Essays upon I. The law of evidence. II

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ESSAYS

UPON

I. SCt^t S.ato of €t)ti)ence.

II. 5l5etD Xtialflf*

III. Special merDitt&.

IV. Xttate at max,

*<

x^

AND. /^/C,i'x

V. mepleaDetfi?, ^^g%^

[IN THREE VOLUMES.

By JOHN MORGAN,

9F TH£ INKER T£MPtE, BARRISTER AT LAW.

VOL. III.

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

tottj (tmt ni. IV. ana v.

LONDON:

0

yi^XNTED FaR J, JOHKSON9 N^72, ST. PAUL's CHVRCH-TARP.

M»CCLXXZIX»

* ft

1

ESSAY li.

Continued^

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

he

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

upon

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.
1979.

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
it.

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
would.

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
ifiue.

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

a$

[ 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.

Curi^^

[ 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\

Pcbf

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.

IX.

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.

Or

[ 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
place.

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-
terwards.

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

faid

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

againft

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
cofts.

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
thereto.

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-
fendant.

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, th.at 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

IS

' [ 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»-

ment.

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
Court.

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.

f-

[ 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

tried

[ 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

tranfitory

cc

[ 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

twelve-

[ *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-
fitit^ed.

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

€<

U
(C

/

[ 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

ofhim^

Be

[ 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
defendant.

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
aftion.

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

cafe,

[ 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

there

'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-

.J

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^e.it 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

207<

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
commiflion.

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-
puniEVi

1 37. r

puniiy. Is a ddftrine that cannot be main-
taiiied.

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
damages.

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 do-.mt 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 fajiing.th^
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:.

W..-.J

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,

falfely;

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&ed.to 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 fbbjeA.to
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

caufe

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

admiral

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

not

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

IX.

I 48 3

« • •

c

(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
judgment.
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
cuftom.

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

V

[ 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

jperidSei

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
error.

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
l(tw.

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
Court;

"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
trial.

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

€t

[ 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
^tnefles.

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
caufe.

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; ..tc

' '^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

The

[ 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
*VcrdiA.

Jfo argument can be urged for omitting tfyt

word

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
Jury.

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
^efe^

cc

€€

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
way.

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
ACQUITTED him.

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
back.

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

IX*

[ 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

it

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-
tiff.

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-
fendant.

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

the

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^
prdr

- 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-
fendant.

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

In

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

be

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

purt|

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.

L

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
before.

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
granted,

Mr,

[ 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.

IX,

C 71 ]

t

}X. ^etiier iS^fitmsi xtti^tttixis

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

MjeBment,

1

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

I

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.

In

[ 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
others.

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

verdift

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
intail.

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

of

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

cjcdment.

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

but

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-
tion-.

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
atteftation.

. 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
cofts.
. Rule accordingly. '

*^ * V ^

j> *< i .. •

^* *■<,"•»

' 'T

'1-t t

• r *

w i.

IX,

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. - - . . ' . . ^

,t*.

» > ■.« .

.<■

I »

<Ja

IX.

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^

pied.

?<?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

wasapprifedand
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.

It

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
reafons.

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,

upon

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
cafe.

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 his.ac-*
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

anfwcrs

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

Mr.

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. '

AlTumpfit

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
this.

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^
charged*

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
defendant.

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 to.be a
inSw tnai*' ^ . »• . ♦.-,,.. i' . .

t Curia.

r '
• «

1^1

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
ifiands.

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.

IX,

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.

cc
if

[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

fee

• • •

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
i.sa'.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."

IX.

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

ple7\$

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

the

[ 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

executed.

BULLER^

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.)

IX.

E ^^ 1

)

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

Jendant.

&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-
fendant.

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- Fonereaq-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

bribeiy*

IX,

[ iro ]

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

( 1 2 •) Of new Trials in criminal

Profecutions.

(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

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

de

.[ "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
civil.

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

collateral^

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*
her.

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
cafe.

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-
fendant.

