to be burgeis of 
^httford% There was judgment by default, 
and then came a pardon, which was held only 
to difcharge the fine, but not the judgment of 
oufter. The fine here will \^Jalvo contenemento 
according to Magna Charta^ and the bill of 
rights. Since che ftatute this has all the in- 
cidents of a civil profecution, the commence- 
ment only excepted. Before, the King only 
could have it, but tlow any private perfon may 
at peril of cofts; If no new trial be granted, 
the Crown will be in* a worfe condition <than 
the fubje6t : for here the verdift will he final, 
and no. ndw information can be had.. ^ , 

jEtfr/, Serjeant, contra. ^^Tht pnly.queftion 
is, Wliethet? this be a criminal or a civil pro* 

J 2 fecution? 

ftcution? For, on the ontc hancj> if it be oi a 
civil nature, I muft agree a new trial may be 

^granted: and on the other hand, it muft be 

. admittal, that if this be merely criminal no new 
trial can be had. 

1/ It is not denied, but that at common law 

this information was a criminal prpceediiig; 

whether the ftatute haa altered t^e nature of it, 

* is. the doubt. We think it remains, a^ i^ did 

. brforc. The confequence of it is ftill ftoe and 
imprifonment, with this addition, thatjudg- 

^ ment of oufter may be given, wh^ch.cquld not 
before ; and. becaufe the ftatute h^ made it 
more .penal than it was at common law, there- 
fore, fay they, it is now changed from a ai- 
minal to a civil nature. This vis fuch an in- 

' ference, as I cannot fee into the reafonof. 

- But, fay they, the ftatutes of Jeofail^ ,do not 
extend to criminal proceedings, but they ex- 

. tend to this j ergo^ this is not a criminal pro- 
ceeding. I deQre to know, whether, it ^vill be 
pretended, that they would have extended to 
this cafe without the exprefs provifion of the 
itatute ? Certainly they would not. And the 
Parliament .was aware of that, and therefore 
« Q«. ? Vide added that claufe. The firft * new trial is 
WoJ&Gun. S^il^ 448. and there the witnefs diqd of an 
fton, Sty. 466. apoplexy. Lord Townfend v. Dr. Hughes in 
f Vide ante VI. C. B. "iMod. \^o\. Injcondalum magnatum a 

new trial was denied. 

Cannot the King releafe, pardon, .^r ftop 
this profecution 1 Surely he may. In capital 
cafes the defendant may plead autre foits acquit; 
fo careful is our law, that the fubje6t (hall 

^ never be borne down by the weight of the 

Crown. I Sid. 405. .2 £r^. 403, 765. i Lev. 9* 

- ": I Kei. 1 24. are cafes where the defendant was 

conviAed, and m favor cm likeriatis a neMf trial 

.. may 

[ "7 ], 

may be granted. Micb. 3 ^; £^ M . Rex v. i show. 33c. 
Daifss,' in an ihformatidn foi'a riot, a ne^ trial 
was denied. - i . ,. , ^ 

Mich, j.ff^.3. Smith v. Frampton^ Salk. 644. vidc ante iv. 
in an aiftion for- negligently keeping hi^ fire, 
wherein the defendant was acquitt^, it was . 
refuled' to 'be tried again. Indeed Paf. 4 Juc. 
2. Rex ^.' Shnfjon et al\ infdrmarion for fedi-. 
tious words, after acquittal a new trial was 
granted, but whoever obferves the time that 
cafe happened,' and that it was denied for liw 
by Holt in ZXiwV'S'cale before cited, will think 
it of little weight. Paf. ^fTidf M. Dr. Sal- 
mon's cafe, the defendant was convi6bed of 
perjury, and had a new trial ; but the Gourt*^ 
laid it would have been otherwife if he had 
been acquitted. Pa/. 5 /inn; Regina tr. Clarke) 
in an indidtment for a nufence, after acquittal. 
the Court denied a new trial, 'till the defendant 
came in and ^onfented. ' It was granted m Sir 2 saik. ^52. 
Jacob Banks's cafe, only becaufe he had* car- 
ried it down by provifo, which could not be 
againft the Crown. * 

Mich. J yf»». Hartnefs v. Sir J. Barrington, 
after the deferidant had been acquitted 'of an 
affault, a hew trial was denied. SoSalk. 646. 
after acquittal 'for a libel. 

In this cafe the office is determined, fo there 
can only be a fine and imprifonment. And if 
one new trial may be had, the fame reafbn will 
hold for u fecond and a third, and nobody can 
fay where it will ftop. It may happen that the 
defendant may be convifted oil a fecoiKl trials 
for wanf of that: fevidence which acquitted him 
before. 'The cafe ofB^dky wa8 only a 
fcin facias iVfHich is * ~ proceeding purely 

I 3 Torke, 

C "8 ] 

Torke. — This qiicftion 13 of far greater con- 
fcquence to the fubjeft than the Crown. It 
confifts of two parts : 

1 . Whether a n^w trial can be granted in 
any of thofe cafes? 

2, Whether there be any particular circum- 
ftances in this cafe, to diftinguifli it from the 
general ones, and fo induce the Court to re- 
fiife it ? , 

Firft, When new trials firft came in, they 

introduced a great alteration. The cafe of 

O>0 [bO ^^' Fenwick v, Holi (which was an information, 

and not an indidtment, as fome of the books 
fay) is full in point ; and the Court faid they 
could not do it without altering the law; which 
Ihews there is not a difcretionary power. This 
is the rule in criminal cafes, which I fhall fhew 
this to be. At common law, ufurpations were 
a crime, a contempt to. the King, and an op- 
prefEon of the fubjedb. A quo warranfa agit 
in rem, an information in nature of a quo war* 
ranto in per/onam. The firft charges a crime, 
and the other a ufer of the franchife. This is 
all of the Crown fide, which the civil rights of 
the Crttwn are not, as quare imperils, which 
are of the plea fide. The replication concludes, 
petti ' quod convincauir ; and fo is Co. jEnt. tit. 
quo warrantit'y now convi£lion implies crime. 
This cannot be called ^n a&ion, the profecutor 
neither demands nor recovers any thing, et 
aSio ml aliud eft quamjus projequendi injudido 
quodfihi debetjur. 

When proceedings in Eyre dropt, then in- 
formations came in, which are of a higher na- 
ture than the proceedings in Eyre^ 2 Inft. 
a8a, 498. 

Xhe flatute 9 Ann,, takes notice of this as a 
criminal proceeding : as for the cofts, they are 


C "9 J 

collateral, and cannot change the nature of it. 
The 4 & 5 ^, & Af. r. i8. gives cofts in per- 
jury, where profecuted as a mifdemeanor by in- 
formation ; and can any one lay it is now be- 
come a civil profecution ? In the cafe oi Strode Litt.Ent 148. 
V, P aimer i it was held, that mandamus's would 
not come within the defcription of ^5/^.f, fo 
as error might lie in the Exchequer-Cham* 

The Jury may take the law upon them, if 
they will. Lift. %. 368, The relator here is 
only appointed for the fecurity of the cofts. 
In the cafe oi lichefier he died, and there- 
upon the defendant moved to ftay the proceed- 
ings : No, fays the Court, this is the caufe of 
the Crown. 

I omit his argument from the fadts in this 

Denton replied, The claufe of jeofails was 
only thrown in, in majorem cautelam^ as decla- 
ratory of the law. 

Pengelly. — Sir 7*. JoneSy 163. new trial after 
conviftion Of perjury. 

Afterwards in B. R. Pratt, Ch. J. de- 
clared, that they had called in the afliftance of 
the other Judges, and that upon the who'e 
they were equally divided ; fo no rule for a 
new trial could be made. The divifion, as I 
was informed, was thus: For a new trial, 
in B. R. Pratt and Eyre j in C. B. King 
and iracey \ in Scacc. Price and Montagu, 
Againft a new trial, in B- R, Powfs and For^ 
tefcue; in C. B. Biencowe and Dormer-, in 
Scacc. Bury and Page, Vide foft EJfay III. the 
King and Francis. 

Upon an information of feifure of Jefuits Robinfonqui 
bark on the ftat, 14 C^r. 2. cap. \\. Jea. i2» J^^ Trin^^?!?^ 

1728, 5unbury 

Whcihci a 
new trial can 
be granted on 
an information 
of feifurcy 
where a verdiA 
is for the de- 

» i ■ 

The King v. 
Bell, M. 8 G. ft 
2 Stra. 995. 

No new trial 
to be granted 
after four years 
This a quo 
againft a pcr- 
fon adiing as a 
cil-man of 

[ I40 ] 


for fraudulent exportation of Jeiliits bark> two 
cades out of fix being duil. There was a. yer- 
di&foT'the defendant J and now ^ motion, was 
made for a newtrial 5 but, per totam Curiamy 
if-was denied. 

Noia^ It leemed to be admitted in a caie of 
this nature a new trial might be granted^ if the 
faft would have admitted of it, and the counfel 
for the plaintiff were prepared with prepecjcnts 
(if they had been called for) to. that purppft, 

Nota^ Nothing is forfeited on this claufe of 
the a£t^ but the goods themfelves. 

An information in nature of a quo warr/mto 
was brought againft the defendant, to fhew by 
what .authority he claimed to be a common- 
council-man of Marlborough : and upon a, 
trial in 173 1, there was a verdift for the de- 
fendant. ( . . 

This term the profecutor n\oyed for a new 
trial, as being a verdiA againft evidence ; a^d 
the profecutor referred to the report, of the 
Judge, and infifted he was not too late, there 
being no judgment yet figned, according to 
the cafe of Gilman v. Smisky Mich. 9 G^o.i, 
where it was .held, ; that .though the four day 
rule be out,. yet it is fuflBk:ient if they come 
before judgment. 2 iS/r^^, 845. , . , 

. , But the Court would. not fijffer.the merits of 
the nv>tionio be. gone into, on accoui;itpf^the 
le^figth.of time fince the verdift ;. it b^ing pof- 
fible that many men's rightsi might depend on 
€he validity of thi$ man'a vote, which th? cor- 
poration was bound to admit,, after a..verdi6| 
eftablifhing his right. And it would be niuch 
left < 4Difchiefi . to let this . verdid .ftamj (fup- 
fK>fiog it la be wrong) tham introduce^ g^iie- 
ral inconvenience. They faid, all new trials 


[- lai 1 

were difcretionaiy : and though my Lord' 
Holi entcrtdirtfed a notion of their bcirtg an- 
cienter than thd cafe lii Stiles^ from the diat^ 
lehge we meet with' irf the odd todcs;* that the , 
juror had before' giveh a verdi6b in the fanie= 
caufe ; yet it does not'th^nde fbllov^, tha< the'' 
court granted a new trial upon the eVidehfee ; • 
for it might apjjear to be amif-trial upon the • 
record, or there might* be* othtr reafens to' 
award a venire fatias de novo. 

On a motion for a' new trial^ dn an infbrftnai.* The King v. 
tion in the nature of a quo warfanto ag^ihft' zrAimaiy 23. 
defendant, to Ihew caufe by what authority 2Bamard,K.B, 
he afted as' Mayor of Liverpoole, fof that the a^kti/iio. pi. 
verdift was found on the matter of law, agaihffi 'H- 
the direftibn of the Judge j the Judge at liafl: for^alrTg^ ^ 
ordered the Jury to find it fpecially : Bbt fliey Mayor of Li- 

L -V • . i j«rf ' ^ verpoolc. 

brought in a general yerdift. 

Refol ved^ That the certificate of the Jud^ 
reporting the matter of faft, as appearing be- 
fore him, at the trial, ii conchifive, nor ca^ri ifjy 
affidavit be received againft it, for that would 
be to try the matter again upon affidaVir.- — 
Stands over. 

N. B. It has been a dbubt, which divided The King ▼. 
the twelve Judges in the cafe of die-tbwn of ^TJ^^'see'And. 
Sbaftejbury^ whether a new trial may be granted ^68, Hii. 4 g. i. 
on an irifprmatibn in the nature of a quo war- 
rantOi after a verdift found fdr the defendant, is 
this fuit partakes both df a civil artd criminal 
nature -, but it lie ver was dbqbted, but thit a 
new trial might be granted after a verditfUfbr 
theKipg;.; , • • . .' 

in me caf^ of /;&> 9Ue^n'htd tte MaVdr'anS Trin. n Ann, 
Burl's of Siw'Mey, it wis detertnined by thd wii.Rcp.2»,. 
opmion of eleven Judges againft Mr. Jutecfe 
PfiWfflj tfiat if the jury find a vtfrdid 'tipbn a 


[r laa 3 

point of Uw, contrary to the dircftion of the 
Court, or find a general verdi<5l where they 
are dire£^ed to find the matter fpecially, a 
new trial* may be granted'cven after a trial at 

Tnii.8Gco.i ^^^* '^^^ principal caufe came on again, 
1734. ' 8 Geo, a, X734- Mr. Juftice Fortejcue^ who 

tried the came, certified that the verdift was 
found againft his direftion, and that he was 
djlTatisfied with it. There were four iffiies, 
the three firft were preparatory to the laft, ancj 
were excufes for the late Mayor's adjournment 
of the Court to a day after the day appointed 
by the charter, and the Jury found that there 
was no neceflity for fuch adjournment, with 
which verdift the Judge reported himfelf fa- 
tisfied. The laft iffue was, whether or no the 
defendant was duly elefted Mayor, and th^ 
Jury fpijnd him not duly eleftedi and this 
was the verdift with which the Judge was dif- 
j&dsfied. The point of law was. Whether the 
late Mayor had a pQwer to adjourn the elec- 
tion of a new Mayor to a day beyond the 
charter-day ? 

Serjeant Eyre^ Mr. Booths Mr. Strange^ and 
others for the prolecutors : that though it ist 
the general rule to grant a new tri^l on a 
Jury's finding the matter of law againft the di.- 
redion of the Judge, yet if it (hould appear 
to the Court above, that the Judge had mifl 
taken the law, in his direftion, and that there- 
fore the Jury had fpund rightji the Court 
would not' grant a nevf trial, fince the Jury 
could at . length find no qtherwife \ and it 
would put the parties to the fexpence of a new 
trial to no purpofe, for Ihould they again be 
dire£ted in the fame manner as before, and 
find accordingly, the Court would grant a new 
trial for the mif*dire£tion of the Judge. 

t And 

[ 123 3 

And that it would appear in this cafe, by 
the record before the Court, that the' Judge 
had miftaken the law, and that though his re- 
port is conclufive as to matter of fait, the 
Court having no other way to be fatisfied of 
it, yet it is not fo as to the matter of law, 
as that may be gathered in many cafes from 
the record. 

' That this may be compared to the cafe of cj^fl^^ 
an immaterial verdi6t for the defendant, where- 
in it appears that he has made out no title by 
his plea, or confeflfed the aftion, judgment will 
be given for the plaintiff, as in the cafe of the 
King and Phillips of Godmiriy Stra. 394, where 
on an infoi*mation in the nature of a quo war- 
rantOy there was a verdift for the defendant, 
and yet judgment for the profecutbrs^ becaufe 
the plea had not traverfed the . ufurpation. 
9 H. 6. 37. pL \i. It is ftated, that if in 
debt, the defendant pleads fuch matters as 
Ihew that in point of law he owes the debt^ 
and yet concludes that he owes nothing, the 
plaintiff may neverthelefs^ claim judgment 
upon the confeffion ; and that though there 
fhould be a verdidt for the defendant, yet 
judgment will be given for the plaintiff. 
a RoL Abr. 99. pL i. Lacy and Reynolds *, 
and another in the fame book, in an aftion 
on the cafe for words, after a verdift for the 
defendant judgment for the plaintiff on the 
confeffion. i Salk. ,173, Jones and Bodnam, 
and in the fame place iStaple and Hey don, Teh. 
iSg, Mullineux's cz(€. Broome smd fPloodwardj Defendant 
Trin. 4 Geo. 2. Trefpafs for entering plain- now by virtue 
tiflfs houfe, and taking away his goods ; the q^qX^'jI^ 
defendant juftified for a diftrefs for rent, and §zt*. may plead 
that the goods were appraifed, and the ap- Iff^^aS^ive 
praifers fworn before the headborough, and trte fpcdai mat- 

V ter in evidence* 

[. "4, ] 

the refidue of. the money returned. Upon 
this iffue joined; verdict for the defendiant^ 
but judgment for plaintiff, Uecaufe, it appeared 
by the aft . of parliament, that the appraisers 
fliould ' be fworn before the flieriff or con- 
ftable, whereas it was alledged in the plea 
that they were fworp before the headbo- 

Eafiety j^Ann. A cafe ia Serjeant Salk. 
manufcript notes; treipafs for throwing down 
and carrying away ftalls ; as to all the * 
trefpafs, but throwing down, the defendant 
pleaded Not Guilty ; as to thro\ying down ' a 
Ipecial juftification, in which the defendant' 
admitted both the throwing down and carry- 
ing away the ftalls. The Judge pf nifi prius 
retufcd to try xk^ caufe, ^ecaufe the aftion. 
was confeffed; and after\yards on motion in 
the Court above it wa^ held^ that the Judge 
^id right. 

The following exceptions were taken to the 
opinion of the Judge : 

Firfti That it appears upon the face of the 
record, that the defendant Poole was not 
clefted Mayor agreeable to the charter, for 
the charter appoints the i8th of OHober for 
the day of eleftion, whereas the defendant has 
fet forth in his plea that he was chofen on 
the 19th, and that the a6t i) Geo. c. 4, does 
not give a power to Mayors to adjourn the 
elefbion at their own will, without any reafbni 
to a day when their power is expired ; neither 
does it giye any authority even on an adjourn- 
ment, to proqced upon a poll tjakien the firfl: 
day, but they muft begin de novo. That ijc 
appears upon the record th^t the late Mayor, 
\yhole power deijermined the day before, pre- 
fided at .the eleAIon, when the .defendant was 

chofen \ 

[ "5 ] 

chbfen;' Wher?2^s the aft requires; that tJie 
next officer llipuld prefide, the Mayor's poWer 
being determined. *That the ftatute airefts 
the eleftion to'be begun between the hours^of 
ten in the morning and tw6 in the afternoon, 
whereas it appears by the defendant's plea, 
that this eleftion began betweeen eight and 
nine in the morning j that it appears that the 
defendant was ele(5led the i 9th 6f OHoher^ and 
yet he pleads an eleftioh for the year next enfu- 
iflg, whereas by the charter his office expires the 
litii of Off dl?er next, wTikh is within the year; 
9n all which accounts it appears that this can* 
not be a lawful eleftion, and therefore no new 
trial fliould be granted. 

But fer Hardwicke, Cb. Jufi. A new trial 
ought to be granted in this cafe. 

l^n the firfl place, that the general rule is, 
that if the judge of nijifrius direfts the jury 
on the point of law, and they think fit obfti- 
nately to find a verdift contrary' to his direc- 
tion, ^hat is fiifficient ground fof granting a 
new trial ; and whea the judge upon a doubt 
of law, direfts the jury to bring in the matter 
fpecialljr, and they find a general verdift, that 
alfo is a fufficient foundation for a new triaU 
^ But to thofe general rules there arc fomc 
limitations as clear as the rules themfelves ; 
one is, that if the judge fliould direft the jury 
plainly and certainly wrong in point pf law, 
and the jury Ihould find contrary to his opi- 
nion, and it (hould appear to the fuperior 
court, under whofe diredtion all trials at niji 
frius are, (Salk. 643.) that the judge was 
undoubtedly miftakenj the court would not 
grant a new trial, becaufe it would be putting 
the parties to trouble to no purpofe; and if 
the next judge Ihould direft the jury in like 


[ Jr^6 ] 

manner, and they find accordingly^ there n>uft 
be a new trial for mif-direftion. 

Anothqr limitation is, that if it appear upon 
the record, before the coui*t, that it is impof- 
. liblq that the defendant fhould have judgnnent, 
by realbn of his bad plea, though the verdift 
were found for him, the court would not grant 
a new trial. But then thefe things muft ap- 
pear very clearly, and it muft be, where every 
thing appears upon the record, that can pof- 
fibly arile upon the trial, for if all the matter 
does not (b appear, and the verdift may pof- 
fibly prejudice the defendant in point of law, 
the court ought, in juftice, to grant a new 

That in the prefeht cafe it does not appear 
lutfciently upon the record, that the law is 
againft the" defendant, nor that his plea is {o 
bad, that he could not have a judgment were 
the verdift found for him. 

There are two points, one upon the com- 
mon law, and the other upon the ftatute ; and 
had the prefent cafe refted wholly on the com- 
m^pri law^ it feems that no new trial ought to 
have been granted; for the law, before the 
u Geo. c. 4. was taken to be, that the 
mayor's office determined at the end of the 
year, and therefore it feems that it would have 
bttn a void eleftion, where the adjournment 
was made to a day after the expiration of 
his office, efpecially where it is done without 

But the 1 1 Geo. c. 4. was made to remedy 
iiich inconveniences 5 and on that aft it ought 
to be tried again. 

It feems, indeed it ought to have been the 
original intent of that, aft, to enable corpora- 
tions to go to an intire new eleftion on a fub- 



(equent day^ where no eleftion had been be- 
gun before $ but notwithftanding) as diis is a 
remedial law, to prevent inconyeniences arif- 
ing from hew elections of annual officers on 
the charter-day, if the words of the aft are 
lat^e, and general enough, to comprehend 
the continuing of elediions begun on the char- 
ter-day, but not completed within that time, 
as the mifchief is the fame, the court ought to 
give a liberal conllrudlion to them ; the a6t 
fays, that where, by any accident or default 
whatever, no ele£bion fhall be made on the 
charter-day, they may proceed to an eIe6tion 
on another day, Csfr. Upon this, fuppofing 
the Mayor had done wrong in making a vo- 
luntary adjournment, the wrong afts of offi- 
cers were part of what: was intended to be pro- 
vided againft by this a&. 

Another objection is, that the adjournment 
was made between the hours of eight and 
nine, inftead of ten and twelve : but this men- 
tion of hours in the ftatute, is certainly direc- 
tory, and not reftridtive; and intended to 
prevent furprife, by beginning at inconvenient 
times ; now as to what appears on this record, 
there is no pretence of furprife in the prefcnt 

RoWs Ahr. The cafe of Lanfdnwn^ that 
corporation chofe their officers eight days 
after the charter-day, and adjudged good, for 
that the day was only directory. 

The next objeftion is, that the Mayor, 
whofe office had expired the day before, pre- 
(ided at this eledtion, and did that appear 
on the face of the record, it would be a ftrong 
objedion in favour of the profiicutor / but it 
does not, therefore' the whole matter not ap- 
pearing upon thejrecord, it ought to ga again 


- Cb €rial> tiuit afii die jury ikoUd^ Atd^^Cpoc^al 
\ veitdid:,: the fd&B tnight .moie. t^mti i^yt . be- 
-ifore^e courts. 

<AsA«ta the »obJ6£kion> . that k isip^nd^.to 

^ be mn'etedtioaior.the year. next oiiiiiingi^. tjiis 

may bCy as it .were, a. techAieal ijffiw ^s^fifed 

> by> did ajd):r.o£|{»arUameht» ;as mwCQr|9^^ns 
MJiefe the . charter . determioes . the ,^ce- jon 
a 4ay rafter a. iix>Y€abk . foaft* «tlie .-^^^s 
are^neyertheieiis faidco bfr chofefi/qrii year* ^ 

l?h« things. that gov^rna greatly in. t^^j^e- 
terminacioB is^ that the point vi.hWj if^uiiot 

> to ^be detem^ned by juries i jjudlest ^ hSKQ a 
power by ^ iaws . to .detercoine. m^twrs rofvAiEt. 
only ; and it is of the greaceft C^Mlfc^i^Pce 
to the law di England, and to .the fub^i^) tjiat 

^ tiiefe ^wersof the judge and jury a^^^ki^pt 

diftinft; that the judgecdeterminci.thelawiaivi 

the-jury >che fa£t ; . and if ever tbe^ qpn^.to be. 

cc^ounded^ k will prove the[ conCuficm and 

deftruftion of the law of England. , , 

* The verdidt givioi in the. prefect i;afe.,|]iaay 

prejudice the defendant on a. writ .of.ffforj, 

iince for any thing that can appear to ib^ in-* 

K perior court, the jury, might .l»ave fpvnd 

- their verdidt oa this, . that .the. de&Bdantsi^d 

not the majority of votes : fo that thovgh^the 

kw-flioujkl be with him, he is .yet(CQ0(4udedj 

' ' aa they might have £>und it upon the /^^ 

' The Court concurring in .QpinioaiiA«j|iew 

trial was granted, on thexosunpn rula <^.pAy- 


Tb( St. Ives Caufes. ' - 

Rex V. Praed, ' A Criminal potion jwaa^put ofiv . tili t^e^ya* 
or Rex V.Ed- ) Udityof a>«rac&fliould be tried ia^a feig^oed 

I! b!^ R^'lte JffuCi ^' -Whether itjwaa an eq^alr ar*-)*4>ar- 
«*S7. , 7 " tial 


[ "9 3 

" tial one/' And a verdict having paffcd verdiafor 
for the defendant, upon fuch iffue, fS""evi. 

Mr, Solicitor- General (Dunning) moved, denw, rcfufwi 
and was feconded by Sir Fleuher Norton, for '^^tm^i":^ 
a new trial j the verdidt having been given proceeding as oi 
contrary to evidence. acrimmaina- 

But the Court . were clear againft granting 
a new trial ; becaufe it was within the fame 
reafim as if it had been in a criminal profecu-* 
tion. For, as this iffue was direfted in order 
to know " Whether this was an illegal and 
'^ partial rate;" and if it had been found to 
be partial, the confequcnce would have been 
either an attachment or an information ; it 
wasjuft the fame thing, as if it had been a 
rerdift found for the defendant, upon an infor^ 
mation : and if it bad been upon an information^ 
the Court would not have fee afide the ver- 
did and granted a new trial, although the 
acquittal had been contrary to the weight of 
the evidence. 

However, it ^as agreed that when the 
original motion ihould come on again, ic 
would be open to any other objections, to the 
legality of the rate ; only taking it for a fa6t, 
" that it was not>^ partial one/* 

The firft of thefe was, an information in The King v. 
the nature of a quo warranto, calling upon the J^^J^^y^^™^'^* 
defendant Thomas Amery, to fhew by what m^Uh.%g. 
authority he claimed to be an alderman of the \^'^^x ^\w. 
city of Chefter^ 575. 

The defendant, after having pleaded that .^rft^JcnT 
the corporation of Chejler was a prefcriptivc ant aaing as au 
corporation, fet forth a charter granted in the chcfter.^^ 
37th year of King Charles the Second, by Qucftionf as 
which the citizens and inhabitants of the city ^pu'fcVof** 
^^IChefiitr were incorporated. That t^e char- charters ; cor- 

Vol. III. K tcr ^^^^-^^^^^ 

[ «30 ] 

fcription : and tcf dircded, that4:he corporation (houid con> 

^LZXcJ fift 0"^^ ^l'^) of* "^ayor, recorder, twenty- 
offraiichif«; fouF aldcrmeii, and forty corhman-council- 

other^inttof "^^"> ^/' ^"d it appointed the ftrft twenty- 
law. four aldermen by name. The defendant then 

averred, that the faid charter, as to the elec- 
tion of aldermen of the faid' city, was duly ^ 
accepted and agreed to by the\faid citizens, 
and inhabitants. And then deducted a regu- 
lar' title as alderman under that c^iarter.. 

Reflicatien ift. That the mayor .and citi- 
*zens, at the time of making the Jaid charter^ [ 
were not, nor had from time immemorial 1 
been, a body corporate, (^c. and iflue. 

2dly. That Charles the Second did hot " 
grant the charter mentioned in the plea i and ' 

^ 3dly. That the charter 37 Car. 2. as to the 
cleftion of aldermen, was not duly accepted 
by the citizens, and inhabitants ; and ifTue. 

4thly. That certain pcrfons in the faid 
charter mentioned did not become^ nor Were> 
aldermen of the faid city ; and ilTue. . 

fthly. That the mayor, aldermen, and .^ 
common council, have not exefcifed the fran- 
chife of eleftihg aldermen according to the 
intent of the faid charter; and ilTue. 

6thly- That the defendant >yas not at the 
time in the plea mentioned a citizen; and orie 
of the cdmmon-council f and iflue. y 

7thly* That the defendant w^ not defted 
an alderman by the major part of the thcrt 
mayor, aldermen, and commott-touttcil, 6f^. 
and iffue. 

^thly. That- the defendant was nctt dul^r 
admitted, ^c. and iffue. ' ~ ; 

The Jecond Replication ftated^p that inr the 
35th year of the reign of G^; a- 'aninlbrijia- 

tioh *as nlcd, in th6 nature of a quo warranto^ 
igaihft the mayor, and citizens of Chcjier\ 
that iii Hilary term, 35 and 36 Or. i. there 
Was a judgment (by default) by the Court of 
Kifjg's- Bench, that the liberties, privileges, 
and franchifes in the faid laft-mcn tinned infor- 
mation thoiild be ftifed into the hands of the 
king, lintil the faid Court there further or- 
dei-ea. That in Trifiity term, 2^ ^^^* ^* ^C^ 
Was, adjudged by the faid Court, that the faid 
liBertibs, ^c, Ihould be feifed into the hands 
of the ^ng, and remain in his hands, and that 
thofe liberties, tfc fhould be extin^uifhedj 
aqd the faid mayor arid citizens expelled and 
removed therefrom j which judgment was in 
force a the time of makiilg the charter bif. 
Car. 2. , . , 

It then alledged that there were other niat- , 
ters iii the charter of Cal(. 2. and particularly 
that the king willed tha| the charter fhould 
be fealed> as well under the great feal of £?;§.- 
land, as under the feal of bis county Palatine 
of. Chejier (a), which were ts^\ dated In tlie de* (a) 

feridaht's plea, and that the charter, not being J^'u^l?^fl^ 

; I , r .; ^ . , . . T • !• 1 . ° on the 6th Feb* 

accepted by the laid citizen? and inhabitants, ruary 1684, 
as to thofe as welt as all oth^ nnattefs therein j'^mlngNl^^r'^ 
contained, was void. ' charter. 

The third kepUcaHen ftatec^ th^t Car. 4. by ^'*^*p'^ 
his laid charter referved full ppwer to himfclt, 
his heirs and fucceflbrs, at his and l^eir free 
will ^rt!^ plcalure to remove the may org re- 
corder, common-clerk, or any one or ftiore of 
the aldermen, commoh-council-^iien, ^c. of 
the faid ^ity,^ by an order of privy-council to 
thcni refpe&ively Cgnified ; and diat as oftei> 
as, fif J^^is heirs, and fucceflbrs^ by any fuch 
orffiejr ifnai]^e,,*^lhpuld declare any fiich mayor, 
^C tghir removed' from his or their felpec- 

K a tivc 

•'V -^ 

[ 132 ] 

live offices, that then and from thenceforth 
the mayor, &fr. and all or any of them, fp 
amoved from their relpeftive offices, fhould 
without further proccfs, aftually be amoved, 
'6f r. and that in every fuch cafe, fome other 
fit perfon or perfons, within a convenient 
time after any fuch amotion, Ihould be 
chofen, 6f^. in fuch manner as by the letters 
patent was before direfted, into the place 
and office, 6ff. of any perfon fo amoved. 
That King James a. by an order of privy- 
council, dated the 12th of Augufty 1688, ac- 
cording to that power, amoved all the cor- 
porators then in being, which was regularly 
/ignified to them ; wherefore the power in the 
laid charter, as to the election of aldermen, 
Ceafed and determined. 

The fourth Replication ftated a charter of 
the 0.1^ Hen. 7, which was accepted, and a 
confirmation of it in the i6th Eliz. which was 
alio accepted; that both thofe charters were 
in force at the time of the judgments in quo 
'Warranto ; and that thofe judgments werq in 
force on the 17th Oiloher, 1688. That Kii^ 
James 2. afterwards . on the 26th O£loh&y 
1688, granted a charter of reftoration to the 
mayor and citizehs of Chefttr^ which was ac- 
cepted. Wherefore the charter of the ^jyth 
Car. 2. after the granting and acceptance pf 
the charter of reftoration, was of no further ef- 

fea. . >^. ;: 

The ^/tb Replication ftated a charter of in- 
corporation in the 21ft Hen. 7. with a power 
of clefting aldermen annually, by the corpora- 
tion at large, which was accepted ; a confir- 
mation of it in the i6th Eliz. which was alfo 
accepted, and that both thofe charters were in 
force at the time when the charter 37 Car. i. 

'.. ■ - was 

*C 'J3 ] 

was grarited : wherefore it was of no force as 
to the eleftion of aldermen. 

RqoindeTy That the charter of 37 Car. 2. 
was accepted by the citizens and inhabitants, 
.as to all the matters contained therein i and 
5th ifllie thereon. That the order in council 
Was not fignified as dated in the replication i 
and Toth ifliie thereon. 

That the charter of 37 Car. 2. continued 
in full force as to the cleftion of aldermen 
from the time of the granting and acceptance 
thereof, until the time of exhibiting the infor- 
mation ; traverling the acceptance of the char- 
ter of James 2 ; i ith iflue thereon. 

That after the granting of the charters of Hen. 
7;' and Eliz. there were. judgments of oufter 
againft the mayor and citizens, in the 35th 
CaK 2. fsJV. traverfing the charters o{ Henry 7, 
'and Eliz. being in force at the time of the 
charter of Car. 2. and now; 12th iffue 

' This taufe was tried at the lad aflizes for 
SaM'i before JEyr^, Baron, when the Jury found 
i'Wrdl(^ for the profecutor, on the 3d, 5th, 
$th, toth, iith, arid 12th ifluesi and for the 
defendant on the ift, 2d, 4th, 6th, 7 th, and 

The pleadings in the other caufe of the King. 
againlt Monk^ were fimilar to thefe, excepting 
that they wdre relative to the office of common- 
council-man. On a motion for a new trial, a 
very conliderable body of evidence was read 
fronv the report of the learned Judge, a detail 
of which it is not thought neceffary to enter 
into here; the report of this cafe being given 
only Tor the purpofe of (hewing the difrcrent 
points of law which arofe in it. 

K3 In 

\\ Iiigpnec4 itftppeared that Ae fejpat body 
.named ip the charter of Qarf %. ^Jfypi^ tJjieir 
asJtpcttSiCe &n(^ons, and a6ted uoder thaf 
dhartcc for, about three, years, during Mfhich 
time about thirteen of the old freen^n were 
admitted under the new ehartor. That upon 
the order of council oVjamehi^^ th^ old cor^ 
.poration rcfumed their fqn(3tibn3, . ajid the 
mcnibera of tb^ Qther retired . T he; ceftored 
corporation returned to their antient mpdc gC 
proceeding in rnoft articles r but i^ iom^ iO' 
ftances, and parti<;ularly in the ele^ion of ^ 

• derrjien gnd common-council^ th<?y. had iji ge- 
neral continued to proceed according lo. th^ 
rnedipd direfted by the charter of C^r. %*, ex* 
i^epting during four years, fooa after ^h^ revor 
iution : during which time they p^occedtd 
nearly, though not entirely, accoj'di^ng tp tbe 
charter of Hen. 7, They likewife cgntinii^d 
tp hold th? hofpitai lands, ^nd ^ fair, tq. which 
it did not appear that they had any tit}pa but 
under the cb^nter of (>^. 2,. Italfo a|>pe|ir^, 

t tjhat the election of ajdermen .by tj)^ fejk<9r 
body, had been njad^ previous t;o.tbe cb^rtpr 
of Cqr^ s. by virtue of a bye-likw upd^r ^h.e 
cfharter oi ti^. 7, 

It is alio to be remarked, th&t the qb^^it^r pf 
0>arUs the Second did nQi 9^^m tD^ha^vg ithe 
(eal; ojf the (;ounty. palatum,, acpordipg tp th,e 
direftion^ of the charter i and eyidrni;^ ^^ 
given to Ihew th^t tfiere \yas no catr^ ift th^e 
^al-keeper's books of i;he county, u^lawp©, of 

wy fees' l^ayiog been, p«d foc ^^in^ tb^ 

(a) Aiitf. ^Qunty palatine feal (a). 

The learned Judge, af^r ftatipg paritjcuj^f- 
Jxall the evidence, b|^Qrfe.^ith. 

I ^ss 3 

ht hadtoldih€m that the right iof efo^an of 
aidermen of this corpopatwn, in the mode 
contended for on ^he part of the defendant^ 
ought to be fupported if poflible. That the 
ufage had prevailed in Cbefi^r for a great niani-» 
ber of years>^ and was reafonable ivk itfelf. But 
that on a general view of the caie in evidence^ 
he found it extremely difHcuk to fupport it 
under the charter of Charles 2d* the granting 
of which appeared to have been a meafure of 
the timeSy and which, from the moment when 
-k became necefikry to tread back thofe fteps 
itt the lattet^ end of the reign of King Jamesy 
feenF!e4to have been entirely laid afide. That 
in fumming up the evidence he had affumed 
that\there was- no contrariety. . That the Jury 
toight conclude upon it, that the corporatbq 
of Cbefiier \;ras a corporation by prefcriptioa, 
amlunder charters, at the time of the yid^-^ 
vmtli Uik qsidwa^ritntb \ in which however he 
ftatadj that hcf had differed from the couniel 
en both fides, ' That the fnanchiies of the cor- 
'poratioA we?e tn fadj fufpended^ by that judg- 
fiicfll.^ That the iiharcer df Charles 2d* was 
aftetf wpotfforthpee yeard next after thegrant>- 
ing of it. That after the charter of reftitutioh 
was-gr^nt^dj the-officer^ of the old corporation; 
'refumed ^eii* places ; and that from that time 
'^j went on without appearing to advert ib 
>tty oht irift^nce to the chartei- of Char/as ad, 
a* the ai*h<#ity under which they wer»e to ai^. 
For thou^lt was true that dne of th^ witnef- 
(es had fta^d in his evidence, that, as he un- 
decftood it, the feleft body-was no^ fomevvhac 
differently conftltuted frcfm; wh|it, it appeared* 
to hare'^den befQ;;e th«$ charter of Ciw/^j* 2d^^^ 
in rep^& of the two iherifffi making or not 
^feaking a part of the forty common- council- 

K 4 men; 

[ 136 1 

jwa ; and the ekftioris of mayor afjd rectwd^, 
are now ^pprov^d of by the King, which is 
conformable to the charoei^of Charles 2d. and 
is not required by the charter of Hen. 7 . ; Aat 
thofe, and a few other inftances which might 
occur, of apparent conformity to^the charter, 
having <>btained, without any aftual reference 
to it j and in a mujtitude of other inftances, 
the ufage being in dircft contradiftion to the 
charter, ht had thought there was in efFeft no 
evidence that the old corporation had ever re- 
cognized that charter. As to the cle^Hon' af 
aldermen, it was clear that the ufiige hadicx- 
ifted a great number of years, before the charter 
of Charles ad. ^ 

That the operation of law upon this ftateof 
the faft> applicable to the iffues in this caufe, 
was the next thing to be confid^red* That he 
ii^ent into the difcuffion of that qi^eftion, with 
a confiderabk d^f ee of hefitation in his own 
mind. That he was not perfectly latisficd^^^ as 
to . the legal efFefts of the judgment m quo 
warranto j or of the charter of reftitution.;^ cf- 
pecially as oppofed to the charter of Charles izd. 
whjch had intervened. That he had hazarded 
this opinion 5 that the judgment in quo war^ 
ranlOt being a judgment by default, where -no 
caufe of forfeiture appeared upon the record, 
did not diffolve the corporation. That it only 
feifed the franchife into the King's hands, and 
thereby Jufpended the exercife of the fun6fcions 
of the corporation. That the charter of James 
the ad. reftored the franchife to the old cor- 
porators ; and that after that reftoration, the 
charter of Charles the ad. was to be confi* 
dered in the fame manner, as if it had been 
granted before the judgment in quo warranto ; 
in. which cafe, without an acceptance by the 


I ^31 ] 

ftWrevrpomtiafli it w)uld hat*- rto «fifeft Wi<l^ 

in the diftri6t 'Wherein the did 'corporation had 
pcfwei- to aft: And that ttere ymi no fdch 
acceptance r which' was fubftantidiy determin- 
iriig the ifftfeupon the acceptance of this chah- 
ter, againfr the defendant. 
< Seeing the cafe in that lights he had treated 
riie Hftrc upon the notification of the order of 
amotion, as of no great confequence in the 
caufe^ but however that he had direfted'thc 
]wxji that there was evidence of the notlficai 
tion, proper to be lubmittcd to them. 

Tte learned Judge then ftated, that it had' 
fince occorred to him, that the queftion upon 
the notification of the order of amotion, might 
become very material in fome events, namely, 
if it fliould' be finally refolvcd, that the charter 
of James the 2d. did not operate to reftore the 
(rfd corporation j or that the reftitution of the 
old corporation, did not diffolve or difplace the 
ncMrcoTptMration, under the charter of Charles' 
tte iA. if the old corporation wa^ never re- 
ftored', and the new corporation, in confe- 
quence of the order of amotion, was deprived 
rf all its bfficers, and confequently could hold 
no legal affembly, or ufe any means to perpe-' 
tuatc itfelf, (and in point of faft, that corpo- 
ration never did aflemble again) it feemed as* 
if there was no lawfial corporation in Chefierzt 
this day. Or if the old corporation was well 
itftored, but the reftoring to them their fran*- 
chife of being a corporation, did not operate 
to difplace or diffolve the new corporation, it' 
fhould fcem as if there would be two bodies 
corporate exifting in Chefter at the fame time ; 
but in confequence of the order of amotion, 
one eiFed:ually difabled to aft, and now pro-- 
bably difTolvedj by the natural death of its 


[ ^38 1 

"mevBbtrs, the- other aftiTc and perpetuating 
itfcK in the r^uiar courfir. And in tkat cafe 
the queftioft now depending wouki be a ques- 
tion touchmg the cledtion of ^ aldepn^aA ef 
the old corporation s in ^hieh cafe it feemed 
to be impoffible to maintain the ele^ion under 
<he charter of Charles the- id; it being in his 
jydgmeet moft clear, that the old corporation 
did not accept that charter. 

That at the trial the. Qounfel for the -de- 
fendant had infift(?d, that the judgment in qw 
warranto hftd diflblved* the corporation ; and 
that the chartei? of Charles tJie ^ created a 
0ew' corporation. That the tharterof Jac. the 
ad. could not reftore the corporation which 
bad been diflblyed^ but might be accepted by 
the new corporation, aad might - enlarge the 
powers of that new corporation. And that the 
queftion in the third iflue was, touching the 
acceptance of the charter of Charks die 2d, 
by the citizens at krge, and not by-the old 
corporation. But, he ttated,, thar it had fince 
occurred to him, that it was a qtieftion which 
mightdeferveconfideration, whether upon die 
iffijes joined upon thefe pleadings, it was open 
to the counfcl for the defendant to put the cafe 
iin that manner ; the plea dating in efFeflb, that 
a<r the- time of granting the charter of Giw/<?jr 
^:he ad. there was a corporation by prefcrip- 
tibn^ exiflang in Chefter^ which feemed to con- 
fine the queftion- of acceptance in the third ifr 
fbe,.to an acceptance by t-hat prefcriptiYe corr 
^raiiiom ' ' - 

The Ci>urf htre obferved, that'Tf all the 
points of law, which -might arife- in this- cafe, 
were to be gone into, they were W too much 
impoftaiieei-tO'be decided when the bf^nich ' was 
not foil, * 


. ^pA d^ey rec^rnmende^ i% to d^e couokfi^l tQ ' 
c^tiSae t|iecn(blves in their argUiOD^m^ to th^ 
]tbif4i fifths ^94 ninth iOTues^ on th^ aiCQeptaoce 
of ^ charter of Cb^rUs the 3^<^n4 > bccaui< 
if it ihoyild, tur^ put either tq t^e a ver4ii(^ 
ilgjjunfl: qvidpnce^ pr that th^ queftiou ^as ook 
properly iUft to the Jury, as to t^ic^aifv^Sa t€| 
cxifrciib their judgment upo^ tl;iat wqi^l^ 1^ sk 
fufficient ground Tor a^ new trial, and th^ qitei^ 
t^on$ qf J^w Mcould be ppcn hereafter* 

Jdair Serj^ai|<;> fFa^^ MiUes^ i^ane, .^ 
finding,, again£k t^ rule, argue4 v^cy (uily^ 
9D ^e verdlA <vi tbofc ifliie^a$ it was wap[-^ 
fance^ by tjie evideace alope ;. ii^t. ^he ^onrfe- ^ 
whjch two quei^on& were made. 

iSl. Thtf^t the charter o( Cb^ri^s^tim Seconds 
was. not accepted in poin^ojf \^^ -, be^awfe ^ 
;K^eptance of a charter ixjuft be by ^ major iity 
Qf thofe perfons to whom, it i& granted. ^lowi 
If, appears on this charter itfelf, that it w.4& 
granted to the citizens and inhabitants of Ck^- 
ter. And tljie quieilion is, Who are meant by 
iiHzenSy as contradiilinguifhed from inhabit 
tants ? It could only mean thofe perfons who 
hod be^ incorporated before tl^e judgment of 
4i^4r in the ^uo warranto information, and whor 
were tjie^ancient freemen of the city^ 

According to Bagge's cafe (a), a charter- (a^ 
raulb be accepted by a majority of the perfons, ^ ^^^ Rcp.iz6, 
to whoa? it is directed, for the acceptance of a 
(e^ will not bind the reft. So. if a part of i^ 
corporation apply for new privileges, it wi)l 
not bind thr relt, unlefs they (X)i)fei}t« The 
iajhs^bitafit%^of a tpwa cani^ot be ificorpprated 
w^thoj^;. th^ coi^fent of a majpr pa|t of them* 
('3)ff ^^^4 ^thout (hek cq^ent-the charter qf (^) 
V^^m^m if .▼P>d*' M ^. Sing a^aiaft. *^'^^'^' '^ 


t »4o i 

gW^^^ S/tfiew and ofliers (c), Mr. 7. Tatts faH'tfie 
4 otT. ti . Qj^^jj cannot compel pcrfons to become c6t-- 
porators a'gairift (heir affent; and 'that confent 
can onty be teftified by their being admitted; 
But in this cafe there was no evidence which 
tended to fhew that this charter liad been ac- 
cepted by a majority of the old ffccfticn, thifT 
teen only of whom were admitted ; andHlc 
jH-oof of that iflue was on the defendant. This 
partial acceptance, thereibre, coold not ope- 
rate. But it was contende3"af the trial; that 
the charter was at all events -accepted as tb^tEc 
eleftion of aWewnen : now that argnmcntcaiii 
not be fupported, if (as was aHb coritawSsB') 
the judgment of oufter entirely diffolved the 
whole corporation, for then it would be a grint 
of franchifesTOa newbody of men-,'whocoiil(J 
tot in pomt of law accept the charter' in part 
oiily. Then, according to the defcndant's-'ar- 
' guriient, this charter miift be confidercd' to 
have been accepted in teto, or not at all. Atid 
if the Jury were not warranted by the evidence 
to find a verdift for the defendant on the nihiS 
iflue, in point of faft, they could not find for 
him on the third in point of law : and if any 
part of the charter was not accepted, tlie nintH 
iffue muft fall to the ground, for that is, that 
it was accepted in all things. The opinion of 
the Court in the cafe of the King v. "Jobnfm 
(a) (a), is extremely ftrong to (heW- that the 

fTiS*^ charter of Charles the Second was never ac- 
ctpted. - ' 

2dly, But even if the Court fliould be of 

opinion with' the defendant on the acceptance; 

yet the charter itftlf is void on t*o grounds j 

in which cafe it would be nugatory tO' grant a 

^' new trial .ypon the qucftion -(if acceptance of a 



* — 

cbdrtefi whkh rif accepted is. void. ^ iSt.A 

charter granted in a^ county palatine, iniift have 
the county palatine feah The county p^la* 
tiA^ lyas united wixh the. Crowa in the reign of 
Edward the Firft. And in SMen (b) it is fai4 « .^^^ 
" that the laws and rightful ufages of a county p. ^^^ ** ^'^ 
" palatine arc tp be preferved." It was by 
iCing Charjc^i^s ^s Earl of Chefiefj and not as 
King of Engiand, that this corporation was 
created. MaAy cafes have a4judgedy that 
when a feai is necejQary to the validity of a 
g^nt within a county paladne, it muft be 
under the fcal of the county palatine. Mo^r^ 
8.74, iMtzv. i%2cu A prefentation to a living 
within the coi|i)ty palacine, may be good with- 
out the feal of the county palatine ; and th? 
reafpn pf ihat is, becaufe it may pafs by paroU 
But a grant of the next avoidance is void, for 
want of the county palatine feal, 2 RoL Air. 
180. 2). I, 2. I BrownL 182* It i$ fufHcient, in 
prefcribing for a franchife, to fay that it is with- 
in his county palatine, which hzsjura regalia^ 
aqd by.reafon of that he claims fuqh franchiiesi 
of which one is, to create corporations. ^Buljir. 
aa6, 7. In anfwer to an obfervation from the 
Court, that the Chief Juftice, and Attorney- 
General of CbefteVy were appointed under the 
great feal j if was faid that by the Jiat^ 27. H* ^* 
f^ 24* §. 5. jqftices of affize, (^c. within the 
county palatine of Lancajier, were to be ap^ 
pointed under the king's ufual ieal o( L(fn-> 
cafter, in manner and form as hath been acct^f-s 
tomed. Aj^ it appeared by the 18th fedion 
of ihat adt,, that Sir H. EMglefield had been, ap- 
pointed juftice of Chefter and Flint by letters 
patent undgr the feal of the cpumy palatini . 


t U4 1 

And that ^ appointment t)f the Chief Jdftktf 
oiChefif^ undtr the great feal of England, \VaS 
by virtue ;of the flat. 3^b and 35?^ H. 8.' 
r. a6. §. 10. That as to the Attorrtey-Geftelral^ ' 
he was appointed under the great Teal : becaufe 
he afted ^ ^ell Without the county palatini* as 
within it. And cdly. This charter is vbid on 
accouht of the general power of amdtibn re-' * 
ferved to the king. It is a condidon whTcH 
the law will not endure ; thb tbhfequenctfs ot 
which would give the king a power Which the 
law has exprefsly denied him. Palm 5017 
Sir fP'. Jvnes, 168. 

A grant by the kin^ to the fubjefl:, Wliiai. 
is againft law, is void. 1 RoL Ahr. 164,- 

i ^»/- tZZ' I -^'^- 43- ^- 5 ^^* 55- ^^ Arid 
though where to a grant by one fubjeft-td anp* 

ther a condition is anf/exfcd, which is eltliei?» 

impoffible or illegal, the condition 6nty is 

void, yet in the cafe of a grint by the king^ 

the whole grant is void. 1 And. ijo* 

2 Preem. ij. 

Bear croft in lupport of the rule obfefve^jy 

that the thh-d, fifth, and ninth iffues, alto-' 

gether formed a queftion of faft only. And as 

the learned Jtidge had mif-direfted the^ury, 

in telling them the queftion was, whfedier the 

charter o{ Charles the Second was Accepted by 

ifhe old corporation^ inftead of the citizens ana 

inhabitants, the defendant was intitled to a, 

new trial, 'fhe queftion left to the Jfufy Was . 

not the true! one i for th6 Iflbe joined wsis oil' 

the acceptance by the cititens and inbahildntSy 

to whom it was direAed; and not by the old ,, 

corf oration^ who (the defeAdaht Contended. ac 

the triri) Kjtd no legal exigence aft6r th6 judg- • 

ment of ouftcr. The old corporation ^ ivcre 


[ U5 h 

not known by the liame oi^^.tiiizms and' 
inhabitants. Thqfe ecrim were defcriptive of 
the perfbns to whom the charter of Charles the 
Second was direded. Th? ^ord *' citieens*^ 
does not mean ^* freemen," as ifreernen of the 
old corporation ; for they were extin& at that 
time : but the expreflioo may be accounted for 
in this w^y $ there had beea a city> and a cor- 
poration ; in common parlance the inhabitants 
were known by the name of the fUizens of Chef- 
t&: The word 'inhabitants" was added for the 
purpofe of -preventing any miftake ; 'and thef 
are lifcd as convertible terms. The acceptance 
ofachartpTj iathis cafe, w^s a pure limple 
qodllion of fad^ without any mixture of law. 
And this has been confounded in the argument 
by the' couiiiel agaiiift the rule, with the cafe of 
a charter granted to aa exifting corporation* 
He admitted that it would be a queftion of laWf 
whether a part of an qdfting corporation might 
or might not have accepted a charter ; or whe- 
ther they could partially accept or not^ But 
this beiog a charter to a new corporatioa, 
there .was fufficient evidence given at the trial 
to be lejft to the Jury to determine as to the 
acceptance of it in hdi. 

Bowtr^ t^icefeer^ 'Phmer^ and Manley^ were 
to harve argued on the fame fide j but they 
were Court. 

^HHURST, 7*— The only queftions ioc our 
prefent confideration are^ Whether the Jury 
have dbne fi^t in finding their vendid as 
they have done, ag^inft the acceptance of 
the charter of Charles the Second j and whe- 
ther the Judge, who cried the caufe, was or 
was not cbrre& in his manner of fumming up 

to the Jury ? 

' * As 

t ^u } 

As to the manner in which thf» qyefticm «is 
left, for the Jury upon this part of. nbexafe^ I 
am of opinion than: the Judge was. ia foaao de^ 
gree miftaken J for he has ftated to msipDiAC^ 
cdly> that he t^^d them, that he thought there 
was in fad no evidence chat, the oid xcrpmr^ion 
had accepted the charter of CbarJes the Se- 
cond. In a matter of fuch confQqpieiioi, I 
ihould have thoughts that if it were onijr a 
qi^ftion of fa&, at aU events, there was evi- 
d^ce on this .point> fufikient to be kft openly 
and.ftiUy to the coofideration of the Ji:^, 
without any fuch ftrong direAions as .wiere 
given. In the Mk place I think, the learned 
Judge was miftak^ « in telling the ^ Jury^ thac 
the queftion was, . whether the darter of 
Chiles the Second was -accepted . l^ the o^ 
corporaiiw or not* That, was not tl^ iifiue 
upon the pleadings i for the words of theifiue 
are, " That the letters patent were not -duly 
accepted and agreed to by iA\ccitixms mn^ 
ittbahitMts of the city of Chtfier i' which 
could not mean the old corporatioa* For it 
could only be accepted by the perfons to 
whom it was directed at the time it wis made : 
but the old corporation did not exift at dbat 
time ; for they were difiblved by .the judg* 
ment in the quo warrMto. They no. loiter 
cxifted as a body. Jf they were not difialvec^- 
the queiUon might have beeAdifierentrthcn* 
fore, in reaibn, the only, queftion could, be^- 
whether this charter was accepted hf the per**. 
fons to whom, it was addreiled, who were-.dio 
citizins and inbabitanis. Now this qmisftioa 
was not left to the Jury at all; the only 
queftion having been, whether the charter waa 
accepted by the old corporation. . 

xo Now 

C HJ 1 

^ihmmth P^a«d to thefafb wi^ich were 
laid before liie Juty in prMf- of the-iflue, re-r 
fpe&sn^'ti^ ara^ance by tlie «ra^ corpora- 
tioBy^tbae wtre many inftanceft: indeed the. 
Judge iiadM fays^ that the eridmce was all 
one way dwiiig three years. Soreral inftances 
are ftatsd €>f ads done by the new corporatioHj 
whick'€0iiM only have been done under the 
chajAcr a£ <3barles the Second ^ [which Mr» 
J. JfiUkmrft^ix&e entimerated.] Thefe were. 
fuch %degreo of evidence as fliould have been 
left Id the Jury : and it does feem to ine that 
ths^evidtnoe was ail on one flde during that 
pemd . Xfee- evidence vf' thoie ads. fhould at 
aay'fjtft^liav^ been leftrCorthe Jury, wl^atever 
veidid Jtbey might ykicna^ly j^ave gi«^n« 
And if-thoy lia4 be«^cof ppinioa, that .^ihe 
charter iaad been accepi:ed, -and a^od under, 
dur^ dioTe thife y^arsj, that- wotpld hav« 
been Cdockifive. For the charter once ac-» 
cep^: wd a&ed under, for three years, was 
accepted as much as it could- be, and mod: 
ever afterwards be taken to have been ac« 
cepted't-and the corporation could not after- 
wards, decertnine upon keeping • thofe fran* 
chifi^i ^hkih "Were beneficial to them, and re* 
jei^ing otheBS which were not fo. At all 
evems this, evidence ihould have been left to 
t^Atilta^^ 'And I agree with the learned 
Jviip&ia ^the. opinicm which he has delivered, 
tlvMcMfCS'^and juries ought to lean, in favour 
of*tiqp}«it ufages, efpecially if th^ tend to 
pg^rve«tbe peace and quiet of corporations. 

ifi4 tf»- Dhe qu^ions of law which may ajri(e 
in.^ caifey they are matters for future confir 
dqniiQar^:.t;he0efore I ihall nor enter intp 
them at prefcnt. And a& they are of great 

Vot. IIL L importance. 

[ 146 1 

imppTtaftce,;the itedfiw ought It) ho- jirisfiwr- 
toryito allthe parties,- ^ '-7 ♦ u- 

' As this is a qucftiSn'©ntwhi<Si the cxtftencc 
of the corpdfaition depend»i^an4/fts Hhc^tiwAr 
iffuc is tho\JgRt the moft material, I- aifr of 
o^nion that it (hotild be tried^gein,-. . •_. r 

$ULL£K, J."-«-This is an informaticm nrthc 
nature of a-yo^ warranto againft .tht drfendf 
ant, to fhew by what authority hfi claims tOfi» 
An alderman of €befter ? The ^f4n<|aivtf in 
anfwcrto this information, hascftatedja^aicfc^^ 
of the 37th of Gbarlej the S€£0ftd,'w4ic^:jbe 
fey s W4s granted, not to the- mayor wd ^iw» 
zens, who wcrb the old corpcn*dtion,^hMrvtO 
the citwcns and inbabit^ntSy ahdacce^Boii^by 
fHcm : he hais then derived his title under! it/: 
On this ^pkaytht^e iflfties hav^>b6en t^^^n 

j: ffti That the chatiter was hW gi*antfid> 
Sdlyi That it, never i*as accepted by» tbpi^j- 
tbsens and ^ Jrihabitants. 3dly. • -Thtt r innfftis 
efharter there .wias a claufe which enibbf^!^ 
Jcmg^^and hii^ucccflbrs^ by an oitier <>f:frtiv)b- 
<teundl, to^ptait art cfed teothis corporAtirtnirfey 
a power of i amoving i!hcn)$! without* affign^ 
any cat^fe ; dnd^ that K[ng\y^f0es thc-^*pQf^fd 
im^de fuch an orddf , whidi\fftsrnot}Se*i:t^niif 
eorporaiion.' *On thefe. three iffw^,tl«:Fjeyjfitf 
of me cfeufemuft finally d^pendyrrr.; {^-k -J 
: ' Tht others rh^ht have been di<p6ftf^ iW*H. 
Tfcou^ I have ftated thofer three fSuesi^d^y 
^are more thin are neccffary, in fytdct to>«jbi{|)ojfe 
jofcheiqueftioiuiiOw before lis. r- - > * - • 
;i ^ Ebr asttt thse objeftibn, which was- t^lo^nrby 
one of the icounfel againft the igiiki that-^the 
.chaster of cGfe/^r/tf J the Seooftd was voidp-b^- 
vfea\ had not the fcal of ihef couney.^alji. 
tineof €hgfter affixed to it, there is no f^^nda* 

C »47 1 

ticm fdr'if. *Thc cdei vdbhfll rwete cicfMi, do 

not apply ; for they are ciaft* of grants witfaiFr 

the cbunty palatine of Lantdfier. • And h is 

oMervabk that^ ei^en in one di thoTe Caies 

cited, it'was htld by Lord C* J, 9ra^, that a ^ 

corporation 'Urtade within 'the duchy, and-noe 

in the councypalatmc^ is wirfieet' wairant {a)* (a) 

But he fiid i;^hin the county palatine^ the ^«*^t*37» 

king ^maj create a corporation under the 

duchiy feai,' itecauie the EKike tlLancafitr had 

j^ifi^^fgAlidi'' Btft it does not fellow that, he- 

eauft flicking may create a corporation within 

tte c*sttty f)ftbitinc, under the duchy feal, he 

ni»;W/d<J'founderche great fed. ' • 

- ftdMw, eifei wMch lairifervdthi'n thecounty 
pakdtte i(rf''iJi»^^^ are not applidable to the 
prt^MJ ■*T4icy dcpdiii on a.parttctilar*lta* 
tiatci^(jb)5 ifcfhich i^ Coflfiried tO'the«<<fdtlntyj)a- (fe) 
latiArf ^ of^' iMffofinr. With rcfpea: to oflfees * ^^'^ 
grinted ^tidcr ^the great feal bf EngianJ to be 
dberbl^ln dbejtet, it iifaid that they depciid 
ojv il|e^ft«!ice 3^th and J5dr^!fiSof, 8, • r; 1-65 
irfiicA'^^sib was contended) ena^Si thatof^ 
^ceg^.ifts Cfajfor ffaall be granted undir the 
glt»^caliof^Slig'/W, and the chief jufticc is 
^kffitilfai'lf^nicnifoftcd. But on adverting to 
draot'^ftatttte^^idlte argument dbes not appear to 
be well grounded} becaufe that adl relates 
«yy to^^^l^y and not to Chefier. Befldes, 
bf«)fe'%he pafflng of dtat ftatutc, the cro^n 
4td4^ttf<5d to' 'grant offiees in Urates ' Vindtv the 
great feal: for there is a daufe (c) in that ^ (c) 
filafisei,^w4ikh'fay«, that commiffions under 
thc^g«i*atfeai titready planted (hall be in force. 
Ahother circumftance/ worthy of -obfcrvicion, 
ife, that the Ihtif iffs of Chefter are appointed at 
JVtJiidnfiir in the lame manner as the other 
iheriffs in England.^ It is alfo to be* remarked^ 

L 2 that 

s. xu 

[ h8, 3 


that the charters 4>f Q>arles the Second . and 
7/?»i^j the Second, are neither of them under 
the feal of the county, palatine of Chefier 5 but 
diey are both under the great feal alone. 
However, this is not the point now before the 
Gourt^ which is only as to the acceptance of 
the charter of Charles the Second, 

And as to that, it is material, firft, to confi- 
der to whom that charter was granted 5 and, 
fecondly, by \^om it is faid to have been ac- 
cepted. I t^iink there was a miftake at the 
trial by the Judge, in leaving the qucfticMi to 
fhe Jury, whether the old corporation had ac- 
cepted this charter? Nothing is more clear 
than that the crown, at the time of granting 
this charter, confidered the old corporation of 
Chefter as touUy annihilated, and extinguiihcd. 
It was npt granted to them as to a corporation 
theh in exjftence. And with regard to the 
term.**. ciHzenSy'\the counfel in fupport of the 
rule has ^iven the true anfwer to that obfcr- 
yatioQ. /Then the queftion is, whether, the 
citiziens and inhabitants had accepted the char^ 
ter of Charles the Second or not ? I feel left 
difficulty in differing from the learned Judge, 
whO; tried the caufe, becaufe he has ftafcd to 
the Court that he himfelf entertained confi- 
(derable doubts at the time, and that he ha- 
zarded an opinion, that the judgment by de- 
fault in the quo warranto did not diflblve the 
cpfporation, but that it only feifed the fran- 
chifes into the king's hands, and thereby fu- 
fpended the exercife of the functions of the 
corporation, and on that ground confidered 
the queftion as being whether the old corpo- 
ration accepted the charter or not ? 

As to the fafts of the acceptance ftated to 

have been proved, thcx^ is fuch a body of 

4 evidence 

evidence during the courfe of three years, as 
ip my opinion leaves the queftipn without 4 
doubt;. And if the corporation accepted the 
charter only for an hour, chat is cpnclufive for 
cver.i it cannot afterwards be faid, that they 
had not accepted. 

[Here Mr. J. Buller commented very fully 
upon every part of the evidence, from whence 
he took occafion to obferve, that there was 
fufRcient evidence to have been left to the 
Jury, as to the acceptance of the charter of 
Charles the Second, by the citizens and in* 
habitants of CheJierJ] 

I agree with the learned Judge, that the 
election of the defendant Ihould . be fupported 
if it can be fo. 

If on the evidence there is no ground for 
faying that the charter was accejptqd, it will bp 
impofUble to fupport it. But all the evi- 
dence goes to fliew an acceptance j and there 
was no contrariety. 

Another. obje<ftion has been niade, that it 
does not appear, negatively, that the charter 
was not accepted by a majority of thofe named 
in it. I am by no means fatisfied that It was 
nccclJTary that it Ihould be accepted by a ma- 
jority of them, I hold that there is a gre^t 
difFfrence . between a charter, gran ted in ge- 
neral te;:ms, tq incorporate the 'inhabitants of 
a city, and a. charter like the prefent, which 
creates diftindl; parts of the corporate bpdj, fills 
up fome of the offices by narne, ^nd leaves it 
open to them to elcft a number of freemen. 

Wh^t is faid by ^Ifr. J. Testes y jn the cafe 
cited from Burrow^ exaftly agrees with wh^t 
I have juft laid down. That was the cafe of 
the college of phyficians. In the charter 
granted to them, fix perfons by nanae, and all 

L 3 others 

C »50 1 

bthcn of Ae &€«lty» of and iw the city of 
f/mdffni are ihade a body corpordt^ : but €h$ 
Goivt held- ebat aU the pm6Hfihg ^)^ci<idsiti 
j:.okihi9 ^tt ^fitsty by virtue of thisi climer> 
fnembm of th^^^Jt^pOration. ' • - 

''''i^siA''mmm'ii\&rt^^^ tiw? coipottition 

^pfW-C bnly bdffi*d t6 adfttit eVeff||eri<>n,' lnrhOfti 

- irfltt^d s^'krtd'trftt^lihy p^rfon 'who ckftW^'Withift 
Iha^-ddci'Jjfirftcml^ had a right «> htzAftikx^ 

4BwT.ai99/T^A«f>'ff fti<K!Xa> '' I am fanftom thmktog; 
•*;tiiat an the ni^n of and in Lakdif^^nktix 
* prttftififtg'fjhj'flc, were ii«^l-|KS-at»H b)rth^ 
f '^charter; The immediate grinftseb mder t|e 
•^feharter, Wtre'thc fix peribrt^^ifltftidftl»lj^ 
^' named ift it. The reft were to be^admitc^ 
*' by them. They were not, ^ f^^r "^^'^ 
^* members. ' They were firft to give th^ir 
^ confcnr, before they became members r tfiev 
^' could riot be^ incorporated^ tfJthoutJlJlw 
** conlent.** Now; that chartel" fiseim apfelf- 
cablc to the prefijnt cafe. For th« kift]gi>by 
this charter, appointed a Certain fi^mt^er'^at- 
dermen, and a certain nuiliber ^ cmm^d^ 
eouncil-men. Thcfc^ then, actdixK^^o^thl 
DingUfige of Mr, J, YaUs^ are the iMftiedktt 
grantees of the crown ; and a powef ii^iaforiM 
wards given to theiti^ to fwearfredmft «^ii^ 
thrfr requeft, they firft taking ^tfieJittdiiffc 
Therefore, it appears to nM, that diefefrieMri^ 
ftand in the fame light, in whkh thid^fieribni 
do, who liraaife phyfiG in lAiwii Th4 
corporation haV€. ^ power delegated to dibm^ 
to fwear m cei^^ peHbns on thdir doing^fsar^ 
ticular aft$. But if the law were not 4b i^if 
liny number of freemen had accepted, it woold 
have been ftiffietenft : for t^ freeifti^ are ail 

indtfimtc bodjr^ And, in % corporjte'op con* 


i m } 

fifti^of .idiflfereat intiagr^li j^s^^aqjr p£«b? 
froewen,, t^ .ind^nife,A^)4y, -atteo^v^ 
m^ng^ of|th^:C0rpora$kMiyitj«^^ 
kM» required* in ail cafes, ^thftt ^r,g«ij^y.qf 
the whole body (hould be pg<^ig0i;... Aod.if j^ 
fwnaMfsr number th^A a nuj6rjinf;^c)f ^p ifK^finite 
pRTCvof th^ lepf poraticKii ar/^ ip^i^ienc to cqiir 
ftirut^ia^^WuiaiTembly fQr.4Qtfig <;prpqr$^c 
a^,vaftefitbey are incorportfcdiU W^ bc.i^j^ 
^JctO 6ad ^reafon why ^q faine numl?^ 
p4]tiD0t accept the charter. Whether afw 
He^rii^; ^\ opinion of the Court on thete 
f^nnfi, theipaftiea may choofc to go to trui 
e^y^m^^tH^^i is for their . confideratioiw 
Bi*r; if file, cawfe ibould be tri^d again, t^cfe 
^ibdings )%re fb defe(5i:ivei that I reconnimend 
i^xoc hQCh-parwes, that they ftiqaild be amende 

'nTo,. begin with the plc^:v.{jp ^ts out with 
vasng>i/5lbat the mayor and ^tii^ens of Cbef^ 
^^\Mr. }mffH frorD time immcmorml, and by 
^^i^wnxi §h|ircers, and grai^^s qf 4ivcr8 kii^ 
^* aftdi^jli^etp^^f JSail^/^^, beea corr 

-^■|»W<h: and polMic* in. deed, gn^.. in faft."— 
Itisain^«)S(ribjQ'tQ fyggpft ?ny reifcn why this 
Wimimtmii'^m figi^dc.: k wasj likely to, ^yp 
tlifti^fea5:iwhif b it ijjrp^wcjcd at th^ trial,; of 
fi9lj|»r|i^gfegil;he cavfe, anj^ljraifing.the doutjt 
wh«^ei!)iXhe,jf^«:tier: ftf Gimles the vSeqofld 
feQiidnf(*'^/bQW)d ,e»|: Jbeiippnf^cred m have 
b^f^*RJfl4rfft*^WrB9ifasion ii^^\l^,}^m^ 
iRg true\^^ili#.4 thft pka. h^s no^,a^aAJy,^at^4 
tbWfilh^y f»«^,^;^QrpQratjbD, ^fyi^^ym^ Jfi\^^^ 

t^chars^ 9itQlwkh,tk^^^9m^V9^ granted: 
buf d^bi#lfe^Wiw. is- altog^thfr unmec^flT^y. 
OrhsvxWi^i^tJsx^ is,.tK^ich]s;was ^pp^ft- 
|[i^^shft«^jr^^f 4ocoirpor%|i9ft,|iand tbere|ojp 
«i waftc ifWSatBp^ /pr Hw t9; ftste a , prior 
•^ L 4 corpo* 

* ^ ' < •. 

borp<:Jration, The idefcndaitt has then ftated 
iht charter \ri the proper way, ^'that it was 
.^' a:ccepted by the citizens and inhabitants ;?* 
but this id follo^eci by another averment^ which 
is quitef nev(r, ami Which is the foanditix)n of 
another ilfue,' namely, ** that the mayor, at- 
^ tJferttien, aYid corinfnon-councii-men, or the 
'** grrf^td" 'part 'of them, did exercifc the li- 
'* 'berty, privilege, and franchife, of making, 
**- eleftlng, arid 'choofing of aldermen 'of the 
^^^ 'ftid tity, afcf ording to the direftion of the 
>*. feid chartef'.** Now this is perfcftly* niiga- 
tor^ aftd untteceffary J for, if the charter were 
"Ticcepted, they' were bound to aft under it: 
"thisi; Court "would have compelkd them to* aft 
under it. But the plea, in fpeaking of the 
manner in which it was accepted, only fays, 
that the charter, as to the cleftion of aldermen, 
Va? duly accepted; It is' ?mpofribie to fup- 
port' tHis ilTue ih any way. The averment 
proceeds on a miftake, by fuppofing th^t a 
'charter may be accepted in part, and' re;cfted 
as to the reft* The only infrance in which I 
have ever heard it contended that a charter 
could be aroepted in part only is, where the 
King has granted two diftinft things, both for 
the benefit of the ' grantees : there, Iknbw 
that fome have thought, that the grantees may 
take one, and rejeft the other. However that 
may be, it cannot extend to this cafe. " This 
'corporation muft either have accepted in^ toio^ 
or not at all : if they could have accepted 'a 
part only of the charter, they would have been 
•a corporation created by themfelves, and not 
t>y* the King, If a charter direfted that the 
corporation ihould confift of a mayor, alder- 
men, and twenty-four common- council-men, 
|heji could not accept the charter for the mayor 


[ M3 J 

and aldermen 'only, ontittHig the conuriQa- 
council-mert. It is impoiTible to fuppoit thfa 
part of the. pka; therefore this- aUegacion, 
confining the accq>tance-t)f the charter aa tb 
the aldermen only, ought to' be amended. In 
the replication, the profecutor has taken the 
iflRjeon the fiHl averment larger than the plea; 
for it fays, " that the faid mayor and citizens, 
" at the time ofiht making ^f the Jaii letters 
*' patent in the J^id plea mentioned y were not, 
" nor hare, from time immemorial, been'U 
" body corporate, &?f." neither can this be 
fupported- There are thnec other replica- 
tions; one of which introduces the order of 
privy council' for amoving the corporation. 
I read that part t>f the charter in a difFercnt 
fenfe from that in which it is underflxKxl by 
the counfel on either fide : . for the charter 
ftates, that the King referves to himfelf *^ a 
" power by any order of him,- his heirs, pr 
" fucceflbrs, in privy council macfe, under 
'* Teal, to them refpeftivcly fignified, to amove 
" them, or any of them.*' But on looking 
farther into the charter, it appears to me, that 
that claufe does not warrant a general amoval 
of the whole corporation. .It only means, that 
the King intended, and has by the words of 
the charter, referved to himfelf the power of 
amoving one or more of the individuals of 
the corporation who mifbehaved, and not of 
deftroying the corporation itfelfi after- 
wards direAs, that in cafe of fuch amoval, the 
remainder of the corporation fhould eleft others 
in their room in the manner direfted by the 
charter. If that be the true conftruclion of 
the charter, one of the replications is entirely 
out of the queftion. . 

With refpeft,to the other ^plication r it is 


C ?54 3 

idle on this record to ftatc what was the an, 
ciept conftitution of the corporation, before 
the judgment of oufter in the quo warranto j 
/ic^aufc the x^^^p^cjfa^ has by^^jg^s* ||lf a |)at . 
his eledion upon the charter ox Charles the 
Second: he^ muit iland or Mihi ^^^> ^^^ 
therefore it was nugjttory to ftate the charter 
of Henry the Seventh, or any other charter 
panted to thi^ corporation. . ^ 

I have thrown out thefe hints, that the par- 
ties may tajke them into their confideration. 
But if this record goes down to trial again in 
its prefcnt date, and the Court Ihould enter- 
tain the fame opinion that I do now, I do not 
know any cafe that can call more for the ani- 
madvcrfions or cenfurc of the Court. 
Rule abfolute. 

Kew trial in j^ ^f^^ ^^(^ of t^g jj^/^^rg. ^^d Francts in qMQ 

^•©warranto, --, r» ^ * • i j 

wjiere verdidt Warranto^ E. a8 G. 3- new trial granted, 
fe acfenuaiit. (hough vcrdift for defendant ; the Court pay- 
ing no attention to the objeftion that it wns a 
criminal profec^ution. It is in the nature of a 
civil proceeding. The King Vi Bennef was 
mentioned, but the Court paid not the leaft 
attention to it. 

I believe, m the King v. Fra^ds^ one 
ground of the new trial was, that evidence 
was produced on the part of the • defendant 
that profecutor could have coritradifted, but 
Was Jurprijedy not expecting fuch Qvidience 
would have been given^ and was therefw^, at 
the trial, unprepared to anfwer it. 

^T" .•-:;' 

.A * • 



i «55 ] 

H. V 

t\«. » • . • • ■ ■ \ ' J 

tietn ICriaifif, ice. 

(i2.) Of new Trtal$ in Criminal 



,(h) In aHual' Criminal Profecutions. 
i7de ante IV. ^ex v. H^bite and fFard. 

INDICTMENT for perjury y and the de- ^^^"/"b'J; '* 
lendant acquitted ; and a motion was i w.V 
«\ad« ,fpr a new trial, on behalf of the King, ^;^ n^bf^- 
bfiRfvti^. Scvtr^l witncfles were abfent. PFinJ- on anTcouittaT 
im^ % bdd this grantable, not being touch- ^^'^^^ ^*^"^'" 

'Z\'r 1 • I • r 11 ant in criminal 

11% litej to :WhK:h It was aniwered, that new and capital 
trials, inay be in criminal cafes, at the prayer u^nhi^"^!^* 
pf jtfeg defendant, where he is convidled, not at viaion. 
the fuit of the King, where the defendant is {^l^^ 
fkcquitt^d, a|iy more than in criminal cafes, perjury. 
Mriiitih are capital i and where two cafes were 
triced ex farie regis ; Twtfden faid, this was in 
tiie latie'troublefon»e times, et ex ajfenfu partis. 
An^npon this Cur* adv* vult, and gave day 
to fwch for precedents. Note, that afterwards^ 
Mich. 13 Car, inter Regem et Bowden^ an in- 
formation for perjury, and the defendant ac- 
quitted ; and motion for a new trial upon affi- 
davit, that one of the witnefles was abfent by 
rcafon of ficknefs, denied per Cur\ the party 
teing acquitted^ may not be tried again, but 


after conviftion, a new trial may be had for 
the defendant upon good caufe j and 'Triri 
V. pott. rc.G?r. i. Rex v^erfus Fenwicke zn^ Holty 
'information for perjury, and defendant ac- 
quitted 5 motion tor a new trial upon aifEdavit, 
that fome of the witnefles were Icept away by 
the praftice of the defendant, ff^indbaniy J. 
,hel(J this grantable, toeing only in a ctiminal 
c^'fe', not capital.' Keeling {a\dy ncf pre.ccdcnt 
could be fhewn of a new trial in a criminal 
Cafe, any more than in a capital one, for the 
defendant's chara£fer fliall not be drawn in 
queftion fcyeral times, for thfe fame thing, any 
more than his life. Forjler and Twijden di- 
re6bed an inforrhation to be brought for the 
practice, and that if it fhould be found, a new 
trial ihould be granted, to which JVindbanti J. 

11.15 Car a. And this cafe being moved again, Forjiery 

*twijden^ 2ind Keelipgy continued of the fame 
opinion. JVindham contruy and faid, that in 
an information for the praftice, he would not 
have the fame punifliment as he would have 
for the perjury, and therefore held a new trial 
grantable, without information for the praftice. 
Cateri^ the courfe of the court is the law of 
the court, and it is better that one innocent 
perfon fufFer, than that the law Ihould be 

Viiiepaft. changed; et HiL 15 & 16 Car. i. in the 

cafe of Sir John Jackfony where he, upon an 
indidmrnt for perjury, kept back the wit- 
nefles; information was brought againft him 
for the pradlice, and he was ,cpnvlfted, and 
fined, a 1000 marks j and therefore, (Levintz 
fays) as I fuppofe, anew trial was granted i 
this information^ being brought by the direc- 
• tion'of the Court, with that intent, but 1 did 


[ 157' V 

not hear that any rule for a new trial was- given . 
at this time. 

In an information (or perjury found . for the R^^^i v. Daw- 
King, it was^ ipovedupon fevcral affidavits, to: ^^ B.^//staf" 
have a new trial ; and it was doubted by the .49 
Court, that although caufe appeared to them. maygramT^ 
for granting a new trial, if they had power to ncwtmiwiiew 
do this without the confent of the King's rorthcKing, 
counfel, and it feemed to them that they had ina^mfonnaw 
not *, but they agreed, that in debt by an in- v. iw. 153. 
former/ the Court might grant a new trial pi^*'^','^^^ 
upon caufe, without the confent of counfel* 165. 
bccaufc there the party hath an intereft. , 

In trefpafs between $ir J9bn Jack/on and Kcxv. sir 
Pnmate, the verdift being aggjnft Prima$e, he iJ^V&'f/caV. 
indifted the witnefles for perjury : which be- ' *• b. r. t Lev. 
ing at iflue and brought to trial. Sir John "(^« to new 
commanded his fervants to beat and imprifon trial in a crimi- : 
the witnefles who were to prove the perjury, thedefendantis 
by which means they could not attend to give acqimtcd. 

'., , 1 J r J ^ The ground 

evidence, whereupon the defendants were ac- of the motion 
quitted. Primate moved for a new trial of ^'*^» ^°^*ir - 

{ . ... 1 • J I • • • proper hchavi- 

the perjury, which was denied, being in a cri- ourtowitneifes, 
minal cafe, as the party once acquitted fhall t^em from «-" 
not be tried again. But the Court direfted lending to ^ive 
an information againft Jack/on^ and he was «^»^«"*=«- 
thereupoJi convidled* And now it is moved 
inarrcH of judgment, becaufe the information 
was by way of recital, as an iflue was joined, 

• New trial granted withont the confent of the king*$ 
counfel, F, Smith and Frampton^ i /#. Ray. 63. So in Y|jg ^^^^ jy 
3 W, and M. B» R, between the King and Qaeen and 
^tone, in an information for perjury, a new trial was 
granted to the defendant, without the confent of th« 
King's counfel, as mentioned by Mr. Northey in Smith *v. 
Frampton, i L, Ray. 63. # Strange reafoning in the cafe 
in SiJerfint as if the intereft a man hath in his charadlcr 
is not of more importance than any property whatever ! 


[ i5«' ] 

and it dM« not iky p6Myn\fthW ifi iflu^ was 
. joined and appointed to be tried^ i^c'./fd'fi^^- 
allocatur y it being '6nfy by way of iwduc^^nt, 
to the fubftanee of tbe infofmrftteftj' wlwch is 
for the battery and detairiing thfe- wkneflfes. 
a. The inforffMtm is agaiftft Jacl^tri'fw pl=tt-: 
Information cufittg u^. ef B. to beat and lAipiifiili the 'Wif- 

*?ocurin^' B."^ ^^^^ ^^ Jackfm billy tried,- fihd tfctthirtffecfi' 
& c.To"com'«iit and the others not yet tried,^^fo'*i«* ^ft^ ^V 
rorhTcon!?'' they are guilty of Ae battery^'and Itaffrtfcm^j 
^acdy'the n^ettt, and thereib^c Jsckfrn^^^^tLKk)^ ^IS^^ 
KTgiTth"^^ of the procttrenfte'nt, of that Whicii dbeJ'tt&t%iAc5 
others are not pear to havc been done. But ii vhOP-rti^l^^ 
conviacdofthe jj^^ ji© wHo co»»maiids is a pfindJwraHd'WSC-: 

alv^acceflkry, andlie being found guiltif, It^feitlli 

be intended dilt^ the ^faA lii^ doM ^ Irttf ^die^ 

Vide ante & Court ii»petfed- a^flne of if rtJo6 uj)«h^yrf^l^/&iy^ 

po^- and that he fhould find fwmy f<* Jiis ^gbeKr^be^ 

hAviour for a yeat^ before he'lhouM'^fee^diP^- 
Aprifoncr chftT^dd. But bcing fpecialty e^tnttikial 'bf^ 
atthcfuitof the Court, at the ^it »f thfc Kihgi Ai!]^ ftr-' 
i!it?ectoSed dereii that he ftould not be ch^gtd'M*i*P§»p 
atthefuitofa adion Of cxccution during his iMprtibh^Af^ 
le^ttfTte without leave of the Court, ahd^^aftferWaija^^^ 
Court. Primate niovcd to have part of the fin^^toWai^S^ 

Court Eivcs *v ' 

the profecutor his chafges, and of this the (Coi^rt' Wdwd' 
part of the fine. (^>nfider. In the fame t-crnri \h S\p Cb»Us^ 

Stanlie's eafe, the Court woutd not p<trmk KJftl^i 
being in pnfott at the fuit o( the Kingj^td^feli- 
charged. ^v > g ' ' . woro 

I conceive now, if .a priforner is'^nxuftdSy^ 

A the fuit tof the King, the Cdurt wouldigi^^ 

leave to charge- the prilbher with civil Jute^ 

execufibns, £#i-, and for bail t6 firrrender hinfv 

in difcharge'of thcmfelves. ' -^ • « '- '■ 

Rex V. Fen- Sir Jolbn Jack/on proctuped hinfifeJf to be di^Ii 

M.^i5^car.a/' Charged from a large debt, up6n a trial for'itv 

B. R. I Sid. 153. at the affizes in Cumberlandyby the perjury of 

F, and 

[ ^S9 1 
F. and H, of whic}v*pcrjury they were ifidiAed> ; where thm 
and to be tried the next affizes there; of whkh |Ji*^\l^*|^*he 
Sir John Jmkjen being mfwrntdj he procured- cafe of perjury, 
the witfteflcs who were to give evidence againft ^ Kcbrr^^^ 
F, and -H* of the perjury to be arrefted for pi. 33. Jon. iSy 
large fums, as they were going to the afllees, ^ ^^* ^' *^' 
by whkh means the witneflbs could not attend 
to give their evidence, and fo F. and H. were 
tried, and a4:quitted; and upon affidavit of this 
pra6tice> in Trinity term, a new trial was moved 
foFj but the ^purt were in doubt if there fhould 
be. a n^w trials in cafe of pejjury after ac-» 
quia;al;s and if it could be, the)r -would not 
grant if: upon)ia^idavit, Mit dii?e<5ted that this 
prjgHce of Sir f^hn Jackj^i^ %^ it was a great 
noif^enneanp^t'ilh^ld be tri^ by information ; 
aq^j fo. \t,w^ 3t the laft afflzes for the fame 
coufity^ and thf^praiStlce found 1 and now upon 
tbifif vc^i^i \t was often moved to have a new 
tfial !R]|r«the^perjufyj and it was faid, that this 
is en)y a mi(clemeanor, as in trefpafs at the> ^nd that there was not any dan*- 
ger ^Jif|E|j(;biit all the Court (except IVind- 
^^fe^yniitiid, that they could not grant a new 
triaki^ %^ Baf0 of perjury, after an acquittal, 
inaCi^ch 93 the record of acquittal was before 
th^nFij bi^t in.ihe cafe of a new trial, between 
party afld'P^rty, there is not any record of ac*- 
quittal hptty for one party comes here and 
moves for a new trial for a mifdemeanor, &ff . 
and upon this the firft fejiea is ftayed, and 
not ei^o^r^d of record, and fo a divcrfity ; and 
aldioug^ fearch had been made, yet no pre^ 
ctd^m could, be found in this cafe, but where 
the new trial was by confent ; and farther, al- 
though ^^\t nvifchief is great as hath been 
urged, yet we may not innovate the law, and 
they (aid that all the Judices at Serjeants Jnn^ 


[ i6o ] 

in FlSet^Sireet^ were of dieir ^ofunian; /a/', 
that there cannot be any new.cri^ ia this c$le^ 
hut for ckterri;ig.ochers from fiichcontrivances» 
they faid that )they would fine Sir Jplm J^ik- 
fan in a large fum. 

