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> ■'. ■ :"■ .All 

f . I 







Court of lUng*0Benc|^» 



ilichaelmas Term, 30 Gfo. If. 1756, to Easter Term, 
1% Geo. III. 1772. 

BtSIR JAMES burrow, KwiaHT, 







FromMiehaelwmM Term^ SO Geo. 11. 1750, la 
rri«/y Term, 31 Geo. //, 1758, tnc/mto^ 




f • • 


- , -v . . 

-' • 


' 4-^ •••' ■ • 

■ * . • 

- * , .: ' "i >f .: ;• 

c T-' y - * 

- • . • ' 


. ••' . •. ^i-- " !•.. 

5iiJ0^',* ■• 


'••. ' 

'' ' * jL ' ,. : f 

-*'>>!♦' -^' rn ■. •> 

. ' • . ., 


'• '( ^ f'Ki V>n ♦ 

t\'M^ J<>;;iO i.^?. 

V»itou «. »M'»»*»'"» **"*^ 

.! r 


'V f/>vii.M U i" 'I* 


IhT may hatUratly be asked—*' Why I publish ut allf «« Whf 
~ I begin from Lord RAYMOND*8<2eaM, rather than from any 
•• prior «ra ?'* ** W^by I have postponed the three former parts o<^ 
" this work, and publish tbt fourth fmrt^JirstT" " Why I venture 
•• to print, without the sanction of a ii4ence to authenticate my 
*♦ reports." 

In ANSWER to thejirit question— 

1 found myself reduced to the necessity of either destroying or 
,publhhing these papers^ which were originally intended for my 
own private use, and not for public iospectioti. For as it wa« 
become generally known .** that I bad taken $(>m€ account, (gooi 
*• or bad,) of all the cases. wh|<^.Ji{[d- occurred in the court of 
** King's Bench for upwards of * fdrty years," I wa6 subject to 
Continual interruption and even persecutioni by incessant ap-> 
plications for searches iuto my notes; for transcripts of them ; 
sometimes for the note*books themselves, (not always returned 
without trouble and solicitation ;) not to mention frequent con^* 
^eisations upoin very dry Sod unentertainiog subjects, which my 
consulters ilrere paid for coudirlering^ but I bad no sort of concern 
in. This inconvenience grew from bad to worse, till it l>ecamc 
quite insupportabje : ^ad from thence arises the present publica- 

In AnawEn td the second question-^ 

My notes taken at the bar^ previously fo my becoming ckrk 
of the crowUf had no particular claim to the least degree of au*** 
THENTicitYt— Therefore I do not presume to expose M<i«i to 
public view; but when I entered upon that office, I thereoy came 
to have all the records and rule-books on the crofrn-sidc of the court 
io'my own power, and could raspect or trans(Tibe them at plea"* 
fibre I besides which, as I never after that time siirrtd 9U% 9i court 

♦ It it Aow upwardiof forty .lift years. 
Vout • 


^^* ffiSJf£M^ 

^M^ h 

niatteif rielatlve to a cause depttiding, or soon afti^JC. jt. jtv^ oir^r,:. 
hfive been punished /is guilty ofacontcn?pti most justly and wise- 
1^4 for many reasons : but a publication of reports at ^diiWictof 
(imtfj merely as matter of^c/f/ice, has not beeu animadverted upon; 
though within the letter of the law. Where they have been 
published surreptkiouslj/f without consent of the reporter, the 
printers have been proceeded against ctvi% upon ^he foundation of 
bis property; but not criminaHy; and aftegr the ^urreptitiouft 
edition has been stopped by an inj unction, the book 4)a8 been 
published, with consent of the reporter, mthotU leave or licence; 
and KO notice taken, or complaint mad^ of it. 

I trust my excuse, (as Mr. Justice foster did) to my inten- 
tion. If 1 find I have done wrong, or that I give offence, I 
will certainly put a ztop to this part and suppress the other three. 

The work must make it's own wajf^.iu the profession, It^ 
merit consists ,in the correctness of the states of the cases. In this 
tespect, it must be of some use ; especially when compared with 
^other notes. In all other respects, I know it is very faulty: and 
I beg pardon of the bar, and much more of the bencu, for innu- 
. merable injuries I must have done them, as to language and argu- 
ment I do not take my notes in short-hand. I do not always 
,take down the restrictions with which the speaker may qualify a 
. propositiorx, to guard against its being understood universally, pr 
in too large a sense. And therefore I caution the reader, always 
to mplif the exceptions which ought to be made, when I report 
tuch propositions as falling from the judges. I watch the sense, 
tather than the cror^/s; and therefore may often use some of my 
, own. If I chance not fully to understand the subject, I can then 
only attend to the zcords ; and must in «iic& cases, be liable to mi&- 
• tak^ If I do not happen to know the authorities shortly allu- 
ded to, I must be at a loss to comprehend (so as to take down 
-with accuracy and precision) the use made of them. Unavoid- 
able inattention and interruptions must occasioii diMms, want 
of .cQBnei^tpiiy'ftiid confusion in many parts: which must be 
-patched up and connected by memory, guess, or invention ; or 
.those passages totally struck out, which are so inexplicably 
^tf^^d^ io^JtJ;te. .original rough note^ that ncy glimpse ^ tbt^ir 
fneariing remains to be seen. - •- 
I am thoroughly aware of all these faults. . I am conscious too. 


that, not liaving^ad the good fortune* of acquiring thit know- 
leilge in the science df the law which is gotten only by alucra«- 
tive experience at the bar, (from which I was very early remo* 
Ted;) and not Bemg blesi with the quicicest natural parts, 1 may 
have misapprehended topics and allusions; I may have made 
blunders in the sense, by endeavouring to rectify those of my pen. 
These are Imperfections whic'b diligence could not cure. I am 
only ^oncelrned,'le6t my errors ' should be imputed, not to myself, 
Ibut to those 'whose. discbur«es 1 may hiippen (through niy in* 
firmitiesj to misrepresent. *' 

Therefore let me, once for all^ caution the reader, especially 
the young student: t pledge my credit and character^ omlt 
^ that 'the case ?Lnd judgment, vrnd the outlines of the ground or 
" reason of Itecfsion are right." As to the rw/— 1 took the notea^ 
for my own amusement and use : where the matter or manner is 
liabte" to objection, it may probably have arisen from mjr 
mistake! • • ' 

I have omitted all cases where the question turned upon FAtis 
and EVIDENCE oftly; or where the o)*der followed almost 6f 
*cOurse, in consequence of maxims' fully settled; or was not 

I have omitted common sevtences in ordinary criminal prosecu- 
tions; and, in short, every thing which I thought could not be bf 
general use. - • . 

Before I conclude, I must again entreat the indiilgetice a^d 
forgiveness of the ftar, and, still more, of the bench, for the 
wrong 1 may have done them. ' 

If the candid and judicious shall give a favourable reception to 
this part, it may encourage me to finiah my design and poblish 
ihe preceding" periods. 

. ^ «9ih Not. 1765. 

'^ '- '" JAMES BURROW*. 

. t 

V'.'lr. *,*;J' • • T ,. ■■ . ... 

* 3i^ James Barrow, as aroears by the preface, had inteoded to hsve pabmli- 
« Atf aMlMlcM^r lUborts, from the Atttb of L^rd fi^ymm^ ta fwr ftfts, 
the last^f which onij he poblisbed. 


Ft^HE body of this book is calculated for such as ma^ be invlined 
-■- fo look into it at their leisutfeHhi ifltirttfaWrVfcfr'^sucli 
as deshreoaiy a cifiim<ii^.aecouDti>fvth^etQnnin&ti9n8. / . ' 

The FOHMKR is therefore designeflliy copious: for, •* • imper- 
^ rBGT reports of faetB attd eiricahliti^ce^, ^pefeiaTff 4n case& 
*' Wjhere^o^ Giraimstance weigh^ someit^ig.i^ ^li9: scale of 
" justice, are the bane of all science that dependeth upon the 
^ precedents and examples oFformer flthes:^ .- ^ - . j 

The iJLtYEpi was meant to p^ asr^QOfMisc M tbet nature.^ B:am* 
flMe abridgoseut would bear. 

It is hoped^ that nothing ver^ tri<lih$ is fifirr^^^fflbeoittf ;nor 
any thing very material omiited in the aihen 


The TikSLit of tti^ Hmcipml MaiUm or JbriJgmetfi i^ the C^ses 
contained in this ifirst volume, was very much adargedt in the 
sec€fj^i/edtti6n of it 

In the fomier c^itiopi it bore the follQwing title—" A short 
** BBPERBWCE to the principal matters contained in it" It is 
now; a full abridgment : and therefore it would have been impro- 
per to <ontifme to call it '• a short referettce.'' The difference 
^ill appear, by comparing the articles of the two editions with 
eacl^ other; as **\Biit/» BoMh-Notes, Bankrupts, Baron and Ptme. 
•• Bm/iaps, Common Ricooerif, Declaration, Vemurrer, Devise,*' and 
other titles, as far as letter L. The subsequent titles were copious 
enotrgh» in the old edition. 

TntaMdemmh of the BtttLnu^mr^ases teimin m tlie iabk, 
under title *• orders of removal:'* but it would have unnecessarily 
enla/ged the bulk of this edition, to have repeated them at leAgth» 
in the body of it, when they (together with mBuy others ^f^ed-^ 
ing ana succeeding them) are now printed by themselves, in a 
sepsurate q^tarto edition now continued up to32d JuAe llflJ6* 

* See Mr. Juitice Fetter^ DiKPunei oo tke CrowB Law, gu S9I« 


30 GEO.IL 1756. 


(When it became complete on the 3d Day of the Term, 
as below), was composed of 

{a) Lorrf Mansfield, 

{b) Sir Thomas Denison, 

(c) Sir Michael Foster, and 

[d] Sir John Eardley Wilmot. 

(a) His Lordsfiip was sworn in upon the 8th of Novem* 
for 1756; and took his seat upon the bench on the 
llth of the same month. 

[b) Mr. Justice Denison was sworn in upon the llth 
of February 1741 ; and took his seat the next day. 

(r) Mr. Justice toaer was sworn in upon the 2-2d of 
Aprils 1745 ; and took his seat upon the 1st of May 
following (being the first day of Easter Term 1745). 

[i] Mr. Justice Wihnot was sworn in upon the llth of 
February 1755 ; and took his seat upon the bench the 
next day. 

Michaelmas Term, 17^6, 30 Geo. H. B. R. [ g ] 

Mmday,Bth November, 1756. 

His Majesty's Attorney General, the Honourable 
fViiliam Murraj/y was this morning called Ser- 
jeant ; and about eight in the evening, was sworn 
in Lord Chief Justice of this Court (in the room 
VoL.1. B 

^^ Michaelmas J^r«iy>K)[.G^o.y. 

, pf the late Lord Chief Ju8tice»:SiT Ikkikg Hydtrr: 
who die<t on 25th May nbdj, before the Lord • 
^hancelWr (the Earl of liaird^iqke], at Ins bouse 
ia Great Ormond-'iireet^ in the pres^pce of the.three 
Judge» and moBt of the Officers of the Court iji 
King's Behch. 
^ Hisljiordahip took the paths, of allegianee and 

supremacy on his knee; and the oath of office,' 
standing. Xnamediately afterwards^ the Great Seal 
was put to a patent, which had before «pfwsed all 
the proper oiHots, crediiig bis Lordshif) Baro-h of 
Mansfield in the county ofNoHwghain, to him 
and the heirs male of his body. . 

Thnnd^, lltb Nmfmber, 1156, LorA Mms/Ukt 
took his place as Lord Chief J dstice. ' 

i^!^i8<K'*^'nP^IS Mv^^ Tin action of deht for a penalty on 5. |?/iV/ 
Btti. N. P.194. -■• c. 4. for exercising the trade of a bueW£u, without , 
s. c. Se«aifo baving served an apprenticeship, («r) In the declaration . 
Tumr 4Bttrr. ^^^^^ Were two counts. ' To the former " ml debet"* was 
• 9450. * ' pleaded : and there was a general verdi<?t for the defend- . 
One not quail- ant ; [fit. ** That the defendant does not owe, *c.*') But 
JjJd^eSttSr ^^ ^^^ ^^ couqt there was a tpecial xerdict : which was to 
into partner- the following effect, riz> that the defendant Cha$e anil one 
»hip with a Cojre, foctre and have been, during all the time charged in 
?on' wiuJo^fn- ^''>» COunt, partners in the trade ; and that the trade Ka$ 
tertehnginthe carried on^ and has been for four years carried on, in their 
tr^de ]ien^^- joiiit names i that Cojrf did serve an apprenticeship* S^c. 
&t5£i.e!4.] '^"^ Chase never did ; and that Coxe is a workingT^reKer^ . 

* - . .. , 

■■•■*-- '-'— 1 I ^ ■- - ■ 

(a) Enercisiog a trade by servants pr apprentices hAi;< 
been held to l»within thestat. 5 fite.c. 4. r^i?//^ 9Vi"- 
v. Jepkson, Hii. liSGeo.% Si It 4 Mod:^ vide al^ l , 
Fent. 193. The judgment in the . above case pf k(iyifi^,,\ 
T. Ch4isef therefor^ appears to be against a positivf^jjfiece-* ^ 
dent^and against law apd justice; for ope of the rje|^qna^f%^ 
making the statute' 5 Etiz. c. 4. was "(ta prey^nt ^d^ael5B:^ ^ 
in yoatb; and therefore the> upt potiUed to^'^ 
tcade, without serving asan appr^ntTce, i^.iri^usticeto.aflL- 
who have served an apprenticcsliip/aAd tukiug^Q^^^^t ,v 

MichflolaMis Term, SO Geo. d/ i 

wa^ieSfl^t^s Wd tdloutdio him^ prisma (o^a division raynaed 

Qfti€fTo/it$j and ihe eniriu at the E^dsMffice were in y^ 

tieir joint names : butihat the defendatU John Chase n ever cha«e 

exitrcited the trade Miyi%fLLr \ (xchichtras wholly managed 

amd tmtiai mt ^ C^xe) ; but on/y shared the pr^, and 

stood the risks of the partnership. Aqd they iiud it to 

be a trade within 5 E/u. c. 4. C ^ 3 

Question, on 5 FMu e. 4. $ 81. *' Whether the defendant 
*' Jv^ Chase is mAi^ vhe act^ opoh tiiis speoial finding ?'* 

Mr. MokoH ,pr(;^^r\ ... 

This attempt to evade the force of the act by the 
schemer of a p^itTi^^Rsuip with^ quatifiedtr2^er^ would 
eniiiety fmsti^ie ftfae itdentimt mid is directly contrary to 
the words of the act. 

The short of this case xi-^Chase mt being himselp 
auaiyUd^ takes a partkbr who is qnalijicd; which qua- 
JiOediwttDef irtb^only Mliffg person ia cariyingon the 
trade ; and Qhafi^f€fcr interfered i% iL 

■■ ■■■■■■■■ I ■ ■ ^ , 

ofll^eientfinient to honest industry which it is che in- 
terest of all society to encourage. 

The construction in ftvoiirof the excfrcise of trades, 
without being ^aiified, strictly as the act directs, ha^ 
b^ort this case of Utn/nard vl Chase, been carried fat 
enough at the least, but never so far as by the determina- 
tion here, wUcb is not only further in favour of encourag- ( - 
ittg persons, bo neglect servii^ apprenticeships, or putting 
tJjeir 90BS to serve them ; and it is expressly against lor- .... 
Bser deierminatiqns, in which the courts have decided, 
1. That the person who ^jrrrri^e^ a trade, is the trader^ be- . • ; 
cause he employs the rest, who work but as his senapts, \ 
aid theloss and gain is to be his. 2. lliat he that hath not 
served a&apprenticesbip,Ts by the statiiterestrained to work 
as a trader either by himself or othfirs: for that the intent of 
this act is to annex the benefit of trade to sMch as Underwent •• ^ 
th^ hardship of kerning it, thereby to encourage learning ' ' 
m ystttb; and few woimI undergo 4he -tfout^ of being 
apptentices if they might empjoy others to work for 
ibMk Sttlh 010. Co. 54. See tbe.s^lne point reported ^ 
ao^oMtngiy in several other cases, a^'in one, notwith- ]' 
•dadfllg tne using the trade was only for djfing'eloth to 
MMWy ihe defendant, w bo wss indicted , in his o,wn trade ^ 
oTaidbtfaier; aiid it wastipon that ground only that Do/- 
ifjr, J. wail of acontfary opinion from theotherju8tices,as ' 
Wfifjetfit^ t SXmv. 241,5!6(I, notwithstanding CiirfAM, in 
kie'ittj^rtof tb« same ease, onlj^ takes notice that Dot^ 
l^'Waa'df aoontotry oiMniofi, Witfk>yit giving the reasons , 
wl^f^'IkeHfraeao;'- "" . ^- - - : • 


Michaelmas Term, SO Geo. 2. 



[ 4 ] 

There was the like point before the court in P. 13 G.2V 
JB. jR. Rex V. Driffield. ' 

But per Denison and Foj^fr, Justices*, that case wa§ 

never determined : it went off upon an objection 

to the jurisdiction. 

Morton :^But the Lord Ch. J. L^^then said,** that' he 

•• had never known a person exempted from the statute, 

" who had not served an apprenticeship." 

And as to his not interfering in the trade, the case of 
Hobbs, qui tarn, kc. ve'i^. Youffg^ reported in ^Salk. 610. 
and in Carthew, 162. and in 3 Mod, a determination 
in point, and not to be distinguished from the present case. 
Therefore he prayed judgment for the plaintiff. 
Mr. Biifibp contra, pro defend^ said, he would first con- 
sider how this matter stood before the statitie^ with regard 
to thefree and unlimit^' right that every man naturally 
and legally had, of exercising whatever trade he pleased ; 
^It/f The construetiojis that have been favourably made 
.upon it, in extension of the qualifications to exercise trade; 
and 3(//y, distinguish this case from the cases cited. 

A ad first. The liberty of trade is a natural and com- 
mon law right, and was long unrestrained. The statute 
of 37 E. 3. c. 5. which fir$t restrained it, was very soon 
repealedhy 38 Ed.3. <?.'2. And Lord Cohein 4 Inst. 31. 
says, ** That sueh acts of parliament never live long.'* He 
cited the case in 2 Bulstr. 186. DotninusRex and AH^ 
plaintiffs, against Tooley defendant, as an authority for him, 
though the court did not indeed formally pronounce any 
fif^l judgment therein: and he also cited ll Co. 53. the 
case of the taylors of Ipswich. Secondly, The before-meh- 
tioned case in^ Bulstr. 186. The King and J lien v. Tooley, 
proves the constructions to have been favourable. Jenk. 
Cent, ease 1 5. p^t. 284. " A private brewer is not within the 
" statute.** Keilu:ey,96.pL 6. proves that the statute ought 
to be taken strictly ; being penal, and in derogation of the 
common law. And judges have dispensed with the rigour 
of it : as in Froth* s Case, 1 Salk. 67. where seven years 
apprenticeship beyond «ea, though without binding, was 
holden sufficient. So Quem v Maddox, 2 Salk. 613. S. P. 
accordingly : and the Court there call this statute of the 
5th o{ Eliz. a hard law. Comberb, 254. Rex v. Gcller,per 
£yre Justice': one brother living with another seven years 
(at thetrade of atallow-chandler) though, not bound, mi»y 
set up the trade. 1 Mod. 26. pi. 69. Dominus Hex v. Tar^ 
vith, proves too that this statute ought not to be extended 
further than necessity requires. • • . 

Now it is not found by the present special verdkit, in 
the affirmative, " That this man has occupied, used^ and 
" exercised the trade :*' but it is found (on' the- contrai'^v 
negatively," That he has not interfered in it ; butit was 

Michaelmas Term, 30 Geo. 2. 

... - 1 

••wholly carried on by Coxe.'' And Hob. 29S. says, the 17^6* 
rele is^ " That .affirmatives in statutes that introduce hji^ynar 
*• new lawS) imply a negative, ifc.'' However, here is an ex- ^ 
pr«5 negative. chaVc 

Thirdly, with regard to the casescited— — 
As to Rtx Vm Dn^eiil^ whatever was found in the affir« 
niative in that case, is. found in the negative here. And 
as to the case of H^b^ v. Youngy . there was no partner 
skilful in the trade ; but only servants : whereas here is a 
skilful partner to conduct it; and the servants are em- 
ployed and set to work by ikispartner^yf/ho is skilful ; and 
are not employed and set on wark Ay the defendant. 
Then headded (4thly) s^une arguments ub inconvenientL 
First, This will a^i^t ail great undertakings ; for it sel« 
dom happens, in such great undertakings, that all the 
partners are duly qualified, in strictness. So, likewise, it L ^ 3 
would atl'ecbjall csfieswUere injimts and truxte^s are enti- 
tled to shares of profitable trades. So where creditors 
have shares in them. 

And upprtHticeships in great bres)eries are not in fact 
usual or customary. 

Mr. Morton^ in i^ply^ premised, that the rule of con- 
struction upon this act must be uniform, with regard to 
€tU the trades within it : and brewtries canuot be distin- 
guished from the f est* 
In aBHwer to Mr. JBi5Ai3p*s argument, he observed, 
1st, It isofnoimpoitance what was the right before 
the statute : the statute was made txpressli/s to restiiaik 
such right in future, for the good of the public. 

2dly, He said, he did not want to exjtend thUlaw : this 
case is fully and 'completely within it» without straining 
it at all. And the constructions that Mr. Buhop calls 
favourable, in the instances which he hascited, are no more ^ 
than just and reasonable, upon the circumstancejs of the 
respective cases in which they were made. 

^dly,astothe NEOATiv£^/Wi/7g iu the present case, 
itamounts to no more than " that this man did not mind his 
^? b}ijsinu9;'* (which the o.ther partner did.) 
• And as to setting to work, it is plain that Cojre is set to 
W>xk by Chase : and, virtually y be sets all the servants to 
yfioxf^ Indeed, Coore is lieit^ both. a journeyman anda^ 
v|^r^n^rtQ Chgse: for CA^^. pays him as a journeyman ;. 
-aiud be^id^s that, gives him a share of the profits. And. 
f]Qy:IrfQr4Cj!h.J« HoU's opinion in the case o{ Hobbs and 
Young is quite applicable to the present case. 
*u .4tWy9 Ueendeiivi^uredtp abew that the construing this 
i^m^ ^, bei within the penally pf the statute, could not be 
l^t^m^edt with any s^rt of inpoavenience. 
^ii'^lSim^^^rei he prayed judg^vent for the plaintiff. 

As this was the first argument, it was expected (as of 

coifrse) that it would be argued again : but Lord Mans* 

fidi gave bis opinion immediatelyi to the following effect : 

6 Michaelmas Ternii, S&Geli.^;' 

17*46'. ' ^^h 'Mans^hL Where wc have ik> d0dbft» f>^ m#bt 
]^ Vi^A"^ liot'to put the parties to the delay and eirpeaee 0f a ftirtm^ 
▼;'• argirnent ; nor teave other persons who naay be itttereeN 
^j^*^f(,> ed in the determination of a point so general, imaeecssiN 
r 6 1 J^Jl/u^der tbeanicletyof sijspense. 
•- -* ;Thfe defendant is' to«hare the profits with Coxe in 

ipdieties^ aiul is HalAe to the debts of tbft partnership t 
bnt it vApasittTeiy and e^tis»i^ feiibdv ^ That durimg all 
^ the time charged be tveVkr AcVeo //i or ktikkc isbb l&e 
** trade'' He was ndt, by'tlieftf^ df his agrei^naeiit, to act 
, , lii the trade : the vthpr {>ar£net-;^9 to do llbe whole, and 
had a particular salary on tbkt bcx^chint. 'It is not foukid 
that either Coxe or any servant under bim was set to work 
6^ Chase ; nor that Chase did aigr act whatever of exer- 
cising the trade : hewasonly concerned ni the j»r^. 
Mmer,3S5. f^ow though this may kt to ^okie fHrpd^eBexefeuitt^n 
trade, m reaped oi third persons; who deal wiHithe part« 
' nership as creditofSy and miUnthe meaning of tha «MiHM 
conceding bankrupts ; yet the present qtiestiow ia, *''Wbe* 
*• ther itbe exercising a trade, con tit a ry to this Act?" 
I think Mr. Bishop has laid his foundations right agatflsl 
extending the penat prohibition beyond the express letHtf 
of the statute. 
^dly^lt is restraint of ndt ural ri^t'i {ay SMi 
3dly, It is contrary to the general right given by the' oojr* 
fAon law ot this kingdom : I wiU add, 

4thly, The policy upon which the act was made, is 
fromexperience become doQbtful.(6)--Bad and nnsrkUfai 
workmen are rarely prosecuted. • 

[a) Eyre, J. in Shot0. 266. said he took the statute to 
be a politic law for the accustoming men to ^abour and 
industry in their youth; and Gregory, J. in the same ca^ 
said; that the design of this statute was to encourage 
them who had beea apprentices. .A_ 

(6) I'he staL 5Eliz, c. 4. was not ena.cted, only to th^ in- 
tent that workmen should be skilful, but also that yotrth 
should not be nourished in idleness, but brought up and 
ieducated in lawful sciences and trades* Per ^iif: Jhi^ 
^ich Taylors* Case^ 1 1 Co. 64. a. ' "^ ^" 

He that hath not served an apprenticeship i^ by the 
statute restrained to work as a trader, either l^fams^ or 
others; . for the intent of this act is to annex the bteefit of 
trade to such as underwent the bardahipof Ifeanring it, 
thereby to encourage labour in youth, and^y^ tffoitU 
undergo tU troOble (tf bcii^giiprprieiittces If they might 
employ ortiera to work fop them. FerCu^rSM^^M. 
T. Young, SaUc^V^ "^ • 

6m« Aft^w?*riaf w.fawtt^«reat wiwib^r of nia^u%cl;vfer9 ^ . yn akji 
wl» tf|5>k i:f fvff^. in fyglfwa finom the JDuke if Aha^i per- ^' ^^ ^ • 
^eptttion^ bad brouflrht trade andcooinierce wiU) U^em Ja) cua8B» 
aiid enlarged our natioD8,.^j^tr;^iiit,tutroduced^yi^^^ ^ , 
Iftw nasi, tlmwbt 1^ -¥fifw^^mhffi^ tJ^a^ io 33 ^>t ia the j 

£l^:b?au€|r;(4 l^^m^fiJ^^ ^4 ^t wf acqustrucd awav ; fo^r 
jt i»w-Md^(f^l} M >h^ j^g^^K) thai: pa3e (wbic]^ 
<f>ll^t£ltol;l09•rM^^ be law njm], that ^^ lit 

^ ooe bath bieiBoaaappreqiUceTor seven y^ara at at^ UM 
"^ trade4qettti<f9^witb^|ft^he sjU<j[.Vtatut^, he may exercise 

<^ pr^Qtioe to iT^V' ^ . •,., . . ^ . « 

. ^^^^i^qt^^uF^tipi^fiiiij ^k»y^ "That this act, as 
** to vf (N^f 9^r<;e9tth/i j)^j^^jf qfi^q^i^h t to be taken strict? 

jn^qpa hai9f ^e)i tayp^ral^ to .the qualifications of the 
Bmmm^l^^^ f9r,e;i^r«ii^9g thQ.traae, even where tbe^ . 
LiirtMyot ofilml^ (ff^rvm ^pr^i^t jcesbips^ They bave, by 
aJibejTdl intGrpre^^tio0v<jr/£;/t</i;4i«€ qii^lifications for exer- 
^WWiig^thertlM^ HVf^ .^R'f^ tl^^ letter of th^.tct ; and 
bprvo coafimdihepemit^ and prolUlutiou to cme% precisely 
within the express letter. 

Let us consider whether the ^/«^9i^pia3e^be wiM^ui the vide sMk. 
/e<^, or ev»^ thp mtiatwg of thi^s ^ct *^®' ■• ^• 

.T^gBmialpoticjf of tbeact was to bavA trader carriefl 
on hy persons who had.Jti^'// Ip ^theou 
* £u)^the />er4Qi»WakiU^ (lefendaift inakcs no 
iK^ diflerence in , the c^. For the pi^so;! \yho,\s skilfuj, 
4U^«e2«r{f thing, and nceitcsHO du-ectigm ixoxx^ this man.: 
be neither did, nor i|is to interfere. j 

The case of i/o&£^and XV^^\S ^^ ^^^ parallel. There 
the defendant, a iiigU inan^ directed the whole trade : 
was the maUer ; ^jxidUrecUd all the servauLs, 4* f^cttsfw 
masier and«rvW,no doubt» it is the mailer who carries 
on the trade^ and not the servani. But in ^/oA/wand 
7Qi/i)g ther^ MVJ^uop(irth^rs/iip^\ nor (what js , the diftin- 

. . L^] The statiite only extends to such trades as we^ jb 
ihfen.ufi^ or occupied within Mngland or Wales: so th^ 
^^iiia^fs^f it^haid then in contemplation^ the bringing 
^11^ trades iiitothe kijagdon^tand cautiously guarded against 
^ -Wit Qii,such tr^i^. S^ Hob. ?ll. WL Haym. 514. 

ti TT^''*^> accord^pg , to the. custom of London^ Show. 
;^,,Ja^ m>. ,]|jt^,% Crq. ^Cor. 3(SU ^17. 37^. that 
Jtb^ ipustoox ooes not extend tq^ manual traces* but odiy to 
i]^*^>^'^'^^ >*'-^- 1^'- .7 Tlfft. 172, [O) 



7 Michaelmas Term, 30 Geoi 9. » 

1756. guishlng character of the present cas^y'ti' mere naked shaf- 
YNARD *"S of the profits, and risquirig a ptoportibn of thie lote; 
^ without his acting or directing at dtt, in' any roanner 

whatsoever, [a) 

In many considerable undertakings, itis absoltjtely ne- 
cessary to take in persons as partnefs, to share the profits 
and risque the loss. And th€ general uSage i^nd practice 
of mankind ought to have t^ij^'trn dfeterminations of this 
sort, affecting trade and comnierce, and the manner of 
carrying thenr on. " ' .' • . . ^ ' 

It is notorious that many parther.^bips are entered into, 
ijpon the foundation of one partner conCHbuting industry 
and skill, and the other money. 

Many great breweries and other trades have b^en car- 
ried on for the benefit of infants and residuary legatees, 
under the direction of the Cdurt of Chati<!eyy. ■ -^ 

Now if th^ plaintiff's construction was to hold, the 
whole direction and decree of tfee Court of ' Chancery was 
contrary to law and to an expi'ess act of parliatnent.- 

So it is likewise practised in other great trades. Tlie 
late Mr. Child directed his business of a banker {b) to be 

(a) Be this as it hiay, itdoes seem ,thattli(e allowing CA(»5€ 
to be exempt, from the penalty of the 5 fi/fV. is contrary 
to one of the reasons for making that statute, as appears, 
by the authorities cited in these notes ; and none of the 
instances in favour of extending the qualification beyond 
the letter of the act urged for the defendant [Barnard. 
Ch. Cas, Iby 77.) were like that, in the present case, but 
were founded on some special reasons ; whereas, accord- 
ing to this case of Rajpiard and Chase^ any person what- 
ever, hath it in his power to enter into partnership with 
any one who hath served an apprenticeship, and will take 
him in as partner, to share the profits which must be 
prejudicial to those entitled to the trade. ' 

[b) Quare, Whether this instance be any thing to 
the purpose ; for the statute is confined to such trades as 
were then used or occupied in Englajid or fVales ;and it 
appears by ^iirfer«o;i on Commerce, 2 vol. 77,1^7, that 
the ris^ of banking in England was about 1645 : it was 
firjjt carried on by the goldsmiths, as appears there, 
and IS so recited m the stat. Car. 2. The trade of a 
goldsmith is therefore within the statute, but, when 
banking ceased to he carried on by them, and becatrie 
a distinct branch of business, as in the instance of Cki/d's 
^ ^use: it 6e«ii>8^tbe» clearly 4iet to have been witbm the 
'prohibition of the statute. 

It seems also that bankers were not within the bank- 
rupt laws till expressly made80l>y stat. 5 GeoXc.30. s^. 

Mieha^eJImas Terait 30 Geo. 2. 8 

carridl op for thj^bc^MefitoChiachiUben and othhr persons. 17^6. 

Many otMr ioatance^ might he mentioned. raynaed 

It would introjduce the utmost confusion in affairs of y. 

trade and commerce, if this construction should prevail. cuas£. 
On tb^ o/A^haod, I s^e no iiicooYemeoce ; it is exactly 

thie same thing a^. to the trade^ in ever iota, " whether 

" this partner h^is or has not served an apprenticeship,*' 
Therefor^ I think the defendant^no^ Ui^ble to ihtpenaUif 

ofsJE/iz- . 
Mr. Just DenuoH said* That this was a new case. 
For tho^gtktb^ gs^pCj{f9B;v./>r^«U,(a) sanlAdcock ▼. 

GW/, (b) wjere in<4^ea befoi|e,tbeCou4;t^yetiiooj»mtoii was f 8 j 

delivered in eitlier of those cases* ... *- 

He concurred ^bat. itjiji(f^/i94 ^a..ej«»:m of the trade 

wiiAiH 5 Eliz^ 
The true intent of th^i act was» That no man should 

exercise >J|;&ose tr^d^^.unless be had skili in them. 

It lias never he^noxip^dodt^y my liberal construction of 

it, in point of e^^V(^og . 4^ /^%* 
.And the present question is, " Whether this . man has 

**.^crciud ^he trade^ within the pieaniog of it, so as to be 

•• liahh to the F£N alty ?'* 

Nowiti»-here-found,** That he never did interfere in 
" the trade Idmself'^ In the case of H(Abi v. Youw^ the 
defendant was the superintender of tl^e work^and diaexer- 
else the trade, without having any skill in it. — And this 
is the point in q^estion,2^nA the principal determination in 
that case of if 0665 V. Yowig; whatever else might drop 
from the judges in giving their opinion. But here the de- 
fendant never meddUa at all, but leayes all the mana^emeni 
to a partner who had skill ; jie himself never acted m car- 
rying on the trade. , 

It may be said, indeed, " that Chw is liable to the </fl- 
^ tulesofhankru^s*' — True: but the construction of those 
acts made for the benefit of the bankrupt's creditors, is 
very different from the construction of this prohibitory and 
penal 2LCt ; which ought to receive a strict construction in 
point of extending the penalty. 

Therefore for these reasons, and those given by the 
Lord Cli. Just he ,held, " That this w^ noi an exercising 
•' the trade trirti» the act.** 

Mr. Justi^Foster concurred; and said, he bad prepared 
hijnself to give his reasons at large : but as the Lord Chief 
Justice had gone through them so fully, and enforced them 
in so clear and sattsfactpry a manner, he would only, iu 
genera/, declare his concurrence. 

0^)S,C. Saber's Rep, 60, 

9 Michaelmas IWm, JO 6«d. 9. 

17^6. Mr.- Just Wilmot was of the same op»ion. 

RATNARD ^7 ^^^ Court unanimously j udgment ^as giTe» for the 
y, d^iidaat. {a) * • '< 

(fl) The words of the act 5 Eliz. c. 4. s. SI. ^r^, "that 
** it shall not be lawful for any person to up, occupy; 
" use, or exercise any craft, mystery, or occupation now 
** «sed or occupied within the realna of Rnglund or fVafes^ 
" except, &c." Now the defendant did set up the trade 
of a brewer, which is one of the trtde* mentioned in the 
statute, Sec.3. and therefore need not to be feterTed to be 
a trade used m Ehglatid at the time of the act * vxyW it 
does appear that the defendant w6s guilty of a breach of 
the law, according to the express letter of It r fbrit is an 
established rule that in disjunctives, it-is sufflcfettt tf 
either part be true. 

The defendant was also an offender within the ihten* 

lion of the act, which was as well to encouragtputtiilg: 

' out youth as apprentices, as that workmen should 1>e 

skilfal (11 Co. 54. a. Salk. 610.); aqd the judgment in the 

case of Hobbs v. Jtcung, that a person not qualified ac* 

cording to the law cannot carry it; on, tboi^h be n^v 

works himself, but employs only {hose yrho w^r^'gl^ 

liiied« w^ founded on the first of tbose reasons, (^afLGlp,) 

w.hich tvolds equally strong at I^ast in the presentx^as^^ 

and the judgment in Hobbs g, L v. Youh^ may ^ be easily > 

eluded by the unqualified person allowing a sq^ pack 

-/ . of thejnofita, (qither instead of a salary, or, as iu t^ie pfe» 

aent case, over and above the salary, to a qualified per909 

-' ibr canying on the same : and the defendant was admit- 

, ted to be a tradesman for other purposes, though not 

tWithip this apt : so that this judgment ^eems to have in. 

troduced a distinction not supported by any .pf incjpk^ 

iind must facilitate the practice of introducing dorofiaiit 

partners; iotifortiori^ such if discovered would not be 

liable to the penalty of the act ; and there is great danger 

to purchasers and mortgagors by dealing with sudu . . 


larged rules THE €ourt declared, that oSXenlargtd tyki to afaetv 
of apreoedinK o^use, wbicll Were -made in the last lenii;flliottlclbe4M^. 
^ghroDi^.<»> »{fim f*tf tolM^ofthe pitteottscm; wOkMimUf 
fore the last Ibi* peMpoiuMg ttem^ ahottbl be paiticitku'lgr liMrtfed fthr;- 
week of the en. flfnd granted : and tfai6 ru)e4xi tpMMU^befeattbryio^H.^ 
rains ooe. ^^^^ Wrms; in the aatfie flMUiner^ ' - 


Monday, 15^ lioioenib^ 1^5^ toA 'ik^nij/Qd took' the 
oaths : He waa tasis tisaalJaWbfh fihhii^ o/one. • 

MichMlmas Term, 9a Geo. 9. JO 

* '* ' E0ADE3 

THIS was a plea of a stated aeeount, pleaded to an ac* y^ 
tioD \x^GSkMimpUe9Htract v to which plea there was a bad b a. kn £9« 
r^licatioDt aod a demarrer to that replication : conae- ^^ g,^^ ^^] 
queotly, tbequestioo wa^oaly upoo4be validity of the s. c. awier ' 

pitfi^ tbe oamt of 

After ak>ng arguiBWtfor the detedant io support of ^'■^^•"» 1 
the plea, the Court^withwmt beariog the other aide, held J^^^Jl^®^ 
the pMiofll tn suhUamA : «m4 so, tliey said, it has been yissT 
deieroiioediiv this Cour4, tost .v^f/flFiy term, in a case ofAnmecoimt 
Jtherijf V. EvuH$. A promissory., note cannot be pleaded s^ted^is no 
jo bar to an action upon simple contract : though a bond f^'almMd of 
inty, because it extinguishcathe debt Onebond cannot a debt of the 
be pl^qded to an action brought upon another bond» ^me degree. 

Judgment for tbe plaintiff.{a) ^^ •J^^*"* 

. • I ' pleededia 

lyir tp «o Action upoa Muipie contract j though a bond roej, but oae boiid^uDot be 
|d^ded 10 apotlier. 


Rex rers. FoNSECA. (A) C 10 1 

[R. J^ort^n, on behalf of the prosecutor, shewed cause wed. j7Ui 
^ agai'Ast discharging the (Jcffendstnt's recognizance. Voj. itbs. 

•' ^hh v^s a recognizancfe entered intobv ^^^defkndaftt^^^^^^ 
and two other persons, upon his removing this indictment indictment*" 
(Wh?ch t«ras for an assault with intent to ravish) lVomfro»«eoiirtof 
»icks*s Halt, where it was originally found. ^^^ ^^^ 

' The defendant had been tried, convicted, and fined in cognizance at* 
this Court; and had paid his fine. common law, 

After which Mr.Morton had moved to discharge the de-'^^y^^'J^J * 
fendant*s recognizance; it being a recognizance ^t common c. li. ».2.;' 
tttw, and all the terms of it having been complied nvith. •^ «n«y be 
R>r he insisted. ^l^t^ 

* 1st, Thai it is not within the statute of 5 & (J fT, & ilf. 
c. 11. § 2. being from the court oiOyer and Terminer, not 
from the Sessions : and this statute relates only to indicts . 
ment found at the Sessions. 

2dly, That the principal is here bound, as well as the se« 
curitiea ; therefore also, it is ^ot within the said act ; 
which requires only two manucaptors, without the prin- 

3dly, The emn is also different : for it is not a recog* 
nbanc^ nx90\. but ia 1001. himself, and each securi^ 
501. Tber^ore> for this, reasou too, it is not within the 
said acU In proof of whteb* he cited 2 SaUc. 564. Regina 
r.Ewer; vrhere z scire faesas was brought on a recogr 

*■■■ ■ P ■ i> i fw ■ i H .i II m . Mill I ! » ii« twmmm^^m^i'-^mf^^tmmmmmmmmt m j 

(a)See3|:)Mi;^48l. $Diim.514. 

(b) Sm %ef*iLaw of Costs* $20. 9 JSd^ 869. 

1 1 Michaelmas Tenia, 30 Geo. 3. 


1756. nizance taken before a judge, tipon gmnting a eeriiorari 
REX ^^ remove an indictment from the sessions of the peace, 
y^ in the som of 401. whereas the sum prescribed by tbe^ 
¥0ms'eca. statute is 201. And Lord Ch. J. Holt bald this recogni- 
zance lo,be good. at common law ^ but not to be a rec<^«" 
nizance according to this sta.tute. ' \ 

[$. estrange, M. 15 G. 2. B. R. Hex V. Sidnty^ was also cited and 
ii6a ] relied upon by hini,asih point tQitkepreaent case. 

In answer to which, Mr. Norton urged, 
[15 vin. 25 A.] Ist, That the court at Hicks^s Hall is both a court of 
Ot^and Terminer, sltiA also a^cosrtof Quarter Sessions^ 
P - - And as to the 

L '^ J 2d and dd Objections. The defendant has availed him« 
self of this recognizance; «Lnd has, upon tl, teiaoved the 
record: and therefore he ought to. be bound'by 4ty as by 
a proper recognizance. ^ < . 

And Sidney* s case was, he said, upon different circum- 

Here, be is nottodepart the Court without leave :' 

Therefore the Court will first oblige him to do us justice^ 

and pay the cos/i, in the same manner as if the recogoi* 

zance had been regularly taken under this act. » • a i- 

[Qu.See i3Via. N, B* The sessions at Hicks's Ball sit in boik capacitiea, 

iw(a.) and 4 ^^^^ ofscssious of thepcace, and also of Oyer and Termor 

Fortci. Rep. ^^^ • ^^^ ^^ey draw up their orders with the one title^ar 

loi.j * with the other^ according to the degree of the offence: 

(viz. common assaults, and offences of a low nature, under 

the title of the Court of Sessions ; and assaults with initent 

to ravish, riots, &c. and offences of a high nature, under 

the title of a Court of Oyer and Terminer : ) And the 

certio7*aris are directed accordingly. And the present 

certiorari was directed to them as a court of Oyer and 


. The Court looked upon the case of Rex y, Sidney to be 
in point {a) 
^^ And accordingly Mr. Norton's rule for discharging the 

defendant's recognizance, was made absolute. Vide post 
p. 1461. Rex v. Lyon. 

(a) There is notliing new in this case, for thfe ease of 
Rex v. Sidney, in Strange^ 1165, is in point : of this case 
"/ Iliave got a MS. note, whereby it appears the indict* 

to' u. . ment there was found at Hicks^s Hall^ but whether it 
<" I : vras an i ndictment at theCourt of Sessions of the justices 

, .1 > of peace, or at the Sessions of General Oyer and Terminer, 
does not appear by that note ; but in Strange 11^5, it is 
nefifttMedas an indictment from- the Sessiertr ofOyeir 
and Terminer. 

Michaelmas Term, 30 Geo, 2. 12 

Macrow vers. HuLt. macrow 


THE <]«fendant*s counsel shewed cause against the hull. 
Court's granting a new trial upon payment of costs ; 
which bad be^-n moved for. by the plaintfft's counsel, upon ^^ ^^- ^'^^*- 
the foot of the verdict's being at^aimt evidence: i'^^^^^^'^twt^^^^ 
V€lA\ctvr^9^{oxi\\^ defendant; and, consequently, the ap- d«nce, if (band 
pitcatioti to set it aside, had been made on the part of the for the defen- 

plaintiff.) ' daot, and the 

Mr. Just foster (who tried the cause) reported it to be ^j^^ JLJ**' 
' an action of tr^pass, txtremely frivolous ; but sufficiently trial refused, 
proved. He said that the defence was a very strong one 
inAteA^Axtmitigdtion of damages ; but yet was NOTa jti^- 
wn/ demalef the trespass : so that, in strictness, the ver- r 12 1 
iMct wasuddoubtedty against evidence. However, he ^ 
thought the action so trifling, frivolous^ and vexatious^ that 
he8tn>uld:hftve thoiught sixpeuce damages to have baen 

Whereupon iheCourt held, that kotwithbtakdixq 
di^MiBg' averdftt aoatmst evidence (which in general is a 
goodreasBii' for settingaside a verdict and granting a new 
trial), yet the acfeioti appearing, in this case, to he frivolous, 
' Jyyfiag^; anil t?ea:cf/fVM«s, and the keal Jainag€s little or none, 
tiRV ought to Tefuse, and accordingly did refuse to set 
aside theverdict: And, 

Lord Mansfkld added, that it would even be a cruelty 
totbeplattititf, to grant his motion ; as he must pay the 
costs of the former trial, if he should pi^vail in it; and 
yet could hope for such very small damages upon a new 

Rule discharged. I^ideposty pa, 54. Farewell y. Chaffey, 
& P. accord^. 

Harrisoit, Kmt. Chamberlain of Londov^ ^^'^S^fim 


MR. Serjeant Poo& and Mr. Eliab f/ane;/ shewed cause lige aperMn 
^against the issuing of a procedendo in this cause. ' whoi*a8 a right 
ItcMie^ into this court, upon the return of a A«A^a«c?i^totaklup 
eofffa cum causa, ditected to the iJimyor, aldermen, and his freedom in 
^hectffa,<pf« Jif^(^?i, commanding them to brmg up the«>ni«P*^*>«"J«f 
boOy.of the defenda\it, together with the cause, &c. . J^°ra^t of *" 
^ l^b^T^uxtk was to. the following effect,viz. That there trade, and bad. 
i&lim9Vm\i^I^ttdofh*' that if any ancient custon% ^rd isee3Bwr. 
'* mui def«:ii^H\»n!f tbiag ocfssl^ arising, .wants amend- 13122. 
•".m^ak, iJbtet'in^orraiMi tlderuiaui with the consent ^^^^Ib^Lp 
** the commonalty, have always, &c. appointed Jit remetfyt ^/udac^I" ' 
" for the common good of the citizens : so as such their thorp 5o j 

13 Michaeim&s Term, 80 GcA. 9. 

1756. *' ordinances be consonant to faith and reason, and in no 

RASiti^oNy ** ^^^ pr^udicialto the king or his people, nor repugnant 

Chamber* * " ^^ *^ ^^* ^^ statutes of Ettgland,'* And that the 

lainqf cttfttoms oi London are oonfirmed by net 'of fiaHiftment, 

London^ T H. 2. - *• 

y, Th^ tben certinr* that ttMve is within %\ke city of Xd»» 

GOSMAK. ''oAf a company of AailcAsrt ; andthatAt a^mni<m€DUtt« 
cil boMen on the Wtii of' /iine, 20 Gi 9. the lord mciyor, 
aldermen, and coaamon cound^ made anoMrnanre, " That 
** whereas many persons who exereise'tke trade tyfbutchen^ 
** have obtained j[refilomfo/oTa£K4:oi?9wm>j, by redemp- 
*' tionor otherwise; by reason whereof the tompany^ 
" hutchen is mach dminished^^Mdfatien into deca^; for 
** remedy tubrbof, it is ordained that eveiy person, tt0t 
** being already free of the oily, ocenpymg, usilig, <Nr 
" exercising, or who shall occupy, use,:OnMcemjeifA^«^» 
•* trade^ormyUenfofa butcher ^withmt^t^ said city;6r its 
r 13 V 4^c^i^» ^^^ ^^^ up^^ himself the freedom of Hit; 
»- -* ** COMPANY ofbutcheri; and that no person nowf^siog^^ 

'* or who shall hereafier use or txercite ike traik^ikfn 
" butcher within the said city or liberties^ shall be .adRMt- 
*' (bed into tbe freedom of the said city, by the ebambetUito 
** thereof^of or in ttny orufeR eompanythan the said torn* 
*^ pany of butcker%: Provided* always, that •e^r^ pers^ 
*' not being already free of the said city, who are or shaH ^ 
*' heentiHedtafrtedomofanyoru^tLC6mpamfhyp6ii^^ 
*' or8ervice»jAa//&e ADMiTTcniWo Triiscom/MTTrydfititcA- 
rHard. 55.] <« erf» upon payment of a lilse fine and fees as are usuaHy 
** paid upon wmisaion of a child or apprentice.'* 

And that k was then and there further enacted, *^ Thai: 
*• if any person or persons (except such as are already 
'* free, 4r€») shall uh the trade of u butcher jttol being free 
•* of THIS coji^ity ofbutcherSy he, S^c. shall pay ^K" And 
directions are given how the penalty ofol. shall be levied,* 
and also concerning costs. 

They then farther certify, " That tbe defendant was 
** taken, on an action bmnght against brim in the m^ofs 
" court of Loudoiif for tbe penalty of this bye-law.'* 
' Upon this return, Mr. tVilliams, on behalf of the plain- 
. tiff in tbe mayor's court, had moved for ajMHred^cfo. 
^r. Scrjeaat Pooie and Mr.-Mub Barte^, of oomi^ 
for tbe de£aidant, objected to this bye-law, as beif^ a bad 
one : and tfaey principally relied on the fotlawing M^etkm 
UU$ cii^'^Thatit wa»a bye^lawin uESTRAiNt oftrvde'; 
*' and thei«fore could not be good ; iriTiiotJT settmg 
** fnrCba airsciAi* onivAVLtuj^t^Aiteuetafn to^ppott 
^ ilr'wkkbiswTdsRebytbepfeseiitretiini; And they 
aegoed ttaltlris bye^biw is by no iiiems«appovteA by tibe 
anitliority wbfdiissct fortbin thef%«urn«sits{6uttdatiMt 
efa; *^ A^cntom teapply fttrMMdj^fotflMr^^ 
*' al tteG^tbeai, where my enoieat costoMiy had uA 4e- 

Miclulmas Term, SO Geo. 2. 14 

" fecUir% it> tny thing it«/y ansfi^, wants amendment :*• I756, 
far fieiiAer is here any $^ch ancient custom ^^f^^f^^^nAnni^K 
Specified, which WfMM aiiiendraent, nor any hardship or chamber- ' 
defect, stated 5 norifr'theffeany pretence to say that this is ^^i^^ 
** a matter iif w/y ariiing /" nor does the return so much as London 
rceH allege^ ^be? Iblft tlie»e was any such ancient custom ^ ' 
wanting amendinent, Of. any r hardship or defect, or that ^^^^^^^ 
the sut^t ot this byenlaw was a matter newly arisen* 

The cases add^iced l>y each' of them in proof of their 
positions^ weiie as ftdkHiv i > ' > 

Tbatitisabadbye-law,aiid?oid,asbeinginRE8TRAiNT [ 14 ] 
oftrade^ appears hy Waa^nsfis case, 9 Co. 125. a. ft. 

r/ie;^or^ it is bad» without a custom to support it. Ibid. 
in point. 

STet NO custctn is 4iere teturmd^ for support of any te^ 
slraioi ^tred^M all : and therefore the Court cammt take 
ffqtice that there is any sach custom. % Strange 1 LS7* <Sir 
Jaiivi Ji^rtopv. lf(Mtvi4r«^'« The Court oouid not^intf- 
ciW/y take notice ''that every shop in Ixmdon is a market " 
" oiwt i* thatoustom not^ beinfr/o/incl or stated. I Strange^ ' 
t87«.4f^/t..//tf»H there eited) is in point, to the same 
puk^Drl;^ 5 M^* 108. Rcfbinson t. Orovcmire is in poiat 
wi^^tbetpFesent case. Cartkess 75. Wiats&n v. GMIr. 
T|b^«ourt oannot, ex^ offici^^ take notice of the -cuiioms of 
Lfssfioji, S^IH'^ 16^/ Madges v. Steward^ the fouith Tesolit - 
tioUi iSiTery strong, to the same purport. And Co. Lit. ' 
1 73.^ 6,'proves. the same position* 

N9W here, though the genertii eiistbm " to make hye- . - 
** kw^" is set out; yet, the partiduiar custom ''tomakj^ 
*' such a bye^aw as l/iuis, in restraint of tiadfe," is h^t 
set K)kut. ' • '. ••: \ '.- 

As to the oase of Wannelv. Camerdr Civit^ lAwlou; ih " 
1 Strange, &Jo. There the particular custom sKis^et forth, ' 
as appears upon searching the reconiof thatcase'r (tbonu^ ^ 
it has been called as cited from J. S^- a case in point.). In '■* 
Sir r.iiayjn.289*P^^erv. Tm?, the foye^law made f of tbte 
better and more regular ordering of curs oxid carts, .v^al 
iiolden to be gOQiii but in 1 Uo.Jir. B64. pL A^t,^iHer 
Payne yMawghtim) a bye-law for restraining tbeiUbeiitjr: oF 
thetnideofa carman* was holden frod. . . n :?.: ^' : 

Mr« ffilliams and Mr. Norton^ on the other aide^v^iTgacd 
fbnliie pwed^ndOf aad consequently for the valldtty of ibe - ' 
by«v<law.' .'•'•.. . ' b.';r .t?--- 

ThiM^^^aidf is not a bye^w m assTa aint ^ftmdt^ ^ 
it is onhr, ii^rfgi^^i^A of it Ajod :tiie Coiir^ wii^L^^ute siDi^ '* 
Ti^^^^.t^^ jc^tojQ()t oCX'O^Kic^^ ^' That no maneait eiaSfi " 
«« (v^itr^deij^.ii^aii, wUhoat bei«ig//«e of ih© city; ** 
*• aiAc^«^Mi^^^<^)pj^0tf Of ii»;: .;«' >Sft«»^,:ii9w'4-«:fc '. ^ ... -^ 

W^e.hi^6 r^rn^ ftieu$totBi>Tliat'ii«ih*f« fo^MPW 
•« 1^ w di » iW^ M »af»y iW)toNUiiMotD>' awl «>^i9poilAlit' 

15 Michaelmas Term, 30 Geo. S. 

1756. '' remedy for the commoo good oi the citizens, where there 
HAKRisoN " »^s hardship or defect in it." 

Chamber- * ^ Strange 675, is this very case, in the joiners company : 

Iain of ^^^ there isito return there mentioned or hinted at, of any 

London particular custom : though it is indeed returned, " That 

y * ** by the custom, no person can be free of the city, with- 

GODMAN. " ^"* being free of ofieof the companies.*' 

In 5 Co. 62. Chamberlain de Londren Case, the bye- 
law about bringing broad-cloths to Blackwell^hall to be 
[] 15 3 searched, &c. was held a good bye-law : and yet there is 
no particular custom set forth on which to found the 

In 2 RoL Jbr. tit. Bye-lam, pa. 365. pi. 9. " That none 
" shall make or use a hot-press in London.'* — There is no 
particular custom, on which the bye-law is founded : yet 
it was holden a good bye-law^ 

8 Co. 126. a. Wagoner s C3se, and also Sir T. Rc^m. 
288. Player v. rerc,prove that customs in London may par- 
tially restrain trade. 

They admitted that a particular custom impowering 
them to make this particular bye-law, is no^ minutely set 
out : but at the same time they insisted, that they had set 
forth enough of a particular custom,to warrant this bye-law. 
For it is set forth, " That if any ancient custom, hard or 
** defective, &c. wants amendment, the mayor and alder- 
.*' men, with the consent of the commonalty-, have by cus- 
" torn h power of appointing fit remedy for the common 
** good of the citizens: so as, &C." Which is ^general 
power of making bye-laws by custom : and this power, 
confirmed too by act of parliament. 

Now the present bye-law falls within the provision, of 
t\\\% general power. 

The substance of this bye-law is, " That nobutcher by 
" trade, though free of the city, sjiall exercise this trade 
•• in the city, without being free of the butchers compa- 
** ny." And it was both a hardship ?a\A defect ^ that they 
might do so previously to thxshyeAdLW. 

Here is a custom shewn, " to restrain all grown or 
" growing evils, within the city .-"which is a custom to re-- 
strain trade. And there are hundreds of bye^^laws inLondan, 
founded upon this generalpomer. 

And WanneWs Case is, in substance, in point: it is a 
general return of an authority to make bye-laws under 
their general power ; and the same sort of bye-law with 
the present one is established as agood one. (a) 

(a) Whether there be any particular custom or aot 
Bhall be tried by twelve men, and not by the judges^ 
except the same custom be of record in the same qourt 

. Michaelmas Term, 30 Geo. 2. 16 

Lord Man^ld: I suppose it is a $l}p in the return. 17^^* 

I do not take the objection to be, "tuat it is necessary bahri- 
'* that it must be a particularcustom to m^kt^L particular sox, Cham- 
^ bye-law ;•* but, •• that there is no general power here berlain of 
** shewn, under the custom, to lay such a restraint upou London t. 
*• trade." ooodmak. 

This bye-latw t$ a restraint of trade ; and not a m e n e re- 
gukUioH of it : the preamble rfoa not pretend it to be made to 
regulate the trade ; but merely for the benefit of the butchers 
company. It is founded upon the general power of making 
bye-laws in the city of London, 

}iow under SLGznzRkh potter to make bife Jaws, it iscer- [C(mynt,969.} 
tain, that a bye-law cannot be made •'^o restrain traded 

And by the general custom of London, every freeman 
may exercise any trade, without being free of a particular 
catMoany: which this bye-Jaw requires him to be. 

The casein 1 Strange 67 5, fVannelCs case, is not a full 
state of the pfeadings.(cf) But it appearsthat the return sta< 

(•) The bye-law in Strange 673, is, that no person 
shall use the trade of a Joiner in London, who is not free 
of tiw company, under the penalty of lOl. After two ar- 
guments and time taken for consideration, to a subse* 
Quent term, the opinion of the court, as delivered by 
Maymond, Cb* J^ wag, that '' tliis ia a good bye-law, being 
" made in regulation of trade, and to prevent fraud aud 
*^ unakilfnlness of which none but a company that ex- 
** ercise the same trade can be judges: this does not 
•• takeaway bis right to his freedom, but only his elec* 
•* tion of what company he shall be free, it is only to 
** diiect him to go to the proper company." The rea- 
sons of that judgment held equally strong in support of 
the validity of the bye-law, in this as they did of the bye- 
law in that case; there either is no difference, either in 
law or in reason, between the two bye-laws: or if there be 
any it consists in this, that the bye-law in this 
case, is less liable to exception than that; for by that, 
tU die joiners in London, whether already free of another 
company or not, were obliged to take up their freedom 
in the joiners company, und^r the penalty of lOL: whereas 
itkihis case, only such as were not free of any company, were 
obliged to take their freedom in the butcher's company, un- 
der the penalty of 5L It is true that in that case there was 
a return of the custom of London, that no person could 
fie free of the city tilT he was a member of one of the 
companiea: but tire cwtrt could not judicially take notice of 
that custom, as it was not returned in the present case ; 
^ tbat was no ground, as it should seem, for their hold- 
ing the bye-law to be bad, for they ought rather to have 

Vol. I. C 

17 Michaelnaas Term, 3Q jGJeQ.. 2. 

175^. " tecltbatno pcFson could be a fr^eiaaii of the city» till 

u.\K n !• '.* ,b? was a member of one of the frateraities ;" th§n«tafced 

SON, Chain- a powef to make bye-iaws; (but how that power wa» 

berlain of set out,does not appear :) then the bye-law itself is there set 

London, v, out; which professes to be aregtifoiio/i of trade, and recites 

GOQDMAN, '* that several persons not free of the joiners company had 

*' exercised the trade ofajoiaeriq an wwii7/i</ ^md/raudu- 

" lent manner, which could not be redressed whilst such 

" pei-sons were xiot under the orders and regulations of 

" the company;" and therefore it enacts that no person 

shall use that trade, who is not free of the compapy. 

The bye-law for ordering and disposing of carts and cars, 
in Sir '/7io. Raym. 288, M9. is a mere regulation of trade. 

And as .this power to make bye-laws to restrain trade, is 
Ko r set outf in the present case, we cannot presume it, from 
any printed book, or any other way whatsoever. . We 
cannot tixke judicial notice of any particular custom svip- 
porting such a bye-law as this; when no such particular 
custom is set out; and it certainly is not good under the 
ger/era/ power which ts set out (a) 

Mr. Just. Denison concurred, that the Court could not 

t^ke judicial notice o{ SLwy such particular custom t<)'\Ta#- 

rant this bye-law, without its being set out. 

£ 17 ] And the custom here set out, of a power "to mend 

** any hard or defective customs^" is not sufficient: for 

adjourned the cause, and have given leave to amend the 
return on payment of costs. 

It is also to be noted here that in Strange, 4G2, this 
bye-law was adjudged good, viz. " that the corn 
*' porters should be a company^ called free porters, who 
** should work at a particular settled rate; and that none 
** but the free porters should intermeddle in importing 
•• or exporting any corn, roots, &c. within the bounds 
" nientioned in the custom, on penalty of 20s.for every of- 
" fence, except in time of -danger, or urgent necessity, 
" or in the case of bonaperitura ;* and the chief doubt 
there was with respect to the extent of the custom, or 
whether it was contined within proper bounds, being not 
limited to the walls of the city. 

{a) If there be a custom in London, the court ought 
to take notice of it, if a judgment given there, be brought 
before them ; otherwise the court might reverse the judg- 
ment without cause, I RoL Rep* 106. And quiere, if it i» 
not so in the case of a hub. eorp. cum causa to the city 
courts? though it seems Qot,because the court below hath an 
opportunity of informing thesuperiorcourt of the custom 
by stating it in the return, and therefore they ought to 
return the custom. 

Michaeldms Term, 30 Geo. 2. 17 

faera U no hftrd'6f defective custom pBrtfcuUirly set out. T756. 
A^'evvy man, free of the city, had a right to set up HAaRi* 
•ny trade: which original right is here taken away by goK, Cbaiu* 
Cbm bye-law. berlain of 

Indeed they may make bye^^laws to regulate trade •, London, ▼• 
but not to restrain it, unless they have a particular custom good m aK, 
to support such bye-laws. As to the case of the ordering 
and disposing of carts, cars, carters and carmen, in Ra^m. 
M8. Player v. Vere, fAof wasa bye^aw for regulation'of 
trade, and preventioti of nuisances in the streets and 
lanes: but Ihh is a bye-law to rbstraih trade, not 
warranted by any particular custom. Therefore he held 
it bad. 

Mr. Just fbj^r concurred ; and spoke to the same effect. 

Mr. Jus>t. Wilmot expressed himself to the same purport. 

By the Court unanimously, the bye-law was holden a 
bad one: and the rule for shewing cause" why apro- 
^ tedendo should not go/' was discharged.(a) ^ 

Rex veriMsKiLLiNGHALL. 

1^'R. Serjeant Poole and Mr. Clayton shewed >cause rnqanitioa 
-l-^-*- against a rule which had been moved for by Mr.^<^°<* )»y the 
Norton, ** to gnash a presentment or inquisition found S^^i^JJi^,, 
" by the grand jur^ of the county of Fori, at the general fioni of oyer 
" sessions of oyer imd <rrmi«cr for that county:" which •"<> f«"n''ner 
Mr. Norton objected to, aa being roram nonjudice\ for, ^"'*°^* 
be said, the grand jury had no authority to make such a [& c. Um/rt. 
presentment, or find such an inquisition vnder their ^*' f^- ^^U 
GfijfERAL charge from the judge of assize; whatever^*** *^^"^ 
might be the case if the judge had partieuinrit/ directed) 
and presided over an inquisition of this kind, upon the/ 
neglect of the coroner. 

The fact found was, ^* That the mare of John KiUhg* 
'^ haU, Esq. was the cause of the death of one tVilUam 
" SteUitfg, and was of the value of lOl." 

It happened that the coroner liad not taken any iti- 
quisition at all^ upon his death: so that the lord of the 
manor, finding bimseif likely to lose his deodand, had 
made this application at the assizes; where the grand 
jury found this inquisition or presentment ; which was 
afterwards removed hither by certiorari. 

Mr. S^Qeant Pook and Mr. Clayton endeavoured to 
support it. 

(«) It is somewhat remarkable that the very same 
bje-law in Midem verbis as that here holden to be a bad 
ooe, was aft^ wards, in 3 Burr. 1322^ holden to be a good 

c a 

Id ]VIichaelma3 .Term» ^ Cieo. S. 