» i ■

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

No new trial
to be granted
after four years
acquiefcence*
This a quo
warranto
againft a pcr-
fon adiing as a
comraon-coun-
cil-man of
Marlborough*

[ 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

were

[- 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

point

[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-
rough.

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

manner.

[ 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
trial.

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
caufe.

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-

fcquent

•["73

(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
cafe.

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

to

- 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-

mentofcofts.

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

turc.

[ "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 '
ifllie.

^ 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
therebh.

' 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
BthMiTues.

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, conpkided.bi? 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

old

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

members.

[ ^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, *

And

. ^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. *^'^^'^' '^

Afkcw

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

charter.

I

* —

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 .

And

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

not

[ 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 ftoppcd.by.the 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\ifc.it 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

I

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*

fifting

i m }

fifti^of .idiflfereat intiagr^li j^s^^aqjr p£«b?
froewen,, t^ing.an .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

an4

[ 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 for.it 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

idle

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 * •

.'.••.♦

IX.

i «55 ]

H. V

t\«. » • . • • ■ ■ \ ' J

tietn ICriaifif, ice.

(i2.) Of new Trtal$ in Criminal

Profecutions.

■

,(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

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.
agreed.

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

not

[ 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 !

and

[ 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
coQ3ndon.law> ^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^

iii

[ 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
fubjeft.

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
cordis.

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 ' - ' ' 0 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
matter.

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 Hawk.pi.cr;
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

was

[ 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

defendant.

\\i\

<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

the

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. — If.it 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!^}

IX.

[ 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^

IX,

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*

V

>.

IX.

J

[ 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.

* ^

«

JX.

[ 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

i

V

%,

1757-
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
iincouic.

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.)

1

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^

in

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

the

[ 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-
mon.

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
lafl.

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

of

[ 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

(hewn

[ 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.

So

[ ^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
tiff.

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-
gers.

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 cpuld.be
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.

ingly

[ 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

the

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
nonfuit.

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

be

[ ?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-
ment.

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

ance

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

the

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-
ceptance.

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

whether

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

the

[^'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
time^
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
teto.

[ 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

appeared

[ 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-
nients*

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^

relief;^

[ 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
equity.

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/*

which

[ ^»8 ]

. » .

which the Ju^ge thought did not fupport the
declaration.

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

u

€(

[ ^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
it.

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
portreeve.

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-;*

fignment

[ 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
record.

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

faid^

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
arreft.

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,

but

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

that

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
inforance.

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-
per,

. 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
(;ircun[)ftance.

A&HH^sT> J.^wA am of the fame opinioa

with

[ ^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

Ihip,

[ «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

any

[ 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
doer.

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 '"""^' -•*'■■
metely

[ 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 ^

perpetual

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
prove.

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
itw.as 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

the

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-
feflion.

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^)

as

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-
fuage.

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^

purtenant

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
family.

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
plaintiff.

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

pearcd

I

i

[ ^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
cafe.

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-
ruption.

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*

In

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"
ally.

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
again.

Rule difcbatged.

On

[ 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-
trad.

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 hardfliip.in 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 .

payable

[ 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-
tion.

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
another,

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-
mitted

[ ^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^
ment.

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.

IX.

i

£ as6 ]

I

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.

A

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
plaintiff.

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-^
wall.

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-
dent.

y

/

IX.

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

of

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-
ledged.in 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

lenge

[ ^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 gramed.at 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

St.tt- 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

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

where

\

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.

Bridgman

[ 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

void,

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^
fendente.

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
Counfcl.

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-

cd

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 witji.th^ 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
.(purder.

.. ' 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
.ftaod.pr 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

been

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?
court,

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^
novo.

. 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'
bar.

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
again.

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-

certain.

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-
ration*

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# .. , , . ....

This

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 to.bd
made a queftioo.. And by the fame reafon
that the omitting to fummons one, nun nwy

bq'

[: 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-
cofts.

• • •

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 fupplied.by
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
facias.de 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.

And

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
put.

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
traveffe,

. 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 as.to. 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.

Jndrews^

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-
murrer.

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
Guilty.