But Winihamy J. held, -.that a i^w trial 
might be g^^uued in the ca£; pf perjury, and 
the books ,^^ pnly^ that the lifcoi a man ihall 
not be put in jeopardy twice for one crime. 
, But in this cafe the puniihn>ent does not ex- 

tend to life, 'and if there be not, any authority 
againft us in this cafe, I underftand that we 
may do fo for the extending pf juftice, thai: 
the innocent may not be punifhcd for the 
guilty, efpeciaily when the Avay or mqajns by 
which the p^ty efc^pf s jufti^e, is a greater off- 
fence than the firft. ' n - . n . 

I Leon. i8o. NotUy In Hilary term following. Sir John. 
Jack/on was brought into Court, and had judg- 

• Qu. Pounds, ment to be fined a looo marks , and to be 
on«iinprifoned imprifoned one i»(?«/^ . without bail, and to 

tor a milde- ,* ^ r - r i* iii • r 

meaner ftiaii find fccunty for his good behaviour iot one; 

not be charged ypo r 

in execution, ^ / a ' i- r« rii r 

without leave. And. in this caic It was relplved upon fe- 
^inftlaic. ^^^^^ debates, that Sir John Jack/on fhould not 
Sid. 90. 211. be charged in execution, nor any. other who 
is fo committed for a mifdemeanor, without 
leave of the Court, at the fuit of any party, 
the fame law as to putting in fpecial bail to 
ad:ions againft him i and To it was faid in the 
cafe of Sir Charles Sianlie the fame term. 
Vidf Sid. 159, 160. 

. Several cafes and reports of the matter re- 
Ipefting Sir John Jackjon have been given^ 
that the reader may, if he can, underftand 
what was determined by the Court upon the 

A new 


( l^t ] 

Ajie# trUA wasgrintcd in perjury on the Lander v. ei« 
JU(^%'Tnfonhati6n> that it was a malicious' 3&'4Jac.T"' 
pfOfcfctrfion ;• but it lliall nbt be granted with- ^'^ewTiSa^^* 
out'rticfi' inforination, unlefs the Attorney- perj^. ^ 
General or King's-counlH confent to it. Fide 
<w/^,^"i575 n. tt Piffl. 

Upon an indiftnnent for a libel, the de- p^**?/-^"^' 
feHdftAt w^S by verdift aeqiiittedj Mr. At- rsaik.'6;6^'^ 
tomfey-Geriiral nnoved for a new trial> but it ^J ^^^j^^^^^dl 
was 'dchied : And the Court faid. That an- fendant acquit-* 
ciendy ?t was never done in criminal cafes triaid^ied"^ 
whcife defendants have been acquitted ; lat- v. parcfl. 31 
tcrly where it has been a verdift obtained by ^ 3^' 
fraud or prafticc, as ftealihg away witneftes, 
fc?f/ k'has been done, * but never yet was done • qu. ? 
merely upon the reafoh that the verdidl: was 
againft evidence. P oft ea Mich. 10 fT. 3. B.R. . on acquittal 

-n TT r ^ v^ ' ' 1* n r • * m perjury, no 

Fer Holt, C. J. in indidlments of perjury we ne%v tdai, tho* 
never do it, becaufe the verdift is againft evi- ^^""^ f^'^ 

J 1 . /• > • 1 ° • *^«»** • Contra, 

dcncet out if ybu pl'ove a trick, as no notice, where then is 
(^c^. it is btherwife. yide 1 Lev. 9. 124. Ne ^^^jj'^"^ "^^ 
Serray fi le def. Joit acquit, alit. s'il Joit 

See a Saund. 23^*. The defendant in error, Dennis v. dc^ju 
iiporiah error in faft, took but a record of »//? ^^' 
prius^'KxiA proceeded to trial at the firft affizes 
aftcrlfllie joined J yet held good, and a new 
trial dtoied. 

The defendant was convifted of forgery, Rcxv.Gibfon„ 
and would have moved for a new trial, with- astra. 96^^' 
o«t apjiearino: in court; infiftinor that this dif- i>cfcn<iant af- 

C^ A r ' - ' ' r • 1 ler convict ioa 

lered trom a motion in arrcll ot judgment, mud be in 
But the Court held there was no difference ; S°""» ^^ ™°r? 

/' lor a new trial 

for the verdift fixes fuch a prefumption of v. % Sira. %^^ 
guilt, that the Court will be fure of him, be- 
V0L.III. M fore 

C i6a ] 

fere they iatitnate any opinion : and evea when 
the irerdid: was brought in> Would have com« 
mined him, had he (laid in court. And the 
Chief Juftice mentioned the cafes ofRegina y. 
Ridfatk^ Pafcb. 1 2 Jinn, and Rex v. Ijuni it 
Wombwelly in perjury, where the diftinftlon 
now t^ken was over-ruled. 

^f^exv.the Indiftment for not repairinfir an biffhway, 
verton; H. 24 and a verdia for the parilh. It wa3 now 
^•«ri?' \ " moved for a new trial (by Mr. Pratt) for mif- 

iWilf. Z98. J. rt» 1- 'J 1-1 

No new trial direction, or over-ruling evidence at the trial, 
iSmsar/fc"*^ by reafon whereof the parilh was uhduly ac- 
quitted on m- quitted 5 fer Curiamy This is a criminal cafe, 
diamentfoinot ^ trials are never allowed where de- 

highwayi fendant is acquitted m a criminal cafe. So 

alfo it is in qui tarn's and informations in nature 

of quo warrantors. 

momjJie^' The defendant was indifted for putting into 

25°& «6 gTL the pocket of one ji/kley^ three ducats, with at 

B. R. I wiif. malicious intent to charge him with felony, 

New trial and was tried before Mr. Juftice Fojier, at the 

defendlnun a"" ^^^ Affizcs for the county of EJfex, and found 

criminal cafe, guilty generally as to all the counts in the in* 

upon the re- >7;jp7*m.^/ 

liortofthejudge «'^^w^** . 

aDd affidavits of Thc Court was movcd for a new trial upon 
the leJdia was the affidavits of all the twelve jurymen, ^^ that 
taken contrary « they Only intended to find the defendant 
ing, and^tTthe ** guilty of putting the ducats into Afoly's 
Judge's direc tc pocket, and did not intend, or underftand, 
^on m point o ^j ^^^^ ^^y j^^j found him guilty of putting 

'' the ducats into his pocket, with an intent to 
'' charge him with felony i and Dod/on the fore-- 
^^ man fwears, that he declared at the bar to 
*' the Court when they brought in their vcr- 
^^ diftj that they found the defendant guiity ^ 

^ putting 

t »^3 3 
^' futti^ tie ducats in Afble/s pdcka, hut 
" mtboxtof^ intent •^ 

Mr. Jtifticc Fofter rq>ortcd. That after the 
evidence was gone through and fummed up^ 
the Jury departed from the bar to confider of 
their verdi6):, and gave a private vendi£l at his 
lodgings that the defendant was guilty \ the 
next morning they all api^eared in court at the 
b^9 and being afked ri they ftood by their 
fwmer verdift, they anlwered they found the 
defendant guilty. That Mr. Juftice Fi^irf 
then told thenn chat there were four counts iti 
the indiftment, and that the evidence for the 
king was only appKcable to the thirds which 
charged the defendant with malicioufly put*- 
ting three dueats into A]hley\ pocket with ati 
intent to charge him with felofny^. and told 
them that the intent was the principal thing to 
becoi^dered by them, and that if diey be- 
lieved the defendant did not put the ducats 
into AJhley\ pocket with an intent to charge 
him with felony^ they muft acquit him, wher6- 
upon the foremap at the bar faid, " We find 
" him guilty of pitting the ducats into his poe-^ 
*^ ket without airy intent.'* But by fame mif- 
take, or milapprehenfion of the Court, or the 
Jury, or of both, a general verdiSl vfsis taken 
that the defendant was guilty. 

After this report, the Jury^ by further afRck- 
vits, fwear that there was a very great noife in 
court, and that when the Judge direfted them 
to acquit the defendant if they believed he did 
not put the ducats into ^/^y's pocket with mi 
intent' io charge him with felimy^ they did not 
ftear or underftand him. 

This queftion having been debased by fi^ie 
^ t\ji counfel on each fide, the Court gave 
iheir opinion for a new tri^ 

. M % Lei^ 

[ i6+ ] 

LtE, Chief Jttftice. — There is ho ddcibt.btic 
a new trial may be granted in 2l criminal cafc; 
and the true realbn for granting new trials^ is 
for the obtaining of juftice; but to grant /i^d9» 
upoh the affidavits of jurymen only^ muft be ad- 
mitted to /be of dangerous confequence; . It 
appears tx> me from the report of my bratberj 
and the affidavits of Dodjon the foreman ^ that 
this verdiSl was taken by a miftake^ for he 
fwears that he declared in court, ^^ that they 
^' did not find, the defendant guilty of any in- 
*' tent," and therefore this is not granting a 
new trial upon any after thought of the Jury^ 
but upon what the foreman Dodfon declared ac 
"the bar when they gave their verdidt. I am 
very clear in my opinion there ought to be a 
new trial, SLtid the rather, as this is^ a criminal 

Wright, Jujiice. — New trials are general- 
ly fuppofed to be more ancient than appears in 
the books, for want of reporters when they fifft 
began to be granted ; every cafe of this kind 
muft depend upon its particular circumftances ; 
-the Jury, every man of them, come here and 
tell us that they were not underftood, for th^t 
they .declared at the bar they did not find: the 
.defendant guilty of any intent. My brotkr 
reports, that he told them if they did not be- 
lieve the intent, they muft ac<juit him ; the 
Jury now fwcar " they did not hear . him ;* 
therefore I am of opinion it is a verdift mif 
entered, contrary to the declai-atioaof the/^r^- 
man, not contradicted by any of the reft, gtthe 
time it was fpoken at the bar i and (hat it is 
moft plainly no after- thought, fo that we may 
keep d^ar of the danger of granting new trials 
merely qpon the affidavits of jurymen : I think 
this man has been convided contrary to the 

C 165 ] 

jiidgttient of his peers, that he has not had 
JudUiufft Parium^ and that we are bound to 
grant a new trial ; and this being a criminal 
cafe is frtore to be favoured as to a new trial, 
than if it had been a civil cafe. 

DeriSon, Juftice. — The Court will be very 
cautious how they grant new trials u{)on the af-- 
fidavits of jurymeny becaufc it would be of 
very dangerous tendency ; but in this particular 
cafe, which partly depends upon my brother*^ 
report y and partly upon the affidavits cf all the 
Jurymen J I am very well fatisfied there ought 
to be a new trial, becaufe it appears both by 
the report and affidavits that this verdill ought 
not to ftand, and that the Jury were miftaken 
in giving a verdict contrary to the direftion of 
the Judge ; and that is what I principally go 
upon, that it is a verdi£l contrary to the direc* 
tion of the Judge in a point of law ; one of the 
Jury faid^ " the defendant had no intent^ then 
the Judge faid, ** Tou muft acquit him j" fome 
of the Jury fwear they did not hear, others, 
that they did not underftand the Judge. 

Foster, Juftice. — I am of the fame opinion. 
I gave no direftion at all in point offaS, only 
of law, '^ That if they did not believe the 
" intenty they muft acquit the defendant,** 
they told me " they did not believe any in^ 
** tention*y* this is a verdiff contrary to law.^ ' 

New trial granted upon payment of cqfts. 

The defendant was tried before Perryn, The King v. 
Barony at the Spring Afflzes, in i777,at G^«- ^°B^R.p^"g^- 
ctftery on an indidment for perjury. The in- 760. 
diftment was found by the Grand Jury for, J^^^^ 
the county, of Gloucefter. It ftated, That^ Qn the Booth-haii, 
the trial of an aftion brought in the King\ t^'^^u'Jt^,^ 
Bentb^ in which the venue was in the county of'o^ oiouceiter, 

•« » y^ ; */i which is a coun- 

M 3 Gloucejter^ 

^ [ i66 1 

ty in itieif, on .GloH€e/isr, bctwcen Lord Duci^ and Dodor 
pu{^Mor^2i Bofivmb, at the Affizcs holden at Ghutefter for 
jury of the the fakl c<mnty of Gloucejier^ the defendant was 
tSdiaS produced as a witnefs, and falfely, witfuUy, 
may be foiand comiptly and malicioufly, did, among other. 
r?eso"rhecounI things, dcpofe in fubftaiice as foUows, 6?r. 
^^^ i?rgc. whereas in truth, &c* and Co the jurors afore- 
by ch^rte" u"°' faid, &* tf . fay that the defendant, &f ^. at the 
STrim« ouV^^f ^^ Affizes held at the /aid city of Gl&^cefter,- 
the county in his evidence, committed falfe, wilful, and 
where they Gorrupt Dcrjurv. Then another aft of per- 

■w ere commit- . ^ K '\ ^ % r n i ^i 

ted. jury* was laid on the lame occaiion, and at the 

be'^^rlnt'id^T^ fame time and place. The record then dated, 
any time before after the appearance of the defendant, and a 
judgment. pj^^ ^f ^^^ g^-j^^^ ^^i^x the Qieriff of the>r/ 

county of Gloucefter was commanded to fum- 
mon a jury of the laid county of Gloucefter 
for the nejct Affizes and General Seffion of 
Oyer and Terminer to be holden for the faid 
county of Glouceftery and that, thereupon, fuch 
proceedings were had, that, at the Affizes and 
General Seffion of Oyer and Terminer holden 
at GlouceJieTy for t\%c /aid county of Gloueefierson 
the 12th of March y 17 Geo. 3. a jury impan- 
neUed and returned by the Iheriff of the faid 
county of Gloueefter^ was chofen, tried, and 
fworn to try the prifoner. 

. Upon the trial, a /fecial verdiSl was found, 
which ftated: i. A charter to the burgefles of 
Gkucefier in the firft year of Ric. 3, whereby 
that king granted to them, and their fucceffors, 
that the town of Gloi^cefter fhould be, " uKus 
ioSeger eomiiatus per/e corporatus, diftin^y 
et fenitus. /eparatusy a diSio comitatu . Glou- 
'< ceftirienfi in perpetuumy et non parcellum ip- 
/iw comit0fus Glouceftrienftj $ et qnod idem 
comt^tus fie corporatusy </ a diSto^ aomHatu 
^^ GlQuceftrieufi SfiinSw ot./epatatmy cetm- 

<^ tatus 

[ »67 ] 

^' taius ville Glouceftrie fro perpetuo nomhfim 
''* /mr ; falvis tamen et refer vatis nobis, et haft- 
*^ redibus noftris, quod juilitiarii ad affizas in 
'^ comitatu Glouceftrienjt capiendas aflignandi> 
^^ juftitiarii ad goalam in comitatu Glouceftrie 
" tnfi liberandam aflignandi, nee non juftiti- 
'^ aril ad pacem in dido comitatu Glouceftrienjt 
^^ coniervandam affignandi^in tenandas feffiones 
'' fuasy ac etiam vicecomites comitatus noftri 
^^ Gkuceftrilnifis^ in tenendbs, comitatus fuos^ 
'^ libere poflint^ et eorum quiltbet poflit, 10- 
'^ gredi villam fradi£l(if»y er ea£lem ftffiones 
'^ et comitatus tenere d& quibufcunque rebus 
^^ et materiis extra diHum eomiiatum ville 
** Glouceftrie et infra comttatum Glouceftri-- 
^^ enfem emergentibus, ficut ante haec tem- 
*' pora tenere coniueverunt prefenti concef- 
" iionc noftra in aliquo non obftantse.f* The 
charter then declared, that the baiiifFs of the 
town of Gloucefter, (hould be (heriffs of the 
county of the town; that they fhould hold 
county courts from month to month; that 
they fiiould exercife all the fame powers, &c. 
belonging to the office of fherifF, within the 
limits of the town, as other iherifFs exercife in 
their bailiwicks; that all writs, ^c. which 
would have been diredted to the fherifF of the 
county, if the town had not been made a 
county in itfclf, fhould be direftcd to themj 
and that no other fherifF or his bailiffs fhould 
enter the town to do any thing belonging co 
the office of a fheriflF, except the fheriiF of th^ 
county of Gloueefter to hold his county courts 
as aforefaid: 2. That this charter had been 
accepted : 3. That it had been confiriried by a 
charter of 5 Hen. 7. and declared to be by au- 
thority of parliament : 4. A charter in the 33d 
year oiHen^ 8. under the privy feal, and declared 

M 4 to 

,[ i68 3 

•ftLiimcotiporaosd the burgeiies of Gloute^dtf^ by 
tfafiiiameipf the Matybr and Btirgefiesof theci^ 
^Ghuc^er. and city of the county f^Ghucefitr^ 
andtioadfc it a city, and confirmedxo.the laid city 
the former grants making it a county in itfelf : 
5. That this charter was accepted : 6. Axhar- 
ter in. the 14th year of Car. 2. confirming all 
fdrmer privileges contained . in prior charters 
^hich had been furrcndered; and containing 
aiclaufe in effeft the fame and nearly in thb 
fame words with that above fet forth froni the 
charter of iSir. 3:7. That this charter cf C^r. 
ii..was accepted : 8. That, during all the time 
afore&id icommiffions ofnifiprimy afiize^ oyer 
and terminer, and general gaol deJivery, *had 
been, from time tx> time, gr^itcd to • divers 
j^itfticcfe, to hear and determine, try and ad- 
jiidge upon the feveral matters and things to 
fmch commiflions belongings and arifing, in 
the /aid city of Glouceftery and tt) deliver the 
g^ols of the feid city ; and that other, and fe- 
parate commiflions of the fame fort, hadi fro^ 
time to time, during all the time aforefaid, 
been granted to divers juftices, to try ami de- 
termine, ££?<■. upon the fcyeral matters and 
things to fuch laft-mentioned corhmiffiohs be- 
longmg, and arifing in the /aid county ofGlou- 
c^r, and to deliver the gaols of the laid 
county : 9, That the commiflions both for 
the, city and the county, had been executed 
#/ a "p lace m the/aid city of Gloucefter calted the 
Bot^h Hall: lo. That, during all the tioie 
aforefaid, the jurors for the. city had enquired 
and noade prefentment of fuch matters and 
things beloiiging and given in charge to the 
jiirord fot the city, and arifing in the faid. city 
Qi Glmcefierm fhe faid place calkd the Btiptb^ 
. . balL 

t 1^9 1 

hallf and that fuch matters and things fb pn^ 
fcntsd hy the faid jviror8>y v^en tried» had been 
tried by a jiary of the faid €ity of Ohwtfttr; 
II. That the grand and petty juries for- the 
€Qunty had cxercifcd the fame jurifdidtion as to 
matters arifing within the county: i2. That, 
during all the time aforefaid, the fcflions of the 
})eace for the county had been held in the 
Booth-ball: i j. That the iffuc in the indift- 
ment mentioned had been tried by a jury of 
the county in the Booth J:?all: 14. That the de- 
fendant, being then and there fworn, did upon 
his oath, ia the faid place called the Booths 
ha/lj commit wilful and corrupt perjury, in the 
fevcral matters charged in the indidtment. 

The obj«9:ion to this indidlmelit was, that 
the offence iiad been committed within the 
(ounty of the city^ and that the juries of the 
county at large had no jurifdidion to find or 
try an indictment for any crime not commit- 
ted in the county at large. 

It came on to be argued, on Wednefdayy the 
23d of May^ by Bearcroft for the prdfccution^ 
and Baldwin for the defendant. 

The Court dircfted Baldwin to begin. 

He faid^ the general pofition was clear, that 
offenders can only be iridafted and tried by juries 
of that county in which the offence was commit-* 
ted. This nicety was formerly carried fo far; 
that, 'till the ftatute of Edw. 6. (a) if a perfon (a) 
received a mortal wound in one county, and ^ * *j ^ ylde' 
died in' another, the crime could not be tried i; 
in either. 2 Hale's PL Cr. 163. a Hawk\ ^-31. §13. 
^. 110^ % 34, 35, 2(^* 4 Black. Gotn. 303. Sted*' 
man's Ca/ky Cro. Eliz. 137. Richard Thomas's 
Cafe, ibhd. (in which, the indiAment being that 
the defendant at the Caftle of Lincoln falfely 
^epoied, without fhewing in what county, be 


[ tyo ^] 

wa$ difcbai^ed> . and iSalk.uSS. Siichvhe- 
ifig the gfinfral principk^ the coun&Librthe 
prc^eoucor mi^ endeavour to diftingiiifli this 
c^fe by (bate * of the claufes in the charters 
found by the fpecial verdi<ft. They will pro- 
bably rely on the ckufe in. the charter of ^'fi. 
3, But by that claufe, the juftices for the 
county at large are dnly auchorifed to enter 
into the towti, and to enquire of things thercy 
which had arifen oot of the .county of the 
town. The true meaning of this charter was, 
to give the ufe of the Booib-ball to the judges 
aixl juries for the county at large> and to au- 
thoriie their proceedings there, relative to matr 
ters within their jurifdiftion. At the Old Bai- 
ley, which is within the city of London, juries 
for the county of Middk/ex fit to try offences 
committed in that county ; but^ when perjury 
has been committed there on a trial befine a 
•Middlefisx jvffj, fuch perjury is never tried by a 
jury of the county of Middlefsx, but by one of 
-the city of landon* In the celebrated cafe of 
JEilizabetb Coming, after a profecution at the 
Old Bmley, for a crime committed in Middle^ 
fex, the indiftment of the witneffes for perjury 
niFas laidin the city. In like manner on a trial 
4t bar in WMfiminfier, Ball, from Torkfi:>ire for 
ea^ample, though the caufe is tried by a Tork- 
fiire jury, if perjury be committed by a wit- 
nefe, he muft be indifted and tried by a Mid* 
:dif/€x'}\xry. In z Hawk. ^. 5. § 1 9, where this 
:eafe*of Gleucefier. is mentioned, and in the au^ 
tltorities there cited, all that is meant is, that 
juries of the county fitting in the city, may 
-i^nd and try offences committed in the county. 
.The Q9fe 'mPtfpbam,. 16. (alfo reported in An^ 
4^/q^^ a^'i} whicbwiil probably be mentbned 
4m the iQfther :fide> jfecms to be in favour .of the 



<kfeBdaat, for the iecijm only was^ that the 
jufliQea faf aflize and gaol delivery might fit in 
the ckjr for thiogs whieh happeMd wiihia the 
county ; and in a note at the end of the cafe it 
is faid» tbat^ by the commiflion for thf county^ 
a thin^ which happens in the town cannot be 
detennined, albeit it be felony committed in 
the Hall during the feflions (a)* Conliderable (a) 
paioi have bc«i taken to enquire if there is ^^^ '^' 
any precedent, or inftance, in the city of GIom^ 
iifier^ like the prefent cafe> and none has been * 
fcund. No. inconvenience will arife if the 
Court fhould hold that this indi£fcment cannot 
be fupported^ becaufe the verdid dates, that 
there are grand juries in the city, who may find 
offences committed in the Bootb-balL . 

BearcTi^ty for the profecution, argued, that 
the perjury having been committed on the trial 
of a county cauiie, it muft of neceflity be taken, 
that, at that time, the (pot where the offence 
tx)ok pkce was part of the county at large. It 
is no uncommon thing for the fame fpot to be 
confidered, for different purpofes, as beii^ 
within different juri£diftions. The fpace bcs- 
tween the high and low water marks, when 
dry is within the jurifdiaioaof theiheriff, but 
when it is overflowed,, the flvriff and admi- 
ralty have divi/um imperium over it ( i ). Bo- (,) 
fore the charter ofRic. 3* this fpot was clearly vid.5 co.ioy. 
part of the county at large. By the fi:atute 
of 6 Ric. 2. cap. 5. the juitices of afiize and 
gaol delivery ai*e to fit in the county towns of 
the difierent counties ^ by 13 Edw. i • cap. 30. 
trials at nf/i ^prius are to be held before the 
judges of affize; and the authority of the 
judge at mfi prius is by the commii&on of af* 
fise, as is laid dawn by Lord Holt (Sglk^ 
454)* By.giviug authority to the juftkes for 


0. ryy p 

the <*6iihty at large; to try county tauftiiwIt^M 
the limits 'Of* the 'town,' tlie cJhaitcr. of *Ar: 5 
hiade fchie ^ct whct^'they fat = part of-riief 
i^buhty at IjJr^e 'for^that purpofc.' ^Th^rtmt 
vn which the perjury was committed u^s aC 
;^ /)ni^/. Th* whole prooeedrngs • wert void^ 
tmkfs the Bbofh-hall be tonfidered as being, 
at that time, part of the coonty* All ' the 
jtidgts \n Q^ten^ Elizabeth^ nm^j in t^iefcafe 
reported by Pophamy agreed, that they might 
fit m the city for county caiifes, and tkat the 
king mighti in making a fcparate county^ fave 
and except part of the jurilcliAibn witlrin if, 
iptrhith the county from which it was taken had 
in It before. By the faving in the charter of 
Rtc. 2: ^^^ ^^^ appertains to, and is con- 
nefted with, the execution of xommiflionB in 
trhe county is neceffarily faved. It is true,^that 
a ffclbriy committed in the Hall during the af- 
flies fbr the county, muft be tried in the city, 
becaufe furfi offence is entirely unconneftcd 
with the execution of the commiffions for the 
eouhty. The cafe in Pojpham is more ^late- 
ririly i^epOrt^d by Jnder/oHy and be ftatesi that 
the Judges were of opinion, that it was the in- 
tent of the charter, that the town of Gkucefter 
Ihotild continue, for the purpofes mentioned 
rn the Exception, to be pare of the county at 
lairge. ' It may be true, chat indidbments f<^r 
perjury before MiMUjex juries 'at the Old 
Bailey y are laid and tried in Londm, but no in- 
ference can be drawn from thence with regard 
to Gloucejier. There may be fome particular 

?rovifions for that purpofe in the charcers of 
xndony which charters are confirmed by aftof 
parliament. Perhaps thfe profecution in die 
prefent cafe might be: in either county: In 
t)oint of iawi the Boath^bqll was[, iat. the 
• ' tinie> 

t 173 3 

unie^.in the county at large^ an4; in point. of 
hQ>, and local fituation, ia the CQuni^yMof thie 
city, and, .therefore^ the offence nrught be ({aid 
oka^obeen comntittcd either in th^ one. or 
the mher, ' > ; , 

Iu)rd.MAN$Fi£LD. — 'It &e&(is:to me^.^sat 
prefent advifed, to be the better opinion,, thai; 
the ctim^ might be laid in either county -,> :but 
thp/]Ud3ipn'Dow bef<»!e us is, whether it^could 
be laid in the county at large i The 4oubt ber 
fore iJio Judges,, in the cafe inPopham, yf^ as 
Mr. Baldwin ftates it. (viz. whether the judges 
coujd fit^in the city ,to try matters, arifiog i& 
cbercounty at large) i Btit it is material tp ie^ 
how it was folved*- In the. time oi Rie., 3* the 
town was part of the county at large* ^ By ht$ 
charter it was made a diftind county^ but m^ 
an exception, .that the judges for. the county .^ 
large jOMght ftill. try caufcs there. The king 
cannot by his charter give ju<%qs a.po>yer .tp 
try in one county offences committed in anor 
ther.M • That was- admitted in the.c^fe before 
the Judges, as reported by Anderjm. Bji^, it 
was anfwred, that he had continued the qi^y 
a$ paitt of the county at large^ If this, is fu, 
the jcaufe in. which the perjury was committed* 
W93 tfied^ in the county, at large;, aod thje .wit^ 
fi^% ^was examined, and the criiYie^ committed 
bthe.iCaunty ^t large. This diftinguiihes xhe 
pneieoHcafe from that of the 0/^ ^rtiV4jy,( whloh 
ftruck roe ftcongly at firft. The cityiof Xa«v 
im has many chancers and cuftoms , confirmed 
by .^ft, of parJiament, aad the cuftom of trying 
offeaces . committed in Middlejext at the ,0/2 
^^Hfy, has pr^ably been .confirmed, by aft of 
parliament j for otherwifc it would be void* 

WiLLEs, Jujiice. — had not been for the 
i:»fe of the Old Baileji, I fhould haye had nQ 

^ doubtj 

C ^74 ] 

doubt ; but;, with regard to that^ ther« is no 
occafioii to iappofe a grant or cullom cotir 
fir49ied by aft of parliament, bccaufe the whole 
Court feems to think, that the indi6tment may 
be laid either way^ and, at the Old Bailey the 
ufage' has been to lay the inds£hnent in the 

AsflHtmsT, Jt^ice.'^lio argument can be 
^rawn from the pra&ioeat the Old Bailiyy uiv- 
le&jwle knew more exiidly haw die ca£e'^dsj 
th^re may be an a& of ^liament entibling 
the judges to try matters there, which arife in 
the county of Middiefea. Here, F think, the 
indiftment would have been good either way. 
l^he king cannot, wichput an z6b of parlhi^ 
ment, give the judges a power to cry in one 
counlty^ fa£b arifing in another. Therefore, 
Ch^^ meaning of the charter muft have been, to 
continue the town as part . of the ccxinty at 
large, for the purpofc of trying county 
caules* * 

BvLLM, Jufiice. — I am of the fame opi- 
nion. There is no way of fupporting the ju- 
dicial proceedings at Gloucefier from the time 
of Ric. 3. but by confidering them as haring 
been had in the county at large $ becaufe I 
take the law to be clearly as my lord and my 
brothers have ftated it. We have no autho- 
rity to compel a jury to come, or to admini- 
Aer an oath, out of the coqnty where the mat- 
ter arifes. Therefore, the meaning of the 
charter muft have been, to leave the place as 
part of the county at large. I am very ftrcmgly 
inclined to think the indi&ment might be laid 
In either, but, if there is a difference, I thiiiJc 
this the moft proper way. 

The defendant was this day brought up for 
judgment, when BuUer^ jHftice^ read the re- 

a port 

C «75 ] 

port of thd^evidence, and Dunning was heard 
on his behalf 5 after which, the Court ob- 
fcrvcd, that, from the ftate of the •evidence^ 
the convidtion s^peared extraordiiMiy, and 
hinted that a new trial would be proper. 

Dunning fs^id, he fhouid have made a mo- 
tion for that purpofe, if he had thought it was 
competent, after fuch a long interval of time 
fince the conviction. Upon this, Lord M ans« 
FIELD declared, chat it was itill competent be«- 
cauic the report of the evidence coming regu- 
larly now before the Court, if enough ap- 
peared CO ndfe an inclination in them ta think 
the defendant ought not to have been con* 
viftcd, they could only grant a new trial, or 
poftpone forever pronouncing judgment ; for 
that there wo\ild be an abfurdity in a judg- 
ment on a convi6tion for perjury, where a fine 
of a (hilling fhouid be impofed as the punifli- . f^y 

ment. ' Bin v. Bar* 

A new trial was awarded (a). ^.^Yi^il!^} 


[ 176 3 

IX, ilDf oQ)er patters reljpetting 

f * 


(i^.) Of Defendant^ entering up 
yudgment againji himfslfi where 
Plaintiff (who had recovered a 
VerdiSi with Jmall Damages} 
would not enter up "Judgment. 

Pette^ ^^ T) AX DAL of Lincoln' s^Inn^ moved, that 
Hockley, E. J|3 inafmuch as the plaintiff had obtained a 
Ihk^^'i^^ verdift againft the defendant, and would not 

enter hisjudgnicat (becaufe he was defirous of 
bringing trefpafs for the fame trefpafs) that 
the defendant might enter the judgment againft 
himfclf upon this verdifl j fo that he might 
have error, or attaint ; and cited a precedent, 
Py. 194. HiL 6 Jac. B* R. between Hoggsflejh and Hum- 
berSi in covenant where the defendant was fuf- 
fered to enter judgment for the caufe aforefaid 
againft himfelf, where the plaintiff would not 
enter it, on account of the fmallnefs of the da- 
mages } and it was ruled accordingly in this 
cafe by Dodd and Chamberlaine^ 


t 177 ] 

neto %tialii, &c. 

(14.) 0/ a VerdiB right in Part^ 
and wfong in Party and of one 
Defendant being found guilty ^ 
and anotheir acquitted. 

OJl'URi a bankrupt, at the timcf of his gd- Parker ctai. 
^ ing oflF, left fome plate with his wife, who ?.• ^°f ^- ^' ^ 

• 1 -r ^ -If 1 • Geo. 2. B,R. 

in order to raife mohey upon it, delivered it to aStra.8i3. 
her fervant, who went along with the defend- aii^ wUh the 
ant to the door of Mr. Woodix^ard the bank;ef , eflfeas of a 
and there the defendant took the plate into his converfion? * 
hands, and went into the (hop and palwned it 
in his own naaie, gave his own note to re-pay 
the money, and immediately upon the receipt 
of it, went back to the bankrupt *s wife, and 
delivered the money to hen In trover for the 
plate, the Jury (confidering the defendant 
afted only as a friend, and that it would be 
hard to punifli him) found a verdidl for the 
defendant. But upon application to the Court, 
a new trial was granted, upon the foot of its be- 
ing an aftual converfion in the defendant, not- 
withftanding he did not apply the money to 
his own ufe. ' And upon a fecond trial th^ 
plaintiffs obtained a verdid for the value of 
the plate* 

N.B. A difficulty arofe upon the motioa 
for a new trial, which was this. There were 

Vol. IIL N other 

Scd qu. ? 

[ '78 1 

Other things befides plate in the declaration, 
and as to thenn the verdift pro def was right ; 
and yet a new trial muft be granted-, ppon the 
Ifchdc. But xiTi corifideration, At^<fc\OT heW, 
that could be no r^on, ta rcfofe i^ new trial, 
for if the merits as to thofe other things were 
with the defendant, it would be found for him 
as to them. 

But it ^as agired on aU hmds^ ^&at if one 
defendant be acquitted, and aaotbcr found 
guilty, that diefendant can have no ijew trial, 
Strange ;pro quer\ ij 

In the cafe oi Edic and Mother «/. the^j? 
India Company, ante V. there were two 
counts in affumpfit, upon twp bills of ex- 
change, th« Jury found for the plaimiflF on the 
lirft count, which was right— For the defendant, 
upon the fecond, which was wrong, and the 
verdi^ was fcK afide generally* 





[ 179 ] 

IX. iJRf ofl^et S0attttsxtt^tttini 

(15.) Tf^here the Court is divided on 
Mati^n for a new Trial. 

AT nijiprijii plaintifF had a verdia:, and E^f^f^^^"^' 
on a motion for a new trial,' the Court m. Jo Geo. 1. 
were "divided in opinion ; and no rule being Barnes, 442. 

I ' -1^ • •«* fi t* *• 1 • t Court divided 

rtlade, primnfFwas at liberty to fign final judg- on motion for 
tntnt.^Cbapple fof plaintiff; Eyre for de- '^^^^^^^^ 

fendSht*. ' judgment. 

On a c^fe made upon a point rdferved at chandler v. 
the trial, where a verdift was found for plain- l^l^^^^^o^i 
tiff, fubjedl to the opinion of the Couft; Mr% thertatutcof 
Juftice Abney and Uu ]uKict Birch delivered H.^'rlo/z. 
their opinions, that though plaintiff cannot re- Barnes, 458. 
cover the value of Bank notes of which he not'^ecove^fJr 
was robbed to the value of /. 960, for want of "^""^^i ^® *f°«^, 

r/v»- ir** I r-i' i •/• not fnniciently 

a lufEcient defcription thereof in his advertife- defcribc, but 
ir.ent, in the London Gazette^ yet he ought to ^J.^J^^'I^^j^^''^' 
recover for what is fufEciently defcribed, (viz.) f onbed he may 
his watch and money, value {^. 10, the words ^^^"^^^^ 
of the late ad: being to be taken diftributively. 
Lord Chief Juftice and Mr. Juftice Burnett 
were of opinion, that nothing can be recovered. 
The words of the late a6t are. That plaintiff 
fhall not maintain his a<5lion, unlefs he defcribes 
the robbers, i^c. together with the goods and 
cffefts of which he was robbed : twenty days 
before the advertfifetnent are given to the per- 
fon robbed, to rccoB-c;^ a particular defcrip- 
tion. The party roBwfekaught -to difcovcr> 

K 2 .^ as 

[ 180 ] 

as well as he can, all the goods he loft^ to give 
light to the Hundred to take the robbers. 
The perfon robbed gets nothing by the tak- 
ing ; the public indeed are benefited. A per- 
fon robbed of a large fum xyf money, pro- 
bably cannot farther defcribe it than that it was 
in gold and filver; but perhaps can defcribe 
other particular things then loft; which he 
ought to do. The defcription of Bank notes 
by numbers, dates, and fums (which in Ais 
cafe were omitted) are highly ufeful for dif- 
covery. No two have the fame marks. If 
plaintiff, at the time of his advertifement, had 
not known the numbers, &f^« but recolledted 
them afterwards, the aAion would lie* Bujt oo 
the trial he acknowledged that he knew them, 
and they were all particularly entered in his 
pocket-book at the time of the advcrtifecqent. 
The Court being divided, no judgment could 
be entered on the verdift. 

* ^ 



[ i8i 1 

IX. ^fotljet Jitters; retjpetttns 
neto %xiais, &c. 

(i6.) Of fetting aftde NonfuitSy 
and Nonprofss. 

ion v. 

1^ Nin-thumherland at the aflizcs, a plaintiff xhompfc 
in ejeSiment was calkd and nonfuited, and Hudibct,M. 15 
this entered upon the record before the venire^ 1 sfd. 1^4. 
or dijiringasy &c. was put in, and this appeared ^^^^^^^l 
hytht pojfea now produced, for it is only a fore venire or 
lionftiit indorfed upon it, and thejuftices of ^^^^^as p^ 
niftfrijis had not power to nonfuit, for their 
power is by the Habeas Corpora^ and for this 
caufe the Court difcharged the nonfuit, and 
gave leave to the party to proceed again. 

An aftion of indebitatus ajfumpjity for mo- Temple v. 
ney received fer the defendant, to the plain- ^iff b5r/ 

tiffs ufe, Lucas, or lo 

Upon evidence, the cafe came out thus : ^ffumViit for 
The plaintiff and another laid a wager j thp de- money had and 
fendant held ftakes ; the plaintiff brought cvi- TShTdv" 
dence, that he had won the wager. Blencowe 
that tried the caufe, being of opinion, that the 
plaintiff had miilaken his a6lion $ becaufe this 
money could not at the time of the aftion 
brought, be faid to be money received to the 
plaintiff's ufe ; £nce the defendant was not to 
pay the money, until the wager was proved to 
te won,— The plaintiff was nonfuited* 

N 3 The 




Bennett qui 

Tarn, &c. V. 
Smith. M. 31 
G. 2> B< R« 
I Burr. 4c I. 
A regular 
DOn prof. 
as^aiiiA a com* 
Rion informer, 
rernfed to be* 
fet afide* 

• Mr. Juftice 
Porft.r was not 

C i»2 T 

The plaintiff now moved to fct afide the 
nonfuit 1 becaufe occafioncd by the Judge's 
miftaking the law. 

Conrt. — Aftion \^ell brought > for- upon the 
wager won, the money was aftually the pbin- 
tiflTs, though he could not receive it before 
the fadt was made appear, — SeJ adjournatur. 

The Court refufed to Jet afide a non prof, re^ 
gularfy obtained by the defendant, againft the 
plaintiff, who was only a common informery 
(who fued for a penalty of ;^. 10,006 upon 
the ftatute of ufury) though the plaintiff of- 
fered to pay the coff s of letting it afide. 

For, though Lord Mansfield fcemed to 
think that the cafe might, perhaps, have borne 
a different confideration, in cafe the plaintiff 
had been iht party really injured, and had 
fued in order to come 2X]ufiice and reparatimy 
for fiich real injury \ yet not only his Lord- 
ihip himielf, but 

The whole Court (now * prefent) wtre clear 
and unanimous, that where a mere common in* 
farmery who fued for punishment ^»{y, had 
been guilty of a flip or miftake which put 
him (mt of court y and intitled the defendant to 
enter a non prof againft him, they would not 
exercife their difcretionary pcwer^ in fetting 
afide this non prof thus regularly obtained, 
and reftoring the mei'e common informer to an 
opportunity of proceeding fqr the fake oipu- 
nijhment only. And <hey diftinguiflied the pre- 
fent cafe, from cafes of amendment ^ which 
indeed the Court would not fcruple to make, 
even in cafes of qui tarn anions, where there 
was any thing to amend by ; and which they 
bad frequently done, in fbme inftances that 
were mentioned, or at leaft hinted at, as, in 

I particular^ 

pafticilkr, thd giving leave to change: fhi 
county in a gui tarn adlion, -on Mr a Nortcn'^ 
motion, not many terms ago. 

The Court refufed to let afide a nonfuit Hutchiofoa 
voluntarily Tuffered by the plaintiff, and to give BricerH^'w 
him leave to reply iie novo. He had rcjrfied, g. 3- b. r. 
" that the cau/e ofdHion aYdJe within fix' years:" ^ omrt wui' 
which faft he could not prove. He wanted, "^^ ^^ ^^^^<^ 

y r r rii /•» J \ ^ noniuit vo- 

therefore, to let afide the nonfuit> and reply lumariiy fuffcr- 
de novo : which, if he had fucceeded in, he *^^^*"^fJ^% 
would have replied, ^^ that the writ of latitat to reply ac 
« iffued within the fix years," But ;;«;^^^^|; ^ 

The Court ftid, that that would make a wiii make a 
quite new quefl:ion i which the plaintiff had be- ^"^ q'wftion. 
fore pretermitted, and had put the ifllie upon 
quite another foot, and upon a point which he 
could not efi:abli(h. 
Rule difcharged. 

Mr. Dunning was for the motion : Mr. Wal^ 
lace againft it. 

Fide Robin/on v. Raley^ and Aider v. Chippy 

poftlX. (21.) 


Trover for a great many goods, to the value Bufcaii and 
ofjC.yoo. Upon not guilty pleaded, this caufe SxhU^Sn* 
was tried at the kfl: affixes for the county of » bankrupt, v. 
Norfolky before Lord Chief Baron Parker, Geo^'sl^c. b. 
Whereupon it appeared on the plaintiff's evi* 3 wus. 146. 
dence, by feven witneffes, that Thickpenny was grantedTo " 
an innkeeper ; and that he not only fold li- pia»ntiff, with- 

I • /v yi r '^ .'7 \ • 1' • out cofts, he 

quors to his guefts (hofpttanUpus) in his inn> having btenim. 
but alfo fold divers quantities of wine, rum, fJ^^d'"^VJ,e"" 
and brandy, by four, five, and fix gallons at queftfon, as to 
a timfe, to feveral perfons living' two and three ^^\^^^^^ 
miles diftant from his inn, for them to retail 
out and fell again, and had dofie thus fbr fome 
years ; whereupon it was infifted bv the coun- 

N4 ' fcl 

i; i84 1 

fel for the phintiS^ at the trial, thafi this fort 
of trading by an innkeeper, niade him liable 
to a commiffion of bankrupt : but the Chief 
Baron, without hearing ^ny o^her evidence, 
was of a different opinion; and ordered the 
plaintiffs to be nonfuited, with leave to nK>ve 
the Court for a new trial, without coits, in cafe 
he was miflaken in his opinion. 

And now, upon the motion of Serjeants 
TFbitaker and ForfteTy to fet afide the nonfuit, 
the Court was clear of opinion, that the plain- 
tiff ought not to have been called, but the 
matter ought to have been more fblly fifted 
and gone into at the trial j that it not appear- 
ing to the Court here-, what proportion ^Thick- 
penny s trade in his 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 nonfuty and 
granted a new trial without cofls* 

Nota. It was faid by PVilmoty Chief Juftice, 

that if l*hickpenny's trade and profits- in his inn 

was much larger than his trade ^d profits 

abroad out of the inn, he fliould incline to 

• Sed qv. think that he was not * liable to be a hank- 

minat[onr^e ^^P^' If it fhpuld come out in evidence 

not contra > that Tbickpennv got /. 600 per annum in his 

And qu. far- • j/ -iri- 

thcr, which arc mn, and not 600 s. per annum by lending out 
the moft con- and felling liquors abroad j he feemed clear 
agreeable to in opinion, that he could not bo a bank- 
law? rupt. However, as there was general evi- 

dence that he was a trader out of his inn, the 
plaintiffs ought not to have been nonfuited* 


Rackhamv. The plaintiff i?jfi2?/i;» being poflTefTcd of a 

7<-aui>5c Thorn- (rnall tenement or cottage at Tbeherton. in the 

c B.VviiVasi. county of Suffolk, and an inhabitant there, and, 

piaintiffciaim- 35 f^ch, claiming a right to cut down rufhes, 

cvtnilhesona (WlthoUt 

[ t9s 1 / 

(without ftint as to quantity) on a certain waftd common, cuts 
or common there, called Thebertori * Common which defend- 
or Hime Common ^ and to take and carry awaj^ ^oml\^'^^* 
the fame for his own ufe ; employed RuddiSind Phintiff uon- 
F arrow as his fcrvants for hire, to cut down r^^^* g*Jf ^n^a 
raflies for him there; who accordingly did cut' fuppofuion that 
down and mow about fire or fix loads of rulhes ftcient prope^^ 
for the pliaintifF; which ruflies io cut down for to maintain tha 
the pkintifF's ufe, and lying and being upon SwJilidc. 
the wafte or common, the defendants took, and 
with ^arts and carriages, carried away 'the 
fame,' and converted them to their own ufe';' 
whereupon the plaintiff brought trover againff 
the defendants, who pleaded not guilty; iand 
iffue being joined, this caufe came on to be 
tried before my brother Whitaker^ at the laft 
Jummer-affizes held for the county of Suffolk^ 
when the plaintiff proved he was an inhabitant ^Plaintiff at 

c cy*i -L \ J u /• i_ 1 • • * the tnal proved 

ot Thebertonj and that as fuch, claiming a his claim of 
right to cut and take away rulhes on ^heberton ^'^^^ '*l*="', 

r> 111*/- T f* . rufhes, &c. bnt 

Lmmon^ he, by his fervants, cut down five or the judge non- 
fix loads of rufhes, and that the defendants ^"^'^^ J*i™ . 

I J . , ' , 11/- without heann J 

took and carried away and converted the fame tiic defendants, 
to their own ufe ; whereupon my learned bro- 
ther, being of opinion that the evidence given 
for the plaintiff was not fufficient to fupporc 
this aftion, was pleafed to order him to be 
nonfuitfed upon the merits, without hearing 
counfcl, or any evidence for the defendants. 

And in this term, upon producing an affi- 
davit of the fafts above, I moved for, and ob- 
tained a rule upon the defendants, to fhew 
caufe why the nonfuit fhould 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 IVhitaker 
ought to have left; it to the Jury ; and that he 
might make his report to Mr. Juftice Nares^ 


Ilia Judge. 

[ i8^ ] 

in Qrder for him to date the. fame tp the 
Courts which, at another day^. he accordingly 
did^ as follows : * 

^^h« report of Mr. Juftice Nans. — My brother PFhitaker 
reports, that this is an adtion of trover for fix 
loads of ru(hes, which, upon the general if- 
fue, came on to be tried before hifn at the 1# 
affizes for the county of Suffolk, when the 
plaintifF called fcveral witncffes in order to fup- 
port and maintain this adlion. 

The firft witncfs was John Rackham^ who 
fworc that the plaintiff rented a fmall tene- 
ment or cottage at Theberton ; that about a 
year ago he went to help the plaintiff to mow 
rulhcs upon the common called Home- Com- 

^moMf but thefe (fays my brother IVbitaker) I 
underftand not to be the rufhes in queftioo. 

That Rudd and Farrow mowd 

fhe rujbes in quefiion for the f lain f iff, about five 
or fix loads, which were all about the value of 
ten ibillings a load. He further faid^ upon 
crofs examination, that the rufhes were mowed 
in the night, and that his uncle (meaning the 
plaintiff) kept a hog, but no other ftock upon 
bis tenement. 

The fecond witnefs was Henry Scarlet, who 
proved, that the defendants Jeffi^ and Tbomfm) 
who were farniers, having or claiming fome 
right of common upon die pUce where the 
l-uihes were cut, came with their carts, and 
carried away the rulhes which had been cut 
down for the plaintiff by Rudd and FarroWt 
and that all poor people had ^ right to cut 

. ruihea. That this was all the evidence upon 

• thefaiSb. 

The third witnefs was John King, -who fwore 
to right of common upon the pUce in quef- 

tipiy ^^^ chat any one may ^ut rufhes from 


[ i«7 1 

the common withotrt ftiot at any time, aa 
welJ as every body in the pariih j that every 
body in the world nnay cut rufhes on the com- 

The fourth witncfs was "John Woolmth^ who 
fivore to the fame effeft, that every one cut 
what rufhes he thought fit^ and fold them to 
whom he pleafed. 

The fifth and fixth witnefles were Stephm 
Goodwin and Wtltiam Fofter, who fwore to the 
laiTie general right of common in every body 
to cut rufhes on the common. 

Upon my afking the plaintiff's coiinfel if 
they had any more evidence upon any other 
matter, they faid they had feveral more wit- 
neffcs^ but all to the fame purport with the 

Upon which* I thought the plaintiff had 
not made out a cafe proper to be left to the 
Jury, becaufe I conceived that in this aftion, 
the plaintiff ought to make a title by direft or 
prefumptive evidence. 

There being no diredt evidence, the wit* 
nefTes who fpoke to the poffefTion of the rufhes, 
proved it was either obtained by ftealtby or 
under a pretence of right of common, which I 
thought was illegal and void, upon which the 
plaintiff was nonfuited. This is the report of 
my brother JVbitaker verbatim. 

Upon this report being made to the Court, 
Seijeant Forft^r for the defendants fhewed caufe 
why the nonfuit ought not to be fet aflde, by 
infifting that the plaintiff had not proved that 
he had any legal property in the rufhes, for 
that it appeared by the report, the plaintiff 
bad caufed them to be moved down, and cut 
in the night-time, and that the plaintiff crt)- 
tailed the ruihcs by Jlcakb^ or under pretence 


[ i88 ] 

of a right of common, which Serjeant IVhitaker; 
before whom the caufe was tried, thought was 
illegal and void ; and therefore nonfoitcd the 
plaintiff very properly, he having proved no 
legal property in the rufties. 

Serjeant Wiljon for the plaintiff, in^ fupporr 
of the rule to fet afide this nonfait, infiftcd 
that it appeared by the report, that fufKcient 
evidence way given on the behalf of the plain- 
tiff at the trial to fupport this aftion ; it being 
proved that he was an occupier of a tenement in 
^hebertotty and (as fuch occupier) had*, or 
claimed to have a right to cut and take away' 
ruflies from and off this common, and that the 
plaintiff by his fervants cut the riifhes in the 
declaration, and the defendants afcerwirds ttJpk 
and carried them away ; this he infilled was 
fuch evidence of property in the plaintiff, and 
of converlion by the defendants, (who appear 
16 be mere ftrangers) that the defendants, if 
they had any legal defence, ought to have 
made it at the trial, and the ifTue ought to 
have been left to the Jury, for their ver-- 
dift. ■ 

It was further faid on behalf of the plaintiff,- 
that fuppofing, for argument's fake, he had 
not any lawful right to cut rufhes upon the-' 
common; yet as he claimed fuch right, as ait- 
inhabitant of Thehertofiy and gave forhe- evi- 
dence thereof at the trial, that was fufficient to 
put the defendants upon their xJcfence,^ and- t(r 
have fbewn or nullified by cvrdence, whar 
right they had^ tor 'rake and cafry away tli^ 
rufhes in queftion, for the plaintifF-daiminga' 
right to cut rufhes, had gained a property 
therein by cutting the fame, fufHcient to have' 
put the defendants upon fhewing that they had 
a better property therein j but they not having 


[ 189 J 

Ihewn any right or property at all to the ruQies, 
wrongfully took them away,' iand the plaintiff 
has been improperly nonfuited. 
The cafe of Woadfon verfus Nawton. 2 Sfra. ^ commoner 

^ 1 • fi 1 • r I cannot J uitify 

777. IS fomething like this calei that was difpcrfmgthe 
treipafs for taking and difperfing a load offern^ cSt^^d^burnt 
ajhes : the defendant pleaded that he was ai> by a iirangcr 
occupier of land in J. the tenants whereof had fo^a^fler^pi^n- 
right of common, and cutting fern in the locus tiff had burnt 
in quo, and that the plaintiff came and wrong- a^'p/operty*^*^ 
fully cut fern and burnt it, whereupon the de- thereia. 
fendant came and fcattered it about, prout ei 
benelicuity demurrer inde.'-^Strange for the de- 
fendant cited I Roll. Abr. 405. pi. 5. that a 
commoner may juftify taking the cattle of a 
ftranger damage feafanty or abate hedges, 
(jRjsp* 112. b. 2 Mod. 65. and the difference 
is where it is the aft of the lord, or the aft of 
a ftranger. Sedper totam Curiam contra y for if 
the plaintiff did him any damage, he has his 
aftion, but after the plaintiff had burnt the 
fern, and thereby converted it to his own ufe, 
the commoner has no right to come and dif- 
pcrfe it; and judgment was given for the 
plaintiff i fo in the cafe at bar, after the plain- 
tiff had cut the rulhes, they were his own pro-, 
perty, and the defendants have not, by evi- 
dence, or pleading, fhewn any right to come 
and take and carry them away. The cafe at 
bar, indeed, is an aftion upon the ca(c in tro^^ 
ver^ and the cafe cited from Stra. 777. is in. 
trefpafs -, but there arc many cafes where a man 
may have an aftion of trover or trefpafs at hi^, 
eleftion J as if one takes my goods by wrong 
and converts them to his own ufe, I can have 
trov^, or trefpafs agairift him, and (hall recover, 
damages in either of thofe aftions. 


[ ^90 3 

So if a man have wreck of the fea by preicrip- 
tion, or by the king's grants if goods be 
wrecked upon his lands, and another taketh 
them away, he who hath the wreck (hall have 
an adion of trefpafs ^uare vi et armis for thus 
taking away^ without feifure thitvtoi bef^re^ 
J*. N. B. 91 . D. but in the very fame cafe he 
might have had ircver for the goods $ and (b 
was the cafe of Biddulph^ E.i<q. v. Aiber vx 
C. jB. Trin. 28 Sc 29 Geo. 2. fVilfon 2^. The 
plaintiff was lord of the manor of Lanchtg in 
the county of Sujix i and being ibs was in« 
titled by prefcription to wreck of the fea thrown 
upon that manor, and a Jhop being wrecked 
and thrown upon it, h€ brought trover againft 
the defendant who had taken it away, as bai- 
liflT of the Duke of Norfolk, who alio claimed 
to have wreck of the (ea in the fame place, 
and fome do\ibts ariiing upon the evidence 
given at the trial before Mr. Jufbice Wilmot^ 
a fpecial cafe was made for the opinion of the 
Court upon the point of evidence only ; and 
no objefkion was ever taken or thought of> 
againft the propriety of that a£Uon of tro^ 
very and judgment was given for the plains 

The gift of the adion of trover j is- the 
wrongful detainer of goods which are the pro- 
perty of another j and the gift of trelpafs for 
goods, is the wrongful taking and detaining 
them, fo that wherever ireffafs will lie for 
taking goods of the plaintiff wrong fully. At fecms 
tt^&ver will lie (ot taking goods of the plaiMtif 
wrongfully » fo that there is no very materiid 
difference between the caie in Stra». 77.7# and 
die prefent cafe. 
onccuiming There is a cafe in Cro. Eliz. 8119. oiBag^ 
a right ta tat y. Mayncrd^ and in 5 Rep. 24, S, C vciy ap- 

ttUWO WOOila ^ ••It 

. plicablc 

[ 191 3 

plicablc to thcprcfcnt cafe cited by Serjeant cuts it down 
JVilfimi it was t^rwer for certain loads of wood; although he hat 
upon a fpecial vcrdift; the cafe was. Sir Tho-^ uTthS'^Jt!^ 
mas Palmer was fcifed of a great woodj and t,J^rcof h"*"^ 
bargained and fold to one Comford^nd his af-* fnch a propeny' 
figns» as naany trees as would make 600 cords- [r*vcr"'iil^ 
of woikI, to be taken by the afllgnment of Sir againii a iiran. 
nomas Palmer.^Comford affigns over his in-^ f^^^^J^ "^^^^ 
weft toi the plaintiff. Afterwards Sir Thomas 
Pahner graiited to the defendant fb much of 
his wood as would make 4000 cords of wood^ 
ft) betaken at the defendant's elc^OiO. — ^Thc 
plaintiff afterwards by the afiignment of Sir 
Th(m4S Pahner cut down the trees in queftioa 
to nc^e 600 cords : and the defendant claim^ 
ing* them hf virtue of his grant took them*--*- 
And it was found that there was fufiicient wood 
left for the defendant to take his 4000 cords. 
Ei ^y &f^.— And upon this verdift it was 
oioved, that here was not fufiicient title found 
for the plaintiff. — For iirft, it is not found that 
the bargain and fale was for any fum of money, 
nor upon any confideration ; Jed mn dlacatur^ 
for it is intended ta be fo, being found by the 
verdid. But if it had not been fo found, ic 
might peradventure, have been othcrwife j as 
frimo tnaria. Dyer 91. is. — Secondly, it was 
alledged that this grant to the plaintiff is void j, 
for, uo^il the affignment made by Sir ^omas 
Paham-j no intereft veiled in Cornford hwnklf^ 
fo that K^ could not make any grant thereof 
over* ]B^ut all the Court held the grant to be 
g^od : for being made to him and his affigns^ 
he may maker an alBgnee, which ffaall enure aa 
a>aomi^atioa to one, who is to have by the 
appointment of Sir nomas Palmer^ And it 
may ?s^cU v«ft in him, as the intereft alfo : and 
hcfie l^e hath an intereft before the. aifignmen^ 
I made 

[ 19^ 1 t 

made by Sir Tbmnas Palmer ; inibmuch, that 
if Sir Thomas Palmer will not afBgn it in con- 
venient tinf)e> he himfelf nnay take them> and 
therefore he may affign this intereft, as 44 EJ. 
3, 43. is.— But admitting the grant to the 
plaintiff had been void ; yet Popham faid that 
the adfcion was maintainable,^ becaufe by the 
cutting down of them he had foff^rty and a 
good tide againft the defendant, and every 
ftranger ; and being cut down it was not law- 
ful for the defendant to take them : for if one 
fell 1000 cords of wood, to be taken at the 
vendee's eleftion, and afterwards the granjor 
himfelf, or a flranger, cuts down fomc of the 
wood, the vendee cannot take that which is 
cut down : but he ought to make his grant 

The grantee E^^^ ^"^ ^^ ^^^ which is growing. As if 
of eftovers can- eftovets wcrc granted unto him, to be taken 
cut dovvn by the ^^ a great wood, and the owner of the wood 
fifantur. cuts down fome of the wood, the grantee can- 

not take that which is cut down j but be muft 
take his eftovers out of the refiduc ; and if all 
be cut down, h^ hath not any remedy, but an 
aftion upon the cafe. So here, although the 
plaintiff hrfd not a good title, yet his having 
pojfeffion of them, being cut down, fuificeth. 
^od Gawdy and Clinch concejferunt. Where- 
fore it was adjudged for the plaintiff. 

It was fubmitted to the Court by Serjeant 
fVilfony that this cafe of Bajfet v.. Maynard^ 
was direftly in point, or rather flrooger than 
the cafe at bar, for it Ihews that although J?<^ 
Jet had not a good title to the wood, y^ chat 
having cut it down, he thereby ^ined foi- 
fefiion thereof, and a good tide againft M^-^ 
nard and every ftranger. So in the cdlk, at 
bar, Rackham by cutting down the nilkes oflf 
the common, gained pofleffion hereof, and ^ 
10 good 

[ 193 3 

good* title againft the defendants Jejfuf and 
Thomson, who have fhewn no title at all to 
the riiihes^ init app/ear. to; be mere ftraiy- 

Curia. A cuftom for all the inhabitants of 
fbeberton to cut ruflies on Thebirton Common is 
a good ' ciiiftbm ; the plaiiftiff proved at the 
trial: ihat he wa^ aa inhabitant^ and tha,t therd 
wg^ a cvriftomfbr every body inhabiting tJperef 
totcvtraod tsk^ ruffaes on the place in qu!eit:ioni 
that he ^y bis fervants) h&ying cut down five 
or fix loads of ruihes^ the defendants took and 
carrifdtthc fattie away; this is futh evidence 
ofprdpf^yiin the plaintiff and converlionjrl 
the>df^|eindii^6^ that tji^y appear to be wrong 
doe^^ for they have neither by evidence o^ 
pleadiiig ib^ewB' any righ^t or title whatever t^ 
th^fti rqihes^ and appear to the Court to be. 
mem^ftf^lTgers. • Indeed, if a perfon hath na 
colour: of right at all to Cue down rufhes, or to 
take aay odier thing ; he cannot^ by cutting 
the rufi^es, or taking the thing, without any 
colour of right, .acquire property therein 5 but. 
b the cafe at bar the plaintiff proved he had 
a ri^t to eut the rufhes, that he did cut them|. 
and we are all of opinion, that he thereby- 
gained ^ pr (^rty therein. As to what is re- 
ported by brother JVhitaker^ that the plaintiff'^ 
fervants cut- the ruflies in the night-tinae,3iand 
the inference drawn from thence, that the 
rufhes w«i^ cut, or obtained hy ftealtb-f the 
Court faid, that in fummer, when rufhes aF& 
ge^eraUy ifut^- the mght-tinie> ^or- very early 
in die morning, is the rrKilt proper time for* 
th^fiMrpGrfe^ the Coqrt alfo held the caf^ of 
2 StP4, 777. and Cro. Eiiz* 819, for good law> 
and ieemed to think that the l^ter was ar 
ftronger caie than the cafe at bar : whereupon^ 

Vol. III. . O J>er 


C i94 I 

fer mam Curiam^ the rule was ma^ abfolute 
for fettitig afidc the nonfutt, and for a new 
trial,' without eofts on cither 'fide, theplain- 

ings'in thfs ** " .?iff having been, nonfuited upon a miftake of 

^^w^l/**^ a ^^ J^^w^gc in point of law, 

3 Will. 33** 

Birt V. Bar- Tliis wfts ^n ad:k>n of trefpa^ and affauk 
l?"^' ^^ ^' ^* fof criminal conW4*fac4on with rfie pfcamiff's 

B. R. Doug. -.^.T -Jir » '^ rr 

162. Wife. It was tnea before Blackst^k^, Jul- 

imle^r^S'. tice, at the hft affizes for j&ii?/, wfeeti, by the 
lar circum. dke<%ion of dic Jifldgc^ tiie pkintiff'^was non- 

ftances,will g^^' 
permit a new «wftva, 

trial to be mov-^ Oil Monday y the a^th of Afril, Rms imv«d 
four^'dafsYr^^'*' ^^ ^^^ ^ fliewcaufe whjT the nonfuit fco^ld 
expired. In aa f^ be fct ^fidu, and a new ti^l granted. 
Ln.^'anaauT' Wedn^duy^ the aift day oi jffrily wa&the4tS: 
marriage may ^y ^f term, and, by Ae pradice of tkis Court, 

be proved bv a --f • 1 y /••:!• • ^ /l 

copy of the re- ali fiew tT^ak ('ID caufes tried m vacacvMi) mult 
giikcr J and the j^ mm^A foT withki four days of the 4egiB- 

mimlter, clerk, . ^ - • • i« \ ^ sx c \^ 

or fubfcribing ' fling of wt term, including the orft ^^ fo cfaac 
7^lcTJ^t^l S^^^rdajy the 14* of ^^rii; «ras the kft day 
theoniycompe- foT fBoving. Howcver, Rous baviiig ' ftated, 

tTpVTvrtte' ' ^'^ ^^ J^*^ undcrftood that the&af days were 
identity of the reckoflcd exclufive of the firft, and Black- 
gerfonsmar- ^^^^^^ Juftice, having Mxttd.^ at tiie trial, 

that the opinion of the Court fbould be taken, 

die Court entertained the motioq, which wa& 

founded on the ground of a mi^n?Aion in 

• (c) Bointc^ evidence : and the rule was sraated. 

Vide The King K .\ ^ 

and Gough. \S'f 

Ante IX. (XI.) Thjs day Buller, Jufiice^ read the Judges 

* report, which was as follows : 

; The firft witnefs called by the pkintilF was 
f'hmas Sbarfe, who proved a copy of the re- 
gifter of the parifli of Sf. Alfred, Canterbury i 
in hitc verba-^*^ i7^7> N* 106, Jgkn Birf, 
^ Efqj of parish of St. Margaret, Rochefierj 

« COt 

'^ CO. KeMi and Harriot Champneysy of this 
'* parifti, married by banns, 15 December 
'\ 17*7, by John Z^^f*, minifter. (Witnefles 
** Rohisrt Lyffcbj Framis Cbampneys, Ame ^ 

*^ LyncbjElizabetb Lynoh^'' (a). Another wit*- 
nefs, (Sufanna — ■; — ^) was next called to 
pw^ the feA of adukeryi^— i was of opinion, 
thjft tfefe wis not ftifficient evidence of the mar- 
riage, but that the identity of the parties muft 
be pWived, elfe it might poflibly be a regifter 
of the ftiatriage, not of the plaintiff and his fup- 
TOfed wife^ but of fome other perfons of the 
mat nartiCi The counfel for the plaintiff then 
faid, in the courfe of their examination to 
pro\* tlw adulterous intercourfe, it would come , 

out Atom the mouths of the witnefTes ^ that the 
plaintirs reputed wife was of the name and 
family 6f Cbampneys, and that they had long 
cohabited together, and were efteemed t6 bei 
man and wife by all their friends and relation^, 
I ftill thought that the evidencei fo opened, 
would be infufficrient, holding in cohfbrmity to 
Ae <iajfe of Morris v. Afiller, reported in 4 
Burr. 2057, (b) (and of which I alfo had a (b) 
Mss. note of my own) that this v^s the only fVuck r^. 
cMl cafe in which proof of an afhial marriage 632, 
was requifite, as contradiftinguiftied from ac- 
knowledgment by the parties, cohabitation, 
reputation, &c. That the befi proof that could 
be given of an aftual marriage was, by fome 
perfon perfonally prefcnt at the folcmhlty, 
which, in my fmall experience, I had never 
feen an inftance of not producing. If it did 

(a) I prefame the names of the hafband atld wife were 
alfo lubfcribedy although that was not ftaced in the report. 
It is exprefsly required by the marriage z&, 26 G, 2. 

'• 33- S IS- 

O 2 not 

f 26 G. 2. 

t ^96 1 

not appear that there »were any perfons prcftnr 
befides phe rninifter *, jand he. wa& d?ftd,*perbapy 
other coUateral proof might be admitted, which 
might render prpb^-ble t^ie identity of the 
plaintiff and his )wife„ fljnd the perfops whofe 
marriagp was ijb regiftercd^ But that^in the 

}>refeAC cafe, tbere^appearM to ba\^p jjeen no 
tfs fh2.n five wis ffej^sj>re/fnf at the/. njAitiage 
thu^regittered,. whichirwas only eleven years 
ago. . T|hat the' marri^gje aft- had ditcfted the 
witneflesf to fubfcr,ibe:ttieir< names, to the-re- 
giftcT, ^]fe) -in ordef to, fa,cilitatc .the*4ftyefl%a- 
tion of the legal cvi^^nce of marriages* And 
that 'till thefe ^ve.witneffes and the minjfter 
Wi^re- accounted for, asj-by (hewing them all 
df^d^ or the like, I could not admit lefs proof 
than that, of; iojme p^rfon prcfent to demon- 
ftratcithc identity of the parties. I acci^rd- 
ingly ^ no^iiiited the plaintiff. After -which, a 
proftor fpom , the Ecclefiaftical Court, then 
prefent,. declared openly, that he had been fub- 
pceniedby.the plaintiff to prove> and could 
prove, the taking out: of a licence for the mar* 
riage of the plaintiff and his reputed wife^ I 
mention this circumftance, though it 
no grounc^ of my determination, as it fl^ws 
/ometMng more than a hare poffibility that the 
plaintiff and his wife were . not the identical 
perfons fo regiflered as marrying by baJuvs." 

KemfCy Serjeant, and Peckham^ fhewqd caufe. 
— Th^y argued, that the maririage afl: meant 
to introduce fome more accurate ^woof of mar- 
riages than what was in ufe before thf pafling '{ 
of that aft. This purpofe was expreflcd in the 
preamble to the 15 th fedion. It had accord- 

. • Two \yitBeHes at leaft, befidcs the miniilerk are cx- 
prclsly required by the marriage aft, § 15. 


[ i$7 J 

ingly been enafted, by that feftibn, that .wit- 
nefles fhould be prefent who fhouidcfijbfcribe 
their names to. die regifter/andthe .purpofe of 
fuch fubfcription muft have been to point them 
out, that they might be produced when it 
ftioukl become neceffary to prove the mar- 
riage. Thereis no cafe in the taw where fiib- 
fcribirig witnefies are neceffary, and yet it is 
not neceffary to produce them, or, if they arc 
ftewn to be dead, to^prove their hand -writing. 
The regifter proved the marriage of two per- 
fons of the fame name with .the plaintiff, and 
his wife, but could not fliew that they were 
ihofe identical perfons. 

Danningy^and Raus, in fupport of the rule, 
obfcrved, that the preamble, to the fcftion of 
the marriage aft relied on, profeffed an int«nr 
tbn' to render the proof of marriages more ea/y, 
and it would be a ftrange folecifm to contrive 
it fo as CO render them more difficult. It was 
admitted, that the proof of ^ marriage was 
complete, and no cafe could be Ihewn which 
had determined, that there could be no other 
evidence of the identity of the parties, hut the 
tcftimony of perfons prefent. Proof of the 
parties having been feen going to church the 
morning of the day mentioned in the regifter, 
or fleeping together that night, would finely 
be evidence of the identity, and fo would proof 
of their having cohabited togetherj from the 
time of the marriage downwards. In an aftion 
for goods furniftied to a wife, evidence of co- 
habitation and repiitation is fufficient. In a 
cafe of criminal convcrfation, fomething more, 
viz. an aSlual marriage muft be fhewn. This 
is done by the regifter; and when that is 
coupled with evidence of cohabitation and re- 
putation, the proof is cotnpletet As the copy 

O3 of 

[ »>8 3 

of the r^gifter only wa^ produced (wd was all 
that was neceflary) the witnefies couki not 
have proved their attefkation> evea if they had 
been called* 

Lord Mansfield. — ^Fronn the report it ap- 
pears^ that the ground of the nonfuit was sm 
idea^ that the identity muft be proved by the 
miniiler, or fome of the attefting witnefles, un- 
lefs their not being produced is accounted for 
in the fame manner as is required in the cafe 
of lubfcribing witneffes to a deed. The coun- 
fel for the plaintiflF ftatcd other evidence of the 
identity ; whether &ch as would h^ve been 
fufEcient when produced (as that mighty or 
might not be, according to the differences 
arifing from the manner of ftadng it) I give 
no opinion : but the Judge decided that it 
was necejfary to produce fome of the fubfcrib- 
ing witnefies. The claufes in the marriage 
aft relative to regifl.ers are of infinite utility 
to the kingdom. They were meant^ as well 
to prevent falfe entries^ as. to guard againft il- 
legal marriages without licence, or the publi- 
cation of banns. The regifters are direded 
to be kept as public books, and accompanied 
with every means of authenticity. But, bc- 
iides facilitating and afcertaining the evidence 
of marriages, they were intended for other 
wife purpofes. They are of great affiftance 
in the proof of pedigrees, which has become 
fo much more difficult fince inquifitions poft 
mortem have been difufed, that it is eafier to efta- 
blifh one for five hundred years back, before 
the time of CharleslL than for one hundredyears 
fince his reign. But this advantage would be 
Jofl:, and it would be very prejudicial if the 
aft were fo conftrued as to render, the proof of 
inarriagcs more dif^culc than formerly. I take 

■ it 

t "99 3 

it for granted, that the law ftands as it did be- 
Hart m that reipedt. Regiiters are in the na- 
ture of records, and need not be produced, 
nor proved by fubfcribing witneffes. A copy 
is fufficient, and is proof of a marriage in fad:, 
between two parties defcribing themfelves by 
iuch and fuch names and places of abode, 
diough it does* not prove the identity. An 
adion for criminal converfatioa is the only 
fivil cafe where it is neceffary to prove an 
aSuat noarriage. In other cafes, cohabitation, 
repotation^ &fi. zrc equally fuificient fince the 
rnarriage ad:,, as before. But an adion for 
crimiiial converfatioa has a mixture of penal 
profecution ; for which reafon, and becaufe it 
might be turned to bad purpofes by perfons 
giving the name and charader of wife to wo- 
men to whom they are not married, it ftruck 
mc ia- the cafe of Morris v. Millery that, in 
fuch an adion, a marriage in fad mud: be 
jproved. I iay, ^ marriage in faSl^ becaule 
marriages are not always regiftered. There 
lare marriages among particular forts of dif- 
fenters, where the proof by a regifter wpuld 
be impoffible ; and Dennifony Jufticcy in a cafe 
of that kind which came before him, admitted 
ocher proof of an adual marriage. But, as to 
the proof of identity, whatever is fufficient to 
fatisfy a jury, is good evidence. If neither 
the minifter, nor the clerk, nor any of the fub- 
fcribijjg witneffes, were acquainted with the 
married couple, in fuch a cafe, none of theni 
might be able to prove the identity. But it 
may bc^ proved in a thoufand other ways ; 
fuppofe the bell-nnger$ were called, and 
proved that they rung the bellsj and came 
immediately after the marriage, and were paid 
by the parties j fuppofe the hand-writing of 

O 4. the 

[ aco 3 

tht parties were proved ; fuppofe perfons cal- 
kd who were prcfeftt at the wcdding-dinncr, 

WrLLEs and- AsHURSTj Jujiices, of the 
fatne opinion. 

BxrrtER, J«/fcV(?;"^-»^The original rcgifter is 
not neceflary to be produced, and 5t is only 
where that is required j that (libfcrtbing wit- 
neffes muft be called. In this cafe,* the- wife's 
niaiden name was 'Harriot Cbampn^s. S\ip- 
pofe a maid-fenrant had proved that Ihc al- 
ways Went by that name till the day of the 
marriage, that fhe went out that day, and, 
on her return, and ever fince, was called Mrs. 
Birt ? Surely that would have been evidence 
of the identity. 

The rule made abfolute (*). 

Goo^titic ex Upon (hewing caufe why the nonfuit en- 
w™ds°verfus " tcvcA in this cafe ifhould not be fet afide, and 
Peter Bailey, E. a ncw trial granted, the fafts appeared to be as 
Cowp.597. loliows:" 

In ejeament jt ^^s an cieftment brought for twotene- 
whicn is a ficti- , - -^ r-nk/»i'n' -rtii 

tious aaioii to ments in the county or Dorjety diltingurfbed by 
7^Znth^\S^' ^^^ names of the Greater andLicfs Tenement, 
for of the plain- The plaintiff claimed under the will of one 

pfrmftlldtode. Nicholas Edwatds, dated March i^tb 1750, 
featafoiemn " by which he dcvifed the premiflfes inqueftion 
fwnhandTct " ^o his wifc i^. Edwords, forlifc, and after 
venanting that ^f her dcccafc to his brother Jehn-Edwardsy to 
JlJau S'u'e '' be at his difpofal : but in cafe he (hould 
premififes, and '«< happen to die before the faid F. Edwardsy 
Rfforance,"^^'^^^ " then ' he gave the' prertiiflts to his coufin 

" Robert Edwards {xht'i^Mnnff) and his heirs 

* The caufe wa^agfam tried- at the enfiiing adzes, and 
a verdid found for tljft.jplaiRUff.. 

• . •• '«• and 

*' and aJSgrts for ever :" and died foorv after. 
Upon his death, John Edwards entered into 
and kept poffeflion of the greaUr tenement 
during his life; and by will devifed IfOfb the 
tenennents to the defendant Peter Bailey. He 
was pofleffed of feveral other preiniffes, which 
he devifed to the leffor of the plaintiff, by the 
fame will: and di«d in the life-tinle of i^r/«f* 
ces the widow, who upon the death of Nicbo-- 
las hfcr hiafband, entered into and ckcpt pof- 
feflion 'of the lefs tenement, till flie'died-r-* 
Upon the death of Jdhrtj Peter Ballsy the de- 
fendant, took poflcflion of the ^eater tene* 
iiieiit, which John during his life had oc-f 
cupied. Soon after, Robert ^ the leflbr of the 
plaintiff, by deed of relcafe, bearing date the 
5th di January 1764, reciting the ^11 of Ni^ 
cbolasy and alfo reciting the will ofjobn Ed* 
wards the brother of Nicholas ; and, further, 
that Frances the widow had furvived John, 
whereby the reverfion of the- prcmiffes were 
become vefted in him, Robert^ in fee; recit* 
ing alfo that it had been agreed that he the 
faid Robert fhould renounce all his right, title, 
and interefl: in xhf^ faid premifles to Peter Bai* 
ley, the /aid Nicholas Edwards having nopowet 
to devife the fame i he did thereby renounce ^ re- 
fnifey releafe, and for ever quit claim to the faid 
Vtter Bailey y and the heirs m.ale of his body, all 
the faid premiffes, and all his right, tide, and 
intereft therein ; with a covenan4^ for further 
aflurance. Subfequeiit to this releafe, the wi- 
(low died ; and then Robert ^ the leffor of the 
plaintiff, brought this ejeftmenr. Upon the 
releafe being read and proved, feveral objec- 
tions were taken to it at the trial, on the part 
of the plaintiff, i. That there was nq /^r/w/jr 
of eftace betwqen the leffor of the plaintiff an4 


die dc£mltEM:» at the time of tbe rdeaic* To 
this it was tofwered^ that k was m>i a releaie hj 
iiiray of enlargjement of the eftate, hut purmiuer 
k droit J therefore no privitsy was necefiary : but 
this ob}eftion was given up. d. That m re- 
ipe& of the lefier tenemecit> the widow being 
io podreffioo> there was i)i> cAace in Peter Bd- 
II9 at die time» upon which the leleafe couM 
c^erate« ^ That it was fraudyknt upon^ the 
face of it, being without confideratioAi and 
aUbj fer that the recital, reladve to Nicholas 
kfliving no power to devife the premiifts was 
falfe; to prove which> the piaimiflr in reply 
produced the wiU of Jphny the father of Ni- 
fbolas, giving the premifTes to Nicbolaf in fee. 
—-But thefe ob}e£bions were over-ruled by the 
Judge, who thought that as the kfibr of the 
plaindflF took a conliderable eftate under the 
will of John Edwards, under which will the 
defendant claimed, he ought not to be allowed 
to impeach it; and accordingly direded a 

Mr. Mansfield and Mr. Buller now argued 
in fupport <^ the nonfuit, and againft the rule 
for a new trial. Mr. Serjeant Heath eontray 
for the rule. 

For the defendant it was argued, that fup- 
IK)(ing the releafe could not operate ^Jucby 
for want of a fufficient poiTefllon in the releafee 
at the time, yet it might operate as a grant of 
the reverficn. It is a fettled rule in the con- 
ftruftion of deeds, that if fufficient appears to 
fliew the intention of the party to convey, 
though it cannot take effect in the precife 
form in which it was intended, it fhall operate 
in the way in which it can, rather than the in- 
tent of the parties Ihall be fruftrated. Sbep* 
pardy in \k\s X^uchfione, 8 a, fays, " A deed 

" made 

C ^3 1 

^^ made to one puipofej may ettore to 90^ 
'^ ther ; if mtaat for a releafe, it ma^ anaauiit 
<< to a grant of the revccfioQ ; or e cmtverJeJ* 
So in a Wflf. 75» a deed> intended fiar 2 te^ 
kalir, was held to operate as a covenant tofiani 
JAJtii' and the cafes there cited cAaWih the 
doiftrttie. If fo, nodting can be clearer thoa 
the intentbn of Kohert to convey in this cafe; 
not osly from the gencr^ words of the deed^ 
but from the covenant for forther afiurance. 
Sue a decifive aofwer is, that the plaintiff is 
eft(q>ped t^ his own deed. The cbim he fets 
up is exprefsiy againft his own deed> and the 
objeddons made to the form of it^ go to de* 
feat it. No man fball be flifFered to do that. 
—As to the objeAion of frauds becaiafe the 
recital relative to Nicholas is falfe, the cir- 
cDmftances manifeftly ihew there was fome 
inftrument, though none fuch has appeared, 
under which John Edwards wa^ intitled, 
which warranted him in taking polfeffion of 
the greater tenement, as he did, in the life- 
time of the widow, and difpofing' of them 
both at his death, notwichftanding the will of 
Nicholas^ With refpeft to there being no 
confideralion, the eflrate which the plaintiff 
took under the will of John Edwards, was a 
ftifficient confideration, for bis confirming the 
devife of the premilfes to the defendant. But 
if it were not, as the plaintiff is content to 
take fuch eftate*, he ought not to diflurb the 
other devifees in the will. Therefore upon 
every ground the nonfuit was right. 

Lord Mansfield. — As to the objeAion of 
fraud obferved, there was no evidence of any 
fraud ; that the recital did not appear to be 
the induftive cauie of the releafe ; and unlefs 
feme inducement was Ihewn, fraud could nor 


[ ?04 1 

beprefumed. If any cplourable evidence of 
fraud had been given, tfae nonfuit would have 
beeawrong ; becaufe fraud in this cafe would 
be a matter of faft j of which the Jury are to 
judge. So if the plaintiff could have made 
out a cafe ofmiftakey it would have been, equi- 
valent to fraud. But nothing of the kind ap- 
pears^ and as to the confid^ration, it might 
be fiiir enough. It depends upon the treaty. 
. For the plaintiff as to the other point, it was 
contended, that* admitting the rule laid down 
to be true in its fuUeft extent, yet^nodiing 
pafled by the releafe in this cafe for want of 
proper op^^rative wdrds. There arc appro- 
priated terms to every conveyance : and. where 
the word " grant" is ufed, being genus gene- 
raliffimumy if the inftrument cannot take cflFeft 
according to its proper form, it fliall operate 
in fome other, if by law it can. But here the 
y^ords are, ^^ renouncey remifoy releafe^ and quit 
" ciainiy- which are the fpecial form of words 
adapted to a releafe only ; therefore it cannot 
operate as a grant. And io is Co. Lit. 301. 
" A releafe cannot operate as a grant, becaufe 
^ it is a peculiar manner of conveyance adapt- 
*' ed to a Ipecial end." In the cafe from 
2 ff^ilf.'7Sy ^hc word " grant " was ufed ; and 
fo it was in the cafes there cited. Bur here 
there is no fuch word, nor any thing ecjuiva- 
lent to it, confequently nothing pafled by tlie 
deed. If not, the defendant's cale is not aided 
hy the covenant for further alTurance ; for 
that at moft conveys only an equitable right : 
and as to its being an efloppel, the plaintiff is 
not eftoppcd from faying any thing, but that 
the defendant has no intereft. 
I Lord Mansfield. — The rules laid down in 
refpeft of the conftrudlion of deeds are founded 

t ?®5 1 

in law> reafori) and common fenfe : th^t they 
Jball operate according to the inte^tionf of ^he 
parties, if by law they nnay. And if tKey c^n* 
not opprate in one forn}, they Ihall operate in 
that, which by law will efFeftuate the intention. 
But an objeftion is niade in this e^fej/whicli, 
it is faid, takes it^out of the general rule and 
the dodtriaeof the authorities cited : andthat 
is, t|^t jn^ the relea^ in queftiqii tjie word 
" gmni'\ is not n^e:ufe oC . But'.thapthe 
intentioi) of the parties was to pafs.all th^ 
right and title of the plaintiff in xh?fc prcr 
miffes, is oiJjnifeft. beyond a doubt. One 
thing however is dt^cifive. This is. ^Ji£iitiou^ 
aftion to recover thcpofleffion. In fuch an 
a&ion, if a man has made a folemndeed co* 
venanting that another (hall enjoy the pre- 
miffcs, and likewife for further affurance, it 
Ihall never lie in. his rnouth to difpute the title 
of the party to whom he has fo undertaken ; 
no oxotethan it flia^ be permitted to a. mort- 
gagor to difpute the tide of his m.ortgagee. 
No man (hall , be allowed to difpute his own 
foleoin d^ed. Tlicrefore qudcunq' via datd, 
the nonfuit was right. It would be very idle to 
fet afide the nonfuit, only to fend the party into 
equity, and make him pay the cofts that way.. 
AsTQN, Juftice. — This i& the comanon word-t 
ing of a releafe : but though in the Ihape of ^ 
releafe, if there are fufficient words, it maj[ 
operate as a grant. The laft ground however 
is decifive : it is clear from the general com- 
plexion and circurnftances of thiscafe^ that 
there had been fome difpute between, the par- 
ties relative to the wills of Nicholas Edwards^ 
and his brother Johny2LVid that this releafe 
was an agreement between them for the pur- 
pofe of adjufting all matters in difference : and 

* ' there 

i io8 J 

there 14 a covenant for further aflwancc I 
dxink it would be extremely improper, after 
that^ to let the party take a legal objedlbo for 
die purpofe of defeating his own Iblemn agree- 

Per Cur. Rufe diftharged. 

Mfinsv.Bax- Buhhom Ihcwcd caufe againft a rale, which 
Ti^-Difrn!* had been obtained by Shepherd laft ^rinitj 
ford and Eaft. term, cialling on the defendant to ihe# caufe, 
'rhJ defendant "^y die judgment of w» prosy which had been 
Ss bound to figned in this caufe, fhould not be fet afidc for 

fearch in the • '^ . • r^, • • . #«/i i • 

office, whether irregularity. The irregularity confifted m 
the plaintiff has ^jj ^ plaintiff had a four day rule to bring 

brought in the . ' . i^ . . . , • j t » V 

iiTuc roll, before m the iflue-roll> which expired the 14th of 
t^fjsnsjudg. jmtAzSt : the defendant on that day feaitrhcd 
r^r/vr L the olHce, and the mil not being dicn 
&eaS' brought in, figned judgnnient of »wf j>m the 
on the cxpira- next day at twelve. This praftke Baldtm 
fo'b^nSSc contended was regular. 
«>ii- Shepherd, contra. As in faft the judgment 

was not figned nil after the roil was adually 
brought in the next morning, on the 1 5th, it 
was then irregular to fign judgment wtbmt 
making another Jearch. He contended, that 
this was not like a cafe where a party puts 
himfelf in contempt ; as, for inftance, where an 
attachment is moved againfl: him; becaufe 
there the perfon, moving for fuch attachment 
being once intitled to it, docs not waive his 
right, by omitting to take advantage of it on 
the very day. But it is like the cafe of a pka, 
where IF it be not put in on the day the rule 
expires, and the other party does not take ad- 
vantage of it immediately, the defendant may 
deliver his plea any time before judgment is 
iaSiually figned againft him : and 

i'hi Court was of that opinion. And it ap- 
10 pearing 

C 2^ 3 

pearing that the plaintHTs attorney had told 
the defendant's attorney of the irregularity, 
and had defired the matter niisht be redificd, 
without its being brought bctore the Court, 
but that he had irfufed, tjie Court made the 
Rule abfolute with cc^s. 