17^6. This inquisition, they said ,1 before a grand juigr is 

REXV. KiL- '''^'^^''*<'^'^» (which a coroner^s iuquisUioh is fiol;> and 

I.INGUALI.. therefore does no body any injury. And as the coroner 

had taken fione at all, upon the present occasion, this 

method wdA ttecessary to be taken, in order to come at the 


1 IJ. H. P. C. 419. c. 3-2. Of Dcodands, shews naost 
expressly that this may be done» before commissioners of 
gaol delivery, otfer and terminer^ or of the peace, if 
ontitted by the coroner. So does 1 H. P. C. 414. in treat- 
ing of Inquisitions; where Laughton's case, if. 37 EHz* is 
cited ; and it is said to be " inquisible before the justices 
" of oyer and terminer, yea, or of the peace ; and that il 
** had been adjudged accordingly, itf. 165d, in Gueve^i 
•< case/' 

3 Inst. 55. c. 8. note h. in margin, makes a difierence be- 
tween inquisitions taken before the coroners, and inqui- 
sitions taken before justices of the peace^ as to liaviog a 

2 Ro. Mr. 06. pi. 3. proves that an indictment may be 
taken before justices of peace, and of oyer and terminer, 

^ Lev. 140. Rer v. Parker, is in point, ** that the coro- 
*^ ner*s omission may be supplied by commission of in- 
** quiry;fa) or the justices of peace, or of assize, may 
** inquire of it, without commission." 

% n.H.P. C. 58, cap. & coQcernim; the coroner and his 

court, and his authority in pleas of the crown, proves 

that grand juries have this jurisdiction in case theooro- 

. ner neglects it. 

\% Ieo.i5^.flc.] ^ H. H. P. C. 59, ad idem. It is there said ** Ib^t jus* 

' " tices of peace, or oyer and terminer, or of the King'v 

** Bench, may inquire, if the coroner do not: but that 

*' THAT presentment is traversable; which the present- 

" nient of the coroner of a f eh de $e is not** 

Upon these authorities, they said, my Lord Fedeon^ 
bridge (the lord of the manor) was advised to take this 
method: but the judge of assize (Mr. Just Biteh) de- 
clined to meddle with it, or to have the inquisition taken 
Il before him partieularly, or to give any ^r/tniiar dipection 
'I about it. 

They added these cases abo^ 1 FentK 352. in the note 
at bottom. PopL^tOQ. Anon.: and S. C. (apparently,) 
in lioydn. " It may be done before justices t^ peaeek* 
1 Ventr. 181, 182. Stanlack*s case. •' If a coroner omits 
to enquire, this court may do it, as supreme coroner of 



(ii)So also if the inquisition taken by the coroner be re- 
moved by certiorari, and quashed, d Lev. 15^ 


Michaelmas Term, 30 Geo. 9. 19 

*' Efigland; or may make commissioners to enquire: or 1756. 
" commissioDers of oyer and terminer imy inquire, ButnEKv.KtL- 
" then it is not super viBH/n corpora ; aod therefore may linghall. 
" be traversed;* 

Mr. 'Norton contra. 

This is a presentment ex parte; and a presentment of [TbenMtoo- 
entitling, in order to found an odious and wipe/s^Yioi/s |o"«Wercaior. 
claim ; and all transacted in' secret. * {Jjjj f^^ *■ 

The cases cited only prove, " That, in default of the in difoait of 
•* coroner*8 having inquired, thejusticesof oymrn^ f^-Wfa kwpiug 
" iwiwer, and of the peace, may make the enquiry; andj**^*'*''*'-^ 
"* that it is traversable.'* 

They say •* That we could not have traversed the 
" corone/s inquisition;" (which, however, I de/ty :) " but 
*' this we may traverse: and therefore cannot be injured 
" by it.** 

But will it be said ** thatthepu^^iVig a man to a traverse/ 
•* is no injury ^'* ' 

4 last. 190\ 197, 198. enters largely into the subject of p Ur. sso.J 
traverses ; and condemns secret inquests and ofKces. 

JCow this is an office of entitling; and therefore ought 
to be pubfictj/ and opady found. 

Lord Mansfield. By express statutes. [i4 Ed. 3.«t i. 

And I remember a case of the late Duke of Bucking-^ ^ i6*a^'^' 
iam^s heirs; where, upon application to the Court of Hea.'»?c. s. 
Exchequer, notice was directed to be given: though in «• 3. 
genera), notice is not necessary. 9 V«ot. 344. 

Therefore I think this inquisition. cannot be supported. ^ J"'** ^^^, 

And inquisitions before tlie coroner are traversable/ Le'-«^«J 
\y. 2 //. H. P. C. 41(3. wliere that author declares his/ 
own opinion accordingly.] 

Mr. Just Denison : I think it cannot be supported. 

Mr. Just Foster: I am of the same opinion. 

Rule to quash the presentment made ab8oIiite.(a) 

Friday, 19th November^ 1756. 

[ 20 J 
MEMORANDUM. On this day, tlie great seal was ^^^ 
put into commission; being delivered by his Majesty pu*iS!M:9"2^ 
{immediately upon the Earl of Hardwicke*s resignation missioo, 
of it,) toSiu JoHif WiLLE8,Lord Ch. J. of the Common 
Pleas, Sir Sidney Stafford Smythe, third Baron of 
the Exchequer, and Sir John Eakdley Wilmot, 

(a) If deodands were to be abolished, the parliament 
ihoujd do it; but it should not b^ left to the coroner to 
find it or not as he chuses, without controuL 


Michaelmas Term, SO Gei). 2. 

1756. youngest judge of this Court: which prevented Mr, Jus- 
nEX V. ticeWii/MOT from sitting much in ////^ Court, thejre- 
KttuNG- malnder of the present term and the whole of the two 
HALL. subseauent terms. 

50ih Novem- 
ber, \t56. 

Oppenheim, qui TAai,rrr5. Harrison, 

THE proceedings were set aside for irreg 
want of an attorney % name, beinp duly 

irregularity in the 
set to them : 

m^rs?w?ihoat' it appearing that -although they had the name of a regu- 
hu authority, lar attorney, in/act set to them; yet it was so set, with- 

I 6tt aside 

OUT any authority from him^ 

And the Court also granted an attachment against one 
Habin, who acted as attorney ibf the plaintiff, and had 
so put Mr. Grangers name (an attorney of this court) 
mthout authority or leave from Mr. Grang€r.{a) 

Tiinday, ^d 



Th«: property of 

a hankiupt'n 

Itoods 10, after 

es»ignin€rt, ia 

the a«8iui>ee, ^ 



[1 Rlack. 65. 
S. C. 

Bull. 41 S. C. 
TJMM, 19C. 
3 WUs 314. 
Saik. lOS.J 

Cooper, and another. Assignees of William 
Johns, a bankrupt, rers.CHixTY and Blackiston, 
EsQUiaEp, SuERirrs or London. HiL ^7 GeaA. 
Rut. S69. 

•TpHIS cause was twice argued: it came first before the 
-"- court, on Monday 9th Jutiellbb; and again, upon 
Tuesday the Kith instant It was an action of trover 
brought by the a>>signees of Wiiliam Johns, a bankrupt, 
AGA\sy£ the sHERiFrs of London, who liad taken wid 
Wd the goods of J ohm in execution under a^mpcw 
which had issued against JoA/«, at the suit of one Jyilliam 

i )n the trial, a special case was settled : 

AVhich case states. That Johns was regularly declared a 
bankrupt, on the 8th of Decemh, 1763. And as to the 
rest, the following times and facts were stated; viz. That 
on the 3th of December 1753, one Godfrey obtained judg- 
ment in the Common Pleas, against the said Johns^ and on 

(a) Vide 3 Jac. l.c.l. s. 2. 2 Geo^^. c. 23. 5. 10, 17, 27. 
and that an attorney may not, but in special cases, gjve 
leave to another attorney to practice in bis name, see 
1 East, 367. 4 East, 533. 5 East, 412. 

(i) See Strange. 981. 3 Mod. 236. 1 Durn. US, 476, 
478. See also Powell v. Morrice. 4 U 261, a. 29^ that 
this action does not lie against the sheriff without notice. 
« Durn. 754. and Qu. 1 Corny. 533, (X).) 20» apd 1 Lev. 
1 73. 1 Sider. 27 1 . there cited. 

Michfielmas Tei m, 30 Geo^ S. 9 1 

the same day {5th December 1753) executitm ppon the 1766. 
said judgment Was talien out against him by Godfrey^ cooper r. 
iind the good$ seized by the sherifw, under it *y tix^t Johm chitty 
comTDitted the act of bankruptcy 4th December 17^3, ^nd and 
on the Sth of the same December^ a commission of bank- blackis- 
rupicy was taken out against him(a); and on U^e very iame ton. 
day, the commissioners of bankruptcy executed an as- 
signment; and afterwards, viz. on the 28tb Deeen^Kr, a 
4iY/o/*«flfc of the goods was made by the sheritis. The 
plaintiffs are the assignees under the commission : the de- 
fendants are the sherilfs of London^ who seized the goods 
under the execution. 

The point was, Whether the assignees under the com- 
mission of bankruptcy can liia'mtain an action of trover 
against the sheriffs (who executed this process under 
a ret(ular judgment and execution ;) for ifizuig the goo^l* 
under ^ Jteu facias issued and executed after the act of 
bankruptcy was committed ; and selling them after the 
assignment was executed }[b) 

The counsel who argued for the plaintiffs, tnade two ^^^jnent fnr 

'4|11C8tfOns, viz. the pbiotifft. 

\&y Wuos£ property the goods were, when seized by the 
sheriffs, by virtue of t\\\%Jierifncimi 

2dly, Whose property they were, xchen sold by the 
- -sberiHiB! ? 

1st Question. Jfter the act of bankruptcy, they ceased 
to be the property of the bankrupt himself (they said ;) 
wheresoever else the property might be between the act 
of bankruptcy and the assignment. 

This relaHon to the act of bankruptcy is like that of 
ar/;iR2Vi/<^tf'fo;i9 to the time of the death : and they cited 
Kiggil V. Player, 1 Salk. 111. (c) as S. P. with the present 
case exactly. 

The utmost that the bankrupt himself could be pre- 
tended to have was a special property, defeasible by the 
assignment. It is like the case of a distress for rent, where 
the seizor may sell the distress atler five days; but, if 

{n) Quere whether this was notlca to the sheriff or 

(H) This action should have been brought against the 
plaintiffs without the officer, as in the case in Stran^c^ 

' (cj There is an adjournatur at the end of it. But Holt 
there said " the assignee was in by relation from the time 
** <rf' bankruptcy; so as to avoid all mesne acts, but not 
* so as to be actually invested with the property." 

92 Michaehpaa Term; SO X3eo. $^ 

1756. the niox^y be paid witfaJD the five .dajB« he cannoii^<&U : so 
coopBR V. thatjn the interim^ the right is defea^le. 
CHiTTY Here the plaintiifs have declared as assignees umler 
and the commiBs'ion of bankruptcy : tMrefpre their interest 
BLACKid- *'^«'^ ^sfrom the time of tie act of baukruftc^. . 

• TOK. If the bankrupt Am^e^ bad delivei;ed the goods to a 

r nh 1 stranger, it had been the same thing.; the strauger wquW 
L J be answerable to the assignees* 

Sheriffs execute process at ticir peril: they are answer- 
able cirz/iVer, for what they do upon it. 11 ^. 4.80« 14 
i/. 4. 25. 

A man may, without his own fault, be possessed of a 
horse which has been stoleo: but nevertheless^ be is an- 
swerable, civilUet\ to the true owner fiar it 

The sheriff had no authority to take any goods, in exc- 
cu tion, but the goods of the dyendant : if be does take any 
other goods, he is a trespasser. 

In writs of execution, it is at tbeijr peril if tb^y take 
tfwoMer man's goods. In Carthcw, 381. Hallett v, fijfri, 
it is so laid do nvu by Ch. J. Holt expressly. 

Now these were goods of the assignees ;, aod tbi9y.ii)sy 
maintain an action ei/Aer against tbep/atn/i^intiiie cause, 
or the s/ieriff, or the vendee of the goods : and tl^e^slierift* 
is theproperest person against whorn to briog the action. 

The ^?5^ of an action of trover is the coNVfi&sioN :^tbc 
findifig is not the material part. 

A nd they cited several umprius cases of Actions brought 
by assignees ol bankrupts: ziz. 

AT. 1 1 G. 1 . Trover by Vanderhagen Sf *r, assignees 
of Daniel, a bankrupt, v- Reicise, a Serjeant at mace of the 
city of Lowrfow ; S. P. with the present. Lord Cb* J- 
Prott held the action maintainable. 
The S. P. was also before Lord Ch. Just. Xa, in a case 
iftw, assignee of ilf^//*, a KSRIkf upt, v. Oldham 4r 
Sittings after T'". 1750, at Guildhall :'\n trover 
^^ X"^^'**'^*- - sheriff, and the former plaintiff, apd the vendee,' 
U c/^cC^^ I fa I|Qf them together .) It was objected " l^bsit the sherij 
n/^M^:^ /jtC )" ought to be acquitted:" but over-ruled; an d verdict 

^^£€U/ ^jjh^ ) The seizure there was before the commission^ but after 
^ r ^ - (rte ACT of bankruptcy. 

The second question is, ** IVhose the goods were at the 
•* TIME OF THE SALE ?" The wHt Only commands the 
sheriff" to sell the pefend ant's goods :" and if he sells 
the goods of another person, it is a conversiok. 
r is 1 ** It is beyond doubt, that the assignment bas rdafian to 
^ ** ^ the act of bankruptcy : and the assignees stand in the bank- 
rupt's placeyrom thai time. I Veutr^ 193. Monk v. Morru 
flwtf C/oy^ow, proves this. ....:... 1,. 

Here then the assigneeshdid all tbe property that the 


MiehSelttafl Term, SO Geo. 9. 93 

h^Arupthid^ ai thiimt of his act of bankniptcy ; conse- 1756. 
quently the absolute domioioo was in rhem: and the sheriff coopkb. y. 
coiild not, AFTER ^uch assignment !«// them, at the de- cuittt 
fendabt*8. Indeed sherHb seldom do, infuct^ sell the goods ^^^xdi 
without indemnity. But the sheriff has here commitied bla.ckis- 
an error tn seUing them ai aft : for thej were $wt the ^^^i^ 
defendant's. He might, it is true, have summoned a jury 
*' to inquire whom goods they were." But still, even 
their verdict camiot affect the right of the (rue owner of 
the goods. 

The point about relation backwards, does not at all 
afiect the question, a$ to the sale ; for the assignment was 
priifr to the sals, though not to the letzure. 

And they affirmed that the sheriff not only might, but 
even ought, in this case, to have returned *• nulla bona :'' 
that would have been the proper and the true return ; and 
if it had been disputed, he then might have brought the 
momy imio court. There is a case of Rex v. Brein^ bailiff 
of the Savoy f\ Keb, 901. where the goods were claimed 
under a bill of sale ; the sheriff returned *' nulla bona^** 
and tHe'mooey was ordered to be brought into court by 
the sheriff; and the return to be made agreeable to the 
erent of a trial of the validity of the pretended bill of 
sale, after socb validity should be tried in an action. 

In the present case the defendants A/iez^' of the assign^ 
jnentBEFouE thetf sold thegood$ : whatever they might 
do when tbey seized them ; and they could not possibly 
be obliged to sell them : it is contrary to an express act 
of parliament, which vests the property in the assignees. So , 
that here the sheriff has sold the goods, not of the bank* 
mpt, hut of the assignees. 

And supposing that the plaintiffs may being an action 
against the plaintiff in the original action, or against the 
vendee of the goods ; yet they seem, both of them, to have ' 
better excuses than the^Aerjjf has, and are more innocent 
Therefore why should the assignees be turned round to 
tAem, when tliey can undoubtedlv maintain either trespass 
or trover against the slieriffs, who have jo/^2 the goods; 
which is accmverston, and will support an action of tro- 
ver } That the plaintiffs have this election, to bring either ^ . 
trespass or trover, appears from Cro. Eliz. 824. Bishop v. L ^ J 
LoM Maniague, aiki Cro. Jac. 50. S. C. 

Therefore they concluded that the action was well 

The counsel who argued for the defendants, the sheriffs, iigvocBt fer 
agveed titat the matter would turn upon the solution of the r ' 
the two queMipps made by the other side. 

As to the first question. They said it would be very 
hard if thii action should lie aqaxnst the sHSEirrs, and 

S4-S5 MichaelmagTeimydO^o. a. 

1756. thjfhe put. to controvert the act of ban(crup(<7s Khich 

COOPER vk iS'^ matter not at ail within their knowledge. . 

CHiTTY l^hey argued that the sheriffs shalj not be considered 

' '. and as wuonL-doers i and to prove it cited 1 Lev. 05. Turner v. 

BLACK IS- -Fe/gtf/e. JB^/ym. 73. S. C. 35/rffr/: 126\ S. C and 1 KeA/e 

TON. 1B2«. S.C. 1 X^t>a73, Bat/iey y.Bumnig, 1 Siderf.^ll. 

S. C, and 2 Kelle 3^, ;33.. S. C. 

The only acts of the sheriffs that can be considered ^ 
. a conversion i are the acts of seizure and ea/e. 

Now they were compellable by the writ of Jieri facias 
to seize the goods and./ery the debt 

For TILL the commismn and asugnment^ the property was 
VI the bankrupt : and it did not appear that a commission 
EVER WOULD 6e/<?Aff/i our/, ^. 

. 1 Salks 108. Lary v. CVi^p',. is express in point, " that 
•* the property is in the bankrupt^///^ assignment'*. It 
was there resolved that the property of the goods is not 
transferred out of the bankrupt till assignment % Str. 
38 1. Brassty Sf cf , v. Dawson 6i at. accortT^ 

1 Lev* 173. Bayley v. Bunmng. Judgment was for the 

officer; he being obliged to execute the writ, and could 

not know of the act of bankruptcy, or that any coraniiS' 

\fiion would ever be sued : and the sheriff was hoUien not 

to be liable, althoi)gb be had notice of the assignment 

iSiderf. 27'2. S. C. The taking was holden lawful. 

Cohiberb. IM. Lechmere v. Thoron'^ood* The officer 
shall not be made a trespasser, by relation. 3 Mod. 236. 
S.C. lSAo®er,12. S.C. 

The commission of bankruptcy makes no alteration, 

L 25 J rihh assignment: and Rfter assigftment^ there shall be a rf- 

/a/io/i, so far as to avoid all mesne acts of the bankrupt, 

atideven to over-reach Jt his judgment^crediior. Thus far 

they admitted. 

But they insisted that the action ought not to have been 
brought against the sheriff. 

The sheriff is to seize, sell, and return his vsrit. In proof 
of this, they cited 2 Ld. Raym. 1072, 1074. Clerk \. Wi^ 
thers, 1 :^alk. 322, 323. S. C. (3d point) 6 Mod. 2<>3, 
299. S. C. I Siderf. 29. Harrison v. Botoden, Cro. Etiz. 
. 23tf . Mountney v. Andrews, 1 Ro. Abr. Execution 893. 
Letter B. pL 2. Dyer, 98, b. and 99, a. % 57. and the two 
cases Ithere cited in the margin ; and Cro. Etiz. 597. Char* 
ter v. Peeter. From ail which cases, it appears that the 
sheriff is not liable to be molested. 

1 6a/A:. 32] . Kingsdale v. Mann, proves that the seizure 
is thee^en/iW part of the execution: and an execution is 
^n entire thing; and cannot be stopped, after it is once 
; begun. 2 Show. 79. Cockram v. frelbye, 
, And afler the sheriff had seized these goods^ the <n'u 
ginal plaintiff (fFirtitfin Godfrey) could oblige the sheriff 

Mfthaelfaa^Tfef in , 30 Geo- 3. 26 

to fetdrn'fit*' wrff -: -iria yet.upon the j)riii<iiple8 a'dranccd ] ^^g 
the sheriff njast be ptit under the greatest hardships. And ^^^p^j^' ^^ 
he had" vo' HerHOb to make the assigned of the bank- cnmr ' 
riiptcy to give him any assistance towards proving the act ^^^ 

of bankruptcy.- _. V.,^ , ,^ ., ^ - blackw- 

Indeed the execution is ^(Kmt, thfeugh the wnt be never ^^^^ 
returned. 5 Rep. 90, a. Ho^s case: (1st resolution.^ 

The only returhthe sherJffcould make, must be " That 
" he Add /wed the money :'* (which could only be by sale.) 
Therefore he was obliged to sell. Consequently the 
law will not make htm n wrong-dolfr^ selling. 

The following cases they said were ni point for them, 
viz. 1 Leo: ITJ^ Biy/ey v. ovnning, 2 Kebie, 32, 33. S. C. 
1 Siderf.2n. S. C. 3 Lcr. 191. Philips y. Thompson, 1 
Show. 12. Lethmere 8^ ai\ v.Thorowgoodt^ uf, Comb. 123. 
S.C. 3 Mad 236. S. id. and Cole v. Davies S^ al\ I Ld. 
Raym. 724. per Hott^ in point, as against the sheriff most 

. And the present plaintiffs may have an adequate and 
compieie remedt/ against the plaintijf in the original action. 

As to the cases cited, the gentlemen who have ar- f gfi "1 
gued on the other side, put it upon the question, " Who ^ "^ 

" had the property of the goods ?** 

Now the property was in the banhrapt at the time of 
the execution: it was jkot in abeyance', as it is in the 
case of .'an aiiministration. (Which is 'an answer to the 
case of Kigali v. Player.) 

The sheriff is not in the case of a stranger: for he was 
OBLIGED to execute and return the writ. 

Indeed the sheriff i9*to execute the writ at his peril; and 
Carthew 381. is so : the reason is, because the sheriff may 
impanel a jury, to inquire *• whose the goods are." But 
here there were vo means for the sheriff to indemnify 
himself: the goods were undoubtedly then the goods of 
WiHiaai Johns ; even though he had then committed an 
lict of bankruptcy. 

The assignees have not a right to recover the specific 
goods, but onli/ damages. 

Trespas.v'xW lie against the fiiw^Tif in the original ac* 
tiori, even 6^or« he receives the money; thdugh trover 
indeed. would not till a ftek, 

'\ It is not certain that an action will lie against the 
iftndeeoi the sheriff. 

As to Vander/iagen's case it is not sufficiently clear how 
itwas^ or wny it was determined. 
; But is to the case of Btoxam v. Oldham, Mr. HefUey 
did ifot* insist on the objection, *' That the action would 
'/not lie qgairti^ the sheriff;*' because it would not help his 
v.cfient : f6t in.that case the sheriff and the plaintiff in the 
ongiMl action were both of them defendants. And the 

37 Michaelmas Termy SO Cuto. H. 

1756. case of 1 Lev. 173- was not indeed, by Lord Cb. L tei, 

COOPBSL V, thought apposite to that, case: but it was /io/ over-ruled 

CHiTTY by him. And the goods were certainly tlieg^fxls ofthe 

and bankrupt fttf assignment. 

• ELACKis* * N. B. Mr. Hume, who was counsel for the defendant 

a;o|i. in that case of Bloxam v. Oldham^ agreed, ** That 

** the objection against the sherit}''s being a defendant'* 

was NOT insisied upon; because the plaintiff in the 

original action (wno was also a co*defendauc with 

r ST 1 ^^^ sheriff there) had inde/nui/ied the sheriff': so that 

*• "* J it was really a point quite immaUrial to the plaintiffs 

(who was at all events liable to the action.) 

They added, that this was a point of great consequence 

to all sheriffs and officers : on the other hand creditors 

cannot be injured, though sheriffs should be excusable* 

and the original plaintiff o/t/y should be liable to the ac'* 


As to what has been said of security taken by the idie* 
riff— the Court can take no notice ofa sheriffs taking se- 
curity; nor can they suppose him conusant of a pnra/e 
unknown act of bankruptcy : and it would be Tery hard 
if an innocent officer should be hurt by retrospection and 

They agreed that thi$ execution may be avoided as 
against the original plaintiff: 9- Strange &81. Brasseu Sf ' 
aC V. Dawson fy at. is a proof " that it may/' But tney 
denied it, as to rendering the ojficer liable io an action ; 
for Ae 16 excusable, as appears from the cases before 

As to the second question.-^The foundation of this 
action of trover, '^proverly iti ihepUnntiff\ at the time of 
the seizure, and a tortious and illegal act of conversion '; 
for without both these cincumstances, this action will not 

Now the piiopERTY is in the bankrupt, till assign^ 
ment : and the subsequent sale c^Lnnot make the sheriff a . 
wrongrdoer by ajictuious relation. Raym. 161, Bilton v. 
Johnson 6; at. *' The relation of a teste shall not justify 
'* a tort" 

It is said that '* this relation is given fry ^cl (^parlia* 
** ment.*' But there are no words in-tbe act of parliament 
that can make the sheriff a wrong-doer. 

If the seizure was lawful, the sale was so too. i Li^ 
RawH. 1074, iota, aerk v. mthers. Cro. Joe. 615. % 
V. Findi. Cro. £liz. 440. Boudher v. Wiseman. March t3L 
Parkinson v. Colliford ^ ^, executors of a sheriff. Cro. Car.. 
639. S. C. 1 Jones, 430. S. C. Hob. 206. Speake v. Ri* 
chords. Cro. Eliz. 237- Mounteney v. Andrews. . The iaw' 
considers the 4pAo2e ercfufionas one exUcVe act: the inter* 
laediate days are only allowed for the sake of tlie iiheri£ 

Mkr^ftebiuis Term, 90 Geo. S. 28 

CcoseqnaMy he may execute the whole at onee; he 1766. 
mzf seize ami sell dtrectlf. The ezecotion is ain eaiire coopsft ▼• 
thing, and can noi besiopped^ Cro. EHx, 597* Charter t« cRirrc 
Fetter. 6 Mad. ^93. Clerk t. tfitheri. Theiefore the and 
o^cer shall be protected. blackib* 

Suppose an action should be brou^t against the Ae* tow. 
rtff for the'miw^gr. He might avail bimaclf perhaps *>y r 28 1 
special pfeading, provided he tras able to make out the L J 

ftcts he should specially plead : bat how could he be able 
to prox^ the act of baokruptcy, trading, or assigDment? 
to ail which he is an entire sttanerer. Therefore it would 
be hard to suffer such an action to be maintaitied against 
Urn. But atl these matters are in the privity of the origin 
nal plaintiff: against tc^Aoin, therefore, the action ought 
to oe brought 

II is said, ** the WierilT acts at hh periV* 

But it is admitted that the method of impanening a 
jury would be no protection n> him. 

The counsel for the plaintiffs replied. That it is stated ^'r- 
'^'Tbat the assignment by the commissionerB of bankrupt* 
•* cy yjf^^previous to the Mlt^'iAhE by the shetift." 

The snerifTs being always a responsible person, and 
thetefore ihost likely to be made defendant, is the very 
reason why he ought to be liable to the fa$ty who has 
irifcc^ived the injury. 

The^^^idfAg, or even the ftfArfog jioM^jln>)t of goods fbund 
is no wrong: bufc it is the comvers&ok that makes the 
person a tort-feasor, 

Tbev admitted that the sh^rrff is not aqswerable fbrdie 
irreguiarity of a Judgment \ (for he isbound to exeaite the 
command of the writ.) But if he take the jjfocAofxn^ 
OTHER P£RSOK,t>iirra</ofthe goods of the d^ndatt, he 
is answerable for that; 

It has been said, indeed, that *' they were at thjit 
*' time the goods of the bankrnpi bimsetf.** 

But be the taki hc^ lawful, or not lawfiit, yet here is an 
actual coNVjsitsiO!! ^an actoa/DispostnoH of the goods; 
which makes him a trespasser at^ itatio. 

It has likewise been said, that ** the Cowt will protect 
'' the aherifr.^ But the relation goes back, qstitewp to the 

They deniM that the execution \% so entire that the [DjitoD*tSberiff 
4ieriif can not stop in it, after seizure and before sale of the i ^6, 3 WiU 
gbod^ Suppose the sheriff had confessedly seised an^ ^^^*] 
dtlier^ person's goods, shonkl he be obliged to sell them f 
JDalioi/s tUlie ofSher^, says " The sberitt* may impanel r 90 1 
** * jury ; Jttd c^er that shill not be answerable.** Now L ^=^ J 
h^ he iiiight eitber have impanelted a jmy, or have 
k^ the ipdtley ' in his hands, or hnmglit' ie int^ eeafl, 
ttf the ffrop^rty oTtbegoodilMd: beea desemnti^ 

S9-30 Miobftehnas Terd, 3» QdP* 9- 

1756. They admitted the general priiicipfe o£:tb^.q^ qiibed 

coopBA V. <^ ^^^ head of executions ; jJMit dtnitd 4^ ^pfUcatiou pi 

on ITT Y ^^^^^ to the present case. They also denied the prinei^. 

and Pl®. " That a sheriff shall never be » ^oxK^^s^r by rela- 

BLACKis* " tion;'* for he shall in some cases 1^.69»ja$ where be 

jQff^ take the ^poods with a b^ onginfllMt.^ion^ > 

As to Bayky v* Buwiivg^ they endeavQi^red , to d is tin* 
guisbit Inorder to wJiicbi they r^Qiarked that there 
is no finding oi din actual c<^9ersiaii» or of what could 
be called so by tlie CsQUrt ; it s^ poly a demand ^und r^asal^ 
which is ONLY evidenob to.a jgry^ Aod the. opinioa 
of the Court there went upon th^ (^A^^, which . they 
held to be legal ; whertas here. i9;aH f^QxvKh cottpersiot^ 
stated. An action would lie» Npne ,wpgjld think, against, 
the vendee of the sheriff in point of reason, and tb^pyvjc^ 
tice does strongly support its for niiae in tc^ of these ac- 
tions are brought against the vendees of tbesheriff. 

In the case of Bloxam v. Oldkrni liberc. waa a. very nuz^ 
terial difftrenoe^ whether the sheriffsbouklb^ve a verdict' 
for hm, or a Terdict against him ; for in tlie one case he 
would feceive costs, in tbeo^Afr he must pay tbeo^^ 

The plaintiffs had no right to call upon the sheriffs 

'fiEL theaETvsLV of the writ; and they might ^A^u have 

returned *< futlia bona.'* Therefore this i» not such a 

hard case upon the sheriffs as is suggested. And tlua i$ 

not the only case where the sheriff is to act at his fterti ; 

for in taking of bail, 6c. he must do so, as well aa^ here. 

Ifthesheriff had returned *' nulla bona" the onif^pr^- 

ftancfi would haxe lain upon the, original plaintiff. 

In the case of Turner v. Fel^aU, the sheriff was ccf'-) 

• tainly excusable by virtue of his writ. 

In the case o£Co/e v. Duties ^ al' in 1 Ld. Eai^m, 724. 
the goods were sold before the commission and assign- 
ment For the case is there put oi a commission and 
'assignment, 6o^A ^^hem subsequent to the sale of 
the goods. Tb^ words are, " If he seizes, and sells,'* 
jpndtben a ^'f5ommission is granted, and the goods as- 
/' signed ; the assignee may maintain trover againat the 

C- TO l" ^^"^6^- but no action will lie against.the sheriff, be- 
^^ J " cause he obeyed the writ." But our reasoaipg in the 
present case is founded upon the sale's being BUwdaw/iU 

In the ease of Brasses Sf oT v. DaxKison 4' aV, there waa 
no assignment previous to the seizure. 

They did not deny that the bankrupt had in the pre- 
sent case a sor/ of property, ^defeasible propertjf in him^ 
at the time of taking the goods. But in the caae of 
Cleii V. fVithers (reported in 6 Mod. 290. and in 1 Salk. 
323^ and in 2 lad. Batfm. 170?,) I(be defendant in the«C'- ' 
tion h^d the whole indefeasible property in bim \ and tha 

Micho^lflias Term, 30 Geo. S. 31 

sheriff omdt to Iiliv6^iie eb ; bttt that ease is not applt- 175$. 
cable to Ae ^f^Mieat casei wheie the property was oniy oootvsl y. 
defkisHle. cunrr 

As to the ^dttes cited freta H^b. 306. Bnd March^ 13. and 
they agreed to them. bi^c kis* 

The time allowed lo the ^sheriff makes no difference^ xeir. 
(tliey said ;) because he hasdoiae wrong« 

And however ^tire a thing an etecotion in general 
may be ; yet here it was irrtguiarljf executed. 

The truth of the return of '' nuitu bom,"' in this case 
depends upon the present questioiK 

It is vety frequent fur sheriffs to be entangled in dif-- 
ficulties about their returns; Here he might have taken 
2L writ depropriei^Ueprobafida. 

Bayley v. Bunning turned upon the taking* 

Lechmert Ss aC v. Tkoromgood only proves '' that the 
" goods were til cai^9£Ua /^gi«." And so they were; but 
to the purposes of the law wiuch in the present case is 
for file benefit of the creditor of the bankrupt. 

Curia advisaub vvtT. 

And now (Tmndaify 33d Novemb. nb6) Lord MAKS-opin'tonoftho 
Fii&Ln delivered the opinion of the court, and said they Court. 
were ol/aOTeed, as'well his two brethren then present in 
court, as his brother fVtlmot, {who was at present en- 
gaged in another place,) in their opinion. 

There nrejew facts eneniial to this case; and it lies in 
a narrow compass. 

He then stated the case, (which see inp. 30« ante;) and ^ 31 J 
was very particular in specifying the (fa^ei of the several 

The general question is, ** Whether or no the action 
'* is maintainable by the assignees, againt the defend- 
** ani$, the sheriffs,vvho have taken and sold the goods?'' 

It is an action of tkoveq. 

The bare defining the nature of this kind of action ,^^ 
and the grounds upon which a plaintiff is entitlekl to re- 
cover- in it, will go a great way towards the under- 
standing, and consequently towards the solution of the /" 
question in this particular case. ^^ *55Siii^ 

Inform it is a fiction : in substance a remedy to recover 
the value of personal chattels wrongful^ converted by 
another to his own use. 

The form apposes the defendant may have come law- 
fully by the possession of the goods. 

This^etion lies, and has been brought ito many cases 
whf^e, iff truth, the defendant has £;ot the possession /at^ 

Where the defendant takes them wrongfully, and by 
'trespass, the plaintiff, if he thinks fit to bring this action, 
w^GHi \he trei^ass> and admits the possession to have 
been la wfulljf gotten. 


Michtelmas Term, 30 Geo, d. 

[ 32 

r«iJ»c. 1. 

c. 19. 8. 9.] 

1756. Hence» if the defendant driivers the tbiikg Dpon de- 

coovEft V. maady no damages can be recovered in tHu action, ibr 
CHiTTT' having taken it. 

and This is an action of tort: Mdthe whole tort consists 

BLACKis- in ^he wrongful conversion. 

TDK. Tvro th\itg9 are necessaiy to be proved, to entitle the 
plaintiff to recover in this kind of action: Ist, Property 
in the plaintiff; and Sdly, a wrongful conversion by the 
4" As to the first* it is admitted in the present case, that 
the property was in the plaintiffs, as on and from the 
4th of Deeembert (which was before the seizure,) by rf- 

This telation the statutes concerning bankrapts intro- 
duced to avoid frauds* They vest in the assignees all the 
properly that the bankrupt had at the time of what I 
may call the crime committed, (for the old statutes con- 
J sider him as a criminal : they make the sale by the com- 
missioners good against all persons who claim by, from, 
or under the bankrupt, after the act of bankruptcy, and 
against all executions not served and executed o^ore the 
act of bankruptcy. 

Dispositions by process of law are pot upon the same 
foot with dispositions by the party : to be valid, they 
must be completed before the act of bankruptcy^ 

Till the making of 19 G. 2. c. 32., if the bankrupt had, 
bonajide, bought goods, or negotiated a bill of exchange; 
and thereupon, or otherwise, in the course of trade, paid 
money to a fair creditor, after he himself had committecl 
a secret act of bankruptcy ; such bonafide creditor WaS^ 
liable to r^vnd the money to the assignees, after a com-' 
mission and assignment ; and the payment, though really 
and bonafide made to ih€ creditor, was avoided and de- 
feated by the secret act of bankruptcy. 

This is remedied by that act, in case no notice vrttd had 
by the creditor, (prior to his receiving the debt,) " That 
** his debtor was become a bankrupt, or was in insolvent 
•• circumstances^" 

Therefore as to the first point, it is roost clear that tb^ 
property was in the piaintiffs; as on and from the 4th of 
December ^ when the act of bankruptcy was committed. 

2dly. The only question then is, " Whether the dc- 
^' fendants are guilty of a wrongful conversion ?** 
That the conversion itself was wrongful is manifest, 
[a Will. S07.] The sheriffs bad no authority to sell the goods of th^ 
plaintfffsy but of William Johns only ; they ought to haVO 
delivered these goods to the plaintiffs the assignees. Upoa^ 
the foundation of the legal right, the Chancellor, even ia 
a summary way, would hare ordered tfcem W be df* 
livered to the assignees. 

Michaermas Term, 90 Geo. 2. 33 

It is admiitedt on the part of the defeodants, (o) thai 1736. 
the ianocent vendee of the goods so seized can have no coopsr ▼• 
title under the sale, bat is liable to an action ; and that cuittt 
iiad^rty the plaintiflf would hav^ no title to the money and 
arising from such sale, but if be received it would be fix,\CKia* 
liable to an action to refund. ton. 

If the thing be clearly wrong, the only question that 
remains is, '* Whether the defendants are excusable, 
" iiough the act of conversion be wrongful." f 33 1 

Thoagh the statutes coRceming bankrupts rescind ^Hj^j^^j^^j^^ 
contracts and executions not completed before the act of jac. i. c. i9. 
bankruptcy, and vest the propert/of the bankrupt in ■• i^- '•» «xp>«» 
the assignees by relation, in order to an equal division (6) "q^Y*^"' 
of bis estate among bis creditors, yet they do not make 
men trmpnuer$ orerimnal by relation, who have innocently 
received goods from bin», or executed legal process, not 
knowing of an act of bankruptcy ; that was not necessary 
and would have been uqast 

The injury complained of by this action, for which 
damages are to be recovered, is not the teizure, but the 
mrongfid conversion (e) 

The aisigmment was made upon the Bth of December ; 
the Hile not till the ^Sihof December; the return not till 
tbeoctave of Saint HUary^ (which is tbe 20/A oi January.) 

Tbe sheriff acts at his peri/, and is antmerablt for any 
Mta^tfie.*' infinite inconveniences would arise if it were 


At tbe time of tbe sale and return, it was more n6toriou& 
f* that these goods betonged to the plain tifl'a,*' than it 
crmld probably have been in the case of any third person ; 
because commissions of bankruptcy and the proceedings 

(tf ) This is not consistent with what is before reported, 
p.26. tbough the same admission as here is repeated, xnfra^ 

(i) Post. 35 ac. 36 ac. with a good reason for it. 

\c) There is no difference, with respect tb tbe sheriff 
between trover and trespass: he may just as well be liable 
to tbe one action as the other: the measure of damages 
wpnld be tbe same in both, and he must pay costs in 
Both : and the court of B. jR. have since determined trover 
to be an action founded on a tort, and on that ground not 
piaintaioable against an executor for a conversion by 
bis testator; and see C<mp. 371. and 1 Darn. 475. 
' . In geniexala judgment in trespass to trover, and so vice 
versa with proper aVerttients, I Show. 146. 2 BL Rep. 

VoLt D 

Si Michaelmas Term, sp Geo. 2. 

}7^6, under them .are pubficin the, neighbourhood, ^od indeed 
cijopiiR V. .all over- th« kingdom. . , , 

qH|xT Y Thi^ c^py^rsion is 20 days after the, assignment. 

and The defendant^ have here made a d'lTect/ahe return : 

BLACKI8-* they have returned "That they took the DgFEwn ant's 
TON. " goo^s, 4c." whereas'they^were (at the;^"«€ of the return) 
„ notoriously the ge^ods of the assign f;?s whea they werie 
tiEji&i. Th^y certainly mighty and ought to have returned 
" mlla bona,'' which was thetruth; for the goods taken 
were,\ beyond al] mannert of doubt, the poods of /Ac assign 
neesy at the time when the sheriflTs /op/: them; and the 
bankrupt cow/rf have no gpods after .the4M of December, 
lyhen he bad committed lan act of bankruptcy. They 
would have been justifieid by .the truth of the fact, if they 
liad made Ihis return ; for the bankrupt neither bad nor 
could have any goods of bis otFn, fit tftal time. It is 
arguing in a circle to say " That they could not return 
**'tiulla bona, because they were obliged to sell; and they 
," were obliged to sell* because they could not return 
^'ntdlft honor 

The 5eiz?/re is here out of the cast-; for the point of 
this action turns upon the injurious conversiont. 
f S4 1 Therefore we are all of opinion that the plaintiff is jenti- 
tied to recover in thi% action. 

But ohjectioas have been made by the gentlemen who 
have argued this case on behalf of the defendants. 

It has been said **That the execution isenfircA for 
** the debt is discharged by a seizure in ft. fa. That being 
•• entire, if once lawfully begun \lmust be completed; 
**- for goods taken by zji^fa. shall be sold by the rcpre- 
** sentative of the sheriff " 

** That they shall be sold, though the plaintiff dies ; 
** and the money arising by the sale shall not be recovered 
•* back by the defendant i" which is the case ofCVerfcv. 
Withers, 1 Salk. 'M3. 2 Ld. Saym. 1072. S. C. and 
6 Mod. WO. S.C. 

•* That a writ of error is no supersedeas.*^ 

" That the sale by the sherijl' shall not be avoided 
" against the vt-udee, by a subsequent writ of error and 
•* reversal:" which is the third point in Matthew Man- 
ning's case in 8 Co. 96. 

Answer^ Ail this is true, (and upon the plainest rea- 
son,) 4SES between the plaintiff and defendant, ^^r/iWW the 
judgment in consequence of which the execution IssCies ; 
but no way applicable to the case of a third person. 

None of these c^ses authorise the sheriff' to sell the goods 
of a TuiRi} person : and it ia admitted that thevendeeis 
not protected here ; because, at the time of the sale, the 
sheriff had no authority to sell* 

Mfchiek&as Term, 3JOeo/^. 





[He then went minutely through the cases; 'shewin*^ 1736. 
the grounds upon which the determinations proceeded^ coopkr v 
as against tlieparliei to the judgment, who are bound by 
it, and every thing' dqne in consequence of it] 

But the argument from these principles to the present 
case is this: " Here the tofriW was lattfnl, and therefore 
•• the sheriff was bound to complete the execution by a 
" sale," Answer, The premise!^ are not true; and if they 
were, the conclusion would hotfolFo^v. 

The taking wasw^ lawful ; because they were thent\\e 
goo<ls of a third person. 

But if the taking vftre lairfuF," the sheriff ought not f 
to go on to a sale, after a full discov.ery that the goods 
then belonged to a third person. 

To prove! the taking lawful, and that therefore the 
sheriffs shall not be liable to an action, were cited the 
csise^ of Bayley V, Bunning^ [a] reported in 1 Leon. 173, 
174. 1 Siderf. 272. and 2* Keble 3i, 33. [K ante 24, 25.] 
Lectmrre v. liiorowgood, in Comb. 123. 1 Shott^r^ 12, 
and 3 Mod. 236, [V. ante 24, 25.] and Cole v. Davies 4- a/\ 
1 L* Haym. 724. [F. ante 25.] 

The fallacy of the argument from the authority of 
t?hese cases, turns upon using the word ** latrfur equivo- 
cally in two senses. 
To support the act, it is fiot lawful: but to excuse the 

35 ] 

(fl) 'ITie pnly distinction between the principal case» 
aad that of Bayley v. Banning^ is, that this was an action 
of trover, and that an action of trespass ; that the former 
is founded on a tort, and that no mzn ought to be made 
criminal by relation that the other is not founded on 
tort; but that distinction is not only trifling, for the tea- 
sons mentioned in the notes, onre; but seems also in- 
consistent with the judgment in the casein Cotxfp.^ll. 
where it was adjudged that trover doth not lie against an 
executor for a conversion in the life of the testator, be- 
cause it is an action founded on tort, and therefore mori^^ 
tur $um persotta : it seems also not consistent with the rea- 
sons given by Ld. Mansfield in p. 377, of the same case, 
in delivering the opinion of the court, " there areexpress 
/'authorities, that trover and conversion does not lie 
*' against the executor where the commission is by the 
" testator: the form of the plea was decisive, viz. that the 
'V testator wa& not guilty; and the issue is to try the guilt 
'* of the testator," after which Ld. Mansfield adds," that 
" no mischief is done, for an action for money had and re- 
** ceived may be brought.** But (juttre^ for no such action 
was ever brought, the allowing it would be contrary to 
5 JBtf rr. 2592. 


55 Michaelnias Term, SO^Hso. 9. 

17'56. mistake of the sheriff througli unatt>idable ignorance, it 
COOPER V. is lawful. Of, in other words, the relation introduced 
cKiTTY by ^^^ statutes binds the property r but men who act in- 
and nocently, {a) at the time, are not made trmiuah by 
BLACKis- relation; and therefone they are excusable from being 
TON. punishable by action or indictment as trespassers. What 
they did was innocetft, And in that sense lawful : but as 
a ground to support a wrongful conversion by sale, after 
a commission publicly taken out and an aetual assignment 
made, it was not lawful.* 
[B»th so. Bui- In the case of Bay fey v. Banning^ the goods were clear- 
er, KJi. ly hound by the teste. It is best reported in Levinz* The 
iDuTii.479.1 question referred bytbie special verdict was upon the 
TAKiNGjVir.'* Whether the party was guilty in thexAK* 
*• iNG?'* and the court excuse the bailifFfor his inn6^ 
cent executing his writ. The case of Philips v. ITftomp- 
son^ iw'^Ltvinz, 19^. expressly says, " that this reaplu- 
** tion in the case of Bayley and Bunningw^^ unlymex^ 
" cuse (b) of the bailiff for executing the writ." * 

(a) This excuse is nothing, for that being subject to 
trover is much the same in its effects. 

(b) The excuse was not confined to its being an excuse • 
in trespass and not in trover ; and his excuse would be of 
no use to him, at least not after the this 
case ; for then the action would always be trover, in which 
the same damages would be recoveretl precisely as if it was 
trespass, except the attorney should blunder^ and bring 
tlie w-rong action : and that is a further reason ctgainst the 
judgment, as it induces distinctions, that tend only to 
vexation; but the true reason is, that the sheriff ought 
t,o be protected in paying obedience to the writ, and ougiit 
not to be exposed to the danger of being.injured by facts 
out of his knowledge ; and the old cases were so, and the 
money in the sheriff's hands was by the courts declared to 
be in custodia Irgis^ for which none could give a discharge^ 
but he who was aparty tothereeord, Cro. Car, l()6, 170. 
Therefore the assignees orthe creditors under the commis- 
sion ought to move the court, and not bring an action 
against the sheriff, if he paid the money into court : for 
that at all events to be his indemnity,, and so ought pay- 
ment to the plaintiff. If before notice of the property, the 
effect of such notice ought to be nothing more than to 
oblige them to pay it into court r and this judgment hath 
bad -very mischievous effects, not only against sheriffs and 
their officers ; but by exciting creditors to take out com- 
missions, and bring actions founded on actsofbankruptcy^ 
often pretended probably, or if not linknbwn at th^ time 
of the execution, and which would hare continued 
unknown, bad there been no execution t fbr the reasoning 

Michaeln^s Tejrm, SO Geo* 2. SS 

l^derfin dg^es opt geem Xo know what the court was going 1756, 
upon I for thecoiurt tied it up to the inking ; .i^hereas he cooper v, 
does 4^ot seem to distinguish between the trover and the chitty ' 
ir^pa^j. [^a^ufcy^ and. 

The case, of Lfchmere v. Thorowgood is best reported blackis- 
in 1 Siow. i?. And this rep9a*t (which is the only clear ^on. 
state of it iaany of the j;eports)puts it tingly upon the mak- j^^.^ ^^ J^ 
ing the oKlioers, who had ggpii autkority and took the )««, 4 Ouro. 
goods lati^i^luftrespassers by kclatiok. 405. 

Comherbach, in giving the judgment of the Court, £ 36 J 
which is the ouW sensible; p^rt o^his whole report»(for it 
is plain to me, tnat he did npt. lyid^rstand the farmer ar- 
gument on theyorm^r day, which is the first part of his 
report of thecase^) a^grees vfiihShower ; and says that " the 
** Courtwerepf opipionthat a construction should not 
" Jbe made, to make th^ officer a trespQMr by relation :(a) 
*' for th^ t^M WAS ia^/ul, at the time. '* But he must be 
mistaken in. Uie first ps^rt of this report: for Lord Ch. 
Just M£^// could never say*' That the property of the 
" goods is vested by the delivery of the fieri facias; and 
'* the extent for the king afterwards comes too late." No 
tnoc}}(joiipfan eiceeution Qan bar the crown. This mat- 
ter was latety fully discussed in the Court of Exchequer 
in the case of th/e -King and Cotton. 

A^ to the case. of C«/e v. Davits 4f of, reported iu 
IX^*. Raym. 724. " That no action will lie against the 
" sherift^ who, afte"- the bankruptcy, seizes and sells the 
f* goods, under SLjterifacias to him directed;" (which is 
there said to be ruled by Lord Ch. Just. Holt hi xVm 

in this case goes that length, and hath had that efi'ect, ac- 
cording to the maxiJTi, in relatione juris semper est aijuiias,. 
under pretence that all creditors ought to be paid equally : 
which is true in general,but not when applied against such 
particular creditors as have used due diligence and been at 
the expence of recovering their debts, in favour of others^ 
who are allowed by this fiction to defeat the legal pro- 
ceeding, and recover upon their own oaths before com- 
missioqers^ equally with those who have taken a legal 
coursie, and ought to be reimbursed their costs, by the 
otheipa. w))o have acquiesced, and ought to do equity, if 
thevjKyitl.bave equity: this holds where there is no di- 
rect fraud ip the others, which no one can doubt fre- 
quently if, the case; and to which this judgment gives 
^eat encouragement, and even in this case the act of 
i>a9)cruptcy fovind by the jury, was but one dav before 
the/e^cecutiqn >ras t^ken out an4 the.goods seized. 

(a). See 4 pf(r<n* 407. and vide 412. contra. Qu.2 Black. 
V2V6. Parker, 123, and 4 Dnrn. 402. 

37 Michaelmas Term, SO'Geo. 3. 

1756. Prius, in Hi7, 10 Will. 3.]Tkestnotei utfe taken in 10 W. 

COOPER V. 3. when Lord Raymond was tfoun^^as short hif^$ for hi$ own 

GiiiTTT ^^^' but the^ are too incorrect and inaef urate, to be relied on 

and as authorities. The note states four general resolutions 

BLACKis- upon evidence, in a trial at Nisi Prius; but does not state 
TON* the case or question to which the resolutions wereappUed: 

[5DurD.6i2.] (though, by the particularity of the fourth resolution,! 
conjecture /Aa^ to have been most immediately adapted to 
the case then in judgment.) The first resolution is an 
obiter reference to the determination in Bayieyvrnd Buw- 
fiingi and it might not be at all material, to attend to the 
distinction between trover and trespass. Besides, the case 
there put is of a sale by the sheriff, before the commission ; 
and the conversion might be as excusable as the taking, 
because he obeyed the writ: whereas here, the goods were 
not sold till AFTER both commission and assignment It 
is a loose note for what was said obiter : it manifestly refers 
to the case of Barley and Sunning ; but is no authority 
applicable to the present case. 

There are, in the course of trade, numberless acts of 
bankruptcy t«/i/cf r^mmtVfed, where no commission is ever 
taken out. Therefore it would be very hard; to make the 
sheriff a trespasser for taking the goods ofapei-son 
who might pr/tfl/e/y and secretly have committed an act of 
bankruptcy, and perhaps many years brfore too, and 011 
which no commission might ever afterwards issue ; and 
which the sheriff could not possibly know. Btit none of 
these reasons hold, to justify the making a/a&e ref iiri?, and 
selling the goods, ofler a. commission and an assignment. 

r 37 3 Arguments have been urged from inconvenience, if 
the sheriff should be made liable, because be is oA- 
liged to sell, (a) 
But the sheriff may take an indemnity (b) from the 

(a) The court cannot command the sheriff to take an 
issue with any person. 21 H.7. 

(6) Ld. Raym. 278, 27P. Lutw. 086, 637.— And qut^re 
whether he, (or, which is the same his bailiff,) being shewn 
the goods and informed by the plaintiff that they were 
the defendant'Si could have refused to levy thereon the ex- 
ecution : it seems reasonable if there was a doubt about 
the property that he shouid have an indemnity. Ano 
guare, if the plaintiff would not give it, whether he 
rtiightnot shew it for cause for not returning the writ? 
For as he was shewn the goods, it seems he could Aot 
lawfully return nulla bona, but he might sue out a writ 
de proprietate probanda,dini take an inquisition thereon and 
act accordingly ; and that seeihs to be the proper Avuy'f6r 

Michaelmas Tivrm^ 30 Geo. 9. 37 

plaintWr, in esse there be a doubt conoemidg the jpio- 175^ 
perty of the goods, Possihly, ikii CcuH Uk\^ht itilenereir<;oorBa n 
if the sheriff was reasonably doubtful about tiie property ; cm tt y 
at least* tiiey would have given him time to make his re- ^ni 
turn: or be might have put it on the parties concerned- blacki*- 
in interest to 'litigate their right, by tiling a bill in ton. 
Chancery against them, to oblige them to interplead, in 
order to aseeriain te vthom ibe property beiaoj^. Or he 
might oblige the assignees to prove the act of bankrupt*- 
cy, and the assignment. 

And notwithstanding what has been urged as to the 
hardships thatsheriflfs will be under, there can hardly a 
<2se exist where there will be any hardship upon the she- 
riff, where the taking and sale, or even the saleonl^^ tre 
SUBSEQUENT to the assigftmetii ; but in the present case, 
the sberifis knew of the bankruptcy before they sold the 

Tbereare much ^rea^er hardships upon other third 
persons (a) concerned in pecuniary transactions wiih 
bankrupts; wbichbardships they are nevertheless left sub- 
ject to, because it was necessary that they should beso, in 
order to secure the end and intention of the acts reiatinf^ 
to bankrupts: nameiy^thesecuringtheirefiectstbr theequdl 
saiisiactioH of tKeir creditxxrs. 

The commission and assignment are both notoricui 
transactions ; so that a sherift' cannot w.ell be hurt by being 
left liable to this action : whereas tliere would be danger^ 
if it were otherwise, of great collusion betn(( practised by 
sheriffs, on these occasions; which might be encouraged 
by a contrary resolution. The seizure here is after the act 
of bankruptcy committed, and therefore after the property 
by relation is vested in the assignees: but that wa^ t/inocew^ j-q^^ B^ji, ^ 
and exewabk; and the sheriff shall not be linbk by relation 12 Mod. 924.] 
as a wnoxG-doer. The gist of this action is the wrongful 
CONVERSION hy the sale ^nd false return, long after the 
commission and aisignment. 

him to avoid the dilemma of being subject to an action 
for a false return by the plaintiff, in case he should re- 
turn KuUa bona, and the goods should appear to be the 
defendant's ; or an action by the owner of the goods, in 
case he should levy them, and they should not prove to 
be the defendant's goods. 

. (a) Though voluntary payments are not protected, yet 
payments enforced by coercion of law are valid against 
the a3sijg;n(^es, in case any commission should afterwards 
^et taken out, 2 Dum. 179. w. 

98 Michaelmtftt Ttrmi SO Gm. 2. 

17 S6. Tberefore^ per Cur* unanimously. The action li main- 
nOBisdOV tainable, ift thiscase^ against the defendants; and. there 

V. must be judgment for the plaintrifiB. 
ROBiNfOK* 1 Judgment for the plaintiffs.{a) 

r 38 1 

*- "* Robinson rerlus Robinson. 

Devise of all 

reaieitaie(ex- This was a case out of Chancery, on a will, {b} 

oepttbaiat E.) 

petaky o* Vus'* (\^^ the'^Tth of Julu 17^3, George Robinson, of Bochym^ 
preMnutiont ^^ in the county Q\ Cornwatlj&q, duly made his will, 
bb^ifeand no ^"^' ^^'^^^ o^^ing his wifeouc guinea, and his father- in-law 
looi:er,'prond- agroat, he devised as follows:—*' I bequeath all my real 
6d he uke the " e$tale (excepting my estate in the parish of Endtllyon^ 
t«to1o^' a^ ** '^^^ '^^^' ^^'f^^f^'^i 3"d ^1' ^7 presentations'in the said 
live at hif " county), to Loftcelol Hicks, of Plymouth, in the county 
bouteatB.iaDd<* of Dero/i, gentleman, for and during the term of his 
oMse'^'to^ch " J^atural life, and no longer; provided [c] that he al- 
8011 a's he ihaU " ter his name, and take that of Robinson, and live at niy 
have lawfully ** house of BocAy/w; and after his decease, to such son as 
takiM?he " *^^ ^^^^^ \\^\e, lawfully to be begotten, taking the name 

■ameofR., and for default of such issue, then to W. R. in fee; is, an estate in tairmaie 

in L. H. (be and U)e heirs of his body taking the name of R.) inordei to effectuate the 

feneral inte&tof the testator, notwithstanding the express estate devised to («. H. fur lif^ and 

no longer. 

[S. a. n vol. of Caj>. in Dom. Proc. p. 139. 3 A'k 736. 2 Ves. 225. 231. Qu Cases in tb» 

lime of Lord Talbot, 262. Comyns, 289. Viner, Devise Y. (a) p. 233,334. 1 Aik. 


(a) This judgment is against a former solemn determina- 
tion in 1 Leo. 173, and is in other respects new ; and many 
suits have followed therefrom. See Doug. 244. 

(iltj'Th^ case has been often recognized, and very 
strongly in 1 East, !235, 2 Wih. 324 ; see also 5 Durn. 
303, 323. QDuru. bt2;, 8 Durn. 7. 7 Durn. 533. 2 fes. 
jun. 708. 4 Durn. 87, ac. 3 East. 550. 5 East. 202, 551, 
1 iW,235, 2 Brown, 573. 4 Fez, 304. Doug. 415. 4 Dura. 
49. 2 Bf^s. andPul. 48». 3 Brown, U\. 1 Brown, 249. 
3 Burr.\G33. S. C. also cited in the appellant's seccmd reason 
iu his printed case, Chapmun,lesseeo{0iirer,aitdolher8^y. 
Brown and others, Feb. 1767, in Dom. Proc. 2 IVils. 88^ 
322. See also 3" JBosfifi. 023. The principle is this, thai 
where there are.too iniefUs^ one genei-al, and the otl^er 
particular, if both cannot take effect, the g^o^ral ipteat 
slvall prevail. W^i/wo/, 272. 

(c\Lucas 402, 10 MS. 344. Vin. Deviaeip. 233. 3 Burr. 
1574, X5S0, 1633. 1 Vent. 231.f<w« aliier. See also 1 Ktn^. 
232, 2 Harg. Ars. 371. 

Qu. Etvide S fin. ISi. Jmblcr 35$^ 3, Andsj to general 
and particular.intents^ see Pari^.dl«and2 F4^ i9d. 

MicbMlons Itmn, 90 Geo. 9. 39 

'* o(Bpkiff90n: .%q4 for defottU;qf bucb isfH^{a)tiien I be- 1756. 
'« qiieat^ thesaqie to my cousin [tbe defendant] WiUiam ROBinaoif 
'* Kobinion^ rector of Laudewmlkeck, and bis heift for y, 
" ever "(6) moBntww. 

*' Item. My Fill and desire is, that he [meaning Wil* 
" liam £• rector oi Laudtaedneck'] have liberty to present 
" whom be pleases to any vacancy that shall happen in 
** any of my presentations, dieting bis life; and in case any 
*' of his chiiaren shall take or be designed for holy orders, 
" then it is my desire that in case of any vacancy in either 
** Oi my presentations, that bonds of resignation be taken, 
** to such child or children, if the vacancy happen before 
'* he or they attain suob orders: and after the same shall 
** bedisposed of as aforesaid, thenlgiveiAepBUPfiTuiiT' 
*' of the said preieniaiions, to the said Mr. La$ueloi Hicks, 
** in the same manner, and k> the same uses as I have given 
" my estate." 

And after bequeathing some legacies, he gave all the 
rest of his goods and chattels together with his estate at 
Eadel/yon, to his said kinsman William Robinson, and made 
him sole executor. 

This William Robinson was heir at law to the tes« 

On the dOth September 172S, the testator died with- 
out issue ; leaving the said William Robinson his heir at 

Lancelot Hicks was then living, and took the name of 
Robinson ; and <^ter the testator's death had two sons; 
George^ his elaest ; and the plaintiff Edmund (both of f 39 1 
them bora after the testator's death.) Lancelot Hicks eH" L -^ 

tered upon the estate, and lived at the testator's house 
at Bochym: and his eldest son George was called by the 
name of jRo&iiiion, and pisi> in March 1738, an infant; 
in the life-time of the said Lancelot Hicks, his fiither, 
and of the plaintiff, his younger brother. 

Lancelot Hiek$,alias Robinson, died in July 1745, leav- rsje« Vtm^ 
ing the igiAmtitt Edmund Hicks, alias Robinson, his only ^^0 
su&TiTixG son, an infant ; who brought his bill in chan* 
eery to have a convqraMe. 
Short state of tliecase.'-The title of the plaintiff ap- 

{a) Blackstone, when of counsel, said the detetmination 
i»thfa case went clearly upon, the words defauU of such 
issue^ which overpowered the words and no hnger, in 
the 'Revise to Lancelot Hicks, 1 Black. 505.; but ou.? 
as observed, |ios^. 47. if one son only could take, it does 
not follow of course, that the WDnh» and for default of 
suckistue; aire restrained to such one son only. 

(&) M\»di£kiente between this and 3 Iiv.44S. 


4& MichAelmas Term, ^30 Geo. 9. 

IfSfi* pfearste be stated thus— That Lancelot Hicks t6ok the 

R0HIH8DK ^^^^^ ^^^ complied with the condition ; and then had 

y^ tfW) souB bom ; the eldest son died an inftot, iri' his life- 

uoBin%eit^^^^^* Then Lancelot himself died; on whose death 

' Willtam Robinson claims the estate ^ the^rs^ devise '* to 

"the iofi of the body ofLamielot** being already SAtiSFiED 

by the BIRTH and DEATH of George Lancelot's eldest 

y son,aB thedaimantsirppos^s.' 

<Jiie8tion. " Whether A fi-^f flwrfwHAt estate or interest 
" te vested in the plaintiff £rfmMwd.Roi«w«ow, the infant, 
" ( Lancelots second son,) by virtue of the said will ?'* 

• This case was thrice argued: fst, in P. ^6 G. 2. on 
15th May 1753, by Mr. PrdU for the plaintiff, and Mr. 
Torfce for the defendant; again, in P.29 G. 2. on 14th 
Majf 1756, by Mr. Nortoh for the plaintiff, and Sir Antony 
Jbdy for the defendant ; and lastly, in M , 30 G. 2. on 23d 
November 1756, by Sir Richard Lloydioi the plaintiff, and 
Mr. Perrot for the defendant. 
Argument fcr For the plaintiff (Edmiiffd Robinson) it was iirged that' 
the plaintiff, the tcstator certainly metfnf to give an eslate-taii' to 'Mr. 
Lancelot Hicks and all his issue: and the i nTent ion • 
shall prevail where it matf. Ow. 29. Co^pw'scase. Cro» 
Jac. 448. King y. Rumbalt. Doe ex dimiss. Barnardy. Hea* 
son^ TV*. 28 tf . 2. JB. R. That the estate to Lancelot Hicks 
yf2is intended to bean estate tail ; but, at least, here is 
either an estate in^ee, or for life^ in his son*, the plaintiff. 

As to- the condition, **t6 take the name of Robinson*^ 
the estate mustyJr^/'vEST, before the condition can be 

This is a condition subsequent r as appear by Plottd. 
23* Cdlthirst v. Beiushin : and therefore has nothing to plo 
with the vesting of the estate. Cases in Chancery in Lord 
Talbofs time, 106. Sir John Robinson v. Comyns, *• No 
I " particular technical words are requisite to make either 

** precedent or subsequent condition." Anditwashot* 
r 40 1 den by the Lord Chancellor, in the case of Trafford Sf Vx^ 
V, Sir Ralph Jshton(iat, 2 Fern.66\. that this clause 
in a will," taking on him the name and arms of Vavasor ^^ 
was a condition ^t/ft^ejz/en^ to defeat the estate; and hot 
precedent. Therefore they should lay this condition out 
of the case. . ., .. , , . .. / 

And then the simple limitation will stand thus: it will 
be to Lancelot Hicks for. lite ; remainder to sueii sok ^s 
• he siuiU have^ lawfully^ ifc ; renminder (for de&ult cisHch 
issue) to the testator's, cousin William Robinson in fee*^ 
This id the simple limitation, puttings the condition subee^ 
q[ueiYt out of the case; 
firit point. And tbisis intended to be an. estate* tail in Jjancebti 

Hicks. '^ . i ... 