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 ]

I

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 iptkkd.fo take the fam,e.in 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

iC-4-

(?)

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>
Isdged.

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;

landi

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 Eir2.779.by'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-
tiff

[ ^93 ]

tlifT round. The word " parcel" may zf-
fill to fhew that only one Copyhold was
meant*

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.)
ment.

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.),

Upon

(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
infufficieac

[ ^^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-

fias

Walker v.
Witter, Poug.
M. 19 G.3. p. I,

(h)
Vide Doe 8c

Jackfon, Dong.

E.19G.3.P.167.

(i)
2&3£d 6. c. 13.

(k)
Gardiner v.
Croafdale,
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^«

right

[^97]

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»

■»' I

ix.

• C • »»8 1 j

t • '

IX. <Df ott)er iSPattetsf re(i)e«4

(20O Of New Triak in Jnfemr

Courts.

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*-
fendant.

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^

phd

[ '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--
dia.

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.^'^'^ ''^

in

The record
certified imme-
diately from St.
Martin's into
B.R.wijthouc
mittimus out uf
Ciiancery.

^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-
cution.

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 G.tn"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'
rit.

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

INTERLOCUTORY JUDGMENT WaS regularly CH"

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
inquiry.)

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

" CONSTANT USAGE AND PRACTICE ejlab'-

" 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
queftions«

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-
ferior

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
kind.

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
juflice.

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

ASIDE a REGULAR INTERLOCUTORY judg^

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
Q^jufiice.

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

cc

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

merits.

"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-
charged.
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-
f.jo^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

given

[ 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-
fence.

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

PLAINTIFF upon the DEMURRERS.

• 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

not:

[ 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

pleaded

t 326 1

pleaded the general iffuc to prevent judg^
ment.

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
difcharged.

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

advifed

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

\

I

■•*«"

ESSAY IIL

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
Jury.

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
lefiee.

Vfcs.

Eemainder.

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-

cial

[ 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
priority.
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

ftraqgef

[ 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,

and

[ 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.

were

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-
ments

Of the difference between pleadings and /fecial

verdiHs.

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»tHeraifed.bf
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-
folved,

ift-

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
ufe,

^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

according

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. . ,
4.th* 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

verdid:

Wtndi. 60.

Exceptions %o

yerdi(5t.

[ 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
pka.

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

643f

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
caofe.

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,
128.

Uncertainty
of finiUng, as to
robbery.

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

€€

U

€%,

(C

€€

€i

C<

I 339 ^

this IS not a fuSicient finding to make it rofsh*
bcry.

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?
jury.

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
appeared.

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
bonds.

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

Serjeant

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-
fimdant*

' 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

the

[ 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,

and

[ 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

ufc

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
Bolton.

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
that?

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

the

^

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

adminijrdvit;^

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

faft.

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

upon

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^ .

for?

[ 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

U
€€
€C
CC

€C

(C
CC

CC

9.

ti

<c

€€
IC
€C

€€

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."

cc
cc
<c
<c
&c
rr
If

l<L

Wiat^'er

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)

If

u

It

€€

[ 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

of

[ 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
Court*

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

complied

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 '

ESSAY

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ESSAY IV.

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.
Symes.

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

i

f . - '

"trial

C 371 3

^rial at lar granted^ where a jujiice of the
King's Bencbi or a mqfter in Chancery is con-
cerned.

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».
tor.

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

i'

[ 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.

i
■

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-
veyance.

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
trial,
- ^* 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^

I2T.

Trial,

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 0 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

defiring

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.

S

An oi-igm.il
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
delay.

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.

1'

Trial at har granted^ upon conftderation of tie
' conjequences of a conviifion upon an informa-
tion.

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
pleafed

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
vttid.

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
prefent.

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,

or

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
vfRcen

icx6.

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-

^ufet'

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*
696.

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
not.

Sed. qu. vide ante.

Rex verf.

Robcrtum
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
ante-

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

d^ringast

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
parliament.

parnal for defendant s Chappie for. plaintiff.
Vi'depoji.

>:f

"%
.'