Upon fliewing caufe why the noAfuit en- Sprwi? v. Mat- 
tered in dii§ cafe ftiould not be fct afide and a ^*^'^^f Ji 
new trial granted, the fads, as they appeared and Eaft, i v. 
by the report, were as follow : This was an ac- '^^^^ , k;« 
tion by L indorfee of a bill of exchange ofSn\:^ 
againft the acceptor. The bill was drawn on SngTiot 
dcfcndam, and was made payable forty days don by a con- 
after fight to one Lenox or order. /Olen^ the [^rng abr^* 
plain tiflF's clerk, fwore that on the a4th of on its being pre- 
September 1785, he prcfented the bill to the cepunc^lT 
defendant who lived in Londotty for acceptance, fa'»i> ^c coiua 
who told him *^ that the drawer had configned becaufc^hL^ did 
" a fhip and cargo to him and another perfon ^^J^^^^^ 
" at Briftoly but as he could not then tell would arrive at 
'' whether the fhip would arrive at London or ]^C^![Zh^t 
" Briftoly he could not accept at that time;" er of the bin, 
upon which Allen faid, that he would leave die Tiofio^t^, 
bill upon this condition, that in the event of referving the li- 
the defendant's not accepting it from the day hff ft,°f(S.^^" 
when it was prefented, he fhould be at liberty acceptance, ia 

^^ ^ . r* ^ r ^i_ cafe A. did not 

to note It for non-acceptance as from that accept, onafe- 
time. To this the defendant affented, and the "^^^^ ^^^^I'x 
bill was accordingly left at his houfe, 'till the bin Would be 
8di of Oaober. when Alkn called again, in p^i ^ even if tfit 

. , ■ 1 • •rr» I I ^j (hip were loft. 

company with the plaintifF, to know whether This is only a 
the defendant would accept the bill or not, ""^^^^f^" 
who on being preffcd to accept, faid */ the pending on two 
" biU was a eood one, and that it would be Z^'s'^'^ng 
" faidy even if the Jhif were lofiJ* Allen im- at London, or 
mediately upon this, carried the bill to a no- B^^havlng'th^''^ 
tary public, and had it noted for non-accepr- liberty of tu 


fufmg fuch con- EDCc {xcppd the time when it. wa^s firft left witb 
^^"^^mT" the defendant. The fhip afterwards arrived 

ancc, precludes t'-'rV /*^'ii ^ . 

himfeif from fate at the^pTt o\ London^ and the cargpt ifi^as 
rg^r^Tby difpofedx>f 4 the defendant:. ' 
afterwards not- BulleTy J.-^who tried this cau/e at the laft 
n.^-'a^eiiV^c'e. ^ttings 2it GuUdhall, being,o£ Opinion that this 
Whether a con. amountcd Only to a conditional acceptancCy 
JS^xxtJ'L^t- which thCj plaintiff was at^^iberty to reiufoor 
ance, is a quef- not as hc chofc, and that his noting f he till 
"^^ imnmediately after the . fccoad qonverfation, 
fhewed that he .was not. latisfied with fuch 
conditional acceptance^ nonfuited the plain- 
tiff. ^ 

This motion had been made on two grounds; 
I ft. That this muft be .confidercd as an ab- 
folute acceptance. 

. adly. That. even if it were a conditional 
one, it fliould have been left to the Jury to 
confidcr whether the plaintiff had precluded 
himfeif by his fubfequent condud from reco-. 
vering againft the acceptor. 

Wiljon and Baldwin, againft the, rule, con- 
tended that this was only a conditional ac- 
ceptance ; and it was clear that it was fo un-i 
derftood by the parties at the time i for if the 
plaintiff had confidered it as an abfolute ac- 
ceptance, he would not have protefted it im- 
mediately for non-acceptance. No perfon. 
could explain the converfation which took 
place between the parties fo well as themfclves^ 
and the afts of the plaintiff prove what an im- 
predion it made on him. After the plaintiff 
had protefted the bill for non-acceptance, he 
ought not to be permitted to fay, he was fa- 
tisfied with the acceptance. It is conclufive 
againft him; for by noting the bill for non- 
acceptance, he gave up the defendant altoge- 
ther. Then it ought not to have been left to 


tKe jfury to confider whether the parties had 
mifuriderftood the convcrfation. 

Erjkine and ff^ood^ contra^ infilled that the 
fecond converfation alone amounted to an ab- 
folute acceptance; if fb, nothing which the 
plaintilF did could be a waiver oF it. The 
^ords ^^ even if thejbip were lofty* can only 
admit of one grammatical conftruftion. It is 
taking for granted that the bill would be paid, 
if the Hiip arrived fafe; afid thefc words im- 
port, that it would be paid at all events, whe- 
ther the fliip was loft or not. 

Then taking the fecond converfation as ex- 
planatory of the firft, it proved that the de- 
fendant only doubted at firft on the event of 
the lhip*s arrival at London ; but that doubt 
was put out of the queftion, by the fubfequent 
converfation, when he faid he would accept at 
any rate, even if the fhip were loft 5 that is, 
even if that event fliould take place which he 
apprehended and doubted at firft. 

But fuppofing the acceptance to be condi- 
tional, the event, on which the defendant was 
to accept, having happened by the arrival of 
the fiiip at London^ the only point to be con- 
fidered was, whether the plaintifi^ had pre- 
cluded himfelf by his fubfequent condud, in 
noting the bill, from having recourfe to the 
defendant. This might be reconciled from 
confidering the purport of the bill, which was 
payable forty days after fight. The noting of 
the bill was noi for the purpofe of protefting 
it for non-acceptance, but only in order to af- 
certain the time when it was prefented for ac- 
ceptance. At all events, if there was any am- 
biguity in the tfanfaftion, either refpefting the 
acceptance, or the waiver of it, it fhould have 
been left to the Jury to confider, whether, un- 

VoL.IJI. P der 

djcr allthe circumftances, the plaintiff iad 
precluded himfclf from recovering on this ac- 

Lord Mansfield, G&. J. — was abfent on 
this«day, and continued abfent during the reft 
ofthetelrm. ' ' 

WiL t Es^ J. — Whether this nonfuit was right 
or not, depends on two queftibns, 

ift. Whether this was an abfolute, or a con- 
ditional acceptance? in determining which, 
we muft confider the two converfations be- 
tween jillen and the defendant together. When 
the bill was firft prefented to the defendant for 
acceptance, he laid, he could not accept at 
that time, becaule he did not know, whether 
the fhip would come to London or not. The 
reafon of this anf\yer is obvious, becaufe if thf! 
Ihip arrived at Brijiol, fhc was configned to 
another perfon. Then, in a fubfequent con- 
yerfation, he faid, " the bill will' be paid, 
" even if the fhip be loft.** So that he ac- 
cepted on two conditions ; namely, the cncy if 
the fliip came to London^ in which cafe he 
would be enabled to pay himfclf with the pro- 
fits of the cargo ; the other y in cafe the Ihip 
was lofl, when he would have wherewithal to 
fatisfy the bill, he having a policy of infurance 
on the Ihip in his hands : but he did not ac- 
cept in the third inftance, which was in the 
event of the ftip's going to BriftoL 

The Court has not of late been very nice 
with regard to what fhall be conftrued to be 
an acceptance ; for though, fornrierly, it was 
held necefTary, that an acceptance fhoiild be 
in writing, yet of late years, a parol acceptance 
has been deemed fufficient. And indeed, at 
pjTcfent, almoft anv thing amounts to an ac- 
ceptance. Therefore, if there were a doubtj 


r 111 ] 

whether this was a conditional or an abiblute 
acceptance^ or whether (admitting it to be a 
conditional one only) the party had precluded 
himfclf by his fubfequent conduft, the whole 
of the fafts Ihould have been left to the Jury. 
So that I am of opinion that the nonfuit ought 
to be fct afide. 

AsHHURST, y. — ^^I do not concur with my 
brother fVilleSy that this lionfuit ought to be 
fet afide. In the cafe of a written acceptance^ 
the acceptance Ipeaks for itfelf : but this being 
a parol acceptance, the conduft of the plain- 
tiff is decifive againft him. And the evUentia 
ret ik^jf/si that he put the right conftruftion on 
this franfaftion, by procuring the bill to be 
noted. On the firft. converfation, the defend- 
ant cxprefled a doubt, whether the fhip would 
come to LondeHy or to Brijiol ; if to London j 
he would have had effefts in his hands to in- 
demnify himfelf, becaufe the cargo was con- 
figned to him ; if to Briftoly it was configned 
to another perfon. Then it was agreed be- 
tween the parties, that the bill fhould be left 
with the defendant, with liberty to the plaintiff 
to note it) as from the firft tender of the bill, 
in cafe the defendant ftiould not eventually ac- 
cept. On tlie. fecond converfation, the de- 
fendant is reprefented to have faid, " the bill 
" will be paid, even if the fliip be loft.'- The 
witnefs might have varied this phrafe;, 

Birt at all events, this only amounted to a 
conditional acceptance, in cafe the fhip ar- 
rived at London^ or was loft ; which the plain* 
tiff afterwards waived. If die party had con- 
ceived it to be an acceptance, he fhould have 
required that to be fignified on the bill itfelf: 
then it was faid that the reafon why the bill 
was noted, was to mark the time from j«rhich 

Pa it 

It w^as to fee confidered as accepted 5 but that 
might have been better efFefted on the bill, 
by accepting it as frcrm that day. Then it is 
manifeft that the parties uhderftood at the 
time, that the matter tvas left unconcltided* 
If fo, the plaintiff is abfolutely bound by his 
fubfequent aft j for he protefted the bill for 
non-acceptance ; therefore, there could be no- 
thing to leave to a jury. 

BulleTy J,— We are now to determine on a 
point of law, which is decifive that this quef- 
tion ought not to have been left to the Jury. 
Whatever may have been the doubts formerly 
of what amounted to an acceptance, I con- 
ceive it is the fole province of the Court to de-' 
cide, whether this is an abfblute or a condi- 
tional acceptance. This cafe was proved by 
one witnefs, on the part of the plaintiff; the 
defendant's counfel admitted this evidence to 
be true; but infifled that upon that evidence, 
the defendant was not liable in point of law. 
Then there was nothing to be left to the Jury. 
If the defendant had objected at the trial 
that the plaintiffs witnefs might be miftaken 
in his expreffions, that might properly have 
been left to the Jury, who are to deci<ie on the 
credit or accuracy of a witnefs. Then, fup- 
pofing thefe fafts had been flated on a fpecial 
verdift, the Court would have been bound to 
determine whether this, in point of law, was 
an acceptance or not. And this brings. 'it to 
the true queflion before us, namely, whether 
this is a conditional or an abfolute acceptance? 
There is no ground for faying it was an abfo- 
luteone. It was not thought of at the trial ; 
and the words of the defendant preclude every 
idea of it. Talcing both the con verfations to- 
gether, it is decifiye againfi the plaintiff. At 


[^'3 1 

the firil converfation the defendant faid, I dp 
not know whether the Ihip will come to Lon* 
doHy and therefore I cannot accept at prefcnt. 
At that time then, he only intended to accept 
in the event of the (hip's coming to London ; 
at the fecond he faid, " the bill will be paid, 
*^ even if the fhip be loft;" both the conver- 
farions therefore amount to this, that there 
were two events in which the bill would be 
paid, the one, if the fhip came to London ; the 
other, if Ihe were loft. It is evident from what 
paffcd, that the defendant did not intend to 
accept, unlefs he had wherewithal in his ha\ids 
to reimburfe himfelf. If the Ihip came to 
London J he had the difpofal of the cargo j if 
Ihe were loft, he was in poffeflion of the po- 
licy. This, therefore, was a conditional ac- 
ceptance ; and in thefc cafes the holder may 
choofe whether he will be fatisficd with it or 
not : but here the plaintiff has waived it, by 
protefting the bill for non-acceptance. And 
his reafon for noting it for non-acceptance, 
as from the firft day, was, that he might pro- 
ceed againft the drawer for intereft for a longer 
Rule difchargcd. 

Cafe for goods fold and delivered. A!exnnder ▼. 

Pleas the general iffue, and a fet^off. ^Ta-^Durn^* 

The caufe was tried at the laft afijzes at f«'<i and Eaft. 
Lancafier^ before IVilUs^ Juftice, when the ' whc/e goods 
plaintiff was nonfuited . »**«. <*«i» vered 

r^ ■ • r r 1 1 r • • vindcr an agree* 

Un a mouon to let aiide the nonfuit, it ap- ment to take ;^ 
pearcd, that the plaintiff had bargained to fell ^';*^»^^ p^*"^*^^ 

1 i_ J /• J I y 1 ?^ f /» <^* copper 

to the derendanr, who lived at Mancheftevy a money in pay- 
quantity of tobacco, the value of which, in i^g^J^ V? fuch 
addition to a former debt of j£. 23. for fbme copper win be 
aAcr tobacco, amounted to £• 50. It was XnK."^ 

P 3 agreed value of me 

refcinded in 

[ ai4 ] 

goods, though agreed at the fame time between the parties, 
counterfeit^ that the plainpfF fhould take in payment of 
money. Ah U- that dcbt, z quantity of c6pper halfpence, 
If rSe^as ^hich Were made up in crown papers, in each 
to part» muft be of which was no more than five pennyworth of 

good halfpence ; and it was alfo agreed, that 
if the amount of the copper fhould exceed the 
value of the tobacco, fome more of the latter 
fliould be lent to balance the amount. Part 
of the tobacdo.was delivered, but the plaintiff 
refufed to fend the remainder, unlef3 the dc* 
fendant would pay for the whole in good 
money. 'Several famples of this copper were 
'{hewn to the plaintiff at the time of the agree- 
ment, who faid it would jpafs very well at Li- 
verpoolj y/hert he lived. The copper wais ac- 
cordingly fent to the plaintiff, on the 19th of 
July^ and on the 30th oi Juguji the defend- 
ant wrote a letter to the plaintiff, refufing to 
take it back, in anfwer to a letter of his of the 
28 th of the fame month, complaining of the 
badnefs of it, and refufing to accept it: It 
alfo appeared, that before the writing of thiis 
letter, the parties had correfponded on the 
fubjeft : but the copper was not aftually re- 
turned till November. 

The queftion was. Whether the .delivery of 
the copper was a good payment ? If fo, there 
was more than enough to balance the plain- 
tiff's demand. Boltotiy Sejjeant, againft the 
Tule> infifted that this was not a contraft for 
the purpofe of uttering bad money, which 
would have been illegal, and therefore void 
under the ftat. ic Geo. 2. c.-ii. but it was 
an agreement by the plaintiff to take a Ipecrfic 
* parcel of qopper, which wais valid and legal. 
But fuppofing it otherwife, the plaintiff was 

^equally culpable with the defendant, and as it 


[ 215 ] , 

appeared that he had feen thfe identical copper 
at the time of entering into the agreement, he 
Ought not to be permitted to objeft to it. now, 
as an illegal contra6l, 

Scott and Haywoody contra, contended that 
this agreement, was void, becaufe it was aft 
agreement to commit an offence ; and there- 
fore the defendant could riot proteft himfelf 
tinder it, for, independant of the ftatute of 
the 15 Geo. 2. it was a itiifdemeanor to utter 
counterfeit money knowing it to be fuch. 

But fuppofing the plaintiff would have been 
bound by the agreement, if it had beerf con- 
cluded; yet it was only executory, for the 
plaintiff fent word that he would not take ithe 
copper money as payment ; and he kept back 
part of the tobacco which had been agreed for. 
If an adlion had been brought fay the defend- 
ant to compel the delivery of the reft of the 
tobaccot, he could not have recovered, becaufe 
there was no legal confideration : and if the de* 
fendant had never fent this copper in payment^ 
the plaintiff could not have compelled him to 
perform the contraft, which would have fub^ 
jefted him to a criminal procefs. Then he 
ought not to be permitted to take advantage 
of it in this fliape. 

This queftion fhould have been left to the 
Jury, to determine the extent of the agree- 
ment ; arid at leaft the plaintiff was entitled to 
recover that part of his debt which accrue4 
previous to this cbntra£l. 

It has been fettled, that if a contraft is valid 
as to part, and void as to the reft, the plaintiff 
may recover upon that part of it which is legaU 
Robin/on v. Bland, 2 Burr, 1077. 

WiLLES, J. declared himfelf fatisfied witft 
the .nonfuit, 

JP 4 Asfl^ 

[ ai6 ] 

ASHHURST, 7.— The nOnfuit in this cafe 
ought to ftanci,; for it does not appear that the 
parties entered into this contraft^ knowing it 
to be illegal : but even if it were fo, it doqs 
not lie in the plaintiffs mouth to take advan- 
tage of it. 

BuLLER, J. — It has been objefted that this 
is an illegal contraft : there is no doubt but 
that an agreement to take counterfeit money, 
knowing it to be fo, is void ; but the faftdoe^ 
not come up to it in this cafe. The plaintiff 
did not agree to take counterfeit money in pay- 
ment, but the agreement was to take fuch 
copper money as was then (hewn to him. 

Suppofing, however^i that this contraft was 
illegal, the plaintiff would not ftand in a better 
fituation. He could never recover -, for the 
argument pf the plaintiff's counfel, in cafe an 
aftion had been brought by the defendant to 
recover the reniainder of the tobacco, would 
have been equally applicable to the plaintiff, 
' It cannot be faid that the falc is good, and 
that the payment is bad j if it is an illegal con- 
trad:, it is equally bad for the whole. It would 
be great injuflice to allow the plaintiff to re- 
cover in this a(3;ion the whole value of the 
goods fold, becaufe that would be permitting 
him to take advantage of a corrupt agreement, 
which is never allowed in cafes where a party 
applies to the Court to fet afide fuch agree- 

That was the principle on which the Courq 

Burnford and ^^^^ ^^ ^ "^^^ cdSt o{ Fttzroy and GwUUm (a), 
Eaft, I V. 154. where they faid, that, if a party applies to the 

Court to refcind a contraft on the ground of its 
illegality, it muft be done in toto^ and he muft 
not derive any advantage under it. The par- 
ties are in pari deliffo, and if one of tjljenri fee^ 


[ 217 1 

relief, he muft firft do what is juft ; according 
to the principle eftabliflied on the other fide 
of the hall, that he who aflcs equity muft do 

This nonfuit will not preclude the plaintifF 
from recovering the £, 23, which was owing 
upon a former agreement, becaufe that debt 
arofe from a fair and valid tranfaftion: but 
that is no reafon for fetting afide the nonfuit; 
in this cafe. 

Rule difcharged. 

Debt for two penalties of ^-S^o each, un- King v. Pipp<ji^ 
der the ftatute of the 2 Geo. 2. c. 24. for pre- B.RfDui^iord 
venting bribery at eleftions. and Eaft, 1 v. 

This was tried at the laft adizes for the coun- *\^^ ^^ ^^i^^ 
ty o( Devon y before Eyre^ Baron, when the plain- for bribery at 
tiff was nonfuited upon the ground that there whtrfthedc- 
was a variance between the precept ftated in ciaration fct 
the declaration, and the one which was proved. ceptVrom u,t^ 

The declaration recited the writ to the ftierifF to ti,© 
flierifF for the eleftion of members to ferve in b^m'ifghf the* 
parliament, and then proceeded to ftate, that improper infer- 
the iktvxS made his precept to the portreeve of 'Mf/MiVfudT*^ 
the borough of Honitony which concluded in ^^^^^^ !^ "^^ ^ 
thefe words, " and if the faid eleftion fo made, but \iWA\^ 
^' diftinftly, and openly, under the feal of the "{fff*^^^"*"* 
" portreeve, and the feals of thofe who (hould 
" be prefent at fuch cleftion, the faid porr 
*^ treeve fhquld certify to the faid Iheriff, fo 
" that the faid (herifffhould certify to his faid 
" majefty, in his faid majefly's chancery, at 
" the day and place aforefaid, without delay; 
" remitting to the faid fheriff one part of the 
*' aforefaid indentures, fo that the faid iherifF 
" might remit the fame to his faid majefty, 
" annexed to his majefty's writ." The pre- 
cept when produced, had ^ot the word " if/* 


[ ^»8 ] 

. » . 

which the Ju^ge thought did not fupport the 

Gihbs fhewed caiife agarnft a rule which had 
been obtained to fet afide this nonfuit. 

The precept iftated in the declaration, is not 
proved by the real one, which has a perfect 
conclufidn inafmuch as it contains a pofitive 
direAion to the portreeve to proceed to elec- 
tion, and return the precept j whereas that fet 
out in the declaration has an imperfeft and 
conditional conclufion. ' 
(a) The principle laid down in the cafe of Brif- 

Itoiigj. 642. fQfu^ and JVrigbt (a) decides, that this is a le- 
gal objeftion. That was an aftion againft 
the fherifF, for taking goods without leaving a 
year's rent. In the declaration, the particulars 
of the demife were fet forth, which was held 
to be unnecefiary; but the plaintiff, halving 
undertaken to do it, and not proving them as 
fet forth, was nonluited. It was faid by Lord 
Mansfield in that cafe, that " the diftinftion is 
between that which may berejefted, as fur- 
plufage, (which might have been ftruck 
out on motion) and what cannot. Where 
*' the declaration contains impertinent matter, 
** that will be rejefted by the Court, and need 
•' nbt be proved ; but if the very ground of 
" the aftion be miftated, as where you u'nder- 
*' take to recite that pairt of the deed on which 
*^ the aftion is founded, and it is mifrecited, 
'^ that will be fatal; for then the cafe declared 
*^ on, is different from that which is proved, 
and you rhuft recover Jecundum allegata tt 
probata'^ The queftion theh is, whether 
the fetting out this precept be impertinent or 
immaterial ? if the former, the variance in the 
declaraLtion H not fatal, becaulc in fuch cafe, 
M is not necelTaf y to prove the precept j but 

. ' if 



[ ^19 1 

if immaterial only, as the plaintiff has under-r 
taken to fet out that which he need not have 
done, he is bound to prove it as ftated. Here 
perhaps it might have been fufficient to have 
ftated that there had been an eleftion, and that 
at fuch eleftion the bribery had been com- 
mitted ; but the plaintifF having undertaken 
to fet out this precept, is bound to prove it as 
fct forth, becaufe he m^kes out his cafe through 

If the infertion of the word " if" makes 
any alteration in the fcnfe, it is a fufflcient 
obj^dion ; and it is clear in this cafe, that it 
akcrs the fignification of every fubfequent 
word, by making that conditional which ought 
to be pofitive: therefore every word which 
follows *' ify^ in the declaration, muft be taken 
in a different ftnfe from that in which they are 
to be underftood in the precept. It is not 
enough to fay, that by the rejeftion of the 
word " 5^" the fenfe will be complete, for 
any perfon reading this record, would rather 
fuppofe that fomething had been omitted in 
the conclufion, than that the word " (/"," had 
been improperly inferted in this part. 

Lawrence and Wutjon contra argued, that 
the declaration did not affeft to fet out the 
UnoT of the precept, in which cafe the va- 
riance wt>uld have been fatal ; but it only 
ftated that the (hefiffhad made his precept, 
by which he had given certain dircftions to the 

The Court may not only read the declara- 
tioh without the word */ //," biit even with- 
out any part of the precept in which it is. con- 
tained, becaufe it was not neceflary to be fet 
fohh. In the cafe of the King and Beach (a), ^^\ 

undertood was written for underftood, in the af- ^o^^r- i-;* 


[ 0.1O ] 

fignmcnt of perjury, which was held not ta 
be a fatal variance. If then the Court can 
iupply a letter in order to make fenfe, they 
may alfo rcje6t a word for the fame purpofe. 
For the introduftion of the word " if* makes 
the whole fentence unintelligible. 

In the cafe ofBriJiow and IVrigbty the whole 
of the contract was neceflary to be proved, 
and confequently the time when the rent was 
payable j but here the matter ftated was per- 
fedtly unneceflary. The mode of eleftion, and 
the return by the portreeve to the iherifF, were 
irrcvelant to this aftion, and therefore they 
may be rejefted as furplufage, according to 
what was faid by the Court in Briftow and 
fVrighty with re(peft to irrelevant covenants ia 
a leafe. 
(b) The King and May (b) was an indiftment 

pougi. 1S3. £qj. perjury, committed on the trial of an in- 

didment for an aflault, in which were thefe 
words, " whereby his life was gready defpairei 
*^ of." This laft indictment was fet out in 
the former, omitting the word " defpairei T 
this viz^Jupplied by the Courts upon the ground 
that the omiffion of that word made it non- 
fenfe ; the fame reafon therefore Holds for re- 
jelling this word. 

They then cited PTilfon againft Maw/oUj bh 
the fittings after Michaelmas term, 13 Geo. a. 
at fVeftminfter. That was an adion for falfe 
imprifonment, and the bill of MiddleJeXy upon 
which the party had been arretted, was fet 
forth in the declaration as follows: that the 
IherifF was commanded to take A. B. (the 
then defendant) an3 John Doe, if, fcfr. and 
them, ^c. fo that he might have their bodies 
before our Lord the King, at TVeJlminfteri on, 
tff. (verbatim to the end.) The bill oi Mid," 

ilefex being read, was in thefe words :' the (he- 
riff is connmanded to take A. B. and John Dor, 
iftbeyfljoll be found in bis bailiwick^ and them 
JafeJy keep, fo that he may have their bodies 
before, &c. it was infifted by the defendant's 
counfel, that this was a variance between the 
bill of MiddlefeXy and the record, and that it 
was not fufficiently fet out, on account of the 
words, &?r. Sed per LeCy C. J. the objedion 
is, that all the bill of Middlefex is not fet out 
in the record, but there is no occafion to fet 
it all out. The fubftance is fufficient, and 
there is no variance between the bill of Mid^ 
dlefexy and fo much of it as is fet out in the 

So alfo the cafe of Hendray againft Spencer (a) 
(a), which was an aftion brought by the high ^^^ ^\^ 
bailiff of fFeJiminftery againft the defendant, Mic 1773. 
in the nature of an efcape. The declaration 
ftated a latitat againft Donner and J. Doe, with 
an acetiam againft Donner , for £. 30. That a* 
warrant was made to the high bailiff, &fr. and 
that the plaintiff (the high bailiff) arrefted 
Bonner^ and delivered him to the defendant, 
who promifed fafely to keep him, but after- 
wards permitted him to efcape, by which 
means the plaintiff was obliged to pay the 
money. The writ produced in evidence, was 
againft Donner and two others, and not againft 
7. Doe. Mr. Mansfield^ on behalf of the de- 
fendant objed^d that this writ did not prove 
the declaration, but was a variance ; for a writ 
againft Donner and two others, could not be 
the fame as a writ againft Donner and J. Doe. 
Wallace contra^ {B\dy the only queftion was, 
whether fuch a writ iffued, as warranted the 
arreft of Donner, and that had been proved. 
Lord Mansfield over-ruled this objection, and 


i 111 3 

faid, this was a fufficient writ to warrant the 
arreft, and that was all that was neceflary.-^ 
Plaintiff had a verdidt, 

WiLLEs, J. — I am of opinion, that this 
i^onfuit ought to be fet afide. It is agreed 
that the whole precept need not have been fet 
out ; fo that Hating it was furplufage. It is 
likewife agreed, that the precept is not fet out 
according to its tenor.- But it is objeded that 
the laft claufe of the precept is fet out as con- 
ditio^ial, inftead of its being a politive aver- 
ment. If it were fo, the argument would have 
fome weight: but I do not think the infer- 
tion of the word " if" varies the fenfe of the 
fentence ; but, if it has any efFeft, it makes 
nonfenfe of a precept, which ought not to have 
been fet out at all, therefore the Court is 
bound to rejedl fuch a word. The cafe of the 
(b) King and Beacb (b) applies very ftrongly ; 
Cbwp.az9. ^i^^re the omiffion of the letter « s," did not 

change the fenfe ; neither in the prefent cafe 
does the addition of the word " if," convey a 
different meaning. If this word be rejefted, 
the fenfe is .complete; and I think we are 
warranted in rejefting it by the cafe of Hendray 
V. Spencer^ where though there was- a variance 
in the namels of the two perfons-in the writ, 
yet enough of it was fee forth to warrant die 

This is totally different from the cafe of 
Briftow V. IVright. There the demife was 
particularly fet forth, which varied materially 
from the demife as proved ; therefore the fenfe 
itfelf was different. 

Ashhurst, y. — I think the Court may, 
and ought to rejeft the word " if," as fur- 
plufage; for on reading the record, we fee 
that the word introduced is nonfenfical/ The 

. Court 

[• aa3 1 

Court is bound io judge according to certain 
and known rules of law, and they nnuft take 
notice, ex officio^ of what is the form of the 
precept. It is a matter of notoriety, and 
looking on the record, we fee the word ^^ if," 
inferted, which is contrary to the form of the 
precept. Therefore, this is not like a matter 
in faiSi which the Court can know nothing, qf 
'till it comes before them* 

This cafe does not appear fo ftrong as thofe 
of Hendray v. Spencer^ and Wiljon v. Mawfon ; 
for the addition of a name was a thing which 
the Court could not poffibly know 'till the 
produftion of the writ at the trial : but this is 
what they muft, on reading, know to be wrong* 
Therefore I am of opinion, that the nonfuit 
ought to be fet afide. 

Duller, J. — The declaration in this cafe 
ismuch longer than it need have been. There 
was no neceffity to fet out the precept, but, 
being fet forth, the queftion is, whether ^hc 
variance is or is not material ? I think it is 
impoflible for any perfon to read this part of 
the declaration, without knowing what it fhould 
be : every one muft fee by it, that the por- 
treeve /V abfolutely to certify to the fherifF, ^c. 
The infertion of the word " if," is a mere 
miftake. The cafe of the King v. Beach, is 
much ftronger than the prefcnt. There, the 
Court fupplied a letter to make up a word, 
which was neceffary in fetting out an indift- 
ment : but here, it was aot neceffary to ftate 
the precept at all. But it does not reft here 
only : there are other cafes equally ftrong, as 
Hendry v. SfenceVy and Cuming v. Sibly, E. 
9 Geo. 3. C. fi. which was an action for bri- 
bery : there the declaration ftated the precept 
to be direfted to . the mayor only ; but the 
precept which was proved, was directed to the 
8 Mayor 

t 2H 1 

Mayor and Burgejfes ; and the only, qiieftiort 
in the cafe which was referved for the opinion 
of the Court, was, whether the precept that 
was proved, fupported the declaration ? The 
Court of Common Pleas was of opinion, that 
it did, and gave judgment for the plaintiff. 
In that cafe, there was a variance in theperfon 
to whom the precept was direftcdi but the 
Court was of opinion, that if it were the fame 
in fubftance as that which was fet forth in the 
record, it was fufficient, unlefs the tenor was 
ftated. So in this cafe, the variance, to have 
any effeft, muft be a variance of fcnfe, and of 
fomething material. 
fa) The three principal cafes which have been 

ihjogi. 643. argued in this Court of late years, are, SbuUv. 

Dougi. 640. Hornfey (a), Brijlow v. JVright (b),*and Grant 
W V. Afile (c), all of which were upon contrafts. 

vw/po^i^- In thefe kind of cafes, it is neceflary to fet out 

<*9-) the contradl in the declaration ; and if it be 

different in any part, the whole foundation of 
the aftion fails, becaufe the cqntradt is en- 
tire. • 

(d) In the cafe of the King v. Lookup (d), which 
bTr. ^ ^^°* ^* ^^^^ ^^ indiftment for perjury ; the objedion 

was, that the indictment ftated the bill in 
Chancery, to be direfted to ** Robert Lord 
Henleyy 6?f." whereas it was direfted to 
Sir Robert Henley y Knight, ,&?r." But that 
objection was over-ruled, 

(e) The cafe of Shuttleworth v. Pilkington (e), 
astra. 1155. jg likcwifc extremely ftrong. That was an 

adtion on a bail bond. The fpecial original 
was returnable, coram domino rege ubicunque tunt 
fuerit in Anglid: buf the word ^^ ubicunque," 
was omitted in the bail bond ; and it was ob- 
jefted, that by the ftatute oi Hen. 6- (which 
was pleaded) the iheriff could take no bond, 


C ^25 ] 

but fuch as correfponded with tlie writ; wh€rea$ 
this might be to compel an appearance out of 
£nglandy if the king fhould happen to be fo» 
But the Court faid it was fufficient in thefe 
bonds, to ftate in Jubftance^ the dcfign of the 
writ J and that they would underftand, that by 
appearing before the king, was meant before 
the king in bis courts and not before the king in 
prjm. And the plaintiff had judgment. 

In the prefent cafe, the fenfe of the precept 
as ftatcd in the declaration, is the fame as that 
which was proved : it commands the return- 
ing officer to proceed to an election. There- 
fore as this is not a variance in fenfe ; I am of 
opinion, that the nonfuit fhould be fet afide. 

Rule abfolute. 

This was an a(EHon on a policy of infurance, Jtuien, ntvA^ 
which came on to be tried at the fittings after g"'- ^^y" 
iaft Eajler term, at Guildhall^ before Bulkr^^J* 26 g. 3. b. r. ' 
—who nonfuited the plaintiff- ^^iTsTl 

Upon a motion to fet afide that nonfuit, the Money having 
foUowing fads wefe reported. That the in- jirrefflnfa 
furance was upon goods on board the fhip cargo on board 
Emanueh at and from Falmouth to MarJeilleSy tSSd b? 
warranted a Danijh (hip ; and on the policy the owners up- 
was this memorandum-, "The following in- the(hV*sa"fivai 
' furance is declared to be on money ex- ^MarieiUes. 
^ pended for reclaiming the Ihip and cargo eipturcS artlT^ 
' valued at the fum which fhall be declared "^^"'^reiin" 
' hereafter. The lofs to be paid in cafe the quiihed her " 

* Jhip does not arrive ?it Marfeilksy and with- ];^/erwards^^! 

* out farther proof of intereft than this po- Pending the ap^ 

* licy , warranted free from all average, and ^.tor'dett 
^ without the benefit of falyage." be foid^ and the 

It appeared that the plaintiffs Were pro- apJSIJef^^S 
prietors of th6 cargOy but not of they^i^. That terw^sd©- 
the (hip originally failed with the cargo on ^Si, **^ 

Vol. IIL Q^ board 

rf^tfrment of a board from Riga on a voyage to Marfiitte^f 
iffibS ^^^ *at an infurancfe had been effeftcd at 
the (hip might Brmett upon the cargo for that voyage ; m 
Tng the capture ^^e couffc of which (he was taken, and brought 
have afterwards into Falmoufhy bv an EnrMf frtvafeer. That 
fciUes : and this fcntcnce of Condemnation had been there ob- 
bcingawager- tained, which was afterwards reverfed upon 
affured*a)iid^* the pfize having been proved ta be a neutraF 
s*andon!^ '*""^ fliip, but the expenccs of procuring thatre- 

verfal were ordered by the admiralty court to 
be a charge upon the cargo. The plaintiff's 
agents accordingly paid the lum of ^.1031. 
1 4 J. for the pcpences of reclaiming the Ihip 
and cargo ; and immediately procured the po- 
licy in queftion to be efFefted in January 178 1> 
according to the purport of the memorandum. 
In the February following the fhip fct fail 
from Falmouth with the original cargo on 
board, in the profecution ofher voyage to 
Marjeilles ; but on the 26th 6f the fame 
month, before her arrival there,, was captured 
by a Spanijh fhip, and carried into Ccutd in 
Spain y where (he was again condemned .» 

An appeal was brought in the fuperiop 
court of Madrid y which promifitig to be of 
long continuance, the cargo, which was of 
a perifhable nauire, was ordered to be fold,, 
and the proceeds to be brought into court, 
to wait the event of the fuit. In May 1783, 
the veflel was reftored by fentence of the 
court, and the furplus of the proceeds which 
arofe from the fale of the cargo, was paid to 
the owners, deducting the experrces incurred 
in Spain in profecuting the appeah After all 
the charges paid, there only remained twenty- 
fix rix-doUars. As foon as the fhip was*. 
... liberated, (he failed from Ceutit to Malady in 
order to refit, and having theie made the ne- 
. *' ' ceffary 

I: 4^7 1 

teitary repairs, £bt fail for Bremen^ and in that 
voyage was lofh 

The infurance made upon the cargo at 
Bremen has been paid. The declaration aver- 
red, that ^^ whilft the Jhip wds frxiceeding m 
*^ hit /mi n^ag£ frmn Falmouth io Mar« 
" iiiLLEs, and before Jbe tould arrive at Mar* 
^^ sEiLLEs, fhe was captured by the Spa* 
^^ KiAUDs, and thereby the faid ihip, and alfo 
^^ the goods and naetxrhandi^s bn board her^ 
" were totally loft to* the plaintiffi/* 

Bidler^ 7*--^then proceeded to obferve, that 
&t the trial, it was obje&ed on the part. of the 
defendant ; • ift. That this was not iwi in* 
furabie inficcreftj and, adly. That the plain- 
tiffs could not recover upon the policy in 
this form of declaring, for they had ftated the 
iofs to have happened by capture ; whereas, 
though the veilei was captured, yet, having 
been afterwards reftored, fhC' might have 
readied her deftined port notwithftanding the 
capture, in which cafe the underwriters would 
have been difcharged by the terms of the me* 
tidorandunri. And that he, being of that .opi- 
nion, had npn&ited die plaintilfs. 

Etjkine ^rndi Adam fhein^d caufe, and con- 
tendol that the ndnfuit ought to ftand, as well 
tipon the merits,- as upon the validity of the 
objedion, which had been uken in point of 
form. It is material in the Arft inftance for the 
Couit to confider how far the averment maxle 
by the plamtiffs^ that they dxc interefted in die 
prcmifes, is wfcU founded in point of law i 
for if i« appears thact the under-writers at 
Bremm were adfwerable for the expences which 
had been incurred in reclaiming the goods, in 
that point of view the prefent contraft would 
amount toa re^afiurMce^ and was confequendy 

Q^a void. 

void. Then as to the event infurcd, whicli b 
the arrival of the Jhip at MarJeilUs \ in order 
to entitle the plaintiffs to recover upon an 
averment of a lofs by, capture, they fliould 
have proved that the fbip did not arrive there 
in confcquence of the cafture. But notwitb- 
ftanding that event, the fhip might afterwards 
have reached her port of deftination* 

This policy is effentially defeftive arrf nu- 
gatory ; for the fubjeft matter of the infurancc 
is entirely unconnefted with the event which 
is infured againft, the plaintiff not having in- 
fured againft any event by which he nnight be 
deprived of his property. And whether the 
fliip and cargo arrived or not at Marjeilles was 
perfeftly immaterial ; for, if the fhip and cargo 
arrived, the plaintiffs could not have beenre- 
imburfed the expences which they had been put 
to J the cargo would ftill only have been worth 
its original value > and if it did not arrive 
there, the under- writers at Bremen would have 
been liable. So that it would have made no 
difference as to the real intereltof the plain- 
tiffs, whether this infurance had been made 
upon the arrival of any other feipj and it is 
in the nature of a wager. 

To entitle the plaintiffs to recover, it was 
incumbent on them at the trial to h^ve (hewn 
two things ; I ft. That the veffel ufed her ut- 
moft endeavours to get to Marjeilles i . and for 
this purpofe it muft be taken that the plain- 
tiffs had a right to order the deftination of the 
veffel. 2dly. That fbc was prevented from 
arriving there by fome peril infured againft. 
The event infured againft herc» was the non- 
arrival of the fhip at Marjeilles^ and there. is an 
averment that the fhip was captui:ed« . If this 
had been a policy upon inter^^ft,. the averment 


t ft29 1 

to the (hip was captured would have been 
good J for in fuch cafe, wherever the voyage 
is incerrupted or defeated, the party intcrefted 
may abandon ; but it is otherwife upon a wa- 
gering policy ; there being nothing to aban- 
don, as the fubjeft matter of the infurance in 
queftion is incapable of abandonment ; and 
this diftinftion was taken in Fitzgerald and 
?6&(a). Here then the plaintiffs have en- (i) 

tered into t^o inconfiftent comrafts. As s^srow.App, 
againft the under-writers at Bremeriy the plain- 
tiffs were entitled to abandon upon the firft of 
thefe contracts, and recover as for a total lofs ; 
for fuch a policy is an indemnity againft a 
particular event by which a lofs or damage 
may accrue to the thing infured : but with re- 
gard to the prefent contraft, the event infured 
being the arrival of the fhip at Marjeilles^ the 
plaintiffs could not abandon, but were bound 
to ufe their beft endeavours to fend the fliip 
thither. For, if by any aft of the affured, aa 
by abandonment, it was rendered unneceflary 
for the fhip to proceed to Marfeilles^ and in 
confequence, (he fteered a different courfe, the 
under-writer was inftantly difcharged. There- 
fore, the very aft of abandonment, which en- 
abled the plaintiffs to call upon the under- 
writers ^t Bremen^ precludes them from main- 
taining their prefent demand. 

Piggot and Baldwin^ contra^ argued from 
the cl^ intention of the parties, that the only 
objeft of \kt infured, in procuring the policy 
in queftion to be effefted, was to indemnify 
,themfelves againft the expences which they 
had been put to in reclaiming the cargo. They 
had afted bond fide^ and laid all the informa- 
tion which they were in poffeflion of before ^ 
the uadcr- writers. This demand is declared 

[ 230 3 

to be for money aftually expended upon thi§ 
goods, and therefore the increafe is only to be 
confidered as an increafe of the original value 
of the cargo, and as if it had been under- 
inftired at firftj in which cafe it would ccr- 
lain-ly have been conmpetent to theni to have 
covered the whole of their intereft by a frefh 

Although by the terms of the memorandum 
on the policy, the event infured was the ar- 
rival of the Jhip at MarJeilleSy and not of the 
<argo i yet that mufl: neceffarily be confined to 
her arrival in that voyage. It could never 
hare been the meaning of the parties that the 
affurers were to be difcharged, if the (hip ar^ 
rived at Marjeilles at any diftance of timcji 
every contraft of this nature is obvioufly con- 
fined to the voyage intended. But if the ob- 
jqft of the voyage was defeated, by any peril 
in the courfe of it, the continuation of it be- 
came nugatory, and the afllired having in con- 
fequcnce abandoned that voyage, and after- 
wards fteered a different courfe, cannot be 
confidercd as amounting to ^ deviation, for 
the purpofe of dilcharging the under- writers i 
for the moment that the voyage was defeated, 
that event happened upon which they were 
liable. The fubfequcnt fentence for reftoring 
the fliip and cargo will not vary the queftion, 
When the veflel was taken and carried' into 
(^eutay it was impoflible to fwcfee what ex- 
pehccs would be incurred, and the cargo be- 
ing of a perifhable nature, it was thought 
moft for the advantage of all parties to difpofe 
of it \ this being accordingly done, a total 
end was put to the voyage, and from that 
moment the defendant was fixed. What af- 
terwards became of the Ihip, was perfeftly im- 
8 material 

[ ^31 1 

material to thefe parties. The Tale there- 
fore of the cargo, being the unavoidable con- 
fequence of the capture, muft have relation 
back to its original caufej and then the 
averaient in the declaration, is true and pro- 

. Lord Mansfield, C6. J. — The intcreft oa 
which the plaintiff" efFefted this policy, was 
money laid out in reclaiming the cargo. The 
event infured by the policy, was the arrival of 
the Jhip ^t Marfeilles. U Jh^ did not arrive, 
then the money was to be paid 5 i( Jhe did, 
there was an end of the inlurance -, a lols ac- 
crued upon the cargo in the voyage 5 the un- 
der- writer is fued, and the lofs is averred in 
the declaration to be ky capture. The faft of 
the cafe is, that the fhip was taken by a Spa- 
nijh privateer, but was afterwards reftored, 
gnd in a condition to purfuc her voyage, and 
was afterwards loft in another voyage. 
The anfwers to this cafe are decifive. , 

Firft,this is a wagering policy, and it is jufl: 
the fame, as if the event infured, had been the 
arrival of any. other fhip at Marjeill^s. The 
lofs or fafe arrival of the Ihip did not alter the 
fecurity. The parties were interefted in the 
cargo aloncy but the event infured, was the ar.- 
rival of the Jhip and not of the cargo ^ A ne- 
ceflary confequence of this being a wagering 
policy, is, that the infured cannot abandon. 
But, even fuppofing it to be a policy on in- 
tereft, it is enough to fay, that in this cafe, 
the parties never did abandon. In efFedt, 
there was only a temporary capture, and though 
by conftrucStion, a temporary capture is fuch a 
lofs, as that an aflured upon intereft is war- 
ranted in abandoning at the time, if he pleafes, 
yet we muft'confider what the truth of the 

QL4 ' cafe 

cafe was, between thefe partita s tow this waa 
a wagering policy, and in fuch cafe, there can 
be no abandonment. i 

But what alone is a fatal Qb}^<9:ion to the 
plaintiff's claim is, tliat they did not attempt 
to purfue the voyage to Marfoilks^ which it 
wa$ in their power to do, after they left 
Ceuta. The circumftancc of the ftiip's having 
been captured and detained for a tin^e, did not 
prevent her fronn profecuting her voyage after 
fhe was liberated. Nor is it any excufe, that 
the plaintiffs could no longer control her def- 
tination; for in wagering policies the affured 
take upon them to perform all that the owners 
themfelves of the veffel could have done in the 
fame fituation. 

Therefore in every point of view,the plain-. 
riffs are precluded from recovering. 

WiLLES, 7.— 'I fhall confine myfelf to the 
formal objection which has befen taken, be- 
caufc I have fomc doubts, whether the plain- 
tiffs had not an infurable interell j for by the 
fcntence of the court of admiralty, the ex- 
pences of reclaiming were thrown tpon the 
owners of the cargo, by which the price of it 
was increafed 3 therefore I forbear to give any 
opinion upon that ground. But on the other 
grounds it is clear, that the plaintiff cannot 
recover. In the firft place, there was cer- 
tainly a deviation, for the fliip fet fail for Mih 
hgay inftead of proceeding to Marjeilles^ Se* 
condly, the plaintiff has declared for a lofs by 
f4p$ure*p but after the capture, the policy 
might ftill have been eornplied with by the 
(hip's going to Marjeilles \ and therefore the 
lofs cannot be faid to hare happened by that 

A&HH^sT> J.^wA am of the fame opinioa 


[ ^33 1 

with my lord upon both points. In the firft 
place, this is to be confidercd' as' a wagering 
policy; and in fuch cafe, the party infured 
rakes upon hirrtfelf to d6 e\^ery thing which 
the owners of the (hip might have done; and 
they might have direfted the 'Ihip to Marfeilles. 
It is alfo certain, that the party infuring a ftiifJ 
to any plac^, muft ufe all due diligence td 
ftinher her voyage thither, which not having 
been done in this cafe, upon that ground alfd 
the nonfuit ought to Hand. 

BuLLER, 7. — It woujd be a fufficient ob-2 
jeftion in this cafe, that the lofs is averred to 
be by cafiure\ but as the rterits have beeri 
gone into, I (hall give my reafons for fup- 
porting the nonfuit upon thefe grounds alfo. 
Policies of infurance are of two forts, either 
upon intereft, or by way of wager. Where vi 
is upon intereft, it has been folemnly deter- 
mined, that it MS merely a contraft of indemnity, 
and therefore ought to be fo framed, that the 
party can only recover in cafe of a lofs really^ 
fuftained, and to the precife amount of that 
lofs. My opinion at the trial was, that the 
parties had it in view to infure a real intereft, 
and prot€<5t themfelves by* the policy. But 
whatever their intentions might have been, 
the Court is bound to look to the inftrument> 
and fee what they have done ; and if they have 
not exprefled their intentions upon the policy, 
the Court cannot help them, and they muft re»* 
main bound by their contraft. The circum- 
ftances of this cafe are, that the plaintiffs were* 
owners of the cargo, but were not intcrcfted in 
the (hip. They laid out the money which is 
the fubjeft of the infurance in reclaiming botk 
after a capture and condemnation; and al- 
though they were in no degree interefttd in the 


[ «34 3 

(hip, yet the event which they infured, is the 
fafe arrival of the fhip at Marjeilles* Theft 
parties, therefore, who were interefted in the 
cargo alone, did not infure that, but fomc- 
thing elfe with which they had no concern. 
The goods might all have arrived fafe, and 
the ftiip have been loft j and yet they would 
have been entitled to recover on this policy as 
for a total lofs. And on the other hand, if the 
ihip had arrived, and the goods h^d been loft, 
they could not have recovered, even though 
they would have really fuftained a damage* 
The policy is not adapted to the real truth of 
the cafe. This then is a wagering policy,, and 
that circumftancc alone is decifive upon the 
ground of merits. The cafes of wagering po- 
licies, and policies upon intereft, have been 
confounded in the argument. In the latter 
cafe, if the voyage be loft, it is, not neceffary 
for the affured to proceed on with the hulk of 
the fhip I for they are at liberty to abandon ; 
but then there muft be an abandonment in poinC 
of fad; Therefore, in this cafe, it is enough 
to fay, that even if the parties could have 
abandoned, they have not done \u The 
plaintiffs have no ground for maintaining this 
adioh, either upon the merits, or upon the 
formal obje6tion. 
Rule difcharged. 

Bc^\h*M^i * ^^^^ ^^^ difturbing the plaintiff m his pew, 
G°^. B. R. The declaration ftated, that the plaintiff had 

eX^^v.^^/s. * "8*^^ ^^ ^^® P^^> without laying it to be 

poffeffion for appurtenant to a meffuage in the- parifh* 
cfrSwirr At the trial of this caufe before Buller, J. 
church is not a at the laft Totk afBzes, the plaintiff did not 
intntinnfal" f« up any claim under a faqulty from the 
lion upon the fcifliop, xsc Ihew any enjoyment ip refpcft ot 


[ 235 1 

any houfe, but offered evidence of poffefllon carafordiflurb, 
for above fixty years, and would have derived j'oymint'ont"r 
a regular title from one Chapfle^ to whom the i>ut the plaintiff 
minifterand church-wardens, in the year 171 1, preftrl'in^ve ' 
gave their confent In writing to build the pew risht.orafa. 
in queftion. OiDni'd cbim i^ 

The Ifarned Judge, being of opinion that ".' I'ls JecWa- 
this did not entitle the pUintitFto recover, di- ten^uoaraec 
refted a nor.fiiit, which Ir.nih.'A'ft 

BcUon, Serjeant, moved on a former day to cuity w a man 
fetafide on three grounds, ift. That no fa-^^''"'^'"'"' 
cuity was neceffary in this cafe to fupport the 
plaintiff's aflion. sdly. That, if a faculty 
were neceflary, it might be prefumed after 
fuch a length of pc^ffion. 3dly. This 
being a poffeilbry aiftion, mere pofleflion 
was fufficient to maintain it againft a wrong 

Chamhre now Ihewed caufe, and contended 
that no title to a pew can be derived but by 
prefcnption, or by a faculty. 

There is no pretence ftw the firft ; for it was 
Rated by the plaintiff's counfel at the trial that 
the 'pew was built in 1718. 

Neither is any title claimed under a faculty ; 
but, even if there had been one to the perlbn 
who built the pew, this aftion could not have 
been maintained, becaufe that perlba could 
not have conveyed his right under that facul- 
ty. A faculty is only to the firft grantee, and 
cannot be transfeired by him. A faculty to 
a man and his heirs (a) is nor good in point (a) 
of law; for a feat in the church does not be- °^^' '**" 
longtothe/>iff/o«but to the hcuje- This doc- 
trine is recognized in the cafe oi Lmgley v. 
<^kuie (b), the pariihioners, who repair the ,,,j 
church and the pews in it, are entitled to frats sir t- riny. 
in thechurch-i the power of the ordinary is '"""^' -•*'■■ 

[ a3« I 

merely to diftribute the pews among thefe; an<$ 
docs not extend further. 

As to the pofleffion on which the plaintiff 
relies, there can be no pofleffion to ibpport 
foch an aftiort as the prefcnt, but as belong- 
ing to the houfe. He was then ftopped by 
the Court; 

fVoodi iq fupport of the rule, adnnitted that 
the plaintiff in this aftion had not a complete 
title as againfl the crdinatyy but contended 
that ic was a fufficient title as againft a wrong 

ift. No faculty was neceffary. In Bnrri^ 
(c) Ecdefiaftical Law (c) it is faid, " if the in- 

» Bora, 331- <c cumbent, churchwardens, and parifhioners 
** agree that more pews are neceflfary, it doth 
*^ not feem that there is any neceffity for the 
"ordinary's interpofition." Therefore the 
plaintiff* has made out a fuffieient, title under 
the confent of the minifler and churchwarden^ 
in 17 1 8, to build this pew. 

adly. But a faculty, if neceflary, ' riiay be 
prefumed, the plaintifF an^ his anceilors 
having had adual pofTeffion above fixty years, 
«. ^i^ « « J« Rogers v. Brooks (d), pofTefTion for thirty-fix 
VH^i^nii the years was held to be evidence of a prelcnptive 
♦nd of the cafe, light, though there was no evidence of a fa- 
culty from the biftiop, and though the church 
itfelf had been rebuilt within forty years. 

3dly. There might probably be a doubt 
.whether the plaintiff had a right as againft th^ 
minifier or the ordinary. But the defendant 
was a wrong doer, unauthorifed by eitjier of 
thefe perfons ; and great inconvenience would 
refult from permitting the defendant to dif- 
turb the plaintifF in the enjoyment of his pew; 
becaufe the defendant himfelf may be cviftcd 
the n^yx nnoment 3 and it would encourage ^ 


t ^37 3 

perpetual ftruggle for the poffcffion of the pews 
in the church. In Kenrick v. Baylor (e), it ^(c> 
was held that bare pofTeffion was fufficient * ^^^^^ ^' 
againft a ix^rong-doer \ and that the plaintiff* 
need 2K>t ihew repairs in an a&ion againft hiia^ 
which would have been neceffary in an aftioa 
againd the ordinary, (which diftin(3:ion was 
taken in i Lev. 71. and 3 Lev. 73.) and the 
Court there faid, " that it was a rule of law, 
'^ that one in pofielCon need not (hew any title 
^^ or confideration for fuch poflcfBon agaiofl: a 
*' wrong doer." The fame doftrine is laid 
down in GihJ. Cod* 197, 8. with rcfpcft to the 
purpofe of this ad^ion, as the plaintiffhad pof- 
ieflSon he need not ihew any title. Though 
in the cafe of Kenrick v. Taylor, it was laid as 
appunenant to a mefluage, yet that is not ne- 
ceffary ; fince a faculty would undoubtedly 
give a right, and that may be only to the per>- 
fon. Befides, it is faid in that cafe in IVilfmy 
that it is not neceffary to prove a title as 
againft a wrong doer : now if it be not necef- 
fary to prove it at the trial, it is not necciTary 
to alledge it in the declaration ; for the plaintiff 
need only alledge that which he is bound m 

AsHHURST, J. — In an aftion againft a 
wrong doer, polfpflion may perhaps be prmd 
/tff;> a fufficient title, and it is not neccflary: to 
fee forth fo fir.i<5l a title as in an action againft 
theordinary. As in the cafe in fVilfon, where faid, that laying the pew to be appui?- 
tenanf to . a mefluage \ was fiifficient ; that 
muft. be tak^n to be legally appurtenant, 
,which can only be by prefqriptiw, or by a 
faculty.., J . , < : .. , ' . ^ 

. But a barcpoflcir^on gan^never give aright, 
tec^yfe 9very parifliioner has* a right ito go into 


t «38 1 

the church. And therefore it is the plaintiff^S 
own fault if he does not gain to himfelf a com- 
plete title to a pew, which he may do, either 
Dy applying to the ordinary for a faculty, or 
to the minifter or churchwardens to allot him 
a feat in the church. But if the plaintiiF will 
not take the trouble of applying to the ordi- 
nary for a faculty, or to the minifter or ehurch- 
wardens to allot him a feat, he cannot iMin'- 
tain this aftion, though againft a wrortg doer; 
bccaufe he has not fet forth that the pew i^ ap- 
purtenant to a meffuage in the parifti. If bare 
pofieiTion were allowed to be a fuffirient 
title, it would be an encouragemerit to com- 
mit diforders in the church j for difpUtes 
would frequently arife refpe<fting the pof- 

BuLLER, J. — This is an action on the cdffy 
and not an adtion of trefpajs. ^refpajs will 
not lie for entering into a pewj becaufe the 
plaintiff has not the exclufiyc f)ofleffion j the 
poflciTion of the church being id the parfom 
The word " poffefflon" mull always be ufl-" 
derftood, fecundum JubjeEtam maferiMm : there- 
fore in an adion on the cafe for difturbing the 
f>laintifF in his pew, for which trefpafs will nd 
ie, the plaintiff muft prove a right either by 
prefcription, or by a faculty. I do not gothi ' 
length which the defendant's counfel wem!, in. 
faying that a faculty only extends to the firit 
grantee ; for if a faculty be annexed to a mef* 
fuage, it may be tranifctred with the mtff^tagst 
to another perfon. And therefore if thei 
plaintiff had declared for difturbance ill a pew 
as annexed to a mejfuage in the parifoy fuch 1l 
right would have been colourable, and againft 
a wror^ doer would have been fufficient. A 
pew rnay be annexed to ^ h(Hiie bf a faculi^) 


I! 239 1 

as well as by. prdcription, for the latter fup- 
pofes a faculty. I have lately feen a faculty 
for exchanging feats in a church ; after dating 
that A. in right of a particular houfe in the ^ 
pariih had immemorially a right to a certain 
pew in the church, the ordinary gave his con- 
fent to exchange ic for another ; but ftili each 
was annexed to the houfe. There cannot be 
a gift of a pew to* a nnan without a faculty j it 
was fo faid \jsi the cafe of Rogers v. Brooks (a), (a) vide « 
in which cafe it was laid as appurtenant to an ^^^^"^^^^ 
ancient mejfii&ge. Ic was alfo faid in the cafe in 
Wt^on^ that it mufl: be laid as appurtenant to 
a meiTuage. But there never exifted a cafe 
before the prcfent, where the plaintiff at- 
tempted to make out a title to a pew, with- 
out laying it to be appurtenant to a mef- 

A faculty of a pew to a man and his heirs 
is not good ; fo of an aifle in the church^ 
And Dr. Burn fays (b), " No title can be (b) iBiim"^ 
good either upon prefcription, or upon any EccLLawoifr* 
new grant by a faculty from the ordinary to a 
man and his heirs \ but the aifle muft always 
be fuppofed to be held in refpeft of the houfe, 
and will always go with the houfe to him that 
inhabits it." xiCo.xod. 2 Keb. 92. iBulft. 
15Q. iSid. 88. Therefore I am of opinion 
that this nonfuit was right. 

Rule difcharged. 

This was an aftion on the cafe tried at the (a) Rogers v. 
fummer affizes at Exeter 1783, before Perryn^ m!T4/g.3 b.r!! 
B. when the Jury found a vcrdiA for the plain- ^ legai tkic 

•a* ji J toapewmayb« 

tljT, damages I </. . prefumcd after 

The declaration ftated, that the plaintiff ^h^IJy/^'^ y^»^ 
was poHeiied of an* ancient meiiuage in the 
pari{h of Biddeford^ and that hp had, as ap^ 


t 240 ] 

puf tenant to that mejua^^ the ufe and occdp^ 
tion of a certain pew in the church, in BiiUe' 
ford', and that the wife of the ctefeodam fat 
in the pew> and prevented hinn &om enjoying 
it, fc?^. 

Plea the general iflue. 

At the trial, notice to die deieiidant^s wife 
not to fit there was proved^ Several wttnefles 
fwore, that above forty years ago this was an 
open pew; that about that time the church 
was pulled down ; and that the redor and 
churchwardens, after the church was rebuilt, 
put the Blinch family (under whom the plain- 
tiff claimed) into poiTeffion of the pew, whicb 
they had enjoyed uninterruptedly ever fincc, 
till about two years ago ; when the defendants 
(who claimed under another mefiuage in the 
parilh, called the IVinxford eftatc) began to mo^ 
left them. That about thirty-fix years ago, the 
plaintiiF put a lock upon the doov^ and lined 
and matted the pew. That foon after the re- 
building of the church, a wooian got over 
the pew, as if to claim for the fVinxford fa- 
mily, but ihe was turned out by ^ Biimb 

One witnefs for the defendants iwtxtt that 
the fVinxford family fat in the pew for thifceen 
years after the rebuilding of the church ; and 
ihe and other witneiTes fwore as to the pew's 
being common. 

The Judge told the Jury that, after io long 
a poffelTion as thirty- fix yearSy they might prc- 
fume a legal title in the plaintiff*. The Juiy 
without hefitation found a vcrdiA for the 

Motion .for a new trial on the ground that 
tliere was no evidence to be left to a Jury ; be- 
iCaufc from the plaintiff's owa witne fies it ajv 




[ ^41 1 

pfeafed that the feat was common forty y^ar^ 
ago 5 and that they had proved a gift from thd 
reiftor and churchwardens fince the rebuilding 
of the church. This evidence, it was contend- 
ed, deftroyed the plaintiff's title which he 
claimed by prefcriftion. 

After argument by Grg/^ Serjeant, and Fan-^ 
jh(m ' againft the rule, and Morris and Kirby, 
Serjeant, in fi>pport of it, 

L6rd Mansfield faid — The queftion in 
this cafe is, Whether there was any evidence at 
all to be left to the' Jury ? 

The plaintiff's title to this pew is, that it 
has immcmoriaHy belonged to the houfe which 
he pofTefled. Tlie defendant has fet up a joint 
title in right of the houfe enjoyed by himfelf 
and artother perfon. The plaintiff in fupporc 
of his claim proved, that he was put in pof* 
fcffion of this pew by the reftor and church- 
wardens thirty-fix years ago. The queflion 
is. Whether this aft of the redtor was to give 
pofTeffion under an old immemorial rights or in 
confequence of a new gift ? There are ftrong 
realbns to induce us to fuppofe it was .not a 
gifti they would not make a gift of that which 
other people claimed • A gift cannot be Made 
without a faculty^ and there is none in this 

The Win^rd {2Xv\\\y have acquiefced for 
thirty-fix years, which is almoft double the 
time which the llatute of limitations requires 
as a bar in certain cafes. 

WitLEs, J. — It is obfervable that an at- 
tempt was niade to diflurb the Blinch family 
in the enjoyment of their pew foon after the 
rebiiiiding of the church ; but their right has 
been acquiefced in ever fince. 
YoL.lIL A R One. 

t 041 ] 

One of the defendant's witnefles fwore falfe, 
in faying that the Winxford family fat in the 
pew thirteen years after the church was re* 
built ; for the church has only been built 
forty years, and the Blinch family are proved 
to have fat there thirty-fix years without inter- 

It is very common when a church is re- 
built, to leave the adjuftment of the peWs to 
the reftor and churchwardens j and thus I fup- 
pofe the plaintiff got his pew at the adjuftnient 
in right of his meifuage. But after fo Icwtig a 
pofleffion, I would prefume any thing in fa- 
vour of the plaintiff. 

Per Curiam *, rule difch^rged. 

This was an a<5tion upon the cafe, tried fae- 

w^kl^^M ^' ^^^^ ^^^* Baron, at the lafl fummer affizes at 
g.V'b'r/*' Oxford^ in which the plaintiff declared upon a 
E^ft '?v ^^ fpecial agreement, to buy of the defendant all 
Where tht^' the fat or tallow which the defendant fliould 
contraa deciar- |^^^^ ^^ difpofc of for twclvc months, from the 

ed upon was, a r c^ i « i • r 

that thede- ^ift of July^ 1 7 84, at the price of 4^. fer 

Sr't^a^*^ fto«^- There was a fecond count, ftatingthe 

plaintiff all his agreertient to be, to deliver the fat or tallow 

SXftiA'nd at the price of 4 j. per flone, and two gallons 

the contradt of gin to bc delivered at CbriftmaSy with general 

proved was, ^ *^ 

that the defend. COUntS. 

ant niouid deli- xhc agreement proved was. That the plain- 

ver It at 4s. per </r» • ^ a. j -^ 1 

ftone, and fo tm was to givc 4 s. per ftone, ana if be gave 
fhrhint^ff ^'d ^^y ^^^ per/on more, he was to give the Jam to 
to any other *" the defendant. Upon which Eyre, Baroii, being 
was^ h^eid Ifitai ^^ Opinion, that this was a material variance, 
variance. nonfuitcd the plaintiff. 

Plumer fhewed caufe againft a rule which J 
had been obtained for fetting this nonfuit afide. 

* Sutler y J. was abfent* 


t ^43 1 

la or(fer to n^aintain this adion^ the plaintiff 
ought to have ftated in his declaration the en- 
tire contraft j but he has omitted to fet forth 
a moft eiTential part, namely the whole confi- 
deratipn of the promife, which is now only 
prHaily fet forth. Whether it would or would 
not have been neceffaiy befides to aver per- 
formance, that is not at prefent material to be 
confidered. If it had been ftated generally 
that the defendant undertook to deliver to the 
plaintiff all his tallow, without expreffing any 
consideration at all, it would have appeared to 
be nudum faStumi and therefore void. Then, if 
it was ncceflary to fet out fome cohfideration, it 
muft be equally as neceffary to fet it out truly; 
for if the confideration proved is different from 
that which is laid, it is a fatal variance. The 
declaration fhould have ftated the whole con-> 
fideration, and then have averred that the 
plaintiff was ready to have paid the 4 s. per 
ilone, and fo much more as he had given to 
any other perfon 5 for if, in fkft, the plaintiff 
had given more to any other perfon, that would 
have been a fubftantial defence for the defend- 
ant, which upon this occafion he was^rcclud** 
ed from going into. 

As to Ughtred's cafe (a), the diftinftion (a) 
there taken was between conditions precedent 7 Co. 9* 
and fubfequent, and what was neceffary to be 
averred ; butthat cafe does not fay that it is 
not requifite to fet out the whole contra6t. In 
Cko. EHz* 888, where the declaration, aftex 
ftating, that in confideration that the plaintiff 
would pay a fUm of money, the defendant un- 
dertook to furrender a leafe, only averred a 
tender of the money, without going on to fay 
that it was either rcfufed or accepted, the aver- 
ment was held ill. 

R 2 Bower 

C 244 ] 

Sower and Abhoty contra. The queflEion is, 
Whether this is a disjun<ftivc contraft ? Here 
is enough fet forth in this cdntraft to fhet^r the 
•plaintiff's title, and that is all that is neceffary. 
There was no precedent condition, i Lutw. 
249. BeStr-. PL 91. Where two confidera- 
tions are in the alternative, the party who is to 
perform is at liberty to eleft, and need oftly fet 
forth fo much as gives him a right tofue. In 
Dou^-i. 15. Laton V. Pearce (a), the plaintiff, who fued 
for a penalty under the lottery aft of 17 0*2- 
f. 46 • declared as upon an abfolute agreement 
for £. 20. The faft was, that the contraft 
was in the alternative, either to take £: ao. or 
an undrawn ticket in the lottery ; but the elec- 
tion was in the party /«^^. There L-ord ManJ' 
field faid, that if the option had been in the 
•plaintiff, and he had elefted to take the £, 20. 
the contraft would have been fafficiently 
ftated, becaufe he would thereby have con- 
verted the agreement into an abfolute contraft 
for the payment of the money j and then the 
other part of the alternative in the original 
bargain would become furplufage. Here it 
was in the power of the plaintiff to eleft' whether 
he would give more than 4 s. per ftone to any 
body elfe; and having elefted, he reduced the 
contraft to a certainty 5 and then the whole is 
fet out, and there is no fubftantial variance 
between the contraft laid, and that proved. 
If a contraft is variable upon a contingency 
which does not happen, the original contraft 
becomes abfolute. 

This cafe may be confidered in anotherview. 
.The contraft in effeft is, that the plaintifF 
-will buy of the defendant all the tallow at a 
certain. price, provided that, if he gave more 
to any body elle, he would give the fame to the 

1 . defendant. 

[ ^45 J 

defendant. Then how is the defendant pre- 
cluded by this declaration fronn entering into 
the nature of his defence ? It is enough for the 
plaintiff to (hew-that part of the contraft which 
he is to perform, and upon the trial the de-' 
fendant may take advantage of the provifo by 
way of defence. 

As to the cafes which make a diftinftion be- 
tween conditions precedent and fubfequent, 
they are not applicable to .the prefent 5 for 
here nothing more was to be performed by the 
plaintiff. . He could not have proved that he. 
had not paid more .than 4 s. per ftone to any 
other perfon ; therefore it was not neceffary to 
alledgc it, becaufe it would have been aver- 
ring a negative. 

Ash HURST, J. — This nonfuit is proper. It 
was incumbent on the plaintiff to ftate his cafe 
truly. But the contraft, as ftated^ is different 
in fenfe from that which is proved. For a 
contract, that the defendant Ihall deliver ali 
bis tallow at a particular price, is not the fame 
z& a .contraft> that he Ihall deliver it at that 
price, ifr at a gnater^ on the happening of a 
particular event. The plaintiff fhould have 
ftated the whole, and then have averred that 
he had not given more than 4 s. per ftone to 
any. other perfon, and that he was ready to 
have paid that fum. 

As to the cafe ofLaton and Pearce, it does 
not appear to me to cpntradid: that prin^ 
ciple. y 

BuLLER, J. — I wifli to have an opportunity 
of looking into the cafe of Laton and Pearce^ 
before I finally decide this. But laying that 
out of the qucftion for the moment, (for I 
think it will not be found, to apply) this cafe 
admits of no difficulty. 

R 3 This 

[ H6 ] 

This is an a3:ion on a fpecial agreement* 
The agreement is the gift of the a&ion, there- 
fore it muft be ftated truly. Ahd this does 
not clafli with the principle drawn from the 
cafes cited by the plaincifF's couniei, which 
feys-^that the plaintiff need not fet forth dif- 
ferent parts of an agreement which are not ef- 
fential to the right of adtion ; for here the con- 
traft proved is different in iubfbancc from that 
vhich is alkdged. For the declaration ftates, 
that the plaintiff was at all events to pay only 
four JhillingSi whereas the contraft proved was, 
that he was to p^y/o mucb^ or Jomething morey 
as events might happen. They difier there- 
fore in .this refpeft ; the agreement ftated in 
the declaration is for a particular pride ahfr- 
iutefyi whereas that proved is for the fiim ftated 
in the declaration, orjome other fria conditm" 

This is not the cafe of an alternative con- 
tjraft J where the party has his option t» do one 
thing or another, but it depends upon a con- 
tingency; bccaufe according to forne future 
event it is a contraft for a greater or a lefs fum. 
Therefore the term alternative is improperly 
ajfe4 here. Neither is this like the queftion in 
Ugbtred's cafe. But the queftion here is. 
Whether the plaintiff muft not ftate the con- 
trail as it is ? and whether he can ftate a 
cohtradt as abfolure, when, whether it is ab- 
folute or conditional, depends on the erent of 
another faft. 

I will look, however, into the cafe of 
Laton and Psarce, and if it makes any dif- 
ference in my opinion, I will mention this cafe 

Rule difcbatged. 


[ 247 ] 

On the next day, Bulkry J. faid, that the 
cafe of Laton and Pearce was rather againft the . 
plaintiff than otherwife : fur thq Court, in that 
cafe, held the variance to be fatal. But he 
obferved th^t that was an alternative con- 

This aftion, which was brought againft the Buckley v. 
^pfendant upon the ii Geo. 2. c. 19./. 12. f^^^Jof 3. b*. r. 
for fecreting an ejeftment, was tried at the laft Dumford and 
Leicefter aflizes, before Heathy J. when the ^^A'tenant to'a 
plaintiff was nonfuited. It appeared that, in mortgager, 

* rt 1 • rr 1 • • J who does not 

1785^ the premiffes being in mortgage, and give him notice 
the mortgage forfeited, the defendant (who of a«^ ejeament 

° ^ , 1 . .rr\ f J J ^- brought by the 

was tenant to the plaincitF) had agreed, in a mortgagee, to 
convcrfation which he had with the attorney of enforce -^n at- 

, I • /• 1 • tornment, is not 

the mortgagee, to attorn to him from that time ; nabie to the pe- 
buc the attorney, nqt thinking the promife fuf- GJo^rc!^l9 " 
ficient, delivered to the defendant an ejeftment f. 12. for Secret- 
in April 1785, informing him at the fame i«s ejeamem*, 
time, that it was only for the purpofe of pro- 
curing a written attornment, and th^t it would 
not be profecuted further ; in confequence of 
which, the defendant adlualjy attorned to the 
mortgagee. He gave no notice to the land- 
lord, either of the ejeftmcnt or of the attorn- 
ment i for omitting the former of which, this 
^ftion was brought. The learned Judge be- 
ing of opinion that this cafe did not cpme 
within the ftatute, nonfuited the plaintiff^ 
which nonfuit, 

Balguy now moved to fet afide ; contending 
that the fecreting of this eje&ment was pro- 
duftive of fome of the inconveniences which 
the aft intended to remedy, becaufe by thcfe 
means the mortgagor had been prevented ap-» 
plying to this Court to ftay the proceedings 

R 4 of 

[ 248 ] 

of the ejeftment on paying the principal, in- 
tered, and cofts. 

^he Court however were of opinion, that 
this cafe dkJ not come within the ftatute'j for 
that it only extended to cafes where ejeftments 
were brought which were inconfiftent with the 
landlord's title. They obferved likewife that 
the ejeftment was brought for the purpofe of 
compelling the tenant to attorn to the mort- 
gagee, which the adt exprefsly permitted him 
to do. 

Rule refufed, 

ter" e' r G^^^" Indorfee of a bill of exchange againft the ac- 
B.R. Duinford ceptor. — It appeared at the trial before Buller^ 
and Eaft, i V. j^ ^^ ^j^^ j^{^- flttjngs at Weftminfter^ that when 

jn an aeiion the bill was acccpted, there we re feveral in- 
cept'^Jf'abiti dorfements on it. But the plaintiff, not being 
of exciiange, it able to prove the hand- writing of the firft in- 

is neceff.iry to j r r '^ j 

prove the hand, dorfcr, was nonluited. 

xvritingof the Bowcv now movcd to fet afide this nonfuit, 

firft indorfer, , •• i i r* • i /- 

notwithftandmg on the ground that as thele indorlements were 
fuch i.idorfe- Qj^ |-[^e bill, at the time of the acceptance, they 
ihe'biu at the muft bc taken to have been admitted by the 
ce"Ted^ ^^^^ ^^"^ drawee, and he could not afterwards difpute 

them; and he cited in fupport of this, a de- 
termination of Lord Mansfield*^ in the cafe of 
Tratt againft tiozvifon^ at the fittings after 
Trin, term, 23 G, 3. at Guildhally and ano- 
ther cafe in Sayery 22.3. obferving that there 
w^ould be great the cafe of foreign 
bills of exchange in many inftances, on account 
of the difficulty and ' inconvenience of proving 
tlie hand-writing of the firft indorfer, who mav 
be unknown to the holder. 

AsHHURST, J. — The law has been othei^- 
wife fettled; and if it v/ere not fo, there would 
be no difference in this ^refpeft, between bills . 


[ 249 ] 

payable to order, and thofe payable to bearer. 
And it would open a door to great fraud, 

BuLLEi^, J. — This point was much confi- , 
dered in a late cafe before this Court, when 
they were perfeftly clear, that an indorfee of a 
bill of exchange, in an aftion againft the ac^ 
ceptor, was obliged to prove the hand-writing 
of the firft indorfer. For when a bill is pre- 
fented for acceptance, the acceptor only looks 
to the hand-writing of the drawer, which he is 
afterward3 precluded from difputing; and it 
is on that account that an acceptor is liab]?^ 
even though the bill be forged, ' 

Grose, J. — This matter appears extremely 
clear j for a bill of exchange is no payment to 
the perfon in whofe favor it is drawn, unlefs it 
is indorfed by him. 
Rule refufed. 

In this aftion againft the defendant for neg- Green v. Ren, 
ligence as an attorney, the declaration ftated, B^R.^D^nford 
that the plaintifTs inteftate had retained thfe a.d Eait, i v. 
defendant to profecute one John Schultze fov ^^Jj, j^^ ^^^^^ 
jf.625, due on a bond ; and that the defendant againft the de- 
had promifed diligently to profecute the faid ihTeifcea^an a?! 
fuit, fcfr. It then ftated that afterwards, to toiney, in noc 
wit, on 24th of January 1785, the defendant Jcb^or'oTfhe 
filed and profecuted a bill oi'MtddleJex^ re- pj^intiffsto 
turnable on Monday next, after fifteen days of ieturTofthe* 
St. Hilary^ and delivered it to the flierifF, who V"^^" ^'^^^^^^ 

y ^ y , 1 • 1 /> 7 7 ' "^® debtor was 

made his precept, under which Schultze was anefted being 

arretted, and detained by him, 'till the faid i'^;h';;,^3','&c!'* 
Schultze afterwards and before the return of ami tfie writ it- 
the faid pi-ecept, to wit,; on 31/ of January ih '^:^,, 
the year aforejaid^ was in due manner com- tumabieinthe 
mitted to the cuftody of the marlhal, &?r. that "i^'^i^as hehf'to 
though the faid defendant, whilft the faid be a fatal va- 
Schultze was in cuftody, (^c. to wit, in Ea/ier [hm!g7ilhrc!ay 

terW ^^ ^^^® return 

[ ^5o 1 

wasaiicdgedm Urm ifi the year afore/aiJ mighty ztid ought to 
iSidcrawK, ^^^^ obtained and figned a judgment againft 

the {ii(ji Schultze for the faid debt, yet the de- 
fendant well knowing, i^c. did not truly and 
diligently profecute the faid fuit, (^c. and did 
not then, or at any time whatfoever, objcain or 
fign any fuch judgment therein; by reafon 
whereof the faid Schultze afterwards, to wjt, on 
the 4th oi November 1785, was in due man- 
ner fuperfeded and difcharged, the faid debt 
being wholly due and unpaid. 

The writ was in fad fued out on the 24/^^ of 
January 1785, but by a miftakc it w^ indorfcd 
on the 2^b of January 1784. At the trial of 
this caufe before duller ^ J, at the laft fittings 
at Wejlminjlery on the produftion of the writ, 
it was objefted that there was a material va- 
riance between the writ and the dcdafation, 
the writ itfelf appearing on the face of it to 
have been fued out in January 1784, but that 
was over-ruled j but the learned Judge being 
of opinion that the return of the writ was ma- 
terial, and there being a fimilar variance in 
that refpedb, nonfuited the plaintiff. 

Gibbs now moved to fet afide this nonfuit, 
contending, that as this was an adion a^ainil: 
the defendant for negligence in not profecuting 
a perfon to judgment, it was equally immate- 
rial when the writ was returnable, as when it 
was fued out. That the damage to the plain-* 
tiff, which was the gift of the aftion, was pre- 
cifely the fame, at whweyec time it was re- 
turnable. Suppofing the defendant had fued 
out a void writ, the afl:ion would have lain ; 
therefore, if it be immaterial whether the writ 
l)e good or not, the re):urn of it muft be equally 
fo. At ^1 events, it may be reje&ed as, com-' 
jng Tender a videlicet* lie thea gitcd a cafe of 

[ ^51 ] 

Nichols qui tarn v. Bamfylde^ at Bodmin fumm. 
afs. 1784, before Hothatfty Baron. It was an 
aftion of debt on the ftat. ]9^iL 3. againft an 
excife-officer for foliciting a vote at Mitcb^l 
for the late eleftion. The declaration ftated 
the writ and delivery to the IherifF; and that 
he afterwards, and before the return thereof, 
to wit, on the 4th o^ April y made his precept 
in writing. The evidence was of a precept 
dated ift of jipril. Groje objefted to it as a 
variance, with which Baron Hotbam concurred, 
and nonfuited the plaintiff. A motion was 
made the enfuing term in the Court of Com- 
mon Pleas, to fet afide the nonfuit, and grant 
a new trial, which was accordingly granted, 
thkt court entertaining no doubt on the quef- 

But in this cafe the Court were all of opi- 
nion, that the time when the defendant ought 
to have charged Schultze in execution depcnd- 
. ing on the return of the writ, the return became 
material, and therefore thie variance was fatal. 
Rule refufed. 

In this aftion of trover, which was brought Hoiiidayv. 

to recover a box of money. Heathy J. before whi[e!^E?1ix 

^om it was tried at the laft aflizes at Netting* 9- v b. r. ' 

bam, nonfuited the plaintiff, on the ground Eaftfrv.Ts'g, 

that one tenant in common could not main- ^ member of 

^ • ■ n •• /• • n 1 r»-«i an amicable fo- 

tain an action or trover againft another. The ciety intruded 
circumftances were thefe; the plaintiff and "^1^^^ ^^^he'r^^ d' 
defendant, Camfelly were members of a friendly and bound by * 
fociety, which was inftituted fbr the purpofe faf"f ^° ^^not^' 
of relieving each othe^ in cafe of ficknefs or maintain trover 
other difability. The fund for this purpofe ^L^f^wT^^''' 

, . , , ' , - .i • /- '^ * 1 member, and a 

was levied by weekly contributions from each third perfon, 
of the members ; and the aggregate fum was ^om to.*' 
kept in a box which was depofued in the plain- 

' tilTs 

[ 252 ] 

tifFs houfe, who was an innkeeper ; and a 
bond was given by him for the fafe cuftody of 
it. Camjcll got pofltflion of this box, carried 
it away, and delivered it to the other defendant 
WhitCy who was not a meoiber of the fociety. 

Galley moved to fet afide tliis nonfait, and 
contended that the plaintiff had z fpecial pro- 
perty in the box, exclufive of any right which 
the defendant had in it ; for the box with its 
contents was lodged in the plaintiff's hands by 
the club, and he had given fecurity for the fafe 
cuflody of it> But the defendant had no other 
intereft than a mere contingency in the event 
of his ficknefs, and then only in a certain pro- 
portion. No perfon therefore had any right 
as againft this plaintiff, buf the majority of the 
club, by whom alone he could be releafed 
from his obligation, Befides, the rule of law, 
that one tenant in common cannot maintain 
an aftion of trover againfl another, docs not 
apply in cafes where the pofTefCon of that other 
is. tortious. And here the defendant has no 
right whatever to keep poffcffion of the box 
againft the confent of the plaintiff. . 

AsHHURST, y. — The rule of law is un- 
doubtedly true, and applies to this cafe. All 
the members of this fociety have a joint pro- 
perty in the box and its contents; they are 
therefore tenants in common, and one tenant 
in common cannot maintain trover againft 

Bi^LLER, 7. — It is here admitted, that one 
of the defendahts was a member of this Ibciety, 
and confequently had a general property in the 
box ; at any rate therefore a fpecial property 
cannot give a right in this adion againft a 
general property. The cujivdy only is com- 

[ ^5^ 1 

mitted to the plaintiff, the froferty remains in 
the fociety. 
Grose, J. of the fanmc opinion. 
Rule refufcd. 

Jffumpjif againft- a comnnon carrier fjr not ^J^^^Twu^ 
fafcly carrying and delivering goods fent by fon, e. 27 g. 3. 
the plaintiffs. The declaration ftated, that f*d\fft,";V. 
the defendant undertook to carry the goods 659. 
" for a certain hire and reward, to be paid iy bythecoufignor 
the pl^fjfiffs." It was proved at the trial, that "f go^'ds 

/-ti J I r K J 4.J • • 1 1 againft a earner 

Clarkey the conngnee, had agre*d with the fornon-dcii- 
plaintiffs to pay the carriage of the goods, "'YJntJff'Iver^^'^ 
which the defendant's counfel contended did red, that the tie- 
not prove the declaration. And fendant under- 

r e^ t r 1 1 r ^""^ ^° deliver, 

DULLER, /. before whom the caule was &c. m confidc- 
tried at Guildhally being of that opinion, non- hfrl''u>'bJpaid 

fuited the plaintiffs. by the plaintiff. 

Law had obtained a nile on a former day SirTwafto be 

to (hew caufe why the nonfuit fliould not be paid by the con - 

fet afiide on the ground that the allegation, that ^^^Z^l^ 

the hini was to be paid by the plaintiffs j was riance, the con- 

• 1 J i_ • • 11 /• r 1 • f • J ftgnor being by 

immaterial, and that in all cales 01 this kind law liable. 

the contra6l was virtually made between the 

carrier and the fender of the goods. That no 

private agreement between the confignor and 

confignee could vary the queftion as between 

the confignor and the carrier. That, though 

the confignor might have parted with the 

property in the goods, he might maintain an ^ 

aftion againft the carrier. Davis Jordan and 

James J 5 Burr. 26%o. ^ Fale v. Bayky Cowp. 

294. but at all events, the confignor might 

be confidered as the agent of the confignee for 

the purpofc of bringing this a6i:ion. 

B(JLLER, 7. on this day faid, that; on conr- 

fidering the queftion, he found he had been 

miftaken in point of law i for, that, whatever 

9 might 

[ ^54 1 

might be the contra<5t between the vendor ini 
the vendee, the agreement for the carriage was 
between the carrier and the vendor, the latter 
of whom was by law liable. And the other 
two Judges being of the <fame opinion, the 
rule was made abfolute without farther argu^ 

Rule abfolute. 

ptjul^E^kr^ It having been determined in laft Michael- 
Geo'. ?/b. R. mas term (a), that the defendant was not eh- 

i^i\fiY.7gs. ^^^^^^ ^^ ^^&^ judgment as in cafe of a nonfuit 
Where the in this caufe, becaufe he might have carried 
t^'tTn the' the record down to trial, at the laft fummer 
record by pro- affizes, by provifo, the defendant, on the 8th 
ficient^f heob. of laft March {the commiffion day being the 
lain the ufuai j ^th) gavc noticc of trial, and on the loth 
by pr!!vifa any of Marchy obtained and ferved the ufual rule 
time before tri. fQj. ^ ^rial bv provifo J and the plaintiff, not 

al, even thoiiAb . 'i -, ,. *,. 

it be obtained appearing at the trial according to this notice, 

after he h:»s ^^S nonfuitcd. 

given the plain- _ i /< /< i i • r • 

liff notice of Law now moved to let alide this nonfuit, 

^"^^ (a) contending, that the notice given by the de- 

Purnford and fcndant was irregular for want of the antece- 

Eaft,492. j^j^j. ^Yt to fupport it. 2 Stra. 1055. 

Gibbs was to have oppofed it in the firft in- 
ftance ; but the Court faid, that, according to 
the old eftablilhed praftice, wherever the de- 
fendant carries down the record to trial by pro- 
vifo, he muft obtain a rule, that in cafe the 
plaintiff fhould make default, he might be at 
liberty to go to trial. But the only ufe of 
that rule is, that if two records are carried 
down to trial (the one by the plaintiff, and the 
other by the defendant) the former only ft|ould 
be tried. Then it is quite fufBcient if the de- 
fendant has this rule at the trial. Befides, no 
inconvenience can refult to the plaintiff from 

t this 

[ 4JJ J 

this praftice ; becaufe. if the defendant does 
npi cany down this record to trial after notice, 
b.^ is li^le to pay the plaintiff his cofis. 