It may be objected^ that this caanot he an estete tail in 

Michaelmas Term, 30 G^o. 2. 41 

Lancehdi because here are no vords of limtathn ; for that 1756. 
the word "son" is a word of parc/uiie wo* oflimiiuihn^ eTcn ROBiN«aw 
if it was in the plural ; and that here " son*' is in the sin- ^^ 

5uiar number, (" and to such son as he shall have law- i^qbi^sqw. 
iilly begotten ;") which, it may be urged, cannot be con* 
sidered otherwise than as a word of purchase. 

Another obje<5tion may be raised, because it is limited 
to Lancelot Hicks himself for his Ufe, ** and ho hnger:** 
and therefore it may be urged that the court cannot raise 
an estate tail by intpHcation^ contrary to these negative 

But 1st, the word " sofC* must here be taken as a word 
of LIMITATION : becauso otherwise it would not be 
agreeable to the testator's manifest intention^ '* that the 
** issue of such son should have it afterwards, and that JfiU 
" Ham Robinson should not take, till the issue of Lancelot 
" Hicks should be all of them extinct." 

The change of name shews that the intention of the tes- 
tator extended to the whole fitmilif of the Hicks %. So do 
the words " lawfully to be begotten ;" which words pro- 
perly belong to estates tail. So, " for drfault of snch 

The words will bear this construction. They are, 
" To sMcAson as he shall have, lawfully to be begotten ;*' 
f. e. lawfully issuing from his body« 

" Soii' is here nomen collectiv um. Kutg v. MelUng 
is in point ; (a) and so is Bald's casethere cited (1 Fentr. ^ 

^i.) and many other cases there cited, (b) 

So that William Robinson was not to have it^ till 
Lancelot Hir/» should be dead without any issue, (c) 

Sdly, As to the words ** for life, and wo longer:^' there f 41 1 
had been no difficulty or impediment, if the latter words 
" and no longer^'' had not been added. 1 Ld. Raym,W3. 
Luiklington v. Kime. I Peere fVms, 605. Blackbom ▼. 
Hewer Edgeli^. 9 Co. 127. b. Sunday's csise. 

And yet they have really no force at all in them, be- , 

youd the former words : they are certainly tautologous, 
and have no additional eflect. An estate for life was 
given by the former words: and such an estate can last 
no longer than that life lasts; 

* {a} Not 90 exactly ; but very like in I Fent. 233. 
X^) ' it appears that this case of King v. Melting was 
much lelrad on in the argument of this case; but Ld. 
Rittfm^ t^ Sir» 804« in delivering the opinion of the 
court, said, that case appears to have been ruled with 
great difficalty ; and Hale himself was of two opinions^ 
but that it must now be taken to be law. 

49 Michaelmas Term, 9QGto.2. 

1 766: '^ Archers ease, 1 Rtp. 66* h. it was ruled tohewEkf^r 

ROBiMiON totofoi* life in Aofter^ iS^rcAtff ^ became it was an txfttn 

y^ estate for life, devised to him. But tautologjy does not 

R0BlKS01?.»^»^«J*'«9/=f*^''«»-. . ', 

♦Note- this ^ ^^' "^ B37, js in point, contrary to what «jy 

case^it cited'in Lord Ch. J. Bide is reported in 1 Ventris %3l, • in the case 
1 Ventr.2Si. as of King V. MtUing^ t6 have said. He there cites from 
J^^'^jJ^*J«^3'-«a//«839,{a8 that report says) the case of a devise" tp 
tnirtakcofthe " the testator's eldest sott for \\{e^ i^non aliter :^' (for 60« 
page i for it is^ says he, were the words, though not printed in the book ;) 
^^'yiniRo. "and after his decease, to the sons of his body." This, 
Estate. * ^^y^ ™y Ld. Ch.. J. Hale^ waa^ but an estate for life, Ay 

letter P. pn^ rtOS&H Of the WOrds •' irb N A LPT a«*" 

rs^c^^s ir* ^"^ ^^^ ^^"^ reason of the determination of that, case* 
«I2. pi. i3.'j' *** Rolk'sAbridgewunt^ appearsfrom what XertVis sayg in 
bis own argument of King v. Mellimg. ^ [Fl 52 jLso« 68^ 
59. 1 For Coleman, who argued " that Bernard took only 
'' for life/' had cited that case from RoUe as an authority 
on his side, Levint, contra, argued that Bernard took/ an 
estate taiL And in answering leases cited ag«m«thixn, 
he says , ** And as to the case 1 RoL it there appeared, 
** the devisor* $ intent was, that the father should be only 
** tenant for lifeit the estate tail to'the son i for that the 
** clause to restrain alienation is added only to the estate 
; *' of the5ow."S6 that if this was not a mistake oTthe repor- 
ter, it is, at the most, but an extrajudicial opinion of a 
single jadge, and not tfae point of the case then under 
consideration. Therefore that could not be the principle 
of law upon which that case was determined: it must 
have been a regard to the intention of the testator ; and 
i tfae particular words must have been considered as a key 

to that intention. And the same observation will hold 
with regard to the^ cases of Loddington v. Kime, Backhouse 
V. fVelUt Lomaxv. Homeden,Plunket v. Holmes, Bud Sham 
V. Weigh : and will serve to reconcile them. 

The true rule is, that where the issue cannot take an 

estate tail, without taking it through the father, the father 

[ 4S ] shall have an estate tail ; otherwise not. Archer's case, 

1 Rep. 66. Where the estate is given over. Cm. Elhu 

313. Clerk v. Day. 1 Ro. Abr. \2Q. letter U. pi 4. S. C • 

Backhouse y. tVelk, in Equity^ Cases Abr. 184. pi. 5t7. in 
Trin. 1 1 Ann. B. R. " devise to J. B. for Ks life okly, 
" without impeachment of waste/' J. K* was no^ mbakt 
to be tenant in tail. [See ForteHue's Reports 133. and 

Langley v. Baldwin is, in Equity Cases Abr. 186. p/. 2&; 
said to have been certified to be an estate for life only^ {a) 

\ ■ '■' ■ ■ ■ »' II I l b pi I I 

(a) It is not so said in either offitYft editions,' which are 
the 3d and 4th of Eq. C. Jb. but on the contrary it ia said 

IVIichaeliDas TenA, 30 Geo. 2- 43 

B^t tWs IB ainirtake : for it was certified [and so it ep- 1756. 
pears, as Lord Monoid said, by the regisjter's book J to roq;iw son 
be an estate taiU y^ 

However, the principle of that determination was, ^bobinson* 
pursue tive testator's intention : which was *' that it should 
*^ go to all the children of his grandson.^' 

Loddington v» Kimt, 3 Lev. 432. 1 Ld. Raym. 203* 
was an estate derised to the is$ye of the issue male. So 
no violence done to the intention^ by construing the first 
estate to be an estate for life. ^ 

Shaw V. Weigh, P. 1 G. 2. B. R. reversed in Dom* Proc. r 
and determined to be an estate tait. [See Modern Ca^a m 
Law and Equity, 252, 389. JFiV*-Gf6fton5,7. and Parliament 
Cases of Jpril 1 72a, and Fortescues Reports, 68.} 

Be the circumstances as they may, yet the testator [^ *«•♦» 2».i 
plainly means, not merely an estate for life to Lancelot 
Hicks ; but he also means to give an estate tail to the Hicks 
FAMILY. Therefore let the intention of a life-estate be 
ever so strong, yet the court will construe his plain and 
ciesiT intention for the ben^tofthe family, to prevail, 

2dly, But if it be not construed an estate taily but Second point. 
**^ti' be considered as a word of purchase ; then these ques- 
tions will arise ; 1st, Who shall be the taker? 2dly, At 
WttAT TIME? 3dly, What ESTATE? , 

1st, The present case was indeed uncertain at the crea» 
tion ; though rendered eertaint by the event. And per- 
haps it was not a vested remainder ; from the uncertainty 
who should take. 

• 2dly, But supposing it to Be a contineent remainder, yet 
the original uncertainty was removed within su^cient 
time* The limitation over seems to confine it to the time r 43 T 
of the father's death : and then the plaintiff Edmund was "• -* 

the ONLY son. And the contingent remainder vests time 
enough, if it vest then. 

3diy, It is a devise of all his real estate, except that stt 
Endellyon ; which alone will pass the fee-simple. 6 Mod. 
109. Countess of Bridgwater v. Duke of Bolton, 1 Ha/k. 
236. S. C. Scott V. Jlberrjf. Comyns 337,340. Ibhetsou 
V. Beckwithy reported by Mr, J^orrester, in his Cases in 
Equityypa. 157. 

And the exception shews that he did not mean the reU 
to goto his lieir at law. 

The te«fcator plainly meant it toheAfee: he would never 

6> have been cevtified^ and also decreed an astate-taii ; and 
there is a^ reason added there (as said by Lord Rajpnottd, 
■Ch) beeause the devise wa» not to all the sons*, but 
only to the j»itx>tih son^ and then a devise over if the father 
should die without issue male* 


Michaelmas Term, 30 Geo. 5. 

1756. oblige the devisee to part with his fiiinily-nai]f^e,-ani 
BOBiNsoiT ^kc hifl wtfwj^, only for an estate for /^. 

^^ Then be gives the perpetuity of all' presentations in the^ 

aoBiNSON. ^*if*®- '*>an^6'' as he had given his estate: which must 
mean a PEaptTuiTv in both ; and consequently proves 
him to have meant a pee in the land. 

Audthe limitation over proves the same, viz* " Tliat 
** f¥ilRamRobin»on'W9LS never to take, but on L. Hicks' s 
** dying WITHOUT is8UE."(tf ) However, if this was not a 
vdevise of a fee, it must then be an estate tai/. I F'entr. 2S5. 
ia^tdfl. Kingv. Melling. Moore, 397. pL 15. I Jnderson, 
^. No. 110. S. C. Bepidloe, 30. pi. IQ.A. S. C. 

But it is at least an estate jfbr life: otherwise, all this 

part of the will must be rejected. 

Aritamentfor The counsel for the defendant fVilltHm Robinsou made 

the defendant, two questions — First, what estate is devised to Lancelot 

Ilich, the father of the plaintiff ; tiz^ Whether for life, 

or in tail f. 

Secondly, If for life ; then whether the contingent re- 
mainder is to rest upon^A^ birth of a son, during the life 
of Lancekt Hicks the father; ( which, if it be so, has been 
satisfied by the birth of George Hicks the son ;) or whether 
it vested ON theDEAru of the father^ in his then eldest 
son ? (which then eldest son is the now plaintiff.) 
They laid out of the case — 

1st, The words of c'omlition annexed to the estate of 
the father; conceding that they were conditions subse- 
quent, to defeat the estate, and not precedent, to hinder 
it from vesting. 
r 44 1 ^dly, The «Ofi's taking the name : for they allowed that 
the construction of the word^, as to the son, must be the 
same as of those relating to the father. 
' But they considered as material — 

1st question. 1st, Whether the estate to Lancelot Hicks he an estate 
for life or in tail 9 Which they subdivided into two other 
questions ; viz. 
[2Brown,573.] First," Whether the Court can raise an estate tail 

(a) The words are, " and for default of such issue;" and 
'.therefore there is no ground in reason or authority to 
raise a larger estate by implication in L. H. than was 
bt'fore expressly and in negative terms devised to him"; 
the word such refers to the precedent devise to the son ; 
and the words for default of such issue^ are used only to 
connect the subsequent devises wjth those that are pre- 
cedent ; and foi authorities hereon, see Forfest. hffi^ 
a67. I Bulst. 163. I Wms. 603. So that this case though 
adjudged in B. R. and affirmed in jDom, Proc. seems not 
consistent witU former cases. ^ * '^ 

Michaelmas Term, 30 Geo. 9. 4s5 

** by iKBLiCiirXioiir, 0/ att^ in thu case; this being an 17^^. 
" EXPRESS estate for life, and even confirmed, by nMga- ko^i-msox 
" tixe words ?" \^ 

Secoodty, "Whether the Court can raise an estate tail upBiNSO^f. 
** by implication, upon EiTHtiR of these expreuiom : viz. 
** After his decease, to. «ucb son as be shall have;*' or, 
" and for default of $uch issue ?*' 

First— In the case of King v. Mellhig^hoTd Ch. Just. 
Hale was the first great judg^ who put the cases toge- 
ther to raise an estate tail b^ irmlicntion^ But succeeding 
judges differed from him: and in the case o{ Ludditigton 
y.Kime/vci 1 Ld. Raym. 90-1. Mr. Juat. Powell argued 
against Lord Utiles opinion ; Cb* Just Treby agreeing 
with Lord Ch. Just Hale. 

In I Peere fVms. 605* Bkckborn v. Hewer Edgely, tt 
e contra, X^rd Chancellor Paiktr explodes that opinion, 
'* that words oC implication should not turn an express 
'' estate for life into an estate tail :*' and says *' 'I'hat 
'* a devise to J. for life; and after bis death with- 
*' out issue; then to J3.» otV/ give an estate tail to jtf." Utt 
this construction would be directly contrary to the words 
of the testator« 

but the present case is within Lord Ch. JusL Hale's 
distinctions. He says that** no/i aliter* is sufficient to 
make it an estate for life only; viz. where the devise is, 
« to J. for life, Sf non alUerJ* 1 Venlr. Ml. 

In Backhouse v. Wells, Fortetcue differs from Lord Ra^ 
mond in the account of it; and lays stress upon the word 
" o«/y,'* as beine: explanatory and restrictive in a doubtful 
case, [See Backhouse v. Wells reported by Lucas^ fo. ISl. 
and Fortacue 181. and cited in 2 Ld. Raym. 1439, 40j 
And in Bagshaw v. Spencer, Lord Chancellor said it was 
determined upon the word" only,'* in that case of jB«c*- 
house v. Wells. 

In Banjfield v. Popham, 1 Peere Wms. 54, 55. Lord C^.^ 45 ] 
Just, Trevor reasons against Lord Ch. Just. Hale* So also 
doe^Mr. Just Powell, in the same case, /b. 57. -And 
surely nothing can be stronger than express words, vcith 
NEGATIVE 9II6I ADDED to them. And th^T shaHnoHje 
rejected ; according to 2 Bulstr. 116. Mirrill v. Nicholls; 
and 2 Peere Wms. 282. Barker v. Giles. Plnwdeti, 523. 

In^becaseiif Humphry v. Taylor, 5 th February 175?, 
the Court of Chancery held resulting trusts to be rebutted 
by negative words. 

. Gqodtkleexdimiss. Cross v. Wudhold, Mich. 19 G. 2. C. 
B^nr^ a devise to the testator's eldest son, ovhY for life, 
aocl in the case offaUure ofi^sue, St^. it shall descend and 
aometo.his (the testator's) male children, 4rc. And they 
f^ t^ to bi! an estate (or juifs only ; becaujiei being 
expressed to be given for life only, with negfltive:Vi0xAs, it 

46 Michaelmas Term, 30 Geo. ?. 

V 1756. ^^ul^ ^0^ ^ enlarged iy implication: and Lord Hale^iOpi* 
ROBfNsox °^^°» ^"^ ^'^^ ^^^^ ^'^ ^'"^ ^* Meltings and the detemina- 
^ tion in Backhouse v. fFe//i, were there relied on by the 

ROBINSON CourtofCoraraon Pleas. 

5d subdivision of the first point, vit. Whether the 
Court can raise an estate tail by implication, upon either 
of thtse expreisionSf viz. ** After his decease, to 'such $on 
^* as he shall have/' or, ** and for default of such issue?" 
And they argued that they could not. For, 
First the word " son'* must be taken as la word of pur- 
chase :*' and from and after his decease, to such Mif as 
" be shall have, lawfully to be begotten."" Son" is here a 
word of purchase; whether it be taken singular)y or col- 

/jf ONE son ONLY bc meant, then the words *• for de- 
*' faolt of such issue,'' refer to such son, taking an estate 
^ for life. And the word " son*^ is singular ; notcoUective, 

here. He might have used the tenna ** heir," ** heir male/* 
4v. I ^entr. S30. Barley's case, there cited ; where the 
remainder is limited to the next heir male. Miller v. Se- 
grave, M.IO G. \.B. R. cited in Robinson's Troaiiseof 
Gavelkind, 96^ The remainder was •* to the next hetr 
** male:" (which case was cited to shew the construction 
of the wottl *• heir" in the singular number.) 

In Trollop V. Trol/op, in C. 3. (F. Robinson on Gavel* 
kind, 96.) £^re argued against the opinion of Lord Coke in 
the case of Clerk v. Day, Moore, 693. (the best report of 
that case.) 
r 46 1 They cited 2 Fentr. 311. Burehcir. Durdant, only to 
*^ shew that no application can be made of those cases to 
the present. 

12d branch of this 2d subdivision, viz* as to the 
word " issue." 

This word, taken technicall^,^\s jndeed a word of ptir* 
chase. ^ 

' King V. Melling was the fifst case where it was holden to 
operate as a word of limitation in a will. 

The word '* cMliren" is less operative than the word 
** issue." Each of these rs a nomen collectieum: but ''son" 
is designatio persones ; unless other words explain it 1 Ro. 
Abr. 837. letter P. p/. 1^, 13. 
[Hut 41.] ^^ ^^ B'sfielfs case, mentioned only in Lord Ch. Just. 

Atffc^s argument in 1 )^ci/#r. 231. and in no other book — 
It comes the nearest to the present case, of any otl^r cited 
'^ on the part of the plaintiff. The word "sof*" was there hoi- 
deti to be nomen colleetivum. But there was no bxp&bss 
deVu?e to the son : it is a devise to J. : ** and if he dies, not 
" hatiftg a son, then to remain, S^c." Whereas h«fc the 
words are, *' to such son a» he «haH have, lawfaUy issuing 
••fhnn bis body/* 

Michaelmas Term, 30 Geo. 2. 47 

But if " son" be taken as a word.of purchase — it is asked 1756. 
VrtiAT son is meant ? And rrkai estate ? kobinbok 

Answer. It can mean but one son: The sons of y, 
Lancelot Hicks could not all take as tenants in tail, or as hqbinson. 
joint-tenants. In the case of Luddington v. Kime^ I JLd, 
Raym. 206. Lord Ch. Just. Treby is very express on this 
head, ** that if it had been the word sotiy it had been 
•* without controversy." 

2 Leon. 35. Leonard Lovelaces case, {Cro. Eliz^ 40. 
S. C. SnvUe, 75. S. C.1 and Moore^ 371. S. C. cited, is very 
strong to the same effect. Devise to A, and to his eldest 
issur male de corpore suo exeunti / (or " seniori exitui mas-^ 
** culo suOf* according to Moore :) it is only an estate for 
life' in A. remainder to his eldM son, Sec. for lifts. 

In Cane : In. another part of this very (present) case, 
on this very will, 17tb JprilllS^^ Sir Joseph JelyU held 
Lancelot Hicks to be entitled to an estate for life; re* 
mainder to his eldest (and but one) son for life ; remaiQ*- 
der to WilKam Robinson^ the devisee over. This cause 
was between the widow of the devisor, and Lancelot, 
the first devisee. And the deeds were brought into court ; T 47 1 
whereas they must have been delivered to Lamehtt if , 
he had been tenant in tail. In 1734, Lord Talbot^ on a re- 
bearing, was of the same opinion. And we cite it for 
their opinions only : we do not say that the present plain-*, 
tiffis bound by this decree. * 

Then if ovb scq onfy could take, it follows, of course,- 
that the words '^ and for default ai such issue" are re«' 
strained to such one son only. ' 

And as to the estate, it is only an estate for life, in that 
one son : for here are no words of limitation ^ at al). 

As to the arguments drawn from the advowsons, and the 
obligation to take the name of the testator.— The €^ 
x'ORwws are given for the benefit of any of Lancelot' 9 cbil-.. 
drenthat should go into orders: and then the testator- 
gives the perpetuity of them to Lancelot Hicks for his life j 
and afterwards, to svcAsonas he shall have lawfully issu-. 
ing from his body. Now itcan never be supposed that the 
testator meant to give Lancelot a fee m the land ; because 
he gives him the perpetuity of the livings. And IheJattcr 
devise shall be construed by and agreeable to the former : 
Consequently, neither did he meaD to give LanceMs sou 
a fee, because he gave him the perpetuity of the livings* 

Ab to taking the name^no case has been determined » 
on th(U point. And Lancelot Hicki is here enjoined to 
take the name of Robinson ; though the estate )b expressly/ 
given to him " for life, and no longer." ^ 

By Mr. S/iepkeard of Cambridgeshire s vf'iW, the name. 
otShepfieard is to be taken by the tenant yor ///e. TU« 
case of Ibbetson v. BeckwUh, reported in Mr, iorre^ar^s 
Vol. I. E 

48 " Mich»elDi»' Term, 9ft Geo, 9. 

1736.' eA«>,p. 157, "^9 a devise h> ttttatbrV wioHherfor life? 

ROBiNBOi? «fter which to his nephew Tho. Dod$ok,ir he tviH take 

V. his vmxe of BrckKtt^h; if not, taiy ^. LorfjCtf/to^ 

aoB«so». thought W*f alotte to be iooHtght a grouiid fiir a cbnstrtic- 

tlon '* that It shouW be a fete to Tko. Dadstin:^ 

I . > I« orfer to make itnn estate taily the exfU^ssibh<otig^t 

to be iuch ' as m\\ put it bg yon d tilt possibility qf thubl r 

^ according to the cases of Langlcy y. Baldmn^ SUiaa v. 

W\:/gA,a5d Bamjieldy. PopHann 

'lire case of Votihon v. ^da/som, 2fi/r. 112^, vrad hy 
ui»y d)f ussitXiKBEit ; not by giving the faiiher an estate 
tai!^, acKl is xhstitiguishtrble tVotn «i/^ those that hayebeea 

sLond ues- '^^ next question is, " when the remainder shall vest ?** 
tion (maJc by viz. Miethcf this comtingeiit remainder in the son is td vM 
the defcndnot'* u J)<m the birth of a son, d!6 ri rig tlife life <St Lancthi' Micks; 
wunscJ.) ^^ f^^ till ,^^ott or ojler th ^m fyf' LatmUt Ji&ib,<*be 
fartiw.) [f'^ aitfOvp. 43.]. 

*• After the decesse oi Lancelot fiicfa,- (fchefcWter) are 
tlie tv^rds of the \5fiH. Which "can suspend it iw^hmger 
thaa tilltije birikef hisTiRst «on: for, here are^iaw^rdd 
to lecri to a contrary d:e1«rfntnatn>n. ' 
' Ittnnst vest,' either b^lfe the immediate estate «cea^a> 
($t eo'ifitfitauletliiLt it does cease. Huttbn^ 119. Napperv* 
Sm^n. mkaik&yCriscs, 33. Sitckvil/e^. Ldtkwood. 

Smnburn,part 7. f. 11. proves, **thiitThp6Aviofid8 shall 
*^yioi rellrte to the time of flte toWI/orV ©bat4i ; feut to 
** the tin>e of making the wf//." And at that time tow- 
cefot Hicks had uo son ; nay, iiof even »at the time ♦of the 
iiUiiiifi^*s death, A contingent remainder must take effect 
s^ spofl as any, person is bora, who comes vrit^im th« 
di^scnption : it can remait) no longer contingent. I'liere* 
fore it hen vkstko by the birth of a son ; and was xncK 
<T*ttf'rMERtfBV sATisriED: the estate far life vested in 
hjtn,on his birth; and ceased with him, on bis death^;. 
^ th^'t^'ettt over to tlfe defendant /FiV/itfrn Ito^tnson,. 
the deviseci owr. 

, Indeed the ^(ftk might h^ve been bora bettveerf the 
iffi^tigtiie inland the death of the testator; ^dheve 
died W<^e the W&tator.Thmstaut v. PeifkSf o/*, 1 Strange 
1% Ahd 8o^ in the case of Lomax^. Hoimiden, ^J^uty 
1749»t>t'Cfl»r^.A son ^8 horn afnd died in tbe'life-trme^ 
the t^stKtdr* But li^re, the tesurtor ^ted before either o£ 
Ltn'citot Hicks's sorts was born. Here the elder brother 
fG^&v^tywsrs the tost who co»hi take, after the death of 

And as to the Int^mit&tr ctf the testator^lt is dut trf the 
pT^httitl^i^^r^t^Ttirv^flsio^ofii^t^at^ Ckmibr 
. Wl^urdlied 'hy 'Af^ir <3ortstricti<*n \^pou*tkis W^\,'miiMt 
itritini^^hehfH'off^, : 

istuere ewprU pf/i;»^V#p«. .• > i v. * 

Some wprda are words o^f pMrjcha^p : and may^liy c^xr- zompispff. 
wmst^we*^ \)% turned ioio vvprds pf limitation,; ©tiije;:^ |»^ , * '' 
^B^priMfacifp words of IJwUatipij; ^nd ;im', i"^ Wt - 
cii«M//i»cc«, bert<''*/J<5f i'^<? \vordspf pJU<:cb,a*e,. ijio words '^^ 49 ] 
" spn»cbiidvcn^.ia5Me, and beii,'* jn 1^ av^H^ wUercno son 
IS in being ^^ the tim^ of tbe4«vi^, ^^ nominu cotkctiva^ 
9ud su^pietjuJt (in t \Yill} U^ oreat^ a^ estate pt'ii^berU- 
ajoce. /,. . . ' 

XoWy il^r« Ans 4tfc^ ^rcums\<{i)^^ a« s^alt d^t^r|nj;if. 
the word " ^um"* to be, meue Iq tbi« wiU, pt word of /</^/r* 

Tbj5 CMse of Jiij^or v» So^r, 4l ^/ift, .is #ot l^w : I^ofj^ 
CW JustiKje i5<r/(p says, ** it is too nu?k/' t^ ^<w*fr. .J^^-l^ 

They agreed to tlje <»ae pf Trollop y, fYqUippf ^ iji^ 
worxls stand aingly there : but alleged tbie f^ (o b§> 
'' tbaj; tbe ^ktjs^ntxp^ of tJ^ (esti^^Q.r $(^ajii J^ if^e eofps 
** slruction of such firords» a^ may ^ fif^^v^fid^ sif/ifi' j^ 
" jvords of Wmjtotipftr^^r of purph^/' . 

And if this word ^Q*' P4S ^ j^ord ^ /<V^//tf ^fa?^« Ijae^ 
pW biodej» jtbis Xi'pa» beiq£ ai) ^M^faif? AM they 
insisted that this wp^ >k>. JJTikI tbey ^^ ^bat Ji^y^cb 
bese Wi9SAa[^P^ssar^ji9p>icatioo,yet;^6y i]^(k1qcI .iipt t<> 
relysif^f oajjts bei^g ^^i^ e3J^tertaiJ hy.\p^p^ixiijiS),pi : 
For Jbi^e is ^vej^ an £:i^ pb c^s 4<^^ to'/ 4^y;se^., 

lb tbe 4case of ^Aotti v. frieijA, the juieiif Jop ye^s^ p^n^. 
But the ii$ppiMr^f^ inietUmi " to ,giue,a^ €M¥i€ 442// !(o .tjie 
*' iasue/' avej^rul^ ip. Aod U^i^ ^^ thf hs^/c^^e, in po^ 

Ij» tJUe c;as^ of JXapkhot^ y. ffell^ it i^ qqt ^groed, . 
k7«icAof tbje two je.XjpressioDs t\j^ cp^t ^^e^il uppn : j?>; 
•* tvitho0^une4ffhment^^%ste ;' m " jEpr i|i^..«,alw^ life 
" onV 

TkejpefoBe th^x^pcluded tbfittb^ p^.-v^ktijTis ejrtiiled to 
HiO estate tail»iu thi^pD^scat^c^e. 

«2dly. The son must h^ ^mcA aso>j9 ^ c^ld ^^^^ 

TJbej^ aaid^ tb^y oever contend^ tU^t ti>e 9Ali|s should 
taVfi 96JpiQt-teAan^, ox in.cpo^mpii: They wer& 

Tii^ yiwiy *'^0ji".iD9y jbe \^i^^vl\^gfii iiil^ ''isM^.*' 
It does Dpi a^t ail i{pp^^ tb^ tUe tejitator dneunt I.atfce« 
Mit'iidd^ sg;Q, Aod4;iis tlde^ fm OfffA^ i On the contrary, 
i^9iiijttwi^m^?^»f^ t^ >be ^be ^fAsh^M^hB of jLaytc^ht, 

And ih^ cases cited by the other side dp not prove 
fetMif IKUOt. JPpr^> ^ i>9t. Jii. fAomr^ Liv^iac/s case, 
tbf weni ''^dl^kKT •W9i« ewpoosaty added .to the wprds ^ ^ 3 
**imu^f90ier W^i^^'>^ Ueiog tp^Aie ibtb^» and to bis 

60-51 Michaelmas Term^ 30 Geo. 9. 

■ 1756. " eldest issue male :") so that it was the same as •' eldest • 
Ho^jmoif "«>"•'" and it better answered the testator's purpose^ 
y^ that the children of this devisee should take as purchasers, 

ROBINSON* ^^ to thedetermination said to have been madie in 1733 
* and 1734, of this point, upon this same vHl, by Sir Joseph 
JehfU^ and Lord Chancellor Talbot; the widow of the 
testator there claimed paramount the will ; she brought 
a bill to establish her jointure : and there was indeed a 
cross t:ause. But non constat t zrbat Lancelot chimed ; nor 
does it appear how it was defended. However, it is 
plain, tba|t thepre^ent Lord Chancellor does not r^t satis- 
fied with these opinions: Because he has sent it hither 
. . for the opinion of this court 
' ; T\^ words, ** such son" must let in a// sons ; and can* 
not exclude ai^l sqm but th^ eldest. It was a contingent 
remainder, that the court will keep opea> till there is a 
necessity to determine it And there is no need to deter- 
mine it, (for there is no n.eed that the remainder should 
vest,) Ti JLL the dsaik of the tenant for life : then indeed it 
must Test, eo inUanie. 

InHutton^ 119. and in Chancery Cases, 33, it t^as an 
eUest son : whereas here it is not necessarily an originally 
eldest SOD ; but may be any other son, who becomes eldest 
before the contingent remainder rests. 

All the sons o{ Lancelot could not take, unless the 
father took first: 9, posthumous sort certainly could not 

As to the contingent remainder vesting — it is enough if 
it ^vested eo instanie that the particular estate determined* 
And as to the devise of the perpe/utVy of the advowsons, 
the latter devise is not to be construed by the former: 
byt botb the former and the latter words are to be taken 
logi/Aar, and a reasonable construction made upon them, 
agreeable to the general intention of the testator. 

Upon the whole^ this is an estate either iny^ie, or in 
tail ;■ or at lowest, for life. 

The JUDGES OP THIS COURT, ou the 1st of December 
1736, unanimously certified to the court of 
Chancery, in the words following : 
[2 Vfs. 186. ** We are of opinion, that, upon the true construction 
V "'h 26?' " ^ ^^ ®*'^ ^"* ^^ ^^^ testator George Robinson, the said 
Qul'saik. 29S. ** Lancelot tlicks must, by necessary implication, to e^- 
pi. 17. 14 Yin. ** tuate the manifest general intent of tne said testator, 
^'^- Pj-*-; •** construed to take an estate in tail male, he and 
jSBTbe(A.B. ** ^^ ^^^^ ^f ^^ ^^y taking the name of Robinson; 
Q.)i wms. ' *' NOTwiTHSTANDiKa the BXFRBSs estate devised to the 
^J **said Lancelot Hicks **{or his life and ko longbk.** 

C 51 ] 

,Note; The i^ourse faaa always been, for l;b6jAidg€# not 

to give any reasons in courts upon a case ^ent out of 

, Chancery fortbeix opi^tqnM llut tbe aVove^eer- 

Miqlmelmas Term, 30 Geo. 2. 6S 

tificate. seenid^^artfuny panned, tQ mark the grptinds *• t^jfll 
upon .wh}cb it was founded. robinsou 

The estate tall is said to vest in Jjone^lot Hich, ttie ' vl ' 
fiither. The manifest intent oF the testator^ ex- aoBiNSOx* 
pressed by bis will, was, that the estate sHbuId^ not 
go over to his heir at la», till ftjlore of issue paa^e 
of Lancelot Hkhr ' • . 

The difficulty w«b, how to vnould at) estate agreeable t0 
tkerulei of lam^ to effectuate -ther testators intent* 
and to construe his sehse and nveaning bto <^^ words' 
of limitation. 
If the father could have takefa an estate for tifey and the [vaugh. 264.3 
sons successively an estate in tall male, the whole 
intention of the testator would have been Jrt^^' an- 
swered ; for, by subh cortstructioii, aN the wordis Tti ' 
the will would have re<^eived their natural sense aind ' 
meaning, without rejecting My words, and none 
shouldJde rejected, unlesk the testator's intent cannot 
be otherwise attained. But th\t oonid not be, by 
law. An estate to* the heirs male of the body of 
Ijmcebft Hith, is intpKed, though an estate for life 
only is gitmn to him ; because the testator's heir was 
not to take, fi7//(2i7i/r/ of such 'heirs male. 'But by 
law the testator could, by no words, have ttiad^ 'the 
father tenant for life, and the heirs male of 'his body 
If he had devised " to the father for life, Yertiaindefto • 
" " the'son for life, remainder to the heirs male of the 
*' body of the father ;" Or, •* to the father for lift, re- 
** mainder to the son, and the heirs male ofthe body - 
*• of the father;" In either of these cases, tWe fairer 
must have taken an estate in tail male. The case put 
in LH. Sect. 30. and the determination mentiohen In 
Lord CoA:e'5 comment upontbat section, (fri pH. 2B. 6:)- 
on the gift " to Roberge and to the heirs of Joii^/iV/c 
" Maudevile, her late husband, on her body begotten," 
are no exception to this rule : For, in both cases, 
tht father was dead at the time of creating the 
entail. ' * . . 

It is said too, " That he must, by necessary inipHcatio^, 
*• to eff'ectuatiiXhe manifest general intent of the tes- 
* " taior, be construed to take an estate in tail male ;|^ &% J 
• ** NorwiTHSTAKDiNCr the rij^r^M estate devised to 

•* himj forf his life, and no longer.' - 
Tliose wordb seem int<Jftded to express the governing 

reason in this case, to have been the manifest main \ ' *' 

' iMei^tH%t «he festatm^'^cblfectea frdni alt the parts of 

^ %W Witt ikktn 'tdg^herV »/rtbttf shaking the autho- 

- ritlj^^BdMioinev. »W&;abdt>ther cases which have 

laid a stress upon the words ** only^^* *• not otherwise,** 

or lik§ expressions; after an estate for life together 

17AA #lth 6thtMli<i8e& ilttd eiffc«i»dttttc^ M fcvAurof 

'*nn.>«^ ^ the manifest intent «f h tt*litfef ^ td ititikfe tfce krtue or 
210BIN5CW n^j^'tofte 66 ft purchaser desigiled by a pewoBAl de- 

tf««f^iNSir •fcriptibn. (a) , , 

nvBinaov. ^y^ certificate ^hs x:6^r\mtd in Chllhceiy j Md a de- 

cttt ilaade a^cOfdingly; 

On appeal to the House of Lettfe frOttt thai ikcree, 
the opltiion of nil tfi^ jydges Iptras asked. 1% WAa dc*fv*red 
by LbfdCh. tafoh PflrAi^fc, wfth the feft«otie St large; 
ftnd they utitihimmisly agreed wJth the Abotre certificate, 
MOM the abov^ grounds suggested thereby. 

y^hereu pen the 4ecree w as affirmed, by the lords, oH the 
14th of Ft6nia7yi7 58.(6) 

(a) this seems to b« the true reason i In other cases, the 
main intentioOf.assoinetiiAes G^Ued,or the general or prin- 
cipal.intentlooi heth bedi preferned to an ijjtent pf an 
inferit>r natpre. iPeni^m. 3 Lev. Siht yez.^^i. 

(A) T'he cofistrwctiou of the court in this case does 
nppear to be the worst ib^i cif u)d be put on tlie will, 
and ia fee If ^ui4; for under i^retence pf support- 
ing ma implied general iotfpiion; it defeated the 
Whole Wiil^ by «jabling tke first devisee, pontrary to 
tb€ moM deterteimrd. inteation i>t a testator, a^nd de- 
clared in the strongest terms, by recovery to dispose of 
the estate t tbta.'suj^y waa sufficient to stigmatize this 
case, as there vraa no tacbnical term, that would have 
b^en violated by a contrary oonstruction* Where that is 
febe case, there may be good reason, for the sake of cer- 
tainty in property, to determine according to the settled 
legal operaitioa of technical terms, potv^ithstanding sur.b 
d4li|rroination be contrary to the intention. Tbe de- 
tennination in this case was against the legal opera- 
tSim as \k't\\ as the most express declaration of the 
•testator. If the principle on which the determination 
%vas fourKl^d, vijs. that« partUular wteniioa, ihgugh diclar^ 
' ed ever so sirortgiy, shall not prevail afauni a general in- 
\ tendon to be , inferredfrom the will, be right, and applicable 

to this case, theQ the son of the pieseut devisee ought to 
h4|iHe taken an estate to him and V/is heirs male of tba l>ody 
of bia ifithf^. But besides tbifs a rule of law and reason 
was ibis determinatiaOp wbich is.jtbaf the 
** testatoi^s heir at Uw aball pot'be disinheritod without 
*' <fispresa fiords, ora necessary implication/' Tb^rt have 
been opinions, that (|n iniplipation, though pot strictly 
necessary, if strong will be sui&cient : a^pa doubts have 
• ^ 4>8en» 4n«paaiicuiar .cases,, wb^erth^imi^patio^ ^ss or 

tiraa oot.aai^ciaatty.atromitOi^iMn^iri^ 
^ j-*< b«ksiliK^yabaeaapf^'t|»t^.aliS^^ not 

sufficient : but in the present case, there jf^.«^.i^^cation 
at all ; but express words to prevent any ^cn oeing raised 

Mi<;haeliiia$ Term', SO Geo. S« ^ 


The court declared a new order coocerniogijwittffcfmsfs r0«^^(w. 
in the paper; which lyas, in 6ubBtame« that all ^^* 

causes should come on to be ar^d, in the tame N^^ber 

• ' 1756. 
' ' •■■<■■- - - , ^ Cautet in tpe- 

to disinherit the heir of thereveriion in fee, in caws tjie orgL^e^'t?^ 
devisee should never have a son ; and yet the court dim* «««« on jn iq- 
ieritedthe heir by their judgment - suUr course. 

If it be objected that Landelot II(ch might hnre nwB 
by different wives; the sinswer is^ that it was a remote * 
^vent, which probably never occurred to the testator, ;lnd 
dierefore was no objection to the constmction. Tbem is 
also another ground, on which* a fee might kava (leeii 
construed to have passed to the son, whi<rfi is the sam«as 
oneof the reasons given by Lord Taibgi for passing a 
fee: for there the testator devised to bis mother, all 
hts estate at N. for her life, and to tprs nephew ^fter 
her death, if he would chauge bis naane to. Bedfmiik. 
And Lord Tatboi in F»rre$t. lOi. fadd tbal the wprd 
*^ estate*' carried a fee; and held (tfaat^tfae linitatjoa 
to the mother for life, in the first imtrntc^, */ whole thfll* 
** second limitation is general, couU Bake no ^ikum^t*^ 
See also ^ Sautid. 388. 

There may be cases where a testator hadtwo inten- 
tions^viz. **a geneimi, and a particular inteptin^a wiiiiand 
*' ttiat the latter must give way wben the formr «Mnot 
*^ otherwise be carried into exeoiitioop^' es etaseii^ bjr 

This case of Mobiif mm v. Uobinmn bath been und^d^rvr 
edl^ 9ieationed as one of those cases often, aod M |Nrt««M* 
br m the case abeve aieiitioiied in Et$tf$ Bjep* ; yH ^^epfie 
are several others mentioned, 8 X0fv$71»972* aP^'^lMi^ 
in 2 Wih. 23, 23, 75. In ib&t in 3 hat. it was ai«Md by 
coiineel,thatji deed sbai^potefMtte by wnyjeif u#f,)rben 
bytheeeofie of tbe deed^the iotent appeeirstobafe ii9(»^rate 
by tbe commoQ law. Now oertainly where, bgr ^4if^, it 
qipeara that the ialent was that the party akouU haiRe ik^ 
estate, it is a more weitby conaidevataon bow to tMk^ bit 
intent good, by passing the eatete, if by any mama r it /nay 
he done^lhaa by^eow^deriag Dbe memar of fiea3ifig it to 
defeat his iateet, ib the fimicspel, via« dse pamif tibt 
estate, then m ibe'anaMssrhfaMri it shall peas: ittd ao haf 
the lew bete ofean^taken, as a/Mii; and sog^ itW* 4(^iv 
7fa,7#7.i^«B^hiK:h easfia it apfieWi it»t ti» jttif ei 19 
ifctese. later tithes, have bad more considention of the 
"' subithnce,vi^'rtyepassing'oflfae estate, tfaanth^sbadow^ 
' vi^ tbe ntetaer of passing it^ end waaaftarwefds«4i^S^ 
accerf^fingly.' ' 


.i\ . 

53 Michaelmas Tenn» 30 Geo. i. 

1756* - order that they were entered ; and that they should 

B0Bt980ir continue to stand in the paper« in the same order, till 

v^ thw should be argued, (without beiqg entered anew :) 

ROBIKSOW. ^"^ ^^^^ °^ cause should be put off, without a special 

application to the court, upon some suifipent ground, 

before the day upon which it stood in the. paper 

for argument. 


in Srfif?rf JT '^ ^^y "^^ ^^ '^"**"» ^^ mention a general rule for 

mofft].] entitling all casesr arising upon orders of removal: 

the want of knowing, or the want of attending to which 

general rule, has been the occasion of infinite confusion 

' in tabling and citing cases of this sort 

The constant method of entering them in the rule-book^ 

is to name the king as protecutor ; and the parish loit 

charged with the paupers, and consequently appealing to 

this court, va defendanti* For instance — Two justices 

[ 53 2 rc^<>^'6 ^ pauper from A* to 6. and jB. appeals to ^ the 

sessions. If the sessions confirm the order, and B. brings 

the certiorari^ the rule thereupon is entitl^ '* Rex versus 

'* inhatitantes de B. ;" but if the sessions discharge the 

^ original order, and consequently A. remains chargM with 

.the pauper, and brings acer/torart to remove the orders, 

tlien the rule bears for its title, ^* Rex versus Inhahitarttes 


This case of Robinson v. Robinson was determined con- 
trary to two principles. — 1st. That no implication shall 
be raised against express words (though this principle was 
long exploded before this case)— ^ly. The power of suf- 
fering a recovery has been considered as affording an ar- 
gument against estates tail, where it would plainly de- 
stroy the whole of the intention, except where technical 
words are used, which necessarily compel the court to 
take them in the technical sense. 

But to make the principle apply, the power of a reco- 
very by the first taker is not to be presumed: and it is aa 
mentioned in Roe v. Grew, Wilmoi,. 278, 270. and the 
same is menta<Mied in several other cases; and yet in some 
the contrar^ris mentioned by the courts Aa Id the •bcnre 
principle) ▼ide 2 Fonb. 58, dSL . « -i . 

N. B. Irbis case has* been often approved by Lord £^* 
fohptmd yecy. strongly, aa-^bove mentioned, so 4a(eaa? in 
1 Easf4Rep. S35^; and there tooy he seems to bavb fully set>4 
tied the case as ftr.'ts possible. 'Doe'ettdem.&f*6oeki - 
alias Hopkimv. Qwper, HU. 2\ 41 Otoi 3^ Easi'i'Mefrf UQ9i / 

Mich^toas Tefta, SO 0eo. ^. df 

[Mr. Justice Wttmot "wais nbsent; mtting m Chancery ^^ 
as one of ^e commisiioners of the great seal.Q ch AFF£t 

See this case a^ridged^iia the Table; and at targe in the ^^^ others. 
quarto edition of my Settlement' Cases, No. 131. Mondty, 99Ui 

p. 412. Nof. 17M. 

Farewell, Esq. versus CsAF^sr aI^d others* L ^4 j 

THIS cause was tried upon tb^^liriMtem circuit, the iaist A sew trial not 
summer assizes, befere Mr. Serjeant fVilies. whoj^ *^,»"°J;.^ 
certified *' that the weight of the etideni:e was tf^mViir the g^o^po. 
*' verdict*' But a nem trial wasd(hiied^ upbn the Mture •mhm. 
of the action, the vafue of the matter in dispute, and 
other circumstances of the case.t ' if-V. Aiitt,p. i i' 

LorAMansfiflds^idi A hew trial ought to be grant- nJii^J'^^i 
ed, to atuin real jusf^ce; hutmt^ to gratify litigious i4st|M. 664. 
passions, upon every p<ntX't>f skmmumjas; and cited Dr. Bortoa ▼. 
Smith V. Bramston, and Smith t. FramptoH in 2 Salk. 644 \ ]?SJ°^\^* 
and an anonymous case there also mentioned, of P. 8 W. [2 Ves.*664. 
3. B. B. and likewise Smith v. Pi^, M. 8 tV. ^. B. Ji. i Bm. 339. n.] 
ibidem; also Direrfy y. /^ OiieA^ of Minariae, H^ 
%W. 3. B. IL%Salk. 646. and J^rAk ^. ^m^r, H. 
10 ^. 3. B. R. in the same book, pa. 648. To whi«h 
may be added, what is said by the court, in the case of 
Dunkly v. Wade. P. 5 Jnn. ^ Salk. 633. " 

In these cases, the verdicts wcreagaiaat c9»idenoe and 
the strict rule of law, or obtained- tbfougb surprise: but 
the court would not give a second chaoK of suooeas to^a 
hardaetit^n^ or Vintmcomeionabledrfence. 

Therefore the court, upon the same prindpkst teAised * 
to grant a new trial in the present caae^ aim dincbaifed 
the rule to shew cause why there should not be ooe^ ^ 

Rex versus JosEPii Smith. 

4 N indictment for a nuisance had been removed, by S^^""b- 
-^^ ^certiorari, from the quarter-sessrans in Dmomshire, 4ict*ieot fnm 
into this court, bv the defendant : which tndhUnaem was *?"*<^> >^ 
afterwaids triedraod the defendant was found' g^ly.^'j;^^^^^^^ 
He thms moved in arrest of judgment: but his obfwtioiiScdMtftopiiiie- 
werc over-ruled. A fter w hich, 4he prosecutor iMived tor fi»^«ft« 
biscoata4 and obtained a rule* to.sbew oaMse. Andn^w'^'^''*^^ 
Mr. Ser>BaBt Hewitt, on behalf of the dofendant, shre\ired (^;/'^r^^* 
Gause^'^<> why the protatutor should not have bis coets;^ be« 9i8,«67. sded* 
** fora^lhe recognizance should be discbai{|ed; andiwhy ^tDonu 
" it sbouldnot'b^ ieferredJU) (me, la taxsydi coa(B«? ^''-l 

His cause was this. That no name of any person as he* 
u^ either the party grieved or injured, or % public civil 
<^er, is in DOMED upon the indictment, according to 

55^56 Mkhaetmas T^rm, SO Geo. 3. 

1756. *^® directions of 5 & 6 IT. 4r Af. r. 11. § S Jjr'S. And he 

ftRx' sirgued that o^tY/iou^ such indorsemenTj^ po costs were 

T. payable to the proseeu tors. ^ 

SMITH. ' ^^' Btmey contraj for the pfosecutor, acknowledged 

that there was no name indorsed : but, at the sanae time, 

insisted that an indorsebient of the name ofthepro- 

secutor, as being the party grieved or injured, or a civil 

officer,' is not at all necessary ^ in order to the court's giving 

him costs ; though the second section does indeed direct 

the recognizance to be certified into this court, with^tb^ 

certiorari and indictment* and the name of the prosecutor 

£Bal. 191.J (if he be the party grieved or iiyured) or some public 

officer to be indorsed on the back of the indictment 

He said he had an ArriD^viT ** that the prosecutor 
** was a civil officer, 4rc." And the words of the Sd sec- 
tion of the act "are thattf Ae bp so, the recognizance 
•' shall not be discharged, ^7/ the costs shall be paid " 
But the act does not say " That the prosecutor shall not 
**- have his costSjunfesshis name be ikdorseb." 
, Lord Maksfield : It is enough if it be proved " that 
*• thQ prosecutor was a civil officer, Bfc.^ And here it is 

S roved, by affidavit: which is sufficient, 
bule macle absolute for the prosecutor's having bis costs, 
(to be taxed by the ut supra) before the recognizance 
should be discharged. 

StfAOVBitt, Esq. vers. Akosl, Esq. 

oeciarai'ioii de fTIHIS was a loDg Utigation coDcemiiig the regularity ef 

b^'deii^^rSYt a judgment ; which on Mr. Naress motion (ex puHd 

thtt return of i^ ) bad been leferred to the master, wbo thought it 

s V theprocaif. irregular: and DOW Mr. AToftoii (r^fiar^«9afrr\) app^od 

oidS^ed 34^' *^ *"® i:wxxt from the master's opioiou. 

The question, depended upon the meaning of a rule of 
this court, made Jl. iOGea. 9. 1TS6. and upon the prac- 
taee of the ooujrt» pursnaot to that rule. 

The import of this rule was, that upon procesa netum- 
aUe,thetiflitorfieoMd retiim ofateno» a plaintiff majr 
(in oertaiQ ctaes) deKrcr a declarati<Hi de be^e em. ti the 
reitum eS the process*, wUk hoticb ^ for the defeodiftt 
*' to pkad mxVBomtight dags after delivery of the detiftiAr 
r 56 1 *' ^ion :'* And if the difcadant shaU uot fUe commM b«U 
^ aad Dlead vitbis such eight days after, Ac the plain- 

tiff jfiaiviaf fifit liiod commoii bail for iueh ddendsat 
aooordkng to tke then Jate act iot prevntinfiriTolovs ipqA 
vexateM ancslc) saw aign ^gmekit ior want of a pfea, 
a rule to pkKi haaf fhtiy entenad* 

The iteseut^bct W9s^: that tilt j^rofitm vm, tetemaWe 
on Sgi^dof, iMh fiaoemh^ {^ Bitidsk^ ekkiim vOhit 
term.) The declaration *' to! plead m d^ht days,^* was 

Miofiaeliiits TVrm, M Geo. 2. - J7 

ttrt in the office on M<mdmf. tbe 24th of IfotetiAer: jy^ 

And upon the defendant's not pleading; within the eight ^jj/u*,*!* ♦ 

days, nor evert before the time of si^ng the judgment ; 

the plainti A*^n the 3d of January, {itx weeks afterwards,) . j.-,!* 

filed common bail for the defendant, and (a rule to plei^ 

having been duly entered) signed judgment upon ^Ae same 


The master, Mr. Clarke^ thought this to be irregular; 
For ttiat when the defendant was once in court, the plain- 
tiflT ought to proceed against him a^ being in court: by 
which expression he seemed to mean^ either that the plain* 
tifl^dhould deliver a declaration ^r<^iA; orth^the should ^ 
give SL fresh rule to plead. % 

And Mr. Nares {in support of the maste/s opitiion) 
urged that when the eigbtdays {tbe timaibr pleading) are 
out, the de befie rue declaration is at an eod : and he men- 
tioned a case of UewtUin v. Skyrfn, as hi point* 

But Mr. Norton denied this; and i^afd that the eight 
days were not out; but the declsrathn) dcbtneessey^^M 
delivered wiMin time (though not indeed till the <Hh day ;) 
because there vtere tuo Sundays iticltided, viz. Ittth and 
23d of Not?. And that the pfaintiff might hare signed 
his judgment on Tuesday the 53th. 

Master Clarke was, at first, inclitied to think ttiAt the 
Sunday was no excuse; and that this was not a eufficient 
reason to allow the plaintiff time ttU the dth day, for 
ddivering the declaration de bene em. But all the of- 
ficers thought otherwise; and the c6urt seemed to think 
so too: whereupon Master Ctarke seemed toj^ethat 
point up. 

The couftT were of opinion that the jtt<lgment waa 

Lord Mansfield i^ras clear, that no further notice Jbe- 
Bides thit giveo on delivering the declaration de bene eaue) 
was necessary. 

Mr. Just. Denistm said the defendant hid eight darys 
AfTsa the delivery of tbe declaration de beneesse^ tshenetet 
it^may delivered (either sooner or later.) 

Add ttis was lefl in the Mce, (which he held to he a r 57 T 
good AelweryJ pu the 54th, which was vnthin time; ^ ^ 

and the ide/endant did not plead within ei^ht d«y«; 
whereupon, the ptaintifr files common bail for nim,npon 
the 3d Af January; and signs judgment the same dtv : 
which ,18 TCguUr f, for tbe rule is compKei with^ and ine 
defendant U ^6t n^\ bun ; on the contrary, he has had 
linger time than be WM entitled to. 
Mr. Just Foster. , Tlie tvh<4le objection xs *• that ihe 

meat ontbeiSatA Qi JStrtMtxr. me aetenoani vxgoK. 
h^Ve^ed^ comiBon^bail for himdf^il he had thought 


Michaelmas Term, 30 Geo. 2.' 

. 174& proper: and tben he might have had a fresh rule to 

SH A DWELL P'®*"* 

Y By the court unanimously* the rule of reference to 

ANGEL. Master Clarke^ for irregularity in this judgment, was dis- 
charged.(a) ' 




The new lord chief justice* at his first setting out, in- 
stituted a different method of going through the motions 
at the bar, from that which had been usually (and indeed 
almost universally) practised heretofore: which new 
method was not only advantageous to the younger part 
of the barristers, but also exceedingly convenient to the 

(a) By rule of court, Trin. 1 Geo, 2. where process is 
served upon, and common bail filed for, the defendant, 

J)ur8uant to 12 Geo. 1. c. 29. the plaintiff's attorney shall 
aave a copy of the declaration in the office, and likeitise 
Hetiver notice thereof to the defendant, or leave the same 
at his house: in which notice shall be expressed the nature 
of the action, and at whose suit, and the time limited by 
the rules of the court for pleading ; and if the dtfehdstnt 
do not plead by the time, judgment shall be entered 
without any other or further calling for a plea ; and from 
the time of such notice, the declaration shall be deemed 
well delivered and not otherwise. 

By another rule, Trin. 5 4r 6 Geo. 2. if the process be 
returnable the first or second return of any term where 
the plaintiff declares in London or Middlesex, and the de- 
fendant lives within twenty miles of London, the decla- 
ration shall be delivered with notice to plead within four 
days ; and in case the plaintiff declares in any other county^ 
or the defendant lives above twenty miles from London, 
with notice to plead within eight days, and in default of 
pleading, the plaintiff may sign his judgment. 

By another rule, Mic. 10 Ueo. 2. on all process return- 
able the first or second return of any term where no affi- 
davit shall be made and filed, pursuant to the act for pre- 
venting frivolous and vexatious arrests, the plaintiff may 
deliver the declaration de bene es$e at the return of such 

})rocess, with notice to plead in eight days; and if the de- 
endant doth not file common bail and plead within the 
said eight days, the plaintiff having filed common bail, 
according to the statute, may sign judgment for want of 
a plea, a rule to plead being duly enter^. 

Qfiff re. Therefore if this case ought not to have beep 
^[ovemed by the first of the above rules? and if so^ the 
judgment was irregular for want of notice. 

Michaelmas Term, 30 Geo. 2. 53 

suitois, as it took away that delay to businesa which 1755 
arose yrom the unreasonable preference hitherto given gu^^^J, , 
to gentlemen within the bar. For, the repeated pre- ^ 
audience, hitherto allowed them, had thrown almost the . ^q., 
whole business into their hands: which, as the barristers 
were entitled to move only once in a day, could not al- 
ways be sufficiently dispatched in one day. 

The course had been, ever since I remember, and was 
in Lord Ch. Just Uolt*^ time, (as the late Mr. Justice 
Page has often told me,) *' to Bsaiir every day, with 
" the senior counsel within the bar, and then to call to 
" the next senior, in order, and so on, as long as it was 
" convenient to the court to sit; and to proceed again 
" in the same manner, upon the neat, and evbsy iubte" 
*' quatt day ; although the bar had not been half, or 
^ perhaps a quaner gone through, upon any one of the 
** former days: so that the juniors were very often 
'' obliged to attend in vain, without being able to bring 
" on their motions, for many successive <uys." 

This was the settled and general rule : though perhaps 
the judges, out of mere compassion to the juniors, would, 
two or three times in a term, give them leave to move, f 58 1 
upon the next day, such motions as were real remanets \ 
of the former day. 

Whereas Lord Mansfield professed and most punctually 
practised the going quite thaouou the bar, even to 
the youngest counsel, before he would begin again with 
the seniors, even though it should happen to take up 
two or three or more days, before all the motions which 
were ready at the bar upon the first day, could be heaid. 

The end oi Michaelmas Term, 30 Geo. e. 1756. 

^ -, 

t ^9 3 HILARY TERM, 

^ so G^O. IT. B. R. nS7. 
{Lord. Commimoner WUmoiatuvd^m ChancffyO 

UfBf m i l wiiifijj % 

MAIDMA.N. nf^WIK «» «»▼« bjr a jmdge't »4eiP to ^€»d: <»/«• 
MODday, 24th •*- uwtil two dey» befoi« the c«9oig9^ dny of iJHs pre- 
j«ii. 1757. .«B( tonk.*;) 8»i3be mial terM, "^ of ple»df«ff muM^cr 
der^Mis-^ Thisofdcr'v^enotMtauiedUU tiftertlijefi 
•omUe pte^. for pleadinf ^vas expinad. Bfttmt* /^ <iem, l«iA iM^Am 
[s«e 1 Hen. ,|||e iaiie aUofired by l)he judgieV order, tbe defcHdant 
Black. a<aj yte^decia pleaof tmdtr\ vbidi piea^as^ entitled <00 it 
^agreed tbat k regriadj mi^tj as of the pncttkng 

Mr. Asptnall moved» ex /^//r^^ ^rier*, to set em40 tfaj^ 
fin, wilsk icorts, at hmppoiar; aadibi'Iea^tx>«igiihidg-- 
nflBt: and he cited 1 Bmma^ %4&. DttenenkiU v. Burrits 

Jttr*#9Sa«fn»di^. shewed Muoe: ««r. that it was a 
jSiiribbiiaitf fw, mijU o«i» aatwne ; and that it was maUn 
Haw, sat iMdag after impaiteace , but as .of ikt i^^n 
term ; aud also that it vfzs an issuable pfea, within the 
meaning of the judge's order: though he acknowledged 
that a plea in abatement^ (though in strictness indeed 
issuable,) Woufd not be so ; because it delay the 

TfaacpiuiT.canourced enUreJy .in what VU. Winn bad 
urged in support of the regularity of the plea; and 
the motion was denied, (a) 

(a) It does not appear what the action in as : if it was 
assumpsit it seems that tender ought to have been pleaded, 
with touU temps prist, which is inconsistent with the 
order for time ; and according to Strange/iSS, the money 
ought to be paid into court, or else it is no plea ; and tbe 
plaintiff may sign judi^ment on a certificate that no mo- 
ney was paid in ; but the authority of that case appears 
by the N. B. there to be dodblful: but without relying on 
that, tbe law seems to have been generally holden that a 
plea of tender after an imparlance is bad, 5 Comyns, 227. 


Hilary Teiw, 30 Geo. 2. 60 


Taylob, tx tltmiss. Ati:yns» Esq. 4vr<. HoftDfi» Esq. 1757, 

&^« TATJLI^tt 

IN ejectment brought in Michaelmas terai 1753^ by y^ 
John Aiki/ns, e»q. (in the oame of Cj/prian T^ijflor) hojJ^jj^ 
against lio6c»f Jiikyns, esq. the heir at law< and otbera;^^^^ ^^ 
upon the general issue pleaded, and issue joined thereon j^q. 1757. 
and tried at the bar of this court, the jury find a special Tbeiimiutioo 
Terdict : which was, in substance, as^Uow*. viruuTor**^ 

That Sir Uobert Athfm the elder, knight of tbe Baih^^^^ mutt be 
on 8tb June 16(>9, was (amongst divers other messuages, strictly pur- 
lands, tenements^ &a in £Wewiiwl«w*tr«,) seised inftjeof *°^t^^^*^; 
the manor of Lower Swell and the other premises in ques- q^, 689. 
tion; and, being so seised, made and executed three Uerne^ii^iso. 
several indentures, (which are set out in the special ver- ^^ mTalb. 
diet:] one of which is dated on the llth and the two 
others on the 1 2th of June 1 6G9. 

By one of these indentures^ which was dated on the ^aq!) 1 Dqtu. 
13th of June 1669, (which the counsel on both sides, &r 707. and But- 
distinciion's sake, called the lener deed,) nade between ler's nous on 
Silt Edward Jtkms, kntoneof the barons of tlie^xche.^-^^);^ 
• quefySirJRo&er^^^V^fl^i^ightoftheJSfliA, solicitor ^a^a^ 
val to the queen, and son and heir appacent of the said 
Sir E^ardf and dame iViary (wife ot the said Sir JUbef^ 
Jtkym^ of the one part; and Sir Edward CarteMt^ktSt. 
and Ja&»^ozE2«, .gentleman, of the other part ; it is mi«neaa- 
ed t1iat in consideration of a marriage tb^ntc^Fe ^kfttl 
and solemnized between the said Sir Roberi Jdk^ ^nd 
dame Mary his wii'e» anxi of her releau^g and ac^nkHftg 
aJornurJ(nature to bsr made before man-iage, and ^ a 
D^m^roxi^'oA to he had and made for her the aaid dome 
Maty 9 for and in the nature of a Jointure, in bar and 
recompence of herdower and thirds at the common law, 
in case she should ba,ppen to survive and ov^*lii^<e 'the 
said Sir Hoberi Atkins her hu«baiid, l^ethe said Sir Robert 
^/Aynsdid tliereby covenant and grant to -and. with*the 
said Sir Edwftrd Carteret and John Loflw, that he the 
said Sir Edward Atkyn^ and the said Sir Robert Mb^fnB 

And though ^Mod. 69, is there referred to for an admission 
tbatit WAS jgboA to«<bond though in Qombeilcase^ yjsl 
the ceason of it there is becaufie it is Ix>a9ve:tbcrtpenait)r.; 
which drepsou does not now ^ub^ist, «ince 1^ ^ti» sta- 
tute a oourt of law wiil-relrieve the defendant onpay^ 
ipeiYtof principa^aiid inteveet^ and thereforedfufaat^fveK 
law beifiore» yet ctfi«frrite./atiofteilrc.itia«at«onui)ur; aiidafai 
.tandar i^.not ipieadoble. after impanhoioei thditi ta tfan 
« 9A^^ reas^fWlQ^ k should >^nat, •after Bn order. iforiftme : 
yrhicli wfii^jthe'reason gi«ven by the<cM>iirt!fof otjtjalkMmig 
;it ip iSa^nrn^^AQ. «tted by M:r.ubpimaUt^mfmnikf^ 
^soiong tine gi¥en esin th]S<;aae. 

61 Hilary Tenn, 30 Geo. 2. 

\TSJ. and dame Mary his wife, should and would, before the 
TAYLOR ^^^ ^^ Michaelmas term then next ensuing, levy and ac« 
V. knowledge before the justices of the court of Common 

HORDE. Pl^s at Westminster^ one or more fine or fines sur conii- 
sance de droit come ceo^ ^. unto the said Sir Edward Car^ 
teret and John Lowe^ with proclamations, of the said 
manor of Lower SdoeU and the other premises in question : 
which said fine or fines so as aforesaid or in any other 
sort to be had, levied, and executed of th6 said manor 
' and premises alone, or together v^^ith any other lands,' 

tenements or hereditaments, by or between the par- 
ties to the said indenture or any of them, alone or 
r 61 1 together with any other person or persons, were to be 
and enure, and were thereby declared to be and enure, as 
to the said manor and all other the premised, to the use 
of the said Sir Robert Atkyns for life, without impeach- 
ment of waste; and from and after his decease, to the 
use of the said dame Mary ior life, for her jointure and in 
bar of her dower ; and from and after the decease of the 
said Sir Rofrrr^ and dame Mory, to the use of Sir Robert 
Ath/nSf knt. son and heir apparent of the said Sir Robert^ 
and the heirs molt of the body of the said Sir Robert the 
son, on the body of Lovis Carteret his intended wife law- 
fully to be begotten ; and for default of such issue, to 
the use of the right heirs of the said Sir Robert the 
J?rfAer for ever. 