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,

I

(a)

V^antev

(0
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-

**digentcxa-

** minationey

" capiantur

*' coram Jufli.

'^ciariisBanci.*'

♦ <'

« • 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.

'!»,

t.

I «

*.«

t ■ •

I I

. . . 1 . »

• « 1 ^ t

Upon

[ 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
prefcription.

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
charter,

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^
tried*

^ 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&

(<!)

t

\

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

bar.

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
them.

Thatj^

[ 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
foAs*
Per Cur. let there be tt*iab at bar.

' •

' \

* 1

E5SAY

♦ ' 1

•f

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 mphpet^ 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;

denture
tatum

[ 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
Qjjer\

^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
quer\

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

i

: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.

ft

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«
quer\

• • • •

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
Amendment
muft begin as
to repleader.

Error#

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-
nerally.

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
cofts.

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
joined.

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

only

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
materially.

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-
fcription,

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

the

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-
fault.

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^"'"^'^'"
ufed.

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

the

How> if judg-
ment were to
be upon the <le-
fiiult.

Demurrer
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-
fault.

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

have

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«

ment

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-
ference.
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 much.to
be given upon default in perfonal a£tions, as

in

[417 1

in real, only that there muft be two defaults
in a real ad;ion, and but one in a perfonal
one.

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«
Appeal.

Artnuitjr.

Sefta atl mo-
leadiaum.

Diverfity
where only in-
quiry of da-
mages, and
where both if-

murrer.

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.

If

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
court.

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-
fendant

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

neither.

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
propeity.

VW. 2 Lev. 92.

1 Vent. 127.
3 Cro. 896.

2 Cro. 519.

Jf pica be in
bar, and con-
cludes in abate-
ment*

Vid. I Vent.

If the plea be
manerofabste-

inenft and con-
cludes in bar.

How the de-
ffindant in re-
plevin may take
advantage of a
variance.

[ 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

die

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-
borough.

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

€C

CC

[ 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. / '

Yet

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

AGAIN.

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
upon.

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 '
lothiffue.

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

prefide

\

[ 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
form.

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
immaterial.

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.

But

[ 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-

proper^

<c

[ 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
mayor.

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.

In

[ 455 1

In the cafe of Love v, U^oti^y Crq. EltTi^
ft45. the covrt ^^Id not give ^ complete judg*
nnent.

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.

cr
u

€€

[ 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

where

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^
pleader.

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
attained^

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
iffue.)

What IS the rule of law then as co fodi
ah immaterial iffue joined, and wrdiS upon
it?

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,

Here^

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
thejrigbt.

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-
pleaden

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

purfuant

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
repleader.

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
0her.

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.^"*'"*'

not

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.

Here

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
afide.

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,

and

[ 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 0 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 -%|*

uon.

[ 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

4

^ >

; 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^
pleader.

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^
icharged.

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
defendant.

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?-
pdir.

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

to

[ 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
late.

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

cc

{ 455 9

i

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

rka.

C 458 3

fcndants have ufed and exercifed the.franchi^$
of freemen, free-burgeiTes, and comnion-coun-
cil-men, without any lawful authority whatfoy
ever.

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

or

ffC

•[ 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

(8i

[ 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

'^^ liie.faad..town 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

cc
<c

cc

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

free-

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-
tions.

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,

Thar

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^ h.ad 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
members.

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-
duced.

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

evidence

[ 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-

forcj

I 4>i ]

fore, in either ' cafe, the Judge did wfong;
and confequently the judgment ihould be r^-
verfed.

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
right.

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

were

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

join

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

9

gone

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,

The

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.

The

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

of

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
ftatute,

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

the

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

daioiancs

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*
tion.

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
other.

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

returning-

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^.

Then

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
ifliie.

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

right.

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
them.

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-
pleader.

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
guiky.

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

only.

'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, Cro.car.4T7,
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,

7*

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*
fra.

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-
roateriaU

And

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-
nuance*

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- '^^' ^ '
pleader.

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
fTue.

^. 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
avail.

F I/N I S.

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