And themafter of th* Crown-office informed 
the Court, that in criminal trials, where the 
defendant carries the record by provifo, no 
fucti rule is obtained at aU. 
Rule refufcd. 



£ as6 ] 


IX. M(ft^ j® attetia^ reinfecting 
netJD Xriali;, &c. 

(17.) Of Cojls on new Trials. 

Vide ante III. The ^een v. the Bailiffs, &?f. 
of Bewdley^ and IV. "Tamplin and Vorjell. 

Mafon V. 


C T I O N on a policy of infurance 5 ver- 
skurray'r. 20 jfTL ^^^ ^^ ^^c defendant; new trial grant- 
D ^T^ 2^' ^^ ' ^"^ ^ fecond verdift for the defendant. 
Where a new The rulc for a new trial had not been drawn 

tl^^lo^ "P^ " "Pon payment of cofts," nor had the 
thing was faid cofts been rcferved. On Saturday the ayth 
Z^^^lL^''''' oiMay, Cowper obtained a rule to fhew caufe 
cofts of the firft, why the defendant Ihould not be allowed the 
^.rSt?'-. cofts of the firft trial. 
ceed on the fe- Dufining now Qicwed caufe. 
mill noThave Lord Mansfield abfent. 
the cofts of the fhe Court faid, as nothing had been faid 

about the cofts of the firft trial in the rule> and 
they had not been referved to abide the event 
of the fecond verdift, the defendant was not 
entitled to receive them. 
The rule difcharged. 

t ^S7 i 

netB %nal&, &g. 

(iSi) Of Privy VtrdiBL 

Vide fojly FJfay IV. G^j' v. Cr^/jr: 

TiV quid juris tlamai the tenant faid, th^t he t, % ehz. 
^ had held in tail of the gift of one A. The ^p'l^^ii'a^- 
plaintiff faid, that A. did not give j upon Which for the de- 
they were at iffue. and. the ntfiprius was in the tS comri" 
county of Kortb\ where before Hyer^ and for i.iaiiuiff. 
hentowty the inqueft was charged upon the * 

faid iflue ; and the Jurors departed from the 
bar, and after ^he rifing of the Courti they 
came again before the Juftices, and gave a 
privy verdi(?i: for the defendant, and had leave juror? c.r.»Bg 
to eat and drink j and afterwards, at another ^"""^ ^'^ -i'^^^^s- 
(lay^ when the Court was fittings thdy cime 
again, arid ga^e th^ir vcrdifl openly for the 

And all this matter was eritefed upon tlic 
poftta^ And at the day in bank^ the queftiort 
was, for which of* the parties judgment Ihould 
be given ? And the opinion of all the Juftices 
was, that judgment fliould be given for the 
plaintiff; for the laft verdift which was given 
openly in Court is the verdift in fa6t, and not 
the firft 5 for upon a privy verdift before thd 
Juftices none of the parties fhall be demand- 
ed; and if one of the jurors dies between the 
firft vcrdift given^ and the fecond, or if the 
judge die, the verdidl taken before is void : 

Vol. Iir. S and 

and yet neither the one nor the other, after the 
fecond verdift given (hall hurt, but judgment 
Ihall be given. So alfo if the next day, the 
juror* wilt uot % wy (;Hing> . the . atccptancc 
of the privy verdift fliall be nothing to the 
purpofe, for the giving of this verdidl is only 
fufFcred for the eafe of the jurors. And it is 

j^/oJ^J^thig ^^^^ P^'" Dy^y ^^^^ eating and drinking before 
aiid drinking, the giving of the fecond verdift, (hall not make 

the verdidt void, becaufe it was by licence of 
the juftices, and it was alfo at their own cofts. 
And although the jurors, before giving their 
verdift, eat and drink, yet this (hall not avoid 
the verdift, unlefs it be at the cofts of one of 
the parties ; for if it be at the coft of the ju- 
rors themfelves, it is not material, as was lately 
adjudged in the ca(e of one Powlejkin^ of Corn-^ 

And nota^ That Brown moved in this cafe 
what judgment the plaintiff (hould have,^if to 
recover the land or not : for upon fuch claim 
it is clear, that the defendant had forfeited the 
land; and for fuch claim, the grantee, as it 
^^*^'^' feems to me, may enter immediately without 
more : but if judgment (hall be given to re- 
cover the land, I have never fcen any prece- 




t ^59 1 

IX. ^f ofter ^atttx^ rerpetftnff 
nettt Xrtal0, &c. 

(19.) 0/ a Dijiringas or Venire 

facias de novo. 

Vide ante III. Bra. Ah. tit. VerdiEly 17, 18. 
IX. (3.) i2f;f ^. Woodfall, IX. (lo.) £i- 
</oz£;^j ^. Hopkins -, . ^ jp^?/?, £^j V, 

BE F O R p wc^ proceed to cafes of Fenire 
facias de novo, after, trials, we fhall ftate 
from I Brownlow, fomc particulars worthy no- 
tice,, refpe£fcing mefne^ and jury proce/sj &c. as 
the law ftood at the beginning of the reign 
of James the firft. 

In trefpafs the procefs is attachment and M. ijaci. 
diftrefs infinite, but if nihil be returned, pro- ^ o7raVpro. 
cefs of oudawry lies; and if the defendant be cefsi challenges, 
returned attached by his goods and chattels, novo7&c!*" 
if he omit to caiib an effoyn at the return 
of the writ of attachment, he fliall forfeit 
the goods by which he was attached; but 
if he cad an effoyn, he fhall have a fpecial 
writ (reciting the matter) to the fherifF, to de- 
liver to him his goods or cattle, although he do 
not appear at the day of adjournment of the * 

effoyn : and if the defendant at the return of 
the attachment will appear without an efToyn, 
he may, and then he fhail not forfeit the 
^oods : and note, the e/Toyn fhall not be ad^ 
journcd'by, from fifteen dayi to fifteen days : 

S 2 and 

and if the original writ be againfl: pciany, tJicr 
jfhall have but one eflbyn in pcrfonal.aftions: 
and .if a lord of the parliament ^ppegr not, he 
Ihall forfeit an hundred pounds I ania upon iT- 
fiie joined in this, aftion, the pfocefs againft 
the jury, is the 'Vcnire facias^ haheas eorpusy 
and dijirefs : and if a baron of the parliament 
be a defendant, then if a knight be iiot^ rcturmd 
npbn the pannelj the defendant may at the 
affizes quafli the pannel > artd if at the affiles 
the jury do not appear full,, to wit, twelve 
men, this may be fiipplied by the juftices at 
tl-fc rcqucft of the pfaintiff^ and the flieriff 
ought to return two hundredcrs,, at |he Icaft, 
in this a(5tion, and fo in every pcrforial affion: 
but four in real adions, for if a challenge be 
made fro defeSlw hundredorumy if two be not 
returned, the jury ftiall remain; andsa i^J- 
tringasy with a decern tales fhall \be awarded, 
returnable in court, but no circHtnfiantjs ihall 
be awarded in court, for if the jufy in court 
do not appear full, or are chdlengcd, ^for rhat 
the jurors have no freehold, and^t"hlc tried, 
a new habeas corpus fball iflbe oujt^^vith a/j'- 
iem tales i if it be defired : and if the |ury ap- 

i?ear full in the court, and the array be chal- 
cnged, cither for that it was of the plaihtifi^s 
nomination, or that the fh^rifFor vmder-lheriff, 
who returned the. jury, is of the kindred ofth^ 
i>laintjfF, or any other principal, caufe of chal- 
Iengc> and this is confcffed or tried by two of 
the jurors who have appeared, being afiigned 
and fworn by the court to be triers of the 
challenge, who fhall give their verdift that 
the challenge is true, then, the array fhall be 
' quafhed ; and if he that arrayed the pannel re- 
jnain ^itrWyiht' venire fiicias de novo Ihall be 
awarded to the co'roner&j if there be no caule 


I a6i ], 

of excepuon againft them, or any of them by 
reafon of kindred, or any other principal caufe: 
and if there be caufe of challenge to any of 
them, the venire facias (hall iflue to the reft, 
and his companion Ihall not intermeddle widi 
the execution of it ; and if there be good 
caufe againft all, then a ^venire facias fliall iffuc 
to eJUzors to be appointed by the court to re- 
turn the writ, but if the (heriff who returned 
the firft pannel be removed, then a new venire 
facias fhall iflTue to the ftieriflF who (hall be 
then in office : and noce no challenge fhall be 
made to the array returned by the eflizors biu: 
to the poll : and if the jury apjpear full, and no 
challenge be made until twelve be fworn, the 
jury fhall proceed to hear their evidence, and 
give their verdid; and if the jury find for the 
plaintiiF, then they fliall give cods and da^ 
mages, but if they find for the defendant, they 
(hall find neither cofts nor damages : and the 
judgment for the plainti(Fis, that the plaintiff 
fliall recover hi^ damages found by the jury, 
and cofts of fuit; but if the juiy find for the 
defendant, the judgment is, that the plaintiff 
nil capiat pir breve ^ but if judgment in this 
cafe had oeen by nil dicit^ ccnfefficn^ or non 
Jum iriforffkat. then the court fliall award to the 
flieriffa'writ to enquire of damages, and no 
challei)ge lies to the jury upon a writ to en-^ 
quire : and if the fherifF return but twenty and 
one upon the jury, and twelve of them appear, 
and try the ilTue and give a vcrdi(5t, it is a 
good verdift J but if only ten or eleven of them 
appear,, and tlie jury be made up at the afr 
fizes, de circUmJlantibus^ and the iflue be tried, 
and a verdift gfven, it is naught, and not 
holpen by the ftatute: and if the ilTue be 
joined,, and the fherifi^ be coufin to the de- 
tendant, the plaintiff fliall not have a venire 

S 3 fadas 

facias u^jon the* challenge of khrdfed of the 
fhcrifr to the defimdanc, but it ouglit to ftay 
until that ftieriff be removed and another 
flierifF made ; and if the defendant be lord of 
the hundred, within w»hich -hundred the ten 
doth arife, the plaintiff may (hew that, and 
have a venire facias to the next hundred j or if 
the array be qualhed for that caufe, he may 
have a venire facias to the coroners of the next 
village in the next hundred next adjoining: 
abd note^ the venii'e fatias^ fiiaH' hot iffue to 
the coroner but upon the» principal challenge; 
and if a challenge be to the tales^ artd that be 
found true, xksi^' tales only fhaM be qaafted, 
and the principal pannel (hall ftandz'and if an 
iffue be joined between the mayor and com- 
rhoaahy of a ■ city^ and- another corK^erning a 
trefpafs done within-. that city; the- plaintiff 
fufmifing that the fberi#" and coroners are ci- 
tizens of that city, may pray a venire facias to 
the next county, or the body of the courfty> or 
,of the next villages in the next coumy: and if 
•the challenge of kindred be not' rightly al- the challenge, it matters not if it be 
kindred ; and 'if a venire facias be cjuafhed, be- 
caufe it was returned by the tinder IherifF, who 
was kin to him, or other good caufe, it (hall be 
qualhed, stnd the venire facias fhall be re- 
turned by the high fheriff, with words in it, 
that the under fheriff (hall not intermeddle 
v/ith it : an:d ' if the array be challenged and 
affirmed, the defendant may after challenge 
the poll, and mi^ft (hew his caufe of challenge 

preJently : and if the land in queftion lie in 
four hundreds, if four of any hundred appear, it 
is good 5 and note, that the challenge of the 
array (hall be drawn in paper, and delivered 
prefendy after the jury appears \ and the de- 
fendant is not bound tp make gqod hi^ dial 


[ ^63 ] 

Icngc with thefe words, Et hoc parat, eft vert- 
ficare^ ISc. And tbofe that try the principal 
challenge may alfo try the challenge upon 
the tales ^ If the king had been party alone, 
no challenge was to be allowed, but if the 
fuit had been in the name of another, who fued 
as weli for the late kini^ as for himfelf, in a 
writ to enquire of wafte after a diftrefs, no 
challenge to the poll lies. 

It is good, caufe to challenge a juror be- 
caufe he was attainted in a confpiracy or at- 
taint, or if any juror was put into the pannel at 
the defire of the party, it is good caufe of 
challenge to the array: and if a jury be of 
two counties, and both arrays are challenged; 
two of one county fhall try the array of that 
county, and two of the other county Ihall try 
the array of the other county; and they ihall 
not join until they be fworn of the principal, 
and two of one hundred, and two of the 
other hundred do fuffice. If in trefpafs the de- 
fendant juftify as a fervant to the lord, and by 
his commandment, it is good caufe of chal- 
ledge to the juror, that he is a tenant to the 
lord although the lord be no party to the 
record \ and if procefs by challenge is awarded 
to the coroners, the procefs afterwards (hall 
not go to the fherifF, although there be ano- 
ther flieriff, but after judgment execution (hall 
iffue to the new (heriff: and where a man 
challenges the polls of the principal pannel, 
he afterwards fhall not challenge the array of 
the tales^ and if the array be quaihed, it is en-, 
tered upon record, but if it be affirmed, then 
it is not entered. If trefpafs be done in divers 
towns in one (hire, they may all be joined in 
one writ, to vtir, why by force and arms the 
clofes arid houfes of the plaintiff at A, B. and 

S 4 C, the 

C. the defendants have hrokea: and, 6?^ 
siu. f4Eiiz. A tales J (^c. may be the prayer 
^ Lt nd ^^ ^^ defendant. 

^v. andVi" ^ . N° ^^^ ^^^ ^ tal^en on rctvm of a ftf/«. 
cr4.§2o. Yh^ ^^]es i-Q jjc of jiirynafn returned on 7 and 8 , - j t ^ 

w: 3.C. 31. §3. pther pannels. 

Stat. 2 7Eii2. Two Jiundrcders appearing (haU be fuffi- 
"•'•§5' cicnt. 

st«. ^^4 G. 2. No challenge to the array for want of a 
f-^^§4- knight. 

Stat 7 and 8 Aftcr a ^•^/^tf returned^ if the caufc is not 
\v. 3. c 11. tried, a new venire may be fijcd out, 

A great variety oi other provifiom refpeftx 
ing juries, have betn made hy (eyeral ftarures, 
not ncceflary to be here farther noticed. Vid. 
Tab. to Stai. tit. Juries. Vide fcft at the encl 
of the cafe, next but pne, 

l-axwoith ▼. Trcfpaft brought for the taking of hay fc- 
fjlcobi?''^ y^r^d from the ninth part of Eltborf^ in the 
1 Bnm !ii. 203. county of H'arvHcky the defendant to pert 
ifriR:!!?]?^ fi:b-°, pleads Net Guilty^ and .to the refiJiie pleads a 
jeci of which are de^'ife 6f the parfonage made by Lep'iaQrib to 

indifferent *•, <, r i' ^ rrr 1 • • .- 

places. Venire the defendant at «- apnbwry in tne tame coun- 
tnif-awarutd. ., jy ^nd to enable tl)c deyife for tithes in JL. 

alledges L. to be a hamlet at IVapenhiry^ to 
the intent that the whole tithes may pafs : and 
iipcn a non de^oifavity the ven. was of V/ap£ii' , 
^^j ^ftd found for the plaintiff, that 7. L. 
flid not devife it, and the other iflue of not 
g\iilty found for the defendant, and moved iq 
arrcft of juognn.ent, tliat the venue was ipif- 
t4ken, becaufc it was of Wapenbury only, aiid 
pot oifJtkarpy and they of W. could not try a 
matter in £* and aUIiough it was anfwered, that 
tlw. defendant himfdf by his plea had can- * 
feifed that £. was but an hamlet, yet the 
Court held the venue miftaken j for when the 


plaintiff declares of a trcf|)a&"in £• this by 
general intendment is prefomedto be a vil- 
lage : of which village the matter which ' is 
there in queflion ought to be tried : and al- 
though the defendant had alledged EUhorf to 
be an hamlet ; yet it was but to enable tlic 
devife, and doth not extend to the iilue before 
joined upon the not guilty for part; for in 
that iffuc both parties agree that Elthorp is a 
village, and it is a perfcft iflue taken, which 
hath not anv coherence with the other iflue of 
pon devifavit: but if the defendant had to the 
whole iflue pleaded the dcvife as his cxcufe, 
^d had alledged E. to be an hamlet of fy. 
^nd that only had been in iflue, there the vemte 
awarded had been good of ^V. only ; but in 
this cafe it was adjudged that the venire was 
mif-awarded, and that the plaintiff' fliould have 
a venire facias de novo. 

An aftion of trefpafs brought for breaking Knivcton ▼. 
the plaintiff's clofe called G. in Woodthorpiy ^^^ 
in the county of Derby ^ to the damage of, &£. i Biownt 21s. 
The defendant pleads that the clofe was bero!^un«.^*' 
known as well by the name of G. as by the mentum iirth* 
name of D. and that it was and had been, T^^-l^o/wa^ 
time out of mind, parcel of the manor of /j^i- venire ought to 
genworthi and pleads his freehold in the ma- b«th— Ventre 
nor: the plaintiff maintains his declaration, facias ue iio»o. 
and traverfcs that the place where, &?^. was' 
parcel of the manor, and upon this thejr. 
are at iffue, and a venire facias awarded of 
Woodtb or pe OT\\y \ and moved in arrcft of 
judgment by the defendant, the verdift fbcing 
for the plaintiff, and urged that it was a mif-* 
trial, for the venire facias ought to have been 
as well of the manor, as of Woodthorpe ; for al- 
though the parties be agreed, that the place 



t 265 1 

where the trefpafs was committed lies in JVood- 
thcrpCy yet that being fuppofed indeed to be 
parct 1 of the manor of Wigenworthy the venue 
of the manor by intendment have a more 
perfeft and better knowledge of it than the 
Tillage of Woodthorfe only ; which was agreed 
by the whole Court, and a new venire awarded 
to try the ifllie again. 

What the law was^ hath been already Ihewn 
under this head. 

Now as to the venire facias^ by ftatute 
i^Ann. c. \6.f. 6, every fuch writ for the trial 
of any iflue in any of the cours of record at 
Wefiminjiery (hall be awarded of the hodj of 
the proper county where fuch iffue is triable. 
But per /. 7. not to extend to writ^ of appal 
of felony, murder, ^c. 

Pcrriman v. In ejeSlment the Jury found a fpcci'al verdift 
^^b'^p^^j^, to this efFcd, that one Harpiir was feifed of 
3<» foccage land (in qijeftion) in fee, and had 

of?iur^lds°" iflue eight daughters/'-and one fon,- by three 
proximo con. fevcral 'y^/f/^rj ; and that he devifed this, land 
fanloine oTthe ^^ Catharine his youngeft daughter by the laft 
deyifor in ade- venter ^ for lifc, remainder proximo de /anguine j 
^"^ remainder in tail to, WiUiam his fon by the 

fame venter'^ and if he fhould die without iffue 
of his body, remainder for life totwo-odiers 
of his daughtei»s by the middle venter y remain- 
der ^proximo confanguihitaiis de Janguitte of the 
devilbr. The devifor died : Joan^ the eldeft 
. daughter, to whom nothing was given by ex- 
prefs name by the will, died, having iffue John 
.and William Perriman the leffdr of the plain- 
tiff; and they only found generally, that Joan 
^ had J{ihn and William^ risat William entered 
claiming with his brother, ^& proximus de Jan- 
gftine i'but they did not find thxt.John was the 
' - •• cldcft 

[ 267 ] 

eldeft foh, or that he was heir: they found 
that William the fon cf Earfur^ to whom the 
tail was limited died without ifTue^ and that all 
the daughters died without ififue, but the two 
daughters, who were advanced by exprefs 
eftates in the will, and except the eldeft 
daughter, who had ifllie the faid Jchn and Pl'iU 
liamy and if upon the whole matter, ^c. And 
the queftion was who fiiould have the land by 
the -words j^rcxiwo ccnfanguinitatis dejanguine of 
the devifor ; /<://. the ifiiic of the eldell only, 
or the iflues of all the daughters, or the fe- 
cond fon of the daughter Joan : the eldeft 
daughter had iflue John and JVilliam: John 
had iflue the leflbr of the pJaintifF; if he be- 
ing her grand child, fhall have before the fon 
of the eldeft daughter, or if the eldeft fhall be 
faid to be nearer, than the fon of the fon of the 
eldeft: and it was argued by George Crooke^ 
that the fon of the fon of the eldeft daughter 
fliould be preferred, j. He faid, that the 
iflues of thofe, who are advanced by exprefs 
^ftate, are excluded from taking any implied 
eftatc J ^^ofroximus de f anguine in legal con- 
ftrudion is the eldeft j and for this he urged 
30 E. 3, 27, 30. ^47. Alfo all the daugh- 
ters may not take here^ for the Angular word 
prokimoy which excludes all multiplicity in 
wills, as I Co. Archer^' cafe, proximo haredi ; 
and he applied to this purpofe Chapman^ 
cafe, 18 Eliz. Dyery where the eldeft of the 
fariiily was preferred; and Clacke's cafe, 16 
£>liz. and- i Eliz. Frencham'% cafe ; where a 
fpccial eftate limited, exchidcs a general eftate 
implied j as if it be given to a feme durante 
viduatafe^ and after her death, remainder to a 
ftranger, this does not give an eftate for life to 
2^ feme. 


[ 1^8 ] 

Byidgtffan and ^rotman contrdy becaufe all the 
daughters are in equal proximity of blood to 
the devifor, as 5 £. 6, for having letters of 
adminiftration ; and 3 Co. Ratcliffe'% cafej 
alfo the mother of Perriman was dead before 
the remainder fell, and becaufe the two fons 
are nearer to the devifor, tlian the fon of the 
cldeft fon of Joan. Briton, 189, faith, that the 
fecond daughter fhall eleft before the iffue of 
the eldeft daughter, with which agrees 30 E. 
3. 2S» and Bralfan faith, quod nomine h^eredis 
. induditur tota pojleritas. 
And fo of And after feveral motions, it was refolved 
fhiaiih^ihrve by Dodder idgCy Houghton y and Cbamherlme^ 
aii. that judgment fhould be given for the plain- 

tiff (abjente Lea, Chief Jujiice) but they (iid 
not agree in the reafon of this refolution ; 
Houghton held, that if one hath iffue three fons, 
and devifes to the youngeft in tail, rmanere 
proximo conjanguinitaiisy that the eldeft (hall 
have all, becaufe the word proximo declares 
the intent of the deviibr, that one only fhall 
have, admitting that they are in equal proxi- 
mity of blood } and to this reafon Chamber^ 
laini agreed ; and he faid, that fo it was held in 
Levett^s cafe, 25 Eliz. by all the Jufticesj^and 
Chapman's csiCc/upra -, and he faid that the divef- 
fity was there taken, when the words Sirepropin- 
quioribus yi\i2X there allfliall take ^ but ^//V^r when 
it is WiTiMtd proxifno : which was denied by Dod^ 
deridge; becaufe there is not anv divcrfity be-r 
tweeii nearer and nearejiy any mote than be- 
tween no and not ; alfo Hotigh'toH faid, that if 
onehath three fons, and the eldeft is attainted, 
and land is devifcd to the youngeft, remainder 
procimo de corjanguinitatc^ that the king, fhall 
take all : Dodderidge contra \ but in fuch cafe 
their iffue fhall have it; for although the bond 

' of 

[ 2^9 } 

of nfiarrlage is gone, and the bJood corrupted 
for producing heritable iffue, yet they may 
take by purchafc, becaufe they are of his 
blood J but Dodderidge held, that all the 
daughters, and the fons alfo in cafe of pur- 
chafe and conftruftion of the will, are as near. 
in blood, and they (hall equally enjoy the land 
purchafed 5 for the blood of the youngeft iffue, 
in nature, is in the fame degree with the blood 
of the cldefti but aliter it is in the cafe of de- 
icent^ but the reafon of diis is drawn frorn 
the general cuftom of the realm, which con- 
veys the land by defcent to the eldeft only ; 
but this alfo is grounded upon the law of God, ths reafon 
that the eldeft, who opens the womb, Ihall be. ^Jj^^^'^^refen^ 
f^ndtified to God, and ihall be deemed by toaiiottiertby 
facrifice ; alitex of femes as appeared with re- *^^^'-'^^- 
fpeft to the daughters of Selapbeadi but by. 
him, although the daughters are in the faii^e 
poximity, yet the youngeft fon of the devifpr. 
is nearer to him than the fon of the fon of the 
eldeft daughter i but by. him and Houghton 
and Chamherlame this is not the cafe here, for 
the eldeft daughter herfelf furvived the de- 
vifor, fo that the remainder and intereft was 
vefted in her^ although it W4s not executed in-, 
poffcffion untjjl after her deaths by the death of 
the tenant in tail without iflfue j fo that after- 
wards it wentSvi defcent to her heirs, and not 
by proximity of blood to the devifori fo that, 
he held that the eldeft daughter fhould take 
b\jtan equal portion with her fiftcrs; but in 
diis cafe it appeared upon the record that a)l' 
the diughters died without iiTue JctU the 
ddeftj to whp^Ti no eftate was given by name. 
in tl?e will ; "and the two daughters, who had 
cxprcfs eft^;es by it; and' he held, that this: 
Gxprefs eftite excluded them, and thQir iflues 

froni ' 

C 470 1 

from taking any other cftate by Implication) 
and fo all fell upon the eldeft daughter; to 
which Chamherlatne agreed f but Houghton de- 
nied this reafon, because this did not exclude 
their iflue ; fb that they all agreed that the 
iflue of the eldeft daughter (houid have the 
whole of the land, and commanded that judg- 
ment fhould be entered accordingly for the 
plaintiff: but the counfei for the defendant 
ihewed, that the fpecial verdift was uncertain 
in point of title, upon which no judgment 
, could be given : for they found that Joan the 
eldeft daughter had ifllie John and Williamy 
Si-wiai vrrdia and that William clamando as proximus de 
L"d im!e'"wo /anguine of the devifor, entered with his bro- 
fons, but does ther : and did not find that John was the eldeft 
is cWeft Z' lleir. ^^^ ^r heir to Joan^ and in point of title it 

fhall not be intended that he is, although that 
he is . firit named ; but when it is faid that 
Willicm clamando intravity this increafes the 
Uncertainty, uncertainty, and the Court cannot ground 
their judgment upon an intendment who is 
heir, and that thre remainder veiled in Joan^ 
and this is conveyed by defcent to her heir, 
which doth net, by this verdift, appear to be 
the plaintiff; and fo he cannot have judg- 
ment; and for this reafon the Court would 
Venire facias not givc judgment; but awarded a venire fa- 
deuovo. cias denovo: but they declared their opinion 

upon the matter of law. 

Young V. En- In trehafL the plaintiff alledo:ed the tref- 
jac.B.R.raim. pals in two acrcs, which abut upon Grays,- 
37^; . - Inn-Lane-^ but the ^j/? />r/«j record recited the 
twecn'theiou' abuttals upOH Graves- Inn- Lane y and for this 
and the nifi pri- variance bet^yeen the nijifrius and record here, 

Crook moved to have a new diftringasi for 
that what had been done at the affizes was 


C .^71 ] 

void, and without warrant; and he cited a 
precedent in this court, 'Trin. 9 Jac. Ret. 430* 
between Farthing and D upper, that the njfi 
prills for variance from the record here, in 
this that the nift prius recited 6 . menfes^ v^here 
the record was 6 Jeptimanas, was adjudged! 
without warrant and void. And inafmuch as it 
appeared that this precedent was upon delibera- 
tion, it was ruled by Lea, C. J. and Dodder-- 
idge^ J. that the plaintiff fliould have a new 
dijiringasy although he was nonfuited at ni^ 
prius i for this was without warrant and fo no 
vonfuit : but if original procefs or other pro- 
cefs be erroneous, yet it is a record : but the 
nift prius was but a tranfcript from the record. 
Houghton, J. held, that it was a record, al- 
though erroneous ; and faid that it was againft 
the precedent : but it was rcfolved as above 
according to the precedent. 

If a verdift be imperfefl:, it Ihall not be R.2Cro.iio. 
rcftified by the fame jury, but a venire de novo, 
muft iflue. 

If there are feveral iflucs, and a verdift good r. 2 Roi. n^i. 
as to one, and imperfcwl as to others, a venire ^*^^' 
facias goes to all. 

So, in an aftion againft feveral, if the ver- R. 2 Roi. 7i«- 
di6t is good as to fome, imperfe<ft as to others, ^-Js-^Cro-Sir, 
there fhall be a venire facias de novo as to all, . 
and a defendant found not guilty, may after- 
wards be found guilty. 

So, if there be a demurrer to part, and iflue J^^^ * ^^^ 
for part, and the verdid does not find da- '"^ '^' 
mages for the matter in die demurrer, it is 
wholly void. 

But it may be aided by a releafe of da- R.iSaik.r46- 
mages on the demurrer, or a non pros. 

9 Vide 

[ ^72 ] 

Vide as to imperfed verdids, 5 ^otHi Higi^ 
142, 6fr. a great variety of cales* 

RezT.Toim Xhc clefenclant ftood indided bcFoi-c the. 
Sl?^». E?k. Jiifticcs of Cyer and Terminer at the O/^/ 
z Sera. S8». Ld. B/itldy, and the indiftment fct forth, that J^bti 

A?^u]l^er. HuggviSy 1 OSiobcr, T 2 G^<?. I . and long beforci 
^ in murder jifjj ^rttil I January followiag, was war4cn of 
for the defend, the Fket^ and had the care and cuftody of the 
ant, afur debate prlfoners Committed thither* That Jam^s 

unon the uncer- •_ J ^ 

taincyof me Bamcs ^ was his Icrvanr, employcq by him id 
l^teto"^ taking care of the prifoners/ That Barnei, 
iviOmer ibouid being a perfon of a cruel nature ^nd difpofi- 
^^'rSST' ^ion, did, I November, 12 G^c. !• make art 
de novo award- zf[^u\t xv^ou Edfvard Arne, then a ptifbncr in 
*^ the F/c'<?/, and felonioufly took him againit his 

will, and carried him to a new-built rootn in 
the prifon, where he kept hinfi fix weeks 
without fire, chamber-pot, or clo&'-ftoo}> the 
walls being damp and unwholefome, and the 
room built over the common'-iewer. That : 
at the time of fuch imprifonnpitnt Barnes wmI 
Huggins knew the room to be ^ bcfpre de-^ 
fcribed. That Jme, by reafon of his im* 
pritbnment in the faid room, fickened, and by 
durefs thereof died^ and that Huggins wa^ 
aiding and abetting Barnes in cpipmiixing th^ > 
faid felony and murder. 

The defendant Huggins only was tajfiKk^, and * 
having pleaded Not guilty^ the Jury fiad ^bis . 
Ipecial verdict* • ;. •• 

That Queen j^nae^ by letters Jw^fit u^et • 
the great feal, dated '12 Jtily, in die lath 
year of her reign, conftituted -^^i^iljg^jl^ «1W2M^ 
p|' the Fleel during his lifes to he ty^j^imA bjf/ 
himfelf, or his fuificient deputy or dtS|H|^es// 
That from the date of the kttejps :p^ent. unttl • 

* • 

\ jfanudry la Geo^ i. the defendant wis waf-* 
den^ and Tbbmas Gibhm all the faid time his 
deputy, and adbed as fuch. That Jamei 
Borne f wa§ the fervant of Gtbhm^ and afted in 
the care df thfe prifdnefsj and particularly of 
Edward ArUei That Batnei^ 7 September 
I a Geo. I. aflauked Jlrney and felonioufly put 
him intt> a room (which is found to be as de-* 
fcribed in the indiftment) and kept him there 
forty-four dkys without fire, chaniber-pot, or 
clole-ftodl, dr fuch like utenfil. That Barnes 
knew the room to be fituatc as in the indift- 
men(| and that it was uriwholefome ; and that 
for fifteen days at leaft before the death diAme^ 
Hu^ins knew the condition of the room, but 
whether he knew it before> penitus ignorant. 
That by durefs of the imprifonment, Arne 10 
SeptejnherhccnxtK lick, and languifhed till ao 
October followihgj upon which day he died by 
dUrefs of the faid imprifonment in the laid 
room. That fifteen days at leaft before! hii 
death, Hug^ns was once prefcnt at the faid 
prifon, and law -^»^ under durefs of the faid 
imprifonment, and turned away, and at the 
fame time he fb turned away, Barnes Ihut the 
door, and A^e continued in the room till he 
died. That during the time that Gibbon was 
deputy, Muggins Ibmetimes afted as warden. 
But whether he be guilty of the murder of Ed^ 
war^ Amey is the doubt of the Jury j on 
which they pray the advice of the Court; etfi 
pr9 Regey pro Rege j etji pro defendentey pro de^ 

This vwtlift was removed at the prayer of 
Mr. Attorney Into B. R* and there argued by 
Mr. Witlis and Se^eant Eyrei after which it 
was argued iv Serjeant's- Inn Hall, in Chancery 
Laney before all the Judges, by Seijeant Chef- 

YoL. in. T lyre. 

[ 274 1 

hyt'e, Mr. Attoracy, Mr..S<^€iior, and Mr* 
fVilleSj for the kings and by Snjeint Dar- 
nall^ Serjeant Eyre^ Serjeant Hawkins^ Mr. 
Peere fFilliamSy Mr. 4?/r^»^^, and Mr. ForJi&^ 
•for the prifoncf. But as every thing infifted 
on by either fide is taken notice of in the opi- 
nion delivered by the Chief Juftice, it m\\ 
not be neceflary to ftate the arguments of 

Raymond^ Chief Juftice, after ftatiflg tfee 
heads of the fpecial verdift, went' on as fd- 
lows. The general queftion in this cafe is, 
Whether, upon the fa<5ts as found m th& ver- 
did, the prifoner at the bar is guilty of the 
murder of Edward Ame. 

For that purpofe it will be neceflary tacon- 
fider thefe two things: i. What offence it is 
in James Barnes ; and, %. Whether the- pri- 
foner is guilty in the fame degree. 

And as to the firft point, we are all of opi- 
nion, that \{ Barnes was now before the Court, 
and the fafts^ as found in this vcrdjft, nwre 
found againftnim j he would undoubtedly be 
guilty of murder. It is certain the^-e k no 
particular way of killing anothdr, that is flc- 
jceflary to conftitute murder; but the com- 
mitting of murder is as various ^s the feyeral 
ways of putting an end to life* In the cSife of 
a prifoner there is no occafion for an-^ual 
-fti:oke : the reftraining him by force, «ind kil- 
ling him by ill ufage, is enough to cbnftitUte 
this oftence. All the authors vrtio'^ak of this 
fpecies of murder, defcribe it by^a 'gfenerai ex- 
'preflion per dure gard& de.Jes ga/df^s. The duty 
of agaoltris not to punifti, but confine tbepa^ty) 
for the fingle purpofe of his being fbrth^cotti- 
ing to anfwer a legal charge br dSPmand»"fA/^ 
38. In this ^ale Barnes ha^ certainly- exeeed- 


I i75 1 

td his duty t heMsbeen guilty of a. J)reai:h olf 
that truft> which the lay? • has jpcpqfc^ ji^ hinp^ 
and is anfvMeral^k fof all the coofequences 

Another (ponfideratiQA to m^lcie it. murder ip, 
that it' \s a deliberate acSt^.of* long -CQndriuancei 
ai)d pf great cruelty. « It is likewife a^cocnpa- 
ni^ • vitb force, . againft the cpr>fe^t . qf . the 
party. On all which account? the law implies 
mali^e^..- Had he therefore been, before the 
CpvMft, . th^fif wov.ld have, been no diifficulty in 
adjudging it mv^rder with regard to hinf^v 
• av Having thus, deteraiined-vyhat ofFence it 
,woMJd ^ein R^'^MSy let us now confidei^ how 
it ftands with rcgdrd ?p the prifoppr at. the bar* 
Aojd.-thpugh the ii)di<5li?aeni: has charged him 
equally^ other, yet we think the ver- 
difth^smad^ a wi4e:di8j<?renfe. between thepi. 
The indidtnient charg-es jBarnes to be, his fer- 
vantb but the. verdi^ tiads l^e wa^ the fervant 
of(/iM<?K- , The, whole , charge ifi the verdift 
againft^|:hje. prifoner i^> that for fifteen days 
before //r«i?'s .death, he knew what fort. of a 
ix>om,he waft in t . that he once faw him under 
%k^ durqfs pf imprifdnmei^t that Barnes had put 
hm i«.i ^nd that- during the time GMonwsLS 
deputyjj ; /ikjg'^/wi fometimes afted as warden. 
But. mjtwithftanding thefe circumftances 
..which. are. fgjund againft the prifoner at the 
b^i?i we ar^all of fOpinion he is not guilty of 

.. ' It i$,,a pQifltt^nen: to be difputed, but that in 
.^i'V3>ii>al cafes the principal is not anfwerable 
for Sh^ aft of the deputy, as he is in civil cafes : 
ttey iwft cftch anfwer fpr their pwn afts, and fall; by their own behaviour* All the 
\^PthQrP thait treat of criminal proceedings, 
tpr)Oi^Qed Qp the jfoundation of thjs diftindlion; 
; T 2 that 

fliat to a^eft the fiiperior by the a£t of thfc dc-^ 
puty, there muft be the command of the fapt" 
xior, which is liot found in this cafci 

The'durefs in this cafe confifted in the firft 
taking him againft his confentj. and putting 
him in that room, and the keeping him there! 
fo long Without neceflaries^ which was , the oc- 
cafiort of his death. Now none of thefe cir- 
cumftances are found as againft the prifoner. 
The Jury does not fay he dire<fied his being 
put into the room, that he knew how long he 
had been there, that he was without the necef-, 
faries in th^ indiftmcnt, or was iever kept dicrc 
after the time the prifoner faw him, whidh was 
fifteetl days before his death, And as thefe 
are circumftances found againft Barnes, and 
riot againft Huggins; and as in thefe cafes the 
Court is never to intend any thing, but muft 
found their judgment on the fafts as ftatcd in 
the fpecial Verdid;, and on them only j there. 
Can be no colour to think one equally guilty 
with the other. The only circuroftance relied 
upon to fupply all this is, the prifbner's being 
once at the prifon where he faw the decea^ 
td under the dufefs, and turned away. But 
furely the bare being prefent can never amount 
to an aiding and abetting. He faw him therein 
it is true j but does that infer he knew how 
it was occafioned, or confented to the continu- 
ance of it ? It is very material in this cafe, that 
the durefs by which this unfortunate man 
came to his end, Could ndt be known 6!y a 
bare looking in upon him : he could not kn6w 
he was there againft his confent, he could nop 
by feeing him know the length of his confini?- 
hient, or how long he had been witlioidtt |hp 
decent neceflaries of life i and it is likewife 
material^ that jip application is ^undiroJi^y.e 


I «77 3 

been -made to the defendant, which perhaps 
might hayc altered the cafe.. 

Thefc circumflances, talcing them altpge- 
ther, are a very flcnder eyidence of a confeqt 
in the prifoner to the durefs: though this I 
muft fay, that were thisy ever fo ftrong an evi-: 
dence pf cbnfent, they will not be fufficient 
for us to ground a judgment upon : we are to 
determine vpon fafts, and not on evidence of 
fafts ; fo is Kelyng 78, U i^ Y^here it is found, 
that Plummet dilfcharged the fuzee, but not 
that he d^fcharged it againft the king^s officers; 
4nd the Court could not take it that he did. 
It would be the moft dangerous thing in th9 
world, if we fliould once give into the doc- 
trine of inferring fafts from evidence i which 
is the propef buUn^ft of a jury, and not of th? 

But it is objefted, that though the prifoner 
had made a deputy, he had ftill the infpeftion 
of the gaolV and for the tinie he was there^ 
the pp>yer of the deputy ceafed. To this I 
anfwer^ that there is no cafe in law which 
prbyes, that the ap^idental prefcnce of the 

i)rihcipal afhoi^ots tq a revocation ; and in rea- 
bn it ought to be conftrucd fiich a coming, as 
ihews he Intended to take upon himfelt the 
execution of the office. If a diffeifee comes to 
dine with ^he dilTeifor, that will not amount to 
an ^ntry.' " ^ ' 

ItJ is likei^^ infilled on, that in many cafes 
{t pejfofi who 'Is abfent when the murder is 
corripitted,^ may nevcrthelefs be an aider and 
abetters ^ ana the cafes were put of laying poi-; 
fbn,' putting a child in a hog-ftye, covering 
it;"^ft|j iiz}ftiy or leaving a fick man in thd 
j bid, by which'he dies, which are all to be 
met yith in Ketyngn Now as to thefe cafes t 

T 3 mv^ 

r ays ] 

mtifl obferve, that in every one of them the 
perfon abfent did the aft which was the occa- 
lion ofMeath ; whereas here the'afl: is found tp 
Have been done by another. * 

It was further obferved upon this ^head of 
abfence, that in Staunf: 17, Crbmp. '24. ^.'the 
cafe is ruled to be murder, of letting a mif- 
chievbiis beaft go abroad, which happciis to 
kill a man. But furely that is laid down too 
general in thofe books : and it would be very 
hard, if a man takes a reafonable cart to keep 
up the beaft, that he fhould be anfwerable, if 
the beaft fliould break oxit without his know- 
ledge or confent. 

There is but one thing morethat ^^'as^ pref- 
fed by the king's counfel, vi%. tliat fincc it 
was determined in Oneby'% cafe, that it is not 
neceflary for the Jury to find malice, why is it 
more neceflary to find the prifoner's confent f 
To this I anfwer, that malice is mixttr of law 
arifing from a legal conftruftiorj of the aft; 
and from theaft of the party the law has always 
conftrued, whether ihere was malice exprefs 
or implied : but confent is an aft of the mind j 
a fudden killing is conftrued to be malicious, 
though there is no time for' any confent. 
Theie are the reafons which induce us to dc- 
ternriihe, tTiat upon this verdrfl the jprifoner at 
the bar is Not guilty of the murder oi Edward 
jirne. - . . . - 

. * But then* upon thie argument of this caufea 
(difficulty arole, what, the Court* (hould do in 
this cafe, fuppofing the .verdift' to be too in- 
certain to found any judgment upon. It will 
therefore 'be .neceflary further' to cdnfidcrr 
I. Whether this is an incertain 'verdift \' d:nd, 
2'; Supbbftng it Is, whether we are^'iofMili 

charge the prifoner, or award a venire facias d^ 

. Now as to the laft point, it is obfervable, 
that no inftance could he produced where, in a 
criminal c^fe, it was ever done for a fault in 
the vcrdift itfelf, Jrunder% cafe ip 6 Co. was 
for a fault in the jury prpcefs, and in the cafe 
cited of ////. 8 H. 7, Ro. 3. there was no ver- 
dift, the J udge difchargcd the Jury, and would' 
not take their verdift, becaufe it was put into 
their hands in writing as they ftood at the' 

And in the cafe of Mr. Kearey 5 Mod* 287/ 
Skinner f 666, though the verdift was fo incer- 
tain, that, it was imptafticable to determine 
either way, for want of finding who ftruck 
firft 'y yet Holt;^ C» J-.'was fo averfe to a venire 
facia^ de nqvo^ that he himfelf took an excep- 
tion, that qualhed the indi6tment, in order 
to put it into a proper way oT being tried over 

But whatever may be the determination of 
the Court, when that point comes properly 
before us, it is unneceflary for us now to 
conlider; becaufe as to the other point we 
are all of opinion, that this verdift is not in- 


There is no incertainty as to the faifh that 
are found : the only fault is, that there are* 
not fuch fafts found as will amount to murder. 
The confequence of which is^ that the de- 
fendant is not guilty of murder \ and it would 
be endlefs to fend it back to a jury, till they 
find fafts enough to make it murder \ bcfides 
its b(^ing contrary to law, in expofing a man tq 
a fecond hazard of his life. . 

► It would have teen a circumftance very ma- 
terial in the cafe of Plummer, Ketyng 1 1 1 . to 

T 4 have 

[ a8o ] 

hftv$:fcnindj!. tfhat. the fuzce was jdxfchacg^ 
at the kihg's offioera ; but the Jury were filcnt 
ms to .that» and the Court fai^l .^hey gpuld not 
take the faiSl to be [oy upoii l>;aLre evi^CRCeof 
the. fad;, and proceeded to give; jadgmenti 
d& if the fuzee had not been diicliarged 
againfl: the king's officers, without fending it 
bade to the Jury tp fipd it pofitively oneway or 
the other. . ^ • 

So in the cafe ofMeJJenger et aV (Kefyngy 19*] 
who nyere indicted for high treafon in ^em- 
bling and pulllYig down bawdy-houlea. The 
verdi6t was (ilent as to Green and Bedeliy whe* 
ther they were aiding and aflifting i and this 
(fays Kelyng) being a matter of fadt, which 
ought to be exprefsly found by the Jury, and 
hot be left to the Court upon any . colourable 
implication from their being preltnt j they 
two were difchargcd, without fending it b^ck 
to the Jury for their further opinion as to the 
faft. ■: 

V la KeJyngy 66» on a fpecial vcrdifl:, it was 
found that ^bom^on and his wife were fight* 
ing, and Dawesy endeavouring to part them, 
was killed by ^homj^Jon j and it not. being found 
that ^hompjcn knew Dawes intended only to 
part them, it was held man- flaughter, without 
finding it bacl^ to the Jury tx> be certified of 
his knowledge, 

Thcfe are. cafes direftly in point as to this 
hc^^l y a|id I muft obferyej, tiiztPlummer's cafe 
tras after the ciSco( KeaUy wherein HpU, Chief 
Juftifay had had this ppint under his confide- 

V-. Thig vcrdid therefore being Sufficient to 
found a judgment "upon,- qur ju^meht is, that 
fherprifoner is Not Guilty, and therefore he 
rpuft /?iejdifcharged# .. , , . .... 


C a8« 3 

This was: aa aftion on the caf^ for fevtral Aq?er v, wii. 
fcts of fcandalous words fpoken of plaintiff by B^^nJ^'^^g^' *' 
defendant. . BlaidtifF on the trial obcainedt a General veV. 
verdift, and the damages were found cntirej, ^^^^'J^}^ 
tfioui^ ibme of the words were not adionable; words: fome 
Beljleld moved for a venire facias de novo on ^Jeni^no^? 
payment of colb, that plaintiff might fever his that damages 
darpages according to an ancient rule of court $ ^^^^^ ^"^ 
which was granted by the Court. — Eyre &r 
platndff» / 

I have given thfe cafe becaufe reported b|f 
Mr. Barnes \ but I doubt the law, ^d dp uofc 
know to wi^at rule the author alludes. 

» * * ' 

To a mandamus to reftore the plaintiff to Kynafton t. 
the office of aldemian, it was returned, that j^^i^^^'^'^'d^ 
at. an affembly held fuch a day the plaintiff Am^^oi 
was, for being »abfcnt three years, reniovcdp shrewibury, 

ki ^ r e /-L ^'9 Geo. a. 

And upon a traverfe of every part or the re* 2 stra. 1051. 
turn, a./pecial verdift was found as to fonie J^JJII^^.""?!"'!?*' 
points which are not neceflary to be Itated, in-* fummoned to 4 
afmuch as no opinion was given upon any Sy!\hfi;^ 
but one, which was this. The removal was is void' 
not upon a chiirter-day, fo a. fummons of^n 
affenribly was ncceffary. The mayor jgave 
orders for a fummons of all the members, but 
the ferjeant being informed, and believing that 
one oi the akfcrmen was out of fummons, neg* 
ledted to give him notice, though he had a 
houfc and family in the town, and accordingly 
returned hinl out of flimmons. And upqn tbb 
part, of thip cafe the Court was of opinbn, it 
was not a regulai: affembly, for every mcmbe^ 
fhould be fummoned \ and he has a right to 
debate as weU as vote. And tjiis point has 
been^fo often fettled, that it is not now 
made a queftioo.. And by the fame reafon 
that the omitting to fummons one, nun nwy 


[: 28a- ]J 

be cxctifed, tbc omidioh of a greater nqmbcr 
rnay be paffed over. . 

Whereupon a rule was pronounced for a 
peremptory mandajpus 5 and the plaii^ifF pre- 
pared to enter up a judgment for his damages 
\ . and cofts, when it was found, that at the trial 

there was an bmiflion of damages,* and ccfn- 
ftquently there could be no jiidgment for- 

• • • 

Where on try- To fupplv this dcfcft, the Court was moved 
^^*y'nfd\" for a writ of inquiry ; and Crti. Car. 14:3. aiid 

a return, no da- r . V- ^ i • 

mages are given, the calcs ot quatc mpedtt and* dower were 
£>y?eJbywrit citcd, whcrc damages not being rile gift^ofriie- 
of inquiry. aftion, the Want of them may be 
jstw.i<ni. writ of inquiry. 

To this it Was anfwered and refolved by the 
Court, that the nile l^id dov^n in' Cheney*s cik^ 
10 Co. is right, that where the Jury are charjged 
with a rriatter for which an attaint will lie if 
they give a fllfe verdift, it Can never be fup- 
plied by writ ofinquiry,'. but muft be by ,vey7ire n'ovoy and fo is Salk'. 205. 5 Mod. 1 15. 

By the ftatute 9 jffin. c. 20. this trlverfe is 
given in the rbom of Jtn action for a falfe re- 
turn? artd'ds there itcahnot be faid the darhagea 
are collateral; fo fteithe)* can it here j fbr they 
are confequeltit upon the ilfue, ahdl as much 
withiri the charge of the Jury, No One can 
doubt, but that if in ail adtion for a falfe re- 
turn, damages had hot beeft g^ven, they COUld 
hot te fupplied by a writ of inquiry. All 'the 
<lafes of fef)levihs iipoh die* ftatute 17 Cat. a, 
c. 7, ar6 in point as to that, i Sti. '^%t. 
"Rapt. 176. I Ven.,^fO. ^ Kih. 4p8, tucker v. 
Sfeveni in C.B. Trin. 6lGei U Were it oxfght 
to be' by th^ faniie jo^y,\4lfidf thefe is no dif- 
ference between a fpecial arid a, general ver- 
dia. The plaintiff'3 *tDiihfei' ^ill therefore 
confider what to do, or pray. 


t 283 ]. 

And a writ of error being then depending 
in parliament, it was not thought advifeable' 
to pray* a venire facias de novo, but to confideif 
of fome form of a judgment to be entered up, 
in order to carry to the Lx)rds. And the judg- 
ment that was entered was, " It is confidered 
by the Court, that the return is not fuffi- 
cient in law to bar or predude the faid 
Corbet Kynajlon from being reftored to the 
faid place or office of one of the aldermen 
^ of the faid town, and that the faid return 
" for the reafons aforcfaid be difallowed and 
« qualhed." 

And thereupon the caufe was argued at the 
bar of the Houfe of Lords, where no opinion 
was given upon the points of the fpecial ver- 
difti but a judgment pronounced for remitting 
the record to B. R. who were directed to 
award a venire facias de novo. There werd 
three Judges prefcnt, C J. W'illes^ J. Denton, 
and JS. Tbompfony to whom two queftions were 

I. Whether there being no damages, any 
judgment could be entered ? To which they 
anfwered, thit there could not j and de- 
clared that no waiver or remittit. of damages 
below could haVe fet this right, for then there 
wotild be nothing to give judgment for, the 
entry being only a judgment for damages and 
cofts, and the peremptory mandamus goes by 
rule for him, for whom judgment is given, 
which* ate the words of the ftatute. 

'The fecond queftion put to the Judges wasj 
Whether, afe no damages arc given, the plain- 
tiffi' In error would not b^ fubj^ft to an aftion, 
i)irhich 'Would be a double vexation? As to 
t^iis. their opinion was, that an aftion might 
be'/brbught/ the ftatute only taking it away 
*• ^' ' • ' . ' ■ ' ^ •'.. ' • ^ '•'-'•' 'in 

C* 084 ]. 

in cafe daimges are given upon trying the 

. The judgment wa? reyerfcd, ^nd a venire 
fac^s (k novo dirc^^^d to t)e awarded 'by J. iJ. 

street V. Hop- A Writ of erfof was brought, tain in rtd- 
Mk'^ro G*t ditimte judicii againft the teftatoti quam tn ad- 
i srra. 1055.' judicatiGne txecutionis agpinft the executors :' as 
th?ft?tiitctf ^ to the principal judgment, the' defendant in 
limitations in error pleaded the ftati^te of limitatiqns', and 
mtt^^'is'^o^ar^' prayed that the judgment be afik^med. * As to 
the plaintiff of ^thc award of exccution, in nulla ejl erratum "^zi 
TSrra^\'27,432, pleaded. And that appeared to- fee in zfcire 
^*3' , facias againft two executors, one of whotn 

pleaded ne unques executor^ and the other plead- 
ed payment by the teftator: and upon ihi^ 
plea there was a yerdift againft it, but no ver^ 
^161 the otjier, and then follows the ^warc^ 
of execution. v . 

^s to the principal judgment, the only 
dou^t was, whether, as the defendant iii -error; 
had concluded with a prayer that the jtidg- 
n^ent ie alErmed, the Court could give the 
proper juj^gment, which was, that the pldin- 
tifFs be barred of their writ of error. 

But the' Cpgrt held, that thef were nt)^' 

lx)und by the prayer of an improper juc%- 

iTfcntj Jind therefore pronounced ^ the ^ri^le^thajf 

Xhisk plaintiff in err^ ijiould be b^f^d. , ^ "'; ' 

And as to the awg^fd of extcutioiiV they were 

There w^ot of Opinion it was wrong, and that not Being 

bca venire faci;$ jft the fame court, they could not award a w- 

^""^^trtoT^ " nire^ facias de nova\ and this being: a diftlnift 

Gi-ant V. AOle, 
and Parker v. 

Wells, contra, 'j'l^ cafcs; Cited upon the. fifi^ p^irit'werc 

S{^^\iOiC(trtk. j^GQy 27.6'^' Littw. ^^t^^U. 
^ Lev. 58,: 'Andf^oii the lecond^^lntV i'a^/^^^ 
4^h B03. I /»/. 127. 3 Salk. 372. Cattle v. 


JtnJrews, Hil sfV.i^M. rot 8a6. m A R. 
Cumb. 259. SalL 4. ;^6;^. 

This .was an action of trdpafs, to which Bartiettv. 
defendant, by leave of the Court, had plead- c^eoTfif^iit 
rd thrte pleas, viz. Not guilty ^ and two fe- 461. 
vtvdX jufiificaticns. On the trial, defendant tre?ptfsl"nd^w 
proved his fccond plea, to the fatisfadtion of J^^'^.^^i^^ ■ 
the Court, and obtained a verdift on the firft fendant on^th© 
Und fecond iflues ; but as to the third iffue, ^^^ ° ^^^ ^^^^^ 

r • ■!• o r J "^ot ^»y proof . 

no proof was gone into, nor any verdifl: Found «rverdkiasto 
relating to it. Belfieldy for plaintiff, objeaed, Motbnlf'***' 
that the verdi£t was incomplete, imperfeft, and venire de novo . 
uncertain, nothing being found as to a mate- ^^^e ^but^ r©^* 
rial fadt put in iffue ; and therefore, as to the fufei 
third iflue, a venire facias de novo ought to be 
awarded. On ihewing caufe. Prime y for de-. 
fcndant, obferved, tliat by the firft plea, (not 
guilty) the whole is put in iffue ; that, by the 
fecond plea, the whole trefpafs is covered, and 
therefore the verdift is complete. It is found 
thereby, that plaintiff has no caufe of aftion, 
and the Judge who tried the caufe did not. 
think it needful to go farther. As plaintiff 
has no caufe of aftion, he can have no da- 
mages. Contingent damages in cafe of ifftie 
and demurrer, and iffue tried before argument, 
are not neceffary to be found at the trial on 
plaintiff's verdift, but may be afterwards fup- 
plied, if judgment for plaintiff on the de- 

Per Cur\ Here is enough found for the 
Court to give judgment, upon. No ventre. 
facias de novg pught to iffue. It was not the 
bufinefs of defendant, but of plaintiff, to have ... 
th^ third iffue determined, if he imagined tt^t 
thereby he n'\ight be intitled to cofts, or ^ny , 

gthec advafl.tag9,~The.rulc difcharged. 

N" B- "^ 

N; B. PlamtifFgave no ^^idendedn the-Koi 

crowder v. Jf it appcaTs On tjiC facft of the Jurata^ t&at tlie 
(9%. t wiif. caufe was tried after the day of ni/i p,rmi men- 
'44- oon^d therein \ there muft be a i/enire facm 

de novo awarded, for the hak i^rfCrd. and jw- 
ri2/tf cannot in this cafe be amcncfed, i : 

• f 

Ekhorne v. Whcrcvcr attaint would lie, wit of vinqi^ 

« 0*3^.^7 wik cannot be awarded to affefs. damages;^, but•v^ 
3^7- nire de novo muft go ; fo, if iffue is jpinj3d ki 

abatement, and verdi(3; for plaimiffi 

^"*F7' ®"' Ifi debt for a penalty of £. 500 pn * articles 

VCt> IT. o G. \» r 1 1 rV •/• 

awiif. 377. not to cut trees, <^c. on penalty, isc, \\ 

there is verdift for plaintiff, tha,t defendant 
owes the debt and one (hilling damages, a m- 
• nire facias de novo (hall go, for the Jury (hould 
have a(re(red the real damages on the bireaches 
affigned, and plaintiff cannot take, a verdid 
(or the whole debt by 8 and 9 W* 3. ^.10. 

Grant V. Aftie, . This was a Writ of error from th^ Court of 

Doug. 696^ B.R. Common Pleasy on an aftiort of ajfumpfity by 

One fine can- Jfile^ as lord of the manor of Great Tkj, in 

^\heaSL the county of EJfeXj againft Grant, for the 

to feverai copy- fij^es a(refred bv the lord, on Grant\ admiflion 

hold tenements. • i itt n t'L^ 

If any count in to eight diiTerent cultomary tenements. , ine 

the declaration declaration confiftcdof three counjts. Thcfirft 

although the ' flated, that JJlle was lord of the manor; 

others ftaie fe- ^^^ ^^^ cisht tenements, (enumerating ,and 

veral, and there j ^ -, . p . , i • i "i • ® 

are entire d?.- pelcriDing them particularly with their names, 

JJIenrfor^ie"^^' ^^^ ^'^^ naiTLcs of thc different parts of which 
plaintiff, it is cach jconfiftcd, where there were different parts 
orerror^.w""^^ of the fame tjenement with diftinft names, and 
^ward a venire tlic numbcr of acrcs which each tenement^ xw 
de novo. j^^ different parts, by cftimation, contained) 

5 were, 

£ ft«7 ] 


Avjer^^ jftndfpr tync irnrnemorial had been, par- 
cel of the faid nfianor, and cuftomary tene- 
ments of the faid manor, demijed and demtjeable 
by . copy ^of <;ourt loU of the faid manor, by 
the , lard ,of iJif? faid. manor^ or by his fteward, 
or. deptijcy. fte>iy;^*d ^i the courts ^of the fame ' 
manor for the cjiii^e being, to any perfbn or 
perfons take the fam, fce-fimplc, 
or otherwife, at the will of the lord, accord- 
ing j. to .Uie cuilom of the faid manor; and 
j^ac, within^ themanoc there was a cuHom, that 
cv^y., cuftomary tenant, upon his admillion to 
any ciaftomary tenement, parcel o/ the manor, 
by the \oxA or his fteward, or deputy fteward, 
Ihould :pay to the lord, a reajomble /urn, to be 
ajjjsffkd by bim, or his fteward, or deputy fteward, 
for a fine, for fuch his admillion to fuch cuf- 
tonpary. tenement. It then ftated eight feveral 
adnniilfions of Grants by the deputy fteward, to 
each of the eight cuftomary tenements refpec- 
tively ;. that lAicfrJi was of a large annual va- 
lue, viz. pf the annual value of £. 23. 8i. gd. 
and thzz Jftle, at the time of admiflion of 
Grans to this .firft tenement, did affefs or ap- 
point the fum of ^^.46. 17^. 6d. as and for 
a fine for his admiflion to that tenement, to be 
pa id by Grant tp jiftky at the melTuage called 
the Gjiildbally in Great ^ay aforefatdy being 
tfale place where the courts for the manor were 
■uiliaJly holdcD, at twelve o'clock, ^-M. on 
^hurfday^ the 20th of Juguji then next enfu- 
ingi that the faid >C'46' 17 J. ^d. was a rea- 
famile /urn of ir\oncy to have been paid to 
,4JH€ by Grant,, for his admiflion to that te- 
tieqpcnt; and. then an ajfumpfit by Grant for 
*'iiie.j^.46. 17 i". Sd. Then fimilar feparate al- 
legations with regard to the feyeral fines of 



called the firft 
count, and was 
fo defcribed in 
the aflignmeos 
of errors, as 
confiding of 
ei(;ht coiuitSy 
there being 
eight .feparate 
^(Tumpfits al> 

t 188 \ 

l.^.\6s.', £.2. ias.6d.; £.ii.t%s., £.yj 
£.1. los.i £.7.jos.i and )f . 04. rcfpc6Kvd[y, 
for the feven other cuftomarjr tenements ( I ). 
The fccond count ftaced, that, «^ whereas 

ccrn^ffpokeof <^^^^^ oftcrwards, /* w/V, &?r. was indebted to 
what is here ^ftlein the further fum of j£, 98. i%s. /^d. for 

a. certain .ether fine due ami of right j^i^able 
&om the flid Grant to the iaid j^t^ie, as l(»d 
of the manor of Great 7Vy, for the fsnd 4fili'^ 
admiflion of the faid Grant, at kts fpecialin* 
ftance and requeft to certain* iftber ttt^tmary te^ 
nementSy parcel of the faid manor, to be hdd 
by the faid Grant and his heirs, of the lord of 
the faid manor, at the will of the Idifd, accord- 
ing to the cuftom of the faid manor, by certain 
rents i Jervkesy and cuftoms therefore formerly 
due, and of right accuftonrred ; and rfien an 
ajfumfftt for the faid laft-mentioned fum. The 
third count 'was for ^.100. money paid, laid 
out and expended* Grant pleaded the ge- 
neral iffuc, paying, at the feme time ^.84» 
^s.Sd. into Court ; and die caufe came on to 
be tried before Ash hurst, Jujiicey at the af- 
Jizes for the county of .^^,* when a general 
verdift was found for Aftki with £.'^%. 1 8 j. 4^. 
damages, fubjedt to the opinion of d^ Gourt 
of Common PleaSy on a cafe referved. That 
court having decided in favor of ^/^, be re* 
mitted the ^84. 5 J. id. upon the record, 
and took judgment for the difference. Grani 
then brought this writ of error, and (befides: 
feveral on the firft count, which, not having 
been in fitted on, I omit) affigncd the follow* 
ing errors on the fecond count: !• That no 
title was aUedged, nor did appear to be veftcd 
in AJihy to entitle him to a fine upoh the;adi> 
miflion of Grant ; whereas, by the law of the; 


t a89 1 

kfix], a ddd dught to have been flrated» whereby 
he claimed, the ;£iid fine. . 2. That no cuftom 
or pfefcrtptioQ was therein ftated or alledged^ 
wherebjr ftich -a fine ^ was thereby claimed 
could- arife, <h» become payable. 3. That it 
appeareji, •*^' that me grt^sfum bad been ajjejfedy 
^^ jmd ^as claimed as a fine for divers dkftinSt 
^^ and feparate euftamary tenements ^ whereas, 
^K by the law of the land, ieparate and diftind 
^' ffines ought to be fet and alTdSed upon each 
"• fevcral aod refpc(5tiye tenement." 

Wood for, the. plain tifF in error,~Z^te? for 
the de&ndant. 

JfOiod infifted, that the fecond count was 
bad, and that, if fo, as the verdi<f): was general^ 
the judgment' muft be reverfed : i. In order 
to iupport this count, he laid, a great many 
circumftances, eflential to intitle the plaintiff 
to n^intai|i his adion, muft be prefumed, and 
fupplied by intendment, i. There is no al-* 
legation of any cuflom to take fines, and^ 
widiout fuch a fpectal cuftom, no fine is pay- 
able. 2. It is not alledged that the fine was 
reafonable* 3. It is not ftated how it was af- 
fefled., 4. Nor how appointed to be paid. 
5. Nor that; the defendant had notice before, 
ths aflion brought. 6. It is not fufficiently 
fhewn^. that the tenements are copyhold, for^ 
they are. not alledged to have been demifed 
and demijable from time immemorial^ &fr. 
They are indeed called cuftomary, but that 
they mdybe, and yet not copyhold, nor ftn>- 
je^cb^ the payment of fines upon admiffion. 
Uis not ^antdy'thzi indebitatus ajimpjit will*, 
lit for a copyhold fine (a), but all the circum^ ^2) 

ftahcea juft' ipentioncd afenecelTary to raife the* ^t was foicmniy 
aJfim^fZtid thcue is no cafe in which. the SpAt win 
courf.had prefumed fo many things €?iren after. i»5»»" t^e cafe 

VolTIII. U verdift. ^^^hutticworth 

' [ 39o' ] 

V. Garnet, cited vcrdift.^— tjpon tWs hiead 6^ 6h}e&\6rk he 

by Ihe opinion ^^^^ M^e Vi Le^S^is (a), which- was an ac- 
of Doiben, Grc- tion of i^wg/?/, and the declar atioh comaihed 
juftices^gahtft ^wo counts ; in the firft, the confidertt4on of 
/that of Holt, the ajfumfftt v/stSy that the plaintiff had done 
hie Jufticc. ^j^ defendant muitum et grntiffifnuni benificmm ,• 
B. R. E. 21 in the fecond, that he had done him mulki be- 

Car 2 I ' Veiitr 

iy/ * nefcia. There was a geheral Vei^ift ; and itio- 

tion in ^rreft of judgment, becaulfe neither of 
the confiderations wer6 fuificient, ^fpecially 
not the laft, for that fdme palrticular fehrice 
ought to have been alledged j and the Court 
held clearly, that nothing being particularly 
expreffed in the confideration of the fecond 
promife, and entire damages being givlHi, the 
plaintiff could not have judgment. He alfe 
(b) cited Elkin v. Waftell (b)y where^ u^oh a wrk 

Jacl^i.^B^uftr. ^^ ^""or, the Court agreed that land c6uld noc 

^30. ' \k intended to be copyhold, but muft be fo al- 

ledged. But, a. He contended that there was 
another objedtion which was decifive^ vit. that 
aflSgncd as the third error on the fecond count. 
He faid, he took it to be quite fettled, tte 
there cannot be one grofs fine for feveral dif- 
tinft tenements ; and it was impofiibJe to read 
this count, and not to fee that the fine was for 
divers tenements. The words air, '^ a certain 
^' other fine^^ and " certain other cufiomary te- 
*' netnentsi* not, " a certain other ^ cupdmary 
*' tenement'* This muft mean rncffe than 6ne 
tenement. It goes on farther^ and^ftates tficm 
to*be held by " certain rents^/ehAces^ttnd cuj- 
'* toms\* and, if there is a plurality <^ fCiits 
and fcrvices, there muft alfo be apluralitf of 
holdings. In the firft county the words ^•* 
Comary tenements, are manifeftly ufed iot%^ 

u.. .. prefs feveral diftinft tehcifnents^, and ther6.t»n- 

not be a better way of explaining the. meaning 

(^ one ^art ist the declaration^ than by xotti^^ 
paring it with the ocber part* On this head 
he relied on Huhart v. Hammond (c), where it (c) 
was exprefsly refolded, that, when a copy-^ 43 e*u^*4^c^* 
holder has fcvcral lands held by feveral fer-**7b.s.c.Moore 
vices, by copy, there the lord ought to aflels'the 
and demand the fines fcverally for «rery^ par- ^^^ ^^a^ 
eel which is fo feverally held j Taverwr v. ^* 
Cromwiti (d), and Hitch v. fFallis^ before (d) 
Blackstone, Juftke^ at the Lent ajftzis for \^'^^^^^^ 
the county of CMibridgey 17 Geo. 3. 

Lofd Mansfield defired Law to confine 
hinifdf to flood's fecond objedion. 

Upon that point. Law faid^ it ought to be 
confidered, that, here, the objeftion was made 
after verdi6t, not on a demurrer, or at the 
tpial, as in the cafe of Hiub v. iValUs^ in , 

which cafe the plaintiiF would have given evi^ * 
dence of one grofs confolidated fine for divers 
tqiements. The Court, in this cafe, will giv« 
to the word " ttnementSy^ fuch a fcnfe, if pof- 
fible, as will fupport, rarfier than ovenurn the 
count, ^' Tenanents," as defined in Coke £i/- 
tlet&n (at), means any " corporate inheritances," (a) 
or any " inheritances iffuing out of thofe/* ^^ ^'"- '^ t* 
It may ftand for mefuages and lands ^ and, if 
you tranflate the fign into the thing, the de-^ 
claration will run *' certain other cuftomary 
" mefTuages and lands," which would ccr- 
taffily be fufficient, as the fine may be fup-^ 
pofcd to have been affeffed for one copyhold 
cftate compofed of difErrcnc parts, as boufes, 
arable grounds, C^r. As to the wwds, " rents, 
" fervices, i^cJ' in the plural, one copyhold 
cftate may be lield by feveral different forts 
of rents and fervices, to be paid and performed 
at diffident times* in Shuulew<^rth v. Gar^ 

U 2 mt^ 

(b) net, as reported in feveral difiH»!nt books (i»V 
*tM.^'h]^o. ^c declaration was on isi general indebitatus 
3 M<Id. 259. ajfumpfit for a /w, payable on the death of 
\ siiow* 35I every lord, and aiTcffed on the defendant, as 
Comb. 1511 tenant quorundam cii/lumariorum tenementonm 

(c) (c), and upon a motion in arrefl: of judgment, 
Garth. 91- jj. ^as determined that the aflion lay (3)* So 

The prefcnt in thc Cafe of Tbc Mayor of Exeter v. Trimltti 

Sot app"ar°S (d) whcre on a general demurrer to an aftiort 

have been made of ofumflfit foT petty CUftoOl^, in which thC 

thconiy point declaration contained two counts, the fifft 
argued being, fetting out a prcfcriptivc right, and the fecond 
^mpfif was a being a general indebitatus ajfum^t for a ccr* 
proper form of ^^in fum due for petty cuftoms,— thc dc- 
^wp.p. 700, murrer was over-ruled, and Willes, Chief 
»^o*« (sj- Jufiice, in delivering the judgment of thc 

c. B. T. |2 & Court, faid, they gave no pofttive opinion as 
33 G. 2. 1 wiif. to the fecond count, but inclined to think it 

was well enough upon a general demurrer, 
and that, if the defendant had pleaded non af- 
fumpfity the plaintiff at the trial would have 
been obliged to ihew his right to thc petty 
cultoms. Surely thc plaintiff here, is intitlcd 
to, at leaft, as much advantage after verdii^, 
whatever might have been the caTe upon a 
fpecial demurrer. There, it is faid, the plain- 
tiff muft have proved his right* Hcrcj thc 
Court will prefume, that the right was prov- 
ed, and no judge at nifi prim would jiavc 
fiiffered evidence to be produced, of one ge- 
neral confolidated fine for feveral copyholds : 
it muft be intended that the proof was eidier 
of one eftate, or of feveral affeffments. If 
the Court Ihould think " tenements" in the 
plural, cannot be inter^Dreted W foe^n one 
eftate compofed of different parts, they will 
rejeft the letter x, rather than turn the plain- 

[ ^93 ] 

tlifT round. The word " parcel" may zf- 
fill to fhew that only one Copyhold was 

Z.ortl Mansfield,— I have exceedingly la- 
mented, that ever fo inconvenient and ill- 
founded a rule fhould have . been eftablifliedi 
as that, where there are feveral Counts, entire 
damages, and one count is bad, and the others 
not, this Ihali be fatal; upon the fiftitious 
reafoning, that the Jury has aflpffcd damages 
on all, although they in truth never thought 
of the different counts, but the yerdift was fo 
taken, from the inadvertence of counfel in the 
hurry ofnifi prius. And, what makes this rule 
appear more abfurd, is, that it does not hold i|i 
the cafe of criminal profecutions ; for, when 
there is a general rerdidt of Guilty on an in- / 
difhrrent' conflfting of feveral counts, if any 
one of them is good, that is held to be fuffici- 
ent. But in civil cafes the rule is now fettled, 
and we have gone as far as we can, by allow- 
ing verdifts in fuch cafes to be amended by 
the judges notes (a). Tbaf niight have been (a) 
done in this inftance in an earlier ftage of H^ldns^^ ^' 
the proceeding, but cannot now after judg- anteix.(t9.) 

BuLLER, JuJUfe, — The Court may grant a 
venire de novo. A good caufe of aftion is 
fhewnin thefirft count; and that it is true, 
appears .by the verdift ; but the plaintiff has 
alfo laid damages. affeflTed to him on a count 
in which he-h^s not fhewn any caufe of aftion. 
The Coyrt, under thefe circurr^ftances, may 
fend the cafi back to have damages aflcffed 
only on that coiint, on which, in point of law, 
• jie is intitled to recover. 

The Court then faid, the^e w^s no doul)t 

C ^94 ] 

but a venire ie novo might be granted by a 
court of error : that it had been done by the 
Houfe of Lords, and was not a new prafticc, 
for upon an enquiry fnadc by this Co^rt on a 
lace cafe from irelandy a great nriany ifoilances 
)iad been found, 

A venire de novo awarded (4.), 


(4) The caufe came on to be tried, on the 'ijenire it 
ffo*vOf before AJhhurfty J u dice, at the Lent a0jzes for the 
county oi EffeXf 22 Geo. 5. when the Jury, upon the evi- 
dte^e^ tho^^ht chat the fumof ^. 46. 17 #. 6/. Aated od 

/have been aflbit^d as a fine on the adiniflion to the firftof 
the eight tenements, exceeded two years value,, and that 

'the fine ought only to have been ^46. 41- 3^, JJhhurJf, 

i|aiKee, wis of opinion, that the plaintiif could not have 
a verdidl for that fkiallcr ftlai, buit muft lecover either to 

,the exat^ anaount of the fine declared upx>n, or not at all. 
The plain tiff's counfel, however, infifting flrongly that 
he might recover whatever the Jury (hould find the two 
years vaUae tD be, a verdid was found for the plaintilF, 
.by confenc, on the firft count Ibr two years value, with 
liberty to enter the verdid for the defendant, if the 
Court (hould think the plaintiff was bound to prove the 

^^xa^ fom laid. 

In Ei^fier Term 22 G. 3. this quellion Was atgoed by 

JRous^ ErJkitUy B, Hunter f and Laiv^ for the plaintiff 
(Afile) ; and Peckham and Mingay for the defeni^nt ; 
and in the fame term, on Saturday the i jth of May, Lord 
M A K sri «fi D delivered the opinipn of the Court in favour 
pf the idefehdant, as follows : 

Lor(J Mansfield. — The only coufit in the ^cGlaration 
which IS now material, is for feveral fines for admiiHon 
to fcVferal xropyholds ; the declaration flates a cuftom for 
fevery euftomary tenant to pay a reafonable fine upon his 
admtffion, to be afie&d by the lc»rd,.£;c. that this tene- 
ment was of a large annual valu«, viz« of the annual va- 
lue of^. 23. ^ J. 9^. that the lord Had afiiefled j^*46. 
17/. 6^. as a fine for the defendant's admiffion to this 

, tenemeitt, atul that this fcim was a reafonabfe fine. On 
the evidence it appeared, dhat the i^t fhould haiqe been 
Cfrly ;^.,46, 4 J. 3^. that being the full asiqaDtpf two 
years va!lue, and tie queftion now is, Whether the plain- 

I ass J 

Upon a writ of error from the judgment (a) paiker v,Veii< 
of t^e Court of King\ Bench, the following JsT'i^mlt 
qucftions were put to the Judges by Order of Eaft, 783. 
. the Houfe of Lords. l/ottrL?-;'' 

Firft, Durnford^ 

ti^F^aiii in this cafe^ recover a fmaller fumthan thp fioe 
aflbfled ? Two things are, neceflaxy parts of this cuftom : 
1. The line muft be aj[ejjed\ 2. k muft be reafottahU. 
The lord fays in his declaration, that he has ajfejjid 
j^. 46. 1 7 J. 6//. for a fine, and that this fum was r^i2)/^»« 
ahle, and brings his a6tLon for that precipe fum. The 
queftiop for the Jury>vas, Whether^. 46. 17 j. 6^. w^s 
a reafpnable fine ? and they found it was not, therefore 
the plaintifF is notintitled to recover. He has hot afTcT' 
fed two yeairs value, but a preciie grofs fum ; and by 
fvhat rule he went in affefling that fum, does not appear 
upon the record. It is true, he has averred that the 
cftate is of a large yearly value, *i;/«. of the yearly value 
of^. 23. 8 J. ^4i but that is no- averment of what the 
yearly value really is. And the averment in this cafe jis 
totally immaterial. It would have been enough if the 
plaintiff* had Hated, that he had afTeffed the fum of 
^. 46. 17 /. 6//. as a fine, and that fuch fum was reafbn- 
abje ; and it would then have been matter of evidence, - 

juft as it was on this recori ; whether the fum aiTefled ex- : 

ceeded two years value or not, becaufe that is the eftab- 
liihed criterion whether it be reafonable or not. In the 
prpfent cafe the duty is numerically certain, for it is not 
afiefled with relation and in proportion to the annual va- 
lue, but is fixed at a grofs fum. The only cafe on this 
fubjed is Titus v. Perkins (a) , which is reported in Skin- . (a) 

mr (]b)» Carihie^ (c), Levinx (d), apd 3 Mod. (e). The C. B. H. i ct 
Chief Juftice there fays, '* If the lord demand more than * J^^" *• 
«* he ought, he may make his demand de no'vo^ for the skinn. 247. 
*' Judge, in cafe o^z. greater demand than is due, ougljt (c) * 

** not to adjudge as much as is.du,e to the lord, and bar Carth. 14. 

♦* him for the refidue, but ought to adjudge againft him W 

*^ for the whole, and that his entry was tortious, if he 3 Lev. 249. 255. 

♦* had entered i and put him to a new demand (f)." This tj Mod. 132. 
goes to the demand itfelf, and is not confined to the cafe Reported alfo 
of a forfeiture ; and there is no fuch diftindlion made in i" Combcrb. 43, 
that cafe (which had been infilled on at the bar.) Tl^e „, . (^) 
|-^ and foand^ciqn of ever/ action muft be proved as laid ""^* ^"^^ 
^" ' ^ U 4 * iu 

upon a fpecial 
verdicl, the 
finding being 

[ ^^6 ] 

A venire facias pifft^ Whether the finding on this ver* 

de novo award- jTLir/r** i • n \ » ^ 

ed by the Houfe clicl oc lufficient whercupon to give final judg- 

of Lords, upon ^Cnt ? 

a writ of error ^ ., *> i /• i* ■ •/•.*.- 

Secondly, It the finding be inUifficient, 
what award ough't to be made on fuch find- 

ing? ^ 

Thirdly, If the finding be fufEcient, whe- 
ther upon, fuch finding the pl^ntifi^ in errdr 
appear to be a trader, within the true intent 
and nieaning of the ftatutea concerning b^nt- 
rupts ? * 

The Lord Chief Baron Eyre delivered the 
unanimous opinion of the Judges prefent upon 
the ^rji queftion in the negative j and upon 
the fecond queftion, that a write of venire fa- 


Walker v. 
Witter, Poug. 
M. 19 G.3. p. I, 

Vide Doe 8c 

Jackfon, Dong. 


2&3£d 6. c. 13. 

Gardiner v. 
B. R.H. 33G.2, 
a Burr. 904. 
I Blackft. 198. 

in the declaration. This a6Hon is for a certain pretife 
fum, and, under the circumilances of the cafe, it could 
not be brought in any other way. The cafes cited for the 
plaintiff, 'viz. of debt on a foreign judgment (g) ; or 
againft a tenant for double the value of the land^ when he 
holds over under the (latute of 4 Geo, 1, cap, 28 (h) ; or 
for treble the *value for not fetting out tithes, under the 
ilatute of Ed, 6. (i) ; or of ajfumpfit for a total lofs on a 
policy of infurance, when there has been only a partial 
lofs (k) , are not at all applicable to the prefent cafe ; 
for, in all of thofe the gifi of the adlion is fupported, and 
a cafe proved confident with the declaration, thofe ac- 
tions being not for a precife fum, but for a fum in pro- 
portion to what the Jury fhaQ £nd to be the value or the 
damage. We give no opinion whether the lord might 
not have aiTefTed a fine for two years value, and made 
that folely the foundation of his declaration. In Titus v. 
Perkins t a cuftom to have a year's value, generally, for a 
fine, was held to be good. But, however that might be, 
it is very clear that the evidence here did not fupport the 
declaration, for the plaintiff has no right to any thing 
but the fum aiTefTed ; the duty arifes upon the a^efTment, 
and that by the evidence is proved to have been illegal 
and void. Therefore the cafe ftands as if no afTefTment 
had ever been made^ and confe(|uentIy the plaiotiF^« 



cias de novo ought to be awarded ; whereupon 
it was adjudged accordingly that the Court 
of King's Bench dp award a venirtf facias dc 
99VO.' ' • 

right to demand a fine is not yet complete. Tberefore 
we are all of opinion with the defendant. 
' There was accordingly jud|;ment for the defendant. 

Jpcaafe, j^ihe^nc ior the firit tenement was to be de- 
iifled fcpm the damages* he had paid xi^ore into Court 
than the plaintiff was ^titled tp fecover^ 

, •-» 


■»' I 


• C • »»8 1 j 

t • ' 

IX. <Df ott)er iSPattetsf re(i)e«4 

(20O Of New Triak in Jnfemr 


Cole r. Greene, TTTAST in xht Huftifigs^ Lofidotiy upon a 
or!*2. b!L VV 1^^^^ ^or years of a brewhoufe in Lon- 
1 Lev. 309. ^y^. ^^ defendant pleaded null waft, and ifliie 

Converting a , . , *^ , . - / -* , 

brewhoufe into upoo this 5 and upon the evidence it appeared, 
tenements of jj^^|. ^j^^ defendant took down the brewhoufe and 

greater value is , •' , 

wa^ erected fevcral houfes in the place, and im- 

proved the rent fronn ^C- 1^^ ^<^ j£« 200 fer 
annumy and by the diredion of Howell^ De- 
puty Recorder, before whom the caufe was 
tried; (inafnauch as by this, the nature of the 
thing and the evidence was altered^ the Jury 
found this to be waft, and gave fingle da- 
mages ;C.200, which was trebled at jT. 600 5 but 
thjBn judgment was arretted upon motion be- 
fore Sir JVilliam Wild^ the Recorder Jiimfelf, 
for the infufficiency of the verdift; becaufe 
the writ and count are que fecit vaftum vendili^ 
^nem ^ deftruHionem : and the Jury found 
fecit vaftum venditionem &? deftru£iionein fcil 
divellendo the brewhoufe, and taking the cop- 
pers, and the other particulars, ^c. but they 
did not find any fale of any of the particulars 
upon the place. Long quinto E. 4. 100, inwafi 
for felling and felling of trees, the defendant 
pleaded that \\t fcUe^ and employed them in 
, \ ; repairs, 

[ ^99 3 

repairs, and the plea was ill, becaufe he did 
not traverfe the felling notwithftanding that 
to this it was anfwered, that although in a 
plea xhfS felling is material, becaufe if he fell 
them it is waft, although he repurchafes them 
and employs them in repairs, and becaufe the 
felling is travcrfable, fo that it may appear to 
the Court, if the employing them in repairs 
be wa(i<iT not : but in a vcrdift when the waft 
is found this is fufficient whether they are 
fold or not. But the verdifl: was for riiis ex- 
ception ruled to be infufficient, and a rule for 
a new trial granted, upon which the Jury, in 
rcfpeft to the improvement, by the direftions 
of Sir fVilliam Wild^ before whom the new 
trial was had, gave a verdift for the defendant, 
and judgment was thereupon given for the de*- 

Upon this judgment Cole brought a writ of fj^^'^^^ng^^ 
error before Vau^aUy C. J. of C. B. HaUj C.B. trial 'ana con- 
Tumer, B. and Rainsford and Morton Jufticcs, 3^7 J^^lf^^^ 
afllgned at St. Martin' s-le-Grandy and upon and upon this* 
hearing of counfel before Howell, Deputy Re- '^^^^^iSfiJ^ 
corder, tiie judgment, and both verdifts, and without cUmi- 
the rule for the new trial (which was) quia vi^ nution. 
detur Cur* quod verdi^ pr^ediSl. eft vitiofum (^ 
frroneuPiy ideo caffetur^ & habeatur nova triatio^ 
were all certified, tind before the faid Juftice^ 
fo afllgned, four points were argued and ad- 
judged. Firfty That the firft verdift was fuf- 
ficient, for the reafon before alledged, Rafi. 
Entr. 6^^. b. 6g6. d. 689. Pafch. 7. Eliz. 3. 
PI. I . Secondly J That both the verdifts and 
the rule were well certified at firft upon the 
writ of error, becaufe the Huttings being an 
inferior court, no diminution may be alledged 
of certifying more than is certified at firft, and 
if the firft verdift be not certified and the rule^ 


[ '3^^ } 

the erroncoufncfi' of the proceedings nri the 
Huftings cannot appear, and fo no rcnncdy 
upon the writ of error ; and for this were cited 
Cv. 8. 65, LoveJafs cafe, Ce Enpr. "252, Jhtir 
Rial's cafe. Thirdly , That the Court here ought 
to reverfe the judgment, becaufe the court 
below erred in fetting afidc the firft verdid as 
infufficient when it was fufficient. Fourthlyj 
That the Court here ought to give the fame 
judgrnent here for the plaintiff, upon the firft 
verdift, as the court below ought to have given. 