And the said Sir Edward Jtkyns and Sir Robert the 
fetherdid by this deed covenant with the said Sir Edward 
Carteret and John Lowe and their heirs, that in case any 
defect should happen in the said fine and that assurance^ 
or in case there should not be some good conveyance in 
the law made according to the intent of that indenture, 
so that by reason of such defect or failure of such convey- 
ance and assurance in law, the said manor and premises 
or any part or parcel of them should not, before the thir- 
tieth day of tfovember then next enduing, be sufficiently 
conveyed according to the intent of the said indenture^ 
V -then they the said Sir Edward Carteret and John Lomc^ 
and their heirs^and all and every other person and persons 
and their heirs, standing orbeing seised, or which should 
stand or be seised of and in the said manor and premises, 
. should and would from time to time and at all times from 
thenceforth for ever stand and be seised of and in the 
said manor and premises, or so much and suph part and 
' parts thereof whereof or concerning which any such defect 
\ flhouldhappentobe, to the uses, behoofs, intents and pur- 

poses therein before declared, limited and contained, ac- 
cording to the trueintent and meaning of the said inden- 
ture, and to none other use^ intent or purpose whatsoever. 
One other of these three indentures was a lease^ dat«i 
11th June 1669 - and the remaining one was a release. 

Hilary Tenn, 30 Geo. 2. 69 

dated l«th June 1569. This rtlease bore the very same 1757. 
4ai€W\t\\ the deed already recited (called the lesser deed :) tavlok 
and the counsel on both sides agreed in callinc: this deed v^ 
o/*rr&ir50 (for distinction's sake) the grw/^r deed, as this hou ofi, 
contained the settlement of the whole estate. 

By these indentures of lease and release, dated 1 1th andi 
13th Janie 166^, the release being tripartite, and made 
between the said Sir Edward Jihyns, tlie said Sir RoOert 
the father and dame Mary his wife, Philip Sieppard^esq. 
Sir Clement Earnham, knt and Edward Mkym^ esq. 
second son of the said ^\x Edward Jtkym^) of the first [" 53 1 
part; the right honourable Sir George Carteret^ kut and ^ -* 

bart vice-chumberlain of his majesty's household, and 
one of b^s majesty's most honourable privy council, the 
faidSir Edward Carteret and the said John Lowe, the 
right honourable Edward Montagu^ commonly called 
Lord Uinehinbrooke (son and heir apparent of the right 
honourable the Earl of Satfdwichy) Sir Philip Carteret^ knt. 
<son and heir apparent of the said Sir Geofge Carteret,) 
and Edward Swifts esq. of the second p^rt ; and the said 
Sir Aoifter/ jitkyns^ knt (the son and heir apparent of the ^ 

said Sir Robert AtkynSy) and Lovis Carteret (one of the 
daughters of the said Sir George Carteret and of dame 
Elizabeth bis wife,) of the third part ; it is witnessed that 
in consideration ofa marriage then tof ore had and solem- 
nized between the said Sir Robert Jtkyns the father and 
dame Mary his wife, and also of a marriage tlien shortly 
to be had and solemnized between the said Sir Ro'eri 
Atlyns the son and the said Lovis Carteret^ and of the 
sum of (ibOCA^paid to Sir Robert thefalker by the said 
Sir Gcoi^cCarr^ref, for the marriage portion of the said 
Lotdt Carteret » and of 5s. a-piece to the said Sir Edward 
Atfym^Sir Robert Jtkym the father, Philip Sheppard^ 
Sir Clement Famham, and Edward Atkyns^ paid by the 
said Sir Edward Carteret and John Lowfy and for a provi- 
sion to be had and made to and for the utid dame Marjf 
(wife of the said Sir Robert Atkym the father,) for and 
in the nature othjointure in bar and recompencc of her 
dower and thirds at the common law ; and also for a pro- 
vision for the said Lovis Carteret, for and in nature of « 
Jointure, in bar and recompence of her dower and thirds 
at the common law ; and for settling all the manors^ 
lands, tenements, and hereditaments therein after men- 
tioned, to the several and respective uses, upon the trusts, 
to the inteutsand purposes, and with, under nnd subject 
to the provisoes, declmtions, limitations and agreements 
therein after declared ; the said Sir Edward At kyiis and 
Sir tMert the father did grant, release and confirm 
tmto the said Sir Edward Carteret and J^hn Lowe and 
their heirs, the said manor of Swell and other the pre^ 
Vol. L F 

63 Hilary Term, 30 Geo. 2. 

1757' mises u) question (as describe^ in the lesser deed J and 

TAYLOR several other manors, lands, and beredjtainents therein 

y. inentionedy to hold the said manor o£ Swell and other 

HORDE, ^he premises in question, to the said Sir Edward Carte^ 

ret and John L(>re and their heirs^ to the several uses 

therein mentioned; which uses, (as to the said maiM>r 

of Stcell and other. the premisses in question^) are tbe same 

as those before set forth in the lesser deed ; viz* . 

To the use of Sir Robert the father, for life, without* 
impeachment of waste ; 
r 63 "I Remainder, as to the said premises (except timber- 
-* trees,) to dame Marif for life, for her jointure, aud in bar 
of dower; 

Remainder to Sir Robert ihe son, and the heirs male of 
his body by the said Lovis Carteret ; 

Remainder to the right beiJ-s of Sir Robert the father 

And several other parts of the estates were limited • 
thereby, to Sir Robert the son, for life ; remainder t<>:the 
trustees, to preserve coDtiogeut remainderst;,, remainder 
to the said Lorw C^r^^reMbr life, for her jointure atyit in- 
bar of dower: and upon the.issvieof the said ipte^dtd- 
marriage, in strict settlement. . , | » 

In which indenture of release is contained a provispy 
in the following words — . , . ' j 

" Provided always that it shall and maybe lawfuivto 
" and for the- said Sir Robert Atkyn$ the father, tbes^d 
** Sir Ro6e;t^/Ayw* the son, and the said Xovts Cartet^t,- 
** respectively, \w hen they are or shall be respectively 
* •* seised in possession of the freehold of such of the pre- 

*' mises as by virtue of and according to (he Umitationt 
" aforesaid are respectively limited to them for their re- 
" spective lives by their respective deed or deeds in writ- 
*• ing sealed and delivered in the presence of two or 
" more credible witnesses, to make any lease or demise^ 
" leases or demises, of all or any [part] of the said premises 
*' whereof they shall be so respectively seised in pos* 
*^ session for life as aforesaid, (except of the capital 
** messuage of Sapperton aforesaid, and the said lodge in 
" Pinbury Park aforesaid,) unto any person or persons, 
" for one, two or three lives in posses<sion, reversion or 
" remainder, [or for any term or terms of years in possesston^ 
** reversion or remainder] (a) to end or determine upon the 
•* death of one, two or three persons,.or for the term of 21 

{a) These words introduced within brackets, and diatin* 
guished by italics, are copied from the printed case sent 
to the House of Lords : and- at the time this case was de« 
termined,and until the judgment in ^ Burr, 1147. were 
generally taken to be material. 

HUaTyTerm, 30 Geo. 2. 


•• f^t^ kbftolute ; «o a« there he not, in the respective pre- 1 757. 

**'mi8C8 Of Hny part thereof, any estate e\Teedin<^ the TXYLoa 

"terra or time of three lives or. twenty-one year*, in v. 

•• being at the same time ; and so as such respective horps* 

*• leases be not ratide without impeachment of waste ; 

** and%o AS the usuat- RENTfr of such of the premises 

•* respectively as shall be so leased or demised upon 

*\ fines, and the best rents that caw Bt reasonably gotten 

** for such of the premises respectively as shall be so 

'* leased or demised without Hnes,BE respectiveh/ reserv- 

•* ED upon rr^y such respective le-ase or leases, demise » 

'* or demises, fo 5e payable dv r\ so the respective ierrhs 

*• in the said respective leases or demises to be eon* 

*' tained; any thing herein before contained tothecon- 

•* trary notwithstanding.*' 

And another proviso is therein also contained, in the£ 64 ] 
foltowlng worcls, viz, 

" Pro\idetl also that it shall and may be lawful to and 
*• for the said Sir Robert Aikym the father, at any time 
•* or times durinpc his natural life, after the decease of 
*' the said dame Mary his any writing or writings 
*^ indented, under his hand and seal, testified by two 
•• or more witnesses, to grant, assign, limit or appoint 
** the said manor of Swell Inferior^ alxat Neiher Swell, 
•• and the lands, tenements and premises in Swell inferior, 
•• otherwise Ne/Aff A'lrei/, Upper Sw el 2Ld Stow in the 
•• Would, and in either or any of them, or such parts and 
^ parcels thereofas he shall think (it, unto or to the use 
** 0f such x»oman_artcomen^s he the B3L\d Sir Robert Alkynt 
** the father s/iall marry or take to tsfife, after the de- 
•« cease of the said dame Mary his now wife ; for and 
" during the term of the natural life or lives of such 
•* wife or wives only, for her or their jointure or join- 
•* tares ; any thing herein contained to the contrary 
*• thereof in any wise notwithstanding." 

And by another proviso in this <ked, the like power • 
is given to Sir Robert the son," to make a jointure of all 
" or any of the lands thereby limited to Lovis Carteret 
•• for her jointure, on ^ny future wife or wives, whom he 
" should marry, after the death of the said Lovis Carteret 
•* without issue." 

And by the same deed. Sir Robert the father covenants 
^ith Sir G^brgtf Carteret, that Sir Edward Atkyns, he, 
and dame Mary his wife, would, before the end of 3/i- 
chaelmas term then next, levy one or more fine or fines Aur 
conusance de droit, ifc. with proclamations, of the premises 
(Xintained in this indenture, unto the said Sir Edimrd 
Carteret and John Lowe : which, it was thereby declared, 
5bould be and enure to the several, and respective uses, 
upon the trusts, and to the intents and purposes, and 


6s Hilary Term, 90 Geo. 9. 

1757* ^ith, under and subject to the provisoeft, deelftrations and 
TAYix>A agreements therein before declared,limited» arndexpressed 
V. concerning the sama And reciting *' that Sir Clement 
»osj>B« *^ -FafiiAamandf^flpard^/ftyfftfWereposse^aedof tbepre- 
'' nises i J question» or several parts thereof, for several 
" terma of years then in being, in trust for Sir Robtrt 
•^ the father/' it was thereby declared and agreed by Sir 
Aofierttbe fether, that Sir Charles Famltam and Edward 
Aikjjfys should stand possessed of the premises compris- 
ed in the said terms> during the residue thereof, upon 
trust and to the use and benefit of the person and persons 
to whom the premises (by virtue of the limitations there- 
in) should belong. 
[ 65 ] Thejury found that the first of the said indentures 
was executed by Sir Edward Atkym^ Sir Robtrt Atkyns 
the father and dame Mary his wite, and John Love; the 
second of the said indentures was executed by Sir Kdnfard 
Atkyns, Sir Robert the father, PItUip Sheppard, Sir Clement 
FarnJiamt^vA Edtcard Atkyas, esq. and the said indenture 
of release, by Sir Edward Atkyn$y Sir Robert the father, 
dame Mary his wife ;. Sir Cletntnt Farnham^ Edward At" 
hyns, esq. Sir Gtor^e Cartertt, Sir Philip Carteret^ Edw^d 
>^uifty Sir Robert Atkyn$t[\t son, and LovU CarUret ; and 
that the lease for a year was executed before the releaae, 

I'hat in Trinity term lC)^,a fine was levied ; wherein 
the said Sir Edward Carteret and John Lowe were pk^n* 
tiffs, and the said Sir Edward Aikym^ Sir Robert the father 
and dame Mtfry his wife deforciants, of the premises in 
question^. (amongst the said other lands contained in the 
greater deed ;) but no fine was ever levied of the lands 
oontaified in the little deed only. 

Afterwards, on the 6th of July \66Q, &\r Robert the 
•on was married to the said Lovis Carteret. 

Dame Mary (the wife of Sir Robert the father,) (/lect on 
^d March 16S0. 

After which, vtr. on ^6i\\ April 1681, Sir Robert the 
father, being seised of the premises in question, as of 
freehold, for the teitn of his natural life, without impeach- 
ment of waate, (and being then on the point of marrying 
a second wife, Mrs. Ann Dacres,) duly executed an inden- 
ture under his hand and seal attested by three witnesses^ 
bearing date the same 36th of April 16SI, and made 
between himself of the one part, and Sir Robert Dacres^ 
}:nt John Dacrea and jtnn Dacres spinster (sistej^ of Sir 
Robert Dacres and John Daerrs) of the other p&rt:. by 
which indenture, (after reciting the above mentioned in- 
denture of release tripartite of the 12th of June 1669, and 
the power thereby reserved." for the said Sir Robert 
** Atkins the father, after the death of dame Mary^ to 
^ limit all or any part of the manor an4 premises in 




« V. 

66 ] 

Hilary Term, 30 Geo. 2. 

^ qtiestioii^ to any ^ttnre wife or wives he should hafypen 
•* to Kiariy, for tl»^ term of the natural lite or Ihreaof suoh 
•• wife or wiirei only ; for her or their jointiKe or join- 
*• turea,**) it is witnessed tliat in consideration of the then 
intended marriage between the said Sir Robert Jtkyits 
the father and the said Ann Dacres^ and of her marriage- 
portion, the said Sir Robert j^tkfns the father, is pur* 
SUANCE of the said power 4o htm re^trved, mid of all and 
every power and authority whatsoever, did grant, assign, 
limit and appoint the said manor of Swell and other the p 
premises in question unto the said Ann Dacres, /or and L 
during the term of her NatURAL i»ife, for her jointure, 
and in bar and recompence of her dower and thirds at the 
common law. 

On 98th Jpril lOSl , the said Sir Robert Jtkyns the fa- 
ther married the said Jnn Dacres. 

On 3lst May 1698, Sir Robert Atkym the father, being* 
seised of the premises in question, as of freehold for 
life without impeachment of waste, executed an inden- 
ture ofleese^ umler his band and seal, attested by three 
witiiesses, dated on the same dist day of May 16PS, and 
made betwel^ himself of the one part, MXiAThoma$ Dw^ 
cfrfjCsq. Robert Dacres^gtni, and John Dacres^ gent, (the 
three abns of the before named Sir Robert Dacres^knt. nod 
iiepb^s* of dame Ann Atkuni then wife of Sir Robert l^Oeieaturver^ 
Jtkf/ns the father) of the other part. This indenture of *!J'^^" °«- 
lease recites the indentured tripartite of release of the l^th Lte!' hat'*aii 
oi Jnne\&Q9\ whereby Sir EdOMrd Atkins and Sir Ao- the lessees ware 
bert Atkytu the father did (aittongst other lands) grant, |Jf »»"«*» "^- 
release and confirm t6 the said Sir Edtcard Carteret and at'yeTrlY 
John Lowe and their heirs, the said manor of SwM Inferior 
otherwise hether SzDeily with the appurtenances, and all 
those rents of assize of the free tenants of the said manor 
extending to one half*penny and one pound' of pepper; 
and all the rents of customary tenants of the said mitnof ; 
and the capital messuage and farm of the Bold^ and the 
park called Swell Park otherwise Abbots fVood; and Ml 
and all manner of tenths or tithes ofttiewiidpatk; and 
the barcary or sbeep^^liouse called Qannow^ and the 
grounds or closes of meadow or pasture adjoining or 
belonging thereto; and the water-mill caUed Bold MUI^ 
with the dams, streams, waters, attachntent, fenders, soak, 
suit, mulcture, grist and appurtenances thereunto be- 
longing ; all the tolns of the customary tenants of the 
said manor, and all and all manner of tenths and tithes 
of all the premises whatsoever, which unto the late dis- 
solved monastery of Hakt did belong; alt that com« 
moQ of pasture for 400 sheep and twenty beasts, upon 
the bills and fields of Hether Smell, at all timesin the 
year except in the open tinie^ and w Hm^- #pM tioie 


Hilary Terra, 30 Geo. 2* 




C 67 

commoa of pasture within the said fidck for all ttiatincr 
of beasts without number, rate or stint; and the several 
pastures called Mvrden Leasores\ all that barcary of 
.sheep-house within the said pasture; all that pasturage 
or feeding for 600 sheep, or for more or less at the will 
and pleasure of the tenant of the said pastures called 
Murden Leasows for the time being, fti and upon the de- 
mesne lands, waste lands and other land? belonging to the 
said farm of the Bold or elsewhere, in such ample tnanner 
fis the late abbot of the said dissolved monastery of Hafn 
aforesaid and liis predecessors had kept and" occupied^ the 
- same withm the manor of Svcell aforesaid; all 'those 
J grounds in Nether Sreell aforesaid theretofore in the 
tenure of JoA/i Wimmore or his assigns ; all that half acre 
of land in Nether Swell sometimes in the tenure of th« 
curate of the church of Stotre in the said county of 
GloHcester; all that fishing of the river or water of the 
whole manor of NeMer Stcell^ with all profits and com- 
modities to the same belonging; all those portions of tithes 
whatsoever, and all and all manner of tithe of corn, grain, 
blade, slieaf, hay, wool, lambs, pasture and other benths 
and tithes whatsoever in and upon the premises or any'piirt 
of then growing, renewing or incrensing; (being the 
premises in question;) to the several uses by the said in^ 
denture limited as aforesaid: and it also recites the 
power to the said Sir Robert Athfus the father, ** for leaf>- 
** ing thepremists,"a8 it is set forth in the said inden- 
ture. Then it is witnessed by this indenture of lease, 
that the said Sir Robert Atkym the father, in considera- 
tion of the rent thereby reserved, in pursuance of the 
power to him reserved in and by the said recited indepture, 
and by virtue thereof, and of all, and evbuy porver and 
authority whatsoever, did, by that his present writing in- 
dented, under his band and seal, testified by the several 
witnesses whose names are thereupon indorsed, demise, 
lease, grant, and to farm let, to the said Thomas Danes, 
Robert Dacres ^nd John Dacres and their assigns, th^ 
said manor, and all and singular the said lands, tithes, 
tenements, herfJitaments and premises, with their and 
every of their rights, * members and appurtenances, in 
Swell Inferior otherwise Nether Swell: And a// and every 
the RENTS RESERVED vpou any leases or grants^ to hoM 
to them the said Thomas, Robert and John Dticres, from 
the making thereof, for and during the natural liva ot 
them the said Thomas, Robert and John Dacres and the 
life of the longer i^ivetl of ihem\ TiELDiNa and 
FATING TH&REFORE, during the Said terin, unto the 
said Sir Robert Atkyns party thereto, and «kfter his de- 
Ciiase, to such person or persons tespectively to whoth 
the said manor and premises were limited^ according to 

HUary Term,. 30 .Geo. 2. ^8 

their respective «»tates and titles, the yearlitf tent of 1757- 


stt/isaml Ladjf^day^ by even and equal portions. v; 

In wtvicb Baid indenture of lease is contained a clause, Ho<ii>r« 
in theae vrords; viz, **^/fe TKUE intent and meaning 
•' ofthiseUate or term for liveSy so heteby granted and / 

** made to the said Thomas Ducres, Robert U acres zwAJohn 
" DacreSt and the survivor of them, being to preserve 
^* the said remainder so limited in the premises by the 
" soidrecited indenture, to the right hein of the said Sir 
*• Robert Atkifns, patty to these presents^ and to such , 

" PEiiSQN OR persons TO WHOM the suid Sir Robert 
" Atki/nSt party to these presents shall any vv^at dispose 
*/ of /A<; fame, FR,OM being BARRED fry any recovery 
** to be suffered^ or by any other act to be attempted or 
** done for the BXRRiiiG of the same,'* 

On 8th June 1698, John Ducres, one of the lessees in the [68 1 
last above-mentioned indenture of lease, alone^ executed a 
tetter of attorney ^ under his hand and seal, reciting the said 
last indenture of lease, and impovvering and authorizing 
Thomas Barker^ gent, as his attorney, to take livery arid 
seisin of the premises last above-mentioned, from the said 
Sir Robert Jtkyns the father; /or himself (the said 
John Dacres) and for. the said Thomas and Robert Dacres 
and every of tbeni, is tueir names and for their use, d,c* 
cording to the purport and true meaning of the said reci« 
ted indenture of lease: and to ^nterand take possession 
of the said manor and premises in the said indenture 
contained, to the use of the^ and every of them ; he 
the said JoAaDflcresallowingofall and every the ^ctand 
acts so done by the said attorney, to be as effectual and 
sufficient in law, as if he had been personally present 
and had done the same. 

On 5th July 1698, Sir Robert Atkyns the father, being 
so seised as aforesaid,and then in the actual possession ofthe 
said manor and premises, did, in his own person, deliver 
seisin and possession thereof £//?to the mid Ihoinas Barker ^ 
to the use (fthe said Thomas, Robert, and John Da* 
^resandof BVBKY of them, and ofthe survivor of them, 
^cording to the purport and true meaning of the said 
iu(ienture; be the said Thomas Barker being authorized 
4md appointed, by a letter of attorney under band and 
s^ of the «aid Joh^ Dacres, and by him duly executed, 
>** for him ;ku1 to his use and in bis name, An^for thcsaid 
'" Thomas AND Robert ^Dtfcre^, and to their use and 
'' t;} EV£:&Y Of THEIR names, to take and receive the 
• * said livej^y and possession of the said capita.1 messuage, 
•• loaxiorgod premises, accordingly;'* as by an indorse- 
ment on the said, letter of attorney (which is set out ih 
Ihe vecdict) a{>pears. 

69 Hilary Tertn, 9al?^^8! } 

1757. Bwt tlwiary found, that tbq mA^ThomofiDifcmj^^JMiff 

Ti.VL«>K Dticr(f9,tTii John JDacm^ Um l6tf^»S;9CUiu^A)tA%thl&.|«l^t' 

^ iQ^eiHioped jndentia.i*e, or either of t^^, iti^^f^fffZm^'^^ 

hoiJde fo^sesmon of tbe pr^miaeftin qi|f)B|\(^,etbQr^fletban 

^ )^ th^ eaid lifery and aeista. no ^irem by the mid Sir * 

Moberi Aiki/m tb^ fiitber ^8 aforesaid; and that thejr or 

eitberoftbenicikf hot naive vr pafony m&mt fproriii' 

respect of Hbe said premiaes ; and that tbe said uuffn^ 

ture of lean v«f 2^ot foukb ik tv b costoby t^Thomas 

Dacre9thK8uruviiig ie9$et^ at the time of hia death. 

Ou27th Mn§ ilOS, ^ir Bobtri AtM^ tbe father^ beinr 
so seised of the said prenojses, find of the remainder and 
reversion thereof as aforesaid^ inad&bi».wiU»dat^ tbe 
same 27tb day of Mai/ 17OS;atte0ted '.by fear wilneaafrs ; 
and thereby confirmed hia wit^'a jointure; and then fe- 
r 69 1 ci^<l "' that he was-seised of tbe remainder and reveraion 
'^ in fee, of the said manor and ^tbar tbe premiaefriii 
" question; and that auch remainder or revfUTMOp* -l^fte^ ' 
" tbe death of hia wife, was also further ^xpactont ijfK>il 
" an estate in special tail, settled upon hiaaon Sir .Ao^r^ 
*' upon his marriage, by tbe abovementi^ned deod of '}<S|tb 
*' Jufie 1669', and that be bad madea lf$aae to jtblji^id^ 
** Thomas, Roberi hnd John Dacr€$^ for their MYses,^^ 
** the life of the longer liver of them» aoooidingipttb^ 
'• powe! he had reserred to himself upon the aaideetUe- 
** uient:*' after which recital, he dispoaed of hiaaaid ri^ 
tnainder or reversion in fee, [and the beneiitof 4be .truslt 
of the said lease,] to the lessor of theplaintiffjntailmalev 
' The. whole devise was in the following Worda«-*tffZ. *' I*^ 
** give add confirm unto my said wiffe dwie .^an AUgftfs^w 
^f .all thoae lands, tenements and bereditamenlB in XoiP«r 
*' .>^f/< aforeaaid, which w^e settled upon bet for ber 
''jointure, before our marriage t and I hereby farthef 
*• give and devise to ber, for term of ber Ufe^ my manor 
"^ of Lower Swell, and all the teat of my landa, tenements 
^ and hereditameDts whatsoever in Lomt Swtil aforesaid^ 
" jfbr.term of her life, as. an addition toherjointyre* ,Ad4 
*\ S^hereas 1 am aeia^ of the rf inaindar aiM* ieiviBi#»/ia 
" ' fee, of the said .maxior of L^Wir Smllf Mndof the 'rtstoif 
V the said lands, tenements and bei^itam^ntst m Lmat 
** .Swells 90 settled, and by this my will given* and^iison* 
'Vfira^ied tp my a^id wife fiMrbei? life 1 wi^i^fleniaiAdeffor 
ff ievpF^pn,gi|ter.tbAiieatb of,ii^ wi^lA^lao^vth^reis* 
^^pei:taaait wop>p jestfite in th^aaidiiWMHr.iinid laodl in 
V, weti^jtajj settled upx)i)|inji;WntSir4J#6«»<c^*%»«wp<« 
• Th f tnt^ *V.^iftiiMiTriagQ^l)y.defd/*ft^al|e.*Wittfi/OT^ 
m suUrufe & J*P^^ i\ia: (¥>i»*y thjt i^.i^MJlA «oot^^^ 
date of thu toJj%^»*Ao^*W:«^^ a sieawWidiB*«d,*. the Mb^ 4la]r of 

V anSJp 66 ^^^^» ^^ THomos Ducrei, eaqJndta ^oiefi and •/•*» 

marp'T^rtn^ SO Geo. 9. 


'^'JM^'i^YleiMliv l^r tlM Vftk^ ^f the mM Thom^i, Ro- 
**'Afr/4iiid JdA«» IHt(;m|'«nd€heIifeof the longer iivef cf 
*^ th«i«i, fte^oMiAgtD a poww I rMferted fo tny«e)f upon 
'' the Mid settlement made «pon ttM mavfiage of my 9aid 
* *^ son Sir At^rrf ^A^nt ; now4 gtt«^(ind* devi^ the taid 
'* iteitAfHDfeR or iMiTfiitsicm, aildi ttife' trnKt^i'^ 01^ 
•• tfifc TRCri^r««)f fAe ^imVf tam j^r */ri«i, t« my gfi^ndsm 
*• ' Je*ii jfV*e^ , flbc now younger and second son living of 
^' niy^ fion-in-taw J^hn*Trae1f*dt Stanwdy in the Mid touti^ 
•• ty of Olokcfsitry€»q. byfaif dftngb'ter Ann SfVcrtj/ his 
'* wife,) and to the btfiit male ^of the body of my said 
'* grandson by him to be begotten. And if my 8aid 
'* grandson happen to die without i^ne male, then I give 
*** and deTiae the aaid r^matnder or reversion^ to the next 
** iro«ingersoh of the said John IVaty my son^in-law, cal- 
'* led €e^mfido Tracjf^ and to the heirs male of the body 
** of the said Ferdinando. And for default of such issue, 
•* then I give and devise the said remainder or reveraion 
•* t^ the next younger son my said son^n^-Iaw John Tra^- 
*^ <3^ may happen to have by my said daughter, and to the 
** heirs mate of the body of such next yOiing^r son ;" and 
HO on,to other siifl younger sons^^t. (Thesede vises were all 
ttpott cotfditifeto that the said sons respectively so inherit^ 
hig the said manor and lands, should constantly use to 
caltUnd write themselves by the name of i^^Ayfls only for 
their atfnam^, and by no other sirname.) And then the 
wtti piotieeds thus— ^ I do further give and devise all my 
** h6uses,and all landH, tenements and hereditaments 6itu- 
** ate lymg and being in or near Cmrii^r^t Aiky in Hoi* 
^ bom within the city of London or the sfaburbr thereof^ 
" or within the county of Middfesfx, or in either of 
" them ;*' in like manner, and upon the like condition, ftr. 
And, reciting that the reveraion or remainder of bis manor 
and lands in andof 5ifpper/0M aforesaid, and oflbeadvow*' 
son of the church of i9afprrfi9ii> and of and in his manor 
of Piifftiiffvandofthe lond^ thereto belonging, as also of 
Piniuty-Pmlt^ was in him and his heirs ; and also of the 
seven hundreds of Cimieeirer, and of the hundred offiM* 
ley, all in the said county of Glmce^^: be devised the 
same in the like ntanner^ The words of his will are 
theae^^ I having also made a leaaefor lives, of the aaid 
** matiota of Ai^f^r/ait andPfjriirfy, andof the Miid advow- 
^ aonof AffipcHm,andortbesaidPlM4irfy-Paf/b,ahdofall 
^ the saM aeveral bundreda, the better to preserve and 
** auppoit the aaid remaindei-s and reveraiona fioni 
•• being edt off or barred br toy tecovery* And if my 
'said ^tinger gratulteoat mpfMsn to die without issue 
mMe,Afent give and <lev)ae tbt^ ^ame reveraioaa aod 
rettftind^ to Wf tIMhow Bhhitfd ittkym (ddetl mo 

' ...* ^•-' ^\ '.? CA • P' « «- ^ • ^ 



C 70 i 

yi Hilary Term, 90 Geo*, 3: 

17^7. ** of ^y I^^^ brother Sir£doiardwl(i^y}»'dficea0ed} and 
TAYi-oii ** to hiB.beirs." 

y^ On UiQ dth February 1709» Sir JJoftei;^ -^^kjfns, the fa- 

uo&DE, ^^^''^ ^j^^> seised of the premues in questioD* 

Umn hip death, dame Jna^ hia widow and relict, en- 
tered thereupon; claiming, the aame for her life, for her 
jointure, under and by virtue of the aboYe^mentioned in- 
denture of the 2€th JprU 1661 : and was iupouessum 

IHie juiy then find an indeoture tcipartite dated the 
18th of May 1710 ; made betweien Richard Jtkujis, e>q, 
eldest soR^ and exeaxiot oi S'n £dward Jlkyns (the sur- 
' vtving trustee in whom tb^^erms for y^ars m€;ntioned in 
the greater deed were vested,) w the first part ; Joseph 
fValker^ gent oa the 2d part; aud ttiesaid Sir. RjoheriJih 
kyns^ (the son) on the 3d part : by whicb» after vecit;iBg 
the indenture of release of I2th Juhp l(i69, and tliat it 
was^herein mentioned, that Sir Clement Faniham and Ed^ . 

C" 71 1 ^'^^^ ^tkyfis were possessed of several terms for years iu 
* J the prmisesin question, and that they were to stand pos- 
sessed thereof in trust for aucb person and persons to 
whose use and uses the same were limited bv the said in« 
denture; and reciting that the said Six Robert Atkyns 
(the son) then claimed the said manor and premises by 
AND UNDER the SAID indenture I and that Sir Clement 
Famham was dead, and the said Edvoaid Aikyns (after* 
wards Sir Edzcard Jtkyns, knt. lord ch. baron of the 
Exchequer) survived him, and was also then dead, having 
first made bis will and the said Richard Atkym executor 
thereof, * and that he had proved the same : the said 
Richard Mhynt^ at the instance aud request of the said 
Sir Robert Mkyns (the son) testified by bis executing the 
said indenture, and in consideration of 5s. paid to him 
by the said Jo$epk Walker^ assigned over the said manor 
and premises in question, to the said Joseph fValker^ to 
hold to him, his executors, administrators and assigns, 
for all the then residue and remainder of the terms where- 
of the said Sir Clement Famham and Edward Atkym or 
either of them were possessed ; in truht for the said Sijr 
Robert Atkyns(tbe son) and the heirs male of his bod^, 
by the befure-mentioned dame Lovis his wife ; (the said 
premises being so limited iu and by the said jodienture 
of release of ISth June 1660.) In which .said, i(\denlure^ 
there is a covenant from Sir Robert (the son) tq i(\Qiemi|if^. 
the B&idRichapd Athyn$i biil h€U4:s„exacjutor8and aami^l-*. 
strators against any dastages be or. tbey might sustain by 
reason of his making the said aa&igomeMt to the said 
JoMfoA ^<i/Aer as aforesaid. . . . ; ^^ 
. Tnajury further find» :thak^tm4-4;2/i 4%'«^ t>emg ssk 

Hilarjr Tefnn, 30 Geo. 2. 


4 <* 

in po6setstoii~ of the premises as aforesaid; in Trimiy 
term 1710» 9 Ann^ an ejectment was brought in the court 
of Common Picas for the recovery of the said premises, 
a^inst her the said dame Ann and the tenants in posses* 
ston of the same premises, bjr John PkilipSr upon the se* 
Teral demises of the said Sir Robert jitkyui the 8C»),and 
of the said Jcw^A Walker: in which ejectment, the do* 
mises were laid upon the %3d day of Mwf 9 Arm ; io hoid 
from the 20th day of the same jMay, for seven years. 
iVnd the said ejectment was tried at the bar of the court 
of Common Pleas, in Mkkttlmas term following^: and 
a general verdict was foUnd for the plaintiff ; and judg* 
ment was entered upthereupon, against her sod the rest 
of the defendants therein, for the said^ John PhUim; and 
he recovered termikum snum predictutn^ and nad an 
htthert facias positsnonem. 

The jury further find, that upon this trial, the 
said two indentures, called greater and leaser deeds, of 
l^rti Jnue 1009, were, both o/thenL, read and given in 
evidence to the jury : but that the deed of auignment^ of 
IStb MaifllXO, was not produced, mot given in evidence^ 
to the jury.- 

They find, tliat'soon after the said judgment in eject- f 
ifeent, and during the life of dame Jnn^ Sir Robert Ah 
hyn% (the son) entered into and was in possession. of the 
premises in question, and in the said deoiaration io eject* 
ment mentioned. 

They find, that on 1st Jamary 1710, Joh^ Phi-, 
lips, the said plaintiff* in eje<;tmeiit, surrencUrrd \ix^ two 
terms mentioned in the said declaration in ejectment 
to be demised to him by the said Sir Robert Atkyn$ (the 
sod) and Jo^h IValker^ to the said .Sir ii. A. (tbe sou) 
then in possession of the premises. 

They further find, thaton the 17th January/ 1710, tlie 
said Sir R, A. the son, being so in possession as aforesaid, 
and during theHfe-time of the said dame Ann Atkyns, widow ^ 
made a feoffment to Jnmei Earle^ of the premises in 
f)ne8tion in fee ; by indenture tripartite of that date» made 
between himself on the first part; James Earle, yeoman, 
oa the second part; and John Hoimden^ gent, ou the 
tfand part; which ft^offment in fee is therein declared to 
hejir tbe docking, barring, and destroyittg all bstates 
TAiL^ useandvses, reversions ^wi remainders, at any time 
tVeatofore made, created, or limited of and in the manor 
Mi premises in question ; and for the vesting and settling 
^ estate inyirstfiip/e tlierein, to and in the said Sir jRa- 
Arrf the son. Sir Robert (the son) did tlierefbre in coasi* 
deration of 6s. thereby gran t^ bargain, 8ell,enfeofrand con* 
fttm unto the said James Sar/ehis heirs and assigns, the 
premises in question^ to bold to and to the use of the 





78 ] 

75 HUary Term, 3d (ifeo. $. 

\TS7* ^\A Jtames JEarlt his heirs and assigns for.^v^; tOhtbe 
TA.TLO& Vft/en^ and purpose that the said James Earte might become 
y, perfecttenant i)f the freehold of the said premises, in order 
UORDX. ^^^ ^^^ suffering'a common recovery \u Miiurf term then 
next; wherein the said JoAn /io/uid^n was to be deman- 
dant, the said James £ar/e tenant, and Sir Robert himself 
vouchee. Which recovery, it was thereby decUred, was 
to be and enure to the use and behoof of the said Si& 
RoBE&T Atkyns {the son) his heirs and assigns for ever; 
and to or for no other use, intent or purpose whatsoever 
And by this same deed. Sir Aoier/ ul/£y/75 (tbe son) con- 
stituted Edward Carter and John Longford bis attornies 
and attorney, either jointly or severally ,to enter upon . 
and take seisin and, possession of the premises, and to 
give and deliver seisin and possession thereof to the said' 
James Earle and his heirs and assigns for ever, according 
to the purport and true meaning and for the purposes 
in the said deed mentioned. 

And the juiy find, that on SOth January 17^, Edward 
Carter, one of the said attomies, entered upon the proi* 
mises, and gave seisin and possession thereof to the said 
. James Earte, by virtue of the said warrant of attorney 
r 73 1 contained in the said indenture : As appears by a memo* 
randum indorsed upon the said indenture, md found by 
the verdict. 

They find that in ISilar^ term 9th Jnn. (1710,) a >eco- 
viery was suffered of the premises; wherein John Holm^ 
den was demaindant ; James Earle, tenant ; and Sir Koberi 
Atkyns ("th^ son) and Xarts bis wife, vouchees; and 
seisin executed thereori : which recovery they find to be 
pro6ecuf'ed,had and executed to the several uses mention- 
ted in tbe said deed of feoflfnieut. And they find, that 
after ibis- veco^i^ery, Sir Robert the son continued inpos-' 
session of the premises till the 9th of November 1711. 

They find tbe death of the said Sir R. A, (the son) on 
Olh Hotfmber 17 11, without issue male by the said Lovis 
faiswife^ whosurvived htm. 

Th<qr also find, that an ejectment was brought for the 
premises^ against Robert Atkms, esq. and his tenants of 
the premises inquestion, in Hilary term 1711* 10 Ann 
by John Mii&, as plaintiff, on tbe several deiaiises (both 
laid to be made on 14th R6ruarjf,S Ann 1709. which is 
five days after Sir A. A. th« elder's death) of dame Ann At'^' 
Aym the jointress, and of Thomas Dacres, the survivitag 
lessee under the indenture of lease of Slst Af ay 1698. And 
in Ea$ter term 171%, 11 Ann. a general verdict was givea 
for the plaintiff, on both demises, on a trial at bar^in this 
court : and judgment was entered up accordingly, " that 
^' the plaintiff do recover his several terms aforesaid.*' 
And the said dame Ann Atkyns entered epon tbe m%* 

Hilary T«nn| 30 Geo. 3. 74 

niiieftinquestion. inomediately after tbis last jadgmetit; 1757. 
and cQntmued in poMessioo thereof till 9tli October 171d : tatloil 
when she died. v. 

Soon after the death of dame Jnn^ the (original) (a) horde. 
defendant Robett Atkyiu^ esq. nephew and heir male to 
Sir R. A. the son (and al86 heir at law to Sir JR. A. the 
father) entered upon the premises, and continued in 
possession thereof till his death ; which happened on 10th 
March 1753. [R^fberft death [b) was just three months ' 

after the now lessor of the plaintili^s actual entry : and 
it was after issue joined in tbis present ejectment.] 

John Dacrei^ one of the lessees in the indenture of 
lease dated 3UtMay 16P8, died In 1705. 
Robert DacrtM^ another of them, died in 1706. 
Thomas Dacres, the third of them, survived the other ' 
two : and JSed on 2Sd July 1752. 

They find that John Atkym, the lessor of (he plaint^ I 7* J 
NEYSiR WAS IN POSSESSION of the premises in tjuestion 
or any part thereof, nor in receipt of the rents and 
profits thereof or of any part thereof; nor enterbd 
thereupon, till the 13th of December 17 o2\ whenbe 
' ttuide im KCtv aIj ENtav into and upon the same; claim- 
ing \ht same as devisee thereof under and by virtue of 
the will of the said Sir Robert ^^At/ws the father ; and 
'ejected, drove out, and removed the^VLiA Robeft Atkyns, 
esq. Charlet Coxe^ 1 homos Horde, Ac. therefrom;- and 
wasiftsfcf thereof^ as the 'liiw ¥equires; and jbeitiof so Wned 
thereof, made the demise to the said Ct/firian Tayltk" the 
now plaintiff, on the 16th of Dtcember V1h%'i6 hold frdtn 
thence for fifteen yeart ; by virttoe whereof the 6aid 
Cyprian Taylor entered on the 18th, and was injected by 
the defendants on the 19th. 

(a) He was one of the defendants, and all the ether de- 
fendants were as much original defendants as be was» 
but that the word original is quite improper. The reporter 
bad pr6bably read some equity reports, and fook the 

. epitiket origiml from those reports, in which it is proper* 

. ly used, « Where a defendant dies, and the cause is revived 
agbinst his representatives, there the deceased is property 
called the original defendant, in contradistinction to bis 
sepresentatives, who were not originally any parties to 

• tbe suit ; And so in case at law, where proceedings may 

. .be re^ediby sd.fa* after an alKatement, the word origt- 
nai^wev be piroperiy used, but not in the present case, 

^'ffrheraibere are no new defendants. 

:. {b) Jif Robert bad been the sole defendanti the suit 

' VOttld have abated. 

7^ Hilary Term, 30 Geo. 2. 

1757. ^"^ then they conclude generally, as asuaU submit^f" 

TATLOU ^^^ ^^ matters of law to the judgment of the courts 

y^ upon the above fects. 
Hoa^E. "^'^'^ ^^ ^^^ argued four several times; first, on' 
Tuetiay dd ./tf/ie 1765, by Mr. Yorke^ for the plaml»ff» 
and Mr. Knowkr for the defendants; again, on Tuaday 
11th ^erembtr 1755, by Mr. Pratt for the plaintiff, and 
TAv.Permt for the dSefendantr ; a third time, on Tunda^ 
11th Affly 1756, by Mr. CaWeffo/ for the plaintiff, and 
Mn Serjeant Prime' for the defendaots; and a fourth 
time, on Friday Iptb Ntftetnier 1756, by Mr. Caidecot for 
the pUuDtiff, and Mr.' Kttawler for the defendants : but 
it is unnecessary to repeat the three first arguments par* 
ticularly; because the last includes the general sub- 
stance of them. 

The sum of what was urged on the part of the plain- 
tiff was, that the leasing and jointuring powers txi$ted at 
the time when they were executed by Sir Roheri Aliens 
the father ; that those powers were ire// executed by him- ; 
that the lease and jointure made by him, in pursuance of 
those powerft, were an impediment to his son i^ir Robert 
the younger's suffering a common recovery; that even 
supposing that Jatnes Earie was a good tenant to the 
pracipe, yet the entr^ of dame ^nn the jointress, within' 
the five yevivs^ avoided this> recovery; and ccmsequenUy» 
that the remainder or reversion in fee, devised to the 
lessor of the plaintiff by Sir Robert the father, was nor 
barred by the recovery thus suffered by Sir Robert the 

These points were entered into very largely, by Mr. 

Caldecot and the gentlemen who bad spoken before bim^' 

on the same side. 

They, first endeavoured to prove(fl) that the powers 

r 75 1 ^^^^^^^^ ^® Sir R. ji. the father by the two deeds of Kth 

'- -* Jttne 1669 were in being aud valid at the time of the exe^ 

^ cution of the lease to the Dacres ; and secondlvv 

* tliat they were well executed: and consequently that 

there were estates of freehold subsisting at the time 

w4ien Sir R. /i. the son made the feoffment to Ear/er 

tiz, dame -^ww's jointure, and the leaie to theDtfcres.* 

and therefore, thiidiy, they insisted that these life-estates 

were impediments to Sir JB. J, the son's suffering the 

common recovery. They denied that Sir Robert Atkyns, 

the son, was tenant in tail in poisemon^ at the time that 

he made the feoffment to James Earle : so that Earlt 

(a) This is wrong: the powers were only in the greater 
deed ; lege therefore that " the two powers reserved to Sir 
" R. A. the father by the great deed of 12thJtiwe 1669." 

Hilary TeiMi, «0 Geo. 9* " 76 

cauld nob be a good tenant to the pradpe. And they 175^7. 
urged, tbut even admitting that Sir R, A. the son ww taylob. 
tenant in tail in possession, yet he could not upon this v. 

nahal possession, without the freehold, make a good uorde. 
tenant ^toth^prircsppe without the,;omtres4 and the/^ssee 
for lifes joining: And that the oourt cannoi^ (under 14 
G. S. c. 20. § 1.) pa ESC ME a prmous surrender or convey- 
am€, of the estates for life, in order to make the recovery 

They' further, fourthly, insisted, that supposing Sir 
RobeH Atkym^ the son, was tenant in tail in possession, 
and also Uiat there was a good tenant to thepr«rtpe; (so 
that the recoTery was good, as a common oooveyauce ;) 
yet tlie re'entr^ of dame Ann Atkins, the jointress, within 
the five years (in 1712) actually avoided this recovery; 
which,i if not void^ was at least voidable by the tenant 
for lifie ? and this re-entry of the tenant for life re-vetted 
all the subsequent estates. 

Thegrffli stress of the question lies (as they said) upon 
the tenant to the pnccipe. 

The 4i rat point, in order of time^ is the validity of the Firttpwm- 
two powers created by the. greater deed of 1669. 

But ttiere is*no ground, either for the supposition of a 
faeit *• thai the lesser deed must have been executed 
•' last:'* or for any inference in point of law, " that it 
** operates to the extinction of these powers/* 

Theyirc/ concerning the priority of. execution of the 
two deeds cannot, ;u)t0, be determined by any evidence: 
Therefore prcsMmp^'oii must determine it. 

Now one of these deeds is an agreement to execute [2 Barr. 713.] 
the other: consequently, must have been prior to it. 
The lesser deed covenants; the greater performs that co- 
venant: therefore the lesser was prior. If it had been 
executed last : that would have destroyed the very effect f 76 ] 
of it and the powers raised by it. D^meMari/ was giving 
up and exchanging her former jointure : and therefore 
^he might desire a single disti4)ct deed, to secure her 
own interest. For which purpose, a deed of covenant 
was* the most proper : and there was no need to incum* 
ber this lesser deed, with the powers inserted in the 
greater deed ; which powers did not concern her. Where- 
as, in order to support a contrary argument, it is neces- 
sary to suppose a r^ew agreement (without, and even 
against, any reason for it,) to alter and destroy the former 
agreement. But if the parties had meant so, they would 
h^ve so expressed it. 

However, supposing the lesser deed to have been ac- 
iually executed iast; yet being all vnojlatu, the laT0 will 
order the tinie, so that the proper deed shall be takenio 

77 * Hilary Tenn, 90 Geo. f. 

1757. ^6&f^tei4or» and the other 8uhsequent» aeeorimjtfothe 

TAYLOR ^'^•^^ of the thing and the fwlwil of Me parties, uiggeit 

y^ case, I Co. Rgi. i7S. Albany's caae, 1 Cb. Hfp. 107. and 

HORDE. ® *^^* "^^^ ^^^ '-'^'^ CromwelFscMei. 
, ' And the operation of the^w wIU/o/Amp the eomlruc'- 

Countess of RutlantTs case, 5 Co. M. a. 
Second point. Therefore, the existence of the powers being establiah- 
ed, the next question is, " whether they have been well 
•• executed" Dame Mnry's jointure has not been ol^ected 
to : but tho lease made to the Dacres has ; (flr-t) as beinsf 
fsithout a itfbsistiifg povter in Sir H. the elder, the les* 
sor to make it ; (secondly) as being fraudulbwt, even 
supposing him to hare had power to make it: (thirdly) 
as the livery and seisin was made to the attorney of onr 
[♦And H might off/» of the thi^e levees, and not to a// three,^ or their 

liave befn ad- .^.'. .._ ' * 

ded a« all three JO'n^-attomey. 

were under Now it is true, that a tenant in tail tn /Missffs/oi may 

*««'l suffer a recovery : so alao may a tenant in tail in remain' 

der, if he can gel in the tenant for life» 

But the original donor m^y interpose as many eetates 
for life, as be pleases, before and prior to the tenancy in 
tail. And this lease to the Dikres, under the power, is 
just the tame as if it bad been originally inierpoaed. 
And the declaration of the intention will not titiatetke 
-e?/^^e limited to these Dacres : If it had been even a con- 
iNtion annexed, in restraint of alienation, such a condition 
would have only been void; and the e^eite^ good. Co. 
Litt. 24. a. Corbtfs case, I Co. 84; Morif Partington's 
case, 10 Co. 35. 6. 

[ 77 3 As to fraud — there is nothing fraudulent in this lease. 
And both the terms have been actually recovered at 

If Sir K. A. the father's superfluoUa dectaratioii baa 
any effect, it inakes the lease good : and it would hai^' 
been adjudged good, if it had been called iti question 
>yhilst It subsisted. S Leon. 132. Moore and SatitCs 

And no one is hurt or defrauded by this lease. Not ike 
jointress : for the full and best rent is reserved. There- 
fore Cro. Eltz. 5. The Countess of Snssex^s case does not af* 
feet this case; for there, the jointress Buffered. Nor is 
the /e/ianr t;i tail hurt; for the same reason, as to hHi 
rent : and as to the postponing his power to suffer a r^- 
covery, it was legal, and might have been done by a real 
actual demise for life or lives. And the eyes of this court 
dp not pierce further than the shellf of the conveyance ; 

i Legal irastfc not to the design of it. As in cases of terms to preaerre 
contingent remainders, this court cannot hinder the 
trustee from destroying them : So^ of terms to attend in* 

Hilary term, 30 Geo. 2. 78 

^rkaaces ; which this court cannot binder the mortgagM 1757. 
from getting in. Cro. Car. 190. The easeofNathv* jay lor 
PfV5/<M»9 isastrong case to sl)ew that the court of /««» y^. 
will not meddle with the equity of the case. hou*z>b. 

Now this lease has pMrnfeJ^A^ pofcer: and this court 
will not meddle with the intent. 

Leases made by churchmen, for the benefit of their 
femilies^ are generally as fictitious as this: and yet 
they are always allowed to be good. 

As to the livery and. seisin — ^this Uvery to Thomas Bar* 
i:er enured to the use of all theM/^e Dacre$» according to 
the purport and true meaning of the letter of attorney, 
most explicitly therein expressed, and so declared at the 
time of the livery by Sir R, A. the elder who gave it. 

This sufficiently appeara (as the present inCeoftment 
was &y i>BEi>»)frQm Bro.Abr. T'liie Fejemefds de temst 
pi. 16,67, 72. and Co. Litt. 48. A, 49, a. But 2 Anders. 
196. pL 14. tie case of Bavy v. Abbots is in point : it is 
most exactly the same case as this* 

So that the ///e-estatea of dame Ann and of the three 
JOacres appear to have been well created. 

Consequently therefore, a Jo Mi& freehold is sufficiently- 
established ; viz. one» iu dame Ann ; the other, in the 

From hence it follows, thirdly. That Sir Robert At- f 78 ] 
kyiis the son^ was by them precluded from suiTeriug this Third ponu 
recovery : as he was not tenant in tail iu possession^ at the 
time of his making the feofiment to Jame^ Earle. There* 
fore he was to gain a freehold as he could ; by right, or 
wrong : and it may be said, that either of them will do. 

But even supposing biro to have been tenant in tail in 
poMemoit, yet James Earle was no good tenant to the 

When he recovered against dame Ann, be was not tenant 
in tail in possession : but be recovered against her, upon 
a supposition " that he vat.'* Which supposition was 
grounded therefore upon a mistake. And the terms which 
Philips recovered as his lessee, and surrendered to him, 
were both of them /c/fVioir«L So that the feoffment to 
£tfi^ must fall to the ground; having no foundation to 
support It. And though livery was given to him by Sir 
Robert^ yet Sir Robert himself continued in possession 
tilt his death. 

Which observations being premised, this part of the 
case may be considered, 1st, on Sir Robert's verdict and 
judgment against dame Ann; and 2dly, on his subsequent 
feoffment to Earle. 

First — His entry under the judgment cannot amount to 
zdisieisin: nor had he thereby, an estate pursuant to his 
title^ as there claimed by him ; it could not be more than 
Vol. L G 


79 Hilary Term, so Geo. 2. 

1757* ^" estate in tail, expect a kt upon two freeholds. It coulcf 
TAYLOK not be a disseisin:' because it was an entry under » 
verdict. ' In truth, he gained only a bare twked pottessiant 
without the freehold. And so is the writ of haoere fada$ 
po^ssionem: and the judgment is " to recover the temC^ 
only^ And Cro. EHz. 438. the can of Batemon v. Alkttf 
(upon a devise the same* with that in the case of Newys 
and Scholastica his tei/e v. Larke^ in Phwd. 403.) also 
proves this. 

Therefore the entry under the judgment in ejectmad 
could give no title to Sir JR. A. the son to suffer a recovery : 
- it was a LAWFUi/ enthy; but an unlawful holding. 
Co. Lit. bl. b. A wrongful withholding is not a disseisin ; 
but a deforcement. Co. LiiL 277. b. 331. b. 354. 6. 355, 
356. And this is without the freehold. 

It is like the cases of tenant at sufferance : 13 Assize 35. 
Co. Liu. 57. b. 1 Ro. Abr. 659. Title Disseisit9, letter 
e. p/. 10, 1 1 . Cro. Jac: 169. The case of Butler v. Duck^ 
mariton. Co. Lit. 370, 371. Cro, EHz. 338. The case of 
[ 79 ] Alkn v. Hid. All which cases concur to prove " that 
" nothing shjrtlopei'ate by way of disseisin, but a tor- 


And there is no middle hind of holdin^^ between a 
naked possession, that disturbs nothmg ; and a^ee, which 
disturbs every thing. 

Then, secondly, as to the feoffment 16 James Eark. It 
. gained no estate to Eark. This is a very great point to 
niroilies, for the preservation of intails. 

If the contrary construction should prevail, even tenants 
at will might do the same thing. 

' , But the line is drawn thus; viz. ** thata tenant in tail, 
^ WITH the freehold, may bar: but without it, be can 


A Teat feoffment indeed me^ do it : but z fictitious one 
cannot; but shall be considered as fraudulent and void, 
like that in Savik, 136. Leon. White v. William Bacon. 
It is not a discontinuance: Swift v. Heath, Carthew, 

Sir IJ. A. the son, gained no fee by it, to himself; nor 
anvlo Eark; and the court will consider it as merely 

I'hat he gained none, to himself, appears from 1 Brownr^ 
low, 330. Dame Pctfs case. 3 inst. 413, 413. Cro. Car. 
303. Bluudenv. Baugh. Bracton, lib. 16l> 163. 
Co. Lit. 153. Dy. 62. 11 Assize 6. Powsltyr, Bla^kman^ 
Cro. Jac. 669. Bull v. ffyat, Cro. Car. 388. 

That he gained none to Eark, is .equally true. Earh' 
gined no estate of freehold, by this tejDffment; cither as 
a wrong-doer, or as a disseisor. 1 f^entr. 360. Stij^^i^t 
Muf^ard's argument in Moor v. Pitt, 

Hilary Twm, 30 G€o. 2; «0 

He might indeed be taken as a disseisor, at the election 1757- 
<)f the right owner ; but«o( against it. And here was wo taylor 
intentiouofa disseisin. Cro. Jac.6i3* Fern'fs v. Fanner. v. 
_\ Mod. ICH' Fountain V, Cook. In fact, here was no actual uohde. 
diKeisin : For sir A, A. the son continued in possession* 
Neither was here any force or expulsion. And 
it is not every entry, that is a disseisin: it is nO dis- 
seisin, unless 'there be an expulsion. Co. l^it, 181. 
1 Salk. ^46. pL 2. most expressly. 

Considering thisfeoffnient Asp^r^of the conveyance 
cfa common recovery^ as ^common assurance^ Sir Robert the 
younger had no power to make a feoffment. 

It i^iiot hereby meant that he could not in fact make a [ ^0 J 
feoffment : every man in possession may do it. But this Sir 
Ji.^. the son, could not convey an estate of freehold, by 
any rightful conveyance, as fine, release, or bargain 
and sale. And if hecatinot do it by SL.rightfui method, 
will the law permithim todo it by aaTo/?g/i//one? Surely 
uot* The possession of a tenant at sujfferance is not suf- 
ficient to build a title upon. Co. LiiL 278. Cro. Jac% 169. 
Cr«. JS//2. 238. 

Common recoTerics are now considered as a mere coth- 
Teyance: and the recoveror is a mtreiuslrumeKt andcrea" 
ture of the tenant in tail. 2 Rep. 77. CromwUCs case^ 
Poph. 23. Thetase of Crocker atul York v. Dormer. Cro, 
Ja€. (543. Sir John Ferrers^ and Sir John Curson v. Sir 
Richard Fennor and others. 2 Ro. Rep, 247. S. C. (at the 
end o^ it.) . 1 Mod.Jf07. Fonntain v. Coke. So, the knowik 
case of copyhold8,4 Co. 28. a. Cokes Complete Copyholder; 
aiM the case in 1 Ro.Rep. 223. Herbert v. Biniou. 

From all which cases it is clearly to be inferred, that 
the whole transaction is one common assurance; that thq 
recoveror is a creature znA iuttrument of the tenant in 
tail ; and that it shall not be considered as a tortious entry 
and a disseisin^ in a common assurance. 

Such a feoflfment as this, may be made by any person in 
possession: and, if this should be established, it may be' 
of very mischievous consequence : and will introduce a 
flew law^ contrary to b\\ former rules and doctrines. 

Tbc«^fl/. 14G.2. €. 20. considers a common recovery 
as a common assurance ; and has a proviso^ *' that the per* 
^' son had a title to make a tenant to the pracipe.'' And 
here is not the least ground to presun^e that the tenants 
for life either joined or surrendered their estates. 

Now if the law cqnsiderB tfaat some persons have this 
fower, and others have-not; the law wiH never sufier 
that to be done by fraud, which can not be done fairfy 
42nd regularly. And this whole tratisaciion is frauduhnt 
and €oltnsive, and done eo animo to bar the subsequent 
estates; and is therefore void, us a rttAUP, within the 

G 2 

81-82 Hilary Term, SO Geo. 5. 

1757. ^^^^ ^f Fermors case, 3 Co. 71. b. vrhich considers an ^ 
BOBiKsoK ^^® made by collusion and fraud, as no estate. ^ 

Y^ Lastly.-!— Admitting the facts of Sir R. A. the son's 

HOBINSOK. ^^"S tenant in tail iii possession; and also, that there 
4th poinu ' was agoodtenant tothepitfCff)(P:yettHE re-entry ofihe 
joiniresi actually avoided it, aud rete^td all the subsequent 
estates. ^ 
r . 8 1 1 ^* ^^'^ recovery was not absolutely void, but good as a 
-' COMMON co«C€3^flMce,yetitfva8 voidable: and if it wa« 
voidable, then it wsls actually avoidj:d by the entry of 
dame Ann^ upoa demises laid as far back as the 1 4tb of 
February 1709. 

To prove this, they applied the cases in 11 Co. 51. 6. 
tijford's case; Cro. Eliz. 540. Holcombt v. 'Rawlyns; 
1 Anderwn, 3o2. Sutler v. Baker : Filx-Gibbon 2-25. 
:fiunker v. Cooke\ Holt's Cases, 748 ; 1 Cb. 14 6. Sir William 
Pelhanis case; and a case in C- B. in ff. l^Ann^ Good" 
title v. Risden. 

It is like the regress of a disseisee^ which avoids alt inter- 
mediate acts, by relation. 
* ArgMjneiitex Mr. K«oz»/«r, who twice argued this Case for the de- 
pane dci fendants; included in his last argument all that had beet) 
or could be urged on that side of the question: and it wa$ 
to the following effect. 

The main question upon this case is, " whether the re- 
covery suffered by Sir jR. A, the son, be a coon recovery. 

For it is insisted by the lessor of the plaintiff, " that 
" the recovery is ro/J, as being suffered by a person who 
*' had only a bare possession, and had no potcer to make a 
•* tenant to the prtfc/p<f.*' 

But ^ £he recovery is good, the lessor of the plaintiff 
can hav^ no title : because Ac claims under a limitation in 
fee, expectant on the determination of an estate tail, 
which is barred by the recovery. 

The limitations, uwdGV which all the parties derive theif 
title, are contained in two deeds, dated 12th JunelGGD: 
which, from their bulk, and for distinction's sake, have 
been called the great deed and the little deed. 

The ^rea/ deed is a release, grounded on a bargain and 
sate for a year: the little deed is a covenant to levy a tine, 
and a declaration of the uses of the fine. 
In speaking to the question, 
Four matters mu8t4)e taken into consideration, viz. 
First, the order in which the two deeds were executed; 
and in what manner they influence eaqh other. And from 
r 82 3 ^^^^ consideration it will appear, whether the leasing and 
jointuring power* did EXjrr at the time when they were 
exercised by Sir Robert Atkyns the father. . * 

Secondly, supposing the leasing and jointuring powers. 

Hilary Term, 30 Geo. 2. 83 

didrtben exi^t^then whether those powers were well 1757^ 
EXECUTED by the said Sir Robert the fether, taylor 

Thirdly, supposing they wer^ well executed, then whe- ^' ' 
ther the leaie or the jointure, made pursuant to these noaDfi. 
powers* were an iMPCDiMENTio Sir RobertAlkym the 
«02i's suffering the uecovery. 

Fourthly, ft the recovery was good, then whether the 
RE-ENTRY ofdame Ann^ under the second ejectment, did 
AT01D it. 

Fir$t, as to the order in which the two deeds were exe» Hritpoiau 
cuted;and in what manner they iVf/7u^r/ctf each other. 

It is found by the verdict, that Sir JR. A. the father, 
being seised of the estate ii\ question and of several other 
estates, on \^June \QiSQ, made and executed three inden* 
tures. By the first, he in consideration of a marriage be^ , 
fore that time had with dame Mary his then wife, and of 
her releasing a former jointure made to her before their 
marriage, covenanted that he and the said dame Mary 
hia.wife^aud Sir Edvurd Atkyns (his father) would levy a 
fine to Edward Carteret and John Lowe, of the estate 10 
question. a»i/y; to the use of Sir £. ^. the father for life, 
jrafis waste ; remainder to the said dame ilfr/iy, for life, 
for.hi?r jointure; remainder to Sir R. A. the son aud the 
heirs male of his body by Lovu Carteret his intended wife; . 
remaioder to.thie right heirs of Sir Robert the father. 

By the second indenture (taken in the order as they 
stand in the verdict) the estate in question is bargained 
and sold by ^xxPsdwnrd A.^xnA^xtR. A. the father, to 
Sir Edwara Carteret and John Lowe^ for a year. 

By the third indenture, Sir Edward A. and Sir 2{o« 
^ert Am the father, in consideration of a marriage before 
that time had between Sir jR. A. the father and dame 
Mary his then wife, and of a marriage to be had between 
Sir rL A. the son and Lo^is Carteret, and of her marriage 
portion, and for a provision to be made for dame ilfar^, of 
ajointure^ release the estate in question {inter alia) to Car^ 
teret and Lowe and their heirs, to the use of Sir J2. A. the 
father for life, sans waste; remainder (except timber) to 
4ame iUi^ry for life, for her jointure; remainder to Sir Ri, 
A. the son and the heirs male of his body on the body of 
Z^mCor/^re^/ remainder to the right heirs of Sir R.A.r gg T 
the father. (Thes6 are all the limitations in thisinden-*- ^ 

ture, concerning the estate in question.) Sir R. A. the fa- 
ther covenanted with Sir George Carteret (the father -of 
Lovis C.)that for the better securing the estatein ques- 
tion to Sir Edward C and John Loxm and their heirs, he 
and dame Mary his wife and Sir Edxoard Atkyns would 
levy a fine to Carteret &nd Lowe and their heirs, to the 
mea before declared. 
In JfViVit^^ term 16(}9^a fine with proclamations was 

%ji Hilary Term, SO Gfeo. «* 

1767 •€vi^> ^^ ^^^ estate in question (together wittioOief tB- 

AY LOR ^^^®' '*y ^'' Edtoard A. Sir fi. irf. the fiither, an* 

^ ^ dame Marg his then wife, to Sir Edward CdrierH and 

' itottDfi. •'^* lio»e. 

r^o ViD. 969.1 ^^ ^^ ^^^ found, which of the two deeds was e5cecute^ 
^r«/ ; (though it was a matter offtct : ) so that the prio- 
rity of execution must be determined by the court, from 
€ircvm$ian€^ aod pr€$uniptwri8. 

The order in which the two deeds stand in the verdid^ 
concludes nothing, one way or the other: since they are 
placed there, as they were given in evidence. 

Then he proceeded to compare the two deeds, and tx^ 
reason upon them ; and argued very elaborately, that 
€r>Aertbe /iW/edeed was executed after the great dred; 
or that the little deed was made with a t4ew to control or 
correct the great deed ; or that the great deed, and the lit- 
^fe-deed.and the^'//r must beconsidered as owe assu r an c e, 
(though not as incorporated, and as one single act?) and 
in either case, there is an end of the leaning power, and 
also of thejotnttmtig power. 

And he argued very strenuously, that the^ite would ^x* 
tinguish both those powers ; because they were powers im- 
pendant and annexed to Sir R. A. the father's estate for lite, 
and HOT collateral to his estate. , 

9A point. Second point or head-— supposing the great deed wa» 

hst executed, or that it tontroh or correcij the Httle deed ; 
then • 

Whether the leasing and jointuring potcers were ivelf 
EXEcutED by Sir R. A. the father. 

He chose to say nothing as to the execution of the join- - 
tifwiig powef; no" circumstances attending the execution 
«f i/, having been laid before the jury : but confined him- 
« See the note sctf lo the Other, (the* learing power.) 
at the end of Now this lease is mrf, as against law ; being made 
io4,To5%c-' ^ ^® other purpose than to restrain Sir R. A. the sof 
counting for frosn suffering a recovery. For that restraint is againit taw. 
cartaiiiog^thii The power tosuJiT a common recovery, is k privilege 
argument * insepmrabhf incident to an estate tail :' it is a potestas ahe- 
r 84* 1 ^^^^'> which is not restrained by the statute de donis; and 
*• . has been so considered ever since 'faftaram's case. [1^ 

£. 4. 14.*. »t 16.] And this power ♦* to staffer a coramb» 
•* recovery, cannot be restrained by conditiosi, limitation, 
atstosn^ reeognixancet statute^ or covetumt, . 

That it cannot be restrained by condition, appears by 
C0. X#tVl.92d. b. 2^4. a. and Sondays case, 9 Rep. 1*28. 

That it cannot be restrained by limitation, appears by 
Cpo. Jac. 096. Pmf v. Hinde; and b^ Sonday*s oise^ana 
other bgeks. 

That it cannot be restrained by citsitcm, appet^rs t>y liie 
CM#<tf Sn^iir and JKmr, in Cb;f«r 6 4^ 2& 

Hilary Term, 30 Geo- 1 85 

That it cannot be restrained by recognizance, or by 175T. 
.s^n/tf^c, appears by PoMs case, cited an Moore 810. taylor 

That it cannot be restiuined by covenant, appears by the y^ 
caseofCo/Zi/iiv. Plummer, i Peere Wins. 104. mo^db. 

Thatan ATTCM^T ^ sniffer a common recovery cannot 
be restrained* appears by Corbe(% case, in the 1 Rep. 83« 
Mildmeyt case» in the 6 Rep, 40. and the case of Pierce 
y.Wim^m 1 Fentr.3^1. 

And that a conclusion to suffer a reconery cannot 
be restrained^ appears by Mary Portington's caat^ in the 
10 Rep. 35. 

. So that the question is reduced to this, '' whether that 
*' can be effected by a IpKAsb moiie puratanf to a power, 
*' which can not be attained by a condition^ limitation, 
*^ custom, statute, recognizance, or covenant.*' 

Since the law has been thus careful to preserve this 
incidental privilege of suffering a common recovery, to a 
tenant in tail, surely it will not permit this new ex)>eri« 
ment, equaUy deetruetive to that privilege, to take place* 
This is the ^st aitempt of the kind : and it is a sound 
rule of law, *^ that what never ha$ been, ought not to be 
•• permitted." 

The LEASE is also void, as being /miMfiife^: for it f .g^ n 
was made tadeprive Sir R. A. the son, of the profits of ^ 

tlie estate, and of an incidental power over it And tlie 
fraud which made it void, was apparent. And as the 
estates affected by the lease^ subsisted before the lease 
was made, the lease w^ fraudulent at common law. 

To prove the lease to be fraudulent, he relied on SavUe, CP<«» «f »»«• 
126. the caee of mUey. Bacon, H.31 Eliz. In n forme- ^^ 
don, the tenant pleaded non-tenure : on which, the par« 
ties were at issue. The jury found *' that the tenant 
** made a feoffment to several persons, to their own proper 
** use, before the writ purchased; and that the ieoSeew 
*' never took the profits of the [and ; but that the feoffor 
*' took them, until the day of purchasing the writ." And 
the doubt was, whether the feoffment was fraudulent as 
against the demandant And the judgment of the court 
was, " that it voj fraudulent and void." Now if the 
feoffee's not taking tlie profits, but the f]&offor*s taking 
them, was a reason for adjudgir\g the ieoB'ment to be frau- 
dulent against the demandant in that case ; the lessee'^ 
not taking tlie profits, not paying the reserved rent, not hav^ 
ingthe lease in hiscustodof; but the lsssor's contiku- 
iMO in possession and taking the promts to the day of Ms 
death^stera in the present case, to be full as cogent reasons 
lor determining this lease toihe Dacres to be fraudulent, 
against denaeJan and Sir it J. the son. 

If this case should be answered by sayic^ *' tlie feoff-* 
'' naeiUtberetn taentioned wasflnadji roid by 13 Mx* ^« 

85 Hilary Term, 30 GeOk 2. 

17^7* " ^* madei^ainstfravduIeatgiBotB ;*' tbei^ply wottid be 

TAYLQft '* ^^^^ tbaMtatute i¥a» luade inafiivni&noe ^ the comw 

^ ** mon law ;*' as appears by Twim's case in the 3 Rep^ 

iiOttDE* ^^- *• ^^ '^® argued that tlie leaie was fraudulent not 

only at common la^^ biU Ukemse by the statute. For the 

marriage of dame Maty with Sir R* A. the fether, and 

dame Marys releasing bier former jointure^ wers a taluabk 

co^mdercUiofi for the estate limited to dame Mary for life : 

and the marriage portion of Lovi$ CttrUret was a valuable 

ci^derdtioth which extended to the limitation to Sir R* 

A. the son> and (he heirs male of his body by Lovk Car" 


Here it hath been observed, '* that if the leaso bad been 
'* called in question tBhilst it subnUtd^ it could not have been 
'* avoided ; but ipould have been adjvdged absolute^ for the 
" benefit of the lessees ;" And a Xrow. 132. Aloor and 
Sarill, find other books, were cited as authorities to sup* 
port the observation. 

Answer — the objection to the lease is, '* that it nstkr 

*' ni D sulmst^' for the reasons which* have beeD/mentioD- 

ed : and if the lease was void, from the beginning, it is a 

r S6 1 contradktwn^ to say " it shall be adjudged at^olule.** 

^ A nd the authorities cited are, all, of condittonssafasequent 

to ti)e estate created at the same time, with the oondition: 

In which cases, there was no dgectiou to the estate; 

• (for tb.e estate was allowed to be well created but the 

objections were to the conditions, which were submqwnt 

to the estate. ... 

It has been observed farther, *' That the e^es of the 

•* court do not pierce further than the shell ot a <x>nvey- 

**: ance) not to the design of the maker of it." Here id^ 

d^d oiie must be at a Iq$3 for an answer ; for want of 

knowing what the sjull of a conveyance is. But there ia 

one thing that appears upon this special verdict, which. 

very much favours^ if it /does not direct establish what 

we have Veen contending for: and that is . the v^r^icf 

which is found to have been oito/icd a v SirR* A.ikgaon^ 

Qgainst dame Ann- the second wife of Sir R. A. the fit- 

thfJT ; which verdict is a dmffirmanct. of the leasing and 

joiniunng powers; and could 9at have been obtninedy if 

those po\yersAa(/ suimted. It is hrue» there iaa d^eci^ 

found also in the special verdict, which was made bev 

tween the> death of Sir &. A. fbe father md the briwgihg 

♦Theindeiitttie ^^^ ejectment, and to whii;b Sir R. A* tbeson is a partY:^. 

iripartite dated lo* whicb flced there 't%nmital " That Sir J2. A, the 

isth Mtynio. '* ^on then claimed the estate in ^estion, BY-aud iJHP^rn^ *«^|/^ GREAT deed;' which deed was not given in evU 

dence on the trial of the ejectment. But thi^ faiding i^ 

a spatter of no moment: For the iittie .deed was exeuu 

ted either before, or at the time» -or else.tsubseq«en4'to 

Hilary Tcnn, SO Geo. S. 


the time, of exeeating the greet deed. If it was evecut- YtSJ. 
ed 8vbsequ£/U to the execution of the great deed, then the j^yloe 
little deed and fine control the great deed, by extinguuh^ y^ 
wg the powers. If it was executed befott or at the time hoadb. 
of execttting the great deed, then the two deeds and the 
fine may be taken tt$ one aviuranee ; ( V. ante 83/) And 
m that case, the little deed corrects the great one, by lt« 
niiting the estate in question, to Sir R. A. the father^ 
discharged of the powers. And in either case it may be , 
said, with great truth, ** That Sir A. A. the son claimed 
*^ Wider the great deed.** However, supposing the person 
who drew the deed, bad mistaken the law, and made a 
fedse feeita), surely a mis-recital of matter of law will 
not CQHcbide a court of justice. And what Sir JR. ^. the 
8on*8 own opinion upon the matter was, will appear by 
the recent pursuit of his title against dame Ann; for Sir 
JR. A. the father died in February 1709: and in Trinity 
term following Sir JR. A. the son brought his ejectment 
against dame Ann^ ^l>o was then in possession of the 
estate under the jointuring power. 

But it having been found, '^Tbat afterwards dame 
^* Ann brought an f^ectment, and recovered the estate, 
** upon two demises, one made by herself, and the other [ 87 J 
*' by themirviving lessee for life;" it hath been insisted 
that dame ^bh could not hare obtaified that verdict^ 
VKLKSS the two pozpersi or one of them at least, had then 

To which it may be answered, that it doesnot appear 
that the Httle deed was produced in evidence^ upon the 
trial of that ejectment. Or perhaps Xh^jointuring p0wer 
onbf might then be in question : Or there might have 
been other reasons for the difference in opinion. But bow^^ 
ever it might happen, still that verdict is not conclsh 
sive. ' 

Here, Mr« Kuowler ai^rued that the lease to the Dacres lstMt.oVimU 
must have determined in 17II9 upon the death of Siri2. ^^^ontx 
^. the son without issue male : and that the lessor of the 
plaintiff was' burred ofhi^remedy by this action of eject* 
ment, {being an action grounded on an entry;) because, 
it was not brought within OO years after his title accro^ 
edt and consequentiy,- his entry was not lawful, by 21 

But tbese parts of his argutnent are omitted, for the 
reason given in the note, p. 104, t05. 

Third point or bead.-^-^Bnt supposing the leasing and 
the jointufing powers did exists and toere well executed by 
Sir S^A. the- rather i the matter which fells next ad 
consideration i^, ^ whether the lease or jointure made in 
*' execution of chepowers, were an impediment to Sir 
*' B, ^ the son's 4^fkfif^i the reooveryy 

68 Hilary Term, 90 Geo; 12. 

1757. The point we flhall eodeatour to establwh is* QaA 

TATLO& J^t"^' EarU^ the pereon against whom the wnt of entry 

y^ was brought, was tenant of the frtehaU when judgment 

HOR0E. ^^^ given against him in tbecomiBOn recovery. Atyi 

we shall begin with observing that i\^ejomiyr^ or the 

letue cbuld be no impediment to Sir JB. ^ the son's suf- ' 

fering the recovery; Afcutue neither of the lessees or dame 

jinn were in possession of the estates, at the time when 

Sir R. A* the son made the feoffment to the said Jamts 


* Kote— Upon * If the court should be of opinion, on the authority 

bis first mrgn- of « Awterson, 196. " That the livery under the letter of 

"i^(l!^°thc " ottomey of JoA« Dacres, vested tbe freehold in his co- 

authority of ** lesseesKs well as in hiniself ; and not in himself on^ ;*' 

vMf ^^^' ''^'* *^^" ^^ insist that the livefy was void, because the 

LrS** ^1 '^*®®^ ^^^ ^" possession bv the d ebd. For if tenant for 
I 67 ^ ''^^ ^^^ ^ power to make leases for lives, and makes a 
*' Tbalt mi*fh^'. '^^ ^ 'i^^ ^ iitenf^ the livtry is void; because the lease 
boidiMwedby^ takes ^ett BT <Ae DCBD ; for bg sealing the deed^ the 
thelirery, to power is executed. ^LevinXf 149. IVigsonatul GarrA^ 

iSSScSr ^ '^^^^^^ ^9^- r*« ^'"•^ of Leieeeter's case. And tbe 
jbhnOw^res Hvery bttttg void^ the lessees were.KSTBK tit possession: 
JJ>« «»»»••' for it is found by the verdict *• that the lessees or either 
mttQi^touke '* ^f ^^^^ ^^^ ^^^^^ ^° possession otherwise than by iAe 

it: wtilcb John ** LIVBrY." 

^nj ill 1705, And as the /mm was no impediment, so the^Wufie 

fSratitheiL^Bat ^^^'d be none. For it is found " that dame Ann being 

bediduoinow ^ in possession by virtue of the deed of appointuent, 

intiftiipoa thit •« and claiming the estate for her life for her jointure, 

iemed^tbcr ** ^^ sJ^ctment was brought on tbe demise of Sir U. A. 

to giro u up. ' ** the son and J. Walker his trustee, against dame Ann 

^ and the tenants in possession, for the recovery of the 

** estate ; and that there was a verdict for the plaintiff, 

'* and judgment on it«*' And " that a writ of possession 

** was awarded ; and that. soon after the judgment, and 

" during tbe life of dame Ann^ Sir IL^A. the umenUred 

^ into, and was tit possession of the estates, and that 

** he continued in possession to the day of his death.*' 

By this, it appears that thejowftftv and possession of dame 

Ann was hemoveb out ofihewau. 

It can be no objection to the legality of Sir JS» A. the 
son's possession, " that the judgment was not executed 
** by a writ of possession :" since sotnethiog equivalent 
to it is found, viz. " that soon after the judgment Sir £» 
'' A. the son entered into and was in possession of the 
^ estate.** And there is no rule of law iB9ie uncoiitro^ 
veited, than, ** that a recoverormay enter fs^ktmi a writ 
^ of execution, where tbe demand- is certain." Tbe 
denmndwt, after judgUMnt in a common reoovenr, tmy 
enter, or take out . exeoation a^t hts^ election^ aktlky$ 
case, 1 Rep. IQQ, Mary Portington's case, 10 R^ S& 

Hilary Term, 30 Geo. 4. 85 

That it cannot be restrained by recogHizance, or by IJST. 
stmtuU^ appears by Poole's case, cited in Moore 810. ta y Loa 

That it cannot be restrained by covenant^ appears by the y^ 
C2L&eo[CoUin$\^ Plummet, I Peere Wnis. 1 04. ho^db. 

Thatan ATTCMifT ^0 $u§€t a common recovery cannot 
be restrained, appears by Corbet % case, in the 1 Rep. 83« 
Mildmejft case, in the 6 Rep. 40. and the case of Pierce 
v.WiH^m 1 Te/i^r. 3-21. 

And that a co!«CLustOK to suffer a recovery cannot 
be restrained, appears by Mary Portington'soaiB^ in the 
10 Rep. 35. 

. So that the question is reduced to this, •* whether Mot 
*' can be effected by a leasb made purseuutt to a power, 
*' which can not be attained by a condition, limitation, 
*' custom, statute, recognizance, or covenant." 

Since the law has been thils careful to presenre this 
incidental privilege of suffering a common recovery, to a 
tenant in tail, surely it will not permit this new ex)>eri«' 
ment, equalli/ destrueiive to that pHvilege, to take place. 
This is the first attempt of the kind : and it is a sound 
rule of law, " that what never has beea^ ought not to be 
•• permitted.'* 

The hZK&K is also void, as being fraudulent : for it f .gj "j 
was made todeprive Sir R. A. the boo, of the profits of -^ 

the estate, and of an incidental power over it And the 
fraud which made it void, was apparent. And as the 
estates affected by the lease, subsisted before the lease 
was made, the lease tt^a fraudulent at common law. 

To prove the lease to be fraudulent, he. reli6<l on Savi/e, [^^^. f "°"' 
126. the case ofWkUe v. Bacon, H. 3i Elix, In a Jorme- ^^ 
don, the tenant pleaded non-tenure : on which, the par* 
ties were at issue. The jury found ** that the tenant 
** made a feoffment to sereral persons, to their own proper 
^* use, before the writ purchased; and that the feoffees 
*' never took tkeproJUs of the land; but that the feoffor 
** took them, until the day of purchasing the writ," And 
the doubt was, whether the feoffment was fraudulent as 
against the demandant. And the judgment of the court 
was, " that it was fraudulent and void." Now if the 
feoffee's no^ taking t4ie profits, but the fj^offor's taldng 
them, was a reason for adjudging the feoffment to be frau^ 
dulent against the demandant in that case ; the lessee's 
not taking tlie profits, not paying the reserved rent^ nothav-% 
ingthe lease in his custoaif ; but the lsssor's continue 
iNO in possession and taking the projfits to the day of Ms 
<2roM»seem in the present case, to be full a$ cogent reasons 
for determining this lease to ihe Dacres to be fraudulent, 
against dame^M and Sir R. A. the son. 

If this case should be answered by saying " the feoff* 
'' aent therein tuentionisd was made void by 13 Mliz^e. 

90 Hilaiy Tetoi> 30 G«a* 9. 

Yjfsn. tscoverbr. And if the judgment in e^j^cftmen^'dKA ndt 

T AY LOB pi^du<^® ^^i> efleet, the lessorof the plaintiff ^eould not 

^^ enfer, or be entitled to the writ ef habere' fatUu foiteaionem : 

uoftDE. ^^^ ^^ hftiing a right to tnter^ and to eue out that writ^ 

infm bh right to the po$se$$ioM. Wuivsv theJu^meMt 

standi in fobcb, it femove$ an intervening estate <Nlt^ of 

the way : and during tbat time, it is the same thing, m$ 

if it had never exi$teS* And the recoTerDi's right to the 

possession will continue till the judgment is revened bjr 

error, orfalsj/kd in another action. Like theoase where 

the tenant in tail suffers an erroneous recover ; so long as 

the recovery remains in force, it is a bar to the tail, and 

the issue in tail has no right to the estate^tail ; for if the 

tenant in tail should disseise the recoveror, and die, the 

issue would not be remitted ; because he has but one 

f 90 3 ^^^^ ^ ^^^ '^"^' (which is the title by descent ;) and there 

must be two titles in the same person to make a remitter. 

Co. LitL 349. a* 

Now the consequence of this is» tliat the right to the 
possrMiofi, and ihtrtnuiindfr fnfofY, meeting in tbe sj^m« 
penom and that person being Sir R. J. the son; the 
possession and the remainder in tail uiiiTBn,andStr 
JR. A. tbe son became seised of an estate tail executed, or 
(in other words) of an estate tail in iNM^e^Wo/i. 

If the fmiure of an action of ejectment, andtheconse^ 
qnence resulting from a recovery in it, be considered, this 
will appear .m a clearer light* 

Anejectmerit is ajMsaenorv actioni in which aloKMt 
^l titles to land are tried : Whether the party's title is, 
to an estate in fee, fee tail, for ' life, or for years, the ret^ 
ttttdy is by one and the same action. 1« an action of 
^ectment, the plaintiff recovers o»/y the possessioa of 
the land : And tbe execution is, of the possession iMi/y. 
But if 4he lessor of the plaintiff reeovers only rAepos* 
sesiion of the lands, it may be asked " haw he becomes 
'* seized according to hi$' titk." To which it may be 
answered, that when a person is in possession by titlof (as 
every person is, who enters in execution of a judgment in 
ejectment, because tlie law does no wrong,) the possea* 
sion and title unite. For it is arule of iaWr " thattiriKn a 
*< man, having a title to an estate^ comes to the posses* 
" sion of it b^ lawful nteans^ he shall be to possession 
^ ACCOROIN6 to Us titk :'* As where the title is to have 
a fee, he becomes seised in fee ; wheretbe title is io haTft 
an estate tail, he becomes seised of an estate tail; and 
so on ; the law casting the estate upon him according to 
bis title. < And were it not so, an ejectment would be 
the most ineffectual remedy for the trial ottitla to estatesd 
Astd it woukl never answer the purpose for which it 
was brought into use, if (as tbe counsel on the other side^ 

Hilary Term, 80 Geo. S. 91 

wmlA have ifc) the lenor of ibe plaintiff bad no mare thorn 17 j6» 
tf fans poosesstOQ, a/'ter an exacutioa or entry on a judg* tat lor 
ment in ejectdnaent But tins ia not all. For a great .«/;« y, 
Mm^y would follow^ were it otberwiae: A man would Hoans^ 
ha^a a rigbtful posseision, witb an immediate remainder 
to bim$dfi» tail ; a notibo whicb never existed, till this 
case GSme to be debated* 

What that converts an estate tail in remainder into 
aor estate tail txtcuied^ in any case? certainly, nothing 
more or less than tbe possession's ooming to the remain- 
der in tail. For if there is tenant for life with remainder 
toa third person in. tail, nothing comes to the remainder- 
man upon the d«ath of the teciut for life, Aul tbe posses- 
sion : for tbe estate tail was in him befoftn 

And whilst the estate tail continued ex bcut fin.Sir R.J. f 9 1* J 
tbe son made tbe feofl'ment te Jaaiei Earie: which dis- 
<9oatiiiiied;the tail, and vested a defeasible fee in him : and 
the pr^tcipe^ upon which the common recovery was sufler- 
ed, hehiig bfought against him ; and Sir R. J. the son 
lieing a party to the common recovery, as vouchee; 
tli0 common recovery, thttscircnmstancted, iamd tbe 
estate tail and the reqiainders over. 
^ And though dame utfim falsified the .recovery in efect^. 
ment brought by Sir A. ^. the son, by the judgment in 
tbe ejectment afterwards brought hy berselC yet that 
iaisification bad fto, ether effect upon the estate, ttiftf^tQ 
revive her right to the possession. Like tbe case just OQW 
Cfted^of an erroneous common recovery suffered by. the 
tensint in tail ; where, if the issue in tail reverses the coin« 
sion recovery by a writ of error, the reversal revives hie 
aUetatkettt^iail: and consequently he is theutensiit 
hi tail, by remitter. So that dame Jnn* by means of th^ 
recaovery in tbe ejectment brought by herself, havii^tbe 
lagbt to the possession, ieceune tenant for ijft aoaik, in 
ponession; with a renutifider in pee rbereupon expect^ 
ant TO Ai MBGo^ERoa in the cosisioa recovery* or to the 
person .to.whpse use the comman recovery was declared. 

That esla^esrmay spea and shot, or be epread and expand 
as aeenis k^^pps. is not unusual in our law. If an estate 
is Uaftitedto 4^ for life; remainder to his first and other 
sotts^io tail ^ remainder to A. and the heirs of his body: 
tUl JAf bee issue, he is seised of an estate tail exemiad: 
nfpon the birth of a son, that estate opcnt, and lets in the 
wcai aad ^. thereupon becomes tenant tor /j^ with re* 
maindeir^to bis son in tail* And this was l^» Bawk^s 
esse, il Co* 80» So if lands are limited to atl the chil- 
4reB, either in possession, or remainder ; upon tbe birth 
ef this;^ctf diildj tbe whole estate veats in him or her ; 
npoa tbe birth iS a^iotktr child^ tbe estate cpem, and 
5 . .; - ... 


Hibny Tetm, SO G«o. 9. 

t 92 

[Cowp. 701,] 

1757* ^kes in. thai child; and opfeMi in like manoeroo tii0 
TAYLOJi ^^^^1^ ^f ^^V ^'^h^f cbrid. 1 Ld. Raym. 810» 311, Eatl 

V. ofSutsix V. Temple. " £ Fer/t* 5f^. 6boA v. Coo^ 

BO ADS. ^"^ ^^^ i^soliition of the quettion oow under consider- 
ation does not altogether depend on the quaktity of 
the estate which Sir jR. A* the ion had^ at the time when 
he made the fcofl'ment: it depends on the qvalitt cf 
the CONVEYANCE he made Meof, 

All the gentlemen who have argued this case on the- 
other side, ha-et blended end confounded the several ofbp 
1 RATIONS o/difperent CON vfiYAif CBS ; and havenot 
considered them with thst distinction and precision that 
is necessary for the solutic;;) of the present question. If 
due attention were given to the operation of the several 
conveyances which the law has established, the seem* 
ing diiiicultiesjof this part of the case would he removed.^ 
A his conveyances operate AS<iPEOFftt&NT» or Asa 


A PEOFTMfiKT operates on the possemon : without vnsy 
regard to the estate or interest of the feoffor. A gramt 
operates on the estate or interest which the grantor has 
in the thing granted. But, to be more particular— accord- 
ing to LoM Coke's enumeration, a man may purchase 
or convey lands by ten manners of coinreyance ; m. by 
feoffment, grants fne^ common recovert/^ exchange^ teleoH^ 
confirmation^ grant of* reversion with attornment^ bargnift 
and sale, wilt. 

To make a feoffment good and valid, nothing is want« 
ing, but potsession : and where the feoffor has pos<(esHion, 
though it be as bare and naked as the gentlemen ^ 
would have it, yet a freehold or fee^imple passes, by 
reason of the lioery. Poph. 89- Litt. % 695, dOD» 611, 
098. Co. litt. ddti. b. 3d7. a. 

A gfAii^paases nothing but what the grantor may law-^ 
FULLY grant. Poph. 39. Litt. $ 608. 

^ ^ A fine and common recovery are likened to a feoffment : 

tee for yran'is for oue is caUed a feoffment, of record, and the other ia 
witi "mSJicji ^^ ^^ ^ *" ^^^^ ^^^ feoB'ment of record. That which 
«n others may' occouhns the Ukeness between a feoffment fine and reco- 
plead niL kab. ^fety, is, that they all pass a fee ; thouhh the feoffor, 
if theZiusSj"' ^^*^^r, or tenant HAVE none. Co. Litt. 9. b. But, to 
only bad ttbin g^^^ them this uniform operation, the conusor in the 
•tuietimeof fiM,fln<i the tenant to the praeipe, must be seised of a 
^l^t3 f^^^^: ^ '• «^ ^^^^ fo*" Hfe, at least; otherwise, the 
Vin. 335. (o. ^^ t»V be avoided, by the plea Of *• partes finh nUhabu^ ^ 
" eruni /' and the recovery, by the plea of noQ-tenui^, i. «. ' 
'* that the person against whotn the writ wns bfOi^ht. * 
•• was not tenant ot the freehold, hf right, or by mtrng*** ^ 
By tbisj it appears that a^ae awttt eomtnen frc9veryt»' 

[3 Atk. 



[ Afiiieby lfli« 

l>. 4.)pl.l. 
bat itMemt it 
^^nld be tuf- 

Hilaiy Term, SO Geo. 9. 


holOtwoid^foTwamt of a freehold: but it no where ap« 1757* 
peareyQOtwithstaiiding what has been urged, tliataaet* tayloii 
te/e io tbe feoifbr, is necessary^ to support a feoffment. y. 

But it does appear, and I have a great authority for it, koroc* 
that it is no plea^ in avoidance of a feoffroenty to say that 
" tike feqfior has nothing in tbe land, at the time, of the 
*^ fe^nktut-r because the/^mi TpoMMts by tkehiyEKT; if 
tbe operation of tbe feotfment is questioned, the oii^plea 
is " tr eafie^a pas:'* which puts fin issue onfy ike 
I.XFERT, This IS the opinion, and this is the language 
ofLittieiom : 10 Ed. 4. 8, 0. 

All OTHER eonofyaNces, as ereAa7ige,re&af«, coR^rma- f 03 1 
tion^ grant of reverskn^bargainand la/r, imtf, pass nothing L ^ J 
but what tbe grantor may LAvrpuLiY conrey, without 
tiver^ ; and, on ttrat account, are in the nature of a %rani. 
Utt. S OOti, 607,609, 610. Hardr.AXO. Edwards^. Slaterk 
It is the operation of these conveyances, that tbe geyi* 
tlemen, in the course of their argument, have applied 
ton feoffmekt: but with what propriety, is submitted 
to the court, upon what is now disclosed. 

But it has been said, '' that such a feoffment as thie, 
** may be made Ay ant person in possession ; and if 
** established, will introduce a new law in Westminster^ 
^* Hall, contrast to aflpoRMER rules anddoctrines.** 

To which objection, the answer is, ** that it is most 
*' clear, that a feoffment mat be made by ant person in 
" POSSESSION :*' for it is the doctrine the law teaches ; and 
it has been tbe language of the greatest profeatore of it. 
Lord Coke, in his comment on the 25th chapter of fV. S« 
{which gives a writ of novel dissaws, wh^re tenant for 
years aliens in fee, by feoffment,) grounck his distinc* 
tion between cases which are within the act and cases 
which are not within the act, on possession oitlt. For 
be says^ though the act speaks of an alienation by feoff« 
'' ment, b^ a tenant for years ; yet it extends to tenant 
'' by d^tj statute merchant, atatutei^ap/r, tenant at 
^' triY/, and tenant at suferance; bscaosb all these have' 
** apos«E$^ioN: but it is otherwise of a bailiff; for 
** he hath M POSSESS! ON fl^ a//.'* This shews bow greatly, 
one of the gentlemen is mistaken, when be asserts ^ thafc 
*' a cooveyajDce of an estate of freeboId,by a tenant at wf^ 
** Jtraace would be void* :** sinc^ it appears by tbe sta* * V.aatep. s^, 
tute,and by the comment upon it, '* that a feoffment by 
**' nlUNxmtift SHff9ratu:e(vt\io has no more than a bare 
'* possession). wUl unquestionably pass a treehoid.'* And 
ihp c»s^ oiBaikr V. MnekmoMton^ Cro^Jae. 169. proves 
aa more than tii^t tbeoclease of tenant in tail to a tenant 
at aufieraboer is not ffood for want of a privity between 
tbesL JBeaidcSia c^sase, (as has been alieady observed,) 

94 Hilary Tehn, 30 Geo, J. 

1757. pssses no greata- estate than the releaser can tawftJly 

TATEoa eonvey. 

y^ Lord Ch. Ju8t. Holt lays it down as clear law, in the 

HMDC*. case of Hunt r. Burn» IL I Ann^/* that if lessee ior years 
** makes a feoffment with livery ; thoug^h the lessor be 
" on the hnd, protesting against it, yet the land passes; 
•• because the lessee tvas entitled to the ponession.'* And 
Lord Ch. Just. HoU is supported in bis opinion, by the 
case of Read and Morpeth v. Errhtgfou^ Cro. EUz. 3i2U 
where the question was, "if a feoffment by lessee for 

r 94 1 " yearSyt\\e\e^%or being upon the land, was a good feoff- 
** raent :'* for it was pretended that his being upon the 
land guarded the land, so that no feoffment could be 
made. But the court was of opinion that the feoffment 
was good ; '' because the lessee had the sole right to the 
" possKSsios ; and livery ought always to be given of the 
•* possession,** 

Notice has been already taken, that it is no plea in 
avoidance of a feoffment, to say " that the feotior had 
" nothing in the land at the time of the feqffmentJ'* Let 
us here add the form of pleading a ftoffment^ by tenant 
' for life^ and tenant for years; good pleading being an 
infallible test of th^ law. If feoffment in fee is pleaded 
by tenant in fee the conclusion is, •* that the feoffee was by 
•* virtue thereof seised, in fee :* and the same conclusion 
is made on the feoffment in fee of the ten»nt for life and 
tenant for years," that by pretext thereof the feoffee was 
" seised i/i/cf." The entry of Albamfs case in 1 Rep. 
108. is a proof of this. 

It appears by Jenning^s case in the 10th Rep. 43. ** that 
" the feoffee of lessee for years was a good tenant to the 
" precipe" In the case of Smiih v.Paikhuntr or Dormer 
aiKl Fortescue^ it was admitted that there would have been 
a good tenant to the pracipe^ if Mr. Just. Dormer had 
made a feoffment And the question in Sir fVilliam PeU 
banCs case, 1 Co. 14. b. is an admission ** that the feoff- 
*• ment of lessee for years sviWpass afreehold^ 

^* TXifX possession okly would support a feoffment,'*' 
was the doctrine at Westminster^Hall^ in elder timca. In 
Perkins (a book of no mean authority,) section 200, it is 
laid down as a rule, "that without possession^ a man can« 
" not make livery." A feoffment by the lessee for- years, 
though the lessor be upon the land^ passes the land : and 
the reason for this is rendered in the book ; ^'because the 
*' lessor had nothing todo with the possess ion." 

It was the law, when lands were devisable only by cus^ 
torn, that a man might devise ** that his lands should be 
" sold by his executors." In which case, the lands de- 
scended, upon the death of the testator^to his heirat Jawr 
and the executors took no interest by the will. Bubing-- 

Hilary Term, 30 Geo. 4. 85 

That it cannot be restrained by rtcognizance^ or by 1737. 
sMute, appears by PooU's case, cited in Moore 8 10. . t a y lo a 

That it cannot be restrained by covenafU, appears by tUft y^ 
case of C0//111 J v« Plummer, i Peere Wms. li)4. HOftOB- 

Thatan ATTCMifT fo $h§€T a common recovery cannot 
be restrained, appears by Uorbif^ case, in the 1 Rep. 83* 
Mildm^yn case, in the 6 Rtp. 40. and the case of Pierce 
v.WtH^m 1 re/i^r.Sai. 

And that a conclusiok to suffer a recovery cannot 
be restrained, appears by Mary Partington's osjut, in the 

So that the question is reduced to this, *' whether that 
*' can be effected by a LfiASB iTuuie pursuant to a povner, 
*' which can not be attained by a condition^ limitation, 
*' custom, statute, recognizance, or covenant." 

?ince the law has been thils careful to presenre this 
incidental privilege of suffering a common recovery, to a 
tenant in tail, surely it will not permit this new ex)>eri« 
ment, equaUy destructive to that pi-ivtlege, to take place. 
This is the ^st attempt of the kind : and it is a sound 
rule of law, " that what never has been^ ought not to be 

The LEASE is also void, as being fraudulent : for it f .gj "j 
v^as made todeprive Sir R. A. the son, of the profits of ^ 

the estate, and of an incidental power over it And the 
fraud which made it void, was apparent. And as the 
estates affected by the lease^ subsisted before the lease 
was made, the lease w^s fraudulent at common law. 

To prove the lease to be fraudulent, he. relied on SavUe, [^^^ "®"" 
126. the cast of White v. Bacon, H. 34 Eliz, In a forme- ^ 

don, the tenant pleaded non-tenure : on which, the par* 
ties were at issue. The jury found ** that the tenant 
** made a feoffnient to sereral persons, to their own proper 
** use, before the writ purchased; and that the feoffees 
** never took the profits of the land ; but that the feoffor 
•* took them, until the day of purcbjising the writ." And 
the doubt was, whether the feoffment was fraudulent as 
against the demandant. And the judgment of the court 
was, " that it was fraudulent and void." Now if the 
feoffee's no^ taking t-lie profits, but the feoffor's takii^ 
them, was a reason for adjudging the feoffment to be frau^ 
dulent against the demandant in that case ; the lessee's 
not taking tlie profits, not paying the reserved rent, nothav^ 
ingthe lease in his custoaii ; but the lessor's coxVtinu* 
IN6 in possession and taking the profits to the day of Ms 
<2roM»seem in the present case, to be full as cogent reasons 
for determining this lease toihe Dacres to be fraudulent, 
against dame^/tn and Sir it. A. the son. 

. If this case should be answered by sayii^ *' the feoffs* 
'* aent therein tuentioned wasautdii void by 13 Elix. e. 

9^ . Hitetry TeToi, 30 Geo. 2« 

1767. S^ff ^fi^T h^ b^ convi^yed the uae, would batFemnde tfce 

TAYLOR i^''^ widoubteity good ; the like ftoff'meni t^uld bate 

y^ ihad6 a good tjbkant to tub i^aiBCtPK: and for thi# 

H0«0£* P'*^*^ reason ; " because tbe fe&ff^ment ^ABiiso A t^%^^ 

"floLto/* How would this great judge have been Bufprized, 

to have heard the operation of a conveyance which il4re-> 

lied on as the basis of his titles t6 hid estated^ doubted vl\A 

debated ! This ca§e is an additional authority, *^ that the 

' . " feoffment of a tena n t at fufference w itt pasfc a fee," For 

qftet tMt cestHjf ^ui use had conveyed the use by bar- 

r 96 1 ST*^'^ ^"^ ^^^^» ^^ ^^ *'^ /on^rr a tenant at Will, te his 

^ -* feoffees. It is likewise a proof " that the feoffment of a 

" dtforceor. Who is a wrongful mth-holder^ pajsses a fse.^ 

For fffler the li^t-gain and ^)e, the ceUuy qui use had no 

right to the possession ; but was a wrongful trith-holdeK 

\ Ufpbnthis, It is submitted, whether the cofijihfiation of 

this doctriiie, by tin* judgment of the court, will introduce 

d Nfc^ law into (t^eUniiHder-Hall^ fiOKTAARY to all for*- 

M^rures and doctrines ; or whether it will tiot rather 

AftVi VE ^ (hctrine ialmost ^^otn out of mftfttory. It rs so 

long sftwie a feoffment wa« ih tomtnbnuse^ that it ia bO 

Woftder the gentlemen* should think the doclHue new'; 

atid that the pabi^ERTits of aftoffmeni should be so 


But it has b^en *aid •' that the feoffmetit of tenatift in 
" tail Hi remainder expectant upon an estate for 4ife, tvill 
" i^O't make n DisfcoNTiN'UANCE: ihirugh the feofiVnept 
" was made ^^ith the Consent of the tenant for life:'* 
and for this, thfe case otSw\ft t. Heidh, Cal^thtUB, 109, 110. 
wascfited. This mtist be admitted, b^cau^e a febfitkient 
does ffof make ^ disconlimance^ unless the tenant in tail is 
seized of the Restate tail, in pdssemon. Bat does this case 
pto^e •* that a feoffment by a remainder-man with the 
" consfent of the tenant fot- life, « voib ?" feothing tess. 
The question, in the casfe cited, " whether the feoSiBent 
** fHade a discontinuance ^ ddmitted the feoffment to bt 
GOOD : tor tbe doubt was upon tbe operation of it 

To put an end to the question, therfe is a case, irt wbtch 
it was deteiminied " tbat t\\Q feoffment of him in reversion 
*• or remainder, in the absence of the tenant fot H/k^ is a 
•' GOOD feoiTVnent/* It is in Dyer, 34a. Th^ case was, 
that he in remainder in fee ehfeoffed a slrartger, iti tbe 
absence of tW tenant fbt- life; who neithier attohied, ner 
assented to the feoffment, but occupied the ^^tate, during 
his life : and it w^sboldfen to bet a good ftoffrnettt for the 
fee-simple. Whfete is the difference between this case, 
arid the present? In the case before th6 coiirt^ wa& n6t the 
ffedffiirferft made 'hy "ftie remainder-ma#i, in the abMtift?6 ot 
Dame Atirt, the 1:enafnt for life ? Did *be eter atforn or a»- 
stfiftf? A^tM dm hM Sl^^CttJ^y the emtte, dttriH); her liCef 

Hilary Term, 30 Geo. 1 85 

That it cannot be restrained by rtcosmzancc, or by VJSJ. 
sWafe, appears by Poole's case, cited in Moore 810. xAYLoa 

That it cannot be restrained by covenant, appears by tUft y^ 
case of Co////ijv« Plummet, i Peere Wm$* li)4. ho^db- 

Thatan ATTCMifT ^0 sufer a common recovery cannot 
be restrained, appears by Corbet % case, in the 1 Rep. 83. 
Mildmeyi case, in the 6 Rep. 40, and the case of Pierce 
v.WtH^m 1 Feittr.Z%\. 

And that a conclusiok to suffer a recovery cannot 
be restrained, appears by Mary Poriingtons case, in the 
10 Rep. ^5. * 

. So that the question is reduced to this, *' whether that 
*' can be effected by a LfiASB macie pursuant to a power^ 
** which can not be attained by a condition, limitation, 
*' custom, statute, recognizance, or covenant." 

Since the law has been thiis careful to presenre this 
incideutal privilege of suffering a common recovery, to a 
tenant in taii^ surely it will not permit this new ex)>eri- 
ment, equally destruetive to that privilege, to take place. 
This is the first attempt of the kind : and it is a sound 
rule of law, " that what never has beea, ought not to be 
*• permitted." 

The LEASE is also void, as being frauiident : for it f .gj 1 
v^as made to deprive Sir R. A. the son, of the profits of -^ 

the estate, and of an incidental power over it And the 
fraud which made it void, was apparent. And as tbe 
estates affected by the lease, subsisted before the lease 
was made, the lease wbls fraudulent at common law. 

To prove the lease to be fraudulent, he. relied on Savile, ^^^^ ^^^^' 
126. the case ofWhUe v. Bacon, H. 3i Elii. In a forme- ^ ^^ 
don, the tenant pleaded non-tenure : on which, the par- 
ties were at issue. The jury found *' that the tenant 
•• made a feoffnient to sereral persons^ to their own proper 
^* use, before the writ purchased; and that the feoffees 
*' never took the profits of the land; but that tbe feoffor 
*' took them, until the day of purchasing the writ.** And 
the doubt was, whether the feoffment was fraudulent as 
against the demandant And the judgment of the court 
was, " that it was fraudulent and void/' Now if the 
feoffee's not taking tlie profits, but the feoffor's taking 
them, was a reason for adjudgii^g the feoffment to be frau^ 
dulent against the demandant in that case ; the lessee's 
not taking tlie profits, not paying the reserved rent, nothav-^ 
ingthe leaee in his custody : but the lsssor's continue 
ING in possession and taking the prc^ts to the day of Ms 
<2r<iM»seem in the present case, to be full as cogent reasons 
for determining this lease to ihe Dacres to be fraudulent^ 
against dame^M and Sir it A. the son. 

. If this case should be answered by sayii^ *' tlie feoff* 
^* aent therein tuentipiied was XDadji void by 13 Mliz^e. 


Ilrlary Term, 30 Geo. ^. 

1757. If tenant in tail in remainder disaetKi the tenant fot 

TAYLOtt 'ife»' ^^^ during the continuance of the disseisin sufler»a 
v. common recovery ; by their own admission, the commoo 

MORDR. recovery is not avoidable by reason of the dhsenin. So, 
where trustees to preserve contingent remainders during 
the life of a tenant for years, have conveyed the freehold, 
r 93 1 to make a tenant to the pracipe^ in order to give the re- 
*- "^ mainder-man in tail an opportunity of suffering a reco- 

very; there is no instance of such a recovery being set 
'aside at law> upon a supposed practice between the tenant 
for years, the trustees, and the remainder-man in tail. 
And if a remainder^man in Uiil, who comes to the posses- 
sion by ft scrongful acty ox- by stratagem and contrivance^ 
may make a te'iiant to the pracipe, in oixler to suffer a 
recovery; surely, a remainder^man in tail who comes to 
the possession: by a lanful act, may do the same. 

Where tenant in tail is party to the recovery, as tenant 
or as Vouchee, such recovery is not in the eye of the law 
either fraudulent or collusive : because tub law kas made 
the estate-tail, and all the remainders, and the reversion 
expectnnt on it, subject /o^Ae pleasure of the tefuintin 
tail^ and girew him a aicfHT/o bab them all. i/'a re- 
versioner expectant upon an estate tail could trsoid a reco- 
very suffered by the tenant in tail, as fraudulent^ collusive^ 
anjair, or irregular ; the /a* would have devised sonre 
>ntans for avoidmg itt and the reason why there are ' no 
such means is, because a retersifm expectant on an estate 
tail is of $10 consideration in law. A reversion expectai>t 
on an estate tail is no aisets. I'he reversioner cannot 
f A LSI FY a ccJtnmon recovery suffered by tenant in tail: 
netther is resceit given by the statute of Ir . U. c. 3, to a re- 
versroner on an estate tail. The reason of all this is, 
because the estate tail is an inheritance which may con- 
tinue for ever. There is wo provision by the statutes of 
32 H, 8. c. 31. and 14 Eliz. c, S. to preterve a remainder 
or reversion expectant on an estate tail^ as there is when 
they are expectant on an estate^br life^ and the tenant 
for life is only vouched. 

But Femiors case, 3 Co. 76. has been objected: as if 
there was no difference between a fine or recovery 6y 
tenant for years, tenant for /«/e, or a copyholder , by covin, 
to the intent to bar the reversioner or the lord of his tV 
heritance ; and a recovery suffered by tenant in tail^ to the 
intent to bar tbe estate tail and i/iv reversion. 

It has been matter of surprise, to hear the gentlemen 
mention the statute of 14 G. 2. c. 20. Because that sta- 
tute is made in aid of recoveries ; and not to. invalidate 
them; and more especially as there is a proviso in the 
dct, ** that it shall not be constraed to prejudice or affect 
** any question in law^ which may arise upon commoo 

Hilary Term, 30 Geo. Si ^9 

*• recoveries not remedied' or intended to be remedied by I75f . 
♦* it: hut all «wcA common recoveries are torenmin tiiid tayi^or 
'* be of such forces and eflfectas they ^vould have been, if y, 
" the act had not been made.'* BestdeB, there is^a pro- hohdb. 
vtso in the act •• that no common recovery tfhall be called 
♦• in question firmer 44 ye<ir</* 

The principal argument which tlfe gentlemen have op- f 99 1 
posed to the doctrine which we have been eodeavowring 
tosupporty may be reduced to the head of ixconveni- 
fiNCE ; and they have argued upon it, as if the decision of 
the question depended on pnvate opinion, and not ou the 
LAvr. But the question is not^t ^s what i^oonvbnii^nce ^ 

•* will attend the<leterminatioo, either way:" but" what 
*' IS the LAW." The inconvenience, (if tliere be one,) 
flr/m from the Hatuac and ofeuatiov of a feoff- 
ment; and cannot be avoided, but by ta kin if a wat/ that 
conveyance, or deprivhig it ofan operation which it has 
been allowed to have, by all the sageg of the law. But 
tx)do MM,i«NoT »M^A€ power oli a court of justice: since 
uo maxim of the common law can be abrogated or 
abolished, Lut by a LEGrsf^ATiVE authvrih/. 

It was once thought to be a great incoavenience, *• that 
** a descent, i/nmedmte/y after a disseisin, tk^uld take away 
^* ike BKTRY of the person disHeised." At another time, 
it was thought to be no^raall one, '' that tlic son should 
•*. los^his pairimKmf/, because he happened to be born out 
** of time.*' And till lately, an heir might Aave^een di* 
prived of hit famity^estate, by the uarraiUy of an ancestor 
who wat never in po$$esiion of it. 

The inconveniences occasioned by .die maxims I bavc[5BUck. 43i.] 
Just now hinted at, wereas^^reafaa that' which is pretended . 
to arise from theieolFment of a tenant in tail in reasainder 
expectant upon an estate for life: and yet they continued 
through ages of the izw.tili the legi8j,atuhe took them 
away. The inconveniences which attended the law in 
those instances were as universal as any that can be gug« 
jested to follow from the doctrine we have been endeavour^ 
iog to support; and yet courts of Justice never thought 
themselves warranted to depart from the late. 

Could the courts of common law have determined 
** that a descent, after a recenl disseisin, did hot take away 
" an entry;" without determining at the same time» 
•• that a descent does not take away an entry ?" Could 
they have determined " that a posthumous child shoald 
•* take^ though the estate which was the support of the 
" limitation to it, determined before its birth?" without 
resolving at the same time " that a contingent remainder 
'* should take efl'ect, though it did iro^ vbst dbri/ijfthe 
*' continuance or upon the detevmination of the estate 
'• created for its support?'.' Or could they have deter- 

: 100 Hilary Term, 30 Geo. 2. 

1757. miotd *^ liiat an heir &hoirld take an estale^ mtmikstattd* 

txyhOR " if^S tkewammty of bis coUateial ancestor;*' without 

V. determining '' that colhtoial warranfci^ did mt bind.?'* 

uo^D£< And can the court determine^ in the prasent caaet *' that 

*' tbe reeoinery iswoid;' without adjudging " that a feoff- 

r 100 y * ™^"^ ^^ ^^^ ^^^ operation, which it has had ever iUtce 

^ "^ " i/ became a common asautance?'* 

IVhen ihe law is dfmbtfal, it is allowable to draw an ar- 
• gument from iaconvenienGe: but where the law is clear 
and precise ( as it is *^ that tbe fiBoffn^t of apeiaottMi 
*' possession, let bim come to that possession Infm he will, 
** pa$se^afee I*) an^rgumeni^fromincoHtemence is mot 
admissible; because it tends \to nndermine andovertbsow 
thaluw. ... 

Much has been said of nissfiisia; and many critical 

observations have been^inade upon that sal^ect, in order 

to sh^w that Sir R. A. the son could not be a disseieor. 

All that needs be said totheni^.is thatSif £. A^ the son 

entered by r^M ok by wrorng ; (foff thereis m mediimi : ) and 

** that be entered and took tAie profits/' is Admitted. 

Now ir be enteredof his vmn t0rong, he waaacSaseiior; 

for he ousted tbetensnt for life: and i/he waaa d«s8eis^r» 

it is agreed there was a good tensAt to th^pn^eipek If. 

he emered by right,, then (for the reasoua ahready oficrod) 

he. had p<mer to make a tenant to the pr^aipe bysbis 

,iVoQ'tneut;.80that in€ftAer<:ase, Jmnes £ar/e was iieoon 

, t^natit t0 4bo praeipetf at the time wiicn judgment was 

giv^ in tbe ooiiunon recovery^* And so he was wanrant- 

. ed^ be- s&id^to conclude, that the reoovary is good^ and 

V barred tbe estate tail limited to Sir A. J. the son; and 

coHAequently, the ren^ainder fee, which was limited to 

r Nir R. A. the father^ and by him devised to the lessor of 


FonrUi poinf* The fourth point or head.— Supposing the recorery to 

be goodyWhetber the r£*£Mtry fjf dmne Ann^ under the 

rocoveiy and judgment in tl» second ejectment, did 


^ The gentlemen who made this question, said '* it aeem'- 
•* ed to be of considerable weight." Whether it-be ao 
or nort, we shall see presently. What be undertook. 'Jto 
maintain, wa8,*Mhat the entry of dame ki/firii: ajfter fffae 
" had recovered in the second ^ectnaant, iLB^B9t>B0 ber 
'' estate for life and the remainder in fee*; andfnil the 
'* estate in the s A M£ piMt it was in before tbe'QmiaH>n 
^* recovery was sufiered.*^ And to nkake thts^bet^lie 
' compared tlie entry of dame i^im to the rBgnssamf the 
d^tsM, which voids all intermediM^a^ts, byMebkidti; 
and made that instance thefoundotilMi of hisiigiiomil* 

MuKnawkr beieob9trrad,.faotringohsi0lent^Mai|^- 
laciifc ef tbe gaQdemimwift with fair.^/teiw^ XhciHiutec- 

ijilary Ten», ^3Q G^. 9- 101 

tion and force ef bis former argument under the Istt head If if, 

»W4s t^ shevr*^ <jhat Sir H. ^. the am entered 4y7i<fe>and ^^yl^V 

" co\^idmipoiribli^b&^ disseisor J' Tbe drift of ^A^ii ar- ^ 

• gumeiitis to prove biqa to imv$ beets a disseisor* 'ITais ^^^i^g, 
shews how difficult it is to be conaistent, when a person 

would reconcile matters ojot sapportable. 

The question is not to be deteriained by the rule or in- 
stance which the g^tleman haa a)»plied to it; hixt upon 
thisdUtUsaim^*^ where the citfii^ estate is defeased," and 
** where oHLYpari of the estate is defeated, by one who 
" has a prior title.-* The caae which tlie g^nilenoan puts, 
fails under tbejfin^ member of the distinction-* %be pre- 
aen^ case fidls under the^econ^ tnember of it» 

The subsisting estate, at the time when dame Ann en- 
ter^ under the judgment in the sooond ^eetment, was an 
aptate in fee ia Rebert Atkiftn-Xkie nephew and heir of Sir 
fL A. the son. All the interest lliat she could derive to 
iersetf by force of the judgment in the aeoond ejectment, 
was an estate for life: for she could recover no other- 
wise than according to her tiile^ And themfore dame 
Ann's entry under that judgment could have no oilter effect 
thAA to dimnisk ai>d lessen the interest of jBoAer/ Ati^Hs, 
hif taking out of it aa estate for ire* /^. This wiH ap- 
pear by some instances which shall be mentioned. Te- 
naqt'for life surrenders his estate to the ne:ct remainder* 
fnan in tail, couditionaUyx to enable the remainder^nfKin 
to suffer a copamon recovery ; a recovery is salbr^dv and, 
thecondition being broken, the tenant for life re««ntef8; 
the i«-entry of the tenant for life will not avoids the reco- 
very* and revive the estates that were barred by it. 1'his 
appears by every day's experieotre. One of ih0 gentle- 
men seemed to admit the Isw to be 90; and accounted 
for it, by jsaying, *' it is because the tenant to Witprmipe 
** was made by force of a rigbtfol estate.'' Bat tliat is • ^ 
not the reason. The true re'ason is (what has been al<- 
ready nnen|:i0ned ) ^^ that ox x.y fart of the estate is defeat- 
*' ed by the entry of the tenant for life; and 910^ the cn«- 
** itik% estate," A tenant for ytars^ or by elegity can avoid 
.m falsify a recovery, during their paiticular esta^s onljf. 
A. sr{^ can avoid a recovery sufi'ejned by ber husband 
alone, as to her title oi dower only, ^nd ne further. Re- 
mainde^maa in tail, expectant on a« estate^br lite, dm- 
^mtl the {ei|9n(.foif life, and lei^ied a A»e with pnoicUma- 
tioiiBc th^ileiiaot for life entered on the canusee:and it 

• i»m deleraiipQd '' thai notwithstanding the xegress of the 
** tsiiairtifor liiis, i\ierei^sioH remained in the eoausee, not 
*^*defwpti:' And this wa^ the q^se ofOibrf esfdimk^l^ord 
JStuHmsyW^^tck is ciled m PophanSf ^it 66. L.esaQ7 disseises 
jhia jes^ee Wiife, wd vaifljiae a 4eafi^ for tife» 4Q another ; 

lOS-103 ' Hilary Tenn, 30 Geo. 2. 

1757. cond \e%^ee for life; wbosliall have the tent reserved 00 

TAY JX>R ^^^ ^^^ lease. Earl a(GJouee$tet'9 caste, cited in Sir Moyl€ 

y^ limKi case. More proofs might be brought, to confirm 

iior'd£« ^'*** P^"^ ^^ ^'^^ arguments but in so plain a case, these 

may suffice. And with them we may conclude, thatthe 

BE*€/f<ry ofdameAnu^ under the recovery and judgment 

in the second ejectment, did kot avoid the common reco* 

very suffered by Sir Robert Atkym the son. 

And let it be observed, that the arguments made use of, 
have»o^ beeit drawn from geitrra/ reasons and reflections ; 
but have been suggested from authorities, and from 
the EXPKiiiENCB AND pRACTicB ofkamed men. 

Cpori the whole, he prayed judgment for the de- 

in reply — it was urged on the part of the plaintiff— 

/First poiut. . First, as to the great and little deeds— that the little 

deed did noi revoke the the greater one, or destroy the pon^ 

er« thereby given. Which was supported chid^y by ar- 

guuients drawn from the deeds themselves. 

s^conii point. A 6 to the * lease to the Daeres being fraudulent, { T. ante 

lmhl\!uaJt^^ S.5,) the case in Savile^ IM. is not like thcppesenl: for 

t'hc^arVnm'ut* ^^ ^ ^ere ejptess legal motives for making the lease ; where- 

co:uv,n.„g the as there were none, in that case, for making the fcofl- 

to nrt nation of 

iho lease lo llic Daeres, as inlhc adverse argument, Sec the notes on p. 83, 87. 1. 19.T04, and 

105 in margin. 

As to livertf-^ it was not pecessary ; and therefore void. 
1 yetttr. 9.i)\. 

As to the lecovery — the authorities ^re not ad idem : 
Third point. Nor as to tiie feoffment . For this is a ncTiTioua po5- 
session, and in t/iihibus : n ot an actual possession. No/5 ee- 
hold is recovered in ejectment. So that Sir J?. J. the son 
was not tenant in tail in i»0B8es8ion, for wavt of the^rfe- 
//o/rf. And without being tenant of the freehold, the re* 
covery could not be valid. Mr. Kfiowler admits " that the 
" possession oi' the baihff would not do." (F. aTfte^tl}) 
and surely, this case is stronger than that of bailill. 

As toCVo. Jac. 109. the case of Uutltr v. Duckmanton^ 

(y. ante 80. 4' 93.) the possession of the tenant at stif- 

Jerance was considered as no possession at all, in that case. 

'I'hcrefore we may admit all Mr. Knodrier'soi^B^: because 

tliey do not come up to the present case of Sir K. A, the 

Cim T *^"'^ possession ; consequently the remainder is not aifecb- 
J ed by any thing done upderthis nugatort/ possession. 
Dame Ann was tenant of the freehold : and without 
disseising her, there could be no tenant to the fra*- 
cipe, who would be tenant qf the freeholds ^Sir ». A. the 
son did not enter tfs a disseisor; but as havhig a title. 
And be had a title under the judgment, to enter. And 
the estate which passed by the feoffment, was according 

Hilary Tetm, 30 Geo- 2. 





to his right ^ Ro* Ahr. 5. Cq. Litt. 5^ &. ' And the 
warranty extended only^ to the fictitious title iii ^ect* 
ment. The possession oafy was transferred to him ; not the 
freehold: and this was a mere tiaktd possession; an ao^ 
tidtntal possession. Carthew, 110, proyes that the re^ 
mainders were not discontinued for want of tenant to 
the freehold. T^mtAnn was never out of possession of 
WiQ freehold. 

So that the estate which Sir Robert gained by his en- 
try upon dame Ann could not be an estate tail iupiM*- 
session; because there was a prior rightful eatate for life ' 

in ANOTHER person* fTherefore it must be an estate tail 


It is asked/' when he Jirst began to hold over unlaw- 
" fully?" the answeris-^rooi his >{r3^e/ifn/. 

His ENTRY was not wrathful: therefore he cannot he 
considered as a (tissmor. But b.e held ov er, aalawfuUy. ^ 
It is like a tenant by sufferance; or a man whoenters upon 
the king, (who cannot be put out of possesaion;) or a 
husband after' the death of his wife, A'c. And it is not easy 
to apprehend the distinction between entering ^' under the 
" ejectment;" and entering "in punuance of the eject* . 
** ment" Consequently, his was a mere naked possession : 
and the freehold remained undisturbed in dame Antu 

As to the fraud and collusion of suffering a recovery — 
there is surely such an insufficiency of estate in a tenant in 
tail in remainder, that be can&ot suflf'ef a common reco* 
very. And surely the court'Avill not permit .a person 
whocunnotbeatenant to the pra^pe -himself to make 
a tenant to the pracipe^ And they atmngly urged the 
y^st inconveniences that must attend this doctrine now ad- 
vanced, ** that a tenant in tail in remainder only ^ who can 
'* obtain a merenaked possession, may legally suffer a re- 
" coveryand bar the subsequent remainders." 

Fourth point. -p-As to the re-entry of lady .-4/i»r.-the ver^- Fourth point, 
diet did nothing : it is the entry that revests. It revested 
UKR estate^ which was an estate for lift: whereas Sir R. A. 
the son's entry under his verdict only operated to give 
liim a naked possession ; he having no right to an estate tail T 104 1 
IN POSSESSION. And he could not be tenant in tail in 
powssion, to one purpose; and in rerminder, to atioihen 
Then her re-entry left him tenant in tail in remainder, as 
itfoundhim. i 

In the case in 2 Ro. Abr* 4*21. title Remitter, letter i*. 
pL 1. the wife entered under an act of parliament, 
which i-etnittedher. 

5th point, (as to the itemedy.) The plaintiff is* not J'^/^,Vof 
barred of his^mitry, by the statute of limitations, 21 J. 1. this argument 
c.\(y. For the recoveree • was not iniitled to suffer a re-» fc omitted ; for 
covery ; not being tenant in tail in pmessiau. • g^vrnte'ihc sub- 

sequent note. 


Hilary Term. SP Gto. 2. 




Aa^o ilame^w*s recoTery in the ^eotmant brought 
by Mih9-^the demise was laid 9Q fyr back as to over^ 
reach the whole term which Sir R, J. the spq b^ r&r 
Qovered: it was laid to far back* aa to five daya after th^ 
death of Sir R. J. the father. And her ealate bad MTer 
been disoontinutd ; nor her right of eotry ukM away. 
So that Sif Jio6cr/ the son waa never tenant in tail is 
possession. The lessor of the plaintiff could not tb«re» 
fore enter till the jointure of dame ^«« was at an end^ 
and her life-estate determined. Neither oould he enter* 
soiong as the lease to i&€ Dacbics was in being ; which 
did not expii«^tf the death of Thomit Jl}acr€9, the aor* 
vii^g lessee, on -23d Jul^ 1753* 

Note— the last of the four arguments of this case won 
intended chiefly for the information, of Lord Man$fiiU, 
who had not heard any of the former* . 

BsFoaE it came on, his londship (having read the case, 
and seen notes of all the former argumeuts).fent for the 
counsel And agents on both sides ; and toU thfimt that 
a point occurred to him, whicb.did not. seem U> have 
been particularly attended to in drawing up ibe special 
verdict, and which he observed bad been very little gone 
into in any of the former arguments ; that it seeitoad to 
him material : and therefore he wished to have it apefcan 
to: and he chose to apprize them of it befofe-lia^d, to 
avoid further expence and delay to the pwiies : because 
if be should defer mantioning it, til) after he^had heard 
tbem in court, and if they should omit going fully into 
that point in their argument, and his loid^np should 
contiiHie to think it material, it must occasion a new 

The point was, ** whether, suppo$ing tiie nbcoveiy to be ' 
** bad, yet the plaintiff *s ejectmemt was not btfrrgdby 
. *' the statute of limiiaiionsJ* 

-] Thai depended, he said, upon many coasidemtions, 
-^ which he desired them to think of: as, first, whether the 
iease was made pursuant to tb powtr^ or, (in other words,) 
whetlier \k\Qlea9e was void, as not being made pttssuafit 
to the power; (secondly) whether it was ^<ii4Mirmim4, 
upon the extinction of the estate teil in 1711; (thirdly) 
whether, at this special verdict was foui»d, an olyeatian 
from tlie statute of liraitatioas was mw opeo (0 be made ; 

[15 ViD. t20 ] and he mentioned some cases to them, wbtcb ha di^sixed 
them to look tnta 

Jeeordingly^ upon this last argument^ the aaid question 
was veryfully discussed, on both sides: but, tp«90id piOip 

•Tbey fcu M* lixity, I have omitted U>j^mi^it$e0mtmmi§ f^iMcottiuet; 

dtr the iMODd because every th ing material upon^ this {want wiU ap|K»r 

poMt. sceaote j^^ ^^ foltowing unanimotts neaolulspn of the court. 

[ 105 

p. S3. 10 Uio 

given by Lord Mmi^M* 

Hilary Term, so Geo. 2. ,!06 

LORD MANSFIELD now delivered the resolution 1757. 
«f tbfe ooiw t ; (having first dtkted the case and special -.^1.011 
veti*ict,> ^ 

Sir Mob&t Mliym the son beingfdead writhent issue jjouJie. 
iniiie» the reversion in fee, devised to the lessor of the 
ptatntilf, is come into possesnion : and consequently, he 
mu^tbe intitied to judgment in thii ejectment; unless 
the defendants can set up a bar to his ftiGirr,orto his 
RE M £ DY by an ejectment. 

They set up a bar to both. 

In barof his aiorfT, they itisiM: upon the leommon re* 
cowry sufl'ered in Hilaty tctm, 9 -^nn.'A. D.\710. In 
bar of hisRfiMEDY, they insist ^upon iht statute of limi' 

The common recovery, if dtily suffered, certainly de- 
stroyed the right of the lessor of theplaintitf. The «/a- 
tmte of Umitaiiom, if his title of entry accrued above 
twenty years before the l6th of December 1762, has 
certainly taken avray the remedy by ejectment. 

The merits therefore must depend upon two general 

First, ii^ether thelsaid common recovery was daly suf- 

Secondly, whHher this ejectment is barred by the sfa- 
tute of limitations. 

As to the first, the objection is, that there was no^ a Fint g«iertl 
good temtftt to the precipe: for. Lady Afkyns, the widow l-"***?^!- -1 
of Sir Robert the father, had an estate for life ifl the pre- L *^^ J 
mises ; and did not join by surrender or otherwise, in 
any conveyance of the freehold to James Earle, the tenant 
against whom the precipe w&s brought. (There is no 
occasion to entangle this part of the case with the demise 
to the three Daeres.) 

The defendants contend that there ira« a good tenant 
to the pracipcy upon two grounds; (1st) because Lady 
Athfnsnsid no estate for life; and so Sir Robert the son, 
was tenant in tail in possessiqn ; (2dly) suppose she had 
an estate for life, yet Eark was a good tenant to the 
pntciptrby disseisin : which they endeavour to prove two 
ways, viz. Ist, That Sir Robert Atkyns, by his entry, 
was himself B dtsseistn^^ and by his feoft'ment the 17th of 
January li 10, conveyed the freehold he hSiA acquired by 
dissekin, to JaMes Eark; and 2dly, suppose S\r Robert 
the son was not a disseisor, yet his said feoffment was a 
diBsei9in, and made Jffmes Earie a good tenant of the free- 

As to^he first ground, « that Lady Atkyn$ had m estate 

'^fbr /i/%,"*^--the ^hole Argument depends npon this 

prOpolittiohi *^that the lesser deed was executed after 

^ the greater deed ; and consequently*, the power to Sir 


107 Hilary Term, 30 Ged. S. 

1757, " Jlofc^rf AtkynB the father, to make a jointnre, was ft/f>r- 

• TAYLOR " guished by the fine levied in Trimty term 1669." But 

Y^ the jury have not found the fact, " fvhich vfdLB first exe^ 

HORDE. " cuted." Both deeds bear the same date. They are 

both consistent. They are both manifestly but one 

agreement, executed by different instruments, to answer 

different purposes, and to suit (probably) the convenience 

of one party, who was interested only in a small part of 

* the transaction. 