5tl^*i/nfns* ^* "^^^ ^^^* ^y virtue of the words in the writ of 
give the fame crror, Et ultcrius faSuH quod adjuJUtiam perr 
^^l^^t^nlVe^^ ^/;/^//^^;£»/few leges regni 6? cmfuetudinem civir 
UaAings ought tatis pradiSl\ and although no precedent was 
lojiavesivcn. produced of fuch a thing done before in this 

cafe, yet they faid they would prefume the 
tuftonns of London to be according to the 
cbmmon law, if no precedent was^ihewn to 
the contrary. And upon this all the Judges 
agreed and reverfed the judgment, and gave 
judgment for the plaintiff upon the firft ver-- 

Upon which judgment of reverfal the de- 
fendant brought a writ of error in the Houfe 
of I-iOrds, and affigned for error that the Jury 
did not come from the four next wards, which 
according to the cuftom of London they, ought 
to have done; upon which the defeijdant 
in error pleaded in ntilh efi errntums and 
upfon argument there, the Lprds, with the ad- 
vice of the Judges, refolved thefe points. 
Error con- • Firftj that this was not afligtiable for error,.be- 
^7'*s'Vpt\^' ^^g contrary to the record; becaufe the awatd 
toabic. .of the menire facias efi de quat(ior -proximis 
'izfdrdis, and the writ returned ferved accOrd- 
fngly, and it is not like to the cafe 3 Cro. 329, 
jior I RtdhAb:^€i. which are of more inft- 
' ": rior 

[ 301 ] 

flat courts^ wh^re it was afllgned that one 
named Alderman was not an alderman. An4 
one named Steward of St. Catherine' s^^ was not 
fteward. But the courts and cuftoms of the 
city of Lmdon are confirmed by aft of par- 
liament, and are as the grandjejjions of fFales, . 
or the palace- court, and Roll's i.Abr. j^i. nu^ 
3. It may not be affigned that the deputy 
of the grand JeJ^ons before whom the caufe 
was tried, was not deputy, and. Molins and 
Ne/by'^ cafe, Trin. 14 Car. 2. B. R. Rot. 1098. 
and King and Allen's cafe in the fame court, it 
may not be alfigned that the Judge of the 
Marjhalfea was not judge, or was not prefent 
in court. Secondly^ that in nullo eft erraf is. a 
demurrer, and although, that this is error //^ 
faEly it is not confeffed by the demurrer, not innuiio,&c, 
being aflignable. But the demurrer is upon j* ^ demurrer, 
this in point of law, becaufe not aflignable, c^nfeft error in 
wherefore the judgment was affirmed and re- ^^^notwcu 
manded to St. Martin's to be executed. And ^ ^^ 
there it was objedted that they could not exe- 
cute it, becaufe they had not any feal for feal- 
ing the execution. But to this a precedent 
was produced dated 11 June, 22 £//z. between 
Crowther and Gee^ where in a fimilar cafe, the Howthe juf-^ 
juftices feal the writ of execution with their s^*MartTr!'r ^^ 
particular hands and fcals, and fo the court re- grant execu- 
folved to have it done here, but before that ^^'^^' 
diis was done Greene the plaintiff in error died, 
not having any goods in London. And Forth, 
aldermaii of London, claiming by Icafe uiadcr 
Greene, had preferred a bill in Chancery, to Ije . 
relieved by his bill This waft being, an iixi^ Chanceiyaftcr 
provement, but he for having an injunction, ^«r*^»^ and 

' J Jul ' ^ ^ ^ '^ judgment, and" 

was ordered by the court to enter into a^re- this affirmed ia 
cognizance tp anfwer for G^ene, being aj) 3?i- erfor,dire6isa 
ci^nt m^, and upon hearing the c^ufq tlj^rg w'aft.^'^'^ ''^ 


The record 
certified imme- 
diately from St. 
Martin's into 
mittimus out uf 

^ci re-facias 
v^Jinit tenants 
111 puireilion 
q^ia in{>,re(Il 
flint, vvithiiUt 
ihewiug title. 

in f efpctfl that there had been one verdift for 
the plainrifF and another for the defendant, 
Bridgmariy Lord Keeper, after all thefe pit)- 
ceedings, direfted a new trial at the bar of the 
King\*Bench to try in a feigned aftion, waft or 
noiy and upon tliis trial before Htstie, then Chief 
Juftice, it was refolved to be w^ notwkh- 
ftanding the improvement, by reafoh of the al- 
teration of the nature of the thing, and of the 
evidence, and the Jury gave their verdift ac- 
cordingly, and ICO marks fingle damages, 
which trebled amounted to £. ■200. which the 
Chancellor compelled Cole to takci 

Coley for having execution of the place 
wafted, had the record tranfmitted by certiorari 
immediately from the juftices at St. Martini 
into B. R. without having this certified in 
Chancery, and from thence by mittimus fent 
into B. R. and from thence z/cire -facias iflbed 
againft the adminiftrator of Greene^ and againft 
Fvrth and others, furmifing that they were in- 
terefted in the place wafted, and now held it ; 
they came in and demurred to the writ, be- 
caufe the plaintiff ought not to have feifin, 
becaufe rrni conftat that Forth entered upon 
title under Greene. 2. Becaufe the record is 
not legally removed into this Court to be exe- 
cuted, wherefore judgment was praiyed of the 
writ, and that the fanne might be qualhed. 

And now four queftions were refolved by the 
whole Court ; Firfty That the record was le- 
gally removed immediately into this Court by 
the ctrtidrariy without mttimus from the Chan- 
cery, upon thefc precedents, Reg. 209. K N. B. 
242^ 246. 5. 190. F. Reg. "160, *285. and 
F. JV". B. 243. Secondly y That it being in this 
Court, this Court fhall execute it notwith- 
ftanding ife//* 117. Rijhams. Goodwin y that 
f this 

C 5^5 1 

thiS'CoWlt flidl fiot cjcecute the judgmeM^ of 
inferior courts, afid this rciblutioh i/^aiS ground- 
ed upoft Fd/tb. t^ H. 7. Rot. 369. Rajittir% 
Entr. 531, 'JJhtvn's Piacitu Redivivay 145. 
Mich. 3. Jac. I. B. R. Rot. 231 1, H/. 3. 
7»t^. I. Cif?i & Rot, 1819. Pif/ri>. 4 7^r. i. 
B. R. Rot. 537. Bre. Jndidalidy 130. ////. 9. B.R.execuw 
K 4* J?^* 1^6. Tbefaurus Bfevium. 40, 41, jurf^ntsjii- 
4iv i?tf^. £/rfr. 169, 192. G). Entr. 180, 342, ^um. ^^^ 
Rtg. 1^0. F. N. B. 14a, 245. thirdly y That - 
the /dre-fa€4as wtis good, without ihewing by 
what dde jFe?^/* efttercd. And this upon jx^. 
intr. ^s6. MoyUy 160. 2 5r(r. no. Bfe* Judi- 

Miayi^S. ^53' -^^- ^^^^' 279.451. /^^g•. 
7«t^. aOi 50. and generally in rec6veries in 
real aftions, the /cire -facias is againft tales and 
/tf/^i qui ingrejfi Junt. Fourthly ^ It was re- pieatHf-in- 
foived by all the Juftices, that the phintifF- "«««'" .^*i> aU 
fhall have judgment to have execution, and ci^J^i" abTw^ 
mirefpondeas aufitr^ becaufc although the con- m«»^t,jukig»tioiii 
ckifion of thd demurrer is in abatement, yet 
the beginning being in bar, the judgment Ihall 
be peremptory, Mich. 15 Car. 2. B.R. Rot. 
703. and fo it was, and the plaintiff had exe- 

Norton and Levinz for the plaintiifF Cof^y 
throughout this caufc. Finch^ Jones^ and others 
for the defendant. 

It was held by the Court that a new trial The cafe of 

cannot be granted in an inferior court s for Auiefmen oT 

they are not like trials by nijipriusy which are Briftoi, Mich. 

fubordinate upon writs iffuing out of this zsaik.cco. 

Court, over which the Court have authority 5. c. Fares. 84. 

arid -infpeftion 5 ' but this was a new trial a year y^lI, ^ 

after the firft, which the Court blamed. . . '^PJ'^'r' ^''"^ 

' m inferior 

Courts. Scd vide 

Brooke v. YonicE moved foT a mandamus to the Judge 
NL 5"B.*R. ^^ ^^ Court of Safuiwub, to give judgtaent 
istra. Z13. upon a verdiA^ though he had granted a new 
nanJre ofTpr!!! trial for cxccffive danuges, without payment 

cedendo ad ju- q( cofts. 

^*"°** And for the mandamus he .quoted i Vm 

187. Raym. 214, 2 Kib. 871. And he Kke- 

A judge of an wife infiftcd, that a judge of an inferior court 

inferior court cannot grant a new trial, as was held by 

S!jw^iaif°sed Holty C. J. Mtcb. I jinK. Hall V. Hill. I Mod. 

^ videpoft. C^. 84. Salk. 201. 650. And likewifc by 

/ Parker^ C. J, PaJ. 1 2 Ann. Page^ v. Roimd. 

And to that opinion the Court inclined, 
and granted a mandamus unlefs caufe, and upon 
that the Judge below, as well advifed, quic' 

Rex V.Peters Mr. Hujfey Ihewed caufe againft the iffuing 
^tai'^orCaviiv. oi^ mandamus. 

ai%^E^ 31 G.a. A motion had been niade by Mr. IVhitaker 
^An^ferior^' (^^ ^^^ February 1758) for a mandamus to be 
court may fet direfted to the defendant John Peter Sy the 
^i^l^x^^ county clerk (who was the ftcward of the court) 
judgment, for and alfo to the free fuitors of the county-ceurt 

t^ingX me- ^^ ^^^ county of Qomwally commanding them 
xits. to proceed to final judgment in a certain caufe 

by plaint in replevin, commenced in the faid 
county-court, between John Cavil plaintiff, 
and John Burnafordj Anthony Pomery^ and Ni- 
cholas Pelyney defendants ; in which caufe the 
faid John Cavil obtained an interlocutory judg- 
ment in the laid county-court. 

The cajcy in Ihort was^ — That Bumaford 
diftrained Cavil for rent ; - Cavil brought a re- 
plevin, in the county-court of Cornwall; an 


tered'y and a writ of inquiry of damages exe- 
cuted thereupon s and zd. aflcffed for da- 
5 mages. 

t 305 1 

ttlages, and 5 J. for .cofts, and fo much more 
cofts as' rile Court ftiould allow. ' 

This inquiJtHon was fct afide for irregularity 
(vi^. want of notice of executing the writ of 

TKe defehdaht's advocate there then moved 
" Tajet afide xht faid (regular)* interlocu- 
" TORY JUDGMENT itfelf'y UPON the defend- 
" ant's paying the cofts of entering ///* (to be 
taxed .by the steward) and on' avowing j/"- ' 
fua^/y ? and afterwards, on a fubfequent mo- 
tion *' to make fuch rule abfolute/' it being 
urged by the other fide, ** that that Court had 
" no power to fet afide a regular judgnlent/' 
the Judge took time to advife. At a future 
court, after inquiry from ancient praftifers in 
the faid courts and being informed that it had 
been the conftant cuftom and ufage of it " To 
" set aside interlocutory judgments any time 
" before executing writs of inquiry therein, on 
" the defendant's paying the cofts of entering • 
" the fame judgments, and pleading iffuably 
*' to fuch aftion^ inftanter ;*' and after having 
fully confidered the affair in all its circum- 
ftances ; and apprehending it to be agreeable 
to the praftice of this Court \ he* declared his 
Opiliibn *^ that // ought to be fet aftde, and the 
" defendant's avowry received, they having 
" paid the cofts, at the time of filing it dt 
" bene ejfey' (which had been done in the in- 
terim) : and accordingly he made a rule, thus 
— " Cavil V. Burnaford et al\ It is ordered, ' 
" ^C. That the interlocutory judgment en- 
" tered in this caufe be set aside, on pay- 
" ment of cofts taxed j and that the avowry 
" filed in this caufe de beni ejfe, laft court- 
" day, be now, on confideration of the Courr> 

Vol, III. X " made ' 

[ 3o6 ] 

*^ made abfolute : and therefore rule for the 
*' plaintiff in replevin to plead in bar to the 
'^ avowry/' 

And the Judge of this inferior court fwcar$ 
*' That he adted with the utmoft impartiality 
^^ in the affair^ and according to the bed of 
*^ his judgment and underftanding ; and, he 
" apprehends and believes^ according to the 


" lijbed and obferved in the /aid court. ^* 

Mr. fVbitaker'^ motion was grounded upon 
the inferior judge's having exceeded his autho- 
rity. And he had cited 2 Strange^ 823. Fox 
V. Glafs. H. 1728. 2G. 2. as the firji time 
that even this Court had fet afide regular. 
judgments ;* and i Strange, 392* Bayly v, 
^ Boomcy M.y.G.2. where they doubted of an 
inferior judge's having fuch power. 

On Friday laft (21ft A^riU 1758) Mr. 
Huffey Ihewed caufe why this mandamus (hould 
not iffue. And he made the two following 

I ft. Whether the judge or fteward of an 
inferior court has a right to set aside interh- 
cutory judgments regularly obtained ? 

2d. Whether in this particular cafe, the 
fteward of this inferior court had a right to do 
as he had done> and as is the pradice of that 
inferior court ? 

As to the firft queftion, He agreed they can^ 
not grant new trials^ i Salk. 201 . Regina v. Hilly 
v.ante. et al\ and aSalk. 650. the cafe of Brijlol 
(which is S. C.) Brooke v. Ewers, et al\ 
v. ante. I Strange, 113. S. P. A mandamus iffued to 
a judge of an inferior court, *^ to give judg- 
" ment :" though he had granted^ a new trial. 
Therefore he would no.t contend that an in- 

t 507 ] 

ferior court has a right to fet afide n regular 

judgment, unless it be to let in the merits* 

But they may do it in order to try the i^ce*- 

RiTS, 2 Salk. 650, In the cafe of the mayw v. ante. 

and aldermen of Briftoly it was holden " that 

*^ an inferior court could not grant 41 new 

" trial'' However, it was long fince done 

by this court : and they would alfo formerly 

fet afide regular judgments^ on putting the 

plaintiff in as good condition as before. And 

it does not appear how the Court came to 

leave it off; as Sir John Strange fays (iq the 

cafe o{ Fox v. Glcifs) that they had done. 

And it feems right in itfelf, and agreeable to 
natural juftice, to permit inferior courts to fet 
afide regular interlocutory judgments^ in order 
to let in a trial of the merits. Indeed it is 
reafonable, not to permit them to fet afide the 
verdi3s of juries : which is an exceedingly 
different cafe from a judgment by default. 

As to the ^d queftion.— In the prefent cafe, 
the fteward afted rightly and reafonably, upon 
the circumftances attending it. Mr. fVhitaker^ 
contra^ for the mandamus. 

The letting in the trial of the merits, 
makes no dijference, I fay that an inferior 
court can not fet afide a regular judgment 
after they have once exerctfed their authority^ 
In I Strange^ 392, Baily v. Boorne^ M.j. G. 2» 
B. R. the Court thought it a queftion that 
deferved confideration, ** Whether the judge 
" of an inferior court cmld do it.'* And there 
is no more reafon why they'lhould have this 
power, than that of fetting afide verdiSis. 
They have no fuch difcreticm^ " Difcretion** 
is another word for " arbitrary will." 

Lord Mansfield denied this interpretadoa 

X 2 of 

t)f the term difcretion ; and referred to what 
was faid (a few days ago) in the cafe o^Rex 
V. Toungy and Pitts (vide i Burr. ip^^So. and 
56i> 562.) And he faid that discretio is, as 
Lord Coke fays, *^ difcernere per legem quid 
•' fit juftum/' 

To which obfervation, Mr. Juji. Wilmot 
defired to add another, from 5 Co. 100. a. 
Rooke's cafe : " Discretion is a fcience and 
underftandingof diftinguifhing and difccrning 
between falftiood and truth,"*&c. &c, and not 
to do " according to arbitrary will and frivaU 
" affeaionr 

Mr. Whitaker. — But thefe inferior judges 
have no fort of difcretionary power of anj 

Lord Mansfield. — That cafe of Baifyv. 
Boorne, in i Strange, 392. only fays " That it 
'^ was a queffion that deferved confidera- 
" tion." 

But there is no precedent or authority to the 
contrary of their having fuch a power. And 
it feems a power necejfary to the exercije of ju- 
dicature i and is very different from the cafe of 
fetting afide verdicts. — This power to fet 
afide interlocutory judgments, feems incident to 

However, both Lord Mansfield and the 
♦Mr.juftice Other * two judges, thought it might not be 
jPofterwasab. amifs to look into it. And — 

Mr. Juft. Denifon intimated as if there was 
t It was in fomething of this fort before the Court, in f P. 

Hil.1754.27. ng /7 o B-R 

28 G. 2. Eaft- Cur' advifare vult. 

mwc^ ^''"''" And now Lord Mansfield delivered the 

opinion of the Court ; having firft defired Mr. 

Huffey to ftatc the cafe, for the fake of the ftu- 

3 dents : 

C 309 ] 

dents : (for he took this opportunity of ob- 
ferving and declaring " That nothing mijleads 
'^ to much as reporting the determination of 
J^ courts of juftice, without having a fufficient 
" and correal ftate of the cafe :'' which, he faid, 
was only an ignis fatuuSy leading people into 
an error 2sAmiflake). 

Here, the quejiion^ upon the true ftate of the 
cafe (which v. ante) appears to be " Whe- 
** ther an inferior court has power to set 


menty in order to let in the trial of the 

" merits/' 

And we are all of us of opinion, ^^ That they 
" HAVE fuch a power/' There is no autho^ 
rtty nor even diSlumy to the contrary ; nor is 
there any reafon why they fhould not have 
luch a power ^ which is incident to the doing 

Indeed there ^^r^ authorities, which fay, 
" That an inferior court can not grant a new 
" TRIAL, ox fet aftde the verdict of a jury, 
" but for irregularity/* 

But there may be many reafons why they 
may be permitted to fet afide an interlocutory 
judgment, in order to let in the merits ; which 
reafons will not hold fo far as to make it al- * 
lowable for them to fet afide the verdiSl of a 
jury : (one of which reafons may be, " that no 

attaint lies upon a verdift given in an infe^ 

rior court,") and indeed the fetting afide a 
verdiSl of a jury, is too great power to be in- 
trufted to an inferior ]ux\(di\6k\ov\. Yet 

We are, all of us, clearly of opinion '* That 
" they may fet afide regular interlocutory 
" judgments, in order to let in the merits ;" 
both upon the reafon of the thing, and for the 
convenience attending it. 

X 3 . That 


t 3^o 1 

That cafe in i Strange, 392. of Baily v. 
Boomey proves nothing at all againft this. And 
in I Strange y 499. Jewell v. Hill, H. 8 G. i, 
an inferior judge fet afide even a verdi£ly for 
irregularity ( or rather for furprize ) which 
this Court allowed he might do. 

Mr. Juft. Deni/on added, that in the cafe of 

Eajiwell v. Livermore, it feemed to be under- 

flood and agreed at the bar, " That an in- 

" ferior court could not fet afide a verdift, 

* It is true " * AT ALL :'* but hc finds that he has written 

*no difttnai^n' ^ "^^^ ^^ ^^^ bottom of that cafe, importing 
exprcffcd in the that be him/elf thought that it ought not to be 
fSfe? ° But taken for granted, Jo general^ as this is laid 
DO irregularity down, " That they cannot do it * at all" for 
^miedrnor^ny that he thought " that an inferior . court may 

other reafon at- «c f^^ ^fj^g g^j^ a Ver dill for IRREGULARITY; 

g1 vJsn for °fett '^ though they are not to be trurted with a 
vOTdia*bu?bc ^^ power of fetting afide verdiSis upon the me- 

caufe it was a ** R I T S. 

(bc'hMoughtto -^"^ ^^^^> ^^ ^^^^* ^^^ certainly the right 
be fet adde. diftinSion ; v'tz. That they may fet afide even 

verdifts, for irregulaHty ^ but not upon the 


"Wherefore^^r C»r, unanimoufly. 

Let the rux-e made " That John Peters 

*' the county- clerk, and the free fuitors of 

'^ the county-court, fliould Ihew caufe why 

*' a mandamus fliould not iflue, direfted to 

*' them, commanding them to proceed to 

" final judgment in a certain caufc by plaint 

*' in replevin commenced in the laid county- 

*' court, between Jffbn Cavily plaintiff, and 

" John BurtSafordy Anthony Pomery, and iVSf- 

*' cholas Pelyne, defendants, in which faid caufe 

*^ the faid John Cavil obtained an interlocu- 

** tory judgment in the faid county- court, on 

'' the 

[ 3" 1 

'' the 12th day of O£lober laft/' — ^^ dis- 
Rule discharged. 

N, B* In the cafe of Blackquiere and others, 
aflignees of Samp/on and another, v. Hawkins ^ 
affignee of JVooldridge a bankrupt, Doug. 365. 
fer Lord Mansfield^ Inferior courts cannot 
grant a new trial. This muft be underftood 
in a limited fenfe. Vide the cafe preceding. 

X 4 XL 

I 3»4 ] 

IX. Df ottjer S&atttts reletting 
netD XxitLie, &c. 

(21.) 0/ withdrawing Pleas^ Re- 
plications, Demurrers, ^c. 

Nichols V. sut- T N an aftion on the cafe on alTumpJit. it was 

b! r. Ann/56. X moved on behalf of the defendant for leave 

Motion to to withdraw the plea of nihil debet y which he 

o/nihiTd^betr ^^^ P^^ ^"^ ^^'^ ^^ plead non ajfumfjit. The 
ana plead non following cafes werc cited to fhew that the 
gramid\nthe Court had granted this liberty before: Edes 
pommon terms, ^^d Mofon, Pofch. 5 Geo. 2. B. R. nfiovcd to 

withdraw the general plea non qfumpjit, and to 
plead a tender as to part, and non ajfumpfit to 
the reft, and granted. In the cafe of Mojlyn 
and ^ottyy 3 Geo. 2. in Scacc. the Court gave 
leave to withdraw demurrers, and plead the 
general iflue. 

Granted on the common terms of payn)ent 
of cofts, and taking fhort notice of trial. 

jeffcreys v. Rule for the plaintiff to fhew caufe why the 
aiGeo?2.B.R. defendant fhould not have leave to withdraw 
I wHf. 177. his plea of non eji fa5ium to a bond, and to 
to xvlthdraw^ plead the ftatute of gaming^ upon payment of 
non eft faaura gofts, taking fhoft notice of trial, and giving 

to a bond, and . , • ? i • • r i i ° 

to plead the fta- judgment 01 this term in cafe there be a ver- 

v-'pol^T^Jior ^^ ^^^ ^^^ plaintiff; grpynded upon an afEda-^dreu.' ' davit 

[ 3^J 1 

davit that inftruftions bad been given by the 
defendant to his attorney to infift upon the 
ftatute of gaming ; and the attorney apprehend- 
ing that he could give that Jiatute in evidence 
on mn eji faSlum^ did not plead the ftatute . 
ipecially. It was obje^led for the plaintiff 
that this had never been done, that the de- 
fendant had been guilty of an afFcfted (^elay 
by exhibiting a. bill in Chancery againft the 
plaintiff for a difcovery, reUef, and injun6lion, 
to which he had put in his anfwer, that the 
defendant firft pleaded nil debet^ which he 
would not ftand by, and then pleaded 7ion eft 
fcEiumy and an injundtion with liberty to pro- 
ceed to judgment was granted in Chancery. 

Per Curiam, (abfente Cap. Juftic.) The 
Court will not give leave to withdraw the ge- 
neral ifTue, and plead fpecially where it is to 
the prejudice of the plaintiff, or where there 
has been an affeded delay ^ in this cafe it ap- 
pears by the anfwer in Chancery that the de- 
fendant has a good defence at law, and here is 
no affefted delay. In the cafe oi Matters and 
Sbelmandine, Mic. 1 5 Geo. 2. leave was given 
to withdraw the general iffue Not Guilty, and 
plead a juftification, upon the like terms asiq 
the prefent cafe ; and they faid they remem- 
bered feveral other cafes where the like had ^ 
been done by the Courts fo the rule was 
made abfolute. 

Trespass: the defendant juflified for toll waters v. 

at Hounftowy and pleaded two pleas in Hilary f^Geo.I'B.'R. 

term Jaft ; and in this term, after iffue joined, i wiir »23. 

obtained a rule to Ihew caufe why he fhould addTpfea after 

not have leave to amend his two pleas, and t wo terms fmc* 

to add a third plea. Upon fliewing caufe, werepieacreX 

Mr. Ford objedted to adding the third plea, fJJ^^^J''''" ^^"^^ 

becaufe ^°'^ 


[ 3H 1 

beciufe it was now tw6 terms Gnce the de- 
fendant pleaded; and compared it to the 
courfe of the Court not to give a plaintiff 
leave to add a count after t*wt) terms. 

But fer Curiam (abfente Wright^ J.) the 
rule muft be abfolute upon paying cofts, both 
as to amending the two pleas, and adding a 
third i for there is no time limited for appli- 
cation to the Court to plead feveral pleas; 
the reafoil why a plaintiff mcrft apply for 
leave to add a count within two terms, is bc- 
caufe he is obliged to declare within two 
terms, other wife he will be out of Court, and 
a new count is confidered as a declaration i 
and the plaintiff*s being refufed after two t<^rms 
to add a count, is npt under fuch difficulty as 
the defendant would be if he were refufed to 
add a plea after two terms, becaufe the plain- 
tiff may have a new aftion,— Serjeant Draper 
for the defendant. 

Taylor v. jod- IMPRISONMENT ! defendant pleaded the gc- 

ft!B!'R?'i*w?if. ^^^^ iff"^ inadvertently, and now moved to 
a54- withdraw it, and for leave to plead a juftifica- 

ant permitted" tion that he was mailer of a fhip, that the plain- 
to plead a fpc- tiff was making a mutiny therein, and fo he 
after he had impTifoned him ; this was done in Blackburn 
pleaded the ge- y^ MatthewSy UDon tcrms of taking ftiort rto- 

neraiiUue>up(Hi . /• • i * i • >*• t *f^ ^ • 

terms. tice of trial. And m Tarlton v. fvraggy Trtn. 

ao Geo. a- defendant pleaded the, general ilTuc, 
and wanting afterwards to pay money into 
court, the defendant had leave to withrdaw his 
plea, pay money into court, and plead the ge- 
neral iffue again. In 9n». ii Geo. 2. Water 

Vide ante. V. Bowelly the dcfcjidant in Hilary term before 
having pleaded two pleas, had leave in frin. 
ittm following to ^lead a third plea 5 and in 

ridcaoie. Mic^ 21 Geo, 2, Jeffereys v, Walter^ leave was 


[ 3H ] 

^ivcn to withdraw non ifl faStum^ and to plead 
^t ftatute of gaming. 

Per Curiam : There arc many inftances of 
this having been done when the Court can pre- 
vent the plaintiff from fuffering any inconvc^ 
nicnce by it, as by obliging the defendant to 
take ihort notice of trial, and that, if there be 
a verdifl: for the plaintiff, he fhall have judg- 
ment as of the prefent term ; therefore let the 
defendant be at liberty to plead a juftification, 
and the general iffue alfo^ if he pleafes, upon 
the terms mentioned, 

Mr. Norton "moved for leave to withdraw J?[i^^"^!^"^ 
two demurrers y and plead to iffue (upon pay- Geo. L Rot'L 
mcnt of cofts); and a rule was thereupon gtox b^r 

granted, to shew cause. i Burr. 321.' 

And now Mr. Tates fhewed caufe, for the jj^v^e tT^th. 

plaintiff, ag'ainfl: the defendant's being at li- draw two dc- 

berty to withdraw the two demurrers, and piellTt^'iffac, 

plead to iffue. And he cited 6 Mod. 102. upon payment 

The caje of Crojs v. Bilfon (a), 6 Mod. i . The ?ufedf bel^ufe 

cafe of Staple v. Haydon (b), i Ld. Raym. Several iffues ia 

668. The cafe of Fox v. fVilbrabam^ and 2 tried/ ^^ 

Strange 1002. (c) The Bank 0/ England v. M^r- ^ oftEffa 

rice. v.^° ^^ 

Serjeant Pook, and Mr. Norton contra, for „ i^J^ 

J , ' * V. poft Kflaj 

the defendant. — v. 

The merits have not been tried upon thefe y poft Eflay 
dennurrers. We move this at common lawy not m. 
under any ftatute. And the Court are not 
bound down by any certain rules. And they 
cited 0. Saund. 402. Rex v. Ellames [2 Strange^ 
976]. Dut chefs of Marlborough v. fFidm^re, 
Hil. ^ G. 2. B. R. The cafe of Cope v. 
Marjhalh Tr. 26 G. 2. B. R. [V. i Burr. 
259, S. C] 

The cafe of Giddins v. Giddins, [Tr. 29, 

30 G. 

• It was after 
a demarrer and 
argument only ; 
Kit the Court 
had given no 
opinion ; and 
the rule was 
made abfolute 
without de- 

t 316 1. . 

30 G. 2. B, R.} was even after the Court had 
given their opinion*. 

And here is a declaration of twenty counts, 
manifeftly intended to catch the defendant, and 
to fave cofts. 

If our motion is granted, the cotttingent da- 
mages affefled, will be out of the cafe, and will 
be as none at all. 

Lord Mansfield, — It is admitted to have 
been done after a demurrer and argument: 
but this is after a trial, and without any fa- 
vourable circumftances. 

Now as no cafe of fuch an amendment 
after ^ trial is cited, I take it for granted that 
npne exists. 

Thefe are frivolous demurrers; and the 
only view of this motion is to get rid of the 
cofts. But the plaintiff would have had his 
cofts, if the defendant had done right at-firft, 
and joined ifllie upon thefe fafts, //they had 
been found againji him. 

So that here is neither precedent, nor reafon 
for allowing this motion. 

Mr. Juftice Denison concurred. 

Where the demurrer is firft argued, before 
any trial, of the iflues, the. court will give leave 
to amend: as in the cafe of Giddins v. Giddins, 
But this is an attempt to amend an iflue at 
laWy after a verdib has been found on the 
iflues upon facts, and contingent damages found 
upon the demurrers : of which there never 
was an inftance. And we do not know where 
it would end ; nor do I well know how the 
caufe could be again carried down to trial. If 
this had at firft gone down to ifllie, and had 
been found againft the defendant, it would have 
carried cofts. 

The Court cannot help feeing that this is 

{ 317 1 

npvn RECORD : here are verdi£ls and contingent 
damages found, therefore we cannot help this : 
I wifh we could ; becaufe the merits fcem to 
be with the defendant. 

The cafes of amendment cited are where the 
whole is fuppofed to be in paper j or elfe the 
Court COULD NOT have done it. We have no 
authority to do this, after *tis plainly upon 
RECORD. Mr. Juftice Forster concurred. 
' Per Cur* unanimoufly judgment for the 


• After iflue joined upon a plea in bar to an 
avowry, the Court would not fufFer the plea 
to be withdrawn, and .the avowry confefled, 
without confent, as the avowant would lofe his ' 
cofts. Skin. 594. 

In the cafe of Collins v. Blantern, 2 IVilf, vide ante, l a 
341. C. P. refufed to let plaintiff withdraw a ^^^^^°' ^^> 
demurrer to the defendant's plea, and take if- 
fue; but this was after two arguments. 

Mr. Huffiy Ihewed caufe againft a rule of AWer t. 
Mr. Gould'sy « why the plaintiff Ihould not ^eL^z.s'.R! 
*^ be at liberty to withdraw his replication^ and 2 Burr. 755. 
'^ reply de novo." ^ _ a^^S"* 

The cafe was, that the plaintiff had (by the and replying de 
miflake of his former attorney) traverfed a Icafc "d Is an ami«dl 
under which he himfelf claimed. n^cnt. 

The Court made the rule abfolute. 

And Lord Mansfield faid, he conlidered 
this as an amendment, and that the propofing it in 
this method of withdrawing the replication and 
replying de novo, was only to prevent the de- 
facing and obliterating the roll. And he ob- 
fcrved, that the Court had not ufed the fame 
firiStneJs of late years, with regard to amend-- 
mentSy as they formerly did : and he faid, it was 
much better for the parties that they Ihould 


[ 3i8 1 

not : however, the Court would always take 
care that if one party obtained leave to amend, 
the ether party fliould not ht prejudiced nor i?* 
layed thereby. 
• 2 stra. 1 102. And he obferved that the cafe of the * Bank 
of Englandy.Morricey turned upon its own parti- 
cular circunnftances, and was the cafe of an ex^ 
ecutrix too. 

Note,— The length of time in the prefcnt 
cafe had been objefted ; viz. fix terms. But 
it was anfwercd, *^ that in many cafes, amcnd- 
** ments had been made after a much longer 
« rime,'* 

Rule made ab(blute. 

wnkcs, Efq. In trefpafs, aflault, and imprifonment, the 
rcemSr ofpar- defendant pleaded the general iffue, wherc- 
liament, M. upon iffue was joincd laft term, and notice of 
lofhofNovcml trial given for to-morrow the nth of Ntyvem- 
i)er,2V«iif.2o4. bsr. On Monday laft the yth of Novemher, 
4kaw the g^'ne- the defendant moved for leave to withdraw 
raiiffucand hjs pjea of the general iffue, and to. plead 
Jieaupor^ again the general iffue, and a fpecial juftifi- 
terrn^, and catiou undcr a Warrant of Lord HallifaXy fc- 
kgeTf^pariu- cretary of ftate ; and relied upon the cafe of 
Y^Me. "^(fyl^r V. Jodrelly B. R. Mich. 23 Geo. 1. 

where, in imprifonment, the defendant had 
pleaded the general iffue, the Court gave 
him leave to withdraw that plea, and plead a 
juftification that he was matter of a fhip, that 
plaintiff was making a mutiny therein, and fo 
he imprifoncd him, upon terms of taking fliorc 
notice of trial, and giving plaintiff judgment 
of the fame term. The like was done in 
Blackburn and Matthews, Trin* 23 Geo* a. 
B. R. and in many other fimilar cafes, where 
the Court could prevent the plainuff from be- 
ing delayed, or fuffering any inconvenience* 

a Serjeant 

[ 3^9 3 

Serjeant Glynn for the plaintiff, objefted 
that riie defendant could not, by coming into 
the ufual terms^ put the plaintiff into the faaie 
fituation he was now in, the privilege of par- 
liament taking place next Monday j whereupon 
defendant agreed to waive his privilege ; but 
it was anfwered by Glynn^ that the privilege 
of a niember was the privilege of the whole 
houfe, and that he could not waive it without 
leave of the houfe -, and that the houfe might 
infift upon the privilege. 

Curia* We will not fuppofe any thing fo 
dilhonourable in the Houfe of Commons : let 
the rule be made abfolute upon defendant's 
taking fliort notice of trial, and that if the 
plaintiff has a verdidt, he fliall have judgment 
of this term. 

fFilkes againft fFM, Efq. member, (^c. the 2 wiicios- 
like motion, and the like rule. 

This was a fpecial aftion upon the cafe coxv.Roit, 
againft the defendant, for deflowering the c.b. z^wfi 
plaintiff's daughter p^r quod feruitium amijit: *53- 
the defendant having pleaded the general iffue, Th^court re- 
now moved for leave to withdraw that plea, ^"(^^ ^° p*^™^ 

, tjir 1 • \ ^ defeiKlant to 

and to plead the lame plea again, together addthepieaof 
with the plea of the ftatute of limitations ; thcftatutcoc 

*!,.- J- , 1/-1 limitations. 

upon an affidavit made by the defendant s at- 
torney, that at the time when he was bound to 
plead by the rule of the Court, and then 
pleaded the general iffue only, he was not fully 
iniR:ru(^ed by his client what to plead i and a 
fimilar cafe was cited in B. R. of Vile v. Barry ^ 
wherein the Court permitted thisj upon an af- 
fidavit made by the very fame attorney, that 
be wa^ preffed for a plea, and was obliged to 
}dead before he wa^ inilrudledj and therefore 


t 326 1 

pleaded the general iffuc to prevent judg^ 

Upon fhcwing caufe it was infilled for the 
plaintiff, . that the general rule of both the 
courts of Bi R. and C. B. is to pernnit a de- 
fendant to withdraw a fpecial plea, and plead 
the • general iflue, but not vicS verfd ; and 
many cafes were cited to fhew this to be thci 
praftice, which was agreed to be lb by the 
Court; and it was faid, that in the cafe of 
Vile V. Barry y the attorney was furprifed, not 
inftrucled, and pleaded the general iffue to pre- 
vent judgment : and for that reafon the Court 
of King's Bench deviated from the general 
praftice in that particular cafe ; but here the 
affidavit made by the fame attorney does not 
go fo far, and therefore the rule ought to be 

Curia. It is a good maxim, that the law 
will rather fuffer a particular mifchief than a 
general inconvenience ; general rules of prac- 
tice mufl be ftriftly obferved for the fake of 
certainty, or praftifers will be negligent. In- 
deed under very fpecial circumflances, the 
Court will permit a defendant to add a fpecial 
plea; in a late cafe of public concern, the de- 
fendant being advifed by his counfel that he 
might give the fecretary of ftate*s warrant in 
evidence upon the plea of the general iffue, 
pleaded that plea only ; the judge before 
whom that caufe was tried, having been pf a 
contrary opinion, it was afterwards moved in 
Vide ante. a fimilar cafe of IVilkes v. Wehhy to withdraw 

the general iffue, and plead the fame plea 
again, and a fpecial juftification under the fe- 
cretary of flate's warrant, which was allowed 
by, the whole court ; the defendant at the time, 
of pleading the general iffue only, being ill 


C 321 ] 

advifed by his counfel, and not knowing then 
the opinion of the judge who tried the former 
fimilar caufc; befides, that fpecial plea was 
allowed to try the real merits of the caftr, but 
the plea of the ftatute of limitations is not to 
be favoured, becaufe it excludes the merits ; 
the Court gives leave to add a plea for the 
furtherance of juftice, but to permit this plea 
of the ftatute of limitations, would not be fo. 
The rule was difcharged^^r totam Curiam. 

Serjeants Hewitt and Davy for the defendant, 
Serjeant Burland for the plaintiff. 

jiSion upon the ftatute for felling coals ^,,. 

ihort m mealure, to recover £. 50. penalty. &c. v h. 

The defendant laft term pleaded a recovery \ wiif.^'6^* 
in B. R. for the fame offence, and now he where'^a <ks- 
moved to withdraw that plea, to plead the ge- a^SfamV'iwf ' 
neral iffue, and take Ihort notice of trial ; but the Court wm 
fer Curiam^ the defendant has delayed the wili!jraw?t and 
plaintiff by this ftiam plea, he has produced pieaathcge- 
no. affidavit that he has any merits, and de- ^^^ ^**"^* 
ferves to pay the £. 50. for pleading a Iham 
plea, fo the rule muft be difcharged. 

Vol. hi. Y ESSAY 





Of Special VerdiSis^ &^c. 

IN the cafe of Hayward v, Fulfbir, Tri^, Uncertainty 
ai Jac. Ret. 662. Palmer^ 491 — 505^ in of the vcruict. 
trefpafs, judgment was given for the defendant 
by reafon of the uncertainty of the verdift, 

fn?ere afpecial verdiS is good iecaufe it is true, ' 
the Court muft adjudge the law upon the truth , 
and are not bound by the finding of the 

In cjeftment in B, R^ in this caufe, the fpe-r L^nc v. cow- 

cial matter was found as follows, viz. that Mo.Tc'3'n.^48i 

IVilliam Humfryjoni who was feifed in fee. Recovery fuf- 

luftcrcd a common recovery to Strnmerton and ufes, remainder 

Fulkey M, 1% H. i. to the intent that they tofeniori 

Ihould grant an eftate to him and Elinor his ^"**^' 
wife, for their lives, the remainder /tf»/<?r/ puero 
of the body of the hiifband in tail, the re-t 
mainder oyer in fee to one Kinerjley s the re- 
CQverors made a feoffment accordingly jinno^ 

2 E. 6, and afterwards Humfryfon covenanted covenant to 
by indenture with the faid Kinerjley y to levy a wuLhiswIfe, 
fine with his wife, to the ufe of hin>felf and '" V^®?' ''«- 
his Wife for their lives, the remainder to th^ eWeft child o£ 
u/e of the eldejl child of his o^n body in tally the |;;\3°];'';j'-°'*^ 
remainder in fee to Kinerjley ; which fine Anno^ mainder in £ee 

3 E. 6. was levied accordingly with general Kin^'tevied. 
warranty ; ^nd the feme dicd^ and Humfryfon Feme dies, 

y 2 toolc ^o^^"^^^^'^ 

takes another 
wife; hath iflue, 
firft a daughter, 
afterwards a 
fon,who, with- 
in age, leafes 
to the plaintiff, 
without referv- 
ing rent : de- 
fendant, as fer- 
vant to the 
daughter, en- 
tered upon the 



I 3M 1 

took another wife, by whom he had iflue, firft 
a daughter, and afterwards a fon, and died : the 
fon, within age, made a leafe to the plaintiff, 
as in the declaration is alledged, but no men- 
tion in the verdift of any rent referved j the 
defendant, as feryant to the daughter, entered 
upon the leffee j and fo, (^c. upon the whole 
matter, if it fhould feem to the Court that the 
entry of the daughter was lawful, the jury found 
the defendant not guilty i but if it Qiould fccm 
to the Court that the entry of the daughter 
upon the leffee of the fon was not lawful, they 
found the defendant guilty, and affeffed cods 
and damages : upon which verdift fo returned, 
it was often argued at the bar, and by the 
bench, and at laft by all the Juftices in bank 
openly : and it was divided into Un points. 

' The iff. To what ufes the recoverers are 
fcifed as to the execution of the eftate again to 
Humfryjon and his wife : and as to this, all the 
Juftices argued that they were feifed to their 
6wn ufe, by the intent of the recovery, be- 
caufe otherwife they could not rightfully make 
an eftate to him who fuffered the recovery 
again, as they ought to do. 

The 2d. If/emoripuero be a good name of 
purchafe by way of remainder, he not being in 
rerum naturay at the time of the limitation. 
And in this alfo they' all agreed that it is ai 
good name of purchafe : and Gawdy and 
iVraye put the diverfity, (viz.) that a perfon 
not in being at the firft, may take a remainder 
by purchafe, if he be in ejfe before the parti- 
cular eftate determined, fo that the limitation 
of the remainder be in* general words, as v^ 
the right heirs of J. S. or to him who fhall firft 
come to Sh PaiiPsy to the wife that ftiall be, 
and the like. But if the limitation be in'fpe- 


[ 3^6 1 

tial words, as to Jane, the firft wife of J. S, 
where he hath not any wife at the time, or to 
the mayor and commonalty of IJlingtorii where 
there are pot any fuch at the time there^ al- 
though before the determination of the parti- 
cular eftate, J. S. takes one Jane to wife, or 
IJlingion be incorporated by the name of the 
Mayor and Commonalty, yet they fhall not 
take the remainder. 

The 3d. If the remainder fhall be in abey- Remainder m 
ance until the birth of a fon, or whether the ^ ^y^"^*'' 
eftate tail Ihall be executed in the father until 
the birth of a fon : and in this alfo they all 
agreed that the remainder is in abeyance, un- 
til the tail executed, and vouched 30 JJf. Sfaf- 
ford's cafe, where the remainder was limited 
frapinquioribus de /anguine, and i JJf. to the 
wife that fhall be. 

The 4th. If by the fine the remainder which- 
followed the eflate in abeyance was put to a 
right, or whether it fhould be preferved from 
tort, by the law : and as to this, Gawdy and 
V/raye agreed that the remainder in abeyance 
is preferved, .and the eflate is not converted 
into a right by the fine of the particular te- 
nant ; and they compared this to defcents and 
non-claims in the time of vacation of a bifhop- 
rick, which fliall not prejudice the fucceflbr; 
nor non-claim where land is in the hands of 
the king by guardianfliip ; becaufe in the one 
cafe there is not any peribn to make claim ; 
and, in the fecond, claim cannot be made upon 
the pofTeflion of the king. 

The 5th point. If the warranty being col- Warranty, 
lateral (hall bind the remainder in the fon : and 
it was argued by all that it fhould not, becaufe,. 
admitting that the reipainder fettled upon the 
fon by the name of feniori puero, then if af- 

y 3 terwards, 

tefwards, wheri lie is born, he takes the pot 
fcflion in remainder, that this being before the 
defcent of the warranty, avoids the warranty : 
befides, the fine is not a difcontinuance of the 
remainder, becaufe it w?3 in abeyance, and 
therefore there is not any reafon that the 
daughter fliould have the benefit of the war- 
ranty, becaufe Ihe is in as him who hath aii 
tife en le poji. 

The 6th point. If by the words /eniorifu- 
era fhall be underftood the daughter who was 
firft born, or the fon who is the male : and in 
this the Juftices unanimoufly agreed^ that the f 
PuCTV word puer is common as well to the female as ^ 

tive male, and may be taken for both in gram- 
matical conftru6tion, and expofition of the ci- 
vil law : but the beft interpreter of the intent 
in this limitation, is the father himfelf who 
made the limitation, and he hath explained by 
the indenture that the remainder fhould be to 
his e'idcft child -, and therefore the Juftices all 
agreed tlrat the datrghter is- to take the re- 
mainder; but PFraye {aiidj if the indenture had 
not been made, then the Juftices ought to ex- 
pound the word puer according to the moft 
common intent, which is to fignify a male 
child. Southcot e contra as to this, becaufe the 
daughter being the firft upon whom the re- 
mainder is aptly enough fettled before the 
birth of the fan, ftie fliall be preferred for her 
liifant. The 7th. If the leafe of an infant, without 

rent referved, be void or voidable : and they 
all, but Gazvdyy agreed that it is void, becaufe 
he liad not any confideration, but if rent was 
referved, if would be only voidable. So a feoff- 
ment made with the proper hand of an infant 
is only voidable : and they faid that any 


[ 5^7 ] 

ftrahget n\Ay take advantage of this by Way of 
^Ikgatioilj evidence, or othefwife. 

The 8th. If any averment lies by th^ daugh- Averment. 
ler againft the fine, to fay that Jeniori puero in 
the fine means the eldeft child. And they all 
agreed that it di(f, beeaufe it was with [ove] 
the fi«e to add matter which fhould explain- 
the woirds of the fine one way or artother* 

The 9th^ When the Jury find, that if the Verdi«. 
entry of the daughter Was not laudfuly the de- 
fendant b guilty ; if the Judges ought io to 
adjudge him guilty if they find the entry not . 
lawful^ when in truth it appears to the Juftices, 
by the other matters founds that he cannot be 
guilty of the ejeBmenty becaiife the leafe was 
vdd d principQ. And in this they all agreed> 
that the Juftices are not bolind by the conclu- 
fion of the Jurors^ but may adjudge according 
to law I and they cited 34^^. where the jurors 
found a releafe of an infant, and concluded^ 
and fo no diffeifin. So 10 £. 4./?. 7* trejpafs 
againft the lord for diftraining, the Jury found 
for the plaintiJfF; but beeaufe the ftat. of M^r/- 
bridge is Mn idea puniatur dominusy &c. the 
Court adjudged for the defendant-. So 9 £. 4* 
fo. 3. a. Tilly and fVooddye'^ cafe. 

The loth point. If the verdift was imper^ 
fe£t in finding the daughter primbgenitam 
filidm\ and the (on fecund' genitum filium : and 
they all agreed that the verdidt was good, be- 
eaufe it is true, and the Court is to adjudge 
the Ijkw upon the truth* And fo, at length, 
judgment was given quod querens nihil capiat 
pef billam* 

Y 4 Wlere 

Where the Jury^ find matter againji 'laWj tU 
■ Juftices wilf not take notice of it^ but will 
adjudge according to iazv* 

Lee V. Lee, Upon an ejeSim^^t by George Lee v. Patrick 
Eiiz^Exch. Lee^ it was found by verdift, that Vincent Lte 
^i>ev^e"^*°' was fcifed of land in Denbighy in the county 

The devifor of Denbigh ; and having three fons, viz. Fran- 
hath three fons ^^^ Joffer, and George the now plaintiff; made 
devifcs to j. for his will, whefcby he devifed the land to Jajper 
yeaTsl^for cer- ^^^ twcnty-onc ycars, to the intent of peiform- 
tain purpofes, ing his Will, and paying his debts, and he alfo 
execmor"ifj. ^ade Jajpcr executor; and if Jajper died 
die within the within the term, he willed that George the now 
pSiff) tV plaintiff fhould have the like term as he had 
have the like given to JaJfeTy and that George fliould alfo 
to be executor, then be his executor. And he devifcd the Jand 
Devifeofthe over to Froncis in tail, remainder in tail to 

lAiidovertoF. c^ - • i • 'i .»^ i t t 

in tai], remain- JafpeTy remaindeF m tail to George i and died, 
der in tail to J. y^/ir,^ entcFfd, Francis died without iffue: 

remainder in \^'-'i i \ * n- t\ .ii y r ii-i 

tail to G J. jajper had ilTue Patrick the defendant, and died 
^thom'iirut^'* within the term j upon which George entered, 
J. had iffuc p. and' Patrick oufted him. And if by the defcent 
laddtldwSn oftheeftate of inheritance to 7^>r, being in 
the term, upon poffeffion of the term, the term was extinft, 
i^red^ fnd^p' ^hey found an ejeSfment. And it was argued 
oufied him. by Cowpcr and Piggot upon the point, to wit, 
de^iit of ^he* i^ the poflihility limited to George the plaintiff, 
cftateofinhe- was prejudiced by the extinffuifhment of the 

ritance to J. ' c^ r jiti 'j 

being in pof- term m Ja/pery and the books were gited. 
fcmonof the jf^nd the Court as^rced if a term fbr years be 

term, the teitn « ./« i i •/• i i« • i • t 

wasextinci? dcvifed to onc, and it he die within the term 

remainder to another, that by defcent of the 
inheritance to the firft, unity of pofleQion, his 
grant, or his forfeiture, the remainder, is de- 
feated. But Manwood faid, and all the Court 
agreed, that if lands be devifed for years to one, 


[ 329 ] 

and if he die within the term, that another 
fliall have the refidue of the term, that no ad: 
of the firft can prejudice the remainder in the 
fecond; but, perManivecdy it is otherwife if one 
who hath a term devife his term with fuch re- 
mainder. And the reafon of the divcrfity was, 
that if he devife the termy it is all one complete 
eftate, becaufe power is given to the firft dc- 
vifee, over all- the term for a certain time j but 
it is not fo where the land is devifed, for which 
reafon their opinion was againil the defendant, 
and with the plaintiff that he fhould recover : 
but the judgment was refpited. And it was 
moved, that the vcrdid: found that if the term 
wasextinguilhed in J offer y it was an ejeSment verdia, 
to Ge$rgey and it was clearly extinguiftied in 
Jafper for his time, by which the verdidt found 
for the defendant. And the Juftices faid, that 
where the jurors find matter againft law, the 
juftices will not take notice of it, but will ad- 
judge according to law. 

Of a /mall variance in a corporate title : of 
granting a leaje by a corporation for the pur- 
pofe of bringing an ejeSlment : alfo of demand^ 
ing rents* 

Ejeffione Firma. It was found by verdift, wiiiisv.jcr. 
that the Dean and Chapter of £;c^/(fr let the EHz'.Roi.^674. 
land to Harvy for years, rendering rent pay- Cro. euz. 167, 
able at their chapter- houfe in Exon^ and for 
default of payment, the leafe to be void. 
Harvy afligneth his eftate to the defendant, 
the rent was in arrear, and not paid, being de- 
manded at their chapter-houfe. The dean 
and chapter, by the name of the Dean and ^ 
Chapter of *S*/. Mary de Exon (whereas they variance. 


t 330 I 

Ver c incorporated by the name of SL Mar) in 
Exon) make an indenture of leafe for twenty- 
one years to the plaintiff of the land, and in 
dicir chapter-houfe put their feal to it, and 
make a letter of attorney to J, S. to enter and 
make delivery of this deed upon the lan4 
which he did acccn-dingly ,- and if this be a good 
kale> they praj the opinion of the Court* 
HarriSy Serjeant, prayed judgn^nt for the 

tftobjcaion. defendant, Firfty The leafe of the land is 

void by tnifnomer of the corporation, Jed non 
allocatur I for it is no material variance, asdib 

td objcaioii. it ha th been ruled . The fecond caufey thai tb« 

leafe was not good, becaufe die dean slid chap- 
ter let it in their chapter-houfe, by fetting 
their feal to it ; which being a perfe&ing thd 
deed of the corporation, there can be no other 
delivery : then the firft leffee continuing in 
poffeflion, and thry out of poffefTion, the leafe 
was void,, and the delivery' after by the attor- 
ney, it having a former delivery, is void ; Jed 
non allocatur : for there is no other means for 
a corporation to make a leafe but this. And 
Gawcfy laid it is plain, that it is not the leafe 
or deed of the coj-poration until deliveryj as o( 

jdobjeaion. another perfon. Thirdly, The firft leafs 

ceafcth not till entry, and fo cannot make a 
new leafe* IVray, the firft leafe doth clearly 
Gcafe without entry, Gai.vdy doubted. Fourth- 

4th Ohjcaioii. ^», The leafe is not good, for the attorney hath 

not executed his warrant according to his au- 
thority i for it was^ that he Ihould enter and 
claim it to the ufe of the corporation, and then 
deliver the leafe \ and the Jury found, that he 
delivered it upon the landj but found not that 
be had entered and claimed, i^c. Jed mn alio- 
uUur : for in a fpecial verdift, the circumltan- 
c^s of eveiy thing need not fo ftridtly be fouadi 
8 as 

t 331 1 

&s ftated in a plea, £s?r. and it being found, thaf 
by virtue of the warrant he delivered it upon 
the land, it fliall be intended he purfued it duly. 
Fifthly, It is found that they demanded the 5th Obje^Uoiu 
rent at the chapter-houlej where the demand 
Ihould be Upon the land. Sed non allocatur \ 
for the demand at the place where it is pay- 
able is fuflicient, and the plaintiff had judg- 

Of the difference between pleadings and /fecial 


In ejeSlmeni for land in Devon, a fpecial ver- Hore & Di3c# 
di6t was found to this efFeft : that % P. being h. 12. car. 2, 

C P Entr T 

feifed of land in fee, by indenture between him i65g,Rot.i8j4, 
and T. his foil of the one part, and two ftran- J ^«^ *5- ^ . 
gcrs on the other part, in connderation or the n» 
natural love and affeftion which he had for covenant, nor 

^.--.- ^- , ♦•/••/v*i°T deciaratum^ 

y . his fon, ^Ci gave, granted, and infeOired where it wa* 
the two ftrangers with the faid land, to the ufe j^Jhewj^e''^ 
of himfcif for life, remainder to his fon T. and r^fcd. 
his heirs males of his body, with remainders 
over. And covenanted in the faid deed with 
the two ftrangers, that they fhould enjoy the 
afbrefaid land to the ufes before fpecified, and 
this exonerated y freed, Sscc. from other incum- 
hrances. And the Jury found that this deed 
was Jealed and delivered, but that it was not 
executed by livery nor by attornment. J. P!. 
died, and afterwards 9". died. And if his iflua 
was tenant in tail by force of this ufe, or feifed 
of the antient fee, was the doubt ; and it was z vent. 51^^ 
refolved per tot am Curiam, that the iffue was 
feifed of the antient fee, and that no ufe was 
raifed by this deed, and fo judgment was given judgment* 
for the plaintiffs and in -this cafe it was re- 


t 33^ t 

ift RcfoL I ft. That no eftate paffed to the two ftran* 

gers, becaufe as the deed indented was never 
executed by livery^ &c. j nor any ufe raifed to 
them, inafmuch as there was not any confidera- 
tion for raifing it; and if it was raifed to them, 
it could never come again to P. and T, his foDj 
becaufe an ufe could not be raifed upon an 

^a Rcfoi. id. If an ufe fhould be raifed here, it ought 

to be by way of tranfmutatlon of the pofleflion, 
and this could not be fo here, inafmuch as the 
deed was not executed as hath been faid; and 
this is manifeft from the words of the deed, 
which are gue done^ grant fcf infeoffe. Vide 
for this Foxi^ cafe, 8 Co. 94. and Sir RoWi^ 
Hay ward's. 

jdRefoLMoa. 3d. The intent of the parties is the founda- 

ought to have three qualifications, it ought to 

Win. 60. be manifeft upon the face of the deed. 2. It 

ought to be according to the rules of law; 

3. This intention ought to be taken upon the 

14. 3^cr"^394* entire deed £s? res fs? modus habendi is to be 

pi. 19. Winch. conlTdered, and the cafe of Buckler and Si* 

788-Winch. a'^s! mondsy 21 Jac, was cited, where the father 

March. 5o- Sid- granted that his land fhould remain to his fon, 

25! v^di cafe"of and held that this would not raife an ufe, for 

^Imotrvrr' ^^^hough there is res^ yet there is not modus 

36U. ' ' habendi : fo is the cafe of Pitfield and Pieircs 

16 Car. in B. R. where the father granted his 
land to the ufe of his fon, but no livery was 
made, and held that no ufe arofe- Thefe re- 
folutions the Chief Juftice faid were founded 
upon the book 21 //. 7. x8. If I covenant 
that my fon (ball have my land, this is held 
good by reafon of the word covenant ^ i Co. 
Chudlcf% cafe, and this is cited in Seimoiifh 
cafe in Dyer^ 96, But Hoh. denied this j and 


4th RefoI« 

Poph. 45- 

5th RefoU 

[ 333 ] 

according to Hoi, was the opinion of the winch. 60, i* 
Chief Juftice at prefent, becaufe a confidera- ^^^^-^-y- 
tion was wanting. But- the Chief Juftice faid 7 00.40. i^ 
that if I will that my fon fhall have my land in 
conlideration of marriage, although the word 
covenant is wanting, yet the ufe is well raifed. . ,* It was refolved that an ufe at this day 
may not be raifed without deed, and to prove 
this vide Callard and Callqrd's cafe, i Rep. 75. 

a. 12 EL Dy. 296. b. And as to the cafe of Xm^'^'sufej' 
a devife of land to ufcs by will in writing 788. Poph.50. 
which is not a deed, it was faid that this was 
upon another reafon, Sc. rather upon the fta-» Mo. egg, 
tute 32 /7. 8. of wills, than upon the ftat, 27 ^cro"!' 4^^; 
H. 8. of ufes. 

5th. The covenant in this deed cannot 
raife an ufe, which is that J. P. covenants with 
the two ftrangers, that they (hall enjoy the 
land to the ules aforefaid, freed from all i«- 
cumbrances. i . Becaufe this is made to ftrangers. 
2. Becaufe this is made between the parties 
only, without mention of their heirs, and fo is 
intended to be perfonal. 3. Becaufe if the 
deed had been good, it would enure to another 
efFeft, viz. to free the land from incumbrances i 
and they faid that this very matter was in Si-^ 
monds and Buckler's cafe, mentioned before, and 
was never difputed. 

Nota^ That Bridgmariy C. J. took a diver- 
fity between covenants obligatory, and cove- 
nants declaratory, for covenants' declaratory 
ferve to limit and direft ufes, but covenants 
obligatory, as in the prefent cafe, for enjoying 
tKis freed from incumbraqces ftiall never be 
conllrued to raife an ufe, inafmuch as they' 
have another efFeft. In thi^ cafe exception.^ 
were taken to the fpecial verdift, \. Becaufe tarter, go, 
the declaration is of land in Spreton^ and the 


Wtndi. 60. 

Exceptions %o 


[ 334 I 

verdiSt in Sfriton, and in the declararion the 
land is named Begly^ whereas in tl}$i verdift '\\ 
is called Nortb-Beglty. %* Becaufe it is not 
found that the lands named ip the verdid 
which the deeds concern^ are th^ faaie laiids 
mentioned in the declaration. . 

^hRefou But it was refolved that the verdid wa3 

good> and there is a difference between plead- 
ing which is done per peritosy and a fpecial 
vcrdia, which is the faying of the L^ys gen\ 
.and therefore, i . Neither the mifprifion of a 
letter, nor the addition of a word, /hall hurt 
in a verdid, fp long as conftare pHefi that it is 
the fame place and the fame land. A9 to % 
Although they have not found that it is the 
fame land in the declaration mentioned, yet 
they have found the entry and ^elirimit accord- 
ing to the declaration, and there he declares of 
land in S^ that he was ejedted from land in S, 
And for authority in this cafe, vide the pkani- 

3 Rep. 46, ipg of Sir G, Brown's cafe, which is in Coke 3. 
where Anfhoiy is found the fon, but not the 
heir, yet good, and yet, without being heir the 
plaintiff had not title. And the lil^e excep- 
tion was taken by Barkley^ J. (as in our cale) 
in the cafe pf Cleeve and Vere^ reported, al- 

Sir W.Jones, though not at large, i Cro^ 45 8, /^. 4 Co* 65, 

fFhere the Jury find more than is in ijfue, and 

affefs damages y ^c. if it h error. 


Calvert v.Ar- Error to reverfe a judgment given in Ldn^ 
Tb.'r!'/ sf^' ^^fi^^y in an adion of trefpajs, where the plain- 
s'- tiff declared for an ajaulty battery, and woundr 
iei^,wounding. ing y the defendant pleaded, f«c* i!ri the force, 
«brtc\o ^^uiu ' ^^ S^'^^^^y ^^^ P^^ ^ ^^^ fJf^H^^ and battery y that 

t 33J 1 ^ 

he was removing a market-cmfi to a more astotheaHatfc 
i:onvenient place, andi the plaintiff interrupted j^ftiScn.'woi 
him, for which rcafon tnolliter manu^ iiy^^ty notice iak«D of \ 
^c. and iffuc joined. The Jury found the j^J^^fiSl^ 
defendant guilty de injuria Jua fropria^y and fo ^^^^"^^^^^^^ 
recited the entire declaration of the ajfaull^ the wouadiW 
i^attery:^ and "abounding (where the wounding ^^llg"^ *" '^"^ 
was not in iffue) and afleffed damages ^ccar " co. Em. 644, 
'fidn^ tranjgreffionis illius ad 20 1, and after fcr t^fj;^*'^ 
reral debates, it was held by the whole Court, 
except Jf^iki^fim, J. that it Ihould be intende4 
that they had given damages for eyery thing 
in the declaration^ Jcil. the wotinding, which 
was not in iffue, and therefore it is error, for 
the plaintiff might have 4emurrcd to the 

And it is fimilar to where the jury find more 
than the plaintiff declares for, and affefs da- vijc pod, 
mages for it, F. Hap. 187. and Co, Enir^ Hmksv.ciwfcj 


N. B. Where the jury affefs more da- 
mages than laid, plaintiff m^y enter a remits 
titar for the/urplus. If he does not, but takes 
judgment for the whole, it is error, and cannoc 
sifterwards \)t amendefl. 

Jn all Jpe^ial Firdi£fs the Judges will not de-, 
termine upon any matter of faS^ but that 
which the Jury have declared to be tru$y by 
their nwnJindiHg. 

Street v. L^, 

The cafe found by the fpecial verdift was wm.Robms, 
biieHy, that J. S. feifed of land in fee, made ^ Banc^i^sfd?86. 
jointure on liis wife, and afterwards acknow- Extent of landj 
.kdgcd.a ftatute, and having iffue a daughter Eo'Sed 
^thiflb age vtho was his heir, died. The attcrajoimurc, 

-11 and before ilfuc, 
• lana butexttatlo- 

. i: 336 3 

vied after ifTiie, 1^^ ^^^ extended upon the pofiefiion of die 

pending infan- feme. . . 

^kefoi. Refolved, ift. The extent is void as to the 

Extent void femc^ and cannot preiudice her title, which is 

as to the feme. •' ' in i» /-ii-r 

Lands cannot paramount the uatute, and it was laid that u 

^tS^kfthc ^^ f^^^ ^^^* y^^ ^^^ lands majf not be ex- 
iiandsofanin- tended whilil they are in the hands of an ia* 

^^^ fant. . N 

Revcrfion not adly . A rcverfion may not be extended. • 
'""j^tft in . 3- .In all fpecial verdifts the judges will not 
fpeciai verdias determine upon any matter ^ f^ but that 
Andmefadtsto ^^^^ ^^^ jury have declared to be true by 
Vide the next thcir own finding. And for this reafon.thc 
judges will not determine upon an uiquiiition 
or aliquid tale formed at large .in. a Special 
vjerdidl, for their finding of this is not an af- 
firmation that all that is in it is true, 

f0>ere the Jury find the tjfue^ arid mwe^ it is 
good for the iffue, and void for the rejidue. 

Hinksv.cicrk, Error upon a judgment injepkmn in Dur* 
B*R. EnV.H. ^^^y \vhpe the defendant avowed that Sunder- 
uit. Rot. 945. land is an ancient borough, confiding of tv^elve 
^ ^ftrmucr capital burgcfies called Freemen, ai^ of twelve 
pats his cattle in inferior burgelfes called StallingerSy and that 
and^thTcom' there is a cuftom there, that csLch freeman^ in- 
inoner diiirajns h^biUDg any meJDTuage thjcre, hath con^mon ia 

the. place . in which, isc. for certain cattle> to 
wit,. for two horfesy^w^ four cow^j and that 
t dioh Jiallinger inhabiting any m^ffuage there, 
had common for one cow ; and pecaufe die • 
' plaintiff being a ftrangcr, put his. cattk there . 
to the prejudice of his common, the defeitfjao* 
avows thQ taking. .. The plainttfi* traverfes. (he ; 
cuftom. The Jury find, that the, capital i^ur* 
gti^j/Sn th^ fremen have had xromiixmfoc.twii • .. 
horfes, cr four cows ; and that the fiallingcrs 

£ 337 ] 

have had common for one cow. But farther 
they find, that the wife of each freeman or 
ftallinger inhabitant, hath the fame common 
after the death of her hufband. And that the 
copyholders, burgeffes, and ftallingers have 
common alfo for vaches, vitulisy bobusy fpado- 
nibuSi iuvencisy et omnibus ad quantitat* et loco 
tt vicey jinglice their flints, ut frsfenf limitat\ 
etjifufer tota materia^ &?r. for the plaintiff, if 
not, for the defendant j and upon this verdift, 
judgment was gi^en for the avowant. And 
upon this two errors were afligned, i. That 
the common is other and variant from that 
which is pleaded, fs. for Jheepy calves ^ heifers^ 
iSc. 2. The cuftom for inhabitants to have 
common is bad, and exaftly the fame with 
Gateward'% cafe, 6 Co. To which it was an- 
fwered and rcfolved, i. The Jury had found 
the cuftom cxprefsly as to the firft, and all 
that they had found over is void, as the cafe 
in Dyer, in ajfumpjit the jury found that the 
defendant undertook modo et forma Ji J. S. faid 
true, this is good, and the et Jiy &?r. is fur- 
plufage and void, and 3 Cro. 405. Gray v. 
Fletcher y et ibid 546. Lovelace v. Reynolds are 
in point, a. The cuftom here is not for in- 
habitants, but for freemen and ftallingers who 
are members of the corporation inhabiting, 
and the inhabiting in this cafe is merely re^ 
firiffivei fcil. that they ftiall not have com- 
mon, unlefs thty inhabit. 3. The cuftom laid Each mem- 
for each member is good, as well as where it is ^Hb^fn right of 
laid in the corporation, to have for them, and the corporation, 
each member, as it was in the cafe of Derby 
in Stiible and Mills's cafe. And of fuch opi- 
nion was the Court, and affirmed the judgment* 
Holtj Jfmior, for the plaintifFj Levinz for the 
defendant in error. Vide ante. 
Vol. 111% Z Ancttt 

[ 33^ 1 


Karaink v. 
Farwell, M. 
17 19. Bunbury, 

A6tion for 
a feifure with 
out provable 

ji new trial granted (tfter afpecial verdiBfiffnd 

by counjel on both fides. 

Upon an aftion brought againft an ofBcer 
for a feifure abfque prebabili caufa^ there was 
a fpecial verdift figned by the t^ounfel on both 
fides ; but the Attorney-General, notwithftand- 
ing, moved for a new trials and obtained it : 
although it was faid by the counfel on the other 
fide, that there never was any inftancc that a 
new trial was granted after a fpecial vctdift 
which is figned by counfcL 

The King V. 
Francis, 5c al*. 
8 G. 2. Annaly. 
713. zStra. 1015* 
Com. Rep- 478. 
pi. 210. See 
Foil. Cr. Law, 

of finiUng, as to 

The finUiog. 

^e opinion of ibe Court as to finding f r w/ 

finding of robbery. 

Lord Hardwicke. — Many obje<3ions were 
raade to (hew that this fecial vecdi<5t is not a 
charge of robbery ; but they have been all 
over-ruled but one, which was fingly to the 
uncertainty of the finding, vpz. That it does 
Aot certainly appear from thefe words in the 
ipecial verdia, *^ That Coxe ofiering to cake 
the money up again, the fi% peribns then 
and there being prefent, threatened him if 
he took it up to Icnock out his brains, 
whereby Coxe then: and there was put in 
fear, and then and there defifted, ^aad the 
fix perfbns then and there in)nnediate)y took 
it up, and got on horfeback and rode off 
with it ; that the money was taken upin 
Coxe'% prefence," fo that the Court a(^u<^^ 
it to be a taking from the perfon: )^>an this 
point it has been argued before all the Judges^, 
and my brothers Carter^ Comyns^ and Tbon^p^ 
doubt^ but all the rcfi: are of opinioa that 
2 . . this 








I 339 ^ 

this IS not a fuSicient finding to make it rofsh* 

Robbery is a felonious taking from the per^ 
foH, putting him in fear, 3 Jf(fi. 68. and there- 
fore all the indi(^ment3 lay a taking a p^rfcnd^ 
but then the law conftrues a taking in a man'^ 
prcfence to be taking from the perlbn; Ip 
Stamford ay. a. and when the taking fhall bq 
faid to commence is matter of evidence to th? 

Therefore I would premife that we had no 
doubt as to the definition of robbery, or of 
what would be evidence thereof to a juryi 
but all our doubt was as to the uncertainty of 
this fpccial verdift. 

The ftriking of the hand her? found, does 
of itfelf exclude all force, for it is that he 
gcndy ftruck, and yet if that had been found 
to have been done animo furandi^ it woul4 
have made the cafe plain, but for aught ap- 
pear$ now, it might be but a fimple afiault, oV 
an accidental blow, and without intention to 
make the money falL 

It is found that Cox^ was put in fear, and 
then and there defifted to take up the money 1 
but it does not appear how he defift^, and it 
might be by going away, ^c. 

The jurors alfo.i&rd that the fix perfon$ 
thea and there immediately took vip the mo- 
ney, and got on horfeback and rode ofl^ and 
upon thefe words our great doubt was j now 
there is no colour to fay that the words tbe» 
mither^. can aid any uncertainty therein, for 
they only relate tp the venuey and cannot ti^ 
up the faft ; fo then the only material word re- As to the fi^ 

**. ., ,. 7'. 7 1* c Dincation of the 

maming, x% the word mn^atamj, and nine or wordimmedH 
die Judges agree that this is of fo uncertain a ^teiy. 

Z 2 flgnifi- 

t 340 ] 

fignification, that it cannot warrant the Court 
upon this finding, to fay that the taking was in 
Coxe\ prefencc. 

It was faid that that word excludes all inter- 
mediate time and afbions, but it will af^ar 
that it has not neceflarily fo ftrift a figoi- 
fication: Stevens in his ^tjaurus* expounds 
the word immediatey by cito tt celeriteri fo 
Coofer'% DiSfionary renders in Englijb ittune- 
diately, forthwith, by and. by; tmd.MinJhfv; 
gives it as various meaningSy.'and'rffersitto 
the word prefcntly: nor iaiits..figni6carion 
more confined in legal prooeodings, as appears 
even from 2 Lev. 77. in the cafe of Piiifs and 
Mitfordy which was cited to the contrary, 
which fay thus, though the word immediately, 
in ftriftnefs, excludes all mefne time, yet to 
make good the deeds and intents of parties it 
fhall be conftrued fuch convenient time as is 
reafonably requifite for doing the. thing : this 
word has alfo been frequently ufed in Ipecial 
verdifts of murder, as in On^\ cafe, 5m. 
x^^Geo. I. iStra.'-]66. 2R. Rtrym. i485.jBtfr* 
inardJ B. J?. 17. it is ufed four or five times 
with different applications ; and in the fpecia! 
verdifl iii MawMdge's cafe, KeL too. :it is 
twice ufed in different fenfes and explained fo 
by other words, as in o^t place it is faid im* 
mediately thereupon without intcrmiOion drew 
his fword; and in another place, immediately, 
in a little fpace of time between Mawiridges 
drawing his fword, and the givii^ the mortal 
wound, &c. Alfo theftaf..o€ ly- EUz.x'M^- 
/. 1 1 . enafts that no perlbn robbed Ihall hvft 
an aftion againft the hundred, :exccpt he (hall, 
with as much convenient fpced^as may be, 
give notice of the robbery to fcmc^.tSie in- 

i 341 ] 

Habitants of feme town near the place ; and in 
all declarations on that ftatute^ the averment of 
fuch notice is thus, quod immediate poft felo-^ 
mam the plaintiff gave notice, S^c. and fo are 
all the precedents in Coke's Entries, tit. Hue and 
Cry throughout, which fhews that, the word 
immediate there nnieans only with convenient 
fpeed, and convenient fpeed u(ed has accord- 
ingly been always allowed to be evidence of 
that avernicnt, and likewife writs of habeas 
corpus returnable immediate, mean only with 
as much convenient fpeed as may be. 

And if the meaning of this word is thus 
unfettkrd, the Court cannot fay it abfolutely 
excludes all mefne a&s : the circumftances here 
found were certainly probable evidence to 
fhe Jury to have found that the taking wa? in 
Coxe*^ prefcncc ; but if the Jury have not 
found that as a fa6t, we can nuke no intend- 
ment, but as my Lord Holt fays, in the cafe of 
the King and Flummery Key ling iii, as the 
Jury have not found that matter, we are (jon- 
fined to what they have found pofitively, and 
are not to judge the law upon evidence of a 
fadt, but upon the fad as it is found. And 
my Lord Raymond faid to the fame purpolfe in « R. Raym. 
the cafe of the King and Huggins"", that it JI-L'Vuzglb; 
would be of moft dangerous confequence to ^87. Barnard. 
kave inferences to ,be made in cafe of life '•VidJ'ante, 
by the Judges, where the fad was not found. ^^- ('90 

Therefore the prifoners muft be acquitted 
of this indiftment. 

But we are all of opinion that the prifoners 
muft not be difcharged out of cuftody, becaufe 
here is plain charge of grand larceny upon 
themi by this vcrdift ; but however we cannot 
give judgment of grand larceny againft the 
prKbners upon this indiftment i for though on 

Z 3 indiftment 


[ J4a ] 

•indiftmcnt for burglary and felony, tht jury 
may acquit the party of burglary and convift 
him of felony j or if a perfon is indifted of 
felony fo circumftanced as to exclude him 
from the benefit of clergy, the jury may acquit 
of felony to fuch a value as would forfeit Aat 
benefit, and only find him guilty of felony 
within benefit of the clergy, and judgment 
may be given accordingly thereuJ>oti ; yet 
here the indiftment is for robbery a per/ona, 
and the only doubt referred to the Court by 
the Jury is, whether he is guilty of that felony 
and rftbbery, upon the fefts ftated by them ; 
. but as I fay here is a plain ciharge of grand 
larceny upon this verdift, the prifoners can- 
not be difchargcd, but muft be remanded, 
and then they may be removed by hateas cor- 
JtHS to be tried for this grand larceny ; and this 
differs from the cafe of the King and Bur- 
ridge, 3 Wil R6p. 439- 2 SeJ. CaJ. 264.^/. 173. 
laft term^ bccaufe here is a felony appears 
' ^plainly upon the verdift, but thefe no felony 

Where an executor Jball cover affets hy pleading 
the penalty of a bond to be due, and where U 
Jhall only cover affets to the amount of tbejum 
in the conditions: the method of pleading tbefi 

The Baiik of PlaintiSs declare upon fcveral ktdeb. iffttfftp' 
KMorSc"; A^y of feveral fums lent, and had ^nd received 
widow, cxc- to the plaintiff's ufe, by thfe telfartor, to the 
l^tyMon\^. f^<^^^t of ^.31,432. loj. and then there 
dec«ifed, H. 9 is a count in the declaration {upoh which the 
ai'9** ^stra/' verdift was found) for £. 32,000. had and re- 

hKilf^!zKX ^^^^^ *^ ^^^ ^^^ ^^ ^^^ plaintiffe iki dainpni of 
•* 3** * the 

t 343 1 

the plaintiffs £. 3^^000. Defendant pleads a i^s- pi- '?9- 
jud^ent recovered, and feveral bonds and JjKsl/Anu"* 
articles with penalties unfatisfied, and parti- i'®- 
cularly a bond entered into by teftator to Sir 
William Morrw, Bart, dated 6th of Mar^b 
1727, in the penalty of £,. 5 j,ooo. conditioned 
for payment of £. 26,000, in manner thercia 
mentioned^ viz. 

^. 5000. and interdl for the whole on the 
24th of 7^^^ 17^8. 

£. 5000. and intereft for £,. 16,500. on the 
24th of June 1729. 

^. 5C00. and intereft for ^. 11,500. on the 
24th oijune 1730. 

^. 5000. and intereft for {^. 6,500. on the 
24thof Jw»tf 173 1 • 

£. 5000. and intereft for jf. 1,500. on the 
24th oijune 1732. 

And X- Ij5oo« *nd intereft on the a4th of 
lune 1733. 

And if default fbould be made in paynicn? 
of any or cither of the faid fums, or any parf 
thereof at the times therein limited, that then 
the faid bond ihould be in full force ; and ih^ 
avers that the two laft payments of ^f • 5,000, 
and of jC- Ij500. and intereft have not been 
made, and that the bond remains in full effeft, 
and not cancelled or fatisfied; and another 
bond entered into by the teftator to Thomas 
Wiljm^ dated 27 th oijuly^ in the 4 G. 2. in 
the penalty of £,. ^fioo. conditioned for pay- 
ment of iC, 2,500. upon the 27 th of July ^ . 
1731, which Ihe avers is ftill unpaid. And 
another bond entered into by • the teftator to 
Duncan Campielly dated 25th of Manby 4 G. 2. 
in the penalty of .^C- 3>ooo- conditioned for 
paymqnt of ^, 1,500. on the ift oi May then 
next| which (he likewifc avers is ftill unpaid j 

Z 4 and 

t 34* 1 

filter'- frkfu£: "MimfifeM ttrnfure^^wiHrik fm^^ 
mamirtis ^uidSi^ihajcin^ juhthiiftrarid* ipf^fi]^ 

quam bona & cataW ad valenc' miiie lUxtiqwd^i 
jiiTtdem CMtbarma^iiOM baitt::nitidix\9xhi^io9i 
*iniy frad\ iffir^ gukdrnai etji$m(tg^^nic itoi- 

quam poftea babuit^aliqua -hnnxJfiu^f'abiHlqUie 
-^uer' pr^efai' Humfredi Umfewe tnaMii:.Ju}e in 
^iwtibus ipfiAs Caiharina admviifi^^d\pt^^'' 
rfuam bona &?' cstalP pr^d^ \- adifualenc* rpnA^ 
^fmUe Ubr' qua.Jsiutim' ^- \fatisffS^nyjeparal' 

'^dmar\p'ied' pfepjkptaraV Jcripf ddrgaSor^ ariud^ 

los ^judic' pii/d'idebif (j^ }fski6iV>tm€rftH ab- 
*iigaf exiftunt. * Ei bc£ partff eft verifitafedindi 

ptf judic' ft prad'- gubemat' i^ fticietau aQkn^ 
Juam prad' inde verjus earn babtr^/ek Haanuttfrnt 

xkbecMy 6?r." Pfaintiff -s rcpkyy^i^tisdpr^ed' 
vCatbarina die exhibiiien\iill^e.priMl fpforgub^- 
imt^ i^ focietaf babuit divers' iom'M eatair 

^qu^r fair prdd" Humfredi Wmpum nmria ftue in 

mdnibas/uir adnmiftrtmd' uitrs b'tma^ &■ ccHair 
iftifft^ied adzfiUisfaciend* feparaVxidputr'' fr^ 

per feparaV fcript* obligator' arUeql* .iS^judic' 
':prad' dibit^ iS foluhiV unie fr^i Qa^rina 

ydatnpit' fua fprad' eifdem guiemaf ^ fomtuf 
i^/0isfeeije potaiti viz. apud London^^^prad*' in 

furetb' & warda pr^edJ' And fflue i$ joined 

thereupon i and at the trial the,plaii|tiffs).d- 

lowcd the defdndeftt to cover ij^flEoti fa* the 
rpenaldes of.«aUathe bonds and^ancicleaeicept 

thofe particularly mentioned above, and on 
c t which only* difisplamiafis. inade objedlibn i and 

the Jury found a fpecial verdift to this effedt. 

*' : That thtrte&awn wss at,lws dtath indfcbtcd 
. *tb?rthe plaihti|Mi^ ^^ 28^99^-' & j. i iL for 
'inaney hwi*^a&dIrcQaBc5lGWxhd^bfe;: /. :/\ 
*:'-^.i That 

I J4S ] 

That* the money due on Sir VWiam JIdhr- 
Hti^s bond, Wiljm and CamfiM% bonds, for 
the Anns in the oondicions md^ intereft to. 
getber with the penalties of aii the other fpecih 
aikies and jiidgments pieadedi amounts .to 

* That at die time of exhibiting die pkindflna 
\yA\y the defendant had affecs in her hands to the 
rvalue of ^. 4i|f 52. a J. 5^. 

That there vras juftly due and owing on Sir 
JViUiam MofrUe'% bonds at the teftator's deadly 
for the fum in the condition and interefb 
£. 6>830« for principal and interefl: on fVilfinf^ 
bond £. a, 5 20. and for princ^i and intereft 
on Camfbeir% bond ^. 1,540. 

That at the time of exhibiting the bill, the 
defendant had not aflets to difcharge the pe- 
nalties of faid three bonds. 
. That dedufting the abore ^. 22,182. 10 x. 
out of the aflets found as above, there remains 
in her hands at the dme of exhibiting the bill 
£. 18,969. lis. sd. liable to the demand of 
the plaintiffs, if the penalties of the faid three 
bonds ought not in this cafe to be allowed u 
charges upon the afiets. 

But whether they ought to be (b or not, die 
Jury pray advice of the Court ; and if they are 
not, they find for the plaintiffs' damages 
j^. !28,993«.8x. id. cofb 40 x. aflets to theva* 
lueofjf. 18,969. I2J. 5^. 

If otherwife they find for the defendant. 

They find every thing clfe necefiaiy to bring 
the merits in qudition. 

N^ B. The declaration was of Hilaty term 

This rerdift was feveral times argued at bar, 
in Eqfter term laft, by Strange for plaintifis, 
and BootU for defendant i in Irimty tenn. by 


t 346 ] 

St^iant S^ ' fi^r; plaintiffs^ and Seijaant 
ChappU for defendant ; and in MtcbaHmas 
by Marftf (or plaintiffi^ and D^nnifim for de- 

' Sinmge argaod^ That the .defendant upon 
this plea and replication can cover no more aA 
iets oh the three bonds than for the finns due 
upon the conditions ; that ihe ought to have 
pleaded thefe bonds as fingle bonds, iirithout 
fettiiig forth the condition> and that is the me- 
thod which chiefly occurs in the. reports, aod 
then plaintiffs n\uft have over-reached the pe- 
nalties, becaufe the Court could not have gone 
out of the recoid to confider them as penalties 
only ; but as that method uied to drive the 
creditor into a court of equity to difcover what 
the real debt was therefore the courts of law 
encouraged another method of pleading, cither 
fof the defendant to £bt forth the condition in 
the plea, as the deferniant here has done, or 
clfe for the plaintiff to reply the penalties or 
judgments were kept on ioot per fraudem, and 
upon fuch an ifTue they allowed flight evidence 
to ihew a fraud> fb that if one judgment was 
falfified, all the judgments were taken to be 
&}fiiied likewife, Carthew, 1 96, 431. That the 
courts recommended this way of pleading, he 
cites 1 Vent. 354, and Salk. 312; Parker and 
A^li. That though in the plea fhe does not 
fay no more is due than the fums in the condi- 
tions, yet it mtift be taken to be fb, becaufe 
amUguum flacitmm accipiendum efi centra fro- 
ferentem. Co. Lit. 303. b* that the replication 
here is good, becaufe in all replication^ ex- 
cept nul award fatty it is fufficient to meet the 
plea and falfify the excuies made therein, and 
that replication cf.nul award depends on a 
particular rc3fon4.«$*i7/i;«.i38« Mejceditb and M- 

kn I 

t 347 1 

ten ; nbw this rf plication has done fo. That 
th^ pehalty is not to be abfoluteiy taken as the 
debt, he titcs Tulfy and Sparkes^ 2 Stra. 8168. 
Pafcb. 3 G. 2. where the queftion was, what 
Was the Cleaning of the word debts in the 
bankruptcy a6t) and the Court held it meant 
a demandatble and juftly due debt. 

BmU argued, that this cafe muft be taken 
according to the ftrift rules of law, and as it 
ftands upon the pleadings as they are, and not 
as they might have been pleaded, l^w tjie if- 
lue ftands thus, fhe pleads that (he has fully ad- 
miniftered, except qua ad Jatisfaciend' denar* 
fr^d ferjcripf ohl\ Gfr. Jolubir oner at' ex- 
i^unt: and the replication is, that ihtbabuit 
ultra hona/ufficienf ad Jatisfaciend' denar" pr^d* 
ferjcrtpf obl\ ^c. So that the iffue is, whe- 
ther fhe had affets ultra the fums in the bonds^ 
iSc. and that cannot be referred by the rules 
of law to any fums but the penalty, for every 
bond is a debt immediately. Stevens and 
Loftingy Michaelmas 7 Geo. 2. and the expe- 
diency of pleading will not aher the law. 
That the penalties are pleadable whether the 
conditions be due or not. i RcU> Abr. 925. 
Lit. 1. pi. 2. (^ 4. and 3 Lev. 368. ^botnpjou 
and Hunt. The plea fays that the bond is 
not fatisfied, which, as the replication does not 
deny, confeqtjently confefles according to all 
the rules of pleading. 