The fine levied in Trhtity term 1669, pursued both 
deeds, and comprizes all the premises in the greater deed 
by which the powers were created. 

It never could be the intent, to revoke these powei's, 
at the instant they were created; by the lesser deed, 
which makes no mention of them; or by a fine levied, 
agreeable to the greater deed, in which they are con* 
fQa. The force sjr Robert Atkynsy who survived the transaction above 
o this ] thirty years, has shewn by many acts, that he understood 

the powers to be weil. created and subsisting. 
[Sec ante T.5, If it was necessary, we ought to presume the lesser 
•yr., S3, aisojio deed first executed, to support the clear intent of parties, 
^'"•'^^^•^''^'J in a family settlement made for valuable consideration ; 

Cinr 1 ^^^ '^ ^^ impossible to suppose, they could really mean td 
*^' J revoke or extinguish these powers, and take this vv^y of 
. . doing it. But, in this case, there is no room for pre- 

sumption: the internal evidence of the thing itself, 
spt aks them to be one transaction ; and the same, to 
all iiHents and purposes, as if expressed in one instru- 

As the jointress clearly had an estate for life, the next 

ground is *' that James Earle was a good tenant to the 

'* pracivey by disseisin.*' 

{For Uie law of The oetter to judge of this question, it may be proper 

(lisseisin see to try to find out what the old law meant by a disseisin 

Lwr^Ang^GS which constituted the tenant of the freehold,* in respect 

Co.lit.i53.(b.) of every demandant suing out h, precipe; although the 

i3».(n) owner's entry was woMaktn away: (for where the rtg//t 

Disi. c.] of possession was acquired, and the owner put to his real 

action ; there without doubt the possessor had got the 

freehold, though by wrong.) 

All the law concerning disseisins, which is any way 
applicable to the present inquiry, existed, and was iu 
use and practice, before the assize of novel disseisin. The 
assize was introduced, (probably from the usage of ^or- 
mandy, for the Grand Coustumier treats of assizes,) in or 
before the reign of Hetiry the lid. Clanville^ who wrote 
in that reign, calls the great assize a benefit •* clementiam 
« C. c. i 25. «« principis, de consilio procerum^populis indultam :" And the 
p. 150. edit. » 3j^ 83. says '« Glanville introduced it." 

Hilary Term, 30 Geo. 2. lOS 

Seisin is a technical tenn to denote the completioh of 1757. 
that investiture, by which the tenant was admitted into TATLoit 
the tenure; and without which, no freehold could be y. 

constituted or pass. Sciendum est feudum, sine investitura, bords. 
nuilo modo const itui posse. Feud. LibA. 27/. 25. Lib.2. 
TU. 1. 2 Craig. Lib. 2. Tit. 2. 

Disseisin therefore must mean someway or other [Sa*k- 246. 
turning the tenant out of his tenure, and u%uf ping \ii^^*^^ 
place and feudal relation. At the time I speak of, no 
tenant could alien without licence oftt^iord. When the 
lord consented, the only form of conveyance, was 
by feoffment publicly made, coram paribus curia y with 
the lor^s concurrence. Homage, or fealty, was solemnly 
sworn ; and suit of court and services were frequently 

The freeholder represented the whole fee, did the duty 
to the lord, and defended the whole fee against strangers. 

The freehold never could be in abeyance ; because the 
lord must never be at a loss to know upon whom to call, 
as his tenant ; nor a stranger, at a loss to know against 
Tvbom to bring his precipe. From the necessity of there r jQg -i 
being always a visible tenant of the freehold, and the ^ J 

notoriety aho acted, and did suit and service a$ such, 
many privileges were allowed to innocent persons deriv- 
ing title from the freeholder de facto. 

if the disseisor died: after one year's non-claim,* the ^^- ^^^^ ^^^ 
descent to his heir gave him the WgA/ of possessions and theiwnfV»f^ 
took away the true owner's entri;. The stat. of 32 H. 8; .«esiion ? see 

f. 33, requiies five years non-claim. The feoffee ^f ^aildonb^? * 
disseisor acquired title and possession, at the time I 3^ ^^^ ^^'^ 
s^peak of, by one year's non-claim. The decent to his 
heir remains privileged as it was at common law : for the 
32 //. 8. c. 33. extends not to any feolfee of the dis- 
seisor, immediate or mediate, Co, Litt. 25U. a. The feoffee 
of a disseisor was favoured ; because he came inno- 
cently into the tenure, by a solemn and public in- 
vestiture, with the lord's concurrence. 

But the statute* *'Quiaemptore5terrarnm,*' (which took ♦ ig e. i. 
away subinfeudations, and gave free liberty of alienation 
to the tenants of subjects, and to those who held of the Viae inuo. 
king, as of an honor or manor; and other statutes which Jj^^^^^T^^^^ 
extended the power of alienation to the king's tenant in Tenvcre?, foi. 
eapi^e : the frequent releases of feudal services; the sta-iw. toisr 
tutes of uses, and of wills ; and, at last, the total t aboli- + \'^^^l^f^/ 
tioxrofaii military tenures; have left us little but thee, 2.(5.7/ 
names o( feoffment^ seisin ^ tenure and freehold ; without 
any precise >. knowledge of the. thing originally signijicin 
by tliese sounds j the idea modem times annex to frtehoid, 
or freeholder f ia taken merely from the duration of the 


Hihiy Term, SO Gea 2^ 




♦Vide lib. 4. 

C 109 

CdjpyibUf, and tfae cuU^nmy Jrt^kMt itt the norths - 
retain faist tmoes in imitation of the old system ^feiidRil 
tenures It ia obvious how a man may visibly be the 
copyholder, or customaiy freehoidcr di fuilo, iii'^')|>fejii-^ 
dic» 0f tbeiigbtfui tenant. It is obvious too^ that usurp- 
ingsuch copyhold or customary ienure, is a diflferetrt 
lact» froma««iA^4{ possession, or occupictioa ott^iand.. 
But, whoever wiU: look.into the practica of o/Aer coun- 
tries, where tenures subsist with all the solemnities, of 
feoffments and seisins, upon every ohaoge of a tenant by 
descent or alienation, and upoo ^every usurpation of the 
real right; wiU eaaily comprehend^ thot at the time I 
speak of, it may be as notorious^ ivAa masibefsadal ietumi 
defiicio, as who is sow de facto incumbent of a livings or 
mayor of a corporation* 

Di6S£isiM was a complicated fact, and differed from 
di^itetsingi TheJireckilderbydUsiismj differed from a' 

, fouatorb^ xsrBmg* Bractou* c. 2, De Asma Nopa Diaey^ 
j»Mp,ya.l^(V puts. many cases of possession wroi^fiiUj 

. taken, which be calls intruision; because them is nc^dis^ 

J seisin : " posaessio cfua nuda est omnino, et sine aliqiiid 
'* vesiimento ,- quae dicitur intrusio.". FtUimento is seism^ 

: investiture; (from whence, the Saxon term vest i) a me» 
tapfaor, the feudists took from cbtbiog : by which^ they 
meant to intimate, ^x!&9Lt\)ie nakid foiseuion xns clothed 
** Y/ititiioUmniUesJof the feudal ienure.'* A particular te« 
nant, aixording. to feudal notions, was m^aa of tlie ^sm 
^tbefee, of which Us estate was apart. If he -aliened 
uie fee, '(which he could- only do by solemn feoffanent 
with, the concurrence of the lord of whom th^ fee was 
held,) he forfeited, his particular estate, for having be- 
trayed his ieisiu with .which be was intrusted ; but oil 
account of_ the privity 9.nA confidence between him and 
the reversioner ; and tne notorious solemtuty of the act of 
investiture, Azf feoffment disss ised the reversioner. 

Bracton^ who wrote in the reign of Aeri. 3. (before 
tenants could alien without licence,) mentions thedi$- 
seisin m this case, as a Tiecessary comequeuce, and as a 
thing which could notpombli^ be othermse; c 3. t>eAm9a 
Novss DtMysina^'lGl. b*[a) *' Item facit quis disseysitiam^ 
** cum quis in seyiinafuerit ut de libero tenemento & ad 
*' vitam, vel ad terminum annorum, vel nomine custo- 
*' diflE;, vel aliquo alio roodo : alium ftoffuverit^ in 
** PRACJUDiciuH VERi Domifti ^ Sf /ccerit xj^TERi Ube* 
** rum tenementum ; cum duosimul et semul, deeodem 
*' tenemento 4r in Molidum^ esse nou possunt in seysina*^ He 

(a) This seems to be a mistake of Brsuton: it m^ 
not be easy to understand clearly all liis distinctii^a; 

Hilary Tfenn, 50 G«o. 9. UO 

cOQiideit it » iMpotoible for the true t/bsmui nol to 1757. 
be pat out, when the other actually cane iofta hifl taylos 
piac^A V 

So late n^ d2dof E/tz* in ihe case of MaOmmv. home* 
Trol, I Lmm. ^09,(«) the distinctioB upon which the 
jttdgnmt turns is *' that Henry Denn^ gained a arengw 
** fidpogsasion in fet ; but did noi gaiu aby sswiK 1 so - 
therefore the descent to his heir is not 

Nobody can AsteUe the king; neither can any one tie 
disseised to the use of die king. The kipg may be wrong- 
fally Jupo$semd: but the intruder's injurious possession 
IB sMf uiifmo vntimenio^ and called inUmsion, The king 
camxit be made a disseisor ; not because it is wroi^; : 
(for he may, in fact, withhold the possession of land 
from a sulgctTt coalrarvio right:) but the reason seems, 
aceerding t» the fhudal system^ to be this : a sulyect 
nerer cOuld stattd in the ktng*s ttiun or itnmrt ; and the 
king neter oouM be in the jctWa, ttnuttt or feudal rtht^ 
twn of a subject By that policy, aU real proper^ was 
hdd, aediataly , or immediately » of the king ; ift the king 
faitaself, all real i^mperty wsa tMfdimL C^' ^ ^' **1 

The precise definitivn of what oonstituted a disseisin p no 1 
which made the disseisor the tenant to the demandant's' ^ ^ 

petteipe^ tfaongh the right owner's entry was not taken 
away, was pnce well known; but tt is not matf to be found* 
The more we read^ unless we are venr caMful to diistiti* 
gatth^ the more we shall be confbnnded* Fof^ ^er tbo 
assize of novel disseisin was introduced* the kgiai a t ure, 
by many acts of pariiameat, and the courts of law, by libe-* 
til eonstmotions in furtherance of justice, exttnitd this 
remedy^ for tbesakeoftbeownenloetvvjrtres^ssor ia^ 

but this4s clear, that disseisin was not, in his ideaodf it, a 
caii^}1ic9Cted fact ashore represented: thus much is certain; 
thatm J&M sense of inlJrusioiiitbat might be withoutdisseisin. 
and he defines it4« the beginning of the second chapter to 
be ubi^U^ ifc, 

[ii It mppeaj% by the report of that case in 3 Leon, 190, 
and by the r^ferenoe to it in Co. Lit. St40. (b) that the iudg^ 
BKnt was^ot fonnded upon the point berementioned^ bat 
upon one very different, viz. as expressed by Ld. Coke 
there, that aa entiy by an heir of the de¥isor,aaa dying seis* 
ed, would not fa^y \^w take away the entry of the devisee 4 
for if it diould jt would be a bar to his right, because the 
devisee hath only a title of entry, 4ike the case of a title of 
entry f<Grrt)rench ofaconditioaormoFtmain, in which and 
other like case^no dying seised and descent wiU take away 

A 1 1 Hilary Tetra, 3d Geo. i. 

1757. juiy done to his real property^ if, by bringing bis zmze^ 
TAYLOR ^^ thought fit to admit himself disseised. > 

y It lay aginst advisers, aiders, or abettors, who were not 

HORDE. ^6^®^^^^' ^o. Liu,* ISO, b. It lay against the tenant who 
[Qu. If he * ^^^ n^ disseisor ; as the heir of a disseisor, or bis feoifee^ 
never had sei- Stat» Gloucester, It lay for the owner, against the dissei* 
temc?^c'ither^ ^^ ^^ the4isseisor. The tenant's not being ready to pay 
Bi law or^equfty ® rent-seck when demanded, was, for the benefit of the 
^fo^e the stat. Owner's remedy, a disseisin. Lit, § 233. It lay for out- 
♦ Geo. 2.] rageous distress. ^ Inst. 412. It lay against guardian, 
or particular tenant who made a feofi'ment, as well as 
against their feoffees. 2 Inst. 4 1 2. The stat. of Westm. 2. 
c, 26. extends it to a man's depasturing the grounds of 
another; or taking fish in his fishery. If one receives ray 
rent without my consent, I ms^r elect to.make him a dis-i 
seisor. Style, 407. If a guardian assigns dower to a woman 
not dowable; the owner may elect to make her a dis- 
seisoress. 24 Ed. 3. 43. (cited in Cro. Car. 203.) In a 
word ; for the sake of the remedy, as hetween the true 
owner, and the wrortg doer, to punish the wrong; and a» 
between the trye owner and naked possessor, to try*the 
title ; the assize wvL&exte9tded to almost every case of ob- 
struction to an owner's full enjoyment of lands, tenements 
* or hereditaments. 

The reports of assize can only relate to cases, where the 
o}^ner admits himself disseised. 

The law-books treat of disseisin, with a view to the 
assize; which was the common method of trying titles, 
till ejectment came in use. 

Littleton, who wrote long after the remedy by assize 
was enlarged by statutes and by an equitable latitude of . 
. construction, speaks of dtsseisitis principally as between 
the owner and trespasser or possessor, with an eye to the 
remedy by assize. 

These are the common places from whence many de- 

41 East 5^5.] scriptions have been cited of a disseisin. But such 
ill J authorities can give little light to the present question, 
which depends upon the nature of such a disseisin as 
made the disseisor tenant to every demandant, and free- 
holder de facto, in spite of the true owtier. Yet the de- 
finitions in the books, (though very imperfect,) savour 
often of that which originally was an actual disseisin, in 
spite of the owner. 
[Vide ante 107.]- Littleton, in § 279. defines disseisin, with an S^c; 
^' where a man enters into lands or tenements (where his 
*' entry is not congeablc,] and ousteth him which hath 
" the freehold, &c." — The comment says, " every entry is 
" no disseisin, unless there be an ouster of the JreeholdJ* 
And Co. Lit. 133. b. says, '* disseisin is putting a man out 
" of seisin, and ever implies a wrong : but disposse^ion or 
ejectment, is putting out of possession, and may be by 


Hilary Term, 33 Geo- 2. 1 12 

'' right or wrong. Disseisin tst un prrsonal trespass de IJST^ 
** /or/u>iM ouster del seisin." TAYLoa 

Though the term " disseisin/' used, happens to be y^ 
the same; the thing signified by that wbrd, as applied to horde. 
the two cases of actual disseisin, or disseisin 6y election^ 
is very different. This distinction of disseisin at election^ 
is made in the case of Blunden v. Bough, Cro, Car, 303. 
of which case, we have seen a manuscript report, fuller 
than the priuted one. The three judges, with whom 
agreed the four judges of the Commou Pleas, argued and 
held " that the lessee for years of the tenant at will, \va9 a 
•• disseisor at the e/rc^ion of the original * lessor, for the 
•• sake of his remedy; but iiev^r could be looked upon 
" as the freeholder, or a disseisor in spite of the owner, or 
** with regard to third persons." The manuscript report [Saik.32M?5 
Bays, if a pracipe was brought against him, he might say u. lUym! 
«• I am not tenant to the freehold." A variety of like -^J^-^^*"- 9^- 
cases are put in Cro. Car,; (to which I refer—:) in tbe^'* ^ 
manuscript report, there are more. 

When the easy specific remedy was by assize, where 
the entry was not taken away, the injured owner might, 
for his benefit, el^t to consider the wrong as a disseisin. 
Sd, since an ejectment is become the easy specific remedy^ 
he may elect to call the wrong a dispossession. . 

Where an ejectment is brought, there can be no disseisin ; 
because the plaintiff may lay his demise when his title 
accrued, and recover the pr<^n from the time of the de- 
mise. The entry confessed is previous to making the 
lease: but there is no real or supposed re-entry,, after the 
ejectment complained of. If it was considered as a di»« 
seisin, no mesne profits could be recovered without an 
actual re-entry. 

If the lessee for life, or years, makes a feoffment, the r i jg 1 
lessor may still distrain for the rent, or charge the per- L^ ^ j^^^ •* 
son to wtiom it is paid, as a receiver ; or bring an eject- ^|. s Lev. $5. 
meut ; and choose whether he will be considered as disseit" 4 Leou. SS-j 
ed» Metcalf on the demise of Kynasi'jn v. Parry and oUiers ; 
a case reserved at Salop assizes 25th March 1742, for the 
opinion of the court of Exchequer; (who gave judgment 
in it, on the 24th of November 1743,) was this. Tenant 
in tail, of lands leased by his father, to a second son, for 
lives [a] (under a power,) upon his father*sdeath received 
the rent from the occupier, as owner, and asif no such 

(a) That and the case Cro. Car. 302. were cases only 
of recovery of rents, and not of an actual possession by the 
feoffee; besides, according to the report of the case of Met- 
eaffv. Parry fit vf^B not material whether the recovery 
was good or not ; for the lessor of the plaintiff was lessee 

Vol. L I 

riy Hilary Term, 30 Geo, iT. 

1757. lease had been made, during his whole life. He sufTerecT 

TAYLon * common recovery. It vras holden " that this was only 

V. ** a disseisin of the freehold at election ^ and that therefore 

uoRD£» " 1^® couVl«o/make a good tenant to the precipe :" and 

the recovery was adjudged bad. 

Except the special case of fines with proclamations^ 
(which stands «enti rely upon distinct grounds J- and the 
construction of the stat. of 4 H. 7- c. 24. for the sake of 
the bar; I cannot think of a case, where the true owner, 
whose entry is not taken away, may not elect, (by pursu- 
ing a possessory remedy,) to be deemed as tiot having 
been dissetned, 
rsvin. 431. The consequences of r/r/Kd/ disseisins, considered as 
pl IS. 6 Bur. stick, continue law to this day. The disseisee cannot di&- 
5iS0j pose, or devise : the descent takes away his entry. There 

are two cases cited in the case of Blanden v. Baitghy 
material to this point. Pously v. Blackman, B. JR. Trin. 
18 Jac. Rot. 1230. Palmer, 201, which is more fuHy 
♦V. Cro. Jac stated in the manuscript report, than in* Croke. The 
«59. S. C. case (in effect and operation) was this. Tenant at will 
made a lease for years : the original lessor devised. 
Though the lease by tenant at will, at the election of the 
original lessor was a disseisin, yet they adjudged his devise 
good ; because he had not elected to admit himself disseis- 
ed ; and, by makicyif a will, intimated the contrart/, 
[fide God. Another case, (not in the report in Cro. Jac. but cited 

^••H ' in the manuscript,) was in tlie 14th ol Eiiz. Sir Ambrose 

Cone, of his own head, entered into lands of Sir William 
Hollis; and paid Sir William, afterwards, a certain rent, 
claiming to hold as tenant at will : and died. His heir 
entered: upon whom. Sir H'illiam entered. It was ad- 
judged " that at the e/ff<?o« of Sir If illiam. Sir Ambrose 
" was a disseisor: but as Sir fVilliamh^d not determined 
** his electioii before the death of Sir Ambrose, ViXid entCF* 
** ed upon his heir, it was no disseisin; and conse* 
*• quently, the descent no bar to his entry." 

[11^ 1 ^^ ^^^^ ^^^^ ot'Pously V. Blackman, Palmer, 205. it i» 
J said, ** if a disseisee devise, and afterwards enter ; the de- 
" vise is good :** which Dodderidge denied, and said there 
must be a new publication. Which seems light, ^ there 
ever flra« a disseisin : for, where an actual entry is neces* 
sary, itwill not make good a conveyance made before; 

• May 1738. as was holden in U. R. Sf Dom Proc» in the case of * JBer- 
rington v. Farkhurit. The actual entry could not support 

+ 1 Salk. «37. the lease made before^ Yet in f Salk. 237. It is agreed, 

BuDter V. . ■ 


under a power in the settlement creating the entail ; and 
therefore his title did not at all depend on the invalidity 
of the recovery, but singly on the question whether the 
. power was well executed or not 

Hilary Term, 30 Geo. 2. 





'^ the devise is good, because he was seised ab initio, so as he 
" might bring trespass :" f. e. He never was disseised at all, 
by his election ; and he might make that election, without 
an entry ; he might bring his ejectment, he might bring 
trespass, mthotU a re-entry. If it was not for this doctrine 
of election, what a condition would men be in ! 

In the case of Pously v. Blackman, there was no entry r 
and after much argument, it was at last resolved unani* 
mously by the whole court, from the inconveniences 
which will be introduced if a lessee by a secret contract 
with a stranger could defeat the will of his lessor, " that 
" the devise was good.'' A^uA in the manuscript report where 
it is cited, one point said to have been resolved, is '* that 
the owner, bu making a devise, shewed his election, 
•* SOT to be disseised.** 

I will now consider whether James Earle can be deem- 
ed a good tenant of the freehold by disseisin. 

Disseisin is ay!Ic^ It \% not found: all the jury say, 
is, •* thatsoon after thejudgment in ejectment. Sir Robert 
** entered and was in possession** This must be taken to 
be an entry in consequence of the judgment — It was so con« 
sidered upon settling the special verdict: otherwise the 
defendants have no case ; for it is not found, that Lady 
^//rvns was ever ousted, or quitted the possession^ or that 
Sir Robert ever was seised. 

Taking possesait>n, under a judgment in ejectment , never [7 Mod. «7, 
could be a disseisin of freehold. ^^^^^ '^^O 

Suppose it a real proceeding — the termor of a dis- 
seisee might, at the old law, recover against the 
disseisor: he might recover against the feoDee of his 
lessor. But he never could thereby become a disseisor of 
ehefreehold : he never could be other than a termor, enjoy- 
ing, in the nature of a bailiff, by virtue of a real covenant. 
In respect of the freehold, his possession enured always 
by right, and never by wrong- If the lessor had infeoti'ed, 
it enured to the alienee ; if the lessor was disseised and 
might enter, it enured to the disseisee; if his entry was 
taken away, it enured to the heir or feoffee of the di^eisor, 
who in that case had the right of possession. 

Suppose the proceeding (as it is) a Jiditious remedy. 
Then in truth and substance, a judgment in ejectment 
is a rei*overy of the possession, (not of the seisin or freehold,) 
without prejudice to the right, as it may afterwards ap- 
pear, even between the parties. He who enters under it, 
in truth and substance can only he possessed according to 
fight, prout lexpostulat. 

If he has a freehold, he is in as freeholder. If he has a 
chattel-interest, he is t» as a termor; and in respect of 
the freehold, his possession enures according to right. If 
he has no title, he is in as a trespasser ; and, without anv 

I 2 

C H4 ] 

51^ Hilary' Term, 80 Geo. 9. 

J757, re-entry by the true owner^ is liaUe to account fortLc 

TAYLOR profits. 

V. It is found, that the ejectment was brought by Sir jBo- 

Hon DE» ^^'"^ jftkynsy to recover the possession : but it is not found, 
that he claimed tY^ freehold. 

The title must now be taken as in this special verdict. 
Therefore it appears he had no right to the posnession. 
Hh feoffee could be in no other coiKlition than himself t 
be had a possession, without prejudice to the right ; and 
could convey no other. He was not in as a particular 
[Cowp. 702,] tenant;— there was no privity of any seisin :— tie had 
only a naked possession. 

But the case is still stronger. The true owner cannot 
even elect to make a person in possession under a judgment 
in ejectment, K pissEjsoR. He c6uW not bring an assfee . 
of wore/ disseisin: the entry is not injmil ^ sim judicio; 
h\xt under authority of a court of justice, and Idtxful ; 
therefore not liable to punishment by fine, (as every dis- 
seisin was.) 

Tf*be true owner may enter opon a disseisor: but after 
a judgment in ejectment, an actual ^ntry would not be 
permitted. If there had been any election in thi« case ; 
•* the true owner elected woT to be disseised,*" and recover- 
ed by ejectment : which if there had been a dUsfieisiDy 
would have purged it. 

But there is still behind, (though it happens not to be 
necessary,) a larger ground, upon which to determine 
this question ; and more satisfactory, because more intel- 
!:gible ; from the nature of a common recovery now, and a 
feoffment to make a tenant to the prmxipe, with that view 

L ^^^ A The sense of wise men, and the general bent of the 

{)eop)e in this country, have ever been against making 
and perpetually unalienable. The utility of the end was 
thought to justify any mtaus to attain it. 

Nothing could be more agreeable to the law of tenures^ 
than a male fee unalienable. But this bent '* to set pro- 
** perty free*' allowed the donee ajier a son was born, to 
destroy the limitation, and break the condition of his 

No sooner had the statute de donis repeated what the 
law of tenures said before, " that the tenor of the grant 
" should be observed ;** than the same bent permitted 
tenant in tail of the freehold and inheritance, to make an 
alienation, roiV/a6/e only, under the name of a discontiftU'- 
unce. But this was a small relief. 

At last, the people having groaned for 200 years under 
the inconveniences of so much property being unaliena- 
ble ; and the great men, to raise the pride of their famU 

Hilary Term, 30 Geo. 2- 116 

Im, and (in Chose turbulent times} to preserve tbeir estates 1757. 
from forfeitures, preventing any alteration by the iegisla- xayloji 
iure ; — tbe same bent threw out a * fiction, in TaUaruni9 • ^^ 
case; by Which, tenant in tail of the freehold and inhe- hor-df. 
ritance, or with consent of the freeholder, might alien . „, 
absolutely. CoSo'^He. 

Pubiic utility adopted and gave d sanction to the doc- coTcricn, p. 7, 
trine ; for the real political reason," to break entails :" 8, 9,10/ 
But the ostensible reason, " from the fictitious recompenct** [* I^on, M.J 
la) hampered succeeding times, how to distinguish cases 
which were within the false reason given, but not witbin 
the real policy of the invention. Till, at. last, the kgisla^ ' 

iure applauded commen recoveries, and lent their aid byr 
the acts of 11 U.I.e. 90. 33/f. 8.c. 3U 34 ^35 H.8. 
^.90. 14 Eliz.e. 8. and lately 14G.2. e. 20: (which is a 
retrospective and declaratory law, and seems to have' 
restored the original tenant to the pracipe.) Before the 
statute of quia emptores terrarum, ULbinfeudatiom^ where* . 
upon rents and services were reserved, did not prevent 
Ibe prsteipe^t lying against the freeholder of the seigoory. 
When common leases to fanners, for one or more Irfe 
or lives, reserving rent^ came in use ; they, for that pur« . 
pose, resembled aiinnfeudatiom^nwAou^Yit not to prevent 
theprdM;if>£ being brought against the owner of the free- 
hold, unaer which' such leases were granted. 

As the /egtVa^re has, forages, avoided the proposition; 
we may now say " that common recoveries are • a mere 
**Jhrm (^coKveyaueeS* A 11 necessary circumstances of form [ ll£ J 
and ceremony are taken from its fictitious^ originaK 

The-poUcy of this species of alienation meant to take a 
ittiddk way as to entails, between perpetuities and abso* 
hite property* * 

Alienations were allowed; yet in such a shape as ne- 
cessarily reqaire*d deliberation and delay: and they were 
only allowed to be made by tenant in tail in possession * 
<n by tenant in tail in remainder, with consent of the owner 
of the first estate for life. The eldest son was restrained 
in the life*tirae of bis father, or mother, or any other 
ancestor or relatioD, seised for life, under a iamily settle^ 

The act of 14 6. 2^ proceeds, upon the parties to a re^- 
eovery having jRia'er/oii^€rtY. Sir Robert jilki^ns the 
son had.ffo right to su£kr a common recovery, without the 
concurrence of the joiotresK. Any contri^ncoto do it 
mthout her joining, is artifice and evasion. 

If tenant, in tail ia possession is disseised ; though the 

Hl^bis was not so as to tb^ i^maind^miaQd reversions 


Hilary Term, 30 Geo. 9. 



X 117 

[Vide 2 lev. 


pracipe be brought against the disseisor, yet, if he is vouch- 
ed, the recovery shall bar; because he had power to 

In Lincoln College case, 3 Co, 59. the judges support 
the collateral warrantry of Sibil; because she and Edward 
had power to bar. 

In Jenning*s case, 10 Co. 44. the recovery is support- 
ed, because the parties had pozc-er* 

By parity of reason, ^A«s recovery ought no/ to be sup- 
ported, because the parties had no power: if it was; the 
law must be overturned. 

Every remainder-man in tail might easily get a nuked 
possession, and make a secret feoffment. 

The plan of marriage ancl other family settlements, 
is " to limit a remainder to the first, and every other son 
•' in tail." The wego /ire which the father now hasupoa 
the eldest son's suffering a common recovery, is the very 
means and consideration of getting the estate re-settled, 
ijpon the marriage of the eldest son. By this method, the 
moment he attains to the age of 21 years, he may set his 
father at defiance, suffer a common recovery, and bar all 
the rest of the family. This consequence alone, in a case 
unprecedented, is a sufficient objection. 
J When a termor, after the 4th of H. 7th, made a feoff- 
ment, and levied a fine with proclamations, and Insisted 
upon five years non-claim ; the judges, with strong sense, 
said, though a feoffment by tenant for life, or years, or at 
will, isa disseisin; it shall not operate as a disseisin, to en- 
able the termor himself to bar the inheritance, by a fine 
with proclamations according to the 4th H. 7. c. 20. For, 
say they, "it was never the intent of the makers of the 
** act, that those who could not levy a fine, should, by 
" making an estate bj/ wror^ and fraud, be enabled to bar 
" those who had right. For if they themselves, without 
'^ such fraudulent estate could not levy a fine to bar them 
** who had the freehold and inheritance: certainly the 
" makers of the 4th of H. 7. c. 20. did not intend that by 
" making of an estate by fraud and practice, they should 
" have power to bar them : and such/rfliidti&w^ estate is as 
" no estate, in the judgment of the law." So say I, in 
the present case. It was never the intent, that those who 
could not suffer a recovery, should, by making an estate 
by urong and fraud, be enabled to bar those in remainder 
or reversion who had aright. For if they themselves, 
mthout such fraudulent estate, could not suffer a recovery 
to bar those in remainder and reversion ; certainly, the 
framers of this qualified species of alienation, did not in- 
tend, that by making an estate by fraud and practice, they 
should have power to bar them: and such /roK^u/cii^ 
estate is as no estate, in the judgment of the lavy. 

Hilary Term, so Geo. 2. 11* 

Tiie judges then put many cases, where a recovery in VIST. 
iJower, or other real action; a remitter to a feme covert, ta ylou 
t>r an infant; a warranty; a sale in market overt; the y^ 
king's letters patent; a presentation ; an administration ; — „^ j^ ^e. 
in.^hort, all acts temporal and ecclesiastical, shall be [Co. Lit S5. 
4itoid(dby covin : and from thence argue that a fine which (».)] 
the parties had no powtr to levy direcUy^ shall not be sup- • 
ported indirectly by covin. So argue I, in the present 
-case: a common recovery which the parties had no power 
to suffer directly^ shall not be made good by wrong 
<iud fraud. 

In the spirit of the makers of the 14 G. 2. 1 say the par- 
ties to this recovery had not power to sutTer it : therefore it 
is tnbstarUiedly bad^ 

This isnot the case of a feoffment tozihird person, jbut] for 
Hi own benefit : it is, in efiect, to the use of Sir Robert ^ the 
wrang^oer^ himself. The law considers a feoffee to the iff 
ient to be tenant to the pracipe^ as a mere instrument for 
one purpose ofjform only. His wife shall not be endowed ; 
-his statutes or judgments shall not affect the land: if be 
bad a term for years, it shall not merge. Let me appeal 
then to the oldest authorities, in thftsc times when the r • .^^ -^ 
solemnity and notoriety of feoffments, and the feudal ve- L *^ J 
'neration m which they were held, gave them all that won- 
derful ef&cacy we read of: coulda man by Aiswa-w i/j/w- 
Tious feoffment, have acquired au*advantage to himself? 
UttUton »h^\l answer: he tells us what was establislied [I P, Wmi. 
long before he wrote. Lit. S395. " if a disseisor infeoff 318, 5I9. 
" his father in fee, and the father die seised of such es- 3 Brow. 193.] 
" tate, by which the lands descend to the disseisor as son 
•• and heir, Sfc»; in this case, the disseisee may well enter 
•* upon the disseisor, notwithstanding the descent: for 
"•* that as to the disseisin, the disseisor shall be adjudged 
f in but as a disseisor^ notwithstanding the descent ; quia 
^' particeps criminis. ' 

Afier the statute de donis, tenant in tail in remainder, , 

with the concurrence of the freeholder, might make a 
voidable alienation, by discontinuance: but he could not 
acquire to himself that privilege, by an injurious entry 
and feoffment. " lie in remainder in tail disseises tenant 
" for life, and makes a feofhueut, and dies without issue, 
•* and the tenant for life dies; he in reversion may enter: 
^* it is no discontinuance." Co. Lit. 347. a. b. It is no 
disseisin of the reversion. '' If remainder-man for life dis« 
** seise the immediate tenant for life ; after the death of the 
*^ immediate tenant, be is in as tenant for life." Neither 
should a reversioner, by an injurious entry upon the te- 
oantfor life, be, in respect of strangers, allowed to traus« 
init to his heir the privilege of descent If the rever* 
sioner diajseises tenant for life, and dies seised ; the de* 

119 ^Hilary Term, 30 Geo- 2. 

1757. •cent shall not take away the entry of a stranger. 
TAYLOR Hoh. 3^3. 

V. From the whole, we may conclude-i-i/, before the in- 

HORDE. trodwction of common recoveries as a conveyance, this 

question had been agitated in an advenari/ real action^ 

upon a plea " that £<tr/ewas not tenant of the freehold;" 

it would have been adjudged, from the law and artificial 

learning of tenures, " that he could not be so considered," 

[Co. lit. 35. //the question had been, " whether tenant in tail in rc- 

(a.)S.P. ace. *• mainder should, by such wyi/rioiw entry and feoflment, 

Lit. Sec. 65S. " acquire a ben^t to himself^ to the prejudice of hi$ re^ 

AndT^oUih^iX « zeriiuner ;'' it would have been adjudged, from eternal 

ranSflcrtura principles of justice, *• that an act founded in wronff 

to the benefit " should wo/, by virtue of the crime itself becope legal, 

of the wrong ^ for the author's advtintageJ* 

doer. Hat. 96. , As it is now agilateS, when recoveries are established 
SS9 Co Lit. *® ^i}>tcie$ ofaiienalioH ;— the only question is, " whether 
liS(b). ' ** ^^ ^^ of law which requires tke concurrence of the 
iLeon. 3S1. " owner of the first estate for life, shall be overturned J* 
Branch Prin. It is better to subvert the rule directly, than sufl'cr it to be 
^^•^' done by a secret injuriout entry and feoffment ; which can- 

not be prevented, and which the owner may never 
"hear of. 
r 1 1 9 1 There is no injury or wrong, for which the law doea 
•- "^ not provide a remedy^ Butv if this stratagem should ppc- 

.vail, redress must follow too late; unless the entry of the 
tenant for life shalUroM the recovery. If it would, there 
is an end of the present question : for, the jointress enter- 
ed, and was intitled to the profits from Sir Robert Mkyus 
as a trespasser a6 iniiio. 

In every light, and upon every ground of law, this reco- 
very is bad. 

As there is no bar to the right of the lessor of the 
Second gene- 'phe second general question is ** whether the lessor of 
rsi question. ,. ^^^ plaintiff is, by th^statuU if limitation, barred from 
" recovering in THIS r^OTfn//' 

This point was certainly not insisted upon at the trial : 
and therefore the special verdict is not adapted to it The 
abstruse learning, upon which the validity of the cq|D- 
roon recovery depended, might engross the whole atten- 
tion at the trial : and the special verdict having no facts 
(which easily might have been found,) particularly ap« 
plicable to an objection from the statute of limitations, 
might occasion the question not having been made at the 
[Salk. 685.] bar, till tlie last argument. The point however is certain • 
ly open, upon this special vevdict. 

An ejectment is z possessory remedy, and only compe- 
tent where the lessor of the plaintiff miiy enter: therefore 
it is always necessary for the plaintiflf to 6bew> that tiis 

Hilary Term, 30 Geo. 2. - 190 

lessor had a righi to enter ; by f roving a possession within 1757. 
twenty years, or accounting for the want of it, under some tatlor 
of the exceptions allowed by the statute. Twenty years v. 
adverse poscKSSsion is a positive title to the defendant : it is uoade. 
not a bar to the action or remedy of the plaintiff, only ; but 
takes away his right of possession. 

Every plaintiil in ejectment must shew a right ofposr rj po^n, 7^5, 
sestton, as well as of property : and therefore the defendant n.] 
needs not plead the statute, as in the case of action6«(a) 

The question then is, whether it appears upon this spe- 
cial verdict," that the lessor of the plaintiff might enter, 
•* when he brought this ejectment A (6) 

On the 9th of l^ovember 1711, Sir Robert Atkyns died 
without issue male. 

On the 19th of October 1712, Lady Atkyns^ the join- f 120 1 
tress, died. Then accrued the title of entry of the lessor 
of the plaintiff. His only excuse for mH entering is," that 
♦* he w^s prevented by the said lease of thedlst of May ^ 

•* 1698, tfi the three /)flcr«."~That upon the death of 
3%oma5 D^cr^s the surviving lessee, on the 23d of July 
1752, a new title of entry accrued.* upon which he enter- 
ed on the 15th of December, 1752 ; and brought this eject- 

Three answers are given : any one of which, if well 
founded, is sufficient. 

Ist. That the said lease was absolutely void, and of no 

2d. If good, it determinedby the estate tail being spent; 
by the express tenor of the demise. 

dd. If subsisting, yet upon the extinction of the estate 
tail, it was a trust to attend the inheritance in the lessor 
of the plaintiff, and made part of his title deeds ; there* 
fore could not stop the statute's running to protect 
an adverse possession, nor give him any new right of 

First That the lease was void. 

Sir Robert Atkyns the father, being only tenant for SThST'^'wie 
Iffe^ could, by virtue of his ownership, make no estate to for not cnlor'^ 
______^_^ '**' 

(a) This is not necessafy ; for twenty years possession is 
a good title in ejectment for a plaintiff as well as for a 
d&ndant, 2 Sidk A^ 5. Ld. Raym. 71. let the right 
of property be where it will. Salk. 685. 

lb) SeQ 17 Dorn^ Proc. 132. that the question put to the 
Judges, was, ** whether sufficient appears by the special 
« vercUct in this cause to prevent the lessor of the plain- 
*' tiff by force of the statute of limitations of the 2tst of 
** James the Ist^ from recovering in this ejectment ?'' 


Hilary Term, 30 Geo. 2. 




2 P- Wmi. 
6^5. 2 East 
380. 1 Durn« 


411. ace.] 

[ 121 ] 

[« Vein. 544. 
19 Vin. Pow. 
(A.) S Danv. 
34fi. n. a. 248. 
II. I. 6 Co. 6.a. 
3 Bac. 3910 

continue after bis death. This lease, therefore, after 
his death, can only be supported by \i\% power ; if it was 
made pursuant to it. 

" Whether it was made pursuant to his power," is the 

The limitation. and modifying of estates, by virtue 
of powera, came from equity into the common law, 
with the statute of uses. The intent of parties who 
gave the power, ought to gain every construction. 
He to whom it is given, has a right to enjoy the 
full exercise of it: they over whose estate it is given, 
have a right to say " it shall not be exceeded." The 
conditions shall not be evaded; it shall be ^ric^/y pitr- 
siied^ in form and substance : and all acts done- under a 
special authority, not agreeable thereto, nor warranted 
thereby, must be void. • 

Of all kinds of powers, the most frequent is, that 
" to make leases.^* For the encouragement of farmers, 
to occupy, stock, and improve the land, it is necessary 
they should have some permanent interest. VnUu the * 
owner of the estate for life was enabled to make a per- 
manent lease, he could not enjoy to the best advantage, 
during his ote;n time; and they who come after, must 
suffer, by the land being lin-tenanted, out of repair, and 
in a bad condition. The plan of this power is for the 
iww^wfl/ advantage of possessor and successor. The exe- 
cution thereof is checked with many conditions, to guard 
the successor ; that the annual revenue shall not be di« 
minished ; nor those in succession or remainder, at all 
prejudiced in point of remedy, or other circumstance of 
full and ample enjoyment. 

There are two methods of leasing, in common use m 
this kingdom : at the best rent ; and u|>on fines ; which, 
as the lives or leases drop, are considered among the 
annual profits. This power is always adapted to both. 
It is inserted in almost every strict settlement of every 
kind. It is inserted in the greater deed of the 12th of 
June\66Q\ and given indiscriminately to Sir Robert iixe 
father, Six Robert the son, and Lovts his wife. 

The nature and view of a power, so usually given, is 
well understood : and courts of justice have always look- 
ed with a jealoas eye, to see that the conditions in fa- 
vour of the next taker he pursued ; not literally only, but 
substantially. It is not sufficient that the ancient rent 
be reserved: it must be reserved with ?A\ t\ie beneficial 
circumstances. If payable before, at four, it cannot be 
reserved at two payments. Lord Mountjoi/s case, 5 Co. 
5. b. The whole rent must be payable annually during 
the whole term. In that case, it was holden ** that less 

Hilary Term, 30 Geo. 3. 129 

*• could not be reserved even to the lessor himself , dur- 1757. 
*' ng his own life." -taylo'r 

One of the reasons in Elmers case,5 Co.^. shews the rent y^ 

must be payable annually during the term. HORns 

In the ca:^e of Lady Charlotte Orby * at, v. Lady Mo- * 

AifHyS Femon^ 531, 542, Lord Cowper^ Holt, and Trevor, 
all three held clearly that a lease " reserving the beU 
" rent,'^ though good against an owner of the inheritance, 
was void under a power : and Cowper and Trevor held, that 
reserving the ** ancient rent,'* where lands had been usually 
demised ; though good and certain enough by reference, 
against an owner of the inheritance ; was void under a 
power; because it put the remainder^man under difficulties 
in avowing. 

" T he intent was" say they, " that the tenant for 
" life in possession might lease ; so it was, on the other 
** hand, that the revenue should not be diminished ; but 
'* the ancient rent, at least, reserved ; and in such beneficial 
" manner, as migi^t with certainty, and without any dif- 
•* ficulty be recovered." 

*• The question here is not," say they, " Whether the [122 ] 
** lease is void for incertainty, as between the lessor 
" and lessee; but whether all requisites are observed, 
** and suchben^ciai clauses and reseroations2ailf}ughi to have 
" been, for the benefit of a third person, the remainder- 
" man." 

In the case of the Earl of Cardigan v. Montague, 6th [§. c. 6 Vin. 
June 1765, a decretal order on the master s report ; the 472. See also 
Dolce of Montague, tenant for life, without impeachment ^ New Abr. 
of waste, had power to lease, reserving ancient rentg^^-? "' ^ 
where usually demised, and best rent where not usually 
demised: he made twenty^four leases. Tlie Master's 
Report, aa to many of the leases, which he reported bad, 
was submitted to: as where ancient covenants ** to grind ' 
" at mills, or to pay land tax," were not in the new 
lease ; where some part, not within the power, is include* 
ed in the lease; wheremany manors were included in the 
lease, reserving a sum certain* as the best rent ; which [!^^^'^!^^,^^ 
laid the remainder-man under difficulties, to find out hweon En."^* 
whether it was the best rent or not. As to five of them, Abr. S43. Cat. 
which the master reported to be good, exceptions were S. Vin. Power 
taken. Their validity turned upon this case: The words ^'*-P*- ^' 
in the power were " reserving ancient, usual,t and accus- ^^li, J^ 
" tomed rents, heriots, boons, and services." In the sNewAbr.36i. 
former leases, the tenants covenanted " to keep in re- s Vem. 544.] 
" pair :" that covenant was omitted in this. The Lord [+ Secui, in 
Chancellor was of opinion, that that covenant was a boon^ ^epumumt 
and beneficial to the remainders-man ; and held these leases ^^ 3s Hen. 8. 
Vfrid, for want of it. He took soo^e days to consider ; 3 Daav. S45«] 
and declared be was clear upoa the argument^ but took 

123 ^ Hilary Term, 30 Geo. 2, 

1757. ^^^®* becamse there was bo case in poti>(« The more be 

TATtoE ^liought of it, the more he was convinced. The princi- 

^^ pie he reflted upon wa8» lfa»fc the estate muat conoe to 

HOitoE. ^^^ remainder-man, in as bcftffaui a manner, aa ancient 

owners held it. {a) 

I have gone so far at large into the generaldoctrine, 
not from anjr difficulty: bat becauqe the poiut is of sq- 
much consequence to the lessor of the plaintifF. For, 
this writing of the aisi of May iCidft, has not colo4*r 
enough to make a question^. 
[Qu. By way ist It is no letue at all. The i^ety definition of a lease, i« 
ofmortgagc] a contract between. landlord and tenant, by which both 
are bound in «RtilKa/ stipalattons* 

A sale and lease are defined to be the same species of 
contract A sale cannot be, unless somebody agrees to 
pay the price; nor can there be a lease unless somebody agrees- 
to hire^ and to pay the rent This writing purports to be 
dueb a contract It is woiinieniure: which implies re- 
ciproeat instroments tallying oae with the other. It 
L 123 J prof OSes being made by Sir Robert Atk^t^ on the one 
part, and the three Dacres 00 the other part But k is 
' net: the Dacres are rud bound: They never executed this, 
or any counterpart It does not appear they knem or €«»• 
senud to the making of it 

Livery ofseiiin uaa immaleried. A leaae by virtue of a 
porrer, takes effect out of the settlement that gives the power. 
But John Dacres^ who gave the letter of attorney to take 
livery, died in 1705. Robert died io I70(^. Sir Robert At- 
kyns, the &ther, lived till 1700* Suppose, at hi& death-, 
360/. a year a beneficial rent: these m remainder coiMnol 
dewsand ii. Thomas Dacres had not exe€uted the lease ; he 
had not accepted it; he never had entered under it; no distress 
could be taKen from him ; no action could be brouglftt 
' against him. 

One man cannot oblige another to be his tenant, at a 
high rent, withotU his consent. This is so plain » that on the 
part of the plaintiff, they have argued thalThd^mas Dacres 
was bound by acceptance; three wayfr— 

1st Because livery of seisin was taken in theiMuncof 
John, Robert and Thomas^ 

Answer. Tkohas gave no authority so to Ho: It does not 
appear that be knew of it. But the mere taking livery of 

[a) This case of Earl of Cardigan v. MorUague, is cited 
in 3 Bro. 281, 282,. by which it appears that the case 
was removed into the House of Lords^ afteir MotUague was 
became Ld. Beaulieu ; and there, in 2S1, it was said, by 
counsel that the decree of the lords wa» disapproved by 
Lord Thurhwf but qu, as to the ettation, /^ MS. 

Hilary T^nn, 30 Geo. 9. 124 

8ei«in • if he ntvtr entered or occupied, would noi be laffi- 1757, 
^cient to charge him with the rent reserved, ' taklor 

«d. In the ejectment brought in Hilary term 1711, a y^ 
demise was laidyrom I'Aomtfj Daeres, as well as the join* jho^dk, 
tress: and the plain tiflF had judgment to recover •• ^qw- [* This if 
'• raks terminos'* wropg. 

Answer. The two titles are incomisteat : so there could *» •p^"' 
ttof be really a recovery upon both. But the judgment j^™^^^*!' 
pursued the declaration ; and was mere form. It doe«« not 
appear that Thoman Dacres knew his name was made use 
of : and he necer entered^ or took possessiofi, 

dd. That acceptance shall be /^resttfiKi^. Aftd it is com- 
pared to grants : and Thompion ▼• Leack is cited* {V.3 

Af)swer. The ground of Thompson v. Leaek^ and of all 
the cases there put, is, " That a gi/i imports a ben^ : and 
" consent to receive a bounty mayfairhf be presumed^ till 
•' the contrary appear.*' But the offer of lands to a sub- 
stantial man at hrack rent, does not import such a benefit^ 
as nobody in his senses could refuse. And here, there is 
no room to presume : for the contrary appears. Thomas 
Dacres dissented^ during his whole life : and never took pos- r 1 34 1 
eemon. The contrary appears too, from the writing itself, ^ -* 

It never was the intent thai the Dacres should take posses- 
sion or pay r ent. It was to be a conveyance only of the 
trfw/ freehold: which might nonsuit the remainder-man, 
in case he brought an ejectment against third persons ; or 
prevent bis suffering a recovery : but never could be any 
aecwrily to him for his rent. 

It 16 immaterial, whether an owner of the inheritance 
could convey an ideal freehold, to delay the tenant in 
tail, claiming under his grant, from suiiering a recovery. 
The question here is, whether it be that m«al husban- 
dry lease, reserving a rack rent, which is intended by 
every power of leasing. 

It is very clear that none of the lessees were bound by this 
writing; more especially, that Thomas Dacres was not. • 
But I go further: Sir Kobert Jtkyns, the nominal lessor, 
was not bound by it. The deed never was out of bis own 
possession. The declared intent proves it a trust for Sir 
Robert himself. His will, under which the lessor of the 
plaintiff claims, avers it to be a trust, and devises it as 

It is no objection to a lease under a power, " that it is [ 4 Bar. 1978 
*• in truMt for him who executes the power:'* frovided ««. andvid« 
the Itgaltenant be bound, during the term, in all requisite ][^j^shep?^ 
covenants and conditions^ But here, at the death of Sir ^uch. 610.] 
Robert the iather, those in remainder had no tenant to re- 
- sort to : and the nominal tenant never did in feet enter. 

125 Hilary Term, 30 Geo. 2- 

1757. "^^ could either in law 'or equity, ever have been compel-'' 
TAYLOR ^^d to enter, or pay one farthing rent. So that this wril^ 
^^ ing, calling itself an indenture, and purporting to be a 

HORDE, contract, is waste paper only, by which nobody ever zdos 

But suppose it had been executed by the three Ducres; 
it could not be supported as a lease within- the meaning 
of the power; upon a variety of plain objections, in re- 
spect of the premises^ the rent, and the remedy. 
rch. ?re. 959. Ist. As to the premises demiscd^t comprizes too much ; 
Cro. Jac 94. and lays the remainder-man under difficulties to know 
Fort^saVl whether the best rent is reserved. It extends to things 
'•' out of which no rents can be reserve4 ; as tithes, rents of 
assize, rents of customary tenants, commons, feedings, and 
lands in the several tenures of particular persons. 

The condition of the power is, that there should be no 
term exceeding three lives in being at the same time & 
yet the demise extends to all and every the rents reserved 
upon any leases or grants. 
£ 125 2 ^ly- As to the rentreserved-^the power requires " the 
** best rent that can be reasonably gotj to be reserved pay* 
" able during the term." 

There is no covenant for payment. Under a mere re- 
servation, it could not be payable till entry: and there- 
fore, in fact, might never be payable, during the term. It 
is not found " to be the best^ rent." 

Sdly. As to the remedy-^ihere being no covenant to pay 
the rent, the lease might be assigned to a succession of 
beggars. There being no clattse of reentry , the ground 
might lie unoccupied without any, or not sufficient dis- 
tress upon it : so that the remainder-man could neither 
have his rent nor his land. There is nb counterpart; an 
unusual omission, and vei'y prejudicial. 

Therefore the lease could not have been supported, if it 
had been executed by th^ three Dacre$: which is not the ca^e. 
£very fraudulent, unfair, prejudicial execution of such 
a power, in respect of those in remainder, is void at law. 

If the lease be a void execution of the power, against 
ALL claiming under the settlement, it cannot be made good 
against the reversion in fee, whereof Sir Robert Atkyns the 
father was seized, either by virtue of the livery, or by 
way of estoppel, supposing the three Dacres to have exe- 
cuted : because an interest would have passed, during the 
life of Sir Robert Atkyns the father; and there is no estop-' 
/?e/ where dtny interest passes ; and to make it pperate by 
virtue of the livery, out of the reversion in fee, would be 
contrary to the whole intent of the deed plainly ex- 
pressed. Which brings me to a second answer given. 
sweMo thie ^^ Answer. Suppose this pocket Jundelivered grant of 
ezciuefor not ^^^ ^^^^1 incorporeal freehold^ a good execution of the 

Hilary Terai, 30 Geo. S. 126 

power; they haye argued that it deti&rminsd with the I757, 
e$taleiail; that the only cause of the graat being ** to tj^ylor 
•* preserve the reversion during the estate tail" must y^ 
qualify the grants and amoutit to a limitation ; that there is h^i^ds. 
no ttchnical form of words necessary to express a con* 
tingency, upon which an estate for lives may sooner de- 

The deed might have said expressly, " if the heirs 
" male of Sir Robert Atkyns the son continue so long;" 
or, " that the lease should determine, if, during the lives, 
" the estate tail should be spent." That the intent of 
the deed, plainly expressed^ is tantamoutU. 

3d Answer. Suppose it to subisist;— it is asa^ri/i^f 126 3 
and devised as such, to attend the inherUatice of the lessor Third anivrer 
of the plaintiff ; which came into possession the 9th of Jp the excuie 
October 1712 : his title and right of entry then accrued, f^**®* ^^^' 

This lease was one of bis muniments *; a mere weapon '''°' 
in his hands : and it would be going a great way, to say 
*' such a form should take from an adverse possession 
" the benefit of the statute." 

But as we are all, clear, ** that at the trial, a surrender 
" of such a lease might, and ought to be presumed^ to let 
" in the statute of limitations;" the special verdict, here, 
net baoingfound such surrender, we cannot come at the 
justice of the case in that shape. 

It is unnecessary to go into thifi point, or the former : 
and it would be very improper, unnecessarily to do it. 

If the Dacres had no estate by virtue of this demise, [do. 1 Wik 
upon the 9th of October 171*2, then this ejectment was i'^.] 
not brought within twenty years after the lessor's title , 

accrued: and no facts are found, to excuse him within 
any of the exceptions. 
Therefore we are all of opinion that there should be 

junoMENxybr the dbfewdakts. 
A WRIT Of ERROR was brought in the House of Lords ; 
and came on upon Thursday 26th January 1758. The 
counsel agreed, and were allowed, to argue the last point, 
for the judgment of the house, first: because, if their 
lordships should be of the same opinion with the court of 
King^s Bench, ** that this ejectment was barred by the 
** statute of limitations," it would be quite unnecessary 
to go into the first question. 

All the judges were ordered to attend. To whom, 
after the argument at the bar was over, the house pro- 
posed the following question, viz, 

** Whether sudicient appears by the special verdict 

" in this cause, to prevent the lessor of the plaintiff, by 

" force of the statute of limitations of the 21st of King 

" Janus the first, from recovering in this ejectment" 

Whereupon, the Lord Chief Justice fVilles, having 

127 Hilary Term, 30 Geo. 2. 

1757. conferred with the rest of the judges, delivered their 

TAYLOR unanimous answer, " that sufficient boes appear by the 

yj" " special verdict in this cause, to prevent the lessor of 

HORDE. " the plaintiff, by force of the statute of limitations of 

r 197 1 " ^^^ ^^^^ ^^ ^^^S •/«»«« the first, from recovering in 

L 1^/ J«i this ejectment" 

[15 Via. 120.] Then the judgment of the court of King's Bench was 

AFFIRMED, With 5i. COStS. 

Greeh versus Mayor op Dcriiam. 

Wedaesday* Mr. Just. Wllmot absent [in Chancery.) 

S6th Jan. 


Bye-iaw, to THHIS case was set down in the crown-paper, as a spe- 

pMvent per- cial verdict, and was so called ; and was argued by 

sonf frombc- one counsel on each side, in the same manner as if it had 

Mig.made free, |)een a special verdict: but it was only a verdict upon 

Sa^condl^' ®'^ several traverses to the return of a mandamus (on 9 

tioDs good.' -^'*''' c- ^0 directed to the mayor of Durham^ command- 

[SeesLcY. ing him to swear and admit Robert G rem mio the place 

«S8, «sd. and office of a freeman of the company or fraternity of 

4^Bur. 204S, free-masons, *c. of the city of Durham. 

I The right set up by Robert Green was his having been 

A\i\y elected and admitted a freeman of the company .- 

but the objection to his being sworn by the mayor ^ was, 

** that he had not conformed to certain bye^laws parti- 

" cularly specified in the return and found by the ver- 

«' diet." 

The return was — that Durham is and from time imme- 
mortal hath been an ancient city. Sic; and also,that apower 
is given by a charter of Tobias then bishop of Durham, 
(in 44 Eliz.) confirmed by king Jamet the first, to the 
mayor, aldermen, and common council for the time 
being, or the major part of them^ (of whom the mayor 
AND SIX of the aldermen to be seven,) to make bye-laws. 
In the sieadjor, and in the dame of the vholc corporate 
body of the city of Durham and Prafnwelgate. 

Then the return set forth, that certain bye-ldwswere 

duly made by the mayor, aldermen and commonalty, 

in due manner met and assembled at the Guildhall, t^c. 

on Sth of Ncwemfttfr 1728. And it particularly sets forth 

and specifies three several bye*laws, as having been tbca 

there made by them ; to wit— 

VSntbye-law. That for the efl'ectual preventing all persons being 

made free, that have not a right or title to their freedom 

in the said city, and for the better regulating of the samfe, 

the mayor, one or more alderman or aldermen of the said 

city, and the wardens and stewards of the several ^nd 

respective companies for the time being, SHAi/L/roi» A^Sp- 

forth kbet at the Guildhall or tolUboth in the said tfQr, 

2 - ^' 

Hikry Term, SO Geo, 2. l«l 

fouriimei in «veiy yetr.rin on the first Monimf after I757, 
Martin-'maff the iirst Monday aller CaikdU-maB^ the firet py^s^r 
Monday afteV May-day^ and the first Monday after Lam* ^^ 

mas. And «reiy persoit that is hereafter to be admitted j^^toa or 
a freeman of the 4aid city nitJ borough of Framwelgaie^ Pl7)ia4^M« 
shall be TiiEar and there called, at tkru of the said 
several meetinip, before tuck hU mdmittauee to be a free* 
man; and tobc approved o/jy the said mayor and one or 
more alderman or aldermen, and tbe wardens and »te^« 
ards of the several and respective company or fraternity 
<for the time being) whereof he or they is or are to be 
made and admitted a freeman or freemen reapectively, or 
the majority of tbe said mayor, alderman or aldermen 
and wardens of such respective company then and there 

Thatmjf warden^ ^emard^ ox other freeman thai thM^^^^^^l^ 
MAKE any person ^freeman of the said cUy or of any corn^ '•^• 
pany. therein, contrary to tbe said last ordinance or bye-law 
aibove mentioned, shall respectively forfeit and pay the 
8am<tf30Lto the mayor, aldermen, and commonalty of 
the said city of Dmrham, to be by them recovered by 
action, or distress of tbe offender's goods, or otherwise; 
und to be paid into the chest or butch, for the use of the 
«aid mayor, aldermen, and commonalty, to defray any 
public expence that may happen to the said corporatioa 
or fraternity. 

That in case the mayor of tbe said city for the time be- Third hje. 
ing shall swear * any person that has not actually served law. 
«even years as an apprentice with a freeman ofoneofthe'[«TherefeeiM 
Baid companies or traternities, belonging to or used in the *? bcaaomif-v 
said city, or shall not hejwtly entitled to tbe same t by an- ^^rdi h^] 
cieot uaageor custom within the said city, he sbaU forfeit ^^ i*|,j, ^1^'' 
and pay tbe sum of 30/.: which said sum shall be reco* shews ihtt 
vered, 4fc. ^ mpra^ and to be paid ut $upra. there is an 

All which said several ordinances and bye-laws the J*^JI[J'|"* Jt 
return aliedges to have, ever since the making thereof, Hi^^i J *l^l^ 
been constantly observed and kept, dfc, and to be still in the ivwd 
tiMtirfiill force and virtue, 4rc f«^ «»a «s- 

Thsft Robert Grten was m or elected and admitted a free* '*^1 
man ^the mrid eon pany of fi«e masons, rough masons, 
wallers, pavioun, plaisterers, slaters and bricklayers. 

That Raiet^ Green wm never duly called to be a freeman 
efthetaid cHwoi Durham and Framwelgatet nor £vb<i 
APPROVED of by the mayor, and one or more alderman or 
mMermen of the city of Durham and Framwelgate afore- 
said » and the warden and stewards of tbe said company 
4»r Aatemity of fsee masons, 4fv. bbfoks his supposed 
eleotioB and admissioa ito be a freeman of tbe said com- f 139 j 
^Daoy or fraternity, according to the first ordinance or 
llHfr-law abo^ meatioaed . as be oud^ to have beio. 


Hilary Term, SO Geo. 2. 






[ 130 

And for these reasons the said mayor has not sworA'and 
admitted him, nor administered the oaths to him u»tially 
taken for the due execution of the said office. 

Upon this return. Green takes six several traventes: 
on which issues were tried. 

1st l66ue-*that the mayor, aldc^rmen and commonalty 
did NOT duly meet ^ S^c, on 8th November^ 1728, in order to 
make bye^laws, ^t. modo ifforma^ S^c. 

2d Issue — that they did not in due manner make the 
first b]re-law mentioned in the return. 

3d Issue---that they did not Jn due manner make the 
second bye-law mentioned in the return. 

4th Issue — ^the like denial of their making the third bye- 
law mentioned in the return. 

6th Issue — that he ara? elected and admilted a freeman 
of the said company or fraternity of free masons, ^fc. as 
in the writ is alledged. 

6th Issue— that he was duly called to be a freeman of 
the said city of Durham and Framwelgaie aforesaid, and 
was approved of by the wardens and stewards of the said 
company to be a freeman of the said city of Durham and 

The jury find, as to the first issue — that upon the 8th 
of Novemfrer 1 728, the then mayor and aldermen and com- 
monalty did in due manner meet and asicmble, at, S^c. in 
order, S^c. in such manner and form as the said mayor by 
his return hath alledged. 

As to the 2d issue — that the said mayor, aldermen and 
commonalty did then and there, ik doe manner, make 
the 1st bye-law in the return mentioned, in such manner 
and form as is therein by the said mayor alledged. 

As to the 3d issue--that they did in due manner make 
the 2d bye-law, in manner and form, &c. 

As to the 4th issue— the like finding, with regard to 
the 3d bye-law : 

As to the 6th issue^^That Green was elected and ad- 
J mitted afi-eeman of the company ^?i% in and by the writ is 
alledged: but that before such his admittance^ he was 
not called nt any meeting lield according to the said bye- 
law in the said 2d issue mentioned, nor approved of by the 
then mayor, and one or more alderman or aldermen, and 
warden and stewards of the said company or fraternity, 
nor by a majority of them, according to the said bye-law. 
As to the 6th issue— that the said Robert Green was 
KOT duly called to be a freeman of the said city of Durham 
and Framwelgate, and approved of by the wardens and 
stewards of the said company or fraternity of free masons^ 
rough masons, tfc. to be a freeman of the said city of 
Durham and Framwelgate, 
This (^tse was argued on the fi4th of November 17&6, 

Hilary Term, so Geo. 9. JSl 

by Mr. Ambler for the plaintiff, and Mr. Clayton for the 1757. 
defendant; when the court ordered it to stand for judg- q^^^j^ 
raent of the then ntfxt term. ^^ 

Lord Mmn^tid now delivered the resolution of the hayor of 

court DUBUAM. 

The general question depends upon Robert Green's right 
to the franchise which he claims. 

The objection to hi» ris^ht arises from his not being 
qualified according to the b^^law. 

If the bye-law is good, and binding, and he appears to 
be an object of it ; he is certainly not qualified, and the 
mayor has returned a sufficient reason for not admitting 
and swearing him. 

All the objections which have been made, tbere^fore!, 
tend to se/ aside the bye^law; or, if the bye^aw be good, 
to shew that Robert Graeris case is no/ within it* 

It has been argued that the bye»law is void, upon two 

1st. From want of authority to make it; 

Sdly. From the subject-matter. 

As to the first— the objection is, that the bye-laws are 
returned to be made by the mayor, aldermen, and com* 
Mon ALTY ; whereas the power is givento the mayor,alder- 
men, and tweaty*fbur common council or the major 
part of them ; of whoiri, the mayor and sit aldermeu 
should be seven. 

Answer. The power to the select number is,- to 
" make bye-laws in the #/rad,/or, and in the name if the [^ 13 J 3 
•* whole corporate body y These bye-laws might be made 
by the select number, acting in the name o/the whole 
corporate body ; and must be so intended: for the jury 
find, ** that they did in due manner meet, and in due man^ 
" f/er make the byo-laws." 

As to the second — that the bye-law is unreasonable and 
wd : for it is likened to the case of the taylors of Ipmith^ 
11 Co* 53. A bye-law ** that none should work at his 
** trade, until he had presented himself to the company 
•* of taylors, and proved that he had served seven years as 
" an apprentice, and admitted by them to be a sufficient 
•• workoaan." 

Answer. In that case, the bye-law was against law : 
it was against the 5th of Eliz* ; and a farther restraint than 
that act bad made. 

But this bye-law is not against any law—it is uoi a re- 
attaint upon trade: but seems a reasouab egulation, to 
prevent persons being unduly made free,^ who are not in- 
titled by birthright, service, or purchase. It provides a 
method for previously examining into the right of those 
who claim to be made free. 

Obj. <' That there is no metliod to compel a meeting oS the 

132 Hilary Term, 30 Geo. 2. 

17 57. " mayor, alderman or aldermeri, and the wardens and 

" stewards of companies." 
GREEN Answer. This objection extends equally to all cor- 
A ^' o P<>'*^^^ ^^ssemblies, by custom, charter or bye-law. Bat 
MAYOR OF ^j^gj^ j-^ ^ known method, by mandamus. 
DURHAM* Qjjj^ jf jj person has a right to be admitted a freeman, 
yet unless he be approved of by the mayor, i^c. he is not to 
be admitted: and there is no method to compel them to 

Answer. If the mayor, ^t. disapprove, without cause, 
a mandamus will lie, suggesting the qualification and right 
of the person claiming to be a freeman, and commanding 
the mayor to approve and admit. 

But supposing the bye-law good^ it has been argued, 
that this case is not within it* 

IstObj. The mandamus hf to admit Green to the free- 
dom of the company: the bye-law relates only to the 
freedom of the city. 
L 1 32 J A ns wer. It appears from the second bye-la w, to be the 
same thing. 

2d Obj. The bye-law prohibits indeed the election of 
persoiis not called, and approved, ^r. ; and subjects diso- 
bedience to a penalty ; but does not make the election 
roiJ.and cannot transfer the right of election tested in the 
electors, to the mayor, &c. 

Answer. These objections are founded upon a misti/?- 
derstanding of the bye-law, and a misconception of the 
nature of the case. The writ recites ** that Green had 
been duly elected and admitted a freeman ;" and therefore 
commands the mayor to swear him — the mayor 
returns the bjre-law^ i^c. ; and " that before Greens sup- 
" posed election and admittance (by the company) to be 
•' a freeman, he was not called and approved by the mayor, 
•* 4fc.** And the fact found by the jury is, " that he was 
V elected and admitted by the company : but not called 
*• and approved by the mayor,^c." So that it appears upon 
this record, that the intent of the bye-law was, that no 
person should be elected and admitted a freeman of the 
company^ unless he was called at the assembly and ap- 
provedj ^c. ,• which was a previous act to be done befoi;e 
the company could elect him ; the way to prevent the 
abuse *' that the company unduly admitted persons to 
, ** their freedom :** And the second bye-law inflicts fe 
penalty on tlie company t who should make any one free, 
without the previous calling and approbation ; and the 
third bye-law inflicts a penalty on the mayor, who should 
" gwear any such person. 

The stating the fact answers both the objections* For 
the bye-law makes the appearance and approbation a 
mceMdry fuali/kation, to tbe being made firee by the com^ 

Hilary Term, 30 Geo. 2. 133 

po*«y, and a restraint upon them to elect any one to his 1757. 
freedom, before his conforming to the bye-law: and the orbek 
right of election in not iratisferred to the mayor, but re-' ^^ 
maifis where it was. mayo'e of 

Obj. It is m>t returned " that there ttas any assembly, uoitHAM. 
" at which Green might appear, to be called.'* 

Answer. It shall be intended^ — and if in fact there 
was no assembly, Gretr/i might h^ve pleaded it as an ex- 

Obj. He might have beenelected and admitted, before 
the making t h is bye-la w. 

Answer. The jury have found, ** that he was elected 
*' and admitted : but that he was not called and approved 
'* PURSUANT /o <Ae6y€-/iz2r." So that the bye-law xcas 
in being^'dt the ^ime of |iis election, Sfc. 

It is to be observed, that it is not stated, what is the r i qo n 
method of the company's electing freemen, nor any thing ft j^i. . J 
in the cliarter conperning it. For aught that appears,* to be iotwded 
the first bye- law may be agreeable to the ancient usage, in a retura to 
and revivedhy this bye-law and enforced with penalties : * maoiUnmi i 
but supposing it to be introductory of a previous qualifi- ^^o^*""" 
cation, it seems to he reasonable^nA well calculated to ^''•*"J 
prevent improper persons, not entitled, being made free. 
It is much mor« reasonable than the custom of London^ 
" that no broad cloth should be 8old,but what was brought 
** to Blackwell-hall to be examined f 5 Co. 62. Yet this 
custom was held good ; because it was to prevent fraud. 
We are of opinion that wowe of the objections are well 
founded; and therefore that the ueturn ought to be 


Consequently, as this was the case of traversing a return [See i P. 
to a niandamns, pursuant to the statute of 9 utf/</i. Wms. S6l.] 
C.20. the rule was taken, 

ThatjuDSMENxbeenteredfor the defendant. 

GooDTixLE„ ex dimiss. Chester, vers. Alker and priday, sstii 
Ejumes. Jao, 1757. 

Tr. 26, 27 G. 2. Rot. 590. 

^HlScas^ was first argued on Tuesday the 4th of Febru^ An^cctroent 
-*■ ary 1753, when there were ouly tjiree judges ; Mr. I'c* '>y*l»f 
Just. Wright having (two davs before) resigned, and Mr. '^^J^^\l\ **^® 
tVUmot (y;ho was appointed to succeed himl not being j^Q^'^^er 
then called a serjeant : and it was again argued, and deter- nhich a hi»h-^ 
mined on this day, (when Mr. Just. IVilmot was also ^ay lict ; and " 
•bseat, in the court of Chancery.) bu7J!n?upoa 

it, TMy be descrtbed in the deciamtioo as land « b«t perkaps if a houM were built 
opmil, it •ugkil t« U dtfcnbcd ai luch- [S. CBoll. ^9* cUed ] 

134 Hilary Term, 30 Geo, 2. 

\757' It was a special verdict in ejectment for an acre (yf 

GOODTiTLS LAND lying in the parish of St Philip afid Jacob in the 
V. county of Gloucester. It finds, a» to one piece of land, 

AiiKER and containing fourteen inches in lenis;th, arid thirty -three feet 
ELMEs. in breadth, (parcel of the premises;} and as to owe other 
piece of land, containing three feet six inches in length, 
and seven feet in breadth, (other parcel of the premises ;) 
and as to one other piece of land, containing two feet in 
depth and fourteen feet in length, (other parcel of the 
premises contained in the declaration ;) that Thomas Ches^ 
ier, esq. was in 1G48 seised in his demesne as of fee, of and 
in the manor of Barton S^gfs in the county of Gloucester, 
with the appurtenances. That the said T, C. esq. being 
so seised, certain articles of agreement were, on 24th 
June 1648, made between the said Thomas Chester and 
- one John Goiley otherwise Dowle, reciting a presentment 
L 134 J by the homage, at a court leet of the said manor, holden 
10th of Jpnl 1648, " that the said John Got lev alia$ 
" Dowle, in the new building of a house at Lafford s Gate, 
" had encroached upon the waste of the said Thomas Chester 
'• then andyet lord of the said manor, fourteen inches in 
" length and thirty-three feet in breadth, without his 
" house; together with a porch, without the wallad- 
'* joining to the said house, of three feet and an half; for 
*' the which encroachment, the said JoAn Golley alias 
•* £)aa?/e was by the said jurj^ amerced ; asby theprcsent- 
" ment aforesaid, in the roils of the siaid court, appear- 
*• ed;*' the said Thomas Chester txud John Gatley thereby 
. agreed, not only concerning the said amerciament, (where- 
of the said Thomas Chester thereby acquitted and discharg- 
ed the said Jo/i/# Gotley;) but also tlie said Thomas Chesttr, 
for the consideration thereafter mentioned, agreed to 
permit and suffer the said John Gotley his executors and 
administrators, to continue the peaceable enjoyment of 
the said ground and waste encroached, without bis distur- 
bance ; and also to have liberty to set and place a post 
in the street, 4c. and three other posts, ft-c. without any 
disturbance or trouble by him the said Thomas Chester, 
ftc. for the term of 100 years from the day of the date of 
the said articles. In consideration whereof the said J. G. 
alias DAov him, his heirs, executors, Ac. covenanted and 
agreed to pay td the said T. C\ his heirs or iissigns, the 
sum of 6s. Sii,per annum yearly, ^c. during the said term : 
in consideration whereof, the said T, C. granted and 
agreed to let the said encroachment or encroachments to 
stand, for and during the said term, without any distur- 
bance, Ac. ; so as the said yearly rent or sum of 6s, 8d. be 
duly paid, A*r. Audit was fuVther found, that the two 
jffri/ pieces of land particularly mentioned and described 
in the verdict, are the two several pieces of land men- 

Hilary Tcnn, 30 Geo. 2. 135 

tioned in the said articles to be encroached on by the said * \JSJ^ 
John Go f ley otherwise Dowle ; and parcel of the waste, goodtitlb 
and part of the tenement in the declaration mentioned ; y^ 
and tc^re so encroached and taken in by .the said J. G. ALKBaand 
otherwise D. 1 N /A€ building or erecting the messuage or £j.mes 
house mentioned in the said articles, some small time 
before the date of the said articles ; and then were lying 
in and part of the said manor, and were p£rr^ of a public 
STREET tfnd king's HIGHWAY, Called JVest^reetf in the 
parish of St. Philip and Jacob in the said county of 
Gloucester f and leading from the city of Loitcfun to the 
city of Bristol. 

The jury likewise find that the said yearly sum of 6s. 
8d. was duly and constantly paid^ in pursuance of the said 
articles^ by the defendants and those whose estate they 
have, to the said Thomas Chester and the successive lords 
of the said manor, (his descendants,) during all the said 
term of 100 years ; and from the end tliereof, till Lad^ 
dau 1750. 

Then they find that the defendants Jlker and Elmes, i- _. i 
sometime in the year of our Lord 1748, erected certain L **^*^ J 
palisadoes before the front of the said house, and thereby 
iook in and inclosed the third piece of land, above particu- 
larly mentioned and described,' then lying in and being 
part of the said manor, and being then other part of the 
Said public street and highway ; and have kept the same 
so inclosed ever since, to this time: and ih^i that part of 
the. said street vv here the said encroachments were so 
made, at the several times of the said encroachments, 
contained in breadth (including the said encroachments) 
sixty feet and fto more. 

The jury find Thomas Chester, esq. the lessor of the 
plaintifi, to be heir at law to that Thomas Chester, esq. de» 
ceased, who executed the articles ; and, as such, to be 
seised of the said manor with the appurtenances, as the 
law requires : and that, being so seised, he made the demise 
to the plaintiff : by virtue of which demise, he entered, 
t^c. ; and was ejected, Sfc. But whether upon the whole 
matter afon said in form aforesaid by the said jurors 
found, the said G. A. and L. E. are guilty of the said 
trespass and ejectment, as to the said three pieces or parcels 
^/awrf, parcel, 4rc. by them supposed to be done, or not, 
the said jurors are wholly ignorant, ^c. and so the verdict 
concludes in the ordiuaiy form. 

The counsel for the plaintiff made two questions ; viz. Argruracnt foz 

Ist Question — whether an ejectment will /le for these tie pUiutiff. 
premiFes as OEscaiBEB in the declaration. 

2d Question— whether the defendants are at liberty to 
controtert the title of the plaintiff ; or are estopped irom 
BO doing. 

ISG Hilary TeriBr SO Geo. 51 

1757- First-fit may be objected. •« that no^- ejodattent .wai Me 
UQQjjYijj,^** ofland which is pari of the kings highway.'* But i^ 
y^ is plainly and beyond cofHroveregr part of the. idrtPt soilj 

ALkEk an^ thowgh it is^indecd said to be part of the higbw^^ TUia 
Ei^MEs, highway ia found to be sixty feet wide. TtierefofeY/^ 
rSecSut. Vs enough be UJi for a public way^ the rei* belongs to the 
Geo. s. c. 18. lord: at least, he is noi guilty of a nadome, if he ahouki 
i^u T erect any thing upon the overplus part iffH. Now sixty feet is much more ♦han enough for any 

highway : and the encroachment ia only from the front 
< of the house ; not in the middkofliiehigima/^ 

R'^-^^^*"- The overplus of the soil is notveatdd m the crown: 
•Ii,lL SJ50 1 but in the owner of the soU. 3 JB, 4. 9. Br». Sf Fiixk. Abr. 
r 136 I '^^*- CAiwtiVi. In aV. 13, 14 Geo. «. C B. and at Ser^ 
^ '^jeants Inn^Selmanv. CouHneif (c-oncemtog giving inevi- 

[Pofi MS.] dence, a right to a highway,) it was unanimously holden 
** that, in trespass, the defendaat may justify that it was 
** a highwayr but cannot give it in ^ef idence; and thnt the 
" TigM to the soil was noi in the cjrown.*' 
1% Vui. 51 6.3 If the highway w^s taken out of the lord's waste, tbe : 
fight and property of it is clearly in the/onl; aiid the lord 
may distrain in it : so is 17 K 3. 43 pi. aii . If it was not 
taken out of the waste, it belongs to the owners of the soil 
on each side. Tiie case of Seiinan v» Coutiney {tupra^vfM 
so determined by all the judges* . 

The owner of the soil may cut dmn the trees, and. may 
ti^ve an action for digging tlie soil. $Q is 1 Ro. Abn39Q. 

S)L «. and 1 JRp. Jhr. 39^. fU 3. Title Cltimin privwtet 
etter B. 
fS. C. S«r. Idl the case of Sir John Lnde v. Shejfpard, H> 8 O. S. B. 

3004.] It. The laud was the property of the plaintiff, who made 

it a street; atid the defendant^ bHdge rested upon' it ; and 
be had (by leave of the commissioners of sewers) arched 
orer the ditch, and dugtbe ground, and fixed posts upon 
, it. It was holden " that this making a street was only a 
" dedication of it to the public, for the particular purpose 
" pf passing and repassing ; but that the«otY beloageid la 
*^y •^ " the owNEtt." V. 2 Strange 1004. S. €.• 
trithsf'jofta ^he general question is" whether v^part of a :AtBHr 
Strange*!. " ^w be recoverable in an ^ectment.'* 
«* The pro. T be description of a highway is laid down in Co; IMi. 
I^erty remaiA- 56, a. The property of the soil of the highway, (fts" has 
So" the wiU ^^" already proved) is in the lord of the soil Am^iom ! 
He only gave of trespass must be founded oh possession : and an.^eci- , 
tlie uM of it meut is an action of trespass. In Cro. £liu3S9. JorAtLyu)7 
tothepblic.»' Cteaboume^per Popham andGtfa^cfy, it was holdent.ta be ^ 
««-?LT ^^^^' ^^^ * personal action, and a trespass in its nature. JThefc^c? 
"" ^ fore the platntifi* might ht possessed of it i and conseqaeitt^Li 

ly may recoter possesion of it, in an ejectment; for i£:» 

HilafjrTefiD, 30 Geo. 2, IS7' 

hifbas Vl f^jir ta tbe^pofl^ession; lie mutt bare a remeeljf 1757/ 

it is not evwif ^MfMchmdnl,^ tbdt is a nusance^ to the y. : 
fMk: $9me eocrOftdhfneAts may fttaiKi. FifalA. ii^ftr. 7T. ALiiiia^atid 
«• Na^«4KT« 8 E* 37 U oae ifiafaiice of it. ButthtJre, the elmks. 
kmg muat betaMided to be ibe omfttr^^f the^oit: dtbei^ [«Tit. AniTc, 
viae, the mt vooM Iftfe belong to tbeowmer'of thepi« 447.] 
aoil;nottothelnAg. '• 

The sheriff miiy deliterfoU setsin of the thing here de- 
maiided* In proof of whid), tbey mentioned a note of a 
case before Lord Ch* Baron Ptngetly^ in fVHuhire; where 
aa ejectfneni was broagbt for a cottage in the kighitay ; [] 137 3 
and it was objected ^ that it would not lie, because tne 
^' sb^ff could notxletirerposMssion :'* But Ld.Cb.B.Pe;!* 
gtUge9€r-Tuhi tile objeofeion; and said that Mn Justite 
John Powell bad beea i»f that optnioii which himself then 
w«[it upon, and bad done ^e like. 

Tbey insiatfed very strongly, thai ttie sheriff can give 
seisin ofthe thing; SUBJECT fo the Wg^t of others upon 
tbi# property, for partieularirir«eiiie/i/^. Co. Litt, 4. a. Cro. 
EHx* 421. JVeid€H V. Bfiigeamter. Co. Liit. 48. b. For 
the rigbtr of others are no^ to the possessiok; but to 
fmte fiasBXBMVs, which we collateral to the thing itself: 
Cn». JacMS. Sit fPillitim W^ty v. Vesper. And there is 
no reason for making any difference between public and 
fnmie eMements. This argument might as well be used 
m regard to such an easemeiil» as^ a right to set up stalls 
in a fair ormarket. But the casa of the Mayor of North* 
mipton V. Ward in ^ Strange, 1^38, is a full proof " Aat 
•• frespass^is'tbe proper remedy for erecting ^stalls in a mar-, 
^ kitJ' Now ifa person should build a housej instead of 
setting up a stall; would not an ejectment lie, by the 
owner of the soU^ 

Secondly, ;(under the first question,) it will also be ob- 
jected here, ** that the thing demanded is not ztifficiently 
•* described r the ejectment being only " for an acre 
•* of LAirn.'* 

l*he plaintiff's counsel said they did not dispute the 
caaeof AnigAe t. Sym$, Cartk. i04. 4 Mod. 97. S. C. [r. 
also 1 Salk. 254. S. C. and 1 S»cMrer,33S. S. C] " that au 
** ejettmeot of so many acres of £ir<i6/tfa#irfpa5/K;ie,with« . , ^ 

** oatibe^Hngtbe fuantum of each sort, is not good.'* But , 

theyobsenred that m the present case, two answers may be . -^ 

gifeo lo tUia objection ; vii. 1st That this is no part of // 

the dpKM'^ the jury; therefore the court will not lay any 
atacto upoil it HMy, H^^t the, ^pecM terdict ha$ nicer" 
ittUMTifihe nature firkl the quantity and the situation ctfthis 
laad^fpty-itjafbmdto bepartoftlie waste, and isdb»erib« 
cd eMi xo iiicAei; aothlltt ^lhe>sheriff can hate fio demit, 
WHAT to deliver possession of. 

138 Hilary Terin, 30 Geo. 2. 

1757. Second general question*— the plfuotiff'g counsel said 

GOODTiTLE ^^^^ ^^'^ ^^ 'dnsUMcotucientioui defence; as the defendants 
y, ha%*e already enjoyed this'a bundled years under these ar~ 

ALKBR and ^i<^l^^ ^^^ hnveconsiantty paid the rent : and therefore they 
SbM£6. ^^ .E&TOPPBD from contioverting the lessor's title. They 
cited I Salk. 27(>. Trevivau v. Laztrnue 6s al\ and 2 LdL 
Raym. 1030, 10481. SuC«ii» support of this position.; and 
likewise to prove that not only the parties^ but also the 
cQtift^^Ajuryj are ftoiind h^y tiiis estoppel : in further con- 
firmation whereot^tbey also cited Co. Lit. 352. and 231, 
r 1«IQ T «nd jLi«. § 374. , . 

L ^^^ J ' And therefore tJiey prayed judgment for the plain- 
thS°f*d* ^^ '^^^ counsel for the defendants began witb observing 
*" upon particular parts of the verdict, virhich they thought 
to be material. As that it is expressly found "that part of 
" this land is part of the street,, whiifcb it^ptnt of the 
** king'skighway :'* ^nd the third piircel is expressly found 
to be*' other part of the said street or A^Aawy." And 
the jury likewise find/' that the way is in breadtli (inplud-^ 
" ing the encroachmenta) sixty feet, iwa mo more:^' 
which is WAafrom finding a surplus. That it isjnot found 
r* that the defendants claim under GotJUy" That the 
ejectment is"for we acre of lam b with tl\e appurtenances:** 
but the verdict describes three parcels by inches and feet« 
The plaintiff is found to be^Jord of the mfmoi:of Bftrtom 
Regis; in whicji manor this waste lies: and the two 
pieces first mentioned are found to be encroached upon 
and taken in, by erecting a house ; and that upon the thi rd, 
certain palisadoes were erected* And the doubt of the 
jury is '^ whether the defendants were guilty of a tres-> 
*' pass upon these parcels of lkkdJ* 
Then they proceeded to their objections. 
1st Object ion — the plaintiff 's demand, and ih^ finding 
of the jury, are no/ flgrceoA/e to each, other; so as to iu- 
titletbe plaintiff to recover, upon this verdict For the 
demand'vA of an acre of lajxj}, merely: whereas it is found 
'* that a house is built upon the former two parcels.'* 
And this was a fact within the plaintiff 's /irtviVy : and 
therefore the ejectment ought to have been broughtybr 
the house; not for the land. So is P» N., 192; 
though with a 911. indeed there. But, however, 39 H* & 
8. and Bro. Demaunde,pL 14. S. C. and zlso pL 5^Sf pL 33. 
sufficiently prove*' that the demand ought to be, oF^m 
** HOUSE ; not of arable land ;** (as the term " land,* im- 
ports.) So also do Plowden 168, 170. Hyllv. Graunde. 
J«Nirtii«,6th century, p/. 83./o. 268. Cro. hli;^ 23-1. tixsys 
v. Alkn. Co. Entr.QA^. S. C. 2 RolL Abr. 704. Titl^ 
Trial, pi. 22. and Dyer 47. b. Bamster v. Benjamin (to 
matgitt.) . _. ^, ^^ .'* 

Hilary Term, 30 Gw. 2. ' 139 

AiiA if it wasnot to be thus tpecificallif demanded, in it 1757. 
i» ut the time; there could be «o certainly how to deliver gooi>titi,b 
possession. And such specification would be liable to no y^ 
objection: for in P. 12 G. 1. £• R, SuHivan v. Segrave^ ^^^^]g^ ^^^ 
1 Strange^GQb. an ejectment ** de parte domis" was hoU elmu9^ 
den to be good. 

But here, thererdictyfitrfs what the pktintiiTa words of 
demand are/iof apt and Tit to entitle him to recover. ^ . a 1 
The sherrffmay break open a bouse, to deliver posses- L ^^^ J 
sion of part of it. 5 Co. 91 . Semiaine^s case, second reso* 
lution. HtyU, 938, mort than enough, is error: and less is 
bad. In 2 Id, Raym. 1470. Bindover v. Sindercomb^ a 
description of" part of a house" was holden to be good ; 
because it suflSced to describe it to the sheriff^. 

Where the land may be ascertained, by being at the 
plainriff's peril shewn to the sheriff; yet eyen there, it 
must be latid of the tame quaHiy^ as was demanded ; (ejus* 
dem generis.) Savik, 28. ease 67. The Queen v. Ayleworih. 
Cro. Eliz. 265. Scriven v. Prince. Cro. Eiix. 465. PoH* 
man V, Morgan. A demand of land must (in our law] be 
certain. futtrePs case, 4 Co. 87. b. 

There was a case oton^cgony Green v.WiUiamJohns^xn 
1715,wbere ahousewas actually sawn asunder: (they said 
they had the declaration from the heir of the defendant.) 
, It was an ejectment of an acre of land, (butyiirMer de- 
scribed Indeed,) of which the Dean of Exttpr was the 
claimant : and, though there was no judgment or execu- 
tion; yet, by consent, the house was sawn asunder^ in order 
to deliver possession. 

Though strict nicety has of late years been gotten over, 
yet siifficient accuracy and precision is Uill necessary : and 
part of a house can never be said to be within the de- 
scription of land, Co. Lit. 4. a. is no authority against 
(his; nor 4 Co. 87* b. And in Cro. Jac. 054. lioyslon v. 
JBfic/fj/on— ejectment "de uni domo & de uno pomario** 
i^ras holden good, upon the principle of their conveying 
a sufficient eeftainty, so as the sheriif might deliver posses* 
sion. Palm. 337. S. C. 11 Co. 55. Savets case. I Sulk. 254* 
Knight v. Syms. 1 Show. 338. S.C. 

And it would be very dangerous, if certainty/ of descrip- 
tion should not he strictly kept to. 

Second objection. This appears to have been parcel of 
f^e zTffffe ; and ought to have been so described: and also 
iiispart of the king's highway. Therefore no possession ^ 
or no full possession, at least, can be delivered of it 

P. 15 O. 2. B. R. In the case of Popple v. Dobson, 
^ waste-grqutiif' was thought a good description: sedad'- 

journ\ (Cur advis^) Cro.Car.bll. Mulcary and r v. 

£yre» and others, on error in ejectment, from Ireland, 
^ bogg^* was holden a good description. i 

140 Hilary Term, 30 Geo. 3. 

1757. ^^^^ '^ being the king^$ public highway^ the plaintiff can 

GOODTiTLE ^^^^^ ^^^^ posscssioti delivered of it The owner cannot 

^^ levy a fine of it: nor can he distrain in it ; as may be seen 

ALKER and '" ^ ^*^' 13. 
ELMES. In caaes of encroachments or purprestures on it, these 
encroachments are upon the king: and so is 2/Mi^. 272. 
expressly; *• dicitur purpreatura, quando aliquid super 
*' dominum regem injustfe occupatur, ut &c; vel in vii$ 
** publicis ohstructi%y And the remedy is by presentment 
or indictment. 9 Co, 113. 5 Co. 73. a. 27 /i. 8. 27. a. 
But an action lies, 04/^ where a man receives a special 

tTbitcaseas How can the plaintiff have plbnam iemi7aiii of this ? 
««/^P«r\«* In 1733, 8 Geo. 2. there was a 'case of WelUdviscd, 
L^ MTOf-^ ei dimiss.SirBourchierWray * a/' v.Fo« rfaf in ejectment,at 
fiold, pott 149. ^be summer assizes at Exeter. The declaration described 
ezpretily. and a piece of land, containing forty feet in length, and four 
alsobv 0c- feet in width, part of the manor of J. But the plaintiff 
Ts^Merasb? ^^** nonsuited^ For the land was part of the waite: and 
Foster, J. "P<^" evidence, it appeared to be part of the highway, 
who all '* on which the defendant had built Lord Hdtrdwicke held 
• thought there " that no possession could be delivered of the boil o/* 
DiBsthftTe u /Ae highway; and therefore no ejectment would lie 
i^cmTii?!' " ^* '^' and if it was a nwisflwire, the defendant might be 
not appearing *' indicted." 

by the ftate In the present case, all these three pieces of land are 

W*!*' f *J*h V^^^^^^^ king's Itigkuay^ and are encroached upon : and 

was not id' ^'*® ^^^ former have subsisting nuisances upon them. 

court at the If a highway lies within a manor, it must be agreed 

areuments (especially as found here) that the lord kas tke property of 

«ad therefore the soil; to be used consistently with the pxrvilegejs of the 

ao/opiulon 1 ^^^^^^ ' ^^^ ^^^ question is, wkat remedy the lord has, 

'■'in case of a nuisance upon such part of his properly as 

lies in the kin^s kighreay. We say, he has no specific 

remedy, by ejectment. The case of Sir John llade v. 

SAeppardt 2 Strange^ 1004. does not prove that an e/«eN 

ment will lie: that was not an ejectment; but an action 

of trespass. And perhaps an action of trespass might 

have been here maintained : but not an ejectment. And if 

the lord of the soil should recover and continue it, he 

would thereby become a wrong*doer: whereas, according 

to 2 Inst. 294. it is the wisdom of the law, so to resolve, 

•• uisitjinislitium** 

As to Fitzh. Abridgment 77.fl. It is the case of the king : 
and by his prerogative, he may continue it, if it be no m- 
jurjr to the subject. But a highway must aheys continue 
a highway. Cro. Jac. 446. Fowler v. Sanders, fully 
proves *Hhat it cannot be narrowed: neither can it be 
P "inclosed;* 

L ^^f J Second general question* As to the esioppet^t doe^ 


Hilary Term, 30 Geo. 2. Hi 

not appear that the defendants claim under Goihy^ there- I757. 
fore that point is oat of the case. goodtitlb 

It was urged by the counsel for the plaintifTy l^ way of y^ 
reply — that as to the estoppel, the court must necessarily ^lker and 
imtendy upon this finding, that the defendants themselves clmes. 
paid the rent, and erected the pallivadoes in 1748 : and -^^. 
the rent which was paid/row the end of the term till 1750, ^ ^* 
must be presumed to be paid by them; they being then 
in possession. A special verdict is not to be taken strict* ^ 
I7; like a special pleading. 

As to the * Ist objection made by the counsel for the «oiMerTe 
defendants— fio» constat that this land is built upon : it is that ttie two 
only found" that in the new building of a house at iWl ^^▼"•om of 
" /ord'sgate foresaid, Gotle^ had ENCnoACUED upon the [fo^ tm*"**' 
*• lord's waste, so many feet, ^c.** But it does not follow counterchanr- 
that Gol/e^ actually BuitT upon the land, which he so ed, in the 
encroached upon. For there are very many other ways couwe of this 
of encroaching upon another's land, besides building upon J'&"«»«»t: 
it: for instance, a penthouse overhanging and dropping fo*|^"J2feii- 
upon it, may be an encroachment. No express fact of dsnti having 
building upon this land is found. Indeed it is said in the begun first, 
finding, tliat th* third piece of land is taken in and in- J^ ^^^i-^ 
closed with palisadoes, by the said J. Gotley, But the^^'^^^ff^ 
palisadoes answer this expression : he inclosed it with couniel had 
thenu taken up (by - 

They agreed to the doctrine of the necessity of suffi- ^^l ^^V'?: 
dent certainty in the demand : but said and insisted that ^^^ jS^. 
it is sufficient, if the sheriff may know how to deliver pos- vide pttet 
session. lS7>aQdldS. 

The term " land^* is said by Lord Coke, legally to in- 
clude castles, houses, and other buildings. Co. £tf. 4. ^/. [Cowp. 347.] 
And by a grant •f ^ all a man's lands,** all his houses, mills 
and woods would pass : as appears in LutterePs case, 
4 Co. 87. i. And by the civil law, " appellatione/iinrfi, 
** omne adijiciutn & omnis ager continetur,*' ibidem. 
Therefore, as they would pass in a conveyance, there is 
DO reason why they should not be included in an ejects 
mem, upon a supposed lease: which lease, if it was a real 
lease, would undoubtedly carry them. . 

None of the things described in the declaration differ 
from the descriptions of them in the verdict. * 

Indeed it is only fourteen inches in length, that it is pre- 
ietuIedsLQy part of the house now covers. But the words 
are, that ** whereas it was presented that the said J. G. 
" hsd incroacked upon the waste of the manor\>f the said [ 142 3 
*' T. C. tfc. fourteen inches in length, and 33 feet in 
** breadth, without his house; together with a porch of 
** tbrie and a half feet in length, and seven feet in breadth, 
** smtkout thewuU 9djo\n\ug to the house.*' Now it is not 
necessary that the court should consider these two pieces 

142-143 Hilary Term, 30 Qib. 2. 

1757. of land, as a house; especially the latter, tipdA which the 
GOODTiTLE P^'ch >» erected. 

y. It is not found to have been a me«saage at the time of 

ALkERand^^® demise laid. On the contrary, the pieces of land in- 

£i«MES, croached upon, are found to be parcel of the waste, and 

, * part of the fgwem^n^ in the declaration mentioned; which 

tenement is not a house, but an acre of /and. However, 

this objection cannot overthrow the wAofe verdict:, for 

the third parcel is clearly land, and not house. 

If a man builds upon my land, it Would be very hard 
if I might not, notwithstanding this, demand my owh 


If the ejectment was brought de parte dom^, (which 
they did not admit that it could be,) how would the 
sheriff know which part to deliver possession of? The 
plaintiff must, in both cases, ihewhim^dit hlspcriL 

Though "pomarium** be good, yet it would equally be 
good, if called "&nd." 
♦ See the note ^^ ^^ ^^^ * second objection made by the counsel for 
10 p. 141. the defendants, the plaintift's counsel replied, that the 
right is admitted to remain in Uie owner of the soil, to be 
used consistently with the privilege of the subject: 
which admission is sufficient for our purpose. He may 
dig sand or stones ; provided he does not commit a nui- 
sance in the manner of doing it. Therefore it is plain that 
he has a private right remaining in him. 

An ad quod damnum alters no property: the owner 
retains the old road, discharged of the easement, which is 
transferred to another part or his land. 

The court have nothing to do with the nmance, in thi» 
case: it does not appear to the court, to be any nusance 
to the highway; or thatTMr. Chester vfxW continue it, if 
he should recover the land. 

Cro. Jac. 446. was for a special injury received from 
the defendant's laying logs in the highway: but though 
the king cannot narrow his prerogative, to .the injury of 
the subject, yet it does not follow from that case that the 
property of the highway is not in the owner of the soil, 
r i^g T Lord Mansfield asked whether they had any note or 
^ -^ report of that circuit-case which was said to have been 

determined by Lord Hardwicke; and by whom it was 
taken ; but there was no note or report of it; and it seemed 
to have been mentioned at the assizes, from some imper- 
fect recollection. He therefore proceeded to give his 
opinion immediately; putting this case of Sir Bdurehier 
iTray out of the way entirely; as being so loosely re- 
membered and imperfectly reported, as to deserve no 
regard, nor to be at all clear and intelligible. He said 
it was impossible to suppose that Lord Hardwicke had 
any note or memory of such a point arising at the as« 

Hilary Term, SO Geo. 9. 144 

ht otherwisep he would wait till he could know the 1757. 
true state of it from his lordship, from the deference he goodti«« 
paid to so great an authority. But frpm the manner in y^ 

which it is quoted, there is no ground to say what the ^|,|^£r and 
state of that case or determination reafly was. . £1.31 £«. 

As to the question " whether an ej^tment will lie^ by 
'^ the owner of the ml, for land which is subject to passage 
" over it as the king's highway^^ 

1 Ro.Jbr. 39-2. Letter 1, 2. is express—** that 
" the king has nothing hut the passage for himself and his 
'* people: but the freehold and all profits belong to the 
" owner of the soil." So do all the trees upon it, and 
mines under it (which may be extremely valuable.) The 
owner may carry water in pipes under it. The owner may 
get his soil discharged of this servitude or easement of a 
way over it, by a writ of ad quod damnum. 

It is like the property in a market or fair. 

There is no reason why he should not have a right to 
ALL remedies for the freehold; subject still indeed to the 
servitude or easement An auiie would lie, if he should 
be disseised of it : an action of trespass would lie, for an 
injury done to it. 

I find by the case of Selman v. Courtney, (a) Tr. 13,14 G.2. ♦ Vidoante 
• that a point which had been before the court of £xche« Fs*c*' i^v* 

Juer in the case of the Duchess of Marlborough v. Gray, kg 79 p|, JIJ*, 
f. ^ G. 2. is now settled ; viz. " that it*s being a high- in o. See alto' 
*' way cannot be given, in evidence by the defendant, 1 lUl. Abr. 
" upon the general issue :" which proves that the owner- 39«. or 4 Via. 
ship of the soil is not in the king. I see no ground why ^*^- ***• ^'J 
the owner of the soil may not bring ejectment, as well as 
irespau f It would be very inconvenient, to say that in 
this case he should have ko specific legal remedy; and 
that his only relief should be repeated actions of 
damages, for trees and mines, salt-springs, and other 
profits under ground. It is true indeed that he must 
recover the land, subject to the way: but surely (A) 
be ought to have a j^pfciyic remedy, to recover the land r ^^ t 
itsBLF; notwithstanding its being subject to an ease- t. J 

ment upon it 

Second question. As to the description. 

I do not know whether it is not even better described 

. (a) Tet it was ruled, as it seems soon afterwards by 
f¥m. Forieseue, J. thatit may be given in evidence on the 
general issue, that the locus in quo was the lord's waste ; 
because it proves the defendant not guilty of any trespass 
to the plaintitr. Goodwin v. Cooke. 33. MSS. 

(b) This right has been since recognize by the 13 Geo. 3. 
c. 7S. *. 17. 

us Hilary Term, SO Geo. S. 

1737. *y *^ ^^® <^ *^ '^''^ than of a AiMiie, or paH of a 

GOoi)TITLE ^^^^* 

y^ I think it would have made the objection much 

ALKER and ^^S^^^t^ .plakiti(f had only daimed.tbe NusiiKeB, 
BLME8. ins^6&<i of the land on which the niisaoee is ere<;ted« 

Here he doeBJiOt daim the nusance: he claims the 
land. And the tenants in possession of it defend them- 
selves by saying *' that they have erected a muante upon 
'' if' No\«^ il would be i strange thing, if ^Aal should be a 
good defence against the owner's recovering his laud. 
tSBurr. 26730 But» however, this is nota Aoff3e,(which perhaps ought, 
if it were to, to be ^particularly named ;) but merely a 
wall or PART of a wall or buiidiog e and there is not such 
preciseness requii^ in ejectment^ as there is in real 

The courts will go to the utmost extent, in support af 
fjectmenis; that people may have specific remedies for 
their rights. 

Dyer 47. a. pL 6. is very strong* There, the recovery 
was, of '* 100 acres of land, 20 acre^ of meadow, aod 
** 40 acres of pasture, in /).*' without mentioning any 
house or garden : And the better opinion seems to be 
** that the plaintiff should thereby recover the buildings 
*• built thereupon.'' 

,. That was an action of a h^ier kind than an ejectment : 
it was -a real action, a writ of intrusion, in which that re* 
coyery irSshad. 

But here the building erected is only paht of a house 
or wall : and It is erected, by incroachment^ upon the piain- 
tiff's land. 

The case of the defendant is nK)st unfavourable : fbr 
he insists upon holding the thing demanded without any 
pretence of title ; and insists that the plaintiff shall have 
no specific remedy for his land. 

Therefore I am of opinion that the plaintiff ought t$> 
recover uppn this special verdict. 
r 14'^ T Mr. Just. DfWMon concurred. 

r+Notc^Mr. *^^® difficulty at the assizes arose (as the judge wlio 
Justice Potter, tried the cause has f declared, merely upon an apprehen- 
who tried the sion that there bad been a determination at the assizes , 
""«^had formerly, by Lord Hardmcke, «' that an i^efetment would 
dorinffthe ' " woMie for a property in soil, over which there was a 
course of the ** highway; because the sheriff could not deliver po6« 
argument. " session of the highway." 
He said be But the reo/iYy of this authority has not been at all 

lidno doubt P^^v^^» ^ ^^y ^»n^ ^^ satisfaction. 

about it,.at Trt^ass would undoubtedly lie : why then ahotild not 

the trial; an ejectment? 

but upon it's It is said *' that the sheriff c^mot ddirer fuit poseea- 

being^aJWg, . .jon/^ 

Hilai'y Term, 30 Geo. 2. 146 

8at Why not? Indeed, it must be $ubjeci to the case- 1757. 
meat : but there is no other difficulty in the matter. goodtitle 

Therefore I take it for granted, that there was some- y^ 
tiling more in that cited case of Sir Baurchier Wrajft^ alker and 
than we are now apprized of. elmes. 

As to the second ctuestion — ^^i^ Hard^ 

It might ha?e been perhaps difficult to have described wicke, (for 
this fart of a house. ' "^^^^ cv«nr 

In that case in /)yer 47. a. I take it that the fbrraedon ouchuohaw 
ill reverter was well brouglit for the land, ^Ctfndain ^ Teners- 
f&rautfhdoni: the plaitytlffhad nothing to do with what tion,)* had 
the defendant had done with it, or built U4)on it And I madesnrh a 
think the four judges who held on that side of thej?jf™'"»- 
qutttioo, were m the right. , , .^ ,^ , hewoaWnot 

And upon this special verdict, the sheriff would have take npoo 
no difficulty to deliver possession; for any thing that I hiin<iclf,to 
can see, to raise any. oycr-rulciho 

I think that case in Dtfer is good law. That was in a J^j^^J^t^ 
ffo/ action: rnd much more will the same reason hold man. 
«poD efectmenty (which would even lie for tithes.) ( V. Cro. 
Car. 301.) 

And I think this ejectment was better and more pro- 
perly brought for land^ than it would have been for ^* part 
" oJakfmeT 

Mr. Just Fosttr agreed that the case in Z>yer was good 

And he repeated, that he had no doubt of the present f 146 1 
case, when it was before him at the assizes, but from the 
<Ae«-apprehended authority of the cited case, said to be 
determined by Lord ffcirdft'tcAe. (V.ante\\h.) 

The owner of the soil has right to all above and 
UHtzK ground, except only the right of passage, for the 
kiag ana his people. 

And the case in 1 Ro. Abr. 302. Letter B. proves this. 
(F,i6frf.p/. 1.2,3, 4, 5 «r6.) 

Therefore he entirely concurred* with his lordship and 
his brother Denison, (for Mr. Justice Wilmot was * not* ^- ante ISS, 
present in court at either of the two arguments of this 
case,) that there should be 

Judgment for the Plaintiff. 

TooKBR "oers* Dukb of Beaufort. 

4 NEW trial had been moved for, on k supposed miWjV^c- ^ comraisslon 
-^^ tion by the judge who tried the cause, in admitting a ^^^ ^'^ ^** 
commission under the seal of the court of Exchec|uer, P. j,2ro1L5blc, 
33 Eliz. Rotulo '290. to be given in evidence ; («) although it though oot * 

evidelice. [S. C. dull. 835. and see 1 S Vio. S680 

I I. i i i»i ■ ■ I * » r ■ • I .1 , . I , . ■. 

(j») Sayer id the report of this case (p^ 297) states it to 
Vol. l L 

H7 Hilary Term, 30 Geo. ?. 

17o7. was t>bjected at the tml, that this commififeioii was *' fi?^ 

TOOiCER " *"^^'' Ai-ios acta; X)f which the BeaHfori femily could 

v", " have 720 notice, nor opportumty (o defsffiiit ; and Uiereforc 

DUKis of " ^^ coald rtot qfeet them: coTiseq«ently; i« owgik vor^ 

8EAUF011T. ** ^^ *^^^ ^^^^ ^"^ ^^-^ admtted a^eiridffkee^ for the safBe - 

' " reason that a verdict m a cause between other parties 

" cannot be given tn evidence iti a cMs^ between strangers 

" to the former caase." ■ 

N. B. This commisstcft (P. 33 Etit. Rotulo 29Q, in 

Scacc) was directed to five donnnaissioners therein 

named, ad inqtdrendum, tarn per sacrum probdrton 

Si' legalium hominum com* nr'f South' ion, ^uum per rf<- 

posiiione^ quonimcnnque te^ium^ ^commbmt 4ims viis 

meim k modis quibus^uHque, ** si prior aut prioratus 

" Sci* SiciihtHi fVinton, fn Jure dofnus $roe priorat^t 

"fuit seisitus hi qnihmdam ierris vocat* fVoodcrrfi^t^c*' 

** CT pnrceir de mnncrio dt Uinton^Dauhnetf ;'*^ ne6no$t^ 

** Si Hertricus, pater noster^ [in ejus vitOy) Domhmt 

'* Kdtpardus sextus, Regifta Maria, aut iU)S qw, d 

** tempore dissotulionisprioraf us sci' SaHthini, Sfc^^c.**- 

with an order for the sheritFto summon a iury, &c. (a} 

L ^'^7 J To this, h returned an inquisition tsricen ftw^'eon] the 

[3 Aik. S98. Qth of Jprii, 33 Eliz. : whereby it is found *' that the 

ih.r' " P^'^'' ^^ ^' '^^•'*'"' ^" ^^g'^^ ^f ^^^ Prioi'y, WAS seisedof 

" tlie said lands called Woodcrafts, ^c. as part andparcdof 
" the mzxiox oi Hinlon Daubnejtf ; and that /row the diB- 
** solution of the said priory, King H. 8. Kjng £.6. and 
*' Queen Mary were seised, and Queen Elizabeth herself, 
" in the same right to the ^7th of May then last past." 
- There are also returned the interrogatoriesadministered 
on her majesty's behalf, and the depositions taken thereon. 
The substance of the judge's report was, that he fld- 
mitted thiscoiww/Mwnan^ the return to it, and the deposit 
. tiojts, to be read in evidence; holding them to be a//i7t£t- 
sible evidence, though tfot conclusive. That there wis 
likewise much j^aitiZ-evidence of the possession of both 
parties; and that there had been a mixei possession: but 
that he, iq his direction to the jury, did lay gieat stress on 
this commission, ^r. and that without its assistance, be 
shooid have thought the verdict for the plaintiff to havie 
been a very hard one. 

' The report concluded, " that he hiniself (the Lord Chv 
'^ Baron) thought this piece of evidence to be^dimssibU^ 
** but Ttot conclusive; that it had great weight widii tbe 
Jtiry ; and that if the court should be of opiaion that 


hav6 been an etemplifieatiom under the eeal of the Excbe^ 
quer, nota commission. And see 3 Dstm* 7i4. ' i. 
in) On an issue between persons not parties jior privies* 

Hilary Term, 30 Geo* 2. 143 

^ it was JiQl adoHc^ible* bo tlii^ks th^fe .Qvg^t ia thai case 1757. 
•' tQ,be n mm trial'* ' tookbr 

TIm^ matter lM^viiig.,lwD lax/jely debated ,a^ tl?e bar, y. ' 
and ^fterjirarda fMf Wnfid^ed ,\^v th^.'beRQlj j iiodtbe ^^jk^ of 
court^haviug* b««#uQf .9lwioa /* that tb^ evidefxcfe W« beau fob x. 
*' ADMissiALEfltliaAigb NQT cojsc/tfiiVe; ftxicl therefore that '^ '^' 

•* it was wdlaodp(Qf)^fly^,r^<;€iyc|dr -a^dcof^Qq^^utiy, 
" that the rule for shewing cause wl^y thejrq Should not 
*' be a new triaU should be( disAb^g^dT ^^ ^^id rule 
b ad {seen accordingly discharged. 

Butin.tho iDtefim* whilst this question was depending 
before this court, (who t6ok time to advise upon it,) the 
Duke of Bem^/MTtf the defendant, died. 

Whereupon, (on Saturdajf^ I3tb November 1 736 J Mr. C* ^^^* 
GmUdi on behalf of tbe plaintiff,, moved for leave to ettier ^*^^'J ' 

tfj9 hia^judgment^Zioi the ne^i term after the verdict; which 
was tbe term in which he might have entered it up, if the 
motion h^d not obstructed it. 1 Leon. 1S7. /s/<y s case.— 
It is discretionary in tbe court to graotthis or not, 1 Sid. 
46i. Crispe and^Jackson v. AlayQr of Berwicke, in point. 
1 f^nir-.^B, 90. S. C in point. And in Hilary term last, r 148 1 
the case of fVyndbam v. Ch^wynd S. P. (though a prema- ^ 

tuie ai^lication.) 

I*ord Mamsfiblo— It seems reasonable ; take a ruletu 
ehew GaM$ew . -.• 

OnFndaf^ 83th JdAuaty 1757, on Mr. Gould's rao- 
lii)n» <tbis.lttst rul^ (foi* entering up tbe judgment, as 
^ftbe-teroi next after the verdict,) was made* ajhio- •V.p'oit. 

• hite without def4^ce. p. 936. S. P. 

Rfixvei^. M.vumcE Jarvxs« Ssforday. 

89th Januarvi 

* 17Sf? 

THIS, was a conviction, (which stpod in tbe crown- 
paper,) upon ^JfiM. c, 14. orthc ia«e 

lti\ya»m9i^.\>yJi9hnBytheHa and Jo/in ram^r^esquires. acu most par- 
two justiMs-of the peacoifor Uie county of /r 2/^5 ; ana ticularly and 
Wds to tbe effect foliowlAg : negatively 

Beit remembered, that on, *c. John Webb of the parish |f^'*y **"*^ 
ef IHlpeHm in the county of Wilts aforesaid, jj'eoman, coovSS* had 
in his own proper person, cometh before us, ^c justices, not «nj of the 
ke. And now be giveth us the said jitstices to understand qnaUficationt 
^nd lie informed, that one Maurice Jarvis of Trovcbridge f?*"*/?* ^7^^ 
i«th^ county oi Wilts, labourer^ within three ^months q^' 2*5"^^^^ 
oew^Iaatpast, tbatis tosay, on the fourth d^ of September ^ which the 
now last past, in the twenty-eighth year, esc witn force act of Ana re- 
and arms, in a certain field commonly called, ^. lying ^^' 
and being within tbe parisb and maoor of Hilperton [jj^jj 
afocesaid, ia tbe ooimty of fFi As aforesaid, did unlawfully ^ £u't M. 
)ceep and «8e,.an4 had in bis custody aojl powesstpn, 9 Dura. 19. 

L 2 6 Dura. d{9»^ 

U9 ; Hilajry Term, SOGep, ?. 

1767. ^^^ setdiigfjog and Bejttiog-net for the detttructicm of the 

Rex ' S^^^ '» ^^^ ^^i^ ^^^'^ ^"^ there ride with and hunt -the 

y said «eitinc:-rdog^ with an ioUnt to kill qnd d^stroyi gaiue ; 

jA]iyj9. '^^ ^^' ^^^^ M^m^ Mr%is at the tioi^ and place wbeo 

he 8(» (tiepi an^. ufted .t^e 0^ .setiing^dog and net and 

had the 8anv9 ja \\\^ O|i0tpdy< and posscaeicm, outj hot 

^Uniifiti BV/ANSV XiteWB OJ^ »i:^TUW^« Ojr ^HI% fl3L|rA>M, 

la kUigame^of^ f« Aew^i of iise «i|9 ne^doiF^ or other je^gioea 
for- the deet4nip^ioii of the game 1. contrarv to- the form of 
the gtah^tf a in .|hat ca^e mude* and pi%>?|d6d. , And there- 
spott afterwatds, that i$: to ^ay on the said K)th day^ Ssc* 
at, 4*tf4 afonesaid^. Tbrnii^Wthl, servajatand gamerfceeper 
to Edward Eylea, eaq.; £or the laanorof HU^rton afore- 
said in the county of Wilts aforesaid, « a ci^diUe. witoeas 
in this behalf, in hia own proper person, cometh belbrc 
as, '^c. ; and taketb bis corporal oath on the <I^o)y Gospel 
of God, to speak the truth of and conceminj^ the pre-- 
mises above-mentioned and specified in the^aidinforina- 
[ 149 3 ^'^" ^Wfore m^, the m^ Ifc, the. justices aforesaid, leaving 
suffioi^t power and authority to . administer the. said 
oath feo the i^aid Thomas 'fVeb6\ in this behalf ;, and the 
saidTAtvmis Wehb being so sworp as aforesaid, afterwards^ 
that is to say, on the said I2thday« 4rc. upon bis said 
oath so taken before us the said JAistices aforesaid, saith, 
deposetb and sweaiieth, of and concerning the .premises 
aforesaid in .the said information above-mentioned and 
specified, " that, ^c. (fully proving the fact ;> he the 
** said M. Jarvis^ at the iimc and place arAen be so kept 
** and used the said setting-dog and net, and bad the same 
" in Ihs. custQdy^ and possession, vu$ >*ot i^vxh9>fiy:p by 
" A»v lamx^r Uaiuies ofthi$ Tealm,Uf hill game, or to keep 
V oru9e arn^ neUidf^i^ gwti^er other engines Jar the deaiTUC-' 
'^ tion of game ; coutiary ,to the form of the statutes in 
** that case made awd provided." 

Whereupon the said M.J. leaving first been duly sum- 
moned in this behalf tx) answer the premises, and having 
had due notice thereof, afterwards, that is to say* at the 
house of„ 4rc. appearing and being present in his proper 
persom before us the said, ^c. : and the said Thomas If ebb 
the witness aforesaid also appearing and being present 
before us thesaid justices; and the information aforesaid, 
and the matter therein contained, and also the said evi- 
dence thereupon given, having been heard and under- ^ 
stood by the said M* J. in the presence of the said Tho- 
mas ^<66. the* witness aforesaid, and of us the said jus- 
tices; be the ssiid Maurice Jarvis is asked by us the said 
justices, *^ If be the said Al. J» bath, knowetb, or cao 
** say any thing for himself in his own defence, touching 
** and concerning the premises aforesaid ; and why h^ 
** the said M. J, should uot be convicted of the premisea 

Hilary Term, ' 30 Gm. 9. 1 50 

** af(}if^i4, dift^d on him in And ^ the >aid kifornim- 17^7^^ 

' lAHidftb^said MaariteJ^H^, now hei« before us the y 
ii\S' stances, i)E*ttfl VActf A^ dlW lei^t^'i^^'A.H'fir ctb the'" j4nvia. 
^id'settiog^og ■and lie^ und )r^itta»^s6me In his scuth 
tody and posdedaion, ' In mknner * atid form ^&» rs abo^e 
charged xm him; bift ife»9 ir<y ttf^/e^f ^ e^zit^ Ifr^ne la 
th^Mdjuifttces,8% &r'^oliirf n&iieGOit^f^ ofthe o^fenc^ 
abe^^^id charged' etthim tttthe'^id ifVtformalicHi. Afid 
ubbn t^i6l3Hae and et^tflifg the wb)ol# tiiattar'arfoMBaid, 
aftd^^ftefy ttiing alledg€fd by tlieaaid Mattrtdk Jarph 
tdiitfain^and toii(7eniitig the pretm«e^ aA>reaa$dv it ma- 
nifestly and plainly' appears unto U8 ibe aaid ju^icee, 
that? Jhe said M.'J. was not t»en any Ufm quaiifkd^ m^ 
pott^iji^(f^ lUen^td at ttwthorit^d, hy or €b6cofiU»^ to the LA.wa 
ohr tH]^ atixtik^ to kiH game ; and that the Mid M* J. 
it iuiHt oTthfe pMifli^es abovesaid, cl)arged on him in 
Hiid by the aai4 irifofwiatiori. 

Therefore it 1*5 now here cdneidered artd adjudged by T 150 1 
D$ the said justices, Hiat the said M. J. npon the 
testimony of the said TAo. W^eM the witnesa aforesaid, 
on hfs oath before us the said justices so taken as afore«- 
said, be and is convicted of the premises afbresaid» ac- 
cording to the fofm of the statutes in such case mttde • 
and provideU t und that the said if. J: do foHeit the 
sum of 5L fd^the ofience aforesaid, as' the statute di« 

MrlGaiitd^ for thedefendantj took exceptions to his 
ccfnvictioti, ' 

l^' The justices haye noi shewx ikdt iheg hrid 9vnin^ 
BicTioK optr this defendant For tliey (»ave not siMB* 
cicnftly shewn his defects 0/ qitaliftcttHan r which ought 
to have been specifically particniarizid^ Miiti 4in alle- 
gation " that he had not any one of them j" I m^ft the 
quififlications mentioned in 2% & %3 C. «. c. «*. • '- 

T6' prove thfs to be necessary, he cited ffwv. Eltfrr^ 
iqu. what, or where?) H. 1« G. 1. ^ Ld. liaim.Uidi 
Rixy.John Hill: most directly in point, JSIuet, t/vl 
tarn, V, Needs, P. 9 O. «. in C. B. {entered Tr. 7,- 8ft 2:J 
Comynsf 5M, 623- Pas. 9 G. «• (which he ateo cited, t5d 
shew the distinction between a declaration ind a ctrti 
viction ;) a geiterai averment is sufficrent in a declaration : 
^tiit<f»irictiofts mast^et forth what tgas the want pfrjuMll- 

M.i9 0.2, B. JLRer v. Piekks, {the 2d exception in 
that cUse ;) where it was indeed hoiden that it wa» not 
necessary to hisert the inferred or argumentative qualification 
(collected from 5 Ann. c. 14. but not mentioned it)r29 
&2d C.2.)^* of bis not being lord of a manor:" b«t it 

151 Hilary Term, 30 Geo. 9. 

^757 ^^ ^^^'"^ agreed, that those required by th6 act o/22, 

23 C. ^. c. 23. owgAe to be negatively specified. 
"v^^ . 1 Stravge, m.Rex v. Sparting^H. S G. I. B. K. which 
VIS ^^* ^ conviction for swearing : and his occupation was 
jARVis. therein said to be leather-dresser; but it was not shewn 
that he was nbt a servant, labourer, comifnon soldier, 
nor seaman,' The,coiirt held, that giving hinithe addi- 
tion of leather-dresser was riot enough : and instanced the 
■ necessity of ^eciff/ing the parlicntars of the defendant's 
want of qualification, in convictions on the game-ad ; in 
order to give, the justices a jurisdiction which thej', 
otherwise, liatenot ; and they also held, that conviction 
naught, because the particular oaths and curses were 
not set forth. And that conviction was accordingly 

'2d Exception. The witness was examined privately 
and ex parte, prior to the appearance of the defendant, and 
^141 'Jin the absence bfthe defendant^ so that the defendant hid 
no opportunity :o/ cross-examininffhim, ^ ' 

3d Exception. The time wmi ihfe Aeffindanl wag un- 
qualified is not at all ascertained, Hn the adjudication of 
his being guilty. For it is only averfed *'tl1at he was 
" THEN unqualified ;'* biit wr«7YiMay8 and lirtes, distinct 
' from each other, have been antecedently mention^. (V. 
14S,14P, 150.) 

Mr. Norton contra, for the convitlion, begun vfritH the 
2d exception — It was necessary for the justice t6*take. a 
previous examination, as a ground and fOuWIatioh for 
his' issuing the sui!nmons: and when the defendtittt at- 
tended, after having been summoned,* the eVi(ience'was 
then read to him; and the witness also attendaiV and 
the defendant" was asked "what he had to say for'hi'An- 
" self;" and (lid not desire to cros8*^fxtimine'^ the' wit- 
ness. •' 

To the 1st exception— He answered-^first, by citing 
Retv. Chandler^ in 1 Ld. Rapn. 581. Wliere Hoft, in 
delivering the opinion of the court npon a conviction 
for deer^stealing, says " that it is sufficient for the jus- 
•* ticesto pursue the words of the statutes; and they 
" are not, in these summary convictions, confined to 
•* nice and strict legal forms ; it is enough, if tSey pursue 
" the intent of the statutes." 

If the defendant is really qualified, he may shew it: 
but how can the prosecutor prove the negative? 
Some of the qualifications are such as cannot well be prov- 
ed in the negative; but it is easy fiar him to prove the 

Tr. 9 G, *2. Rex v. Pord— Conviction for keeping an 
alehouse, without license. Objected, that there was an- 

Hilary Term, 30 Geo. 2. 152 

other former law upon which he might havc.been con- 1757. 
victed : and io 3 C. 1. f.3. there is a proviso to exempt j^^^ 
«uch arhave been so* But Cur\ held that if the defend- y^ 
ant had been bdbre puuUhed upon 5, G. £.6. c. 25. he ja,kvi% 
mieht have shewn this. T. I S/r«i*ge, 555. S.C- 
. Hex v.rhadA Strange, 60S. Conviction for obstruct^ 
log an excise-officer, who came to weigh candles. Ob- 
jection, that the exciscofficer 3 entry iiiight have been 
by night, (by 8 Juu. c 9:) and then there ought to 
have been a constable present. Cur. That might have 
been ahewo on tbe part of the defendant, if in fact so; 
and then he wouid not have been convicted : but they 
would not presume it., the defeudaut did not insist upon being any 
way qualified; but only denied the commission of the 
tact. - - ■ ^ 

This conviction fullom the xery words of the act of r j^g -1 
Queeu Awe: which does ttot enumerate the quahhca- L "J 
tions, as that of C. 2. does : and this c-onviction is on the 
,♦ act of flwen Aim ; and not on 2-2, 23 C. 2. c. 25. ♦ 5 Ann, c H- 

10 Nhd. (Lacfu) pa. 27, Queen v. Matihews, Tr. 10 Ann. - 
i. gB. . (ist exception.) 
.Vimr\$,Abr.TiuOumeMU^r 3.S.C. 
J5«rii,TiL Gufne, fo. 304. S. C- which was aconvjc- 
tion on 3 Amu c. 14. Where one of the qualifications (t>iz. 
not being a game-keeper, *c. being a new qualification 
allowed by that act) was omitted. And Lar. held tbat 
itwag;«tf necemry to enumerate any: Buta^soMB of 
tliem were enumerated, i^ ^^* *'^^^^ ^^ ^"^*^ flwoMer of 
tbem. (N, B. This ca^ was udjounud.) 

Rexy.Marriot,4G. 1. (1 Strange, 66.) was the very 
point. It was holden indeed that the wxTNESt cannot 
take upop himseifU^ atljudge the qualification : but no 
notice at all was taken, in the determmation of that case, 
of the. jusTiqE not having adjudged it, 

Ckjarly. jthis defect can, at the utmost, be only /orwi : 
for in substance, it is the same thing. And it follows 
the act of 5 Ame in terms. 

As to the case cited by Mr. Gould, of Rex v. Ellers- 
it does not appear what the state of the case was. 

And the case in Comym, b'12, 523. rather makes for us. 
It is as reasonable that the defendant should make it out, 
that he was qualified, and shew how, on a conviction, as 
iaan action* 

In the case of Rex v. Pickles -t\\e conviction was 
affirmed : and yet a qualification within the acts was 
omitted. , 1 j 

And this law can never, or hardly ever, be executed, 
if the court should think themselves bound down by tne 
case of Rex v. Hill (in 2 Ld, Raym. 1415.) 

us Hilary T^rm, 90 Gepw 9: 

1767. ^y* ^ to tl^et^ird, ^^q9pW>lir<- , . • U jvm: 

•' when oTie alone 18/ W/y sufficient. .^ , , 

r 153] U is aoyr sef tlpd^.\^ tl^e gu^forip <»*ij«e *o'f ^uiboittiei, 

Ftnt excep- that ihequaliu^ioi^^ i^.u^7^^ 6^ 0^> iKg9fcivfily fi«tv^€9itir 

tion. oilier w ise, tbc>jusjtvcc» Ji^ve .^Qj^i^Ud^ion : QWr tfc» pei- 

bons killing game, or keeping Aog^i^Qi «ogiQ«e for the 

detraction Qf4t. ^ . * , ' ,. . . • 

TUe o6iVr 8ayii}g in 10 Jlfo(^ (.if it waf aiji>ook o£b^ter 
authority than it i^,) would signify nptbing* wtMR^the 
de^lerminaUomzre the other way. - . 

There is* a great difieijenc^ Uetweep the jmrview <rf dn 
act of parliament, aod a pronfiso ifi an ^ct.ef pafiiaui^t 

luthc ca6eof£ex V. Marriott, Mich* 4 &.,l* B. R^ {l 
Strqnge, 66,) where the wifnm SWP^^ o|ily geBOffilly ; 
it was holden insufficient: («r) m4 the jMi^ky^. who. con- 
vict upon the tvidcfice of the witP^ss, q^ h^ ve no other 
or FUHTuEu ground tQgp upon thau-Avhat the wiMie^s 

[7 Dum. si.j In the case of Rex v. H///, 2 Ld. iiajHW,. Wi. i« tbia 

[a) The case in Strange^ 60: was in subslahc^ this ; 
'• Conviction reciting that one ff. T. inforraed that tli^. 
" defendant being a person not qualified to keen a grey- 
•* hound, did nevertheless keep one at A. and Killed an 
" hare at A. and being summoned, did appear^^ and being 
* 'asked tvhat he had to say, oftered nothing in ex^usei^ 
** and ideo the justice convicted him. The Ch. J. fee^m- 
** ed to think the conviction would be good, having fol- 
" lowed the words of 5 Attn, and' that if the defendant 
" was qualified, he ought to have shewn it. before ttjie 
•* justice, being summoned for that purpose; but then 
** £yre,* J. staf ted an objection that it was not the justice 
" that hadtlken upon him to say the defendant was not 
" qualified, but only the witness: so that he takes upon 
" himself to judge of the defendant's qualifications, and 
" the justice is only made an instrument to reduce the 
** opinion of the witness into a conviction. C J. The 
^'x*^ ■ ** extsUfts^ &c.* should be the conclusion of the justice, 
•| and not the words of the witness, for he ought not to 
" swear generally a man is not <][ualified; and such a 
•« general proof will not be good : this is only an itvyentiou 
** td support a conviction in general terms which woul^ 
'« be bad, if the particular facts were alledged. And this 
•-'*'• conviction was quashed, and the principal rea^D 
'* declared to be because the witnesses had taken upon 
*• themselves to judge of the qualifications/* 

HHaiy Tera^r 90 Geo; S. 154 

eoort^H. IS ff. 1. It is^tbe veiy point establMied;jiihl VTffr. 
sdtltd^v tbtl tte^iiiimi/ at'eramt is hm sufficient ; and ^^j. *^ 
" thit^ttiiil 1»e «vetr6tlthftt tbe defendftnt hiuIiioT ^ 
'Mkeyomiculitf qi^ililk»CioDS nmitiotjed in the fttatutfe. T^.Vts. 
^'aa to degree. estate, *c/* - • ja«Ti». 