He cites 3 Lev. 368* likewife to Ihew that 
the penalty is a prote6tion for fo much of the 
affets, unlefs it appears to be kept on foot fer 
fraudem. That the cafe of Vent. 354. there 
lis this difference from the f)relent cafe, viz. 
that there the executor pleaded the teflator in- 
debted to himfelf, and therefore he was bound 
to take only what wa$ juftly due, but where 


[ 348 ] 

th<E?x8ebt is to a ftfahgcr hp may- always claim 
the whole, and there is only relkf in. equity. 
He? cites Oo. Cha. 36a. GcldpHith2^Sydmry 
that a bond for payment of mooey lA pleadaWc 
as a debt in prtefenti even before' tiie day of 
payment, though it be other wife of a bond for 
performance of covenants. 
» Lord Hardwii^k€.''--'l do not^nkthequef- 
tlon now is, whether in ftriftnefs the penalty k 
the debt, but what muft be adjudged to be 
the debt 'upon the pleadings, as they are ia 
this cafe. The iffue is, whether flie has affets 
ulfra what will fatisfy the fums aforefaid pay- 
able by the bonds,' fcfr. fo that th^ queftion is, 
whether the penalties of the bonds, ^or the fams 
in the condition, are meant by the words hmt 
aforefaid. Thd modern way of pleading is for 
the defendant* in the plea to fet out* the bonds 
with the conditions ; but fure that feems to be 
aii argument againft the defendant in the prt- 
fent cafe J for the reafon of introducing that 
method was, that the truth might? appear. I 
think it would be moft unnatural, 'Jwhen flie 
herfelf has pleaded that fo nnuch is due, for 
us to lay any weight on her not having faid, 
and no more, uhlefs it: ^ppegrs from the whotei 
that we are to take tfie penalty to be the debt; 
and if we are to take that to be t^e debt in 
this cafe, there is no ufe in pleading fairly, and 
Ihe might as well have pleaded as thtjy iifdd to 
dD5> and then the plaintiff muft have craved 
cyer and replied per fraudem ; therefore the 
queftion is, whether this replication fhofi^ 
have Ihcwn that the obligees were wttlingw 
take the fums iii the condition ;' but ncJ^Jafe 
jias beeti ihe w^n wh^e the plea fets <>ut'the ^Aft- 
dition, diat it Ihould fay^ that >and no t¥iorei& 
due^ or that the plaiAtlfF fhould fbpty fpeelally, 


[ 3*9 1 

and I fhould be glad to fee a eafe of that Ibrt} 
as CO Page and Denton, i Ven^* 354. as Bootle, 
obferves^ it is not an authority in this cafe> for 
there it was a plea of retainer^ and when the. 
executor had as much in his hands as was fuf-, 
ficient for the juft debt, it was confidered as a^ 
payment of the bond, but ftill it fhews that ia 
thefe kinds of pleading the Court is not in all 
cafes bound to take the penalty to be the debt- 
in law. It is pretty ftrong for the court, 
when the defendant has claimed what is to 
fatisfy fo much as due, to prefume that more 
is due. And it is confiderable that fince the 
cafe of ^hom^fon and Hunty in Lev. the Court, 
by a general law, viz. the ftatute for amend- 
ment of the law, is bound to take notice that 
the fum in the condition may be the debt j z^ 
to the want of an averment in the replication^ 
that the obligees were willing to accept a left 
fum, do but confider what is the evidence rc-t 
quired of fuch willingnefs, only to (hew that- id 
is a bond with a condition for a lefs fum, 

Serjeant Eyre in his argument, cites no heur 
cafes. . , , . ' 

Serjeant Chaffle, — That the penalty is ?thc 
legal debt, for a releafe of aftions difchai^s 
the penalty, though made before the condition 
due. Co. Lit. 291. 8 Rep. 153. a. i Broion^ 
towy 6a. That the fums in the condition. arc 
deemed parcel of the penalty, i Roll. Rep^ 
i^of. Robinjon and Francis. That there is dif- 
ference between obligation with a condition 
annexed, and . obligation with a defeazanqe 
made afterwards^ Cro. Eliz. y^g. i Injt* 207; 
That if feveral penalties are pleaded, and dSStxs 
only enough for one, the plaintiff muft in his 
replication a.ver aflets mqra than fufficicnt tD 
fatisfy all, l.Roll Abr, ^2%/ fL 5. That the 


f 350 ) 

u& of the defendant's fair pleading in tHi& cafe 
h, that plaintiffs in fa6l take judgment of afiecs 
infuturo ; that the covin is the matter in iffue 
on replication perfraudemy THrner's cafe and 
Co, 132* and Sir fVilliam Jones^ 91. where 
fee the manner of fuch pleading per fraudm j 
he cites for the fame i Ijitw. 445. Bell and 

Serjeant Eyre in reply cites 3 Lev. 57, 
Lenum v. Fooke, replication would be gpocj if 
avers alTets ultra the money in the cotiditiQn* 

He cites Cartbew, 208 • Page and ff^atiSi 
that the concluding the plea with a general 
plene adminifiravip will waive the fpecialti^^ 
pleaded before; therefore in this cafe, if the 
words fums due and payable^ relate not to the 
fums mentioned in the condition, the bond tQ 
Sir William Morrice is waived, fince the pe- 
nalty is not due 'till a breach of the condition, 
and there was no breach of that condition at 
the time of the plea. 

Lord Hardwi^ke. — This is a new poins 
which my brother Eyre has ftarted, ^nd as to 
that of Sir fVilliam Morrice keeping it up 
per fraudeniy how could the plaintiffs prove 

Marjh cites Cro. Cba. 490, that an exe- 
cutor may releafe a bond upon receipt of the 
fum in the condition, and it (hall not be a 4(^ 
vajiavit in him. 

Dennifon cited further Cro. Jae. 8. 2S* J^^» 
and 3 Lev. 311. Knighton and Moreton. 

And now this term, without any further ar- 
gument, the opinion of the Court wa$ delivered 
by Lord Hirdwcke, as follows : 

Vpon this fpccial verdidt two points have 
been made j Firft, Whether upon the plead- 
ings in this record^ and (;he m^tt^r found by 



f 351 ) 

the Vtrdidt, the penalties of the bonds Whereof 
chc ciays of payment are paft, or only the funn$ 
mentioned in the conditiQns> ought in. a couit 
of common law^ to be coniiderod as li^ns ob 
the affcts.. Secondly, If in thefc reipe6^$^ there 
be any difference between thofe bonds whereof 
the days of payment are pait^ and thp bond C9 
Sir fFilliam Mofrieey the days of two payments 
not b^ing come at the tinne of the plea i and 
then another queftion will remain, what judg^ 
ment muft be given upon the matter as :herc 
found. As to the firfl point, nothing is mor^ 
certain than that if there be a bond wit)i a pe- 
nalcy, that when the } day appointed for. pay- 
ment by the c^dicion is paft, that the penalty 
h the debt at law, m^ relief can be only had ia 
a court of equity ; and therefore the defendant 
might have pleaded fo as to have hfui the full 
penalties allowed her a& charged upon the af- 
fcts J but flie having in her plea fet forth the 
real fums due, and havii^g, by fpecial wtr-- 
mem, tied herfelf up to them, it has been in- 
lifted on by plaintitPs counfel, that no more 
ought to be allowed her to cover a/Tets than 
thofe lefs fums, which Ihe has ihewn were pay- 
able by the conditions -, but we are all of opi- 
Aion> ^ that is my brothers Page and Probyn^ * Mr. juftce 
afid myfelf, that the penalties of thofe bonds opinfonf tebc- 
fri%ereof the days of payment are pad:, ought ing a relation of 
to beconfidered as the debts due at law, fo as ^^^^«^«^"'- 
to' cover afiets : the ancient method was only 
to plead the penalty, and to leave it to the 
plaintiff* to ihew that: the obligee was willing 
to accept the debt -due in confcieacf , and that 
the penalty was only kept on foot fer fraudem.y 
aad this was ^ conftantly the metbodi that 
there is not any precedent either in the ancient 
w^ noodePQ bodu of. $Qcries> of a plea ofplpte 


C 35^ 1 

adminijiravity where the Turns of the conditions 
of the bonds pleaded afe fet out ; and when 
this method was firft departed from I do not 
find> but I believe it was when the Judges bc^ 
gan to complain of the difficulties plaintifis 
were put to by fuch a difclofing of only part 
of the cafe ; the firft inftance whereof is in the 
cafe of Page and Denim, t Vent. 354. where 
the court faid^ that if men would plead their 
cafe {pecially, it would fave maqy a fuit in 
Chancery ; the other is in the cafe of Parker 
ZTidAffieldj I Salk. 312. where the court faid 
that the bdt way for an adminiftrator to pleads 
is to plead truly and honeftly ; and though 
there is a judgment for a penalty, he ought to 
plead the judgment, and fliew how much is 
due; from which fayings it was inferred by 
the plaintiflfs counfel in this cafe, that when 
the defendant ihews what is due, no more af- 
fets fhall be covered tharl to the amount of 
what is fo Ihewn, or elfe, faid they, what is the 
ufe of this new way of pleading ? But as no 
authority can be found to prove that the pe- 
nalty is not to be taken to be the debt, this 
obiter {zymg in the books (hall not fettle it; 
and yet notwithftanding this manner of plead- 
ing will remain to be of great ufe. Upon the 
old method nothing appears in the plea but 
the penalty, and the plaintiff is not thereby 
enabled to tell whether it be a fingle bond, or 
with a condition, and the defendant is not 
bound to make a profert of the bond pleaded, 
not being fuppofed to have the fame in his 
cuftody, much lels is the obligee in fuch bond 
bound to produce it j and if there were any 
coUufion between the obligee and the executor 
who pleads fuch bond, the plaintiff might per- 
haps be never able to cooic at the truth of the 


C 3S3 1 

fa6l> in order to make a proper replication, 
Mrhich would oblige, him to rcfort to a court of 
equity to difcover and make a proper cafe at 
law, whereas by fetting out the condition in 
the plea all thefe delays are avoided, for the 
plaintiff fees what is the real debt, and may, 
upon cnguiry, know whether the penalty is 
kept on foot per fraudem ; and this is fufficient 
to fatisfy the faying of the court in the cafe of 
Page and Denton, that fuch pleading will faye 
many fuits in Chancery ; for fo it will, and 
will enable the plaintiff to have the equity of 
his cafe even in a court of common law, but 
to require more might be perilous to an ho- 
neft executor, for the penalty is to fecure in- 
tereft, cods, and charges to the obligee as well 
as the fum mentioned in the condition ; and 
the executor of the obligor is likewife intitled 
to this out of the affets, and therefore it is 
impoffible to fettle and adjuft that at law, 
without confounding law and equity 5 and 
difputes may happen between the obligee and 
the executor, which may oblige the executor 
to apply to a court of equity, of which he muft 
pay cofts, as if he fliould apply to equity to 
oblige the obligee to take only his real debt ; 
or if he would take the benefit of the ftatute 
for amendment of the law, and pay the money 
really due into court, he cannot do that till an 
aftion is brought againft him, and then too 
he muft pay cofts ; and therefore if the matter 
were to be taken thus ftriftly upon the plea, 
the executpr might be left to pay fuch intereft 
and cofts out of his own pocket, though it 
would be no inconvenience to oblige the 
obligee, if he were plaintiff to take his real 
debt ; therefore it is better it fhould be open 
to equity in fuch cafes, than for us to blend 
Voi^.IIL A a the 

[ 354 ■] 

Ac rules of law and equity together- This is 
the fenfe in which that general expreffion 
which has been fo much relied on for plaintiffs 
Ihould be taken. There were cited for plain- 
tifFs Crc. Cha, .490, Knyvefton and .Latham^ 
but the cafe is really an authority againft them, 
for it was helcj th^t the penalty of the bond is 
the debt at law, and relief could be had only 
in a court of equity ; and that was confirmed, 
as the book fays, by the judges at the tibk in 
Serjeant's^Ipn J though it was held by two 
ju(%cs, that a releafe by an executor f>i full 
age, having received the principal and intereft 
which was due in equity, fhould be only affcts 
for the intereft and money received, and not 
be a devdftavit for the refidue ; and it was for 
this latter opinion only that the cafe was cited j 
but there is a great deal of differerice between 
charging an executor with a de!t)afiavit for not 
receiving a pefialty which a court of cqwity 
would not fuffer him to receive, and lettiog 
him have the advantage of a penalty t^ cover 
affets, as in this cafe. The caft of ta^ y. 
Dentotiy I Vent. 354. was likewHe citetf/of 
the plaintiff; and at firft fight, it feemed a 
ftrong cafe for him, but upon confidering it, ic 
is otherwife, for it is a plea of a retailier by ?Xi 
executor himfclf, and not of payment ^o a 
third perfon j fo that it would have been ab- 
furd to require a replication that the obligee 
was willing to accept a lefs fum, orth^ttbe 
executor kept the bond on foot fer frauim\ 
and this was the true ground of that cafe \ and 
the court took care to diftinguifli that cafe 
from the cafe of a forfeited bond ftanding out 
to a ftranger, fo that cafe is .'like the;'fafe of 
^kom^m and Hunt \ that cafe was a plea by 
W executor of judgments obtained againft him 


t 3SS 1 

iijpon feveral bonds rhad6 bf thfe ttft^tor, and 
i-eplicatiori thkt the obligations w^re witfi 
cbrtdition^ tb pay left fums, and that tfi€ de- 
fendant had aflets to pay the plaintifi^ ultfd 
what would f^tisFy the debts and jiidgfrifeitt id 
his plesr, and dti diemurrer to the reph'cation it 
was held good, becaufe the penalties ire the 
legal ahd due debts, and the pJScirttifF might 
haVe aided himfelf b^ pleading that the bonds 
wel-c kept on foot by fraud ^rid cdvin> and 
updn iflue of the fraud, thfe plaintiff niight 
give in evidencfe fuch mattef as would ftrve 
him to avoid the penalties, ind fo judgment 
was given for defendant: and that calfe of 
Thofh^on and Bunt is affirmed to' be lavfr in 
Bell and Bolton^ i Lutw. 450. to drftinguiih 
that cafe from this it was faid, that the feveral 
lefs fums were fet out in the replication in 
that Cafe, but that here they are Aewn by the 
defendant htrfelfin the plea, Ind fhat there* 
fore it muft be tiriderftood in this Cafe that fhe 
herfelf infirfs bh more being duej but that 
makes no dififfei^^n'ce, fof when in ThmjfoH and 
Hunt the defendant aV'erred in his rejoinder, 
that he had not Ultra to fatisfy the penalties, 
it was an admiffipn of the replication, ahd the 
fame as if thKS defendant had himfelf fet out 
the left fums ; another difference wa^ made 
from the differeht manner of pleading in this 
cafe, becaiife the' defendant in pleading the 
feveral bonds has a'dded that the fums in the 
conditions remain ftill due and unpaid, and 
then concludes her plea', that Ihe has not aflets 
ultra \\^h'it will ft'tisfy the feveral funis by the 
bondsi articles, atid judgments diie and pay- 
able, and therefore they would have it that 
the fums faid in the (^ohclufrOn to" be due arid 
payable ori th^ bands, mean* thi fums bfcfora 

A a 2 JO 

C 3S6 1 

to be due thereon, viz. the lefs fums ; but in 
anfwer to that, the words in the conclufion 
of the plea are not the fame as in the feveral 
averments j in the averments the words are, 
iiue, and in the conclufion the words are, iluc 
andpayabki which in law is the penalty ; but 
there is a more fubftantial anfwer to be given 
to that, for the defendant has averred that the 
penal fums of the articles remain due and un- 
paid as well as the fums of the bonds ; and 
as to the articles at leaft the words muft of 
neceflity mean the penalties, and it would 
make ft range confufion in the fame plea to 
conftrge the fame words to. refer fometimes 
to penalties and fometiqnes to the lefs fums, 
fometimes to the debts at law, and fometimes 
to the debts in equity; therefore, if thofe words 
are to be applied to the penalties in the arti- 
cles, they ought likewife to be applied to the 
penalties of the bonds; it was likewife ob- 
leded that there is no precedent of a rcplica- 
tipn per fraudem^ where the defendant's plea 
fe(s forth the particular fums due by the con- 
dition, but the anfwer that has been given to 
that is fufficient, that neither is there any pre- 
cedent of fuch a plea. 

As to the fecond point, we are of opinion 
that the defendant can be allowed no more 
uppn. Sir Williani Morrice's bond than is^due in 
equity and confcience, for it appears that the 
days of payment of the two laft inftalments were 
not come, and we conceive that upon this plea 
all the prior inftalments muft be taken to be 
fatisfied ; then the queftion will be, if a bond 
be pleaded with a penalty conditioned to pay 
a lefs fum at a day to , come after the plea, 
whether it fhall be allowed to cover affets to 
the amount of the penalty; it muft be al- 

■ ■* 

[ 357 ] 

lowed that fuch a bond is pleadable; fo is 
Cro. Cha. 2(>3* and i Rd. Abr. gi^.pl. 2. but 
then it will cover aflets no further than the 
annount of the funn payable in confcience, for 
the bond not being payable, nothing is due at 
the time of the plea, and it would be abfurd to 
let the executor cover aflets for a debt which 
cannot be recovered agairtft him ; and this is 
proved by the way of pleading in fuch cafes ; 
fo in Cro. Eirz. 315. the defendant avers that he 
has no aflets uitra the money due by the con- 
dition, and not ultra the penalty; fo r^Lev. 57. 
Leman and Pookey judgment given for the de- 
fendant, bccaufe plaintiff in his replication did 
not fay that the defendant had aflets ultra 
what would pay "the money in the condition, 
which direftly admits that if the replication 
had averred aflets in the defendant's hands 
ultra to pay the lefs fum, it would have been 
goodr If we confider too how this differs 
froni a forfeited bond in the reafon of the 
thing : this bond the executor may pay, by pay- 
ing the iefs fum when the day conies, for (he 
has admitted aflets in this cafe by pleading 
it; fb' is I Salk. 198. and 312. and if flie has 
aflets it i§ her duty to pay it j and if flie does 
not, but kts the intereft run upon it, having 
aflTcts, that will be a devajlavit ; fo is i Vent, 
198^. '2 Levy. 29* ^^ differs alfo from a forfeited 
bond in this, that the plaintiff could not reply 
per fraudem, for \vvf^^ no fraud in her not tQ 
pay a bond which was not due. 

But the greateft difficulty is, ^hat judgment 
muft be given in this cafe, for upon this ver- 
di<£t there are two objcftions ; i^. That the 
affcts foundiiable to fatisfy the plaintiff, are 
found in one intire fum, fuppofing all the pe- 
nalties are not to be allowed as charges upon 

A a 3 the 

C 36o ] 

Hob. arc very right: the only qiieftion here 
then is, whether fufficient fafts are found to 
give judgment upon; and as to the do6bt 
which the Jury m^ce> the Court is not ftriftly^ 
tied ' <6 that, nor by the conclufion they 
make, but arc, if neceffary, to diftribute the 
fads found,' and- to give a proper judgnicnt 
upon the whole taken together, even though 
it were'to«cotttrtdift the • conclufioh, -a Rjsll 
j4br. joS.fLsj. which is cited and allowed 
t<y be law in 'Hard. 347. and I ana of opi- 
nion^ that it does fufficiently appear upon 
this verdift what allowance ought to be made 
the defendant, and that without any intend- 
ment J for as the Jury have found the penal- 
ticfif and conditions, the reft is but matter of 
computatidn, and they have -found the in- 
tereft to be at the rate of ^.5 per ce$tt. and 
th^'termnus a^^uo to be from the dearfi of the 
tcftator, which fafts being found, ail that re- 
mains is computation, which the Court has 
always 'had power to make or alter ; there- 
fore I think there is fufficient found for us to 
give judgment tipon ; but- the qucftion is, in 
what manner it ihould be entered; and astg 
that I think the precedents that have been 
fhewn arc jVronger than the pr.efent cafe, for 
if damages which are intire may be fevered, 
a fortiori affets mly. There is -a^ precedent iii 
^o^t^d'B Jecond book of Judgments , fo. 151. 
which might be made agreeable to this cafe, 
and that book was printed by the authority 
of Ld. Ch. ] . yaughany and is»of better au- 
thority xh^n^'Thompfon's Entries i There are 
likewifp in the fame book, p. 1 17. a judgment 
in jcjeftment with a remittiSury and p. 189. 
^bth^r of the fame in ^uare impedit j there^ . 


[ 36r ] 

fore I think judgment oiight to be'lpecially 
entered for the plaintifF. 

Page ZT)A Prfibyn accord: but as it was to 
t>e a fpecial entry, a rule was> that the par- 
ties Ihoold 'attend i judge to fettle the en- 
try. ' ' ' 

The entry: of the judgmeftt was thus:— 
Witereupon all and lingular the premrfej 
beting fcen and fully undetiteod by the 
** Coiirt here/ inafinuch as" it appears to thfe 
** faid Court heVe, that the penal fums' in the' 
" aforefaid two bdnds to the faid Thomas WiU 
^^ Jon zr\d Dunifan Campbell ought in this cafe 
** to be allowed as charges upon the affets of 
** the (zxd: Humphry Morrice J ^nd that the pc- 
*^ nal futti in the faid* bond to the faid Sir 
WiUiam Morrice ought not in this cafe to 
be allowed as a charge upon the aflcts of the 
faid Humphry Morriccy but that only the 
principal funnr of ^. 5,cx)o; payable on the 
faid T24th day of June^ in the faid year of 
our Lord 1732, and the further fum <rf* 
^.1,506. payable on the faid !24th day^of 
juve in the faid year of our tx)rd 1732, to 
*' the faid Sir fVilliam Morrkty with all intereft 
" for the faid two laft-mentioned fums 'from 
** the faid 2.4/^ day of June \t\ the faid yeat of 
^* our Lord 1731, to the refpeftive days of 
payment thereof, ought iri this cafe to be 
allowed as charges upon the affets of the 
faid Humphry Mortice -y therefore by the 
*^ aflent of the faid governor and company of 
^* the bank of Engtandy the fum of ^.4,310. 
*^ being deducted out of the faid fum of 
*^ jC- 18,969. lis. gd. by the Jury aforefaid 
•^ in form aforefaid found, whereby the affets 
" in the hands of the (3\d Caiharine Morrice 
^* on the day of ejihibiting the plaintiff's bill 

« liable 










I 3.^ 1 

liftble.tQ ^hc 4enfiaiidf of- tjig faid plaifiti^t, 
are only thefum of ;^. I4^$|9. i%s. ^d* it 
is cpijfidercd by^ the ^Qurc, t{i4t the afore- 
i^i4 governor ^n4 cpmpsiay do recovei 
ft^iflft. the faid CaPbqrine dieir faid da- 
mages to ^. 28,993. 8 J. I //. and alfo the 
faid 40 J., by i;hc Jury aforefaid ia f<|rm 
afbref^id ajfTejfed, ^ iilfcwife ^^ . 1 98 • 7 j, 7^. 
^ p the f^idgPYemof jvid comply ^t their 
^^ reqiieff, for their cofts\^pd charges aforeffiid 
** by the Court .here of increafe .a^udged, 
which faid damages amoxuit in %\^ «&)le 
to the fum of jr.i;9,i93. 155. %d. to be 
'^ levied of the goods and chattels of the faid 
^^ Humphry Morrice deccaled, at t;hc time of 
^^ h\% deatli in ;he h^ds of the faid Catharine 
*^ to be adminidered, if ihe hath {q much in 
'' her hands> and if ihe hath not ^ much in 
her hapds, then £. 200* 7 j. 7 //• par(:el of 
the damages aforefaid, tp be leyied of the 
proper goods ^pd chattels of the faid Ca- 
^^ tlparine^ and that the faid Cfltbarine be in 
*' . the mercy of the Court j and that the faid 
governor and ponppany be alfp in the 
mercy of tiie Court for their faliie clamour 
^gainfl: the faid Cafharine for the refidue of 
the afprefaid prerpifes, whereof the faid Ca- 
thar'me is by the Jury aforef^id in manner 
aforefaid acquitted, and that the faid Catba- 
tine go therefore without day,* and for 
" forth." 




i 363 ] 

- • • • 

lf^bat^v€r U written in the margin of a pclicy 
af injur ance is a warranty £^nd mufi ke Ute^ 
rally comflie4 with. 

This was an aftion upon prpnpifts trPPght Dc Hahn v. 
by the plaifltiff (an under-wrher) to recover ^^S^^^' J'^^' 
back the amount of a lofs wliich he \idd p^id Dumrord and 
upon a policy of infurance. * ^tiurZ& 

Plea the general iffue. temptsof an un- 

. This was tried l3efoi;e Buller, J. at the fit- ?e";";r'bLk 
tings after laft Eafier ter^ii ac Guildhall y when amount of lofs 
the Jury found a fpecir,! veixtid, which ftated, {jfs ow?w?ong. 

That the defendant on the i^ib June 1779, the infured not 
at London^ gaye to one Alexander 4^4^xf^ny pi?ed wi^tiuhe 

then beine an infurance broker, certain in- je^iris of the po- 
rt' x* •• • r rr hey, of which 

ftructions m writing, to caule an afluraACc to thepUintifFwas 
be made on a certain (hip pr veffel called the if^°*^^Jif^ '*** 
Juno^ which were in the words and figures paymenL 
following; " Pleafe get jf.aoqo, infqred on 
*^ goods as intereft may appear, flaves valued 
" at £. 30. per head, com\yposd £^A^* per ton, 
ivory £. 20. per hundred weight, gum copal 
j^.5. per pound, at and from Africa to her 
dijcbarging port or ports in the Britijh Weft 
" Indies ; 'warranted, copper fhe^thedy and Jailed 
*f from ^Liverpool with fourteen fix pounders ^ 
(exclufive of fwivels, ^c.) 50 hands or 
upwards, at 12 not exceeding 15 guineas. 
'^ Juno — BeAver. S. Hartl^ and company, 
** June I4th^ ^77 9/' 

That the faid Alexander Anderjon^ in confe- 
qyence of tfee faid written inftrudtions from 
die faid defendant, op i;he {aid 14th June 1779, 
at London afprefaid, ^c. did. cagfe a certain 
writing or pplicy of aflfurance to be made on 
the faid fliip or veflel called the JunOy in the 
words and figures fgllowingi (reciting the 
5 policy) 





[ 364 1 

policy) which was upon any kind of goods 
and merchandizes, and alfo upon the body, 
tackle, apparel, £s?^. of and in the Ihip Jwto 
at and from Africa^ to her fort ^r ports of dif- 
charge in the Britijh Wefi Indies ^ at and after 
the rate of f^, 1 5 . per cent. 

The verdift after reciting two memoranda, 
which are not material, then prciceeded to 
ftate, that in the margin of the /aid policy were 
written the words and figures following -y '' Sailed 
" from Liverpool with 14 ftx-pounders, fwi- 
*^ vels, fmall armsy and 50 hands or upwards^ 
<f copper-Jheatked.'' / 

That on the faid 14th June 1779, ^^^ '^^^ 
before, at London aforefaid, Gfr. the plaintiff 
under-wrote the faid policy for the fum of 
^. 200. and received a premium of ^, 31* loj. 
as the confideration thereof. 

That the faid (hip or veffel called the Juno 
failed from Liverpool aforefaid, on the 13th 
QSoher 1778, having then only 46 hands on 
hoard her^ and arrived at Beaumaris, in the 
Iflc o( Anglefea, in fix hours afoer her failing 
from Liverpool as aforefaid, with the pilot 
from Liverpool on board her, who did pilot her 
to Beaumaris on her faid voyage ; and that at 
Beaumaris aforefaid the faid fliip or veffel 
took in fix hands more, and then had, and 
during the faid voyage, until the capture 
thereof hereinafter mentioned, continued to 
have fifty-two hands on board her. 

That the faid fhip or veffel in the faid 
voyage from Liverpool afopcfeid to Beaumaris 
aforefaid, until and when fiie took in the faid 
fix additional hands was equally fafe, as if fbe 
had had fifty hands on board her for that part 
of the faid voyage. 

That divers g0Qds> wares^ and merchandises 


[ 365 ] 

of the faid defendant, of great vahie, were 
-laden and put on board the laid Ihip or veflel, 
and remained on board her until and at' the 
time of the capture thereof hereinafter men- 
tioned. And that on the j/^th March 1779, 
the ftid fliip or veflel while (he remained on 
thjC.cbaft oi Africa, and before her failing for 
her port of discharge in the Britijh Weft India 
IJlandsj was, upon the high feas, with the faid 
goocki wares, and merchandizes on board her 
as aforefaid, met with by certain enemies of 
our Lord the now King, and captured by 
them, ^c. and thereby all the laid goods, 
wares, and merchandizes of the faid defendant, 
fo laden on board her as aforefaid, were wholly 
loft to him. 

That when the faid plaintiff received an 
account of the faid lofs of the faid Ihip or vef- 
lel, he paid to the faid defendant the faid fum 
of .^.200. fo infured by him as aforefaid, not 
having then had any notice that the faid Ihip 
or velTel had only forty-fix hands on boaid her 
when Ihe failed from Liverpool as aforefaid^ 
But whether upon the whole matter, ^c. 

Law, for the plaintiff, was Hopped by the 

Wood, for the defendant. 

Admitted, that a marginal note in a policy 
of infurance may he a warranty^ but con- 
te;ided, that this was diftinguiihable from the 
cafe oi Bean v. S tup art (a), and all the other (n) 
cafes on the fubjeft. In the cafes decided, it ^""^^ "' 
has always been a warranty of a faft relating to 
the* voyage infured': but in the prefent cafe, 
that which is written in the margin has no re- 
lation whatever to the voyage j for it relates 
merely to the force of the Ibip at Liverpool, 
before the voyage commenced, and is totally 
X unconnefted 

tihc6niic6i:ed with the rifqufe irifuttd. The 
policy is> ** at and from Africa to her port of 
*' difchafge in the Bfttijh Wefi InditsC" arid fhe 
warranty is frarti Liverpool*^ whkh is antece- 
dent to the v.o^age infured, and is merely a ^<?- 
ftefsniation of the ftate of the Ihfp \^heri ftfe fet 
out on her voyage froWi Liverpool. Theti> ifit be 
only a reprefentation, it is immaterial whether 
complied with, becaufe it rs fotrfrd by the ver- 
dift that the fhip Was equally fafe with the 
ntinfiber of hands (he had on boards a^ if flie 
had had the whole ntrmbefr contiirrcd in thd 
warranty. The warranty then can onty relate 
to her being coppir^Jheathed : that pirt mdeed 
Was extremely material, becaufe otherwife the 
rifque would have beenconfiderably encreafedi 
and that extended to the voyage infured : but 
the other part of the marginal note was 
merely a reprefentation, becairie the manner 
of failing from Liverpool was unconnefted '^ich 
the rifque infured. 

But even if the Court fliould confider the 
whole as a warranty, it has been fubilantiaily 
complied with. 

Lord Mansfield, Cb. J. — There is a ma- 
terial diftinftion between a warranty and a re- 
prefentation. A. reprefentation may be eijui- 
tably and Juhfiantially anfwered: but a war- 
ranty muft be ftriftly complied with. 

Suppofing a warranty to fail on the ift of 
Augufty and the fhip did not fail till th^ 2d, 
,the warranty would not be complied with, 

A warranty in a policy of injur atce is a con- 
dition or a contingency, and unlefs that is per- 
formed, there is no contraft. 

It is perfeftly immaterial for what piir^ofea 
warranty is introduced; but being inlerted,' the 
contradl does not ex:ift unlefs it h literally 


I . 

[ 3^7 ] 

complied with. Now in the prefent cafe, the 
condition was^ the failing of the ihip with a 
certain number of men j which not being 
complied with, the policy is void. 

Ash HURST, J. — The very meaning of a 
warranty is to preclude all queftions whether it 
has been fuifiantially complied with : it muft 
be literally {o* 

BuLtER, 7. — It is impoffible to divide the 
words written in the margin in the manner 
which has been attempted ; that that part of it 
which relates to . the copper flieathing fliould 
be a warranty, and not the remaining part. 
But the whole forms one entire contradb, and 
muft be complied with throughout. 

Judgment for the plaintiff. 

>4 ' 


« «*^ .S*"' • • • ■ 

•♦ ♦»!. -m i 

■^ > • 

I . 

♦ '• \ ■ • . 



I r Ill 11 i ■ 



0/ Trials at Bar, 

Vidi ante Effay tl. Head III. The S^en v. 
the Bailiffs and Burgejjfes of Bewdley. D° I V. 
Srigbf, exor. of Cr^p v. Eynon. H" IX. (3.) 
^* v. modfall. D* IX. (6.) ^r^<?»/ v. 
Sir Marntaduke Darell. — Leigbton v. Sir 
Edward Leigbton. — Smitb, ex. dm. Dormer 
V. Parkburfti et IX. (8.) Richards v. 

If a new trial /ball be granted nfter a trial 

at ian 

A VERDICT contrary to the oi^inioii 
of the Court* 
Upon a trial at bar by a Middlefex Jury^ ^;^niccier r- 

where the ifliie was whether the copyholders of Honour, m. 

a manor (of which Sir Gevrge Reynolds was Isidf58!rKeb. 

fcifed) ought by the cuftom, upon their ad- '54i 166. Ray. 

mittance, to pay fines, certain, or uncertain ? ^'qiicftion if 

And upon the whole evidence (although pre- copyhoiuers of 

- * J J i_ 1 \ 1 ? j^^ a manor ought 

cedents were .produced both ways) the Court upon their ad- 
was fatisfied that the copyholders ought to piay J[l|'jfccm^^<»r 
uncertain fines 5 but the next morning the Jury unceriioi 
came and gave their verdift that the copy- 
holders ought to pay certain finest and for 
this caufe, and alfo upon affidavit^ that feveral 
of the principal freeholders named in the venire oiij. fev^rai 
facias by Home, fccondary, were never fum- ^m!S^b"h« 
Vol. IIL Bb moned 

1*370 J 
rcnirc facias moncd. It was movcd two days after to have a 

were not fum. ^ ^^^ ^^.j^j. j^.^^ bccaufc thefC WaS' full Cvi- 

dence, the Court would not grant a new trial 
(unlefs the other party would confent) for it 

I Keb. 40, 41 was faid that trials at bar were folemn and of 
great authority j and although the Court was 
not fatisfied, yet the Jury, who were the pro- 
per judges of the faft, wete well fatisfied. 
And it was not known that more than two 
new trials had ever been granted, after a trial 

Three anions at bar ; onc of whjch was in this cafe ; three 

dreiTb^ ^^rlT' ^^U^^^^ Were robbed in Surrey. One brought 

Weim drovers, his aftion upon the ftatute, and a verdift was 

Z^^l'^ovevl^s found for the hundred: the other two brought 

aifainftthehun- their adions, and vcrdicSts were found a^ainft 

triltirthefirft, ^hc hundrcd (all of which were tried at this 

after atrial at bar y^nno 1657) and upon this the court 

^' granted a new trial in the firflr, and they had 

ereat reafon fo to do, for there weretwo ver- 

aifts againft one. The other was granted 

becaufe exceffive damages had been given for 

words, 'cr/z* ^. II5, 

If jebt lies Notay It was faid by Twi/den znd ff^nSmy 

i"c(?pyhoWer" Jufticcs, and not denied by any one, that, in 

Y.sui.i76,J77- tJiis cafe, the lord might bring an aftiohof 

debt againft the copyholder, and fo he is not 
without remedy : and Twi/den faid that fo it 
was held by Forfter^ Juftice, i^Jac. which was 
jioc denied, but it was faid that the opinion of 
Bacon was, that the lord could not have debt 
for a fine agaiqft his copylwldeF. 

' . ' ■ 



f . - ' 


C 371 3 

^rial at lar granted^ where a jujiice of the 
King's Bencbi or a mqfter in Chancery is con- 

Sir JVittiam Morton^ one of the juftices of Morton v. 
this bench, brought debt againft H. and S. for J^«p^»"s f"** 
tythcsy jaL tor not letting then:i out, isfc. and and 21 car. 2. 
in this aftion.the title of a parfonage in the b.R. ISid.4o^ 
county of Oxford^ which M. had a3 executor 
to his fon, was to be in queftion, and a motion i vcnt. 30. 
was moved for a trial at bar the next term, 
which was granted without any affidavity be- 
caule, if one of the juftices of the bench, 
or a md&.tvm ^Chancery is concerned, it is a 
gQod caufe for a trial at bar, be the va- Executor mar 
lue what it will; and a trial was granted, and have debt ut^oa 
the next term it was tried, and it was held as oAyt'hcs^burit 
before, that debt lies upon tHe /?^/. 1 E. 6. hy does not lie a- 

r tt •/> gamft an exc- 

cxecutor ic^ tythes, but not agatnjt an execu- cutor.Hob.i8». 

There was a verdid for the plaintifF, but he 
abfented himfelf from the Court, the day of 
the trialj although he was prefent at other 
times when the caufe was moved. 

Information for extortion againft a clerk of a/- 

Jize, fhall be tried at the bar. f 

Difference between 2i ceflat proceffus, and nolle 
profequi, by the Attorney General. 

An information was exhibited here againft r^x v. Ber- 
B. for extortion in the office of clerk of the ^"*"'I:*V?f''- 

ft n K. T Sid- 

aJJizCi in the county o(Torky and it was moved, 4^0" 
after the defendant had pleaded not guilty ^ to fj^^^^^ 
have a trial here at bar, and it was oppofed by 1 Vent, 33. 
the King's counfcl, becaufc they had a great *>^«^s*'- 

6 b a number 


[ 37^ ] 

number of witncffes in Torkjhirey and it would 

be a great cxpcnce to the profecutor to bring 

them up here, and that it was well knowii in 

the country whether he was guilty or not. 

But, becaufe ,this was a great offence, if he was 

guilty of it, the fenior judge of the circuit 

would have his place, and becaufe nothing 

ought to be tried, before thofe who are 16 

have advantage by it, it was ordered that the 

trial fhould be at bar ; and this term the Jurf 

appeared, and whilft they were fwearing, th6 

King's attorney came into court and faid that 

The jury ap. he had entered a ceffat procejfus: but the 

Sotb^ difmlffcd Court notwithftanding proceeded in fwearing 

upon a ccflat the Jury, and told the Attorney-General, that 

oit a^noUc^pro- he fliould enter a nolle frcfequi before they 

fequi. would ftop, and then the Attorney-General 

commanded the clerk of the Crown to enter a 
nolle profequiy which was done, and the Jury 
difcharged. i Cro. 254. 

^rial at bar the laji paper day. 


turd BeHa- The Attomcy- General moved for atrial at 
pa(bh!ttwm. bar laft paper-day in the term, in ai^ adioa 
^B.R.aSaik. againft the governor of Njsw Tork for waneji 

** done by him as governGTr; and: granted, bt- 

caufe the King, defended it. 

Where the venue is in London, there cannot k 

a trial at bar. 

AnoBfinoiM, A caufe cannot be tried at bar where the 
Sc^KK^aSaik ^^^^ ^^ ^^^^ ^^ London^ by reafon of their 

644. ' charter. ,- , > 

Trildl4tbar. ' . : • .^ , 

Vid«autc» -. , * 

" ■" frial 

[ 373 ] 

^rial at bar where to be granted^ or denied. 

Where there is value or difficulty, we arc Lord Sand. 
bound of common right to grant trials at the T^^\^^l?\x 
bar. Inquifitione^ de grqyis et pluribus articulis, b. r. 2 Saik. 
qu^e magna indigent examinatione capiantur co-- ^"^vid^j aiitcfc 
rajfi Juftidariis de Bands. Stat. Weft. 2. c. 30. poft. 
per Holty C. J. yet Trin. i j^nn. it was denied, 
bepaufe the plaintiff was poor, unlefs the de- 
fendant would agree to take niji prius cofts, 
JE^t^pcftea fcil. Trin. 4 Jnn. B. R. between the '' 

trufliees of my Lady Sandwich and my Lord 
Sandwichy though the eflate was £.3000. per 
onhum, 2i new trial at bar was denied, becaufq 
the title of the lelTor of the plaintiff being from 
the defendant himfelf, there would be nothing 
to do but to prove the executing of a con- 

TFhen a trial at bar is to be moved for* 

I( H. would have a trial at bar in Eafter Turner v, 
yVr/w, he ought to move for it in Hilary Term; B^aby,Pafch. 
if in Mkbaelmas Term^ he ought to move fot' 2 safk! 649. " ■. 
it xnTrirtity Term^ except where landsiie in vidcameet 
Middlefex\ anjd anciently there was no other 
notice given of fuch trial, but the rule in t-he 
office i but now there rnuft be fifteen days no- 
tice. Per Holt, C. J, 

?>/^/j at bar not denied to officers of the court, 

. or b^rrifterj. . 

■* ' ' ' , 

Upon a fcire facias brought agaihft Sir Sa- sir SanuMi 
Iftuel Aftreyy for his place of- clerk of the crown AUrey's cafe, 
m the Court of King's Bench, and iffue joined f%l^!^lu^ 

B b 3 thereupon i 

[ 374 ] 

vide 1 Mod. thereupon ; Sir ^amnel JJlrey rrioved that the 
\l\[ sa?k?i525. ifluc alight be. tried at the bar. The Attorney- 
* Kcb. 133, . General oppofcd it; but the Court faid, atrial 
I 4- 1 .rp-H . ^^ jj^j. ^^ never denied to any officer of the 

court, nor hardly to any gentleman at the ban 
and though Mr. Attorney was never bound 
to confent to a trial by niji priu^ tn the Qijeen's 
cafe, yet they did not fee how he could refiife 
a trial at bar, .where it was reafonable to try it 
. there ; for the ftat. fFefi. 1. cap. 30. is atter- 
minentury that they may be determined there, 
qui magna indigent fxamin^ifiane, 

A new trial refujed after a trial at bary though 
the Court much dijfati^fied with the Jury, 

Gay V. Crofs, The plaintiff brought an aftioq on the cafe 

B. R.^Mod!" ^^^ ^ ^^^^^ return to a mandamus to fwear hin) 
37. 1 Saik. 190. common- council-man for the borough of 7(j>///j/i, 
f^eScom. which, by charter from ^een Elizabeth, the 
roon-councii- nfianncr of their eleftion was chalked out for 
CoTporSr^'^' them J and a ufage was giveii in evidence to 
v<jrdi<a. a jury 3Lt the bar^ that the eleftion had gone 
Trial at ban quite contrary, which ufage was allowed' to be 

jodd evidence of a by-law whereupon it was 
founded? So the counfel on both fides con- 
fented to haye it found fpetially, and to 
have it deterrnined by the Courf j whether 
fuch a by-law and a long ufage purfuant to 
it, could alter the direftion, or rather annihi- 
late the direftion of the charter? And the 
Jury haviiig given their verdift in priyatQ 
over nightj laid, that they had found the mat- 
ter fpecially, and the next day in court de- 
livered their verdift for the defend aat ge- 
Hcrally, and would give no reafon for it, nor 
be moved to depart from it. And hereupon 
4 new trial was moved for, and the cafe of 

[ 375 1 

JVood and <junfion in StUeSy and a cafe of the ^ ^^^^ ^,j 
JVdJh drovers were quoted for hew trials, after \\ amc in the 
a trial at bar. And though the Court were "^^1^11^'*'' 
very much diflatisfied with the Jury, and Holt 
ikid, he never had known the like, and that he 
would have but little value for the verdifk of 
a jury that, would not, at a judge's defire, dc- 
cUre the reafbn which had induced thenn ; 
and that as the judges do publicly declare the 
reafons of their judgments, and thereby expofe 
themfelvcs to the cenfures of all that be learned 
in the law, and yet there is no law obliges 
them to it, but it is for public fatisfadliorrj S^ 
the jury ought, for the fame reafon, to declare 
4;he reafon. of their verdift, when required by 
the courts Notwithftanding all this, it being 
a trial at bar, the Court would not grant a new 
- ^* if ^^^^ determination was not wrong ? 

^f plication ta put off trial refujed^ the affidavit 

being injufficient. 

, Affidavits to put off a trial at bar, fet down ciravenor v. 
/or the firft J'uefday in term, upon account of ^^,^n^^in"* 
tHe wicneffes being not likely to be there, (Je- b. r. 7 mV 
nicdj for that it was not fworn endeavours 
had been ufcd in fuch convenient time to h'^ve 
them>.that without anunforefeen accident they 
would be at the tri^l at the fet time^ 



tfew trial denied after trial at har^ upon h^uf- 
Jiciency of the affidavit. 

After a trial at bar, and verdift for lelfees cravenor ar 
in ejeftment, a new trial was moved for upon crovenor and 

B 4 the 

T Annxm thc me^us of thc^ca^ufev atnd alio upic^ an aSr 
?s6^iSai^°65o. ^^^^^ bfought into Court containing in fobt 
s. c. ftance> that the defendant's witneflfes were kept 

n^dtftw^iili' b*ck by ^ report fpread in Hollands whene they 
at bar. yftvn^ in their way to Eng^and^ that the urit- 

'^^^^'^' pefles that were already conrie over, bud been 
iaid by the heels ; but the affidavit did ^sOi 
name any who had fpread the report, or that 
it was by the agents or perfons employed by 
Fenwick. And though the Court were diffa- 
tisfied with the verdift, upon feyeral rcafons, 
00c whereof was, that the trial lafted about 
ibctecn hours^ and abundance of evidence was 
g^ven on both fides, yet the Jury wejrc agreed 
f)ti their vcrdift in half an hour's time ; yet the 
y. ante. Court would not grant a new trial : and the 

cafe of Gay and Crofsy heretofore, was remem- 
bered; for the Court declaredy that after a trial 
at bar they would not eaftly grant a new ttial, 
more efpecially in ejeftment, where the firft 
verdid is not peremptory j and where there is 
no foul prafticjc made appear in the Jury, .ot 
pjirty for whom the verdiS: was, as keeping 
pack of witncffes, ISc. in which cafes alone it 
was difcretionary in the Court to grant tu 
And here they begged leave to amend tfieik 
affidavit y which was oppofed for this rcafor^ 
tJ>at now they had learnt of the Go&rt what 
would do their bufinefs, it would be dangerous 
to lee them in to fwear it ; to which Holt faid, 
that it was frequent in Chancery yzktv a wit- 
nefs bad fworn before a raafter,i to. examine 
him. again viva vcce in Court. .Bint Serjeant 
Pffisis replied, that it was no frequent thing fo 
to do i for in all his time, he had known it 
done but twice* And Ptmell declared his dif- 
Jike of mending affidavits whcne tirc party 
..... knew. 

C 377 !! 

knew before vrhat was necefiaiy^ and hkd hot 
fwprn it. * 

In 2 ^<3/*, 650. *S. C it was faid as to iffi!e$ 
cut di Chancery, they being only to fatisfy thi 
confcienc^ of the chancellor, are notftriSiju^ 
ris ; and that in the principal cafe a^new trial 
V9BS denied, cenira opinimem (ut videbatur) 
capital, juftkiaf^. Sid. qu. ? 

/i witnefs examined at a former trial of an ijfui 
between the fame parties^ and who has keen 
examined in the caufe^ in cafe he dies^ mt only 

: ins depofitions may be read, but what he 

./wore at the former trial may be givlm in 

evidence. .■-..* 


On the hearing of this caufe, the Lord Chan^, coker v. Fare. 
feilor direded an iffue to be tried at the then Tp tJ^*'*'^^ 

**• _ , ^ 1111 aP.Wms. 563, 

next affizes at Dorchejter, whether by the ge- LoniChaa- 
neral words of the deed in queftiort, the lands M^fter^if ?he 
in qucftion were intended to paft 1 whereu|)6fl Ro"s, ^ Eq. 
at the trial, and which was by a fpccial jtiryj ^f^^^^^-'J^i: 
a Yerdift pafled for the plaintiff^ but t3pon^S Evidcnc 
motion for a new trial, it being fent By tfc€ Two tnail 
fsord Chancellor to the Judge to certify, whe- 
ther this was proper to be tried again, MK- 
Juftice Price did certify, " Thar cviderice was 
*^ given on both fides, and that he fhould 
•' have thought this cafe proper to be tried 
f^ ag^n, but that one of the witncffes ex- 
amined for the plaintiff was fince dead, by 
means whereof the plaintiff might fuffer on' 
'* fuch new trial, and that therefere he rathir 
" inclined againft any new trial." 

After which certificate, there was another' 
motion fcH* a new trial $ and the Mafier of the 
RsUshting prefent in Court, and his lordlhip 


ncc oa 

[ 378 ] 

defirihg his thoughts on this matter, his Honour 
faid, the only obje£tion to the new trial^ ap- 
peared to be the death of the witnefs, and 
though it had beta faid, that the weight of a 
living witnefs would be greater than depofi- 
tions, yet' it was his opinion, that fince this 
witnefs had been examined in the caufe, and 
was dead, the depodtions might be read ; alfo, 
zs the teftimony which the witnefs had given 
at the former tri^l, might be given again in 
evidence againft the fame parties, he ihould 
rather think, that the other fide had fufiered 
by the death of the wimefs, fince they had 
thereby loft the advantage of crofs-exaoiining. 
And the Court ordered a new trial to be had 
at the bar of the Common Pleas, where, after 
much evidence on both fides, the Jury found 
/ a verdid for the defendant, which was con^ 
crary to the former verdidl. 

And now a trial was again moved for. 
upon which it being fent back to the Judges 
of C. B. to know whether this caufe was pro- 
per to be tried again, the Chief Juftice ac- 
quainted the Lord Chancellor y that there had 
been very ftrong evidence given on each fide, 
infomuch that he could not h^ve bk^ied the 
verdift, on which fide Ibever it had been 
^ gi^n, and that he could not fay this v«diA 
was* againft evidence. 

. Afterwards arK)jther applicatiani tt^$ made 
for a new trial, when it was infiftiod, that this 
matter relating to. an inheritance, /it:wovild be 
very hard to have the right determined by pnc 
ifilial) though at bar, and divecs Cj^es were 
cited where new trials w^ne grapted after a 

Sec thcV^fe ^^ ^ (^) '^^"^ ' and this ought ^ rather to 
i)£XeishLon V. bc donc lo thc prefcnt cafe^'wb^r&ttksrQ M 

J- ' . I- .-o MI : bCf (I 

[ 379 1 
been verdlft againft verdift, and confequchtly sirEd.Ltsj^K 
the matter feemed to be left at large, li" ix.'(6^f*^ 

But the Chancellor and the Ma^er of the 
Rolls denied a new trial; faying, otherwife 
there would be no end of ftiits ; that a trial tt, 
bar, where more time might be allowed, and 
the party was put to more expence, was of 
greater weight than one by nifi prius ; that 
the intent of the Court in fending the caufe to 
be tried at bar was, that it might be finai ; 
but this cafe was the ftronger, as the iffue to 
be tried related only to the intention of the 
party, and not to any legal title, which qucf- * 

tion might have been determined at the hear- 
ing, without ever fending it to a trial j and 
here bein^ a trial at bar, this might juftly claim 
a preference to a trial by ni/i prWj and was 
fufficientto fatisfy the confcience of the Court; 
but that ftill, if the party, againft whom the 
decree was, thought he had a legal title, the 
Cofuf t did not debar him of that. 

^e Court lays more weight on a. trial at bar 
' than at nifi prius, /r<?/w thejolemnity ofity find 
the length of the examination. 

l!>ORD CiiANCELi^oR.— -Where there arc tif o The Attr>rf»cf 
trials, and the laft was at the bar, this CjQurt Cencrau at tiic 
}ias fuftVred the latl to prevail i and to lay cijfkTand 
down a rule that there muft be three, will be «tjiers, verfns 

, , . , , . Montgomery, 

attended with great expcnce: what tunas :in juiy 28th 17^2. 
favour of tlie Uft trial, is the ibicmnity and - ^^^^' ^'^ 
lengthof examination, and the reafon foiridi* 
refting a trial at bar is in oi*dcr to that. 

The Jaft verdift here was on further evi- 

dence, whiclv makes this a ftronger cafe than 

fhe common one, where there are two trials 

X on 

C 380 J 

on the fame evidence, and therefore I Ihall not 
;rant a new trial on that ground. 


mtHion miift be 
made for a new 
trial, ami ihe 
CotiK will n'>t 
anfw«jr a ptti- 
tl(>n for ic» 
ivhere the caufe 
comes on upon 
the equity re- 
It; rved. . 

1 do declare, that for the future, I will not 
anfwer a petition for a new trial, where the 
cafe comes on upon the equity referved, for 
I do expeft an original motion to be made for 
that purpofe, otherwifc it is tending to great 

There were fcveral proceedings in favour of 
the will, which make it reafonable to hear what 
the Judges fay to the verdift. 

Let it ftand over to the firft day of rehearing 
in thd next term, for that purpofe. 

Vtx V. Foley 

anKl Harley, 
i. T( Geo. B. R. 
1 Stra. 51. 


Trial at har granted^ upon conftderation of tie 
' conjequences of a conviifion upon an informa- 

Information for taking 3J. 4^, for regiftring 
a warrant of attorney, contrary to the lottery 
aft, which fays it fliall be entered without fee 
Or reward, and all perfons offending fhall be 
incapable to hold any place. 

The defendants moved that thev mi^ht have 
a trial at bar, for though the queftion feemed 
vei»y fliort, whether they took the fee or notj 
yet the confequence was very confiderable: the 
flefehdants are auditors for life, and that is a 
freehold of which they will be divefled by a 
conviftibn upon this information.. P^ifch. 9 
jl'fina Regina v.. 'Harcdurt\ Jcire facias ' to' re- 
peal ^letters p^tept, and there a. trial at bar was 
had. Sid. 420, The, Crown, it is tnie, may 
fue any where;, but when' the fuit is com-*, 
itience(^, it is in .th<rp6wer of the Court.' \ .[ 
' ^ On "the other'fide It was infifted,^tbat the. 
Court -could not take notice of what wouM'fe 

■ - ' " ' the 

the confequenccs of a conviftion i that the 
queftion was (hort, and the onus ^rohandi upon 
the Crown, who might try the caufe where it 

PowySi JEyrCy and Pratty Were for a trial at 
bar 5 but the Chief Juftice faid, the defendants 
ought not to pray a trial at bar in an iflliable 
ternn. A trial at bar was granted for next 
term. Videpft Rex v. Johnjon* 

Trial at bar granted, on the ground of valuf. 

In ejeSlment on the demife of Lord Con" Preftonr, 
ingjhyi the plaintiff moved on the common af- g cerB^R. 
fidavit of value, for a trial at bar, which was ^ stra. 479. 
oppoled by the defendants on another affida- wheregrai^- 
vit, that they fevcrally held but fmall parcels *'^^^** 
of lands by different titles : and this is putting 
it in the pow^r of the plaintiff, by joining Se- 
veral together, to bring the owner of but ;^. 5. 
per ann. to the bar. Sed per^ Curiam^ there 
mufl be a trial at bar, for if the plaintiff makes 
but one title to the whole, he has a right to 
join them all together. It was moved that the 
leJTor, having privilege, might name a good 
plaintiff to be liable to cofts 5 but the Court; 
denied it with fome refentment, faying it had 
been often attempted, and as often refufed'. 

A new trial granted y after a trial at bar. 

A corporation were all invited to ^ treat, sir Chrlfto- 
when one of the aldermen defired leave to re- \, Nevinfon*/*' 
fign, upon which his refignation was tisiken, 5*i^^g°* 
and the plaihf i5" at the fame time chofcn and 584. l. Ra/m. 
fworn. in. '3$«- 

' : - * 1 he refigna- 

5 Upon tionofanal- 

drfflian, and 
election of ano- 
ther in his 
place^at a meet* 
ing not con- 
vened for cor- 
por^ion bufi- 
net's, aJjudged 
frauduleiu and 

A corporator 

•n a recent pro- 
fecution muft 
prove receiving 
Che facrnment 
iKithin a ycur- 

[ 3«2 1 

Upon a trid u bar the Jury found it i 
good eledion ; and the Court granted a new 
trial, it being fraudulent, and it appearing one 
of the members was not there 'till after the 
eledion, and there was no fumnnons to m^ec 
to do fuch a corporate aft, that the members 
might come prepared. The meeting like wife 
was not in the Mootbally but at a tavern^ 
and it was a plain furprize, and even all not 

As to the point of its being a trial at bar, 
the Court made no difficulty of that, fince 
the cafe of Bewdley^ and another of Sir J^Jepb 
Syley v. Roberts y in C. B. where on a trial at 
bar whether compos or non compos the Jury 
found againft the weight of the evidence, and 
there was a new trial. The cafe in StiUs 
(which is the firft new trial in print) was after 
a trial at bar i and in the cafe of an aldei^ 
man of Derby he was afterwards oufted upon 
a quo warranto. 

Et per Raymond, Jujiice. — My Lord 
Chief Juftice Holt ufed to fay, he was, of opi- 
nion that the pradtice of granting new trials 
was much ancienter than the caie in Stilm 
fince we meet with challenges that .the par;y 
was fworn on the former trial, and therefore 
ought not to be a juror again. 

N' B. — As to another of the corporatx>rs of 
Apulbyy he was put to prove the reoeiving the 
facrament within a year before his eleftion, 
it being fecent, and therefore the Court re- 
quired it, though no notice was given him for 
that purpofe. 

N. B. — By ftat. 5 Geo. i. c. 6. /. 3. no 
perfon chofen into any corporate office men- 
tioned in the fiat, fhall be removed or profe- 
cuted, nor any incapacity, difability, forfeiture, 


E 383 ] 

or penalty be incurred, by omiflion to take the 
lacrament, unlefs removed, or profecution conm- 
menced within fix months after being placed 
or elefted into office, and the profecution be vide 2 Burr. 
carried on without wilful delay. 

Trial at hdr planted in an information againfi 
a Jufiice of peace for a mif demeanor in bis 


An information was exhibited by order of R« v. joim- 
B. R. againft the defendant for negleds and b"r. i str?*** 
abufes in his office of juftice of the peace, in ^44- 
relation to deer-ftealers j and it was moved on 
behalf of the Crown, on affidavit of the defend- 
ant's having £. 700. per annum, and there being 
above thirty witneffes for the profccutor, 
that it might be tried at the bar : and the caib 
*of Regina v. Wakefield, the town-clerk of vide anw Rex 
Litchfield, who fixed up a paper refledir^g H^riyJ^** 
iipcHi a jury, which was tried at the bar, was ' 
mentioned j and alfo* the cafe of auditor /for- v. id. 
ley, where the matter in difpute was a triflct, 
but like to be of long examination i upon 
which authorities the Court granted a trial at 
bar in thiscafe* Mr. Attorney faid^ had it 
been an information exhibited by him,- he 
wouid have had a right to bring it to the bar 
if^ he had tho«^ht fit. N. B. The defendant 
was convifted and fined £,. 400. and comraiwed 
•till piicf. ' 

Motion, ' ' 

I 3H 1 

Mdfion, before ijue joined^ for trial at batri- 


Cafe of the Upon z motiott for a trial at bar* which was 
borough of conftnted to on both fides, it appeared ifliic 

B. R. I Stra* 

Chrift Church, .. , • % ' r-* ' ' e r ^ ^ 

E. 12 Geo. was not joined: and the Court rcfuled to 

grant it, faying it was below the dignitj^ of the 
Court to do it, 'till they ktiew wh^Aer the • 
iffue joined would be a matter of difficulty or 

Sed. qu. vide ante. 

Rex verf. 

Halesy M. 
a G. 2. B. R. 

a Sera. 8i6* 

Where the vt- 
hrre is laid in 
Xondvn, there 
cannot he a 
trial ^ bar, tho 
citizens not be* 
mg to be 
brought out of 
the city. Vi4t 

In what cafes of the Crown a trial at harjs k- 

mandahU. . -. 

Mr. Attorney moved for a trial at bar, on art . 
information filed by him for forgery » But it not ^ 
being carried on at the expence of the Crown/ 
but of a private profecutor, the Court held 
that he muft make out the u(ual req\ii|i^s, to, 
bring it tp the bar. So the motion was de- 
nied. At another day, Mr. Attorney moved 
on an authority from the king to profecutCj 
and it was granted as of right to the king in 
his own caufe. In UiL fequen* it waS' tried, 
and the defendant convifted. And in 9rMf. 
Jhquen^ being called to judgment, he produced 
a pardon, whidi was alioWed j and being only 
for a mifdemeahor, he was not put to go to 
the bar, or plead it upon his knees. 

In an appeal of Murder CafteU^ vid. v, 
Cambridge et Corbet ^ (2 Stra* 8c 5*). it was 
moved to fix a time for the trial, the appellees 
offering to take (hort notice ; hut it being by 
original, there was a neceflity to have fifteen 
day^ between the iefle and the returq of .the 


C 385 ] 

JiJirtHgasimd they could not be tried ba the 
veHifej becauie being in London^ there could 
be no trial at bai^, (the citizens not being to 
be brought out of the city) and as it mufl: t^e 
tried at nififrius, there muft be a diftringas* . 

^rial at bar in an aSion for xrim. con. upon ap^ 
plication of defendant ^ he having mar^ wit-- 
neffes ta examine y iSc. 

This was an action for criminal converfa* u. Hiiifbo- 
tion with plaintiff's wife ; and the damages J^"*** ^e/^'^t 
were laid for ^.50,000. defendant moved for ^lL%G.2i 
a trial at bar, upon an affidavit that he had Ba»'nes,438. 
trpwards of twenty witneffes to be examined. 
Rule granted to flicw caufe> which was after* 
wards made abfolute, plaintiff having liberty 
to examine a witnefs in an ill ftate of healthy 
before, a judge in the mean time, and der 
fcndant confenting to waive his privilege of 

parnal for defendant s Chappie for. plaintiff. 



Reqfonsfor grdntingy or refujtng trials at^kar^ . 
efpecially where there are old infirm wHntffes 
ivho cannot travel to Weftminfter, and the 
caufe may befooner tried at the ajjizesn 

A rule to (hew caufe why the trial Ihould Froftagainft 

not be at bar, was founded upon an affidavit ^as^Aveiy and 

that the prenxJfTes in queftion'were of the others/ on the 

yearly value of £. i.oo. and upwards ; and that Awry; in cj^6t^ 

a ffridt and careful examination of the title ^ent;E. 14 
would be requifite. At the time of (hewing^.'*' *"'' 

caufe it was ialfo alledgcd oh plaintiff's behalf, ' " ' 

Vol. III. Cc dxat 

i 386 1 

^t he had a great number of wkiie^» m 
examine : and that the pome to be tried /«rai 
ipffn^ vet mn in WHlUm^^tfefy^ ac the* time 
^ making his will^ under which ijie defendant 
Whddtock cXmtM his right. On behalf of de- 
^ndant it appeared, that they had feme an- 
cient and infirm wicnefles to examine^ who 
could Hot travel to W^mh^tr^ 

Per Cur': We are not, accarding to the 
Courfe of the Court, bound down by the value 
of the premiflfes in queftion, which is fwom 
to hc£. TOO. per ann. As to ftri£t eaBKntoation; 
it is necefiary in all cafes, and is. notUng weSx 
Vide ante, jefpeft to a trial at bar. When a long caufe 
is to be tried^ a judge, upon notice, will cake 
a day extraordinary^ at die sdfives, where aa 
examination of a grcat number o£ wtmefles is 
moft proper and lead expenfive. There is 
no nicety in this point, or difficulty, ib as to 
require the attention of the whole Court. An- 
cient witneffes. grow weaker every day, zxA 
often arc not able to travel to Weftmnfter. 
Let the rule be difcharged. Plaintiff prayed 
leave to examine an old withefs before a 
judge, upon interrogatories. But per Cur\ 
that cannot be done without confent. A crofs 
examination cannot be fupplied by depoficions. 
If a trial at bar was ordered, it could not be 
'till next Michaelmas term ; and before that 
time the aflkgs will be held. Birck &>t plain- 
tiff; ff^ilies for defendants. .. 

Mothny before afpeeirunce^ fdr trial st iar, 

granted. •. . . 

• » 

Roe againft Rule for tenants in poffelfiilm to (hew caufe 

^;/oa%*ht why the iffue 4» be joined Oiould not be tticd 

... - at 

i: 2^1 J 

«t b* next ternii Objcdflcd on the part of dcmiftsof 
Lady 1f^e9ftwortb the laridtody. Sir Butler'^; choimotitiiy 

•J r»%i - 1 i>^ "^ » » and his Wife, 

Widow, That a trial at odr cannoc be moved for a confiUeri- 
for by plaintiff 'till after appearance^ and the york^i^^ bte 
time to appear will not expire 'till four days sir Barier 
after this term. Two rules o( the Coiirt of SXh?' 
King's Bench produced jOtie by confent, the isoco/ii 
odicr not by confenti except as to niji prius ^'^^r ^^^^ 
coftsy where trials at bar h^ been ordered be- 
fore appearance. Riile abfollYte fbr trial at 
bar on 8tk May titxu If plaintifTs nK)tiort 
had not been received befcM^ appearance, no 
trial at bsu* could be appointed 'till next Mi^ 
dtaelmas tcitni Lady fFtntworih*^ counfel 
prayed the conditional rule, and to defend ioi 
part I which 1va$ granted^ and (ik weeki^ timi 
to defcribe the part defended fot. 

Prime (^ at for leflbrs of plaintiflTi Skirmef 
^ M* for Lady Wtnhvortbi 

ibe gr bunds for ^raniin^ a irtat 4t har ar4i 
great valuer frobahle lingsb^ and frifbabli 
difficulties in the trial. 

Tbe Court may lay tbe party appfying wtdtr tifi 
terms of receiving nifi prius c(^Sy ^md paying 
bar eojtsi 

* « ^ a. A 

This was an application for d trial at bar. Hoimes, 
KenyoHj Ibme time before, had obtained a rule leffee of 
to fhew caufe, and Partridge this day (hewed Bn)wa', t.^1o 
fbr caufe, (upcin affidavits) that the lefTor of g*®- :^- ^* ^* 
the plaintiff was in fuch indigent cirCumftances, ^^^ ' ^^^ 
as not to be able to bear the expence, and 
that one of his witneffcs was a woman of above 
eighty years of age, who might die before a 
trial at bar could be had. The value of the 
premiffcs was ftated to be about £. 2000. a 

C c 2 year, 




The words ot 

tlie ftatute of 

Wcftminftcr, a 

C13 EUw. r 

cap> 30*) are; 

" Scd inquifi- 

•* tiones de 

" groiBs & 

" plurlbus ar* 

'* ticulis, quae 

'( magiu in- 


** minationey 

" capiantur 

*' coram Jufli. 


♦ <' 

« • 1 < 

[ 38^. 1 

year ; and the queftioHj whether a codicil to a 
will by which they were dj&vifed was dwly.^-^ 
ecuted. Pariridge^citcd Lx>rd Sandw$cV% cafe 
in Salkeld, (a), 

Ktnyoif, in fupportof the rule^faid^-^tbatvthe 
grounds on which a trial, at bar ough£ to he 
granted, weje, the great value^of thciiibjeft 
matter of the litigation, the probabk lesigd>of 
the inquiry, and the likelihood that difEculties 
noight arife in the courfc of the trial- («i)^ He 
then ende^pur^ to ihew, ths^f the(e reafooa 
co«-operated in this cafe* . , . 

Lord Mansfield ab^eiit. 

The Court were of^iaion^ tb^this^was 
a cafe where it was fit that- a'^i^l at bar (hould 
be granted ; but faid^ that, as it, was a farouF 
afked by the defendantj.^ );hey wo^ld liay-him 
wider the tertios, that, if he fuccead^d^ he 
ihould only have nifi^ prius cqds i bud tl!^t if 
the lefibr of the plaintiff were tOrfucceed, U 
ihould have bar cods, and that the old witnefs 
ihould be examined upon interrogatories, and 
her dcpofitions readi if ihe fhould die before 
the trial. It was alio (by confent) nuttdcpart 
of the rule,, that the caiife (hpukl be tfiedihy ^ 
MiddleJ&x jury, inflead' of one frppn N^rfclky 
where the preiiiiflcs were fituatcd*- .♦: ... 

The rule made abfolute. 



I « 


t ■ • 

I I 

. . . 1 . » 

• « 1 ^ t 


[ 3«9 ] 

'% • J 

tJptm an application f<fr a trial at bavy the Court 
' willy in tvery caji^ exercife its own di/cre- 

tiony upon the peculiar circumfiances thereof^ 
' Where a fair trial cannot be had in the -county 

where the matter arifesy ' th^ trial will he*. 

awarded in the next Englifti county where the 
' ' Kirig's writ of menife i^xi%^ 

■ A rule was made abfolute> no caufe beings Rex v. Amcry, 
fh^^wn, on a rtiotion by Erjkincy for leave to BrR! DumVord 
enter a fuggeftion on the record in this adion, ^id Eaft, i y. 
'* that the corporation and citizens of Chefier ^ ^' 
^ were interefted in the event of this fuit, and 
^* therefore, that a fair and impartial trial 
* ' cbuTd hot be had in the county of the city 
«' ^{Chefterr 

Erjkine theft tnoyed for a trial at the bar of 
this Court ; and relied upon^ the importance 
of the qucftion to be agitated. Lord Holt 
fays, that a trial at bar is of common right ; 
and in cafes of intricacy it is peculiarly re- 
qiliflte*^. '• 

It SVilf bfe folficieflt therefore to induce the 
Court to grant it in this inftancc, by ftating 
to them the magnitude of the fubjcft in dif- 
pute, and the ' V&riety of iffues which are p> be 
tried. - . 

^ The principal queftion is, whether the right 
of clefting aldermen in the city of Cheftery is 
vefted in the citizens at large, or ii> a fele6t 
body ? 

There are twelve iffues on this record, 

I'ft. That this is not a body corporate by 

2d; Non cmcejjiti by the charter of the 27 
of Car, a, - 

C c 3 34. 

i 390 } 

3d. That the charter of Car. %. was not as- 
cejpted, as to the ele&ion of^aldermen. 

4th. That certaip perfons appointed aider* 
men U9der that charter^ did not a6b as fucht 

5th. That the mayor, aldeniien, and com* 
fnon-council^i have not ufed to eleA under the 

6th, 7 th, and 8 th, Rdate to the quijifka- 
tion and eleftion of the defendant, to the office 
of alderman, 

9th. That die charter of Car. $« was ac<« 
cepted, as to all matters cont^ned both in the 
plea, and replication. 

lOth. That the order pf a^mpval in the time 
(^ Jac. 2. wa$. not flgnified* 

iith^ That the charter of reiloratioii df 
Jac. 2. wa$ accepted, 
^ " 1 2th. That the charter^ of Hm* 7. and Eli- 
zah^h are ftill in force, 

Tbtfe iffues muft neCelTariiy give rife to 

inany intricate queftions of etidencet and in 

fa& gj> to the very exiftencc of the corporation. 

(a) 'ln'^x\it'Maidffonff cafes (a), the Court granted 

of?he*|>rh^1 ^^^ ^* kwupon fimikr grounds, bccaufc the 

pafff queftion to be tried involved in it the conititih 

tioij of the borough. 

The Court granted t rule to fhew caufe. 

Bearcrofty Cowfer^ Bower, Leyc^fier, and 
Maniey fhewed caufe^ and conftended, ift. 
That the number of iflfues on a fu0 warranto 
infor^nation, wa?i not of itfejf 4 fufficient lea- 
fon to induce the Court to grant a trial ^ 
bar ; far the fame reafod would equally cx^ 
tpfid to every quo ^arr.anto inforrnaMon ; nei- 
ther is there any peculiar difficulty arifiog^fiom 
fhrfe iflues to warrant: the appikatbg i for the 
principal queftlon is upon the i^cceptance of 

I the 


t 5j?* 3 

ikfi charter of d^e 27 Cfr. a. . whkh n^uft b^ 
proved by liierrccord^of the corporatipa, 

>9)Mt'if the Coi^rt grant a trial at bar) t}iey 
cannot fummoo. a juty from the coimty pa. 
JfWipc (b) i ihcre ncyer haviag l^qp an inftaftce /(» 
of that kind hitherto, except in cafes of tr^ 4inft. %iz. 
ion aod error. Then idly, if the Court fliould 
i)ot grant a trial at bai*, thq next queftlon 
is, in vhich county fhis inibrmation ihall bcr^ 

^ Jt ift n9$ a ipat|er of right to have z record 
&fit ixilQ ,a county palatine^ a^ being the next 
adjaioing county ; and if it be only a matter 
of difeneiion in^ the Courti they will not think 
it advifeable to iqnd this quefbion to be trie4 
;^ tbc> county palatine of Cbefi^^ as the aflize^ 
are held in the heart of the city, )¥here the par-> 
tie$ concerned have qxtenfive connexions^ who 
are interefted in the event, of the trial. 
- It appears fr<?jcn all the cafes (a) upon the fub- («) 
y^^, thi|t it is not a matter of right xo fend ^ re- ^]l^'^^: ^^^'^\: 
Cf0^ d(9W(i by mittimus to be tried in a county Abr. tit. Trial 
pg^igie^ unlefs the niattcr arifcs wi|ti|x that b^o^ Abn\u/' 
cqunty^ : All the cafes upon this futge^arccoU '^'^p^-*^- 
k^J^jin. tl)e. c»fe of the King and Cowk (b)^ * (bf 
whiqb arofe in the town ox Berwick y there, a«ttrr.^34. 
thou^ Durham was in fa£t the next adjoining 
. cQunty^ ,yct the ^court upon fujl conQderation 
fpnt |h^ ii^^e, to be trie4 jin Nortbumberla»4^ 
Wherever jt is fuggpited that a record ihoyld be 
ient down to be tried in the jiext adjoining 
couoity^ H^ m/e^s the next cponty into wbach the 
king'*.]wtit runs. Soj ^htvQ the matter arofe >n 
Jrahndvi^^^V^t^f was dire&ed to the fheriff* of 
SM^i^.(s)i though die IVilJb cpunties* an4 tjwj (0 
county jp^ntine of Qt^^ are both ncwW* t^\^t^^I'%^ 
Again> t\kt whole of F/i>^/Wr^ Joins to th* 
county palatine of Of^Jifr^ and np part of it w _ 

C c 4 Salof^ \ 

nil. 7 Geo. 2. 

C m 1 

Salop, arrd ftt thei-e is no inftance of a record 
in arnf action afifing in Fiintfiiiri hairing been 
fehtto Cbefitr. ' Whererer 6hcre lias'beai an 
exception' to. ihis general i^ule,''it has always 
betn by cotvfen^, as in the c^fe'df the Khtg^sisA 

' WilJoHy Ermine; Woody and ^dppingy wfenit- 
ted, as to thd' firft queftion, that vt^etheTithere 
fliall be a tHat at bar or hot5\iipended upon 
the difcrction trf" the Court ; but that difcretion 
ooght^to be regulated by law, aiid'^iunded cm 
precedent ; and xhejtaf of PF^Jtm^ a. atitkmfcs 
the party ' to ' clainrt a trial at bar, in every 
- queftion of importance. A quo marroHk) -ini- 
formation^ on which depends thd cxiftcficc of a 
oorporatiorr, is of greater conftlquence- than a 
rnene • queftion of right betweeil' two indid- 
duals* One of 'the iffues to be tried is, ^whe- 
ther the <:harter of Car. 2. was- accepted as to 
the eleftion of aldermen, and upon thjtt a^con- 
fiderable qiieftion of law will irifr, whether a 
charter can be farf tally actepttd. • Another if- 
fec'is »6^ conetfftty which involves a queftion, 
whether the king can grant otherwifcrriian tin- 
der *thc feai of the county palarine^'and'wlie^ 
tht^r die grant was made to peribnsF cajtaUe of 
^ing it. • 
(a) • In Lx>Td Sandwich's cafe (a) the Courtiaid, 
V. ante. ^i^^^ where there : was value * and difficulty^ they 
w^re bound of conimon right to grant trials at 
bar. ' •• ..,.;..-.. 

' ifys' to the doubts which have been dirown 
<mt r€fpc<9iing the jurildi&ion 6f Ac icoc|rt,'aiief 
their power to fummon a jury to their' bar 
from a county i^latine, there cah he no fdun- 
^Ha^n far theiti ; fbr wherever tSe- court can 
fend down a record to be tried, they muft 
likewife- h^ve a power of fummoning a jury 

: *-' ' from 


Hard. ^^^. 

i m 1 

, ftom the * faofie >^aco to» . aiteitd ' them at theip 
baiv New htte $H% tx>prt;iinight cert^ni^ 
lend "down ithfeir«cord>to the Chi^fvJiifticoHby 
mittimus; and iftihe j^f;^fbo«H} be ftimmoaed 
to<atteiid dt the bar of this Cfottrt^ atid tbe^ 
refiifed to attend upon the ground of an ^- 
ckiiive jurifdiftiiMi) the-^ Court might proceed 
agdnft^ thcTO for ^ a contemptL ♦ In > the cafe of 
the "King vmd Godfrey (b), the flierifF of the „J^l 
c\t^ o^ Canterbury was findd £. io®. for return^ 
mg txs^^sdifltingar^ that the' nnifor andxom^ 
rtifm^Atf of thtp tity we» txempt«d from ' fenr> 
ing on furiosi in cdnfequencc of rwhich- a jury 
was afejfwards^feti^ncdi The cauft of Lock^ 
yer - agaiAft the * ^Kw/f hdia Company (c) /was (c) 
tried at « bar by a- ipccial jury of merchfltjts *^''' 
from the city of Ijm4on\ nocwithflahding there 
had beeil a 'dil&rent decifton upon the ^me 
isohst in B.' <^ ff^* and M: (d) by reafon, as it ^ ^ ., . -, 
Sas feid6f their charter. Soalfoin the cfe a'n'f '^ '• 
of the King and Lambe (e)) an application was («) 
Etiade tO'i^e coort for a new triajlj becaufethe 4 Burr. 271. 
wariiant ^1^ va tales de eirctiptfifantiim wsi% 
only finned 'by his Majefty'S- Attorney*»Gefle*- 
raljj'W^eas it ought to have been 'procured 
ifrofti' t^ A tto^meyv General of thet voxsia&ppi^ 
latine ; but that was held to be .no . goiod 
grobnd.' • . JThc cafe of the KiMg and^ John/or^ 
(r), whichi^bsient down to be tried by miti^ {X) ' 
mui : in tho^ *opiimy palatine* of' Chefiisr^ and ^^^' ' ^- ^' 
where a fimilar qui^ftion arofe upon the accept 
ance of a charter of ^i^'6b^.- a. d«)es not^ appear 
ilporr the face of it to have be^n^fenc down by 
Gonfent^ ''• '••■'• ■ • ' "'■■'' •" '^'' ■•-' . ' *^ 
-^ As to dre fecandpointii whenewr ^mat- 
ter cannpt^be tried in tiifc j^ac^ where da 
t . n ■ * ■■^■. «.' -■ •.. •*• . cau& 




I 394 1 

cade ftri£3$, it muft neeeffiu-ily be* trkd in^tiK 

next adjoifliog coun^ f the King jgabA HapHf 

U) ^g)* Thi&rufe iaiu{>poraKl by » .variety of 

j^wr, 1530. pi^ecfdentg. . Oho bi particular is more iimnc^ 

diately. appliqlble^ In the cafe i>f;the JMbrar'a 

and ^mftof^0r'& (Company of Ckf/ifr agaiiift 

(«) Radford (a), the exchequer cmirt ^. equvqr. «f 

» ev. 37. . £j^^^^ granted a trial in the eounty palaone, 

jbecaufe an impartial trial equld not be Itad in 
the ctmnty of.«he city. 

Such ha$ always been d)e tnvvriabte rule, 
unkfs both parties have conftfunc^ u^ ^vm\ ia 
another place : and even in thofe cafes^ wheif 
the matter' has arifen in a- <i^ant coumfr, and 
there has been a trial at bar by % jury of the 
county of MiddUJeXy the form of the fu^eftioa 
has always been> that the jury were &i(nmws4 
£rom the next adjoining county. And in the 
prefent cafe, the county palatine is the neit 
adjoining county, where the record may be 
lent by mttimm. 

Xx>rd MANjFiEtn, Cb. ^.^-^AIl quefboos 
coEicemi^ trials at bar muft depend up<m 
their own circumftances* Many inibrmaticms 
in the nature of a qu^^wsrrfinU^ uppn-wiik^i 
the* exiftence ^ corporatios^ dcpe9dt4> have 
been trkd ^tnifipriuSy and many at ban The 
<»sly rule therefore to go by is, the judgment 
which the tourt ihall (ofm.<m the nature (^ the 
ifiues and their dependenciea* J^ow, it.fcems 
to me as clear as poiBt^, that no queftion of 
magnitude can arife in this caiie to render a 
tnial :at>thei bar^of thts^Court n^^^effiiry. Many 
of the ilTues will admit of ho litigation, fuch 
4S| dial k is a CQrpoi!asi[$n hf preft:ri|Htion $ and 
^^ gnmtingi tn/a^ of tiie 4:6arter by C^. 2. 

. . and 

i 395 3 

pad ibme otJijerSi are only confequeotial* The 

great queftioa is o& >&e acce^ame of the char« 

ter of Car, 2^ but tlmt cannot invoive in it 

much difficulty. W/e know the obloquy which 

cfaarters gFapoed at that time lay upder* As 

sny Lord Hardm^h iaid (b), they have Qever (b) 

rwsived any cotuueooace in Wifimin^er Hall; ^^ v. joimt 

and he never .would give aiiy optni w in fup« 

iM^t of them, unlef? ^ ftroagi^ evidence wa$ 

laid before the court of their having been ac-» 

cepted and iimfonnly a£|ed under, Therefore 

there ia no ground in-^ cafefor a trial at 


Then the nnt confideration is, where it 
iball be tried. Now> with regard to that» all 
local queftions which arife in a county palatine, 
muft be tried *there (c). Jn the prefent cafe, (c) 
the naatter arifes locally in the county fifth ^initasj, 
ifiify of Cb^^r r but^ by the fiiggeftion which 
haa been entered upon the record, it appears, 
that an impartial trial cannot be had there, 
therefore it muft be tried in the,, next county : 
but that muft mean the next county where 
the king's writ of venire runs. The county 
palatine of Cb^<r cannot be called the next 
county> for this purpoie, becaufe the king^s 
writ of v^r^ does not run there. Ail this I 
take to have been fuUy^ finally, and ia point 
cftabliihed in the B^wifk cafe. And though 
}fortbumherlan4 was not there laid expreisiy to 
be tben^t t^unty where ibe kin^s writ runs, 
yet it waa taken for granted that it was lb. 

For the fame reafon, where a matter arifing 
in K^ales is tried in the next county, it is never 
tried i|i the county palatine of Qk^er^bot zU 
ways in the naxt M^gJi/k county where the 
king's writ runs, -. - 

[ 3^ ^ 

^»rM^h€rei*ic«Wlt*hase^ef'fent a-tecoMby 

fnittimus to be trfed tni ccSHrtty^'pHlalib^*^ wlft?W 

eke faft did iK)ft arife there j atid^l'Very «ntk:Ii 

doubt* the power of the coDrt-to d«» w.^» l(fl< 

' nK)t quite ctear whw> tlve dte<ftriftd>l>f fcndirtg 

records by tiristimuf into c^itljties pkktiYie iM 

(») firft taken tip ; btfft m the i t Wilh 3. (a), the 

•il*^ '* ^^^ Couf rwcpr^Jsly feid, tfcat they could not order a 

trial in tke county palatine <sli Lancafiery and 
therefore they fent the reconi to be tried in 
T^rkjhirey as being the next county. 

Then as to the meaning of the expreffioo 
of the next Englijh county, it is fufficiently ex- 
plained xn Plo^d. 200. where the reafon given 
for dircAihg the venire to the (heriff <)f fliwv 
fcrd was, becaufe the town of CAriiff was in 
the county of Glamergan ' in fVhlefi tvbere If 
Jberiff of this kingdom of England eann^t inter* 
meddle. From this reafon it is 'manifeft, diat 
it muft be the rieJit Englijh county -where the 
king's writ o^ venire rulis. That is the onlf 
way of accounting for the Weijh caufes* havin]g 
always been fridd in the next Englijb ^oukity 
* where the venire runs, and not ih Chefi^i 
though in fadtrthat is nearer to Jf^ahsn 

Rule difcharged. 

And the <;^;i;y^ awarded' into the coowtf of 

^op. - . - • 

(a) The Maidjfon^ cafi»s came bifort tht 
Court in HiL 13C. %. under- the natives of ^ 

Rex-^. tVMifi>, " ^ -*»• • - 

Rex y. Rand. 
" Rex V. Curieis. 

• Thefc were informations in the nature of 

ouo warrantos againfl the defendants^ to ibew 

. i . caufc 

[i: m: I 

j$0ffe in-iCpi^ :irfi^ chc/qMeAJoh im»^ ^whether* 

thff)^ OOghC to b^tl^S ACrba^ v: ' : : ^. r 

Tr4tcwast objt^(%^ ' apiDO: tlmvtxtala;^ har> by* 
ykT.Solicitet'Generalith^i there wa9 no reaftm 
for it, eidicri iupoA acodnnfc «fiibe/ lengthipr' 
cSfikulty.of' tbe orialsj becaiife tbercl^as bu< 
c^tf finsle iflbe ijiat was materitli and that wast 
upon a bye-lftw,i¥hich wAs it iii4»tbe proof of 
vtrteichcould^apc-takevp any rgreat length of 
time. iA&:Co chc other i0ues uponthe'elecr 
tion, fweariog and admifllon, they were only,, 
cpn^quential^ and muft attend the fate of the 
iffuc upon the bye^law. 

E. cifttra^^ it was in(ifted> that the bye-law 
was plei^iSd a^ a bye-law» not extant in writ- 
ing, which niuft depend upon ufage, which 
ufage n>uft be^proved by entries out of the 
books of the corporation. 

That there was alfo another bye-law fet oiit, 
HI the proiecwtor's replication, though no iffue 
was t^yoeh upon it, which would have very 
great weight upon the trial : and the proof of 
that would Hk^wife depend upon a great va-: 
riety of entries, in order to &ew that it was 
under that .bye*law and not under the bye- law 
alledged in the defendant's piea, that the 
commoo-^coMncil had , exercifed a powers of 
elefting jurats. 

. That the conftitucion of the corporation de- 
pended upon thefe trials, and that feveral 
points of law might arifc in the courfc of 


[ 39S 1 
Tliat> b Eaftit mtn Ufti dm defbukmr 

themfelves confenited to triaU at bar, iHiich 
die ccnttt would chen have granted, bat that 
the iflbes were not then joined. Tha^ die pro* 
fecutnr had made an afiid^vk of ail ^de 
Per Cur. let there be tt*iab at bar. 

' • 

' \ 

* 1 


♦ ' 1 


E a 6 A Y Y. 

' ; f *. ' • . •> ' . • 

'0/* Repkadir's. 

H^betber upon an improper or mmaterial ijfue^ 
. a rephdder flmil Ic granifJ, vr mt. 

DEBT againft. Idfec for years for rent, sencant^. 
The dctendant pleaded chat be before f^'car'/ka 
dae rent was due, for which the aftion was i^t^^^i 
brought, had aflianed the. term to another, of .T'L.^ *^** 
WIIC& the plamti&^ had mUct: me piainticF defendant 
took iffiie upon the Bel/c^, and the verdift be- JJlent of Sf' 
iag for the defendant, it was moved by Allen termbcfor^ 
for die plaintifF, that no judgment ought to wh^h'^a^ntiir 
te giTen^ but a repleader awarded, becaufc the haanotic6,wta 
iffuc was of an immaterial thing, for it is not [henoeioe.**^^ 
the notice of analfignment of the tenin, with- 
out the agreement of the kffor;, or acceptance 
of rent by him from the aHignec, - which dif- 
charges tbe leflee, but an agreement to this, or 
acceptance of rent from the afTignee doth. 
And he cited JV/ob/ibxafe, 5 CoASa^t^ktn of v. poii jones 
piP^mknt upon a iingle bill (withtwit acquittance) v- Bodiaer. 
being found for the jplaintiff, he &all have 
judgment : but of it :hlid.been found: that de^ 
Tcndasit Iiad paid'» ^lad^ont flimald be ar- 
rsifaed. And die difference he ffud is< when the 
iflfue is found againft the :pk3SLder, judgment 
ihail be for tiie pS^intrJBf ; but if for;him not. 
S'mjdmy J.^^faid, if loi m p h pet ^ iflbe is taloen 
a2id.Yerda& giren, judghiienrihaiL be.;giyeii 

V upon 

[ 406 1 

upon it whether it betfi^ tlus |daiittiff Trde^ 
fendanty and cited 5 Cro. 57 5^ Bat an mum- 
(erial ifTue is> where upon the verdiA, die 
Court do not know for whom to give judg- 
ment> whether for the plaintiff, or for the de- 
fendant, as Hob. 175. And the Chief Juftice 
and Windham agreed with him, and awarded 
a repleader^ a Cro. 585, 3 Cro. 2*27, 228, and 
% Cro. 5. 

Day and place nuide part of ibe ijjue. 

Hoibech V Error of a judgment in replevin in C. 8* 
carrr^^R.^' where Bennett was plaintiff in the replevin fer 
a Lev. II. M. taking his cattle in Fillingly Field in Fillingly ; 
"^^piea tn bar to ^^^ Holbech avowed for tha£ the mayor, and 
an avowry for commonaltv, and divers other particular pcr- 
iSt H. d^lT^* ^ons by name, were feifed and by their indco- 
"^fad^V" ^"^^ dated 11 Mareb 1647, ^^ ^^ witneffcd, 
toberacF.iifue that they demifbd to Bennett for twetty-^ne 
l^itafor"* years, and by indenture lO: May in the iidi 
piaiptitf. year of the new king, ic was witnefled> that he 

affigned to Holbech j and that ift O Sober in the 
nth year of the new king, Holbecb, at. i5/- 
lingly, demtfed to Bennett^ rendring rent; and 
for rent in arrear he avowed; the pi^tiff 
Bennett in bar faid, that Holbech did not de^ 
mife the faid ift OSobery at Fillingly afore- 
faid, in manner and &rm as, &^« Upon 
which iffije, and verdiA for the plaintiff, that 
he did not demife, the faid i& Oifober, at 
Fillingly 9 in manner and form as, &^. and 
upon this judgment for the pkintiff, and now 
error affigned ^Itax thb was an immaterial if* 
fue, making die d^ and place of the demife 
part of xht iflbe; for a demife at any odier day, 
or^pkcr^ had bp^ fufficient to maintain the 

5 avowry. 

C 40I ] 

4;«owry> and they are only pm for conformity : 

icr^ading) tbut the plea ooght to have been "^ 

gteend^ t£at he did not demife, in manner 
aodlbcm as^ &r. atid the ^^^ and place ought 
to 4iavc been onnritted out of* the travcrfc, for 
they are not traverikble, and if it had not been » 
fa A^. the avowant might havegivesi in evidence 
a demife at another day and pla^ey which had 
been fufEcient for him to maintain his avowry 
for rent, of which he is now deprived, by the 
bad bar of the. plaintiff, and the Court knows 
not for' whom to give judgment, according to 
the right of the matter, and becaufe this caie is 
ndt remedied by the new ftatute, which cures 
defaults, where the right of the matter is 
tried j as \;^s objefted for the plaintiff that it 
is; and of fuch opinion was the Court, af-- 
ter t^e matter had been twice debated ; but 
then it was doubted by the Court what Ihould 
be done t for per Hale, Chief Juftice, the ifB. R*w-- 
Cotfrt Cannot now award a repleader upon a verfoa judg- 
writ of error, if tHey reverfe the judgment, as "icading.'thoy 
wufe ancidntly done, for which he cittd Trin: ^^^^^^^*^ 
8 k.ii. Rot. 59. Tfin. 11 £. 3. Rot. 75. Trin: q^^ 
orj E. 3. ife/. aii ISl. 33. E. 3. Rot. 79. where' 
this Court awtitxJed a repleader- upon a writ of* 
error, after reverfing of the jud^ent, as the 
cotfrt*of CJ'B* ought to havt dbne before* 
judgrJlfcntsvfbr this hc'feid^had been difufcd 
above one hundred years^'^alnd 'it ttbuld not bif * 
ptit*iri.prA&i<ie now, u^eh WhicR it was prayed*' r 

on' -betelf of the avowant,* to • re Verfe flie jiidg^' 
niefit, land l^ve the maitel- ^t' large,, but .< 

th^n Hali, Chief J; took two ^gSptidns to the- 
avowry j J . It is fllid ttiat the nwybr and corri*. 
mtlMlty, atid the fedffees, l/Hh-efeffcd; which 
is intended of a joint feiftn; and- a corpora* 1 
tion and natural perfons^ cafiHot-be- fct(edF^ 
Vol. III. D d i joinUy; 


[ 40a 1 

I affignment^ sre 00c pkaded 

not good. if they reverie this judgment, perhaps they 

might give judgment for the plaintifi^ mpoa 
his declaration^ for the defoft m the avowry. 
£/ adjoumatur ; Saunders for th^ plaintiff, i>- 
vinz for the avowant. 

Outlawry andprdcefs of execution ibereen, pleads 
ed to an alfion of tre/pafs $ replication, the 
lands where, (^c. traverfed, and verdiS for 

^arCy ifbejball have judgment on the verdiHi 
or on the declaration and plea y or a re- 
pleader ? 

Jones V. Bo- Trcfpafs for breaking his clofe and taking 

w^^[I.'L ^^ ^^^^'^ • ^^^ defendant pleads, that the 
Comb. 379* plaintiff was oudawed, and a capias utlagatum 

iffued, and an extent thereupon, and then a 
writ of Levari. HiL 7 IF. & M* reciting the 
oud^wry, and commanding to levy from the 
day of the taking upon the extent; that this 
writ was delivered to the fheriff, who made a 
warrant, by virtue whereof the defendant took 
dhe cattle in thofe lands. 

The plaintiff replies, that the defendant 
took them upon other lands of the plaintiff 
fbfq' hoc, that he took them upon thofe l^ndsi 
whereupon iffue was joined, and verdid pro 

It was now debated by Sir Earth. Shower 
pro quer\ and Nortby pro defendentd whether 
fhe plaintiff fhould have judgoient upon the 
yerdid or upon the declaration, and the de- 
fendant's confeflion of the trefpais by his plea, 
9r that there Ihould Ijc a repleader i for it was 
6 * ' ' agreed 


:t .403 1 

^^reed on. all hiands, that the b^r was illy fix 
there could be no &fch writ, HiL J ffi^.ii M. 
(for the queen was tben dead) and the iflue 
feemed irnmao^riaL . i i : 

Sir Barth. Shewerpraqutr^ that wh«^e the The Jirue 
plea contains matter of. bat, though not a good riii"^Ld"'*eat- 
bar, and HTue is takeil upon it is holpen by the was on the 
verdift. 3 Cro. 248, Lovelace and Grm/deM, tnS:^^U^ 
3 Cro 455. Cbamteriam znd Nicbois. Mo. 6^1. the verdia fes 
S. C where in debt upon a fingle biil,^ t^ de«- ^ywe ante 
fendant pleaded payment with<Hjt ah acquit*- serjeaat v. 
tance,. yet iffue beingtaken and found for the ,^^^' 
plaintiff, he had judgment. 3 Crc. jji. Dtgb^ 
ftm y. BartbolsmeWf in trefpafs and alTauk tht 
defendant pleaded a concord, but without fftj^ 
tisfauSbion ; and afiqsr iflue and verdi£b ff^ ^»^> 
k was adjudge4 ^h^t it was helped by th^ fta-** 
tute. Mo. 867. Tajker and S^ltsr. lUb. jdtf; 
Reynolds vcrfus Buckle. Raymcnd 453* Spaihurft 
verfus Overind. 


Nortby agreed, the rule laid down by Sir 
Bartb. Sbower ; but here is no matter of bar 
at ail, bccaufe thcr^ could be no fuch writ. . ' 

Holt, C* J. — ^Th^re might be a writ but of 
the exchequer; and if it had been well plead- 
ed, it had been a good bar, lure it hath the 
countenance of a pfea in bar. 2 Cro. 678; Jtme's 
verfos Ridlery in ejfeftment, where t!he* defend- 
ant pleaded an ill fpecial plea (for fometthies 
they pfcaded fpecialiy in thofc days) it wfe held 
he could not take any advantage of l^is own ill 
pled, but the plamtiff might if the vetdift had 
been ^gaihft him. 

I take the cafe of Reynolds, Hob. .3^6. to bo Hob. 2»«, 4^ 
Ihifprinted, for the entry is nd bar.; E^pulfion "'**• 
Aiakds the firft part of the fear, amf holding 
out the reft, the book faith it was fourid fbt* 
^eddfendant^ whidi could not be, die judge 

D d 2 ^ myft 

[ 4<H 1 

mud: dkeft the jury otherwiie. 3 €ro. j^y* 
^ Stoht^ verius Annefbf. In the cafe of ^ajker 
^ and Salter the judgment was reverfed. 

And the Court inclined to give judgment 
for the plaintiflf upon the vcrdift, but after- 
wards. Ho// cited :i.Cr$. 214. Lacy verfus iffy- 
nolds^ and 2 RoU. 99. S. C. and the Court 
agreed, that the plaintiff ihould have judg- 
* ment in this cafe upon the defendant's confef- 
iion of the trefpafs, the iflue being innmaterial> 
fo ^at. the Jury could not give damages, but 
there muft be a new writ of enquiry. Per 
Holt, I Cro. 25; Knight vcrfiis Harvey (though 
not clearly, reported; is home to die purpofc, 
only in that cafe being in debt, there needed 
|M> writ of inquiry,. 22 £. 4. 46. a. (though 
be6>re the ftat. of jeofails) yet goes to the rca- 
ion of the thing. 

The vcrdift was fct afide and judgment jpr« 

• • • • 

Of an impertinent ijfue i of repleaders in general \ 
^ ' 9f jeofails y defaults, and ejoins, &c.. 

Staple V. Hay. The plaintiff S. brings trefpafs againft J. H. 

iJon,M.iAnn. and G. FowleT, for that they,, on the 31ft of 

^The^Mfe' '' May^^ in the thirteenth year of the late King 

Trefpafs, jufti- Jf^iUiamy, broke his clofe called the fFiarf, in 

«S^Scfpafsfor Stepney, In Middlefex, and threw down a perch 

a way. Repii- of rails therein ftanding : and alfo, for that on 

cation* defend- • • /■cs#f/*ii* i ■> 

ant had a more the 7th ot July ^ foUowing, they entered into 
conveni«mt ^^ fame wharf, and committed the like trcf- 

way, and iflue. ^ ' 

^., ... . .- pafs.. ^ 

Hob.i6#' The defendant G. F. as to all, pleads Not 

guilty : but 7. i£ as to the 43efpafs laid on the 

jift of ik£9^, pleads Not guilty as to the ^rce, 

and[ jijflifiies the entry, and throwiag^Muthq 

/* ' railsi 

[ 405 I 

rails ; for that long before one Edward Gl was 
poflefled by virtue of a certain leafe for eighty 
years then to come, and yet unexpired of the 
laid wharfi and alfo of a yard next adjoining 
thereunto ; and that for the neceflary ufc of the 
faid yard, he had and ufed away over the faid 
wharf to certain ftairs on the river Thanies, 
which was thereunto contiguous, there to take 
water, 6f r. and being fo poflefled, he, on fuch 
a day and year, which was prior to the time 
laid in the trefpafs, demifed the faid yard (inter 
alia) to the defendant J. H. for a term of years 
yet unexpired, with all lawful ways, £s?r. there- 
unto belonging : by virtue whereof he . enter- 
ed, and was poflTcfled, ^c. whereby he was 
intitled to the faid way : that the plaintiff ob* 
ftrufted it with rails> fo he coming to ufc it 
could not pafs j and that he requefted the 
plaintiff CO open the rails, which he refufed,.fb 
he juftifies the throwing them down, and pleads «« to the 
diredlly in the fame manner to the other tref- [S^he'hld^no 
pafs laid on the 7 th of Julyy and avers, that at other way to> 
the feveral times he had no other way to the ^ jolad^.^ 
faid ftairs and river Thames ^xh2LTi by and through 
the faid wharf. 

Plaintiff, as to the plea to the firft trefpafs, 
replies, that the defendant J, H. had another 
more convenient way to the river Thames than 
through the faid wharf, and thereupon they 
are at iffue ; and upon t'he plea to the trefpafs 
on the 7 th of 7«/y, he demurs, ideo fiat jurats Hob. 66^ 
to try the iffues, and affefs contingent damages 
i3pon the demurrer. Both defendants make 
defeult at niji prius ; which being recorded, 
the inqueft is awarded by default, and G* 
Fowlef is found guilty of the trcfpafe on the 
jjfl; of Mayy but acquitted of that on the 7 th 
of Jtily i and J. H. is acquitted of the trelpafs 

D d 3 oa 

If a repleader 
ought to be in 
this cafe. 

When a re- 
pleader (hall be 
upon an imniA- 
terial ifliie* 

Where the 
muft begin as 
to repleader. 


f 406 1 

on the 31ft of May as to tbc force, but the 
Jury fouad is to the reft, that he had no other 
way tol the faid flairs and river Thames than 
through the faid wharf, and aifefs damages 
upon the demurrer, and acquit him of the 
txelpais on the 7 th o{July. 

In this cafe feveral points were moved and 
relblved by the Court : 

R. Whether a repleader fhould be in this 
cafe, there being, as was faid, an immaterial 
iiTue joined i and the Court held clearly the 
iiTue was impertinent^ but as to repleaders ge- 

1. The Court held. That a repleader is to 
be awarded when ilich an iflue is joined^ as 
the Court after trial thereof cannot give a judg- 
ment, as being impertinent, and not deter* 
mining the right. 

2. That before the ftatute of jeofails y if fuch 
an iifue were joined, the Court before trial 
might award a repleader. 

3. When a repleader is awarded, the amend- 
ment muft begin where the plea which makes 
the ifiue bad begins to be taulty ; and there- 
fore if one makes himfelf a bad title in his de- 
claration, to which there is a bad* bar, and 
thereupon a bad replication on which there is 
iflue, there the repleader muft be awarded and 
entered on record i and plaintiff (hall declare 
de novoy &c. But if the bar be good, or pica 
be good, and the replication bad, and iifue 
thereupon, there a repleader will be only as to 
replication ^ but if bar and replication be bad, 
and a repleader awarded, it muft be as to bodi« 
Vid. 3 Keb. 664. 

4. If the Court award a repleader where it 
ought not to have been, Or deny it when it 
ought to be^ it i« error. 

5. That 

[ 407 ] 

5* That upon award off repfeaaer/ thert NocoHson 
mu& be no cofts, bccaufe it is a judgment ^^'^"^ ^^ "- 
of the Court upon the pleading j but upon ^ ^^ ^' 
annendnnent of a plea in paper^ there mull be 

6. That upon a general rule for repleader, General rule 
without any direftion from the Court frortr °^ '^^p^***^'^- 
what they ihould begin the repleader, it rrtufl: 

begin from the firft &uk which occafioned th^ 
bad pleading commenced, for the judgment 
is qucd paries riplacitent. 

7. That the pleadings in this cafe wefe fuch Averment 
as a repleader would be awarded upon at the Ihe^iff^i^'^"- 
colnmon law; for the defendant having in- ^e^t. 
lifted upon a title to a way by grant, his aver- 
ment, that he had no other way, was imnla* 

terial, and by confcquence the iffue thereupon 
impertinent ; befides there was no ifllie at all 
joined, for the plaintiff's affirmative does not 
meet with the defendant's negative. 

8. That though a repleader fiiould have kepieaderb^ 
been at common law in this cafe, this motion co™™^ law, 

2n<i Wneu 

having been nude before trial, and it being gr«Qtabie. 
doubtRil whether a verdidl would not help ft 
by the ftatutc of jeofails^ the Court faid k 
would be juft in them not 10 grirtt a repleader 
tiU after verdift ; for they faid they might in- 
deed, grant a repleader before verdi(!S^ at com^ ^ 
moit law, but they were not bound to do it. 
So note the diverfKy firtce the ftatute ; for Aid by fta- 
tiiough it were reafonable to award a repleaded tuteiaw. 
befbt^ verdi£b at common law, where the 
pleading appeared ibch on which no judgment 
could be after rcrdi^b 3 yet' fmce the ftatute, 
when verdi& may cure immaterial or inforUfi^ 
ifiues, it may not be proper to do it, 
. 9. After the trial, the Court hgld, That this V14. % Lcr. 
iflEue was fuch on whidi no judgitt^m gouM iVaunr'sis, 

D d 4 be 3 3>9* 

r 403 1 

be; for defendant pleaded, that he Kad no 
other way to the ftairs and river Thames: 
FlaintifF replies^ that he had another way to 
the faid flairs and river Thames ; and Jury 
found no other way to the faid ftairs and 
river Thames, fo in truth there, was no iflue 

10* That in this cafe there could be no rc- 
pleader, for the parties were quite out of Court 
by the default. 
(9) In reference to the way claimed, thefe points 

J?o'a w'aT'' were agreed on by all : 

<^jaiiijcd. I, That a man cannot claim away over ray 

ground from one part thereof to another j but 
from one part of his own ground to anotheri 
he may claim a way over my ground. 

vid, z Or. 170. ji. A ftranger may have a way over another's 

foil three manner of ways, viz. . for neceffiij^ 

by grant, and by prefcription : for tteceffityy as 

if jf. has an acre of ground furrounded by 

Way for iie- ground of 5. ^f • ^^'' neceffity has a way over 

^^^y* ^ convenient part of 5 *s ground to his own 

foil, as a neceflary incident to his ground : fo 
if ^. grant a piece of land which is furrounded 
by land of vendor, he grants a way as a neccf- 
fary incident therewith. 
By grant. 3, If one be feifcd of Biack-acre and fVhite- 

>cr.i2x,iaa, ^^^^^ ^^j ^^^^ ^ ^^^ ^^^^ WbtSe-ocre from 

Black-acre to a mill, river, fcfr. and he grants 
Black-acre to B* with all ways, eaiements, &iV. 
the grantee ihall have the fame convenienqr 
that grantor had when he had Black^acre: fo 
ii4' has. two acres of land, and has a way from 
them over another's foil, and grants one of 
them with all ways, the grantee Ihall have the 
fame way that grantor had: but there the 
grantee in making title muft alledge fuch an 
fitate in the grantor as is traYerfjd>le^ and not 


I 469 1 

only fay, ^' that* the grantor was^ poflcflcd oT 
the place to which, 6fc. for a term of year$, 
for there the poffcfTion would be travcrfable 

If a way of neceflSty be clahtied, it is a good Prefcription, 
plea to fay, the party has another way ; but 
/ecus where a way is claimed by grant or pre- 

4. The way of pleading in this cafe had been The way of 
to flicw, that fuch a one was feifed in fee of SSXr* 
the place to which, &fr. and being fo feifed was 

intided to a way, and flicw how, and that he 
granted to leflbr, (^c. who alfo granted it to 
him, 6fr. For when one (hews a particular » 

cftate, he muft fettle the fee in fomebody, 

5. It was agreed, that by grant of a houfe a way of 
to which there is a way of neceffity, without ^^^^ ^^' 
more, the grantee Ihall have the way as well 

as if it were fpecially mentioned in the grant, 
a Cr. 190, 

It was refolved, that if the plaintiff had de- (?) 
murred to the defendant's plea, without doubt to p^^"'"*^'^**^ 
^ he (hould have had judgment. . 

Upon the point. Whether the matter were (4) 
now cured after vcrdift by the ftatute of ieoT\ if aided here 

- . , , ^ . -^ J •'by the ftat. 

/ausy thele points were agreed : 

!• If a jury find a point in iffue, and a fu* 
perfluous matter over and above, that fhall not 
vitiate the verdift^ 

a. That in this cafe the Jury found nothing 
that was put in ifTue, for they do not find that 
either he hadrio other way, or had another way 
to the Thames; but that he had no other way ' 
to the ftairs and Thames y which might well be, 
and yet he might have another way to the ' 
^Thames. i 

As to defaults after iffue, the' Court took a (5) 
diverfity- between a real and a perfbnal aftion-; J^f^^/j'^^f*^'^^* 1 

r tor in real anions. I 

C 410 1 

lor in a real a<5)tion, it a tenant nniake default, 
the demandant may, if he pleaie, waive the 
benefit of it, and proceed by further proceis 
againfl him ; as if the tenant make default on 
the original, the demandant ihall have a grsnd 
iope ; and if the tenant do not Have his de* 
fault, the demandant, if he infills upon it, 
Ihall have judgment final upon the.firft dc-» 
fault } but he may, if he pleafc, releafe the 
default, and continue further procefs againft 
vid.2Cr.36. ]xvti. In like manner of a default after ap- 
isaund.45. pearance, the demandant (hall have a petit 

(apey &c. and if the tenant do not fave his de^ 
fault, he may have judgment upon the de- 
fault J or if he will waive that advantage, he 
may, and proceed by further procefe. If in a 
X Jo- 4'2» 41 3« real aftion the tenant make default at nijiprius^ 
icro. 517. ^j^^ default is never recorded, but only the 

pojiea marked ; and the demandant, if he will, 
Ihall have a petit cape^ and judgment there- 
upon if the default be not faved, or dfe he 
may waive the default, and continue with 

Ferfonai ac- further proccfs. But in cafe of a pcrfonal ac- 
tion, a default at the trial is always recorded, 
and there is no farther procefs in law to bring 
the defendant into Court upon releafe of the 
default. And anciently at every contimiance- 
day the parties were demandable ; and if the 
defendant did not appear, or were not eflbincd, 
his default was recorded, and judgment given 

'icr.5xi. againft him thereupon : but by the ftatuteof 

Murlhridgej c. 13. and fVeftm. 2. c. 27. after 

peSL^'ion. iff«e J«i"^d in a perfonal aftion, the defend- 

ant fhall have but one effoin and one default; 
and if the default be upbn the venire fac\ then 
it is recorded, and a dijiringas Ihall go againft 
the jur. ad triand\ and againft the defendant, 

to receive his judgment j but if be comes in at 


t 411 1 

tha d^y of niji prius, he faves his default ; but i>cfauitpc- 
if Jie does not, the default is peremptory^ and ^^^p^""^- 
final judgment (hall be given thereupon. And 
it is to be obferved, that this one eflbin and 
one default th^t the ftatutcs give, muft be at 
the firft continuance after the iflue ; for if the 
defendant (hould appear at the firft continuance, 
viz. at the venire fac\ he (hall neither be ef- 
fbined, or have a default faved at return of the 
diflringasy but judgment peremptory (hall be 
given on luch default. 2 Inft. iiy. 

If defendant imparl to a day in a per(bnal imparlance 
aiftion, and he does not appear at the day, apcrfoiiaiac" 
judgment final fhall be given againft him ; for ^'^^' 
the default is peremptory to him, and there is 
no procefs to bring him into Court again. 
Vid. 38 H. 6. 23' ^^ ^^^^ ^he defendant 
pleads in abatement to the writ, to which the 
plaintiff imparls, and at the day given the de- 
fendant makes default : judgment final is upon Abatement ia 
the default, though the plea was only in abate* ^^^^' 
ment, 18 £. 4. 7. In trefpafs the defendant Demurrer ia 
demurred, and made default at day given, and '^^W^* ^^ 
judgment final. In debt upon an obligation, 
defendant pleads a releafe, and after demurrer 
day is given, and default is made by the de- 
fendant at the day, judgment final (hall be 
given: Vid. i //. 7. 11. In trefpafs defend- 
ant imparls, and makes default at the day, 
judgment final (hall be given : fo in debt, 1 1 
//• 7. 5, and the cafe in 2 Cr. 357. was re- 
itienibered, where a judgment in an inferior J"^g»«ent final. 
court was reverfcd for this error ; that the de- 
fendant being eflToined, and making default at 
the day given by eflToins, they gave a further 
day when it fiiould be a judgment by de- 

So now, what ftuck with the Court was, whether here 

whether ju^sra^nt 

[ 4ia ] 

ihouM^ciipon whether judgment fliould be given' upori the 
fAi*!^n"h"dc. demurrer againft the defendant, or upon the 
fault. default i that is, whether he being out of court 

as to one iffue by the default, he could be pre- 
fent in court as to the iffue in law upon the 
demurrer, fo that the Court might give judg- 
ment thereupon: and as to this point, the cafe 
was, a defendant in two feveral trefpaffes^/^^Jj 
an ill plea to one, on which plaintiff demurs, 
and joins iffue upon the other, and makes de- 
fault at the day of ni/i prius -, whereupon the 
inqueft is taken by default as to the iffue, and 
contingent damages upon the demurrer. And 
Wardy for plaintiff argued, that judgment ought 
to be upon the demurrer, 
Diverfity as to , j. This is not fuch a default on which judg- 
dGfemiaius! ^ mcTit Can be given, and he took this diverfity, 

that wherever in a real aftion the default is 
faveable, fo that grand or petit cape (hall 
go, there in a perfonal aftion a default is not 
peremptory, but there is indeed a proper pro- 
cefs to iffue, and bring the party into court. 
As for the purpofe in a real aftion after im- 
parlance jp;w^jp^r/;^w,. or upon effoin, if the 
party having chdfe his day fail thereupon, pe- 
remptory judgment fhall be thereupon, and 
the lands feifedj and in that cafe, judgment 
would be likewife peremptory in a perfonal 
aftion ; but if the default were upon the re- 
turn (/ a procefs, which is faveable in a real 
aftion, there judgment peremptory ought not 
to be in a perfonal aftion, becaufe there the 
day is not taken or chofen by the party, but 
given to him by the court, and it feems but 
reafonable he fhould be more feverely ufed 
upon his default at his own day, than. at a <fi« 
datus by the Court. 
As to default gut thiS' IS Only in reference to defendant? \ 

I 413 ] 

but in cafe of plaintiff's, they are in many cafcs 
dcmandable arday given to purfue their writ*: 
but in cafe of defendants, upon default at a 
day given before plea pleaded, there fhall 
be no judgment peremptory. Vid. 7 //. 6. 19, 
41. 19 H. 8. 6. 

In trefpafs^ the defendant appears upon the 
exigent, and day is given over to another term, 
at which the defendant makes default, and 
per Cur. plaintiff can only have procefs adre^ 
Jpond. And if he fail thereat, then three ca-- ^ 
piaj^s and exigent as before; and he quoted 
20 Ed. 3. 12. 2 H. 4. I. pi. 3. 2 H. 4. 4. 
II ft 4. 31, 32. 20 H. 6. 44. Jud. Reg. 
I a. b* 

The writ o^ ad audiend. judicium was of Breve ad aa- 
great ufc dien, diough now altogether dif- cIS^"'"^'^'" 

37 H. 6. 29. gives an account of it, that 
formerly, when a demurrer was joined in a 
real or perfonal aftion, this writ ufed to go to 
bring parties to hear judgment, but now the 
courfe is, that he attend at his peril. 4 H. 6. 
29^ That the defendant is not demandablc on 
demurrer, but the plaintifF is only to appear 
and pray his judgment. Juft as upon a writ 
of inquiry of damages, the defendant has no 
day in bank ; and in Common Pleas, neither 
plaintiff* nor defendant have a day given them, 
but plaintiff* is to attend for his. judgment. 
Cro. El. 75. 14.4. 

But. plaintiff^ has day by courfe of K. B. 
Tel. 97. I RoL Ab. 486/ Now here, though 
there be but one ve. fa^ to try the ifllie, and u^^e are two 
inquire of the contingent daitiages, yet thefe diftinci matters 
arc as two diftindt matters, for anciently the ^'^ ''''^ ^** ^** 
courfe was not to put both together; but that 
is new, and for e^fe and difpatch, • and here 


How> if judg- 
ment were to 
be upon the <le- 

waived by de- 
fault in a per* 
ional action. 

V^en inqucft 
may be taken 
by default, be- 
fore county or 
aftefj &c. 

[ 4H 3 

the jury might have been difcharged of the 
iflue, and yet enquire of the damages as an in- 
queft of office. i6 Ed. 4. i. 2 Inft. 44.0. 

a. He infifted on it. That if judgmci^ 
were to be upon the default, it mufl have been 
given at the niji prius, and that being not 
done, and the default being for the plaintiff's 
advantage, he might waive or releafe it, and 
quoted 42 Ed. 3. 1. and the defendant upon 
a writ of error can never take advantage of 
the matter. Fid. 2 Saund. 46. 

Darnel contra. Wherever there is a demurrer 
in any perfonal adlion, and the defendant makes 
default at the day, the demurrer is waived. 
F. DefauUy 59. 38 H. 6. 22. In perfonal ac- 
tions, if the parties are at iflfSe or demurrer, 
and after defendant makes default, the judg- 
ment fhall be upon the default, and the de- 
fnurrei* is waived- Bro. Default^ 58. 39 H. 6. 
16, ajid continued to i8> Bro, Default ^ 73. 
Fitz. Jpur. 33. Procejsj 147^ 45 Ed. 3. 3. 
And as to obje&ion, That if judgment were 
to be given on the default, it (hould have 
been immediately. Anfwer^ All the judges 
of n\f% frim could do, was to record the de- 

Powell, Juftice. — I da not find but the 
parties are demandable, both in cafe of day 
given upon demurrer, and upon ifiue joined; 
]^ut after ifTue, inqueft nuy be taken by de<*' 
fault. But in debt, fuppofe the defendant 
pomes in upon the exigent^ and the plaintiff, 
as he may, prays a day ; there it being a day 
had on prayer o£ the plaintiff before count, if 
defendant make default, proceis ihall . go to 
bring him in ; but if the plaintiff had count* 
ed, and before iffue the defendant had made 
default, if plaintiff will deman4 him^ be may 


I 4ii 3 

have judgment upon the default; and I take 

it to be the fame upon demurrer where day is 

given iat which defendant makes default, for 

diere judgment fina] (hall be, and no proceis 

ad audiend' jUdic\ vid. i8 Ed. 4. 7. And the 

book of so H. 6. 44. is miftaken by Fifz. for 

the book is full, that judgment mud be upon 

the default. 44 Ed. 3. i. After demui*rer in 

perfonal aflion, that procefs fhould go ad au- 

diend* judic* -, but before demurrer or iffuc 

joined, if day be given after pleading, a de- 

&ult will be peremptory^ and judgment ^nal 

upon defafult, but the ufage now is not to de-* Modem ufasc 

mand them. 

It i$ very hard to make a default at a day 
given by court on demurrer, peremptory ; but 
here is an iflue as ta part, and a demurrer as 
to theother part,. and a ve.fa. to try the ifliie, 
and inquire of damages. And day . is given 
with a nift priusy which day of niji prms is in 
truth but to try the iffue, and inquire of da- 
mages, but the day on demurrer is ad au-- 
diend' Judk' ', (o that in truth the day given 
ad triand. €xit\ &r. has nothing to do with 
the day of demurrer, and it is not necef&ry 
tba^ the defendant fhould have a day on the 
writ g( inquiry ; fo that the day ad avdiend* 
judk\ in this cafe, is the day in bank, and the 
default at %ift frius is only to that for which 
defendant had a day there, that is» to try the 
if}ue> and the taking the inqueft by default 
is a waiver of taking advantage of judgment 
by deSftult. 

' Nor do I know where plaintiff may, in a 
perfonal aftion, take advantage of a default 
upon the inqucfl:; but where the defendant 
pAeadsi a rel^fo or acquittance> and at iflue 
makes default^ there indeed he oniay pray judg« 


C 41$ 1 

ouodHoit mcnt upon the default; or that inquefi: be 
cooceffit. taken by default j but after he takes inqueft 

. by default, he is too late to pray judgment 
by default, for his taking the inqueft is a 
waiver of the judgment by default, and judg- 
ment muft be Upon the verdid, and not upon 
the default, that being waived by prayer of 
inqueft» Upon an iffue of non eft faHum, you 
cannot take a judgment by default. 

Holt, — ^The queftion firft is. Whether if 
default be in a perfonal a£bion after declara- 
tion, and day given over, either by impar- 
lance or any other day j whether, I fay, this 
be fo peremptory that judgment final ought 
to be upon that default ; and I think in cafe 
of imparlance, whether to a day in the fame 
term, or another, judgment final ought to be, 
i8 Ed. 4. 7. 36 H. 6. 19. and 19 /7. 6. arc 
full in the point, without taking any dif- 
Two defaults Now then upon demurrer, becaufe parties 
ZfhTonl'm are at iffue in judgment of court, fuppofc it 
aaion perfonal. had been in real aflion, and Cur^ adv* vulti 

defendant makes default, petit cape muft go, 
and he does not fave his default, (hall not 
judgnicnt final be given upon die default ? If 
it be fo when there is a demurrer in a real ac- 
tion, is ic not much (Ironger in demurrer in a 
perfonal adtion ? And it is not lefs peremptory 
upon demurrer than imparlance^ for if default 
be after demurrer on day given in fame tenn, 
it is peremptory ; that is, if party does not 
come at fuch day in the fame term, it is a de- 
parture in deipite of the court ; and there in 
real aftion, no petit cape Ihall go, but judg- 
ment final fhall be on the demurrer, and not 
upon the default ; fo that, if the book of H. 6. 
be law, as fure it is, judgment is as 
be given upon default in perfonal a£tions, as 


[417 1 

in real, only that there muft be two defaults 
in a real ad;ion, and but one in a perfonal 

19 H. 8. 16. If party comes in upon pro- 
cefs in perfonal aftion, or upon cefi corpus^ or 
exigent y and day is given frete partium^ that is, 
by confent of parties, at which day default is 
made, no judgment can be given; , Why ? 
Becaufe there is no declaration. But if it were 
after declaration, and at a day default had 
been, it were peremptory. So is the cafe of 
7 H. 6. 19. 41. one in cuftody of marlhal 
upon a premunirey is charged by bill in nature 
of an appeal oi Mayhem^ and day is by confent 
of parties, at which there is a default : therb 
cannot be judgment final, becaufe though he 
had been charged in cuftody of the marfhal, 
yet he never had been in court; but if the 
default there had been upon an imparlance, it 
had been peremptory, and final judgment had 
been thereupon. Indeed, in annuity, which, 
though perfonal, yet partakes of the nature of 
a real aftion, for there is final judgment given 
to recover an inheritance, and the proccfs in 
annuity therefore imitates that of a real ad:ioni 
after default there Ihall be a dijiringas ad au- 
diend' judu to afibrd the defendant an oppor- 
tunity to fave his default, becaufe though the 
recovery Ihall charge the perfon only, yet it 
may be of an inheritance* So in a Jeita ad 
molendinum if defendant make default, there 
fliall be a dijiringas to give him liberty to fave 
his default, for that alfo follows the nature of 
a real aftlon, as being of freehold or inheritance. 
F. N.B. 123. D. 

,Ay, but this is like an inquiry of damages. 
I. If judgment be againft a defendant, and an 
inquiry of damages, he has no day given him 

Vol. III. E e thereupon^ 

Where day is 
given, pr6ce 
partinm, b«ifore 
declaration, &c. 

j tt. 6. 19* 4T« 


Sefta atl mo- 

where only in- 
quiry of da- 
mages, and 
where both if- 


fue and d«- thcTcupon, and therefore he can make no de- 
fault ; for the Court have already givea their 
judgment againft him, and he thereby is quite 
out of court, and the inquiry is only to alcer- 
tain the damages. But where there is both 
iffue and demurrer, and before judgn)cnc on 
the demurrer a ve, fa. goes to try iflbe, and 
inquire of damages, whereupon defendant has 
day, on which he makes default > is not that a 
default to the d^y of demurrer as well as of 
iflue ? For though they be in truth different, 
viz* one the day of nifi priusy and the other 
the day in bank, yet in confideration of 
law they are the fame. If there be two de- 
fendants who plead feverally, one of them de- 
murs, and judgment is given againft him^ be- 
fore iflue joined with the other> then be againft 
whom the judgnient paffed has no day in 
dOurt, yet the plaintiff may continue proccfs 
againft the other ; but if in that cafe the iflue. 
were to be tried before judgment, then the 
defendant who demurred has a day, and that 
is the fame that the other has by the nifipriusy 
which by law b the fame with the day in baqk. 
A default in real aftion at the day ofnifiprius 
is the fame as ^ day in bank, and as fatal, for 
they are not to be fevered. And why not fo in 
a perfonal aftion, and it is incident to the trial 
of the iffue, to inquire of the damages upon 
the other iffue in law. So if the day of nifi 
prius be the fame with the day in bank, the 
two have the fame day ; but here, though it 
be one defendant, yet you would have him be 
out of court as to iffue, by reafon of default 
at nifi priuSy and in court upon the demunrer 
in the day in bank ; that is, in and out of 
court the fame day. 


t 419 ] 

If there be default after demurrer joined, Judgment upoa 
judgment ftiall be upon the default^ or upon dcmuf^f'*'^^ 
the demurrer i and when continuance isgiven^ ed, 3fc. 
the appearance of both parties are entered ar 
the continuance day, and anciently thejr ufed- 
to demand the parties; fo then they liy at 
lurch for one another, but now thefe are things 
of courfe. 

And whereas my brother Powell affirms^ 
that there can be no day on the deitiurrer bui 
the day in bank : I would fuppofe thfere ara ' 

two defendants, one pleads to demurrer, and * 
the other pleads to ifTue, arid ve. fa. goes t6 
try iflue, and inquire of contingent damages j 
before the day of ntji prius and puis darrein' . h b 81 
continuancey 3. releafe is made by plaintiff ta ' ' * 
the defendant that demurred ; can he plead it 
at ni^ prius ? And if he fails in doing it, cam 
he plead it in bank at day there ? And Powell 
Jubito allowed he might plead it at nift prius^ 
but not in bank ; but after feemed to doubt; 
whether after demurrer a plea puis darrein con^ ' 
tinuance could be pleaded. 

If at a day given upon a writ of crrCf de- 
fendant makes default, the writ of error may 
go on, and the judgment be affirmed, becaufe 
it is no new judgment that is given for the* 
defendant, who is now out of court by his de- 
fault, but only his former judgment affirmed- 
and ratified ; but in that cafe it were hard to 
give the defendant cofts upon the ftatute : fo 
if a defendant make default, plaintiff may a man out of 
have ludsmenti for a man that is out of F^y*"^ ^*y ^^^'^ 

-^ ^ X -J . • A judgment 

court may have a judgment given againftagamfthim, 
him, though not for him : And he wifhed the J||^s^ """^^ ^^^ 
defendant's counfel to take care how they made 
default; for after default, though plaintifF 
could not prove his declaration, fo as verdiA 

E c 2 would 

[ 420 ] 

^ouM be for himi yet it were very hard to 
give him a judgment, for he was out of 

At another day another point moved in this 
cafe, was, whether judgment might not be 
given againft the defendant upon the ifliie, 
though looked- upon as immaterial, and a je- 
ofail? Becaufe the defendant confeflTed the 
trefpafs in his plea, and made no good juftifi- 
cation: fo (as was urged) judgment ought 
to be given againft him by confeffion. And 
confeffesthe hcrcupon Ch. J. Holt took diverfity, if one 
trefpafs, but of- coufcfs the caufc of aftion, but pleads matter, 
tcr of bar, if which, if Well pleaded, would bar the plaintiff, 
vfiHob'^^e^* there it were hard to hold the defendant to 
Hardto'hoii fuch confcffion, and give judgment againft 
the defendant j^j^ ^5 ^itYt the defendant indeed confeffes 

to l;js confef- \ r r ^ rr r y 

fion. the trefpafs, but offers luch matter as if true 

thlmatte^co^^^^ ^^^ ^^^^ pleaded would juftify him: but where 
feflTed would the faft is confeffcd, and fuch matter of jufti- 
praindif!^'*" fication offered, which though never fo true, 
^ and well pleaded, would not bar the plaintiff, 
there judgment may be upon the confeflion,as 
in an aftion for words, for calling plaintiff a 
thief. Defendant juftifies, for that the plain- 
tiff received a thief, and pleads it ill ; there 
judgment may be upon the confeflion, for that 
matter could not have been fo pleaded, as to 
have juftified the words. 
Two defend- In the further debate of this cafe, the court 
;^ms fever in j^^j J jj^^j. jf ^^ere bc two defendants who fever 

tbere'can be no in pkas, and onc is found guilty, and an ilFue 
rcpiwUci . j^Q^ helped by the ftatute of jeofails is tried 

for the other, who having made default is out 
of court, fo as there can be no repleader, and 
of confequence the judgment muft be to quafh 
the writ or bill, it neceffarily fliall be abated 
thereby as to the other j for though one de- 

I 4^1 3 

fendant may be acquitted in part, and cori- 

demned in part of a' trefpafs, or one of two 

condemned, and the other acquitted, yet the 

•writ cannot abate as to one, and fubfift as to 

the other ; and as to trefpafs againft two, 

when the acquittal or difcharge of one fhall wjientheac- 

difcharge the other. FU. 2. Cr. 134. Tref- ^T'l^^^n 

pais againit two tor taking gun and dagger j aifchargcthe 

one juftifies the taking in his own defence, be- ^^^^^' 

ing affaul ted by plaintiff; the other pleads not ' '• 

guilty, and is found guilty, and damages 

againll him, and the other iflue is found for 

the defendant, there judgment fhall be againft 

•him thatf is found guilty ; for the other's plea 

does not deftroy the plaintiffs title for good 

and all: but if trefpafs be againft two for^ 

taking the plaintiffs goods, and one pleads Wherethepie* 

not guilty, and is found guilty, and the other of on® oft^e 

juftiiies the taking by gut, C57f. and his plea is tireiy deftroy s 

found true, there for as much as the defend- a^^j^^^"^^^^ 

ant's plea entirely deftroyed the plaintiffs 

caufe of aftion, he (hall have judgment againft 


But the laft day of Hilary term following^ PerCur. This 
the whole Court declared. That they were of ^ "tutetfjt.^^ 
opinion, that the ifTue was helped by the fta-. ofaiu. 
tutt of jeofails y and for fo much gave judg- 
ment for the defendant, and as to the demurrer, 
gave judgment for the plaintiff, without any 
rcafon. Fid. 2 Saund. 318, 319. 

E e 3 In 

C 4^» 1 

Ik replevin^ plea in bar^ with an ablq. hoc, replu 
nation to an ijiie^ demurrer to the replicaiion^ 
and concludes in abatement. Judgment final in 
C. p. for the plaintiff. Qu. If repleads can 
be upon demurrer. Of a plea in bar conchul" 
ing in abatement. Of matter of ab(ttem(nt^ 
and concluding in bar. 

coofTe V. Sii- Replevin for taking his mare in quadam locOj 
b.'r^^'m^'''* called The King's Highway. The defen4ant 
J02.' cognovit captionep^y damage fef^nt, in qupdam 

Error in B.R. ^^^^^ called The ^ccn's Highway i as bailiff to 

the Lx)rd L. whole freehold the place where, 
is. Ab/que hqc^ That he topk equam pre£ m 
pred^ locoy called The King's Highway i pro ut 
th€ phintiff adver/us eum narraiJity & hoc pa* 
ratus efi verific^arcy unde petit judicium fs? re* 
turn\ i^q. Plaintiff come$ and fays, ^odcog- 
noffere nqn d^bet, quia dicit quod diSo tempore 
quO: ^c. cepit equam pred' in pred' loco tunCy 
called The King's Highw(iyi modo £sf forma 
pro ut pred" plaint' allegavit, and hoc petit quad 
inquiratur per patriam. The defendant de- 
murs, arid conclude?, Unde . (utprius) petit 
judi^iu^y £5? quodnarratio' pred' ca£etur : jxid^- 
•m^nt final in Com' Ranc' for plainti^ aiii af- 
firmed here upon error. 

Holt, Ch. Juft. — The whol^ poim of thj? 

cafe, take it tl;ie ftr9[igefl; that c^ be, \%y ^fter 

a plea in bar, and a replication, the defendant 

demurs to the replication, and concludes in 

abatement, andfure there judgment final ought 

1. That all the to be givcn ; and they all agreed, that all the 

Snw'is^wXed ^^^"^^^^ of cohufance in the plea was waived by 

bytheabfque the abjquc hoc \ and the conufance in a dif- 

ijoc, &c. ferent place from where the declaration lays 

the taking, is in truth matter only proper in 
. 'y - ^ ' • ' abatement! 

[ 4^3 ] 

abatement i but the conclulion turning it into i.Thatinrher© 
an avowry, makes k a plea in bar, as - aU ISe'm L'Sci 
avowries are> and final judgment is always inbar,&c. 
given upon them, if they go for the avowant, i'lfj^to^h^"*^ 
They alfo agreed, that where matter in abater 
ment is pleaded in bar> and concluded in bar^ 
judgment final ought to be given. 

But it was objefted/ That the demurrer be- 
ing ill concluded, viz, in abatement, and con- ^ 
trary to the bar, it was to be looked upon as - -. - 
if there were no conclufion at all, and it would ''^ 

be a difcontinuancej and judgment <H^t to 
be by nil dkit. '^ 

To which the Court anfwcred, That the 
conclufion to the demurrer was, unde petit ju^ 
di£ium (ut prius) and that is well enough, and 
according to the conclufion of the plea in bar, 
and the lubfcquent words, ^ quodnarr^ ca£e^ 
Sar, being inconfiftent, ihall be rejeded. 

So per t^f Cur' the j[udgment was affirmed, ^"^^^3^°^ ''^" 

iVi?/^, here Powell politively faid. That re- if t repleader 
pleader could never be upon demurrer, but is S'^'.^.r"* 
always, after ilTuej diough the old books- 
feemed to make a queflion of it, yet there 
were twenty authorities in the new books of 
it : and yet Bratherick feemed as carneft of a 
contrary opinion at the bar, tacente Holty Ch^ 
Jui. fc? Cur' reliqud. - ^ 

Not€y In the debate of this cafe at the bar. That in ihi* 
it was agreed. That the matter of this plea "^« ^^« '"*"«*' 

^ . . , , *^ . was abateraenta 

was matter m abatement, vzz. a variance m viz. a variance. 
the places. 

2.. That in replevin the defendant is both 
aftor and defendant. As defendant, he may 
abate the plaintiff's writ, and that were vain 
for him to do if he could not have a return» 
and therefore he muft proceed from his plea in 
abatement to make conufance i for his adion 

E c 4 being 


Where de- 
fendant claims 

VW. 2 Lev. 92. 

1 Vent. 127. 
3 Cro. 896. 

2 Cro. 519. 

Jf pica be in 
bar, and con- 
cludes in abate- 

Vid. I Vent. 

If the plea be 

inenft and con- 
cludes in bar. 

How the de- 
ffindant in re- 
plevin may take 
advantage of a 

[ 4^4 3 

being a claim of right to diftrain, he ought to 
make title to it againft the plaintiff in the re- 
plevin \yho claims property in the diftrefs. 

Yet this rule would be explained; if de- 
fendant in replevin claim property in himfelfi 
he (hall have return without conufance, be- 
caufe his plea deftroys fhe plaintiff's title : fo 
if he lays property in a ftranger, and make no 
conufaitce, if that matter be admitted by the 
plaintifif, there fhall be a return without conu- 
fance ; for in that cafe by the admittance, the 
jplaintiff's property is deftroyed. But in all 
pleas that do not ftiew the property out of the 
plaintiff, there muft be a conufance made, and 
the plea is what only is anf\yerable, and not 
the conufance, for to traverfe that would be a 
difcontinuance, 8 Ed. 4. 41 b. Cro. El. 372. 
Mic, 2. W. and M. in B. R. Hallvttfus Foot. 

If a man plead matter in bar, and conclude 
in abatement, it fhall be taken for a plea in 
bar from the nature and reafon of the thing; 
for the plaintiff can have no writ, if he has not 
a caufe of a<5tion, and therefore the Court will 
take the plea in bar. 37 H. 6. 24 a. 36 H. 6. 
24. * 

If one pleads matter of abatement, and con- 
cludes in bar, et petit judidtwt ft pi. aSionem 
habere debet ^ though he begin in abatement, 
and the matter be alfo in abatement, yet the 
conclufion being in bar, makes it a bar; and 
the'reafoh' isj'becaufe you admit the writ by 
concluding fpeqially againft the adtion, 18 //. 
6. 27. 32/5/. 6. 17 b. 36 //. 6. 18. 22//. 6. 

And here Holt, Ch. J. faid. That in reple- 
vin, if the defendant will take advantage of a 
variance in the place where the taking is laid, 
from that in which really it was, he muft plead it 
v^ • / • " ' in 

[ 425 ] 

in abatement, and begin tithcr petif judicium de 

f?reve^OT de narr' quia dicity the cattle were taken 

in fuch a place, abjque hoc, that they were taken 

in the place in the declaratidn. Then indeed 

he comes, et pro retorn* habendo diftin<9:ly; he 

fays, he avows the taking in the pkce nnen- 

tioned in the inducement of his traverfe, Az^ 

ttizgtfefanty or for rent, fcfr. To which no 

anfwer is to be given, but all is to depend on 

the plea in abatement ; and it is a proper con- Conciunon. 

clulibn in replevin to fay, nude petit judicium 

fc? return* averior\ without faying any thing of 

damages, for they are given by the ftatutc. 

In quo warranto, as to a Juppojed mis-direSfion 

of the judge, that defendant could not prove a 

mode offwearingy contrary to what be badfet 

forth in the record i the merits might he tvitb 

the defendant, but his plea wrong. Court gave 

leave to move iofet aftde the verdiSl, and that 

a Tep\Q2idcr fiould be awarded; one of the ijfues 

joined, and verdiSl, being impertinent and void, 

' other ijjues were found for the King (as well 

as this) but without evidence. — yifter long 

argument on the doEtrine of repleader, all the 

verdiStsfet ajide, and defendant bad leave to 

amend his plea, whereon the immaterial ijfue 

was taken, on payment of common cojis. 

The defendant had pleaded to an informa- Monday, 9th 
tion in nature of a quo warranto exhibited May 1757, 
againft him " to (hew by what authority he phiih>s7 mayor 
*^ a6led as a mayor of this borough," a title ^^ Carmarthen, 
of eledlion and fwearing under a mandamus I'^R^vr.zt^T.. 
purfuant to 11 G, i. c. 4. but the fwearing was ant^eje^gj'^^' 
(by miftake) fet forth to have been in the mayor, and 
fame man net- as it ought to have been in cafe mauua^ut^^^ 

the * 

[ 426 ] 

miftakc alledg- thc elcftiOD had bccn upon the GHARTBR* 

Ctl fwearing as j 
if npon a chai- Q*iy. 

tci-day. Upon the replicatiQa, na lefs than fourteen 

aflucs were joined : which wept down to he 
tried before M. Ch. Bacon JParkery as Judge 
oinifiprius. But one «f tl>c ifllies (the gm) 
was taken upon the fwearing thus (erronc- 
oufly) alledged to be before fuch perfons as 
were only proper to prefide upon the chap- 
ter-day i (jufi as if ii had in faS beat an 
eleSiim under thjb chartek)^ which was a 
mere mijlake in the dcfendant*s plea; fiar 
his REAL fwearing in faft was right, viz. 
AGREEABLE to the dircSlions of ii G. i. con- 
cerning the manner of being fworn under and 
purfuant to a writ of mandamus^ The plea 
was worded thus, as to his being fwora in, 
vi%. *^ That after thc defendant had been fo 
*^ ekQ:ed aad chofen to be mayor, i^c^ and 
" before he took upon himfelf to execute the 
" faid office, to wit, at that same meeting and 
affemhiy fo bolden upon the iaid Friday y the 
faid 30th day of May in the a&th year 
" aforefaid in manner aforefaid, he the faid 
*/. Roger Phillifs.y immediatel^y after his faid 
" elcfbion, did then and there, according to 
" the DIRECTIONS o( the letters patent of 
the faid late King henry the ^th,TAK£.his 
ccrporal oath, upon the holy Eyangelifts of 
God/' BEpoRE John Evans merchant,* 
George Jenkins, Daniel James, William Sears, 
Lazarus Thomas, Samuel Morgan, John Evans 
CARPENTER, .Jobn Evans curriea, Richard 
Leigh, George. Rayle, ftho/nas Richard, and 
Lewis Philippy then and there being twelve 
difcreet andhonffl^ men of the burgesses of the 
faid councy-burrougbj rightly, well, and feidi'?. 
folly to execute |iie.iai4 office of mayor of 


i 4^7 ] 

the faid county-tburrough, in all things touch* 
ing and concerning the faid office ; they the 
faid Join Evans mercbani, G. J. D. J. IF. S. 
^r. S.M. J.E.t. y.£.€. R.L. G.B. T.R. 
and L. P. then being twelve dijcreet andbonefi 
men of the burgesses ^the faid county-bur- 
fough^ then and there appointed according 
to the DIRECTIONS of the /aid letters pa- 
tent laft before mentioned, by the faid then 
comnxux-council of the faid county-burrough, 
BEFORE WHOM the faid Roger Philips, fo elcAed 
wd chofen mayor of the wid county-burrough 
^s. aforefaid, was to tare his /aid oath : and 
that he the faid Roger Phillips was there^ 
upoK, then and there, in due mannerly admitted 
into the /aid oftce of naayor of the faid county- 

RV VIRTUE WHEREOF he the fa^id Rogei^ 
PbillipSy on the lame Friday the faid 30th day 
of Maji^ in the 28th year aforefaid, and from 
thence continually afterwards, for, fc?c. was 
mayor, i^c. And by that warranty he the 
faid Roger PhillipSy oxx, &?f. and from, (sfc 
until, ^c. did ^* there ufe and exercife the faid 
" office of mayor, &c. and for ^nd during all^ 
*^ the faid time, did there claim, (sfcJ* 

The LorJ Chief Baron, who tried the caule, 
reported that he was of opinion, upon the trial. 
That upon the 9th iflue, the defendant could 
not give evidence of a different fwearing ftom 
what he had alledged upon the record \' and 
That upon the loth iflue*' (taken upon th^ 
allegation of being by virtue thereof mayor, 
i^c.) ** he could not vary from the title before 
" /et outy by virtue whereof he claimed to be 
'^ mayor^'* And he h^d diredbed the Jury to 
find for the King : and they found a verdict 
accordingly. And he alfo reported " That no 

*' evidence 



[ 42* ] 

evidence was entered into, upoii any of the 
" iffuesii and that verdidls were found for the 
" Kfng upon all of fhem : but that this was 
*' agreed to be withouT prejudice in any future 
^' triair ■ ♦ 

Mr. NortoTiy Mr. Mortoriy and Mr. PnV^ — 
for the defendant, haH thereupon moved for 
and obtained a rule for the profecutors (who 
had thus gotten a verdict) to fhew caufe 
** why there fhould not be a new trial-** upon 
an infinuation " that the Judge who tried the 
** caufe, had mis-dire^ed' the Jury:'* which 
mis-difcretion confifted, as they alledged, in 
this — vi:^, " that the Judge had precluded 
" the defendant from giving any evidenice to 

prove his fwearing, as Jet forth in the. faid 

9th iffue J the Judge apprehending, and fo 

direfting the Jury, that it could be o(no 
•* kind of fervice to the defendant, to be ad- 
*^ mitted to prove an iffue, which \f proved or 
*' even admitted y could not at all tend to make 
" out his right i" for that if this fwearirrg as 
UNDER a CHARTER-ELECTION wcrc to be ad^ 
mitted y yet ftill it would not appear in any 
part of tjpe record^ that he was regularly fwom 
UNDER a MANDAMUS cleftion ; which was the 
/pedes of ele5fion under which he claimed. 

Sir Richard Loydy Mr. Serjeant Poole, and 
Mr. JJion were prepared as they faid, to fliew 
caufe, by convincing the Court, '^ that the di- 
" reftion of the Judge tvas right ; and con- 
" fequently that the verdift ought to fiand** 

Lord Mansfield. — The* direftion of the 
Judge was certainly right: therefore, if you 
fhould prevail in this application for a new 
trial, it could be of no fervice : for, as the re^ 
cord Jtandsj the fame difeftion muft be given 

again. / ' 


I .429 3 

Yet I am very defirous to cure this flip, if 
pofTible : for the merits have rievet been tried. ' 

Confider whether the verdict may not be 
fet afidci and the parties admitted to plead 


The rule was enlarged; with this addition^ 
viz. to fhew caufe " why the verdift (hould 
*^ not be fet afide, and ^ repleader awarded.'* 
Mr. Serjeant Pooky for the profecutor, now 
fhewed caufe againft fettins: afide the verdifl: 
awarding a repleader. And he alledged 
that, though there fhould be a repleader 
awarded, yet the whole record muft neverthe- 
Icfs Jiajid 2LS it is at prefent. 

As to repleaders in general, he cited 6 Mod. vide ante. 
I. The cafe of Staple v. Hay don (ift refolu- 
tion) : it can only be on fuch an impertinent 
iflue, as that the court can give no judgment 

Mr, Norton^ Mr. Morton^ and Mr. Vrice^ 
contra^ for the defendant — the ifTues are not 
all found againft us, abjolutely \ but without 
prejudice to any future difpute, except as to the ' 

Mr. Norton^ Mr. Morton^ and Mr, Price, 
ftated the miftake : which they faid was thus, 
viz. the defence fet up was *^ An eklfion of the 
^^ defendant under a mandamus, iffued purfuant 
*' to II G. I." And in fecting out his oath of 
office, he avers it to have been duly taken \ 
and (hews it to be an oath, taken by him upon 
this election y and fets out the right and' proper 
oath of office \ but the plea 'tis true, goes on 
(following, by miftake, a precedent of a plea 
of an oath of office taken under an election 
upon the proper charter-di^.y) and alledges it 
to be a fwearing at the fame meeting fo hclden, 
&c. BEFORE perfons who were only proper to 



[ 430 1 

prefide upon the CHARTER-^ayj viz. (before 
twelve iurgejesy i^c) 

Which fwearing, before thefe improper per- 
Ibns, they urged to be totally inirndterial : and 
thati for the fake of attaining juftice, it ought 
to be Jbme how or other fet right ; the t^ve 
quejiion having never been triedy viz. *^ Whc- 
" ther he took the oath of office, agreeably to 
" the DIRECTIONS or II G. I." 

Therefore it (hall either be amended^ or a 
repleader awarded: for upon the prefent re- 
cord, there is »^ juftification^/ ally and there- 
fore the iffue joined is totally immaterial. The 
cafe of Staple v. Hay don ^ 6 Mod. i. is almoft in 
point. I Ld. Raym. 707. S. C. [i Salk. 173, 
216. S. C] 

This is a good plea in Juhfiance\ but ill 
pleaded in point of form. 

They ought to have demurred to this part 
of the plea j and not to have taken ijfue upon 
it; for it is a nnattcr o( law, " Whether 
*' the taking this oath would have juftified the 
" defendant:*' and a verdift cfinnot make that 
good, which the Court fees cannot be in law. 
Therefore this verdift is y utterly void: juft 
like that in Hobarty 112. Tajker v. Salter. 

And fuch repleaders, in informations, are'no 
novelties; for in i Ventrisy 122. the cafe of 
* N. B. This Reynell v, Heale * ; a repleader was awarded, 
was a qm tarn {j^caufc the iffue was mis-joined. 

information at * t i /r f • • n *- t 

leaft; if not a And they offered to pay cofts^ in order to 

tTJbTktln!?'' have this matter fet right; and infiffed that 

confiftent with this Is but juft and rcafonablc ; efpecially, as 

lifkoW^hlVau^^^ m^ny other perfons rights depend upon the 

ihews that it right of this mayor. 

Love y. IVotton — where a repleader was award- 
ed after verdiift ; the defendlanC having rhif- 

§ pleaded 

pleaded the ftatute. The reafon 6f awarding 
the repleader there, mufl: be " becaufe the. 
" true merits had nen}er been tried** 

They even urged farther, that it might well 
be taken, upon the face of tht record, " that 
*^ he was fworn before i\\t proper perfons:'* 
it being alledged " that it was at the same 
** meeting then and there fo holden/* 

But they infilled that at moft, this is only 

As to repleaders in general— they cited i Sir 
7* ^' 394- ^he cafe of Rex v- Philips ^ mayor 
of Bodmyny where the defendant's title was 
clearly defe^ive^ and confefled an ufurpation j^ 
and therefore, as the merits appeared to be 
againft the defendant, the repleader was not 
indeed there granted : but the general pofition 
feems to be, " that it mighty otherwije^ have 
" been granted/* 

Mr. Serjeant Pooky Sir Richard Lloydy Mr. 
AftoHj and Mr. Nares pro rege — argued that it 
is needlefs to grant a repleader, where there is' 
Jufflcient appearing upon the record, where- 
upon to give judgment againfi the party, ex- 
clujive of the part which is pretended to be 

Nor Ihall a repleader be awarded, where 
the defendant has fet forth a defeSlive title. 

Now certainly this is a defe^ive title: he 
appears to be fworn before improper perfons : 
and does not at all appear to have been ever 
fworn before the proper ones. 

This is not a mere defective manner of 
PLEADING i like Cro. Jac. 434. the cafe of 
Holms V. Broket — where iffue wasl joined on ^. 
plea of payment before the day -, or Hob. 112. 
the cafe of Tajker v. Salter ; where the ifTue 
(upon the way) was in efFedt no iflue at all. 


[ 43^ ] 

But this is j^bfplutejy a defcSiive title $ s 
fwearing before improper perfons : and is like 

V. ante. 6 Mod^ I . the cafe of Stable v. Hg^don, . And 
they cited Crj), 'Eliz.jxiAr. the z^{^ of I^€y v. 
Reynolds ; where, though the iffue was imma- 
terial, yet, the plea confefling the words, the 
court gave judgment as upon ^ confeflion. So 

V. ante. CartheWj 371, the cafe of Jones v. Bodinner\ 

and t Salk. 173. S. C. a likerefolution. So, 

v.antcEf- I Ld. Roym. 390. the cafe of PiUs v. Pole- 
fay II. IX. (8.) hampton. - 

But if a repleader fhould be granted as to 
THIS iffue, yet enough (befides this) will ftand 
upon this record, to intitle us to judgnneat for 
the king. 

Repleaders are never awarded for the fake 
/ • of parties i hut for the fake of f he COURT. 

And this is the reafon why , there . are nQ 
cojls upon repleaders : as appears by 2 Salk» 
TITLE Repleader, [fo. 579. which i^.an 
abridgment of the cafe of Staple v. Hay don m 
6 Mod. I. and i Ld. Raym. 707]. 

Nor Ihall repleaders ever be awarded, where 
fufficient appears upon the record^ whereupon the 
court can give judgment. They (hall apt Jbe 
awarded, only becaufe the party has h^s- 
TAKEN his cafe: they fhall neyqr be awarded, 
but where the iffue is fo immaterial that; ^e, 
court cannot tell how to give judgment, 
v.ante. In the cafe of Serjeant v. Fairfa^y in i i^*. 

32. it is laid down by 7z£;j)/^^»,. and agreed by. 
, the Ch. Juftice and Wyndhamy that." An.iai- 
" material iffue is^ where, ygon the verdjft, 
^ the court can not know for whom to give. 
" judgrnent; whether for the. plaintiff, qr^fbr 
^^ the defendant.'* 

It depends upon the plea pleaded ; not upon 
the real merits : for though the iffue be.w- 



[ 433 ] 

-proper, yet judgment (hall be given ; a^ is es^- 
prefsly laid down in the farjie cafe of Serjeant 
V. Fairfax — i Lev. 32. " If an improper 
*^ iffue is taken, and verdift given thereon, 

judgment (hall be given thereupon i be it 

for the plaintiff, or for the defendant." Cro. 
yac. 288. the cafe of Tampion v. New/on, and 
Bridget his wife : the plea of the feme without 
the baron was no plea at all, nor confeflTed any 
thing. In Bro. Repleader 55. it did not ap- 
pear how much the executors had; who 
pleaded '^ riens inter maines^^ which was 
found againft them. Cro. Eliz. 245. the cafe 
of Love V. IVctton (where the ftatute of ufury; 
was mifrecited) was a cafe where no judgment 
could be given: for the court was bound to 
know the ftatute 5 and that there was no fuch 
ftatute as was pleaded, which was a ftatute 
made the Jixth of February. 

In the prefent cafe here is no fault in the 
pleadings: therefore, where (hall the repleader 
begin ? This cafe is not the fubjeEt -matter of a 
repleader: this is only a defective title. 

It would be an error, to grant a repleader, 
where the court can give judgment upon the 
pleadings already before them, 

Now here, the defendant who claims to be 
mayor has ^qt Jhewn •" that he v^disfworn be- 
*• jfore the^r^^ perfons :" and the Court can- 
not prefume it. He is afked, " quo warrantOy* 
he afted as mayor : and his defence is thisy 
** by a proper eleftion and (improper) fwear- 
'• ing ;" and that *^ Eo warrantOy^ he afted as 

But this plainly appears to the Court to be 
no warrant at all : therefore, the Court muft 
give judgment againft him. 

Vol. Ill- F f And 

[ 434 1 

And the Chief Baron certmrAy determifted 
right; for a mart cannot plead off^ cafe^ and 
then prove another. 

Hob. 1 1 2. the cafe of fajkef V. Sdter is not 
like this cafe, ^bis is a falty 6ti t^^hich tfic 
Jury ^^i;^ judged. 

And furely it docs itof follow, nof can it Be 
taken upon the fade of this record, th^t b«atife 
he was fworn at THAt assembly, ht muft 
therefore be fworn before the ^r(?/)^f PEftsoNS. 
On the contrary, it is rnoft manifeft that Me 
has not fet out a complete titte to exercile the 
franchife : and therefore the Court muft ^Ve 
judgment againft him. 

The other iffues Were nev^r proved-^ and 
even this bad title, fet ifp by this iflbe, is fotind 
f^lfei viz. " That he was Jiot ^ojworit in^2& 
" he has pleaded.'* 

And judgment fhall be given againfl Ae 
defendant even Upon an iflbe misjoined, if 
found FOR the plaintiff y Cfo. Eliz. 778. the cafe 
of Dighton V. Bartholomew^ 5 Co. Rep. 43,_iVif- 
choll's cafe, Cfo. Jac. 377. the cafe tK Edtvard 
Maria Wingfield v. Bell^ !2 //". 7. 1 1. ^. Rix v. 
Herle^y which cafe proves that if a mart f^ife tip 
a right, different from his trife tide, it fli^ be 
againft him ; and he fhall not (tt up djictfer 
title, afterwards. ' ^ 

The Court may here gi^'e judgment as Upon 
a confeflion, when the inue rs imnrtatftiil, ind 
the miftake not amendable : and there fftaU in 
llich cafe be no repleader. Carthew^ 37 1 '. the 
V. ante. cafe Q? Jones v. Bodinner, txprcMyy ^Mad. 
./ aa6, 227. S. C. Cro. Jac. 678. the cafe of 
Johns V. Ridler; where though the Iflbe was 
immaterial, yet being fourid^r the ptihtfjf^it 
W4s adjudged for him, upon the defend^'s 
confeffing of the ejefting. 


[ 455 1 

In the cafe of Love v, U^oti^y Crq. EltTi^ 
ft45. the covrt ^^Id not give ^ complete judg* 

Cro. Car, 25 • The cafe of X^/fg-iS^^ v. Hof^y, 
admmiftratQr of Harvy^ M. i. C i. (where 
the .defendant: pleaded an impoffible judgment;, 
and rien^ en J^s meines^ but only to fatisfy it ; 
and the .pkintifF replying, the ifliie was found 
ifor the plaintiflV and he had judgment) is % 
cafe parallel to the prefent: for as the judg- 
ment thefe pleaded was a bad judgment, f^ 
.this is certainly z nAX> /wearing in: therefore^ 
tb^e Court will here give judgment upon the 
information ; as they did upon the plaintiff'^ 
declaration there, notwithftanding that imr 
poflible iflue being found, it being found for 
(hcplaimiff. ■ 

Here both the eleftion and fwearing in, 
^tight to have been well pleaded ; neither is a 
defence, of itfelf, alone. And the Court can- 
not take notice of ihtfaSi^ otberwije than as it 
has been pleaded. 

., Therefore judgment may be given, as upon 
^ COnfeJOfiqn^ in the prefent cafe : for the de- 
fendant j^^z«;j no right at ally to a6l as mayor. 
iSothat, upon the whole, judgment ought to 

.be entered for the King, ufon the face of this 
record : to prove which, they cited 2 Strange 
873. the cafe o( Broome v. Rice et aV in C. B. 
as- in point ; >yhere, though the juftification 
confeffed the caufe of aftion, in effeft, yet the 

.- plaintiff replying ** de injuria fud propria abjq^ 
*^ fati cat^a^' iffue was thereon joined, and 
fo\md for the defendant ; but the verdidt was 

.. fet afide ; and judgment ordered to be entered 
for the plaintiff, and a writ of inquiry of da- 
mages to iffue* 

^ F. f 2 Mr. 



[ 436 1 

Mr. Nortofiy in reply. — The substantial 
part of this plea, is the " being Jwom at this 

ajfembly immediatefy after the eledlion : and 

the pBksoNS before whom the fwearing is al- 

ledged to. have been," may be coniidered 
as furplufage. Iffoi we ought to have been 
let in, at niji prius, to prove our plea : if it is 
mt fo to be taken, we ought now to be let in, 
either to amende or to replead. 

This would plainly be a good har^ if well 
pleaded 'y therefore the Court will, for the 
fake of juftice, grant a repleader. 

The title fet up by the defendant, is an elec* 
tion under a mandamus ; and the defendant has 
accordingly ftated an election nnade purfuant to 
the direftions of the 1 1 G. i. and a fwearing- 
in purfuant to it : but he goes on, and parti- 
cularly ftiews a fwearing-in before twelve bur- 
gejfesy the cHARTER-ofBcers, (which fhoiild 
have been alleged to be before *' the perlbns 

direftcd by the 1 1 G. i . viz. the then pre-- 

Jiding officer {y and this, upon iflue taken 
thereon, is found againji him. Now furely 
this has not tried the merits : this iffue was 
quite immaterial : and therefore there ihall be 
a. repleader ; and this muft be a repleader of 
our whole entire title. 

But they fay that " this is a defective title; 
" not a mere improper title : and that there- 
*' fore judgment fliail be given againft the dc- 
^' fendant." 

Now this is not the ruleof repleaders. In- 
deed if the bar be evidently not ^goodjufti^- 
cation, it is idle to grant a repleader : but other'- 
wife, a repleader Jhall be awai'ded. In Cro. 
Jae.'^. the cafe of Coxe v. Cropwell, the huA 
band pleaded '* Not Guilty,*', when no tort 
was fuppofed in him : fo that this was a cafe 


f 437 ] 

where the Teal queftion had not been tri^d: 
and therefore the Court granted a repleader. 

And the party who makes the firft fault, 
may, notwithftanding that, pray a repleader. 

Wherever the Court fee, upon the whole 
record, that the iffue joined will not try 
the true queftion^ the Court will grant a re^ 

The cafe o( Serjeant v. Fairfax, i Lev. 32. v. ante. 
p. 13. c.2.B.J^. is ftrongly for us. It was 
a l^ad plea ; it proceeded originally from the 
defendant \ an immaterial iflbe was joined ^ 
and a verdift was * aminjl him : and y^/ a re- * ^^' th© 

, J 11 ^1 • . verdidl was for 

pleader was awarded; because the ntertts the defendant ; 
HAD NOT been determined, and the Court a^d tue plaintiff 

1 J 1 /■ 1 r 1 • moved for a rc- 

could not therctore know for whom to give pieauer. in- 

judgment. raTd'T'^^-^'^*'" 

r But they fay that " herb i^fufficient for the the VaTrfi thw^t". 
^^ Court to give judgment upon." - " for lh/*biif 

I anfwer, that thefe are not to be taken as « tiff, or for the 
independent unconneSed iffues ; but as one en- '* »iefendant.* 
TIRE TITLE, though confifting indeed of va- 
rious diftinft partSi And he faid he could fee 
no reafon for the Crown's taking fuch a num- 
ber of iffues, upon thefe quo warranto informa- 
tions : indeM perhaps the fingle iffue of" not 
MAYOR," would take in the whole. 

Lord Mansfield. — General rules, are 
wifely eftabliflied, for attaining juftice with 
cafej certainty, and difpatch. 

But the great end of them being " to do 
juftice,'^ the Court are to fee that it be realty 

In order to difcover what was juft uf)oin 
the prefent occafion, he faid he would confider 
this cafe in two views j viz. 

I ft. Upon the mere {qottoi xht fwearing, aa 
it is here pleaded and put in iffue; and 

F f 3 2dly« 

a31y. What altemrion is made by the ^tber 
iffucs, and the verdifffs upon them> found m 
the manner as they have here been. 

Firft — If this iffae upon this fweating-in, 
had ftood alone^ this had been an immaterial 
ind void ifluei as it tends to prove notbitg^ 
titber for the Cromny or for the deftndant i and 
from which, no conclufion can be drawn> either 

it appears too, «pon the record, diat thh 
hfiGHT have been fo pleaded, as to bave (hewn 
whether he had, or had not a right ^ {fiip- 
pofing the <^ftion to be confined to chis fingie 

What IS the rule of law then as co fodi 
ah immaterial iffue joined, and wrdiS upon 

It IS, " that When die finding upon it does 
"not determine the rights the Court ought to 
•* award a repleader : unlejs it appears fnom 
^ the whole record, that no manner offleadmg 
** the matter COULD have availed.'* 

The principal cafes to prove this, arc 
(amongft many others to the fame eflbft) 
6 Mod. a. The cafe of Staple y. Haydon^ { ift. 
refoiurion] where the Court held, " Ttm a 
" repleads r is to be awarded, vAttnJueh an if- 
** fue is joined, as the Court, after trial there- 
'* of, cannot give a judgment, as being im- 
*' pertinent, and not determining the rights (i 
lay the ftrcis on thcfe words, " and not de- 
<* termining the right'*) 

Moore 867. the cafe of ^ajker v* Salter y 
\S. C. with Hobart 112! the verdift pafled 
upon a void iffue : and the Court awaked a 
repleader. It was as no iffue at all, and im- 
pertinent, as pkaded, 


E 459 1 

H^rc, ii: MIGHT have het^ pleaded .n]fi/ • 
byt as there pleaded, it diji ' Jiot conclude ; 
aad cKeri^fore the Cojgrt cogld not determine 

So the c^fe in Cro, Eliz. 245. jp?w v- Wot^ 
ion (^ plea of the ftatute of ufury, upon the 
vfurious bond) there, ^3 theftacuDe was plead- 
ed, the ponclufion, *' that the obligation was 
** t^en by ufury, &?f." was immaterial : but 
the ftatute might haye been pleaded right; 
* and then it would have been a good de- 
fence : and therefore the Court awarded a re- 

But there is a later cafe, (aqd the Courts 
have been myore liberal of late years, in their 
deteroiinatipns, and have more endeavoured 
to attend to the real jufiice of the cafe, than 
forjoacriy;) and this is the cafe of Try on v. 
Carter i M. S, Q. 2. which is reported in 
a Strange 994. and is a very material cafe ; 
" A bond ^Conditioned fpr piiyment of money, 

m or before yCaHecemher. Plea pf payment 

on 5th pecemher. Replication, iffue, and 
** verdift.for the plaintiff/' This was holden 
to be an immaterial iflge % ,aDd A repl^der ^as 
therefore awarded : though it would have beea 
concluiive, if found for the defendant ; but 
did not conclude, when fognd for the plaintiff. 
Therefore (though that was a flip of the de- 
fendant) as ic did npt deterrpine the qupftion^ 
a replead^ was awarded* 

The cafe that has begn me.n]tioried of Rex v. 
Philips. M. 7. G. I. in Strcmge 304. is mate- 
rijal, for the reafon given by Ld- V^- J- Pratt^ 
for ifthe jiuftification is fuch in pgiw of matter 
and firi^ftaqce, as could not, if put into an^ 
form of words, be niater.iai with regard to the 
/defwdawt by way of defence, it is in vain to 

F f 4 grant 

[ 440 1 

grant a repleadef ^ it being to no putpofc to do 
fo, where the cafe if/elf cannot be amended^ or 
would be at all material^ if put in any fhape 
whatfoever : which was that cafe ; for it 
amounted to a confeflion of the ufurpatiori, 
a$ was there holden. And if it did, then he 
very rightly faid, ** that // the Court (hould 

grant a repleader, the defendant could not 

mendhh cafe; for the plea would ftand; 
** and after the formality of a demurrer, the 
*^ Court muft give judgment upon the good- 
" nefs or badnefs of it." 

And l^rd Chief Juftice Pralt went on, and 
compared it to an ill jufliBcation in trefpafs, 
(where no form of words would have mad6 it 
a defence ;) and therefore was of opinion, that 
as the plea was ill, and contained no title to 
the franchife, the Court might give j udgment 
upon it, as confeffing an ufurpation [Vide 
I Strange 398.] 

Now here, fuppofing (as I faid before) the 
fwearing to be the only iflue ; is it not a quef- 
tion totally inconclujivey " whether he was, or 
*' was not, fworn before these perfbns ?" 
" Does it at all conclude to the real question?" 
Is not this, manifeftly, a flip ? Does it not ap- 
• N. B. This pear that this plea * could have been mended? 
pieafeemsto Certainly it COULD ; viz. by pleading the 

have been good . •' . . ' -^ f P n 

inform; hut Iweanng-in to have been agreeable to the Jta- 

1"!"' '* ^«^^ ^f ^ ^ ^' ^- [^- 4- § 4- wh'^^h direifts it to 

See F'ortef- be befotc the prefiding officer.] Therefore, 

^"flSSiT. the REAL juftice of the cafe is, that this flif 

&ould not be fatal for ever. 

This is a franchife of great importance. It 
is fo, in itjelf: and, befides, the rights and 
privileges of many other perfons do depend 
upon it. And thefe writs of mandamus ifluing 


C 441 ] 

purfbant to this aft, were intended for the^Z-^ 
tling and prejerving of corporations. 

If this was the Jingle ifliie, I think they 
would be clearly intitled in this cafe, to a r^- 
pleader. Yet 

Secondly — It is objefted, ** that here are 
*^ many ether iffues^ all found for the CroiVHy as 
** well as this." 

But the iflbe juft now fpoken of, as imma« 
terial, and void, is an ifTue taken upon an ef- 
fential part of an entire defence ; for the de- 
fence here pleaded l^y the defendant is one en^ 
iire defence : notwithftanding that the Crown 
is at liberty to take diftinft iffues upon the 
diftinft parts of it. And therefore it would 
be abfurd and inconfiftent, that the finding 
againft the defendant upon the ofber iffues, the 
xythtY parts oi one entire defence^ (hould ftand; 
in cafe we Ihould grant a repleader upon, or an 
anaendment of this part : for if that Ihould be 
permitted, the finding would ftill be againft 
the title of the defendant, it b^ng fet up and 
* pleaded as one entire title. 

I agree, that if it appeared upon the whole 
record, " that the defendant was not duly 
" eletS^ed," it would be as Lord Chief Juftice 
Pr/?// fays, a vain and idle thing, to grant a 

But if the reft of the iffues are only parts of, 
and dependent upon the whole title 5 the 
fame reafon does not then hold. 

The way to do complete juftice indeed, is 
to let in the one fide, without prejudicing the 

If a repleader was to be granted (upon the 
fuppofition of this being the only iflue) it muft 
be * WITHOUT cofts. But as this was a miftakc ♦ v. 6 Mod. 
of the defendant 5 (in which the profecutor was aicort.^"*'"*' 


iK>t u> fcbtne) wc ought to jdo the moil: cona* 
plete juftice w€ can, E^4:wcca both. 

My J-iOrd Chief Baron wa$ fight in fcis opi- 
ntQUp '^ that be cqM ijot admit proof Jif- 
^^ ferent from the iflue joined;** and alfo, 
'^ thai tbi$ iflue wa3 conn^ed ^joh the 

If fo, the verdifts were withopU evideme: 
i^nd jt v/^ agreed^ ^^ that xhey -were to be with- 
** .^Itf ^iL£juo;CjE :'* therefore, fuoh verdids 
pughjt to be fet a£de^ ^/ without evic^ence^ 
wii not to <:oncUide agaioH the defendant, 
ivhich WQuld be a prejudice. 

Therefore he propofed to fct afide the whole 
vcrdifts^ on payment of cqfts ; and to gtye Ae 
iiefeadant leave to amend his plea. 

If it had been upoxi a dmurrer {which there 
jnight hAv< i;>eeA) the Court would have givm 
leave tg amend. 

This feem^ to be the txvit way to cooie at 
j^ic^; ^nd vhac we therefore ought to do^ 
for tb£ triie text is, ^' ionijudids ^y ampOare 
^^ jujiitiam ;*' (not " juriJdiSignem^^ as it has 
<beien of^i^n citod.) 

This is what I woyld wijh to do^ if we ^ 
4q it. 

Mr, Juftice Denison. — Formerly verJi6b 
were not ufed to be fet afide ; and therefore, 
at that iincie, repleaders ufed very corm;aon]y 
to be granted. But they have been lefs ufoal 
of late, fince the practice of fitting afide ver- 
4i£t$ has prevailed. 

Oil repleaders, the ifliie was confidered as 
void, and the verdift too ; and confequeotlyj 
the j^ud^ncnt wa^, " U replead'^ 

An infornn^on in naturae of a jgw warranto 

4pie3 aotxiil&r fxom <f/iS)^ ca&s. 


C **3 1 

. H^re k an enlire piea *, die refdication jGp^r^ 
rates it, and takes iflue on different f4rfs of 
it. l^e replication aught to hniv^ Jmvirrai to 
this immateriai part of die |dea : but i^ is 
joined upon it : ami thene is a vsendidt 4jpon it 
5n the negative, viz. ^ tjhat the <kfeodam was 
^^ not fo fworn as he has pleaded.** Wiut can 
the Court do ? The iflue and vendiflb ane imj^er^ 
tinent and void. How then can the Court 
^^piigmmty when it d<^s not affesa^ nAeiiher 
die ^kfendant had a right, or not ? (I l|)eak 
now upon this fingle iffue enly,) 

Well then, if you fet afidc any ^^9r/ cif the 
reriJi^, you nwift fet afide the wbiie. 

And this ufed, fbrm^ly, to t>e cue iffiSie. 

I well remennber that cafe d[Rex v. Pbi^Sy 
M^T G 1 . k went upon ah uiage toliold oven 
^lie point was, whether a repleader Aotild be 
granted, when the cafe couid not be varied : 
and ic was holden ^t that would ha^we been 
vain and idle. On the contrary, it was fai4 
diat rt would be a different thing, if die cafe 
coukS have been fnended upon a repleader. I 
do not doubt but diat there Av^e great num-> 
bers of other ilTues in that cafe, as well as xtk 
lihis ; and yet a repleader wmidiaveJ^esn iiert 
granted if the cafe could have been mended om, 
the ufage. 

The whole muft be fet afide, ^ part is fet 

It is fai^, ** that this is a defectiv^e /iVfe." 
Sut it is no title at alt : it is 4mfy<me Unk of the 
<whole chain. 

I think we may fet afide the ^ole verdift 
upon one of the ilTues being void. And 'this is 
better than granting a repleader : wpon wbich 
a writ of error maybe browght, and m^loog 

depend i 

t 444 I 

dcpfend ; which will be a much greater delay 
of juftice. 

Mr. Juftice Forster • — This was an ele6tipn 
under a mandamus y upon the ftatute of 1 1 G. !♦ 
in order to fettle the peace of the burrough. 

Here are twelve iffues joined, all found for 
the king \ and without evidence on any of 
them; fo that none of them have been yet 
really tried. 

It is agreed, *^ that in cafe of a Jingle iflue 
*' which doth not determine the right (which 
*^ way fbever found) a repleader may be 
^* grjinted/' 

The ninth iffue in this cafe falls direftly 
within this rule. It is totally immaterial to 
the queftion of right. ' 

If therefore the vcrdifts on the other iflues, 
wpon which no evidence was given, vary the cafe 
:and Hand in the way of a repleader, they ought 
to be all fet afide : or otherwifc complete juf- 
tice cannot be done. 

And I think, as the cafe is circumftanccd, 
the agreement mentioned by the Lord Chief 
t Vide ante. Jgaroii *, '^ that the verdifts were to be without 
** prejudice in any future trial," may without 
a ftrain be extended to ^,ny future litigation in 
the caufe. 

Lord Mansfield. I am now folly fatis- 
fied, by what my brethren have faid, that the 
whole verdiSl may be fet afide on payment of 
'tofts i and with liberty to amend the "plea. 

But that muft be on a particular motion. 
And I have no dgubt but that we may do this> 
WITHOUT the confent of the profecutors. 

Which motions were accordingly afterwards 
made by Mr. Norton^ and granted, after a faint . 
attempt by Mn Serjeant Poole to Ihew caufe, 


[ 445 } 


aild then to get cofts as betiveen client and 
attorney ; in both which attempts he was uri- 
fuccefeful : for the rules were both of them 
made abfolute, upon payment of common 
cofts; obliging the defendant, however, to 
take Ihort notice of trial. 

By an exprefs agreement the obligee of a "bond, 
tojecure an annuity ^ may waive the forfeiture 
for nonpayment on the day^ fo as to be intitled 
to recover againji the obligor ^ although he has. 
been dif charged under an infolvent debior^s aSly 
between the time of the forfeiture and the ac^ 
tion brought. 

This cafe, which came before the Court at v^^cbfter v. 
different times, and in various Ihapes, was fo^a^^B.R, 
finally difpofed of this day. As it was often. i>ous- 378. 
cited in other cafes during the period I have 
undertaken to report, I thought it might be 
proper to ftate the fubftance of the pleadings 
in the different proceedings, although I cannot 
give an account of the arguments of the coun- 
feJ, and the Court, on the principal motion, 
from my own notes, having been abfent when 
it came on. 

The cafe was an aftion of debt on a bond— 
Pleay that the plaintiff ought not to have any 
execution againft the ferfon^ or perfonal eftatey 
of the defendant y except money in the funds ^ or 
money lent upon realfecurity only * ; becaufe he • '^ g. ?. 
fays that the debt in the declaration mention- ^^' ^^' ^ *'' 
ed was contrafted or due before the 22d of 
January 1776, mentioned in a certain aft of 
parliament, intituled, " An Aft for the. relief 
^^ of Infolvent Debtors, ^c.'' (16 G. 3. cap. 8.) 
and that he was, before the ift of January 

'776, . 

I 44* ) 

1776, arrcftcd, and in aftuat cuftody i that he 
furrendcrcd htmfelf in diffcharge of his ba;i)| 
and was thereupon committed » prifoncr to the 
prifori of the King'% Bemb before the 26th of 
June 1776, and waa afterwards difcharged, ac- 
cording to the form of the faid aft, at tb« 
quarter feffions for Surry y on the a 9th of Juhf 
1776, and this he. is ready to verify, where- 
fore hf prays judgment if the plaintiff cmght to 
have any execution againft his perfon or per- 
fonal eftate, except money in the funds, .or 
money lent upon real fecurity only. The re- 
flication ftated and made p-oferi of the een- 
dftion of the bond-i-which was for the pay- 
tnent of an annuity of jT. 30. a year by the de- 
fendant and another obligor, to the plaintiflf, 
in quarterly payments, on the nth of Janu- 
ary^ ofjfpril, of July, and of Sober i the 
firft payment to be made on the nth of 5^^ 
nuary 1772. — The replication then ict forth, 
That after the 2ad of January in the pka 
mentioned, and before the exhibiting the biH 
of the plaintiff, to wit, on the nth of Jufy 

1776, £,*!• ^^^^ for ^^^ quarter, aad fii 
other quarterly payments, on the i ith of 0<- 
tober 1776, the nth of January 1777, and 
the nth of April 1777, became due; and 
that the defendant hath not paid them, or any 
part thereof, on thofe refpeftive days, or «t 
any other time, but the^hok remained dwj 
** by reafon of which prcmifes the faid writ- 
•* ing obligatory in the declaration menooo* 
" ed became forfeited^ and the debt and ^e- 
^ tion accrued after the aiid of January 1776, 
^ in the plea mentioned,'* and fo concluded 
with a Verification. After this replication, 
there was an entry of judgment on the re- 
cord, for want of a pica in feftr- to ^the -%|* 


[ 447 ] 

tten, but with ftay of execution againflr the 
perfoti and perfonal eftate, except, &rc. un- 
til the plea depending between the parties 
in that behalf Ihould be determined. — Re- 
jofHdeTy That befdre the (ziA ^aA. oi January 
\T^6y to wit, on the nth erf January t7T6f 
/. 7. I ox. for one quarter of the annuity b^- 
camfc due, and was not paid then, nor at any 
time fince, but ftill remained due, whereby 
the bond was forfeited^ and the faid debt, by 
Virtue thereof^ accrued to the plaintiff before 
the fald I2d of January 1776. — Surrejoinder^ 
That true'it was, that £. 7. to s. for oiie quar- 
ter became due on the i ith of January ^776 ; 
but that the plaintiff afterwards, at the iriftance 
^hd rcqueft o( the defendant, agreed to give 
him day of payment of the faid ^.7. 10 s. un- 
til a future day, to wit, fill April foHowing, 
and that, on the i8th o( Jpril^ the faid £. 7. 
tcs. was duly paid, and that at the time when 
the plaintiff fo gave day of payment, he did, 
at the inftarifce of the defendant, waive and re- 
iinquilh any forfeiture of the bond, which had 
accrued, or might accrue to him by reafon of 
the nonpayment according to the condition, 
ahd acquittfed and difcharged the defendant 
■from fuch forfeiture, and all and every debt 
:ind debts due thereby; and the plaintiff fur- 
ther fays, that the defendant, hy reafon of the 
premifes^ was acquitted a^id difcharged from 
Jucb forfeiture and debts, — Rebutter ^ By which 
Cproteflingthat tht furrejoinder was not fuffi- 
t\tnt in law, and protelting alfo that the de- 
fendant never requefled the plaintiff to giVe 
■ fuch day of pay vtient) the defendant fays, that 
thej^.7. \os. in the furrejoinder mentioned. 
Was not paid to the plaintiff in manner and 
form, &c;— Upon this ijfue was joined* 
.i The 


^ > 

; The caufe was tried before Lord Man^ 
riELDy at the fittings for MiddlefeXy m Eafter 
' Term 1 8 G^. 3. and a verdift being found 
for the plaintiff, a rule was obtained by the de- 
fendant for the {^aintiff to fliew caufe why the 
judgment fhould not be arretted ; which rule 
was afterwards enlarged toM. 19 Geo. 3. whea 
the Solicitor- General and Bower Ihewed caufe j 
Dunning and Baldwin for the defendant. 

The ground of the motion (as I have been 
well informed) was, that the bond being once 
forfeited, the debt became abfolute,' and could 
not be again made contingent by any waiver of 
the forfeiture, on the condition of payment at a 
futur^ day j at leaft it continued abfolute till 
the compliance with the condition, which was 
not till after the infolvency, therefore the fad 
of the compliance with the condition after the 
infolvency was immaterial, and the plaintiff^ 
ihould have demurred to the rebutter, inftead 
of joining iffue on an immaterial faft. That 
the Court therefore ought to award a re^ 

On the other fide it was infifted, that an ob- 
ligee might waive the forfeiture, and thereby 
prevent the debt from becoming abfolute even 
at law, efpecially fince the ftatute of 4 and 5 
Anney cap. 18. The iffue therefore was not 
immaterial, becaufe the debt was to be con- 
fidered as contingent or not at the time of the 
infolvency, according as the condition was or 
was not afterwards complied with. Or if tlie 
iffue was immaterial, that was no reafon why 
the plaintiff might not have judgment, pro- 
vided enough appeared to intitle him to it on 
any part of the record ; for, in fuch cafe, all 
(a) that followed would be rejefted (a)^ and here 

citS'Vcl**''^ ^^^ conditional waiver appeared in the fur- 

^ -:■■ -rci 

[ 44$ J 

rejoipder and was nbt denied, apid the debt waS 120. ib. n^, 
to be looked upon as contingent till a breach 9^0 I'oHo^- 
of the condition, and therefore wsU fo at th? ^ '^^' 

time of the infolvency. 

ButL^R;j Jujikey aflced if it was not a ruW 
never to grant a repleader when the ifTue is 
found agalnft the parry tendering it. Ho faidl 
he thought it was, and that he could find njd 
cafe of any exception to it. 

The rule was difcharged^ 

The defendant, when he was arrefted in thii 
a6Uon, bad .applied to Aston, Jufiice^ and 
afterwards to the Court, to be difcHarged ort 
filing connmon bail, and obtained a ruld 
to Ihew caufe, but which was afterwards dif^ 

In MithaelmaSy 19 Geo. 3. a writ of error 
was brought, but bail in error not being jufti- 
fied, u capias ad faiisfaciendum ijQTued in the 
enfuing term, the eflfeft of which was prevent- 
ed by a comnniffion of bankruptcy againft thi 
defendant. The valicjify of the cothmiffioa 
being afterwards difputed by the plaintiff^ and 
another creditor who oppofed thfe allowance of 
the certificate^ the Chancellor direfted ah ifliiei 
which was not proceeded upon, and the plain- 
tiff having brought a ftire facias againft the 
origin^ bail^ the defendant furrendered him- 
felti and on a fernrier day in t^is termi obtained 
a rule td fhcw caufe why He fh<>uld not be dif- 
charged out of cuftody. 

Thi^ <j^y^ the SoUcitor-Generai and Bower 
Ihewed ca^fe i~f)unning and Hpvoorth for the 

The ground of the application now vasj 
that although the defendant^ by imprudently 
taking ifiue on ari improper fadt, had failed 
in his defence ta. the estecution againft his per- 

Vot. III. G g fon 

\ 450 ] 

fon upon the pleadings, yet he Was clearly in- 
titled to be difcharged under themfolvciit a^. 
They produced an affidavit denying' that there 
had been an agreement to waive the forfeiture, 
and faid that no fuch agreement had b^ecn 
proved at the trial, and, if iffue had been taken 
on that faft, it muft have beeri found for the 
clefendant. * The penalty therefore was a debt 
due at the tin^e of the difcharge ' under the ^<5b, 
and confequently he was no longer anlwerablc 
for it,, with his pierfon. 

"On the other hand, it was infifted, that if 
there was any miflake in the pleadings; it W^ 
the defendant's own fault, and he had never 
rfioved for leave to amend. Befides, they laid, 
(which was not contradi£ted on the other fide) 
that it appeared at the trial, that a note hadl^eieft 
^iven to the plaintiff Tor the payrrient Bcith of 
the quarter due on the iithof January' I'fj^y 
and of that which was to become due' on ifie 
next quarter day, and that the plaintiff^ 1^ 
taking this note, muftf be confidered ai 'hiving 
agreed to give further day of payment. 

Lord Mansfield faid, he thqught-the ntife 
would have .been evidence pf 'fiich'ari agr^- 
inent, if iflbe had been joined dn ffi^'feSr^Shd 
that there was na' doubt but tVe -^iur ty itii^ 
waive the forfeiture, and acc^t whkt-Kc -Wk 
equitably intitlei to. . . /;:"'^-'' ^-f-jni? 

' BuLLER,>/ri^; abfent. ' ;' ^ "^;' '^^ --^=^ 
The rule difcharged. . . ^ '^ , . ' "'^ 
i>ougi. 381. 2. Upon fubfeqinent proceedings ftr!Bi^2J. m ^ 

cauie. Lord M^^nsfiitld. faid, tfiat there was* iio 
doubt but the yarty might waii^e xiK'fdrfiittiirj 
and accept 'vdi;atEe was equit^lV ihwlibd t&i: 

* » if*' 

* Jmotim 

f 451 1 

ai^ motm vffay Umaie in arreft. af judgment ^ after 
a rule for a new trial has been difchargedj 
kind' at any time before judgment is entered 
tff. ^ 

Trcfpafs for breaking and entering the clofe ^^lylor v. 
of the plaintiff, at the parifh of Otley, in nrk^ Si g! 3. 
ft>irei. The defendant pleaded i i . The ge- b. r. Doug. 
qcral-iflVe; %. A fight of way, by.prefcrip- it^^^^^t"^^^ 
tion, through a lane of the plaintiff's conti* . it is not a goud 
guous to the wcus tn quo, to Otl^ Bndge on trefpafs,thatthc 
die river Wharf e \ that the tenants and occu^ defendant hath 

, r /. . a right of way 

;piers of the locus in quo were^ from time overpartofihe 
^hereof^ (ffc^ by reafon of their tenure^ bound So J'^Tu^l "^^l^^l 

'11 1117 1 r and that he had 

repair the latiey ana the banks thereof next the gone upon the 
river \ xhzu at the feveral times when. t?^. ^^^If^^heltl^ 
the lane was out of repair, and overflowed was impairabie 
wkli water, fo that the defendant eould not pvTrflpwed by 
au(e.the way without imminent danger of the a river. 
igfs'of his* life and goods; and that he hecef- 
Jarily we;nt into^ through, and over, the locus 
in quoy as near to his faid way as he poffibly 
. pouldi a&it was lawful for him to do for .the 
caaiie ^forcfaid j 3. That the locus ^ £s?f . lay 
coptiguous to a lane of the plaintiff's, and that 
the f^d laii? was adjoining to the river Wharf e^ 
thjAt the defendant had a right of way by pre- 
fcriptiottj through and over the lane ; and, 
that becaufe the lane and way were overflowed 
*U)ith water from the faid river fo much that 
the defendant could not at the feveral times, 
^c^^afs or repafsy he did neceffarily go out of 
thC' i^id way, as near to the faid way as he pof- 
fibly xoul^> into, through, and over, i^c. 

The plaintiff having traverled the prefcrip- 
tion to repair laid in the firfl fpecial plea, and 
the right of way laid in the laft, the caufe 

G g a came 

I 45^ 1 

eame on to be tried before Lord LoughboM 
xouCH, nt the fcimmer ai&zes for l%n^>^, 
1780 ; afid the jury found for the plaintiff. o& 
the general HTue and the firOc fpectal pka> iukI 
for the defendant on the laft. 

Th r£v th ^^ Miibaelnmis term (a), a rule was. obtained 

Nov. 1730. to (hew caufe why there ibotild ©at be a new 
trial on the iffue found for the defendant, as 
having been found againft evidence, which 

Friday^Hth '^^^^ ^as, upon argtiment difeharged j(b). 

Nov. i7»o. Afterwards, Fcarnly obtained a rule to ftew 

•c^ufe why the plaintiff (hould not be at li*- 
berty to enter up judgaient on (kfat ti{ue,3$ 
v/ell as die others, notwithftanding the iindii^ 
of the jury, on the ground, that in poinc of 
law, akhotigh die defendant had the right of 
way through the plaintiff's cloP*, he was -not 
intitled tb go upon the adjoining land of 
*the plaintiff^ when the way was -out 'of ,13?- 

On Saturday y the 3d of Feirr«/try^ caufe nf as 
to have been Ihewn againft this rule, and Z^ 
'Obje<fted, that it had been applied for too*la««, 
for that it wits in the nature of a nriotion nin 
art-eft of judgiticnt ; and, he laid he bad ahww s 
imderftood the prafticc to be, that fuch ai»9- 
tion could iK)t be made after af)ew malhad 
bfeen moved for, unlds the .caurt,^ upon gcarit- 
Hig tiie rule (pr a new trial, ihowld ha«r€ giwn 
leave, if that fhould be difchongcdy. to follow it 
by a motion in arreft of judgracflt^-itifecmcd, 
he faidy Very unrealbnabie, that/a party fliould 
■be peroiitted to avail himfcif in fo-.iafe a ftagc 
of the caufe, of an obje<lion that joni^t heVe 
been ta-ken in the firft inftaacc, by a. demurrer 
to the plea, by which mode of proceeding, if 
the objeftion was founded in. law, all thejcpc- 
pence and ve^iation of a triali^ rand the cnotibn 


[ 453 ] 

tb fet afide the verdi<?l, would have been avoki^ 
eA In anfwer to this, it was obfcrved by D//«-r 
mug, thau it would be excrccnely abfurd if an 
objeftion fhould be ftated to the court, and 
they Ihould be convinced that the party ht^d 
nor, by law,' a right to judgment in his favour, 
dut they fhould yet be neceffitated, by any 
rule of praftiee, to pronounce an erroneous 
judgnient in his favour, and fo force the othef 
party to bring a writ of error. 

After fomc coofideration> aiKl conference 
with the nufter, the Cpurt declared their opi^ 
nion, that a motion in arreft ^ judgtuent 
tnight be nnade at any tin^e before judg- 
ment was entered up, ^d that the prefent 
tnocion, being of the fame nature, was not too 

It now appeared, that the ofiicer, by mif- 
take, had entered a verdift for the defendant 
ori all the iffues ; upon which it became ner 
ccffary for the pl^tintifF's counfel, to move for 
a rule to (fcew cftufe v^hy the pofiea fhould not 
he amended from the Judge's notes, agreeably 
«o the finding of the jury, and that the fule 
then before fhe Coprt Ihould, in the mean 
-time, be enlarged. 

' The pojtfa was afterwards amended, and, this 
day, the queftion on the validity of the laft 
'p}ea was argued. 

• X^, Jiavenp^rti and JVwdy for the defend.^ b r m ^ ^ 
^nt. They argued as follows : It is clear law, ckr.'a. 2 s mw, 
eftabUlbcd by a number of cafes, particularly ^^-^c Lev. 
tihat of MJor v. French in Hhowcr (a), and ^ (^V 
H^h'$ cafe (b),.that, where a common high- x^Fy;^:,^ '[.y 
way J3 out df repair, by the overflowing of a 
river, or ai)y other caufc, paffengcrs have a 
nght to go upon the adjacent ground. So, 
if the water impairs, the banks of ^ navigable 
river, (wbicji indeed is confidercd as a high-f 

G g 3 ^'^^y) 

t 454 1 

way) It IS juftifiabje to go upon the neareft 
(j.^ part of the field next adjoining (ic). No cafes 

VoL.n:4 V are to be found upon the qucftion as to pri-^ 

ll*>l^*Hou!^^ vate ways i but there are determinations, the 

LoidRaym. principle of which is, that, where it becomes 

'^^' impoflible for a perfon to exercife his right 

witnout a trefpafs on the foil of another, the 

law will excuje the trefpafs. Thus in Dike and 

B R M^g &^^«^/^^'s ^^^^ (^)> ^^ ^s ftated (i) from the 
±9 El. Goa. 4, year-book of 6 Ed. 4. *^ That, if a man is to 
5-- <' lop his tree, and he cannot do it unlefs it fall 

(By couiifei.) *' ufon the land of another y then he may well 

^^ juftify the felling it upon the other^s land, 

" becaufe, otherwife, he could not lop it all." 

So in the cafe of Miller v. Faudrye^ reported 

(^) in Popham (b), ^* a man may juftify chafing 

?. Ppph.*i6i?' " Ihecp with a dog upon another man's 

-.But that part <c ground, if lic cannot otherwife drive them 

fsnotb^Pop- ^^ off his own." And in that cafe, there k 

^-^r one cited from 22 Ed. 4. 8. where it was held, 

^* that, for neceffity, a man who plows may 
** turn his plow on the land of another."^— 
(BuLLER, Juftice, '* There a cufiom was laid") 
— And another from 8 Ed. 4. where it was 
laid down, ^^ that if a tree grow in a hedge, 
and the fruit fall into another's land, the 
owner may go upon the land and fetch it.'^ 
Thefe are all trefpafles occafioned, as in the 
prefent . cafe, by the unavoidable interruption 
of the exercife of private rights in the t re- 
gular way. It is of no confequence, upon 
this iffue, who is bound to repair the road, 
becaufe the juftification is not that the road 
was out of repair, and ought to be repair- 
ed by the plaintiff, but that, by the over- 
flowing of the river, it was impojfibh for the 
defendant to pafs along the wky, and there- 
fore, he ne^ejfarily went out of it. If the quef- 
ijoq who ought to repair is faid to be the ma- 
" - ' ' " terial 


{ 455 9 


terial part of the. cafe, ancj^ths^t.the ifllie tried 

on the fccond fpecial plea was.immaterial, tlie 

ngiotion ought. to have been for' a r ef leader y biit 

as the plaimfff" took the ifTqejJ the Court will 

not grant 2i repleader on hjs. application (c). ' (0 

Suppofing it not to be true in all cafes, that a webfter^^.Ba- 

perfon having, a private way ^ over the land of »"^«r, 

another, may, when the way is impaflabl^, 

juftify going on the adjoining ground i ye,t, 

fureljr, he naay> ^here the land over which the 

way IS, and the adjoining land, both belong fip «' 
^ the fame perfon. He, or diofe under who}:p 

he claims, having granted a right of way ov.Qr 

his eftatc, if the ufual tradl becomes impaf- 

fable, ^e right continues, and muft be exejr 

cifed on the neighbouring ground belonging 
•to the grantor. ^ 

Lord Mansfield mentioned that Black- 
Jioncy in his Commentaries, expreflcs an opj- 

qion that the law of £»^/^»^ correfponds with 

the Roman law, on this point, extending the 

right of going on the adjoining ground, when 

a road is out of repair, to private as well as 
, public w^ys (a), and that Cgmyns in his Bigefty (a) 

feem{5 to have entertained the fame opinioa sBI-C""^ i^- 

(b). - . Cora. Dig. tit. 

' IValkery Serjeant, for the plaintiff, infifted, ^^'''''''' ^•^• 
t:hat, by the, common law, the grantee of a pfi,- 
yate.way is t>o\]nd to repair, unlefs there is an 
exprefg ftipulation for the grantor to dojt,. 
This priuciple, he faid, was clearly d^^duQible 
from the mtimate determination in the cafe 
Q{Pomfr£ti.y^ l^icroft (c), where one haviqg ^ ^ ,(0^^ 
granted the ufe of a pump,, for a term, to ano- cxx^'z^. ill^^,^^, 
|:her, and the puqip havlng/allen into difrcpair, Bli- 
the grantee brought his adign againft the i 
grantor, and,, up^n demurrer, ?h(? court of 
^in^^ Bench held (three judges againft. Twis.^ 

t 4S^ I 

iblev) tbxt it tvcll \ay^ for that thS; g&Bttxot #21 
bound to repair, .but, tipcm a «itit of .error te 
the ExcbiqMar Chamkr, ih^it^deciSamtat^ ilna^ 
DifnouHy re^heri^ .Now, on thb record^ b6 
UAdf it was rKptrfsly found, oh The ftrft fpccial 
plea, thic thcrplatntiff. mv^s not i)bund tait!« 
biar ; and by the fecond^ no Cu(bam or Aotp 
tor him to repair wa& alM^ed. Tltt defeticti 
ant> therefore, muft be conlldertd as boumi tsfk 
repair in this cafe, ^nd, if the toad had becdnne 
impaflable by His negle&ing to guard againft 
the overflowing df the river, by keeping up 
the banks, it ^as his owh fault, and he coula 
noti on that aocount, be intit|ed to treipafs 01^ 
die neighbouring giDuhd. 

The Court fh>pped Feamfyy ^owa^tb hav6 

argued on the fame fide. 

. Lord MANsrifiLp. — The cjueftiwi is troon 

the grant of this way. Kow it is not laia t6 

be A grant of a way, generally, over the land i 

. but of a pretife Ipecifit wayi The ^ntdt 
fays, you may go in this particular Ihic, bat 
i do not give you a right to go either on rift 
right, or left.~l entirely agree wi4t finy bro* 
ther tVaUcefy that, by the comnsuan laW^ \i 
who has. the ufc of a thing ought to repair ib 
The grantor tni^ bind himfelf ; but here, he 

' has not done it. He has not undertaken t6 
provide againft the overflowing of the riter y 
^nd, for ought that appears, thai may hate 
happened by the negieft of the dcfecriant. 
Highways are gorerncd by a different prin- 
<:iple ; they are for the public fdrvice/ Md if 
the ufual traift is impalTable:, it is for the gene* 
ral good that people ftiould be intidcd to paf^ 
in another line, . - 

WiLLES and ' AsHHUHST, JuJHces^ of xbt 
fame opinion. 

[ 457. I 

iRrsttMLi Jufim. — If tbisi !bad been a wa^ 
of ftcceffity, the qucftton would have required 
<^onfideratian> but it is liot fo pkaded; - It 
^doea not appear that the defendant had no 
other rotd. There can bfc ho ground for ^ 
T^leuderi foh the plea is fubftantialljr bad^ 
there is tlo fa6t alledged in: h which couid 
ferve any- purpofe to deny, or go 'to ilHie 
updn. ^ 
' The rule made abfolute. 

One information only, milyj fy leave cf ths 
Cdurt, be exhibited under the Irifti fiatUPe 
19 Geo. 2. c. 2. feft, 4. cgainft differenft 
ferfons^ and againft the lame ferjonsy for 
ufurping different franchifes : and there is mt 
dJTf neceffity to Jiatefuck leave ufon the record. 

. This was a writ of error fitjm a judgment of , 
the Court of King', Bench \n Ireland, it, qui .^'^^^t" 
^arrantOy againft Alexander Symmersy Jamis ^o!^3.^b/il 
Brvwny George^ Staunton, Franklin Kirbyy Abf-al Cowp.489- 
h€im MarfbnUy and Thomas Grubb ; to (hew jfj^reniT 
by what authority they claimed to exercife B.R.inirci^ 
the privileges and franchifcs of freemen, fre^-^ ra.uo^a^tnft 
^urgifffesy and common-council-mm of the towH coriwrator* of 

and borough of G^/way. " '^ '"^^^^* 

The information fet forth, thkt the borough 
of Gatway is a* town and borough incorporated 
by the name of the Mayor, Sheriffs, Free* 
bur^effes; and CommcMialry^of the town and 
county of the town of Galway, and that 31 
connnon-conncil is a conftituent part bf the 
faid corpoiition. That the mayor^ fhetiflfe, 
recorder, town -clerk, and all othcl- officers of 
the ftid town of Gcdwayy are to be eledred and 
chofen only by the mayor, Jheriffsi^nd common-- 
council of the faid town. And -that the fix dc- 

fend ants 


C 458 3 

fcndants have ufed and exercifed the.franchi^$ 
of freemen, free-burgeiTes, and comnion-coun- 
cil-men, without any lawful authority whatfoy 

The defendants by way of plea fet fortI\, 
that the town and borough of Gakvay is^ and 
from time immemorial hath been an ancient 
town and borough ; and that the m^yor, 
IhcrifFsj free- burgeflcs,. and commonalty there*- 
of, at the time of granting of the letters pa- 
tent hereinafter mentioned, was a body cor- 
porate in deed, fa<5t, and name ; and that from 
time immemorial there was and yet is a comr 
monalty confifting of an indefinite number of 
freemen, and alfo an indefinite number of 
free-burgeflcs ; and alfo a cornmbn-council, 
confifting of an indefinite number of members 
duly elefted, admitted, and fworn into the 
places or offices of common -council- That 
the {herifFs for the time being have bcenn>em- 
bers of the faid common- council, and alfo of ^ 
tholfell or general affembly of the faid town-; 
and fay, that the mayor, Iheriffs, recprder, 
town-clerk, and all other officers of the faid 
town of Galway, Jiave been, and are for the 
future to be elcr<fled and cliofen only by the 
mayor, fheriffs, and common- council. prefent, 
on the days whereon fuch eledljons were ufq- 
ally made. . . 

That from time immemorial tlie cuftorn 
hath been, that the mayor or other the chief 
officer and common-cQimcil of the faid. t<>w.n for 
the time being, or tbe greateft number of the 
JaU ccfnmGn-ccuncil prefent y did and inight,. be- 
ing duly a|remblc(,i from time tp , timp^ ^leS 
fuch other difcreet pcrfons, not difqua)ij&ed by 
any law in being, mer^bers of the faid common^ 
founciL That from time.;imflnemofiaJ the 
ele^ing of any perlbn qr perfpns to h^fxeemen 



•[ 459 ;] 

i>r free-burgeffes, Ihall be by the faid iboljill 
or general affemhly. That by certain rules, 
orders, and dircftions made and eftablifhed 
by the lord-lieutenant and council of the 
realm of Ireland^ on the a3d of September 
1672, for the better regulating of the cor- 
poration of the town of Galw^, and the 
fcle6ting of magiftrates and ojfficers there, in 
purfuance^-of the ftat. 17 and 18 Car* 2. in- 
tituled, " An aft for the explaining of fome, 
dovbts ariiing upon an aft, intituled. An a(ft 
for the better executing of his Majefty gra- 
^* cious declaration, for the fettlement of hk 
** kingdom of IreUndy and fatisfaftion of the 
'** feveral interefts of adventurers, foldiers, and 
** other his fubjefts there, and for making 
'^ fome alterations of and additions unto the 
" faid aft ; for the more fpeedy and efFeftual 
^^ fettlennent of the faid kingdom/' it is di- 
refted, *^ that no perfon or perfons, that fhall 
*^ be elefted either mayor, recorder, fheriffi 
** treafurer, alderman, town-clerk, or one of 
*' the common-coupcil, fhall be capable of 
^^ holding, &c. until he or they fliall have 
^^ taken the oaih of fupremacy therein mentis 
^^ oned, and the oatb of allegiance befides the 
^^ oaths ufually taken upon the admifllpn, &?/:• 
^* and alfo ^n oath in the faid rules plrefcribcd, 
^* commonly called the little oath. That no 
^* matter or thing in any wife relating to the af- 
'** fairs of the faid town, fhall be propounded 
*f^ or debated in the tholjelli or any general af- 
^^ fertibly of the faid town, until the fame fhall 
^^ have Jirji pajfed the commons-council of the 
^* faid town." And it is further ordered, 
*^ That all foreigners, flrangers, and aliens, 
f* as well others as Proteftants, who are or fhall 
^rbe merchants, traders, artifans, artificers, 

" feamenji 


[ 460 1 


**' feattiffi, or otherwife fkfU&A in arty mytfery, 
'* craft or trade, ifvhb were Ihito riding and 
** inhabiting within the faid town ^Gahtkr^i 
^ or who fhould tt any tirtie here<^€r come 
^^ into the faid town of G^/«;iii>i with *rto?i 
*' and refoKicfeA txy inboHt »Ar^f}^fii$t upsh 
**• payntent down 'of tender of ^Vi. hf *ray itf 
fine, unto the chief magiftrate ^r tfijigiibaee^ 
land comnion-eouheil, or other ^^i^^mr M4 
*^ thoriicd to adnftit and mi^ke fi-dfthimv bit 
*^ admitted freeincn during bh <i5?'dieif r^- 
•* dence for the moft part> an^'^m^ tonga^.** 
That King Charles the ad. fcy hfe' kttois |)i- 
tent the 14th of Attgufty in *e *jth y^arcf 
his reign, did grant, « That th« fei* towii dF 
•' Galway, and all caftles lying- wrthiii tile 
*• foace of two miles from cv^ paM <tf tlf6 
*• laid town of Galway y be one Entire <5o«tity 
•^ of itfelf I and thit there fliould bfe >fbr evdf 
*^ thereafter, one new body eorpofdfte' and p6^ 
" litic in deed and name, conflftingf of'^ric 
** mayor, two flieriffe and free-burgef&fii'torid 
^ commonalty, by the name 6F th€' mayor, 
^' IherifFs, free-bufgefles, and comnrtonahy iif 
^ the faid toWn and county of fhe «6Wrt 8f 
*' Galway \' and did thereby rtirfke-^ei^taih 
perfons particularly naimed irt th* ftld^ttttcrs 
patent^ to be free-burgeffes : and grelnt^ ** that 
^* the faid perfons fo particularly n^m^y and 
^* made free-burgefitrs, as alfo thelt fuceeflbrs, 
^^ ai^d likewife all and every fiu*h perfotta/fd 
^ perfons as (hotild be of the Cdrnm^-C^Ondl 
^^ of tht? faid town^ hefcte they be-i^^^^i^i^ into 
^^ their rc(pe<6live bfficts, places, o^ tttiploy- 
** merits, JhouM ihie as well the -fafid herdft- 
*' before mentioned ^aths cfJupremitVy aftd kl^ 
V iegiaricfy and tile oa^h comtnotijy 'ofll^ the 
*^ Uttktatby and alfo ih^vaihs'^fhermfin^ufu- 

** tf% f^kpn^ for the 4^ ajfii^cutioR of the faid 

^ pUce$ aad-a^efii -d^ j^idj^v^al oAtln tt» 

t^ 'b^ i(4nmifi^^ by the iff^vor or recorder, 

*' and twa iif tb^ free-burgejfes of the faid 

^^ *own:" which leuers.pptfpt the* then no^or, 

&^n&^3 kmf^^^h ^nd cQi9an»Q^lty accepted 

^. Thftt by aa a6t of p^irliaaiienc made ia 

tHp^iUfa-y^r Qf th^ r^igfl^f Gmge ill. ioti- 

tiilfd, ^^ Aji ad for the be^er regulaung tte 

♦* i towfi of Galwayij and for the ftrengthcning 

*^ die Proteftant ifltereft therein^,." it is cnjiA- 

e<J, ^^ that -n^ perfo^ ihalj be 0U£k4 mfiyar or 

*l'iherifi^> or coairnon-council-nfien, who ihajtf 

^^, not b^ an inhabitant or inhabitants withiij 

'^^ and liberiiies thereof, at the 

'^* itipie of beii?g ele&cd i«to any of the l^id 

:^f*'officjefi|,f^pe<ftiveiy.j and th<^t hath or hav^ 

*f n^ bjeen fefident for the fpace of one whole 

• /year; b^Ore fuch eledti^n ; and that ^U per^ 

fm^ wfap profef^ thennfiplves of any tradcy 

'* . my ftery, or handicraft, that do or (hail come 

*^ to rjifidf in the faid town of Gfilway^ in or* 

*^ der tp follow their refpective trddcsj.jhal/ 

** Offdw^ b§riby declared tg be free of. the faid 

town suid corporation, a^d alfo^of that consbr- 

pany qr corporation to which their refpec- 

* * ti ve tr^s belong, without paying , any thing 

Y f<ir jHck freedom j and ihall continue fve^- 

>*' mien qf fych company or corporation^ as 

*^ l^ng as they dwell in the faid town, and no 

t'** longer* PROViDiD, that no perfons are >ia 

. *^ have the benefit of their freedoms as afore- 

♦* faid, unlef^ they have been profeffed Pro- 

*' tfftants {ov/evim years, or upwards, next be- 

•* f^e their demanding their freedoms , purfuant 

^^ to this aft; and Ihall alio take the ufual 

^ oaths offreewe;^} and alfp the oaths ofalle^ 

*^ giaffes, and fupremacy, and abjuration \ and 

" make 



t 46a i 

*^ make and fiibfcribc the deelarUion agair^ 
** tranfuhfiantiatimy before tbe^ iMyar of thi 
" town, who is required to adminifter the 
« fame/' 

The plea then fet forth that Symmersy 
Brown y and Staunton were^ on the aad of iVi;'- 
vember 177 1, duly eleSed freenjen and frcc^ 
burgeiTes, their eleftion and admifllon having 
firft paffcd the common-council, arid, bcea 
propounded in the TboI/elL — The defendants, 
Marjhall and Grubby fetting forth that thbjr 
were tradefmeny Proteftants for Jeven years, aiad 
reftdents within the town, further pleaded, that 
on the 4th oi February 1772, an afletnbljr or 
meeting of the mayor and common^cottHcil 
was in due manner holden at the Tbolfelly and 
that they then and there offered io-iake^ibt 
oatbs of allegiance, fupremacy, and ab^uration^ 
and demanded from the mayor of the faid ow'- 
poration and the common^council there aflfera- 
bled, their freedom, purfuant to the faid laft- 
mentioned aft of the 4th Geo. i • And there- 
upon the eleSHng and admitting them the faid 
Abrabam Marjhall and Thomas Grubby to be 
freemen of the faid town, fsff. f^tffoi the faid 
common-counciL That afterwards, to wit, the 
5th day q{ February 1772, a tholfeil Or gene* 
ral affembly was in due manner held at the 
'S'holfelly and then and there the eleffing and 
admitting them the faid Abrabam Marjball and 
Thomas Grubb to be freemen was propounded, 
and they were then and there in duemanntr 
eleSled by the faid tholfelly freemen of the faid 
town and corporation. All the defendants 
further pleaded, that they were in due manner 
eleftcd into the refpeftive offices of freew«bur- 
geffes and common* council- m^n, dnd that 
b^ng fo elcfted into the offices of 'freemeAf 


t 463 1 

free-bufgeffes, and common-council-men, they 
did before they were admitted, take the oathfe 
of allegiance, fiipremacy, and abjoratlon, &?r. 
and all the oaths iifually taken, i^c. before 
the mayor and two free-burgeffes. — The re^ 
plication took iffue that the defendants were 
^* not eletted in manner and form aforefaid into 
the offices oifreemeny free-burgeffes, and com- 
mon-council-men refpeftively." And at thfc 
trial all the ifiues were found for the Crown. 
The defendants, in fupport of their title, gave 
in evidence the corporation books, in which 
were contained entries of their refpcftive elec- 

On the part of the profecutor, a witnefs was 
J)r6duced, who gave in evidence, out of the 
corporation book fo produced by the defend- 
ants, the orders of eleftions of nineteen per- 
fl>ns there named ; ^nd further gave in evi- 
dence, that upon the eleftions of the .4f frnd- 
ahts in the common-council, on the 21ft of 
November and 4th of February y feveral of the 
nineteen, to wit, ten on the aift o{ November ^ 
arid twelve on the 4th of February y who were 
fretmen, free-burgeffes, and common-councilr- 
*»)en,'and'wh6 had done feveral corporate afts, 
tendered their votes againft the eleftions of 
the defendants. That the mayor rejefted their 
Votes ; and that if they had been permitted to 
Vote, that is to fay, the ten on the 21ft of No^ 
<vembery arid the twelve on the 4th of February y 
there would have been a majority againft the 
refpeftive elcftions of the defendants. 

The counfel for the defendants then gave 
evidence of the disfranchijement of all the 
nineteen perfons, before the time of' the elec- 
tions of the defendants, by producing the or- 
ders of disfranchifement in the fame corpora- 
tion book, 


t 4^ 1 

AD evidence ievctail orders o^t aT tbc mat 
boBok i i>y which it appeared tlM j(^jl^ oif sty 
laid nineteen peribni had been rf0<^4dm pur- 
fuance of peremptory wrh^ pf «|i^mJ0MaKfi 
which fifteen included the ten wk/f^ door 
cQrporate ads, and whoie vct^s wei^ r^iifed 
on the 2ift of November ^ and ^c tfyeWc i;)|p 
had al(b done corporate ads^ and who4e VQte# 
were refufed the 4th of February i but bji^ the 
dates of the orders, the reftoraopa of (jbi^^fif^ 
teen appeared to have been JubJequ^rU id tl^ 
eleCfioH of the defendants* 

Whereupon, and after the faid entries ^mI 
alCb another entry had be^n read» the cqwaM 
for the defendants did objecSt thereto* Fflf 
that the faid entries of reftoration in the &id 
book were not admiflible evidence^ withPMIt 
^&ll producing tlie mandamus's^ and r^twflfc 
or attefied copies thereof* But th/e juftiori 
Qver-Vuled tiie objeftion, and did permiit ^ 
faid matter to go to the jury as evidence rf 
jthe reftoratbn i^i die faid perfon^ withqut pro*' 
ducic]^ the writs, returns, or a^ttcftcd coptosu 

j^nd dnereupon the dcfeod^t^ ^piJMa&l|\ M 
p^ve the faid ifiue, and tljiat t;he. ^d^^ndliinV 
were dtily eleded, did produce» give yi^ <;vf« 
dence, and read the ftat. 4 Qea. i, by tb&jle^ 
feadants particularly pleaded \ and .offered, tp 
^ive in evidence, that the faid /everal peripm 
(the fifteen who had tendered j^e^r yote^.^nd 
done corporate ads) wcrejoot ii^habi.taots, fef <. 
and refident for one whole ye^ir b^fo^ th^ir 
xeipcftive eleftions \ and did Jrifift thai i^ 
evidence ought to go to the iyry^ whi^ ^ 
juftices refqied to adnait. UpqQ which,. rib/5 
defendants coynfcl tcnderiad a bijjrpf ^cep; 
^ioQS tp Qodfrey^ distil J J^^fq, the^ge,af iaffizt| 
which he fcaicd* 

'; The Bin bf cxcef>ttelis htm^ttteh feturncd 

*in«o the Court of King's Stnck in Inland as 

part of the Record j the Judges, after hearing 

argjunnents npon it, gave jtJdgmeht of oHfi€r 

agaiftfi: all die defendants; whereupon this 

*%rit of error was brought. 

Mf. BvLLiR, for the plaintiffs in error, ar- 
giUki, that this information was bad j ift. Be* 
*<5Bhife filed againft fix diflferent perfons, for 
ttlbrping three different offices. That fuch an 
infornp^ation would clearly have been bad at 
^C56taffion law. In a Strange^ ^2i.Jix were in- 
dited for perjury^ and judgnient was arretted 
lij^ly on that ground. In i Sir. 623* an in- 
diAment agairA fix f6r exercifing a trade, was 
quafbed. Iri Rex verfus Tucker et al \ Pqfch. 
^ Geoi 3. B. R.^ Burr. 2046, an indiiftnient 
againft ekven was quafhed for the fame caufe. 
>l Barnard. 24. So in quo warranto, feveral 
cannot be joined. Rex verfus Jarvis and 
Clark/on y fr. 10 Geo. a. M. S. If not good at 
common law, the next queftion is, whether it 
is alcfcd hy the Irijh flatute rp Geo. c. c. la. 
which direfts, ^ that it fhall be lawful for the 
^ proper officer of the court, to exhibit one or 
^'more informations againft any perfon 01 
•• perfons iiforping offices, and to proceed 
•* thereon in' fuch manner as is ufual in quo 
*• warranto \ and if it appears that divers 
■* rights may be determined on ohe informa* 
** tion, on* fhall be fufficient to try them," 
This ftatute muft be conftrued with fome re* 
ftriftiort ; othfcrwife the words themfelves 
wptild carry a meaning nobody could contend 
for ; and authorife an information againft the 
itiayor of one x:orporati6n, the alderman of 
another, and the -freemen of -a third. The 
true coriftnhJUoii muft be, to confine h to cafe$ 

Vol. III. H h ^ whw 

t 466 I 

^here the offices or franchifes are in the /ami 
corporation, and ejufdem generis. But here, the 
offices arc of a different nature. Again, the 
ftatute gives no authority to ]6in' d^erent 
claims y but fpeaks merely of joining different 
perjons. Therefore, if this infornnation had 
been filed againft one defendant only, and had 
charged him, as in this cafe, with inftirping the 
three different offices of freeman, free-burgefi, 
and common-council-man, it woqld have been 
equally bad. There is no precedent of foch 
an information, and the pradice is unrverfa}}y 
againft it. But fuppofe this were a cife widiiri 
the flatute, and that the. Court coiild give 
leave to join different claims 5 k docJs not ap- 
pear, that any fuch leave was given, or any 
difcretion exercifed by the Court on thfe occa- 
fion. Therefore, it muft be taken to be an in- 
formation at common law. Where fevenil 
pleas are pleaded, it is the praftice to ftatc, 
that they arc ' pleaded by leave of the court : 
and fo it fhould have been done here. 

adly. As to the ilTues and the judgment on 
them, two of the defendants, Marfhall and 
Grubby have ftated their right to the offices of 
freemen in virtue of their being rejident Pro^ 
tejiant traders within the flat. 4 Geo. i . which 
enads, that, in that cafe, they fhall have a 
right to be admitted without paying a fne. 
The right they ftate therefore is a right under 
this aft of parliament ; and not by virtue of an 
eleftion. The two ifTues joined on thefe pleas 
is, that they are not ekSfed: at the fame time, 
their- true title is not denied j and yet judg- 
rt\^nt o( oufter is given againfl them. Whereas 
the ifTue joined being an immaterial iffue-y and 
riot founded on any faft in the plea, the juc^- 
ment ckiglit to have been - for th<jn^. 

t 467 1 

2dfyy The judgment of the court below is 
founded on the bill of exceptions ^ of which they 
had no jurifdiftion. Davenport verfus ^yrrely 
Trin. 9 Geo. 3. B. R.^ So that the judgnnent * since re- 
is on iffues not difputed; againft titles ad- rBiack\ep. 
mitted ; and founded on what the court has no ^7S* 
jurifdiftion of. 

Laftly, On the bill of exceptions itfelf, fouf 
different queftions arife. ifl. Whether the 
perfons whofe votes were rejefted at the elec- 
tions of the defendants, were even voters de 
faSiOy at the time of the eleftion. 2^/y, Whether 
the evidence given by the profecutor to prove 
them members de fallo^ was proper and ad- 
miffible for that purpofe. 2^fyy Whether, if 
they were not freemen de jure^ though they 
might be freemen defaSlOy it was not compe- 
tent to the defendants, under the circum- 
ftances of this cafe, to prove at the trial that 
they were not fo dejure. The ^b queftion is, 
if it were competent to them to do fo, whether 
the evidence offered was proper and fufficient 
for that purpofe. 

As to thtfirji queflion upon the face of the 
entry produced by the profecutor to prove 
their admiflion, it appears that none of them 
were aSlually admitted, but only that there 
was an order they Jhould be admitted: that is 
not an admiffion in any fenfe ; and fo it was 
held in Rex verfus Lifle, Andrews 163. But 
it is infinitely ftronger here, becaufe the order 
was not made by the general ajfembly^ but by ^ 

the common- council only, who have no right to 
eleft either freemen or frec-burgeffes. Another 
reafon againft their being members defa£fo is, 
that they had been removed before the eleftion 
of the defendants, and fuch removal was then 
in force. The evidence given of their being 

H h 2 ' reftored 

t 468 } 

rcftorcd was fubfcquent to the time of the 
cledlion. The mandamus's could have no ef- 
fcdl 'till they were aftually reftored \ and the 
very application for the mandamus's is evidence 
of their being out of poffeffion. During the 
intermediate time, therefore, they could not 
be officers de fa£io. If disfranchifed, it was 
no longer neceflary to fummon them to meet- 
ings of the corporation ; though it fiiould af- 
terwards appear they were illegally disfran- 
•Hji. lo chifed. It was fo decided in ioJVfoi.76*. 
Sirtuiu?^^*" ^" But lefs would do here; for if the Court 

ihould be of opinion, that while disfranchifed 
(unlefs rightful members) they could not 
vote; the judge did wrong in not receiv- 
ing evidence to prove they were not de jure 

Tht/econd queftion is. Whether the entries 
in the corporation books, of their being re- 
ftored to the office of common-council-men, 
were proper and admiflible, to prove them of- 
ficers de fa£lo. The entries of reftoration were 
not voluntary afts of the corporation, but 
under the authority and compulfion of writs 
of mandamus. Therefore, the writs of manda- 
mus themfelves fhould have been produced, as 
being the beft evidence: as in the cafe ofin- 
quifitions taken under a commiflion, the coni- 
miffion as well as the inquifition muft be pro- 

As to the third queftion, How far, and in 
what (jafes the right of the eleftors may Be 
gone into on informations againft the elcfted, 
2.% 2i general queftion, has never been decided. 
That a latent objefltion cannot be gone into, 
has been fettled ; but the reafon in that cafe is 
not applicable to the prelcnt. Here, there 
was no furprife on the profecutor, Rejefting 


[ 469 3 

evidence of this fort does not tend to keep 
matters quiet; for if bad votes muft be ad^ 
mitted, it is only introducing the elected into 
the corpomtion, for the fake of turning them 
out again. If the ojeftion is notorious to the 
other party, it niay be made ; and here, the 
objeftion to the eleven voters in queftion was 
a matter notorious to both parties : therefore, 
their right might be gone into. Where the 
eleftor has been oufted by quo warranto^ 
though the defendant was no party to the 
fuit, and may be a ftranger to it, yet the judg* 
ment is evidence againft him*; becaufe of the 
public notoriety. Here, the objeftion to thefe 
eleven perfons, was the point on which both 
parties agree the eleftion muft be decided. 
Both therefore were equally apprifed. If the 
legality of thefe voters could not be entered 
into on this information, a prefiding officer at 
an eleftion can have no power of examining 
whether the votes are legal or not. But in all 
fcleftioos, partiQularly of members of parlia- 
ment, the prefiding officer exercifes his judg- 
ment, whether a vote is goe>d or bad. If the 
prefiding officer has no right to judge, there 
can be np aftion for a falfe return. Befides, in 
this cafe, the evidence refpefting the right, was 
begun by the profecutor himfelf; by entries 
to fliew they were qualified and rightful mem- 
bers. If fo, the plaintiffs furely have an equal 
right to rebut that evidence, and to prove 
they were not qualified. If, in fuch eafes, 
evidence of the right is not to be gone into j 
by delaying the trial of fome informations, 
and pufhing on the trial of others, bad mem- 
bers might be cftabliflied and rightful ones 
oufted. For inftance, fuppofe three clafTes of 
voters, eleifted in Augujiy September y and Oct 

fi h 3 toller i 

I 470 3 

tcieri the firfl: not duly eleftedj the lecond 
hot duly clefted without the votes of the firft; 
the laft eleded by a majority, excluding thofe 
in Augufi^ On an information againft the 
laft, they muft be oufted becaufe they cannot 
difqualify the firft fet. Then, on an informa- 
tioh againft the fecond fet, they muft be efta- 
bliftied, and the profecution fail, for the fame 
reafons; then on an information againft the 
firft fet, and they oufted; the confequenee 
wouy be, that the fecond fet, though not duly 
clcfted, would be eftabliftied, and the third 
ftty though duly elefted, would be oufted. 

The remaining queftion is. Whether Ac 
evidence offered was proper to prove that die 
perfons rejefted were not common-council- 
men de jure. This depends on the ftat. 4 Gw. 
I. which is ftill in force, and the law of the 
place : it enadts, *^ th^t no pcribn fhall be 
^^ elefted, who is not refidcnt a twelvemonth 
^' before/' If fo, there can be no doubt of 
the propriety of the evidence offered ; for it 
Y^s to prove they were not refident a twclvc- 
irionth before. — Upon the whole^ whether the 
iffue, of " not elefted" be confidered as an 
iffue of faft only, or of fa6l blended with law, 
the plaintiffs in error are equally intitled. 
For if an iffue of faft only, then ten were not 
members de faSlOj having been removed; and 
the profecutor's evidence opght njot to have 
been received. If the iffue is blended with 
law, and i? was competent to the profecutof to 
go into the right, it was equally competent to 
the defendants tp difprove what was given in 
evidence by the profecutor. If it be merely 
a queftion of feft, we had a majority at the 
poll. If of law, the evidence of the title 
gf the ?led:ors muft be received. Xhere- 


I 4>i ] 

fore, in either ' cafe, the Judge did wfong; 
and confequently the judgment ihould be r^- 

Mr, Davenport contra. K% to the firfi ob- 
jcftion that feveral perfons are included in 
one infbrnnation^ the ftatute 1 9 Geo. 2* fur- 
xiiihes a clear anfwer, by giving the court a 
difcrction to join as many perfons as they 
pleafe. And as to the objedion that the 
.leave of the court does not appear on the re- 
cord ; it never docs appear ; and there is no 
neceffity it Ihould. Secondly^ as to Jeverdl 
claims being joined, it is faid, it would ' have 
'been bad at common law: but the cafes 
quoted of feveral perfons joined in an indift- 
mcnt for perjury*, and for exercifing a trade f, * * stra. 921. 
, are not applicable. Six could hardly be guilty J Burn 204$/ 
of the fame perjury. .But there is no cafe 
which fays, one man ftiall not be called on, 
for ufurping different offices, in one informa- 
tion* The cafe in 2 Bamardifton 25, fays, 
." two ferjans cannot be joined in one indift- 
f' mem ;" it does not fay feveral offenees can- 
not. But this aft fays, " By leave of the 
" court different ujurpations may be joined.'* 
There is a cafe of Rex verfus Clendon^ in 
.2 Str. 870. where it was faid, *^ two could 
** not be joined in an indiftment for an af- 
" fault:" but that has been often over ruled. |t 

If there be no precedent, it muft be refolvcd on 
principles of law : and what principles of law 
fays, the Crown cannot call on a man to fliew 
why heexercifes feveral franchifes? It is more 
-beneficial for the defendant, that his different 
claims fhould be joined i and one expence 
only be incurred. In Co. Entries and RaftaV%y 
tiiere are feveral precedents of informations, 
for ufurping different offices. Co, Entries y 527^ 

H h 4 tit^ 

I 47a 1 

cfxt M^auchifcs. And in the Earl ^ Shifewflmry^t 
cafe, ibid, fixtun franchifes are joined j ixA 
thelc in fi^(7 v^arrantoi which i«*& £kri£l^. 
mode of proceeding than the information, in 
nature of quo warranto^ now fubfiituted in its 
place. Thefc cafes occurred in the time^f 
Lprd Coke^ and Hohart^ attorney-general. It 
might a$ well be faid, that goods fold, and 
work and labour done^ (hall not be joined* 
Therefore> the a<5t of parliament ia an anfwor 
to the firft: objection; and the j>rincipksof 
law CO the fecond. The next objed:ioii goes 
to the/<7ri» of the iffue, with refpe<5t to -Aftfr- 
jhall and Gruhb \ who claim under the flatute 
li^Geo. I. as refident traders. Now the fight 
given by the flatuie, is a claim to he admi^dy 
provided they are refident Proteftant tradevS'; 
but inftead of fhewing a tide by admijfion un- 
der the 3(9:, they waive that, and fhew .a tajc 
by ekSiioriy precifely in t)ie fame manner as the 
other defendants have done* Therefcre the 
replication taking iffue on fuch eledtion. is 

fhirdly^ As to the objeftion that the. Court 
h^ve proceeded on the bill of exceptions, of 
which they had no jurifijidtion. Jf thef had , 
nyt, it is a mere nullity i and if the judgment 
be good independent of it, the Court will con- 
fider it as given on the verdidt alone. 

As to the fourdi objedion on the bill .of cx*.^ 
ceptions, that the ten were not even voters de 
fa£lo\ I ft, becaufe not aHually admitted, and . 
2dly, becaufe removed 5 if they were not actu- 
ally admitted, the defendants themfelves never - 
were i for the entry of their admiffion^ is pre- 
ciiely in the fame manner. As to their being 
removed, tha^ o( itfelf is an adraiflion they 


t 475 1 

'weiiB once bctfg^cfs : but by whbW re- 

moval ? By the comrtion-couricil onhfy who arc 
bui z^art of the body; confequently, had no 
righr to "remove them* With regard to the 
adntiffibitify of the profeemor's evidence to 
prove them voters de /^i5?o ; if the defendanti 
had a right to p^bduce the entry they did, to 
difprove their right by (hewing their amotion, 
it M9z% clearly (Competent to the Crown to fhew 
they were reftorcd by aii entry in the fame 
book, widiout prodiicing the writs of manda-- 
«wrj themfeives. Written evidence muft be, 
alJ.taken together j therefore the evidence was 
clearly adnliffible, and if fo, the aft of rcftora- 
tbn; by rtlatipn back, makes them in froni 
1761, and puts them in the fame fituation zi 
if they had never been. out of pofleffion. — ^As 
to the 3d f^nty it is dangerous to attack derU 
fuatvue tilitSy by ftn objeftion to the original 
tv^; If the eleSors were de faSto members, 
they ought nOt to have been rcjeftcd on the 
groiMid of a defeft at the time of their own 
efeftkjn'j nor could the qiieftion be ^one into. 
There are but two ways of attacking the title 
of an t]^&,ot de faSlo y the firft is by informa- 
tion, which is the propereft mode; beeaufe the 
party beft knows his own title. The other is 
by an iffue introduced on the record, upon the 
title of the perfon whofe right is meant to b^. 
queftioned. A third way was attfcmpted in 
the- famous cafe of Strode verfus P aimer ^ Lil- 
He's Ent. ^48. by notice on the record, that 
particular votes would be objefted to. But 
neither of thefe fteps have been taken in the 
prefent cafe. Even judgment of oujler is not 
conclufive ; for if by collufion, it may be con- 
troverted. Rex verfus HebdeUy Andr. 388I— 
39a. But where there is no judgment of 

[ 474 3 

cufier^ i)o £(A of rempval apparently tertiom 
will do. In other cafeSj the court requires 
that notice fhould be given of the fad meant 
to be infifted on. ^ufton verfus Nevifon^ 
a, Ld. Rajfm. 135^4. As to the 4th ofage£tion> 
it was decided in Comyns 243, Auftin verfus 
OJbority that a man ipay have a right to vote^ 
though never admitted. 

Lord Mansfield. — There are /i&r^tf^ objec- 
tions made to this judgqient, independent of 
the fubjcft matter of the bill of exceptions. 
Thtfirft is, that this is ap. infprmation againft 
different perfons ; and againft the fame peribas 
for different ufurfati&ns. As to its being againft 
thtjame perfons (or different ufHrpations^ I think 
ivhat Mr. Davenport has faidj and the cafes he 
has cited ?re very ftroog to ih^w> that the infor- 
mation would have been good at qommonlaw: 
but if ^t voi>id npt }iave bee(i good at common 
law, it is ftrongly within th^ ft^tute 19 G«u 2. 
c. I i./c"^. 4. af^rtiori^ ^hen the ftatute gives 
leave to e^^h^bit one and the fame information, 
if the court Ihall think fit, agaipft different de- 
fendants for the /everal Wghts claimed, or.fet 
lip by ^heni refpeftively. As to the other 
part of this objeftion, that ;hi$. is. an informa* 
tion agaiqft different perfons ; the answer is, 
that the aft of parliament gives a difcretionary 
power to the court to grant one or more 
informations, according to tHe patgre and cir- 
cumft#3iC€S of the c^fe: ^d tq fuppofe extra- 
vagant ^afcs, or that the Coyrt would be ab- 
furd eoQugh to join twp franchifes ia different 
corporations, is to fvippofe a cafe that cannot 
?xift. The Icgiflature frufts the court with 
the diftretion^ of joining them ; and upon an 
application. for leave^ the qourt goes into the 
nature/ of the queftion tp be tried. In this 
cafe, nothing could be more proper, than to 


I -475 1 

join the feveral defendants and the relpedtivc 
franchifes they claim, which arc three. The 
right of elcftion is exaftly the fame, the quef- 
tion is the fame, and the evidence the fame. 
But then it is contended, that fuppofing this 
Jubftantially rights it is formally wrong ; becaufe 
it is not ftated to be filed againft the feveral 
perfons, and for the feveral offices they claim, 
by leave of the court. No fuch thing is ne- 
cefTary ; no information ever ftates it to have 
been filed by leave of the court. The court 
gives the order, and the information is filed. 
But fuch leave never appears on th^ record. 
Counfel cannot fign an information without 
leave is firft given : but it never appears on the 
pleadings \ therefore, that objeftion is out of 
the cafe. 

The next objection, independent of the bill 
of exceptions is, that Marfhall and Gruhb 
rlaim to be freemen under the all of parlia- 
ment, and not by eleElion^ and tlierefore, the 
ifllie as to them is an immaterial iflue, being 
joined on the eleSlion. The anfwer to that is, 
the defendants themfelves have put it fo; and 
call their admiffion by the corporation, an 
eleftion. They are not freemen i^fofa^Oy by 
, the aft of parliament 5 but they mull Ihew 
they are fo, by proving themfelves Proteftants, 
refident in the town of Galway for a year, an- 
tecedent to their being admitted, and that 
they have taken the oaths prefcribed. There- 
fore the defendants themfelves have led the 
profecutor into the miftake, if ^ny, by calling 
their admiffion an eleftion. That objeftionj 
therefore, has no weight. 

The next objeftion is, that the court below 
have given judgment, not only on the verdift, 
and, what arifes out of it, but have likewife 



t 476 1 

gone into arguments on die bill of exceptions; 
an^ the judge before whom it was tried, ap- 
peared perfonally, and brought his bill of ex- 
ceptions before the court of B. R. in Ireland. 
It certainly is fo : the court has proceeded by 
miftake on the bill of exceptions, and gone 
into arguments upon it. Till very lately, 
there was no bill of exceptions in Irdandy and 
they were at a lofs in this cafe how to proceed. 
The ftatute giving the bill of exception^, 
fays, it ftiall be brought by the judge who 
tried the caufe into the fuperior court. It is 
ib here : a bill of exceptions from the C B. 
comes into this Court immediately; it goes 
from hence originally, to the lords in parlia- 
ment. Where there is a bill of exceptions 
from the B. R. in Ireland^ the judge muft 
bring it into this Court. To eafe him from 
that trouble in this cafe, a commiffion iffucd 
to Lord j4nnaly to take the acknowledgment 
of his hand and fcal. They were doubtful 
whether they fhould not certify the tranfcript, 
as they do of all their ot,her records. 

But if the court of B. R- in Ireland had no 
jurifdiftion upon the bill of exceptions. What 
is the cbnfequence ? They have proceeded on 
good and bad ground^. Though this Court 
differs frorp them on the bad ground, it does 
not follow thg.t they differ from them on the 
good. If there is «i good ground, independ- 
ent of the bill of exceptions, that; is fufficient. 
This Court cannot reverfe a right judgment, 
becaufe the court in Ireland ha^ proceeded er- 
roneoufly in rVpeft of fopicthing elfe which 
they ought not to have entered into. 

Then we come to the merits of the fubjeft 
matter of the bill of exceptions j anci ^ tQ that, 
four qucftions have been made, 


t 477 1 

The frji qiieftion is. Whether the ten voters 
who offered their votes, and were rejeftcd, 
ought to have been received. Upon this qucf- 
tion the validity of the defendants eleftion cn-r 
tirely depends. 

The firft objeftion that has been made 
againft their right to be received, is, that they 
were not even voters de faSa. This objeftion 
has been attempted to be fupported on two 
grounds i ill, becaufe they were never admit- 
ted of the corporation, the order produced in 
evidence, being only that they Jhould be ad- 
mitted, and does not fay they were admit- 
ted. But on the proceedings produced it ap- 
pears, that for ten years they afted as burgeflfes; 
and that which was called an order of dis- 
franchifement, confiders them as burgeffes. 
So the order for their rciioration is evidence to 
be left to the jury, of their having been ad- 
mitted ; even iuppofing it refted on fo nice a 
point, as vi^hether it was made before, or after 
their admiflion. 

The next ground is, that they had been 
disfranchijed \ that the disfranchifementwasftill 
in force, and their reftoration not till after the 
eleftion. As to' this objeftibn, a great deal de- 
pends upon theufe of the ^ovAdisfranchifement -, 
otherwife it creates a confufion. But on look- 
ing into it, this is no disfranchifcment, nor is 
there a pretence for calling it fo : but it is do- 
ing that which the common-council had not 
the femblance of a right to do ; taking upon 
themfclves to judge of the validity of an elec- 
tion ten years before, and to declare it null arid 
voidy for want of a qualification at that time. 
The word " disfranchifement" fignifies taking 
a franchife from a man for fome reafonable 
caufe 5 which they do not do, but only fay they 
5 never 

[ 478 ] 

never wefe common-council-meti. What au-' 
thority have the common-council to do that ? 
None. It could be done only by information 
in the nature of a quo warranto. But foppofe 
it had been a disfranchifcmenr, how does it 
appear to the Court that the common-council 
have a right to disfranchife. It is incident to 
the corporation at large to disfranchi(e, but 
not to a feleft body. It does not follow that 
the feleft body who has a right to eleft, has 
from thenee a right to disfranchife. But the 
fadt is, it is no disfrahchifement at all. 

The next obje6tion is, that the order of re* 
ftorntiony as it appears by the corporation 
books, was not made till after the ele6tion, and 
that this order alone, is not the beji evidence. 
As to that, the corporation books are clearly 
as good evidence to fhew thefe perfons were re- 
ftored, as to ftiew they were disfranchifed. It 
ftruck me at firft, that the time of the reftora- 
tion, and confequently the time of iffuing the 
mandajnusy which was not proved, might be 
material: that is, \i tht mandamus tor tikovQXht 
voters in queftion, was before the eleSlion of the 
defendants, and the order aStually reftoring 
them, was not till after ; and to fupport their 
right, it had been neceflary to make the order 
relate back to the date of the mandamus^ the 
time of the writ ifluing fhould have been 
ihewn. But upon confideration, I think, that 
let the reftoration come when it will, it relates 
to the original right. It would be fo in the caife 
of a probable ground of disfranchifement. But 
here, there is not a probable ground: there is 
no colour for a removal ; the adt of coihmon- 
council was a mere nullity, and the reftoration 
makes them in from the beginning.-^Thus it 
ftands as .to their being voters defaSto. 


i: 479 1 ' 

The next queftion is, being voters defaSioi 
•whether, on the trial of the refpeftive rights of 
the feveral defendants, the eleifted/ the rights 
of the voters to their corporate franchife canr 
be gone into, without any notice on the re- 
cord, or CoHateraHy. It is true, that, in ge- 
neral, the perfon clefted rtiuft take upon him- 
feif to fupport the right and title of his electors: 
it is fo in a variety of cafes. In the ele<5lion of 
aldermen of the city of LondoHy coroners, 
members of parliament, £s?r. all thefe arc 
bound to fupport the rights of their eleftors. 
But, for the fake of juftice and convenience, a 
diftindion has been mad^ in cafes where the 
right of elcftion depends upon corporate fran- 
chifcs.. There are qualifications to the excep- 
tion, fuch as have been ftated by Mr. BuUer. 
The general queftion has never been fully kU 
led, though it has been touched upon in many 
cafes. But this is fetled; that no corporator 
is bound, by furprife, to go into the original 
qualification of any corporator in poffeflion, 
who voted for him at his eleftion j efpecially 
without notice. What would be the condition 
of thefe people ? There are ten of them who, 
for ten years, have been quietly in pofleflSonr 
without any information, or the idea of an in- 
formation being brought againft them. How 
can the queftion be gone into, with regard ta 
their qualification, at fuch a diftanee of time; 
more particularly as that qualification depends- 
on their refidence and inhabitancy for a year,, 
previous to the time of their eleftion ? 

Aston, Juftice. Thi* has not the leaft ap- 
pearance of a disfranchifement. Can a com-^ 
mon-couhcil-man declare the elcftion of an- 
other common-council-man null and void? 
In genera], a disfranchifement muft be the aft 


C 480 3 

of the whole body t dnd if a ^>ecit! p&wtfik 
del^ated to a part of the body^, k o^ght t& be 
ihewn. But no fuch power apf^Hra in the 
common-council. Therefore I look lipon 
'their order^ in this refped^ as a mere nulHty. 
As to the qualification of the eleftors^ it is 
not neceflary at prefent to decide whedier 
their right could have been gone into; be- 
caufe, it the mavor was bound to receive thefe 
votes, the eleftion is dearly bad. As to die 
flat. 4 Geo. I • that ftatute gives a man only a 
righf to the freedom of the town -, and to com-* 
plcte his title, he muft go before the mayor, 
take the oaths, and produce the other prOoB 
required. The iflue follows the words of tJie 
plea. Therefore I am at prefent farisfied, diat 
the judgment entered, is the proper judgment 
to be entered up on the verdift ; arid the dt^ 
cumllance of the court below having proceed- 
ed upon the bill of exceptions, fhall not ti* 
tiate it. 

WiLLis, Jujiice. — My only doubt is as to 
Marjhall and Grubb ; for their right ' to 
be admitted freemen, is different from the 
others : and if they have performed the I'e- 
qui£tes of the ftat. 4 Geo. i . they are intitftd 
to be admitted, and are by the aft declafcti 
to be free. Whether the ten are good votert 
or not, as at prefent advifed, I think Grubh 
and Marjhall are good burgefles under the 

AsHHURST, Juftice. — I entirely concur, that 
if enough appears upon the whole of the record, 
to (hew that the court of B. R. in Ireland have 
g^ven a right judgment, we ought not to re* 
verfe it : and I think the bill of exceptions 
makes no difference. The iflue is taken in 


C 481 1 

cbe faoie words as the plea^ giyi the plea c^lU 
it an eledion. 

. Lord Mansfield. We will think of it a$ 
to this pointy and give you oiir opinion ; and 
if any thing more is neceiTary, we will let you 
know it. 

Cur* advi/au vmU. 

The Court afterwards faid, they wifhed this 
cafe to be argued again* Accordingly it was 
argued again in Hilary Term 1777, by Mr. 
Dunning for the plaintiff in error, and by Mr. 
Mansfield for the Crown : but all the points 
were given up except two. ift. Whether, at 
all events, the defendants Grul^i and Mar/hall 
were not intitled to judgment, their title under 
the GaJway a6t not being denied or put in if- 
fue. adly. Whether the Judge below did not 
do wrong in rejedting the evidence offered, to 
fhew that the perlbns rejected by the retuming- 
ofEcer had not a right to vote. — After the ar* 
gument, the Court delivered jheir opinion, as 
follows : 


Lord Mansfield. — There are two quef- 
tions^ fofty Whether, upon this record, judg- 
ment ought not to be given for the defendants 
Cruilf and Marjhall ? And, Jecondly^ Whether 
the Judge below ought not to have goneinto 
the feveral qualifications of the fcveral votere^ 
>^ho voted as common-council-men, andwhofe 
titles be refufcd to enter into ? 

As to the firft queflion, enough appe^ 
upon the record to incline us to think, that 
Gruhh and Marfhdl really had a right to be 
freemen, if they had pleaded in a proper way« 
and if judgment oi oujter on this record wisjrp 
to bar them for ever of the benefit of that right, 
a reluftance would arife in the Court, from thp 
general prejudice they have againft any party 

Vol. III. I i lofing 

{ 4»1 1 

ioGng his right, by a mere 'deftft In Ms feftfe 
of pleading. If that were the bSffe, *h<>Ai¥ 
•principle muft be idhered to, ivhich is/flirft in 
all queftions concerning the Tfghts 6Fc6rp6». 
tions, it is moft deflrable and ncccflkry, 'fh8t 
the law fliould be certain, not only in ffl^eft 
of the matter, but alfo in refpeft of the wnh 
and manner of all their proceedings. 

But my mind, with regard to Mai^Jhdll^s^ 
Grulby IS corifiderably eiftd, by b^gof bpi- 
^nion, that the judgment of c/^^^'onlflfis re- 
cord will not bar them, if they af)|ily*in a*|:Ui3- 
j)er way : becatrfe they will then hare a new 
title, not affefted by the preftnt judgftierit. It 
may happen, that perfons might aj>ply at 8fie 
time under the aft of parliament, when Ihey 
had no title; and at the end of fix *mo!)i^s 
after they might have a Very '^ood orie. iHt 
fliould be fo in refpeft bf thcfc two de^Kfinfe^ 
the^queftion is ftill open. • 

Tnis cafe, as it is now brought biflEoVe Ac 

Court, is an information againft the^fiW^Sfe- 

fcndants, to fliew by what authority* they claim 

the offices of freemen, free-burgeBes, aUd 

common-council-men of the town and bc^^K^h 

of Galway. As to the offices bf coffkf^-iffun- 

, iil-men znA free-bur geffi^y the 'quairfication'ttJRd 

mode of eleftion depend intirely' tijjbn Ae 

ionjlitution of the borough. As' to the dfBde'of 

freemen^ there are two 'modes of acquiHng^ifiat 

I right : the one, according to Ac c6tiftihiti6n 

' of the borough,^ by the cle6Kon of ihe m^r, 

, common-council, and freemen, ' in generaV^- 

,* fcmbly, agreeable to the rules of the bbftifi^h 

' and its charter : the odier, by • ipeclal aft'^of 

*" parliament, which confifts'and is complicaftd 

. of many fafts. This latter gives a right ^Ay^ 

? Aot a title I becaufe the qualifications of #ie 


I 483 3 

claimants muft be judged of. They are tD be 
cradeimen of certain trades mentioned i inha- 
bitants within the borough for a year preced* 
ing 5 Proteftants profeffed for fcven ye^s ; and 
then they are to apply for their freedom. The 
aft therefore gives but a qualificatioH. The 
roode of obtaining their freedom is by appli- 
cation to the mayor upon the fafts before 
mentioned. The mayor, therefore, ex officio^ 
h to judge whether they are qualified within 
the aft or not $ if they are, he mull: admit 
them ; if not, he fhould rejeft them ; and if 
he fwears any one in without a qualification^ 
fuch perfon may be oufted by an informa* 

But thefe two modes of acquiring the free- 
dom of this corporation are attended with dif- 
ferent confequences. The freemen ele6ted 
according to the conftitution of the borough^ 
remain in pofleflion of their franchife for life: 

. dide admitted under the aft of parliament^ 
continue fo only during their aftual refidem^e 

. in the town. It is neceflary therefore to know 

. which are chofen the one way, and which die 

To the prefcnt information in nature of qM 
^arrantOy the two defendants have pleaded the 

. qualification under the aH of parliament. They 
certainly h^ve pleaded thalt they defired to" be 

. fworn under the aft of parliament : but then 
they join the dde of comfnon-council-men and 
the office of freemen in die fame right, arid 
they apply exaftly the fame words to each. 
They aver, th^t they were firfl: propofed by 
the common-councUs purfuant to the new 

: rules for regulating die town ofCfalway ftated 
in the plea, which require that diey (Uould be 
6r& approyed oif by die cooimon^ouncU, and 

li a '' ^' jpro- 

E 4S4 1 

propounded to be elefted at the ^QlfelL But 
that is not ncceffary under the a6k of parlia- 
ment 4 (7. I . Then they ftate that they were 
duly eleltedy and that being fo eleiied into the 
office of freemen, free burgeffes, and concxmon- 
council-men refpeftively, they took the oaths 
before the mnyor and two burgejfes j which is 
the form in cafes of ele£tion by thp conjiitutim 
of the borough. Here, therefore, they plainly 
reft their title on eleHion^ and go to iffue an 
that title. 

Upon this record it does not appear that 
they took any ftep to be made freemen. by the 
aft of parliament; therefore they have not 
Ihewn a complete title under the aft of parlia- 
ment : but reft their claim upon another title, 
lapon which they have gone to iffue, and which 
has been found againft thdm. It is impollible 
therefore to give judgment for them. 

The next, which is an objeftion of lefs dif- 
ficulty, is, that the Judge below has refuicd 
to go into the qualification and capacity of fe- 
veral freemen and commonrcouncil-men who 
offered their votes. Let us ftate the objeftion 
as it is put, and examine it. The propofition 
is, that the Judge, on this infQrpnatipn,^ ftioiild 
have done exacHy what he ought %q haye c^one, 
if the title of thcfe perfons, whp were, pom- 
mon-council-men^i? fiiHo^ had aftpally jb>^cii 
in qucftion before him upon ^ao warranto. 
They were de faSo members of the corpora- 
tion, admitted, fworn, aad ir\ the adbaal en- 
joyment of the office. The queftio^i is, whe- 
ther the Judge collaterally at the trial ought to 
have gone itito the validity of ^hefe. men's tides? 
Could the mayor have goae into it at the ejec- 
tion? I am very clear he could not. There 
are modes fufficientj open to the partiality of 


t 485 3. 

returning -officers, without adding more. 
Where the qualification is to be judged of by 
him, it cannot be avoided. In cafes of elec- 
tions in the city of Londotiy certain qualifica- 
tions are required at the poll : therefore it muft 
be feen that in fome degree the candidates 
have that qualification. So where an eleftion 
is to be tried which may involve many other 
rights. But where the right of eleftion is in 
freemen in their corporate defcription j whe- 
ther they were duly chofen or not, is not to be 
tried at the eleftion of a third perfon j but 
they muft be properly oujled. What ? after 
a pofleffion of twelve years, fliall their right 
be called in qucftion and tried on an informa- 
tion' againft other perfons who are propofed to 
te freemen? It is impoffible to be done, Sup- 
pofe the right depended upon their being 
fworn in before twelve burgeffes : is the right 
of thofe twelve to be tried in an information 
'againft one ? But the objeftion would go fur- 
ther; for there are corporations where there 
^re thoufands of freemen. Upon the trial of 
"a right of a freeman's eleftion niade by them, 
is th^ Court to go into the qualifications of 
' ill 1 the thoufand to have been made freemen 
* at the time they were elefted ? Certainly not. 
' For this purpofe they are to be confidered as 
having a right. It is ftronger too in the pre- 
fent cafe, becaufe thefe were reftored upon a 
mandamuSy though I do not go upon that. It 
is all one objeftion. It would be to lay dowa 
a rule, that a party upon every new eleftipn, 
fhall be at liberty to go into the corporate 
rights of all the members defaSoi which is a 
propofition that was never before, heard of, 
* Therefore I think the Judge did right in re- 
ftifing evidence to impeach their titles* 

I i 3 Suppofc 

C 486 ] . 

Suppofe a corporate body confiftmg of twen* 
ty*four were to add ten to their number. That 
would be an abfolute nullity; becaufe they 
liever were corporators defaSo^ But the pre- 
fent queftion is^ whether in a quo warranto 
againft particular members, you can go into 
the title of other corporators de faElo t And I 
am clearly of opinion you cannot, 

Aston, Jufiice. — Upon the fecond queftion 
I am very clearly of the fame opinion. The 
Carmartbiu ca^e is in point. 

The more material cjueftion is the firft quef- 
tion, whether upon this record, ;here is fuffi- 
cient to diftinguiih the cafe of Grubb and 
Marjhall frpm the others? It does appear, 
that perhaps Grubb and Marjhall may have 
been very well intitled under the ftatute 4 
Ceo. I* to have demanded their freedom. But 
I cannot conceive a cafe, where a man has a 
right under a charter or ftatute by claiming 
it of the proper pcrfon, that, if refufed upon 
that claim, and that claim only appearing on 
the record, it would be a good and coniplete 
right without a real admiflion. Upon the 
whole of the record, I think that Grubb and 
Marjhall have put their defence upon their 
election, and fland on the fame title as the 
reft. They have pleaded the ufage of the bo- 
rough in relation to the eledion. They then 
ftatc the new rules of Ireland relating to this 
town of Galway ; that nothing (hall be done 
by the thojjell 'till it has paffed the common- 
council. Then they ftate the oath to be ad- 
ininiftered j their reGdence 5 their being Pro- 
teftants \ their offer to take the oaths i and the 
demand of their freedom pucfuant to the aft. 
But faying fo^ does not make it in purfuance 
of the a^. 


C 48? ] 

Then they ftatc that a tbolfell was held, and 
that Grubb and Mar/hall were propounded to 
be admitted ; and were in due manner eleStid 
in confequence* They plead therefore juft as 
the reft do. They join with the reft at leaft vx 
faying they were deSlei^ and that they took the 
mths agreeable to the charter. Upon this plea 
therefore this was not a demand of their free- 
dom in confequence of the qualification un- 
der the aft ; but they have pleaded that they 
were elefted as other perfons, without the aA. 
The iffue purfues the plea, that they were not 
tlefted \ and I am clearly fatisfied that this 
was a proper and not an immaterial iiTue. 

WiLLEs, Juftue. — I am clearly of the fame 
opinion on the firft point, but not on the fecondt 
with refpeft to which the doubts I before en- 
tertained are not fatisfied. — There is a confu- 
fion upon the record whether freemen and free- 
burgeffcs are not the fame. But certainly the 
common- council-man was a different perfori, r": 

and is not included in the aft of parliament, v^ 7 ... 

The firft right is by cleftion, acconling to the ' 'V ^' 

cuftom of the borough, and where a man is ^ *%. jjj 

eleSledj he is in for life, unlefs he commits a "^ ^^ fj 

forfeiture of his franchife. But the aft of par- ^^ 

liament declares the freedom iKall continue \ 

only during refidence. As it ftands on the 
record, I cannot agree with my brother Afton 
that the plea of all the defendants is alike. 
For Grubb and Marjhall have pleaded a title 
under the aft of parliament. The others do 
not. The queftion therefore is, whether there 
is enough ftated in the plea to Ihew they are 
intitled under the aft of parliament, and have 
done enough to acquire their freedom. If 
there is enough to fhew that, and the iffue is 

I i 4 joined 


i 488 ] 


joined on the cleftion, it is an immaterial 

Now they firft ftate the qualifications ; next 
;he a6t of parliament : what is the other re- 
quifite for them to do ? they are to demand 
ihcir freedom purfuant to the aft. Does the 
plea go to it ? The words are, " that they 
offered to take the oaths purfuant to the aft 
of parliament." This was previous to any 
claim they had by eleftion. But then they 
confound the two rights, by faying they 
^leSled and admitted them : as if the one term 
applied to one right, and the other to th^ 
other. They add that, they have taken the 
oaths before the mayor and two of the bur- 
geffes i but joining the burgcjfes was not a ne- 
cefTary circumftance upon taking the oaths 
on admiffion : if they took them before the 
mayor, they had a right under the aft of par- 
liament. ! do not therefore think the judg- 
ment of oufier fhould pafs againft them. — 
There is a ftrong cafe in Strange^ 6:25. -^^^ 
verfus Hearhy which makes me alfo in doubr^ 
whether the judgment of oufier on this record 
will not bar the defendants title under the aft, 
even if they ihduld apply in a proper way; un- 
lefs they can ftiew a new Jubjequent acqiiircd 


AsHHURST, Jujlice. — I had a doubt abouta 
repleader upon the firft title : biit the joining 
iflue upon the eleftion makes th6 title under 
the aft of parliament unnecefTary. For if they 
had. meant to have relied on that, they would 
have demurred to the replication. 

Further, upon thefe pleadings, the title they 
have.fct forth in the plea under the aft of par-. 
Jiament, is not complete 3 becaufe the qualifi- 

Z ^atioft 

— * 

E 489 ] 

nation of being a Proteftant^ (St. is not ai::om^ 
plete^ but an inchoate title ; which they had a 
right to have rendered connplete> by taking 
the proper fteps before the mayor. Have 
they taken thofe fteps ? If they meant to be 
admitted under the aft, they Ihould have given 
notice of fuch their intention. But it does 
not appear that they applied to the mayor to 
be admitted under the aft. The contrary ra- 
ther appears : for the admiffion fet out is, an 
admiflion by the mayor and common-council ^ 
which was an admiflion under the charter ; and 
not under the aft of parliament. Therefore, 
if there is not a complete tide under the aft of 
parliament, judgment of oujier muft go againft 

Befides, the court will not grant a repleader, 
but where complete juftice may be anfwered. 
If a repleader were to be granted, the parties 
muft begin from the point of pleading where 
the immateriality begins : the defendants fay, 
it is in the replication. I think the iffue taken 
on the replication is not an immaterial iffue. 
What would be the confequence of granting a 
repleader ? The relator might reply de novo^ 
He might in that cafe demur; it would be 
doing nothing more therefore than putting him 
to demur for the duplicity of the plea, and the 
ends of juftice would not be anfwcred. If 
judgment of eujier is given on this right, it 
will not make the other title of the defendants 
bad. Therefore I think the judgment ought 
to be againft them. 

On the fecond point I concur, that the dif- 
qualification of voters for non-refidence ought 
not to have been gone into at the time of elec- 
tion. If upon fuch a general iffue as nonfuii 

2 Cro. 1% 

I 4$9 ] 

eieffHs, it could he done» it wQukl be the caufq 
of endlefs prolixity. 
Judgment affirmed. 

As the doftrinc of repleader is not generally 
known, the following abftrad of cafes (col* 
ledled together in Com. Dig. V. 5 & 6.) jcnay 
prove ufeful, as containing a great deal of 
matter, thrown into a narrow compafs. 
Yei.aTo.ran. In an adion againft huiband and wife, both 

^^' 7*°- ought to join in pica, and therefore if the wife 

alone conies and pleads, there Ihall be a re- 

So, if the entry be that the hu(band and 
miik come and defend xhe force and injury, 
and the aforcfaid wife faith that fhe is not 

5Com.i)ig.i68. Though i\itfirft be fuppofed by the wife 

only : as, in battery agabft hufband and wife, 
for a battei'y by the wife* 

R. 2 Cn>, 188. ^» in a£tmffit againft hufband and wife* 

Yei. 2IO. upon a promifc ctf the wife dumjola. 

R. YeL 210. So, in an a/ftioii for wcM-ds fpoken by the wife 


'r i3rowni. 'So, in battery againft hufband and wife and 

>97. others, if che wife and others plead not guiltyy 

and the hafband/<?» ajfaujty it will be bad. 

R. 2 Cro. 239. So, in battery againft hufband and wife, if 
the hufband juftifies in aid of his wife, and the 
•wife only pleads ^1; affaulty 11 i^ bad. 

semb.Cro.Qar. So, thcy «ought to joio in the avernaent, and 

^^"^ this 'they are rmdy to wrify. 

RCro.EL883. gut, wherc the tort is fuppofed by the wife 

fc.'icro." * alone, though both j$)in in . pleading, yet the 

ilTue ought to be, that the wife is not guilty ; 

and therefore \viitrover upon a conv^rlipn by 

the wife, if *^the hufband jtnd wife plead that 

" fbey are not guilty, it is bad, and a repleader 

6 ih^ll 

fhall be awarded^ for it ought to be^ that^^ is 
not guilty. 

R. Com* in an aftion for words by the wife,, 
for both arc chargeable with a wrong done by 

the wife. ^ Pal!'68'^nd'(L 

R. Ace. in aftion for words by the wife. ifthUiiTOt 
Yet in debt againft them, they may plead, ^^ ^ 

that they do not owe. 

The iflu6 that they are not guilty cannot be ^ cro. 530. r. 

amended. This after verdift. coauLBrowiti, 


But, if the dogget be that the hufband and R. » Cro. 530W 
wife flead not guilty, and the roll be that the 
vii^t Jaithy omitting the hufband, it (hall be 
amended j for it is only the mifprifion of the 
clerk, for the dogget was a warrant to him tt) 
enter on the roll a plea for both. 

If the verdift finds that the wife alone is R- ^^i. 6S. 
guilty, it aids the plea. 

If an iflue is misjoined, or joined on an Cro.Ei.883.R. 
immaterial point, fcfc. when it is not aided (v^Jkntc.) 
by the Jf at. 32 //. 8. a repleader Ihall be » Mod. 137. 
awarded. ^^' 

So, if the iflue joined is nugatory and void, r. Mod. ca. *. 
whereon the court'cannot give judgment. ^^^'^' 33»- 

So, if the iflue is concluded to the country, R« » l«o- 9<^ 
where it fhould be to the record, &?r. or i con* 

There fhall be a repleader of a bar, replica- Ray- 45«- 
tion, or rejoinder, which is bad ; for at the firfl: 
defeft the repleader begins. 

By the common law, if an immaterial iflue * ^^' 575» 
was joined, the court might award a repleader 
before trial. 

But will not now, where the iflue joined will R. Mod. Ca. 3, 
be aided by the ftatutes ofjeofaile. ^^^' ^^^* 

So there fliall not be a repleader where the » Saik. 173. 
trefpafs is confeflTed, though the ifllic was im- 


E 49* 1 

cro. EI. 8?3. ^ There may be a repleader after a verdift. 

jiarii.ju. B^ generally there fhall be no rgdeader 

1 Uo. 79- ^ upon a dcmumer, without the confen^f^the 

< parlies. Per a 7- -^^^^ ^71. Mo. 461/ ^Sa^. 

Afo. 867. Lai. 147. ^</i». 2 L^-y* 142. d^f. 

allowed 3 L^v. 440. ^^ Powell Mod^ Ca* 102-. 

i?, ^y^v. 89, 2 Bui. J7. 

Yet, if there be a bad bar, and a bad replir 
cationj a repleader may be awarded upon a de- 
murrer. Bro. Replead. 39, ButPeriamJaid, the 
roll of that cafe could not be found. R. Pi. Com. 
1 38. <^. But Periamfaidy that there it was hy con- 
Jent. I Leo. 79. Ace. per 3. J. Periam Cont. i 
LeQ. 79* But in the fame cafe it is doubted • 
Sav. 89. Semb. Cro. £/. 318. i Jnd. 167. . 

R. Mod. c. 3. So there fhall be no repleader, where by t^e 

^efeft in joining iffue, there is a difconti- 

R. I saik.2i6. Or the defendant make default at the trial, 

4 saik. 579. whereby he is out of court. 

R. i.Roi.zS;. If iffi^c be joined in Chancery, and the re- 
cord fent into B. R. to be tried, for a dcfe.£t 
in the venire facias a repleader fhall be award- 
ed in B.R> and not in Chancery; for the re* 
cord being in B. R. can never be remanded...' 

Fcriiak, 2 -So anciently a repleader was awarded upon 

^^Uv* \7' * ^^^^ ^^ error, but this is now obfoletc. Cpnf. 

Y. ante. in ^ifidal and Brown j b. 1^2. 

iu Mod. ca. 1 If a repleader be awarded qx denied,, wjien it 

s*ii^- 579' fhould not be, it will bc.error. 

ihid. If a repleader be awardqd, the jud^nTient^'is 

quod replacitenty and the frefh pleading begins 
where the firft defeft was. 

juiti There fhall be no cofls on a rejpleader. Sed 

vide ante 44 1 , i^c. 
Hackfhaw v. There fhall be no repleader where defendant 

^ (T st^^' ^* pleads payment, and acceptance in fatisfadipn 

3 . ia.-3. ^^ 

t 493 1 

of debt on bond, and plaintiff takes iflue bfr 
the aj^ceptance. 

After inqueft is taken by defktilt, defendant i^ampto»f, 
cihnot be received to make fuggeftion on the f^^^^*^' ^ ^ ' 
roll, for after default there can be no re- '^^' ^ ' 

Although an ifllie is immaterial, yet a re- Rex v. Phuips, 
pleader fhall not be granted, if the caufe can ^^J ^' ^^^ 
be ended more expcditioufly ; as if the plea 
be ill, or good in form, though* not in faft, and 
amounts to confeffion. ' 

If plaintiff declares on a leafe to -^. wliich Enysv.Mohwi, 
he lays is come by affignment to defendant, gj* 3- ^- * ^^'^*- 
and he pleads that ^. did not aflign to him, 
and ifflie is joined, there fliall be a repleader, 
for it is an immaterial iflue. 

In debt on bond, if defendant pleads pay- cownev. Bar- 
ment before the day under zfcilicety there fhall ^' ^' ^ ^' *• 

. u I J ^^^' 954- 

not be a repleader. 

If a bond is conditioned for payment of mo- xiyon v. Car- 
ney, on or before 5th of December ^ arid defend- ^^^^ m. 8 g. 2. 
ant pleads payment on 5th of December^ and '^** ^^^ 
plaintiff replies, and verdift for plaintiff, there 
fhall be a repleader, for it is an immaterial 

^. de hvc? Suppofe evidence of payment 
fcefore the day, is not that payment on the 
day ? 

When the finding on an ifTue does not de- rck v. pw- 
termine the right, the court ought to award iips, p. 30 g» •. 
a repleader, unlefs it appears from the record, wiiichvidcauu. 
that no manner of pleading the matter could 

F I/N I S. 


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