IktiM ease ofAtetf, fii^^M, y. N^^f, C<>fl»^v5«5, 
tbei g^Hifol tvenMOt of tbe' defendant's not being quaK- 
liedj iiraa tioMta to h^ suiBcMuf uiK>n an aithm ; though 

Tbe distinction is obvious between an attion and a 
eomicthti: And there it was agreed, (and tt is given as 
the reasM wb]^ it is not good upon a conviction,) '* that 
'• it must be made out, before the justice, that the party 
*' hadn^sucb qnaiiflcationsaS'thelaw requires,'* before 
the/Miee'e^tt^donVicf him : and tbe jostice ttnst return 
'* thai h^ had no Manner of qualiftratum.** 

Hete^tbo witness mearn otAy eentraOy," that the de- 
'' fetalant ws*i»irqualffied, ipc^' The jnstices adjudge 
it o«y£iiAtiLr, cmtif, The i^r^tfin can go no higlier than 
tbe wpripg^teai.' ^the conclusion which the justices 
drav«^ from the testimony of the witness must be as gene* 
rsl as that t^timoiiy. 

In the case of Rex v. Pickles^ it was laid down as a 
mle^'^^ttiaittr^ waiftof tbe particular qualiflcations re- 
" quired by ?2 4f W C. 2. c, 25. ought to be nrgativefy set 
"• oiit iq. convictions :'* And tbe oi3y question Uiere was, [vido S Bl. 
whether it was ivpcessary to add— "nor lord of the manor." 807.] 
EieefhUprqbatr^ulam: nor was tbe gen^ai rule at all 
doubted or disputed^ in that case. 

In indictments upon 8, 9 JF, 3. c. -2(5.. for having a r ^cm T 
ccIoTr^-preas^ every thing which shews that the defend- ^ -' 

ant haS no authority, naust be negatively set out And 
60 it was. done» in the indictment of Bell, which was lately 
argued before all tbe judges. 

I take the point to be sbttlso by the coruiani tenor 
of a// tbe authorities; and I tbink^upon very good reason, 
(if there was need to enter into the reason at lai^ after 
it has been/ii/?y sd/ilttf already.) 

Therefore I am of opinion that the conviction ought to 
be quashed. 

Mr. Just Deniion concurred with Lord Man^eld. 

He said it was a clear case ; and that it was fully set- p^m esce^ 
tied and established, ** that in these coavic/ioni, the want tioo. 
'** of the particular qualifications mentioned in tbe act of 
'' 89 ^ 23 C. 2. ouglu to be negativelxf set out:" if not, 
the justices have no jurisdiction to convict the defendant 
ss an QSender. And the evidence and s4)udication ought, 
both of them, to be, " that he has not these qualifications, [i Dors. 197.] 
** which are specified in that act ; nor any of them." 

Indeed you are not obliged to go further than the srorrft 

135 Hilary Tefm, 30 Geo. 2. 

' : HEX 
V. . 
7 JAftVIS. 

1 757. ^^ ^^'' ^^^ ^^ parliftmeo t of t^ ^ 23 C 2« aod thM wa>> the 

case of jRex v. Pickfes. Bat however^ id that cBse» the 

prucnt^^point was established, and takeo to be iodispu- 

table. . , . 

. It is said, that *' it is sufficient to lajfi tbe oSmce in the 

.^ ** woRDB,ofth0 4iciofpafJiam€nt.'\o) 

But that^ always suificienl : it ma^.h^ oecetsaxy 
iog/o further. . P.28G. S. jB. R Hex v. Chapman, about 
[?. C. Saycr'a robbing an orchard, was a case where^ the mere pursaiog 
Bep. «03. J ^^ words of the statute if aa «o/ sufhcieot. 

But this .point now before us is a seUled c^se: and 
therefore there is no need to enter into arguments about ft. 
The conviction ought to be quashed. 
Mr. Just. Foster concurred, 
r 155 "I ^" negative acts of parliament, the point is fully set- 
Second cxccp- *'^'^ *'"^^ established, ** that the particular qualifioation.s 
tion. " metttioned in the purview of tbem.naMBt jfe negatively 

** specified in convictions noade upon tbeDp," . 
By the court unanimously, 

CoMYiQTiosf quMU^n* 


Feb. n'57. VAUaHAN. ' n. 

RojalEz- rpiIIS caae vras just mentioned to tbeoaurt po^Sth 
^J^?rf"*"f- -*^ Noeember 175d; and again^ ouddJFebruary U^: 
pany as^V ^^t wasfirst argued on 7th Mat/ 11 06 : aod Qow. ki»tiy^ 
nble to the On this day. 

,l>md tax. It waaan action of trespass, brought, by thp oonopany : 

and the question (upon a special verdict) was» " whether 

(a> It doth not seem to be always sui&cient to piorBue 
the v^ry words of the statute, uuless by sodoiqgyou 
.fuUy, directly, and e;ipressly alledge the fact, in tbci doing 
or not doing whereof, the offence consists, without any 
4i)ele^t ttucertainty or ambiguity. ZUazpL P« C, 249. 

A conviction for deer-stealing, by a justice of peace, was 
removed by certiorari^ and exceptions argued and over- 
XMled ; and //oft, pronouncing the opinion of the court, 
said that '' in these convictions by justices of the peapo 
V. in a summary way,, where the ancient course of pro« 
VJ. ceeding by indictment^ and trial by jury is dispensed 
*' .with, thecourtmay more easily dispense with forms z 
'^ ,5^it is sufficient for the justices in the description of 
"'the offence to pursue the words of the statute." Rrx \\ 
Chandler i 1 Ld. Raym. 581. 

Hilary Term, SO Geo. 2. HG 

-^* tW* cMnpAny are at all, or kow fat they are liabte io be 1757. 


Thespeicitfl vevdictwas very long. In itmneie found, assurance 
at large, the f/o^tf/^ of 6 G. 1. c. 18. which gave rise and oomfamy 
eslabliahmeAtCb this company ; aod the several charters ^ 
from the crown which increased its ftiod, and entailed yaughak 
its poif^rs beyond what they were originally intended 
(or at least explicitly established) by that act of parli«^ 
ment; the ori^nal foundation of it being only for in« 
fiurance of shipk ♦ with a smaHer fond : but the subse-* r^ And roods 
qoent- -charters extended their powers, to insurances ofajjca.w^ 
"houiei and goods from fire, and upon Ihes; and also in-gomr'toiem, 
creased their fund. aodfendhig 

In the above-mentioned act of parliament, (6 J the origi'^ ott bottomry.] 
ndllQtA Wad expressly extumted from being taxed. 

Several fftcts Were also found : particularly, the man-» 
nef in which thi« company hare carried on their business 
under a// theite jpoWei^^ai/i//^, and not under eachse- 

The )>res6nt assessment is for their whole stock, and in 
their coiyorfl/e capacity. 

They «ei*fr had been taxed at all, till now. And they 
were now taxrecT, in their eorponOe capicity, under the 
land-tax act of S7 0. 9: e.'4 : (of which, see pages 48, 64 

Bylbeaat dfb O.l. c. IS.theircapitaV was 1.500,0007; 
sod they were thereby exempted from altpariiamentary 
taxesk This was only a power to insure ships and goods 
at lea. 

A ftw years aftier, the very same persons obtained a f 156 1 
charter toextend their pow^r to insure booses and goods 
at/a»^, and upon lives; and also to extend their capital 
tOOflOOt. fertherthan the former sum. 

Upon the first argument— 

Ttte' tourt seemed, all of them, to see this matter 
pretty hiuch in the same light; and they* all nmde two 
quesftions ; into which, they divided the whole of this 
caseVm. ' 

1 St,' Whether the original capital that Was raised under 
the act of parliament of 6 G. I. c/18. (§ 2.) and was now 

jja) Xitf. if that does not afford an argument that they 
wi^re not liable to th6 land tax ? 

(i^l'Sec. 10; by which the stock of the corporation to 
btedi^li§hed jDursuant to this act, and the shares of the 
mJmtjers in the same, are exempted from all taxes, i^ates, 
andlnrj>ositibos whatsoever by act of parliament or other- 
wise:' **• • 

(c) Vide sections 3^ 31^ and 54. 

156 Hifeiy Tierm, 30 Geo; 2. 

lY^Y* btcwne ^art 6f ,t*i^'^ftind vTiAb plbks«WT :crtAiirfiil^(a) 
t.t6ui^6t ^^^^^^^^^^^* ^^ exempted' Worn purtr^mentar^" tax69, 

ioiitAUt ^^'^•(S iO.y'V^rhielV^Ac^dfpartiimfeht'relateri Wj/uAhc 
y U)*^wflf x:<Wi|ik*;ji^ fot^1n#ttiiince^ ^Hfiipi) Vut 'did no* eib- 

VaV^uk^. tendi to 'the' phs^irf' <y6rptthitiOf^' esWWIihed'^ fcnf <^«*iifr(^; 
which charter has extended their power and' tffthitge^ 
thWt'capiwT; '-^ ''■ '' -^ '-^ - ^* ^ ' *• * •* --•• '-'{ '- ;" 
' «!^, * Whether thi* ' tMginiP ca^fthl Hvatf the pexw&rW 
estate ^ <Ae coMi^xi v ; attd llftblfe ^<y b* ^taxed ^ ttfe 
company's pereonal estate, Iti 'tlieir torporate capacity* 
of whether- the tifx otight* io**ave beeni- takl upoft^bcA 
individual member of the eoiiipany; for &isfrprpecf?rr;i/*tf>iei 
in his ofE7/i /proper ttrardL' ' ' . -a . 

As to the first question-^tbe-cotfrt wereuAfffritnoci^&nd 
clea^ thM the exethptibtt under thtf act"oP^ar^a^rrient 
6f6'G.-l.>frfts rt>«^tfd*t6the on|ftWftfd«*iitod combAby 
established by - that act-; and could i nxit be^ 'ext«»ttdfed; tp 
the present corporation, which wai» founded tijpow ^•M^ 
Deqoent thartefoi the crbwi^ which ncither'tffd nor t^otfM 
give any ^deh exemption. ^ - n,.\,o- • ^ 

Atid they thon^it that thi^^ijri^'itefciapfu! ■ha^ftgbecti 
paW<>f the 5ftfrtr(e-coinpatiy^ fund, arid OtflV comttitred 
oy tfiec*ffrfcr'-corporation;'made no'dlflfereiiwititlie case. 

[iO Vin. 159. As to the 2d question, they thought it a poiirrt of ifiiy 

pi. 7,] portanci' at^'d^ eMtensiTt* consequence/ ^d ' theV^fere 

desired a further «rguihcntT though 'they sfeertiedTin- 
"fclrn^a to think Urtit' it was prtopERLY ti*jre3, A« ptfrt of 
the hymmn^s personal estate, in (heir cbupOR-ji^E ipftfja^ 
<f ity ,^ by virtue ot' the Clata:ics in^.^ 48 $ 64 bifa? *€^- i. ^.^\ 
It therefore stood over, for an -^ -^ " . - 

• - ' ^' • Ulteritts CoxciiVui^. 

r5 Bur. 2537] 'JSpdn Vhich' further ftrgtmrrent, Ldrd^afdrtjflriW'iVas 
so extreiiK^ily clear, that he said he had been ertderfvoiir- 
fng '(to the atifiost of his power) io raise k doubt; bW 
cbul^f ndt. • ' . J / . . . 

,{«:). 4^:. the sul^sequeut charter departed from the original 
insjbitutioD, byextending the powers of the corporation to 
itTsurances from fire, and ouJ^Lvesas.metition^^^ jSlMfrows 
(wh^cl|. i;l)^^,r|iiMr. Seg, Hilt sai^ he bad iiot seen ;) and 
the exemption was not confined by the above-mentioDed 
lOtb Sec. to the coivoration to be established pixTsn^nt to the 
act, and to the stock to be raised for the purposes in the 
acts ; and by the latter charters the corporation was not 
pursuant to the statute, nor the stock for the saoie pur- 
poses as before, the exemptions ought to cease ; and the 
sections of the land tax act as above, seem to have been 
particularly introduced with a view hereto. 

Hilary Term^ 30 Geo, J2. i67 

Ii( 4» 6 Jf^if J|f« tbe4UtrioU nn& diyistcms were aUot^ 1,737. 
te^ S^ tb^t'tbe qyestioii* hw^ i» only .between the sxchaxqr 
BiTisiQi?»; .jdOt betw«8B the <i(jf,Apd th«vofi^p<ng^. ^ A8s.uarJLif^fi 
Ao4 tbis special Terdict waiv poly jntantr (a^ it is pl«m ^Q^^p^^^ y 
by. tlie firKli^gv) to tiy tbej(r# point. • Kotbii^ i« found v. 
about «b(ues. of propmtor»: por wa ,ttU8 ja^johd . poigt vaugiia^. 
f b^ tJ^agbjt of, . , . : ' .,^ .. >. M '^ . 

It is plain they are to be rated ab a coRPO(|tAT£ body, 
ky/i^ W' ^ r Avd ' to ml6 the w/wW^i^w W0Mi4'i>e /i(iiio«^ 
ttipoi^i^^d.. Tbe aijgument would, p^o^e too much : tia* 
tbatfi^iCorpofatioa coutd be tailed. . 

The MimUqm'i Bay Cwmfantf are said ib be rated for 
that stock : aad tbe^ Is a particular dircctioQ giyeu^ where 
the Bank of England are to be ratedu 
>^ - J|9i#« DeflUM eoQcu rxed. . 

Tk^ «r^iifa/*capitai raised uader QG^Uc 1& wa9 in* 
tendad.fop Mwothtr purpoia,. The queation was eertainiy 
ma4e upof^^tU^^^^ point ; f^nd this secoud point w9»' not, 
I diire ^.^t tbat trnK, thought ol. An4 here ia nothing 
stated, to oringthia second point within the claude in 
fo. 76 ^ 76 of the act of 27 G. 1. c, 4. Therefore we can* 
not -take. ;tbis tf^rbe.^ny more than tbe oommo8» case. 
Tb^are tfcu^ a» a c^poro/e. body» witbin the clause io 
/a»48^;!andXdanat5ee how they could baye been taxed 
Q(heryiae>i .7 ,.' •! - ^ ■•• • - ' 

^^i^mfon^'jiidgiaeDt ought to be for th 
Mu Jfuat- IWer was of the same opinion. • 
,T|Hft $rst point, be observed, was deternained- before the 
Pf^sent argudient, and rightly. The company bad im^ 
posed txith^upon )be' crown, and upon the adventurers^ 
by bienaing their different stocks together. 

h^y to tbis second poiot, it cannot bear a question 
". w^^fher tiiey should be taxed in their corporate capa- 
'' dtyi or as in^duals.^' It was intended, and it ^ tbe 
natural and proper way, to tax the corporc^tion^ in their 
CORPORATE capacity. And this n wh:it the act ooanir 
festly meant: the tax is to be paid out of the stock; and ' 
tbiawill oocaaioo ^ proportionable deduction out of the 
ByTn» cooRT unanimously, (except' tfcat LordfCom- 
'missiouer Wilmot was, at tbe time of the secdnd 
* 'krgusaent, absent in Chancery,) 
' JoDOMEKTfortbe Dei^e^^daitt. ' 

158 " Hilary Term, SO Geo. 1 

1757. Master and Savior Fcllows of John^s CbELEbcV 


vf A PROHIBITION hadbcen prayed by the college, to be 

tod/no- "^ dir^fced jto t^eBi^tiAp of J%i to prohibit him from 

TON. proceedii^ upon a ignition J9sued by bim against them, 

upon Mr. Todingtons application and appeal to biro, as 

FA^mV ^^ VISITOR o/^iAc mlege.s and the College bad thereupon ob- 

Feb. 75 . t^ji^d a ry]^ ^Q gl,^^ ^caiise, why a prohibition should not 

Mciwit wl^ go. Which xu)e to shew, cause was made upon a suggeatiop 

lejeiiTuiior " ^'^^^ thebisbop was no:i «M/<or of the college, as to 

aboof en- *' tUctiosu into fellowships and other oiBcesf! and also, 

grafted fouD- " that admitting, him to be so, yet the present inatter 

^**'**^"f» °"j** " (which related to a SouxuwjBi.i,-feUowsbip) was hot 

toruTap-^"*' " within his jurisdktioii:'' for, the suggestion set fortb 9, 

fointbi. ^^^ of oovenants (all ob the part of tlie college,) relating 

[s. G. 1 Bl. 71. to a foundation of two fellowships and two scholarships 

s1.sres.7s. hff Du Keton: iu whicb deed ana covenants* a power is 

slSura^sio ^^^^^ ^^ ^^* Ketoii, to make statutes (to which bis 

SIS. 4 Dorn.* f<^Uow8 and scholars were to be sworn,) so as they should. 

S3S.* s Ves. be conformablie to the statutes of the foundress, of the cq1«. 

Jon. fill] lege. And there is also a. fenajlty and forfeiture giveu 

to Dr. Keion and his trustees^ and also to th^ church of 

SouthwM; and a cluwc of distress, for the. said for<* 

fetture or penalty* upon two of the college manQis,.la case 

the collegi^ $bouId breaJk the covenants. Tht s^ggestiop 

adds" tbat Dk* K^on^ in fact, never gave any statutes,. 

'* or made ^ay declaration^ in relation to these fellow-' 

" ships."; , \ . 

. Ttieijr^van^pn complained of^ is a citation frof9[ the 

Bishop oiEl^ to the master and senipr fellows,, upQ(xtb^ 

€pAipli|int ot the said TAq, Todington^ clerk,, on. his U^g^ 

refused AB^eli^ct^om intoosye of these i\wo^S9u0imlh^9.yf^ 

ships; sbewiag, ''that A< tra^ withi^i the4e^GriDtjpujQe{^ 

" . ttre endo\y nient ; whereas th^y had cboson. pjjip JjF^^ft^" 

•• .CraxeHiw\\o (as Mr, 2WiWfl|Ai alle4ged)\\YaSjMQTj,i^,' 

•• findltlia^t the bishpp bad .alsp. cited the,,;3aid WiUian^ 

*' CKuvm, ASiW^ll as the fiaid,^fasteri1j^i.$eq4or fellows, 

" t^o^Wpear before ^inoi at fi^-bbusei, 4<:*!' ^ ^ < ' • • *- 

t .JLij^pii^r i;q,hpvj8 8> oiear imH\ fiWiCeRtio^of tbis.c^er 

ifefWy.teo.Mcessary tp specify tb,U..§tjfi;^es.tipn at large^. 

af)4 ^^ tp preQiiset S9n[ie ptn^r ps^rtkpTarf wibich are re^* 

qwi.«H^ftftti*¥?tkflpfKni y(hi^k are, ,Jst, 'j;he c/ecd between. 

tlna..,^q^t94,ft^.),Jfq^Wcit CpUJ|rt?ss of Richmond (tUc 

ifoM*?»8).^jai8hfi?P'|ifAfir^fW™^ ^y ^^ Prw and 
4«WI»t ^if^lffiMkl' [Sojnftf^i.tracts from Bishop Fisher's 
sififtkhj^m^^yit\§^ from those UaiiiiteB 

^^iffb ^^^^iM^i^migff*' ^afterwards gave to this college^ 

3iMd'Under wl>ic|k iKe college have ever since acted. 

Hilaiy.Term, 30 Gea. 5." U9 

o' The SUGGESTION, (akaaige—} 17^. 

J/tAiry term in the 29th year of the reiga of King Ueorge coi.i,Eqi; 

P , J. . Bfi it TCTheinb^fcd ^hat on the eleventh touixfr- 

£i»gfa«d,towit. ^y of Peftf won/ In this same term. tqj*. 

come into court here John Newcome doctor in divinity [5MSS. 373.] 

master of the co]lc<?eof St. Jaftn- the Eran^elist in the 

university of Cambridge, artd the senior ftMows of the said 

college; and give the cotirthcret6 understand and be 

informed, that whereas all plests Of and concerning any 

lands anrt tenements, and of and 'concerning any estate or 

interest of freehold, and' a?so of and concerning the con- .' \ . 

strnetion nnd operation of deeds and writings under seal, 

and of debts arising thereby, and the cognizance of 

the satne pleas,'tothe'lordthe king and his royal crown > ' , 

especially appertain amt belong, and at the common law * . ' ^ 

ift t!i^ court* 6f record of our lord the king, and *ot 

iri the eccl(*siasticaV fcourt, nor by any- ecdesiasficnl 

jodge; ouffht to be tried, dfscussed and determined^ an<l , ^ 

always hifhfetf 6 haVe been so accustomed to be tried, ' > 

disciissefd and )3ie term Fn'ed; dud whereas the Bishop Of • - - 

B^ for the fittie being is not visiMf of the said collfe^e, 

as to elec^tonitntofeliovt^fp^ or other offices in the saW 09!-^^ 

lege, nor hathrany visitatorial poweror jurisdifction what-* 

soevfer'^^r the master and fellows of the sai^d college,* 

oratiyof thttn'irt that respect; and whereas l^ an in- 

detittirfe tf ijJartite niade the twcnty-sevetrth da^ d^&iidberl 

in the twenty-second year of the reign of our sovsereign" 

lonl RVtig fl^/r/^ the eighth, between Sir Affthony ^fitz-^ 

4^6^r/,i|night, then one of the king*s justices 9f his^ 

Gottitnon Pleas and John Keton doctor of divinity^ a^idy 

candh t)f tire ctithedrRl church of Saliiimiy opo« the on^ 

part.thfechaprterof S6///Aa^fW within the courrtyof N0M 

tin^am upon the second ^art, and the tlwn mitster, fel-' 

lowg, and scholars of the college bf ??aint John the KViin-' 

gelist, in the unltersity of C^fwftrfrfg'e upon the fliird ptfrtj' 

it t^as covenanted, condescended, and agreed between the^ 

said parties for them their heirs and their successors ibf 

ever "in the form following that is to wit. First, the san^o 

mhster, fellows, and scholars of the college of Samt J^hi^ 

afbresaid had granted, for them and their succesors for 

^^r, unto the afbresaid Dr. Keion^ that Ae for himself, at 

die nomination and appoiotmeot as tliereafter e^rpressed^ 

stiould have tnco fellows and two disciples founded and sua- 

^ined at the costs only of the said masters, fellows and 

^hohirs within the college of Saint Jokm aforesktd, tbere«a> 

coidhMe for ever oMiis foundation, #«|Mr md^bove <^er 

feUows,^scholars or dJscrplcs then founded or thereafter to T 1 go 1 

Ix^ founded by the foundress of the said college or any other ^ ^ 


Hilary Term, SO Geo. 2. 


ST. XOHn's 



/ TOX. 

person or persons that then had given or thereafter should 
give lands or goods to such purpose and intent; and the 
said matter^ fdiows and scholars of the said eollege there- 
by covenanted and framed unto the said Sir Anthomf 
AtzherbeH, Doctor Ko^n amd Is the said chapiier, and to 
their heirs aad «iiooes8ors, that the satd fellows and 
scholars er diasipleaaf the foundation of the said Doctor 
Keion shouMi have atid ei^oy ail manner of profits, aa 
well meaty drink, and wage, as all other commodittes^ease- 
ments» and liberties, like amd in a$ large manner as ^her 
follows imd scholars of the same college by the foun- 
dress' foundation of the s^me college then had or in 
tioie then coming should have in any manner of wise, at 
the proper costs and charges of the same master, fellows 
and scholars of the college of Saint John the evangelist 
aforesaid luid of their successors for ever; and the same 
master », fellows and scholars by the said indenture cove- 
nanted and agree unto the said Sir Anthony Fitthmrbert, 
Doctor Keion and chafer of SoutkweU and to their heirs 
,and successofs, that the same two fellows of the founda-* 
tion of the said Doctor Keton should have, receive and 
perceive of the said master, fellows and scholars and their 
successors every year twenty-six shillings and eight pende 
sterling over and above the vtrage limited to other fellows 
of the foundress* foundation^ that is tosay , to either of 
them eight shillings and four pence sterling, at the feasts 
of Easier and Saint Michael yearly, hy even portions : 
furthermore^ the said master, fellows, and scholars of 
Saint Johtt aforesaid thereby covenanted and granted for 
them and tlieir successors unto the said Sir Anthony 
iitzherbert and Doctor Keion or the longer liver of them, 
that they from thenceforth shoald have the nomination 
and election oftlie eaid fellows and scholars or disciples 
during their lives naturally, and after the decease of 
the said Sir Anthony Fitzherbert, and Doctor Keton, 
then the said fellows and scholars or disciples slionld 
beat the nomination and election ofthe said master, fel- 
lows and scholars of the college of Saint JoAn aforesaid^ 
and of their successors for ever a/ier and according to such 
ordinance and writing as the saia Doc ton Kbtok sitould 
thereof make anddeclare f^y his kit will or otherwise ; fao- 
viDED ALWAY that the said fellows and scholars ordis« 
ciples should be elect and chosen pf those wrsom that be 
or had hacn.querisiers of the chapiter of Soulhufelisif oresfsM, 
if any such able personiu mannei-s and learning could be 
found in Sont/mell beforesaid; and in default of such per< 
s#ns there^ tbeu of su^l> persons as had been choristeiB o£ 
the said chapiter of ^Southwell, which persons irtKmId be 
then inhabitant or abiding in the said university of Ceata^ 
^'^*;&nd If 2fo»s ^vou should be found able in th^ 

Hilary Term, 30 Geo. 9. . 161 

nnivereily aforesaid, then the same feUnmrs nnd srholar? or 1757. 
disciples to be elected and chosen of tirch persons that st. johi«*8 
should be most fiiiiqular in manners and learning, of what colleq& 
Country soever they should be, that should be then abiding y^ 

in the same university. Furtliermore the same master, ToDn^G- 
fellows und scholars covenanted and granted by the said ton. 
indenture unto the abovenanted ^iv Jnthont/ Pifzfterbcrt r jgj' -j 
and Doctor Keton mtti to the said chrrpiier thew heirs P.nd *- -* 

succesag^d, that when the -said two fellows and t'vosclio- 
lars or disoiplcs of the foundation of the said Doctor Ke- 
ton or any of them should chance to die orotherwine depart 
from the said college and leaved or leased his or their 
title Or profits of the aame, that then immediately after 
that leasing, leaving, <leparting, or ceasing, at the then 
next tinaeof election offellows or disciples of the said col- 
lie limited by the statutes of the college of Saint John 
^foresAidf other felhw or fellows y dhciplo. or disciples, as 
the case should require, snould be elected.rtamtd and chosen 
by the said master, fellows and scholars according to 
iho$e then present cOTtenants and agreements, according to 
mch ordinances or will 2a the same Doctor Keton should 
thereof make and declare. And also it was covenanted and 
agreed by the said indenture, that the said master, fellows 
and scholars of Saint JoAn aforesaid, and also the fellows * 

aud scholars of the foundation of the said Doctor Keto;t, 
at the time of their admission should be srvorn to observe 
and keep the statutes and ordinances that then were 
tmdt or tliereafier iihou]i\ be ordained and made by the 
taid Doctor Keton for the foundation of the srud Lllows 
and scholai-s; so that the said statutes should be conform- 
able with the statutes'of theybwnf?res5 of the said college. 
For tlie which all and singular the premises well aud tru- 
ly to be observed and kept by the said master, fellows 
ai>d scholars and their successors in manner and form as 
is aforesaid, that is to say, as well for the elections and ad- 
misnoMof t/ie said fe/lotts and scholars and for their find- 
ing, as for wages yearly to be paid to tl^e ramo, with iil.l 
otherliberties, commodities and profits iik(nvisc pertaining 
untotliem^ asfor all other covenants a}id agreements with 
all and singular the premises according to the ordinances 
above rehearsed, the said Doctor Keton had contented given 
and paid to the sajd master, fellov/s and scholars, in mo- 
ney, plate,- and other jewels, the value of four hundred 
pounds sterling. Further it was covenanted and agreed 
by (he said ir^denture, between the said parties, for them 
aiid th^ir successors, that if the said master, fellows and 
^iiotamaQd their successors did fail in taJii/ig, admilling^ 
or receiving of the said fellows and scholars in any tin:e ot' 
ottetioQBext after the avoidance, and* not chosen or * ^'^''« »*«">• 
admitted into the said college according to the ordinances s^oaJr^m\M^^ 
awJagreemcnts aboverehearscd, or had not nor enjoyed not take of some 
Vol. I. - M words. 


162 Hilary Term, 30 Gc6v 2. 

1757. .^^^*^ ^"^ commodities and profits as is aforefaid, then the 
Jiap a«B^'« aforesaidiji^iatftry fellows aad scholars and their successors 
^i>r.i.EG£ «Ao«W.^QjiieQi'i33a»tW<iHo.the said Sir Anthony Fitther^ 
f^rf^iriiOQCtOfiiCe^ioiiifli fa f/#e chapiter of Southwell, and to 
tlJeirbjeii«5ijilKlsucco6Scirs^in thenameof apENALTvor pai» 
/^r €r:fi^,yd^ault mudeor no iuBfUction of the saidfellowssinA 
f ii^q" *! *Ph*^'*^** pr»ftBy)of them, -TWENTY SHiiiLTNGs ybr ererv 
U *S3 J jw(>i^^4ithatitj should happen the said fellows and scho- 
lara Jiottc^b^t^bOBeiTinoBfiLdmitted into the said college 
as is a£Qi^ewi4»i9i*i:astTaiDed of any profits, commodities or 
easement aa ta aforesaid ; and that then it should be law* 
ful as welLjta theaakl Sir Jnthony FUzherbert and Doctor 
J^e^(^/foa.tbeir. party, m^ta the chapiter of Southwell, and to 
their Ji^ifis.and^sncoessors.foT their party, tiifo Me manors 
nf Mii^^e and Millinglon \a the county of York, and into 
themanor of Liltl^Mdrbkrtm in the county of Nottingham^ 
fo6/j^^,a/i(^!B|sxsi(4.i:N^r Me fame twenty shillings, and the 
^rxes^r^oftho^aMeifor every time or times of forfeiture, and 
il^e dii&tr^$^jtQ.witbh«ild until the said twenty shillings with 
thq a^ear^€s,af ti^ same should be to them well and 
truly satisfi$d» .contented, and paid. A Iso the said mas- 
tery fellowsfUibd scbolars l:nr tlie said indenture covenanted 
and granted unto the aaidoiru^ioiiy FUzherbert and Doc- 
tor Aeifln^ that they the: said matter, fellows and scholars 
8uct t^be siiccessots^ at .every time and times during the 
life natural of thje said Sir Anthony Fitz/ierbert and Doctor 
JCe^o^t should give notice and knowledge to the said Sir 
Anthony Fitzherhert and Doctor Kctou , or to the longer 
liverofthem^ within six days, when and as often as it 
8ho^ld fortune any of the said fellowships or disciple- 
ships void or vacant; so that the said ^\x Anthony 
Fitzfierbert and Doctor Keton or the loiyger liver of them 
might nominate and appoint otl>er fellow or fellows dis- 
ciple or disciples apt and able to have, receive and take 
the said fellowships or discipleships so then being void. 
And yvhiereas the said Doctor Keton didvoT af any time, 
hy his last uiU or otherwise^ make or declare any statute 
or ordinance^ other than what was contained in said above 
recited iqclenture, of or concerning the saidfellonsMps c^U 
led*Southtfell fellowships, or of or concerning either of 
thm; nevertheless the Right Reverend Matthias by divine 
perniissiori Lord Bishop of Ely, well knowing the pretbi* 
ses, but contriving and intending to aggrieve and oppress 
tjie said#«fl5/ci' and SLUion fellows of thec*ol lege aforesaid, 
against the due course of the law of this realm^'knri to 
disinherit our lord the king and bis crown^ audio dttiw 
the cognizance of a plea which belongs to bis majeatyV 
temporal courts and ought there to be trred^ discussed -and 
deiermii>ed, to another trial before the said lord hishbp^ 
hath lately drawn into a plea tbe said master and seifiior 
fellows of the college aforesaid, before the said lord 

Hilary jTermvJ&'Oeo; 2. 


bithop, by a ce^taia iDhibition, citation: ^nd ^RMmtibn ^TSt. 

bearing datQ the tWMty-ninth day ofi/iwtiiify'mtlie year st. ^ouit'b 

of ovtr lordoae tJiQusand seven hvi^red andfifty-'si*, re* o<>Ltto€% 

citing ti^l/' wher^as^otbtheftart and«bf^haifof l^^'Rc^ y. 

" r^nd r//ow8tfarorfi#igl»ir,clerk,oi'tbefwmi»ec^ ^tn^i^^ 

'' lor of arts, it bad been (with grievoin ccNrlipiahit) at-< jft^lC 

** ledged aod shewn /to the said 'l^r<i bjshop, Chat th^ / i 

'* Reverend Jahu Newcame^ dqctor in divinity, Vnaste^f ^L ' ^ ^ 

" of the said college, And theaenior fettows-of the ^m\i L ^^^ J 

'* unjusi/y and undutn proceeding m ikisrvkeiion effo/hrts of 

** the saiid college».aia on orfiii^ut tbe^uentMiiFfib -'day of 

*' March last .c^936 flUd elect ike Reverend fViiHam Ctavetf, 

** bachelor of arts, fit/p0 feihvMhipfiu the ^kii cpKegfe 

** comnianly cMtdsL 'SQ$thweUfelh»ship,>i(<9tkiaied\^ 

** the B^ver^nd Jolin Keion^ doctor in divinity , ^vttcant' Uy 

** the r^gnftliQQ.bfthet.Reyeread I/iLeo^AiliJb J&i>i^^ 

'^ c belpr of. arC» lat^> one cf . ihe^ SonthtMU^ fddlows y)f th^ 

V saidi^l£^)as;afioc6aAid»>:andt4id 'JtM«%e (iti eleitihlH 

" admii^ n%iimi\did. ho^ f admit. Mkdeieiti thttmid Tkonio^i 

"nZWwfg^oii.itfitp the iaid vaoaot^ South^eit ftttb^sW^, 

*\imt»fMi§\md^t, th/J&said TAAmar Todinifwr'V^t>'w^h 

" .9i^ifM»tant i^iding witMm <tbe amft eMl^'md^ ScO, 

**.^n ^i^er of the tkurch q/'S#«M9ritf iti'lM cooiity ^ 

" Nottingham several viaarsiofiffSit£D ^'tt^^^U ^ti»kdmifti 

** and PRAYE^jii^ bedeetnit and admittedifOB'tiirg^fil^ 

•' /offi?5/iijp, and f«o oni«n thomsttr of tke'''^if4i4kk^th'6f 

•' 5aw/Aa?e// offered ^hiaifitiraicandwtate/fep'the 'tfaW^Va*- 

" cant fellowship ^oand tbat ht thQ-sk\di^Thoktks^yhdif}h 

" ^o/i, apprehending himself to be greatly injuM Wid 

" aggrieved by the pretended ekttion aforesaid '^Afi^*ot{\e} 

** pretended proceedings of the said mast/cr and sefAoffif* 

** lows^ as well by virtue of their pretended bflfkier^ iak 

** tite unjust instigation, solicitatiojXy' procurement; add 

" petition of the said William Ctayen, «lLhd->jffdtly 

" fearing that he might be further. iiijiiTttt and' a'^-» 

•' grjev^ thereby, had from ^Ae^iwe and fcrery of thenl^^ 

* * and, fcs p K c i ally from the said pretended choice and v/et-' 

•* tion of the person of the said ff'illiam Craven 4*fio the 

** aforementioned vacant fellowshiv in the said collegi,RtJ 

*' made or pretended to be maae by the said master and 

" senior fellows, notwithstanding the said Thomas Toding- 

'* ton oHered himself a candidate and prayed to be elect* 

'' ed and admitted into the said vacant fellowship, and no 

'* other chorister ol Southwell offered himself a candidate 

" for the same ; and from their refusing to elect and admit 

*\ at least not electing and admitting the said Thomas Toding" 

•f ion into the said vacant fellowship ; and from all and 

7 ev^ry thing that did or might follow therefrom : and* 

**4x/^»W aU. and singular other grievances, nullities, ini- 

'r q*i*i€3»..wd errors in proceeding ; and /rom all oth^r 

164 Hilary Term, 30 Geo. 2: 

1757^ ** a<^s;&ct8^»n«L things illegally done, that might be edf-^ 

gfT. JOHS^ " lected from thu pretended proceedings of the said mat* 

CO^&EtS'fi ?* teuand aeilaofj<feUows in thesaid pretended election ; 

y^ "i^ t^ifmjsiUdhrdMshap^ yi^iTQK^ the said college* 

^wVc*' ** rightl3fS'aaddBlfAPJHywLED,andof and concerningthe 

;^j^ '.* .nalftiy and iniquity ofl all andmngular the premises 

V" oaforetaid bafieqiMdIy and aMce pnii^ipally alledged and 

'f6 ttomplanied ;"' wmi alao Reciting that'* whereas the said 

.tvlordJbidiDf^; ii^irtly and* dttly 'proceeding, had at the 

*^>.pedlion>oNhe pvocAorof t&e said Thomas Todington 


^\ ( ttilmii tikereandiertrrtU3en^ rhesaM lotd bishop did there^ 
r 164 "jt^^itote thfltebjr.anthofite, impower and strictly iiijoin 
^ ''lM*:>ainl:c(itmiiaodaiband singular clerks and literate per* 

^^^i BOOS* whomsoever and ivheresoevety jointly and sever- 
>fi'B4y;[lihat'tbey 9!i\akjt\dk inhibit- or cmute to be inhibited^ 
. f«^ -pcrsonaHy, if itey conveniently could so do otherwise, 
^ ^Jl J ^\ \xy, pdblkly •aflixtng: the said monition for some time 
^S.isa ttie >ottiitt2Mrdt door of the ctia(>el belonging to the 
.^.daidixltittege^&nd^by leaving there affixed a tyue copy 
.ffottereof the wAfMiiitr and nwior fellows^^vAahattht 
fijauitWiUbmlOravenj in special, and all others in gen&- 
A4jrai:wboJ)y kwwere requirad to be hihibited in that 
.*f '^lehalC; ali and ovdry of whom, the satd loid bishop 
:<^.-aIsO by^fthe tenor of tbe* said monition did inhibit and 
."^ iigoifi ithat they. Dor any or ei^il^r of tbem slkOuldiiDno- 
^^.^vale^bcatlnnpii: or causa or procure lo be dote^ iooo- 
i'^fiitdd or > attempted ioytbibg to the pfejudiee oftlie 
j^.^aid TAosliMi Ihdi^on or bis said cause of i appeal or 
?^'tte(qutfaoritjr or jurisdiction aibresaid of t{)e said lord 
i1. blsfavp, fiending tti« sakt^ caiiseof app<hil said coaaplaint, 
;.^4nd. 601 long as the same* should remain undecided 
^<^^:b^re:the said fofti hitshop, so that tlie said Ulbaiim^ 
b^j'XtiifeNgiM^tbe appelant might bave!&*ee liberty aad 
(^.1 |:i6<Wei!(i9Biin Justice he ought) to prosecute that his 
:^ «Ad;caiuwa of appeal tod complaint, under pain of Ibe 
. «<>^btwrjandi thaur oontemj^t; and also thai they should 
?^ )iilik^^»f)nerorTR tie said matter end senior feihw9 
•^ and tisotbesaid William Craven^ or cause them to be 
" peroi«|i(tonily cited /o APFEAfc before the said lord 
i^'^ buhai^.hi his mansion house commonly called Eljf 
•* House siituate in the parish of Saint Audrea> Mdibom 
;•* in tbe.cottoty of ill^rW/tf5r:r, on Monday tbo nf Aeb^day 
i.** xitFebtsua^ then ne^t ensumg, between the faoui»i>f 
^ thveeandflix tn tb^ afternoon of the safne dayirtbtn 
*^ andther0/o a^kswea loJtbe mid T/l&ma^ Vodhig^tSn 
^ bis said business of complaint; and funher to do.sfd 
•* receive as to law and justice should appectajn^'Olider 
•* paiu of tl)e law and their contempt: and moreover 
** that they should nH>uish or cause to be monished pe« 

Hilary Term,' 90 G«.c^'jil Uzi 

^ remi^torily, in like mnitner, ihe'^iA -matter^ and ten/ar If i?;, 
** feUows and officers of tb^ 6aidi«illege int'Bpeciiit and all »f, 4011 jjJb 
*• others in general, that they sorflror finwrfthdm should coLit/Jt; 
"*• transmit or cause io be ifdfiimined\%6^fiikm!&&iori^\ehap v. 
** at the time and place atoreaaMV^lt/ahd^/siaigtili^^hfe TOi^twi* 
^* statutes, acts, original exbibitB, b6bks,ind«ntiffed»D]inf- ro»* 
*" ments, iustrunients and probetfdings ill* drat^ wise oott'- 
** cerning the said pretended eiaetk>D«4r ttie wiifd cmuae rf 
^* appeal and complaint, and ihareeepleciaUyvUie^fttirtiiteS, 
'*' books and indentures in the thereoHda^rittenBdledufe 
** mentioned, under pain ofthe law .'and their coiiteBlpt; 
*' and what they should do In the premises, they^fibould 
** duly certify to the said lord bishop, together with the; .^ , .- •, 
^* said monition^ and the said lord bmhbp' hath annexed 
** the following schedule to th^ said* montliotiy (to^it) 
*** the original statutes of the csoltege t^lven by qUeen - 
** Elizabeth or an authentic copy thenfeof, the indemcure 
^* bearing date the twenty-seventh day of October in the L ^^^3 
** twenty-second yearof the ifeigo ofK ingMitiry the eighth 
'* relating to Doetor KH^*t or ihef Sdutkt^S jMloyxshm 
*' fouaded in the said college, the book or faot)Bs wb^rem , 
** ike election of feiit>Ws and the probeedjogs thereon 
*' are entered, the topek M> battles or buttery bodk for tht 
*t months of Februd'y tnd flfofdt test:?' as b^ a copy »f 
the said monition, and schedule thereto'* annexed/ faef^ 
in this court r^d, itkn-e fully appears. * itnd Although 
the saidmasterlind senior fellovra of the aaid €oUq?e Aati 
ykadcdand aiUdged^W and si nguta r the i mutters kfimsaid 
by th^m above suggested and alledgedj beforel'^tbeosaid 
lord bishop. In their discharge of and from the/preikii^s 
afor^Md^, and howd^er^ f opr ox?e ihe same by uMdnta- 
ble teatimonyiotid proof ; yet the sadd :loid' bisfaof) hath 
mbxAhf k Et'Uann larteeive or admit the said pkti^vdkgation 
, 0mdpM^f^ aiid tbervi^y definitive sentence t)f the sBid lord 
iiisliop, itf th&^Mid premises, with all bis might doth ^- 
detmtDorxand daily labour to condemn ; in great contempt 
ofcDiir kirdthe now king and his laws, and to the great 
^^dmrngs^ and injury rfthe saidntdster and senior fellows of the 
^aaiii oriie^e^ all which said preniises the said master 
'^aald kaniorfellows of the aaid college are ready to verify 
'^Iriid ffttiv0, a^ tbfo court here shall direct. Wherefore the 
.'asM'kAaiiar andsefd^rfeliowt of the said college/imploritig 
vabeitid and munificenee of this court here, pray relief 
iattdMi majesty'^ writef i^rohibition to be directed 
iitd:?the i^kl lord bishop in this behalf, to prohibit kimthai 
iihe^^wt My further bold plea before him, touching the 
tifmeAinm aforesaid or any part thereof. And it is granted 

l.-V«' "M ' ., ' 


Hilary Term, 30 Geo; 9, 



Tlie Deed. 

. iSttpprmsioiDomiUSanctiJohannis in Cantab, ' "^ 
. Trti« 4^ttte^^i^ ttiade the twelfth day of December in 
the secomi 'ji^ar Of the reigrt of oDrs overeign lord King 
Hehty the m^ih, between tM reverend father in God 
JRichardB\atop'ii{Wiiichester,John BiBbopof jRotAes^r/Sir 
Charles Sorfttt^e^, knt. Lord Herbert, Sir i homos Lovefl 

' knight, Sir^Henry Marney krttSrr John ^aint JoAw,knight, 
Hennf Hornby <rlerk, and Hugh A^heton clerk, execu- 

:ior4ffth9trstamentof the excellent Princess Margaret (qte 

- Cotmtess of Richmond and Derby and gfartd-dnnie to our 
, said fiw^ieign lord King Henr^ the eighth, on the one 
'■ party, and the reverend father in God James Bishop of lUt/ 
! and ORDINARY of the house or priory of Saint John fn 

Cambridge, on the other party, witnesseth, that whereas 

our holy father the pope by his bulls u^rJcr ledd;\for 

" the increaseof virtuelearning and doctrftie stivd pr^achlpg 

ofthewordofGod, and to the &t451isfttng of Christ'*s 

r 1 CG 1 *^^^^» ^^ ^^ divers considefatiatts ' e^fircssed in the said 

'• -^ bull, hath: 9ffppressed extinguigjHed .diid deter Wihed the 

^ foundation and religion of thesdidhdUse and priory, by the 

royal assent of our said sovereign lord the ^ihg tifnt now 

- .- >, -. if^i by his letters patents under his great se^l, and also 'by 

- . t^e nsseataAdagnement of thfe isaid fevierend father James 

. BdshQp.9f IMy, confirined by the prior and c6nrent ofthe 

Cttlibedral church of E/y, as in the said bulls Ifetters^fJ^tents 

and other writings thereof made, more plainly appeiareth ; 

t ^itis bow covenanted betwixt the said parties and* fufly 

- .<X)nciud«d, and. iy the said reverendfather Slshdp of M/ 
r^ranted^itkat:be^(or the better execution an^^ ' assurahce 

«lf the premises, shall before the sixteenth day ofJdtiu'cAy 

i^ jaiQKt ^neuisg after tlie date of these presents, avoid and 

..c^^Witoihaavoidedand removed out of the said house i^d 

^.piiiofyi aU.aocband as many religious persons as now }}e 

.ciiW^oupOJcatedao^l possessed in the said hoose' and priory 

,;Qf Saint Jo/frt,'orthat can' or rtiay pretend orclaimaliy 

\ xight title\Oj\i0t«reist in or to the said house or priory 1)r 

, tP thepodsesrions thereof by reason of their profession or 

?i^orpocati<ni within- the same; and utterly make \<}\d 

^ . ^w^ dispose the.said religious persons from the said houfse 

.. a^d.pnpryv and all such right title claim and ' interest as 

.^^ypv any of theofi have pretended or claim to haVe 

1 withm. the same house and priory or to the possessiops 

^ or toauy thmg theneunto belonging; and also cause the 

^ same religious pereonsand every of them, by autl^^ntic 

,wstfiinjft€iit, m sure and sufficient form to be made, jo 

: :rwpi and renounce all such right title claim and inter^t 

z^yttm Of Any of tbem have or in any manner otvifee 

i^jrifta».ta:tiie: said hoiise or priory or to the pos^teitifes 

Hilary TBrm, 30 Gee. i. 167 

^T to any thing thereunto appertaining; and that the 1757- 
same bishop shall translate or cause to be translated all sr. iouk*s 
the same religious persons into other ^hoeae ^jb houses of .oonnDaE 
the same religion, and cau^e them ^d.eti^ry -of them x. 
clearly to renounce relinquish ai>d leave:t^.«an)ehoihe toockko 
and priory and all the posses^^ipos thereof^ aiid clearly to ^^dok. ' 
depart and to be utterly exclu<i^d-froirn tjimsim^ for ei^, . 
and to be really and eSVtctually ac;cf pt and. fncorporate 
in some other house or lv:)uses of tbiff s^me^ Religion 2 and 
cause the said house and* priory of Saint xJobi and the 
foundation and corporatioi> thereof to b^ clearly ditsoivi^ 
and determined for ever> before the sakl ii3iteenth. day 
of January uej^t ensuing. And alsQ the said BMop-of my 
covenanteth and granteth to the saiil executons, by tbe^ 
presents, that he, before the feast of the Pimticatidn' of 
our Lady next ensuing, and at all times after, when he 
shall be reasonably required by the said executors or any 
of them, shall make end catise to be imade ail $aih grants and 
4murnnces to th£ sa i o ex Ecot oas iheit heirs andauipts, 
OF ike said house and priorif of Saint John^ land of^lt 
the manors lands tenements and possessions and alt 
other that belong^tb and at any time belonged thereunto, 
to have and bold iothe tame exeeutorn ihtir hein and assigns^ 
as shall be advised by the learned -counsel* of the same f 167 1 
executors^ their.heirs and assigns or. any of them, at their '- 
costs and cbargi^ ; and cause all the same^ grants and 
assurances to fie confirmed •by the prior aod convent of the ' 
said cat|iedral church of £/y,. by their deed and. deeds 
seated ivith, the common seal, in such .wise a^shatPbe 
advjsed by ttie said executors or any of thorn ; so that the 
said exec«i.tQr^ or spm^ 0/ them, by reasonrand authority 
of the safd i]|uUs,and of the said letters patemi and ' other 
premises, may make lawful perfect and sum tmnrfation 
of the said house and priory oS Saint Join bxiA th«i pos- 
sessions thereof, unto a perp^ual coiiLJsGS.of a^pei^file- 
tual master and fellows, apd there erestJbundlmdMabikh 
a perpetual coli.£Ge, of a. perpetual mastefr^indfllilows, 
according to the will mind ana intent of tht midpriu^est; and 
according to the ordinances afid statutes ofibemid ep^Mt^rs. 
thereof to Be made by virtue and autliority tif tf)re isid 
bulls and letters patents, there perpetually toandare; 
aod on this,thesaLa Bhhop of Ely cooenanMh andgtant^to 
tlie said ^ecutors^ by these presents, that the ^amebcsti/op 
and bis successors, and also the said prior and convent '^f 
the said cathedral church of £/y and theirsudressors, Ishall 
at ali times do aqd cause and sufier to begone all thipgs 
necessary and requisite for the sajd transiatton and fof the 
foundation and establifihing of the said collfge' fof evfer 
toendure^as by the learned counsel of the said^execUters 
91 'an^ of them shall be advisecid at the costs and <2hargea ' 


Hilary Term, 30 Geo. 2. 



1757. of the said executors. And the said executors, by these 
JIT. John's presents, permit and grant to the said reverend father Bishop 
of Ely y that the said master andfeliowsy within one month 
next after tliat they shall be founded and have real and 
corporal possession of the sai^e house and priory and of 
the manors lands and tenements and possessions of the 
SVLine^ shall grant f by their su(ficient writing under their 
common seal, for the exhibition and finding of the said 
religious persons during their lives, to every of them or to 
olher persons at their nominution^ an annuity of (il. Ids. 4d. 
by the year, to be had and perceived to every of them 
curing their lives, 9Ut of the said house manors lands and 
tenement§,at two feasts of the year, that is to say Easter 
and Mtchaelmasyhy even portions, with a suiTicient clause 
ofdistiessin tiie same house and in all the said manors 
lands and tenements, for sake of payment of the same. 
And the said execM^orscorenawl and grant tothesnd rerc^ 
rend father in Ood Bishop of Ely 9 by these presents, that 
aft^r the said tran^lfttion of- the said house and priory and 
foundation of the said college, the same executors, in 
their statutes and ordinances thereupon to be made and 
ordained for the ordering and continuance' of the same 
college, s/kall ordain and establish (kmottg other things) 
that thejurisdiction ardifuiry of the iatn&toffeg^e vind of the 
8a]d.cbuit:he8 and chapels therfeunto b^bnging shall apper- 
tain and belong to the same bishop and his successorsjbr ever^ 
r 168 "1 »wo^««^nd tl^l the master aitd fellows shall f^ttlyfot the good 
*■ "^ estate of the said bishop during his life, and for, his soul 

after his d^pea^, as thes^oo^uxHTJoMnd€f^h^nef^ctoT 
and partner in the said holy and meritorious work, and 
also for the good,e3tal;eof all hia suodecaoFS.iii thne t\» 
come Bishops of £/^, during th^ir lives^Aod for the sou is 
r oi his predecessors patrons and founders of the said house 

"" and prioiy, and for the souls of his successers^xrt sei^ui 

dary founders of the said college; and on that, the ^ai"* 
exgmjtors sl^^il p'rovidfe and wake statutes uufl ordinsuj/cas 
of tiid ^flid college, it) sucli manner that there.^baU W^ 
be;any ambiguity ia tbe elections of the ' ncuasters aud . 
feUowsof tbesaid college. And also the. smjo ^?(p<^u-: 
torsigtanitd tcvthe said reverend fttber in (?od Bishop* 
of dB/y, by these presents, that the sariie reverend falhef 
inGaU,daTmg his life, shall name and choose tlu«o\fpli 
and able pa soaSj scholars ; and his successors, after kis^ . 
degeasfiV on6 apt and able person, scholar ; to b^, im^,< 
fellwva^ and- in the said college, and there to be accent- - 
ed ctnd adttiiited fellows of the same college, at ^Qei^ ^ 
nomination and election; and that to be reuew^d, loid' 
used; ^iX)ft; afi the place of any of them 3h^l^ap^p^ 
to beTakirc and on that,, the said executois mgni^ik^ :^ 
the aaidaferaiiebdl.feUi^ in God Bishop of .^,tl^ 

; Hila^ f enn, 30 G^o. ^. 169 

they, shall offlhinana provide in the said' statutes,, that 1757 
thfe'itoitet and fellows of the sai^ college shaJJ be bpun- ^^ john'b 
den^td pray for all singuW persons as welVative as dead, coi^^me 
fot'^lhfe which tlie said religious jbrethren pf the wd ''*''r'^' 
hou«flfod )Wbi-y were'bpUnH tb . pray; ia like wisfQ as the • TomKo. ' 
saidfexCfeiitbt^^liaVe'tbetore'this time prom Wed and cove- -.nw 
nar«feaijfitW tW .stfme reve'r^hd father^ J&p^^ to be dane. . 
Irf#iliS69s wbettedf the ^SiATd parties to ttes^ present in- 
detifbi-es^inteifchiii§fea6iyhave sQt their hands and seaU,. 
thedip^'knd y^'r abbVewrittea. "' 

Tk^^'Cbrifirriitlttcrh df Ih'e aliove Indenture, by the Txiof * 
^^ ■ ind'Cohvent of the'Catbedral Church otJEli^ « ,» ,. 
.31 5? p, we the .prior and cgnjreQt of tlie catheddbil ' 
church: of £/y, haying. .an4 taking these pteaent>Jii4. ' 
denture^ and all^ and lingular premises contained thereioi^ 
fr^Iy agre§a>ccQpt ai^d approve ;.atKl tbe hid^irture^ ■ 
and aU the..sam^^ premisses contained ajidspecified therein; 
unto the, s^A executors their heirs and assigns, fmr u« 
a»^.^"r^.'p[}CQessara, ratify jipprove amd c6nlirm,by these 
pr^^ts;,^j(fents^cpnsuetudesaad all o$htr rights of our 
nidnaftfjf ah{l,pribry ot ^/y, to us and our successors, in 
*"»W^S^4^^y;'^^^^(i and mermlA In witness whereof, 
*^^ ;^,5§^i?AP^F ^^ convent to theee pi-escnts 4avcset 
<*"^,wnmQQ jeal., ^iverj fn our Chapter House, the 
Gmi^^^p^Jfa^iuarg in.theyiear of our Lord God 15!0. 

,o:P!%7^9^ r jgQ -1 

Sl^tui^^pxQ CoUig^ Dm JoAis EvangetMe ftif^a Cimna- 
...V' I ' mum Cantabrigiense siio. 


tftcoWsletttniVersis (}ui statuta present in l^turi sunt, 
quftiw*!^' «ii«;Ontate sancita fuerint, hoc froHtispicio ^ 
lof^mitnntenmrimus instrumentum quoddam 'Stgtllis et 
8ub#mplti6ft$Kos omnium executorum praestantissima* 
vii^rt^ Domin« Margaretae Richmondiae, fandatrkis 
colfejjll^ Ndivi Johannis Evangelistae in Cantabrigia: quo 
mslrenttento pereosdem executores confecto, plan^ coii- 
sta^^pteteriami auctoritatera mihi Johanoi Episetoo > 
lu»i^si traditaih, pro condendis legibus. et fttatutis 
Qiiitfw^^m^^ster quam socij et scholares patiter «« 
dacfpifrtenejmtnr obedire. Cujus quidcm instmmenti 
ceMf west* OTi scquitur. 

« *illS*i?^ fidelibus pricscntes Irterasinspec- ■ 

« 5™f ^jcardu^ Winton. Episcopus Carolus Sonerfet 

.. S*?Su^*T^^®'^*^^™^^^^^l^*l«^ Henftctts Ver. « 
Mf Mdea* Johannis Seynt John Miles Henricus Home- 

170 Hilary Term, 30 Geo. 9. 

ly ^y . *' by et Hugo Assheton Clerici, executores testamenti et 

fix John's " *^1^™« voluntatis nuper excellentissimaB prtncipisss 

COLLEGE " MargaretaeComitissae Richmondiae. ©t Derbis, matris- 

'' que'et avias duorum regum nimirum Henrici sf]>tiini 

* ** et octavi, salutem in domino, et fidem indubiam pra- 

TON " fientibusadhibere. Quum sit optandumpotius.ut; non 

** erigerentur collegia, q uam ut erecta malfe gu bemaf e^pr, 

'* nos executores antedicti, qui sumptibus et iinp^pais 

'* pra&fatae principissae collegium Sa«icti Jobannis in C^n« 

•* tabrigiaextrui curavimus, simul et dptari, raagno af- 

" fectu cupimus id ipsum juatis legibuB aanctisq; admi- 

•* nistrari, sanctionibus. Veriiin quoniam omnes nos uni 

'* adesse commode non possum us, ut vel novam electio- 

'* nem sociorum in coUegio pnEdicto faciamus vel sociis 

*' ita electis leges et sanctiones justas ac sanctas exhi« 

^' bearnqs, denique juramentum ab eisdem exigamus 

*' pro legibus hmoi inviolabiliter obseirandis ; jdcirc6 iios- 

'* tras vices conmitiimus reverendo patri Jfihanpi Roffen 

** Episcopo, ut ilk t&m nostra qu4m su& fuctoritate possit 

** numerum sociorum ibidem augere, magistroq; et sociis 

** omnibus itatuta talubria tiosho nomine exhibere, atque 

'* ab eisdem juramentaexigere pro eorunden^ inviolabili 

** observatione,recusantes ver6 (si qv*i fueriv^i) araovere, 

** yiol^ntes corrigere, ac caetera oq^nia et singula pe- 

** ragere quae pro salubri gubernatione ,ejusdem coUegij 

'* sihi opportuua visa fuerint; aequ6 a^ si nog illic 

'' omnes pmsenfces essemus : quse omnia et siis^ula uni- 

'' versitati 6ignifK:ajaius per praosentes^ In qporifm om- 

'! nium et singulorum .Mem ac .testimoniuiQ^ sigilla 

V' nostra preaentibus apposuimus. Dat. vigesimo die. 

|[ 170 ] '' marisis.Martij^auno Domini millesimo quingentesimo 

*• quinto decimo.'* 

Ad'cultum optimi maximi Dei ad honorem divi Jo- 
hannis Evangeliste, ae mox ad fidei Christiaiw incr^poen- 
tum^noi Johannes Rqffen. EpkctipuA, unus.exfic^iM^fiim 
ultimas voluntatis oobilissimae viragipis Domiiw Alar- 
garetBB fLichmondiae Derbiasque Coni^itifiSiae genitriqi9>/et 
avias duorum Regum Ueoriei septinu paritec et oolavi, 
Homne el autoriiate ceterorum c(h-exeeuii)rum ^jo^dem 
comitissKfe nempe RicardiWintoniensis Kpiscopi Caroli 
Somerset Comitis Wigorniae Thomae Lovell HenriqiVer- 
ney Jobannis Seynt Jobn Equitum Henrici Iloroeby Hu« 
gonis Ashton clericorum, ^e« et Uatuia qum segmntur 
£D I piMUs» magistroq; et sociis ac scbolaribM^^ coHegij 
divi Jobannis Caatabrigiae /roAWtifitM, quatenus ,eisd^ 
omnino se conforment, tarn hi qui jam sunt magisl^r a^^rij 
et scholaresy quam eonim successores quotquot jfutari 
aint in perpetuum* 

Hilary Term, SO Geo. 2. !71 

De Electione Magistri. \ 7SJ. 

Qd 81 tunc per* viam spiritus sancti concordibus animis, st. john's 

nemine dissidente, in quempiam ejusmodi virum consen- college 

serint, qualis in statuto ante lecto dcBcriptu8e8t;autsi v. 

major pars omnium super aiiquo ejusmodi con8enaerit; toding- 

volumus et 8tatuimuBt q'visabsque mora, (nulla prorsus ton. 

iicentia patroni ordtnarij vmtaiorU aut alteriua cujuficun- « yjm, q„^ 

que jurisdictionem ordinariampraitendentis, nee cession is f qq^ (foni. 

aut resignationis bujusmodi cis vel eorum alicui t exhi- Uo, quodis) 

biasne^aut ab eorum aliquo ejusdemapprobatione expects- ^ qu. yj^ 

ta aut requisita,) perpraesidentem magister collegij pro- pokt p. 988. 

nuncietur, his verbis— - . ^P' ?; 'V^ 

^ . *« • . nwEliwibe- 

De juramento MaCTistri. « thcdedec. 

Ego N. in magtstrum collegij Sancti Johannis Eyange- tionemsgittri. 

listae in universitateCantabrigiae nominatus electus et prae- 

fectuajuro, tactis et inspectis per me hiis sacro-sanctis 

evangeliis, dictum collegium omnia ben^ficia terras tene- 

menta possessiones reditus spiritualcs -et temporalesjura 

Ifbertates privilegia et bona qinecunq ;• ejusdem nee non 

omnes et singulos socios et scliolareB et discipulos ipsius 

collegij, juxta statuta et ordioationes dicti reverend! pa« 

tris Domini Johannis Fisher RotTen. Episcopi, absque 

personarum scientiarum facultatum generis et patrias ac- 

ceptione quacunque, pro mca virili regam custodiam diri- 

j^m et gubemabo, et per alios regt custodiri dirigi et gu- 

bernari fileiam ; ti€scero factiosus, magis fai^ens uniquam 

aUi.coatra justitiato et fraternitatis amorem j ftecedrum 

Micui grairatbtna vel mokstiat injust^ inferam; correc- 

tibnes quo^'t punitiones et refer mationes debites justaa ra- f 171 1 

Mo^iMie^ de qnibuscunq ; delictis crimiiiibus etexces* 

iUfQi'sociorum-^t Scliolarium et discipuloruhi dicti coU 

legij, quotiesubietquaiidoopu8fuerit,sMundi!imrei.qua- 

litatem et qiiantitatem omnemq ; vim fonnam et effeotum 

(d¥dfd«tlb{rtim et statutorum per dtctiim reverendum pa- 

fitiyik ^edKdrutti/ absq^ ftivore aut -odio afl«ctione coiisan- 

'gMnilHlfffi^alOflm talis aut ali& quacunq;, diligenter et in* 

^ifibi^dter fociahi et piT>curabo: et si hujuftmodi correct 

tidA^ puMtiones et reformaxioneB at pnefeitor debits et 

'^|i^§.r^x^ui non potero, propter metum et potentiam 8eu 

'iil^iftitiirdinenj delinquentium, ipsorum nomin«et€ogno- 

' minftyOutii qualitate et quantitate delictorum et exces- 

'^duitihXljusmod), quam ctt6 potero, intra mensem, chmu 

""^^^^^'^l^iicupo Etknsi'qui protempoiefuerit^ aut domino<^tn« 

Uj^Udrfo^ihnvensiiatis vel ejus vicem*geventi, denuntiabo et 

^^^i^lihbb^, etper cm hujwmodr correctiones punitiones et 

Ul^^{bMfifli.onedJ4ixta Btaluta et ordiaationes collegij in om« 

I'fitbfcs'sokfrteret celeriter tteri proGurabo. 

Item quoties electio vel assumptio alicujus socij ac icbo- 

laris veliliscipuliin collegium praediqtu^i fuerit facienda, 

intendam et eoitar ut sol^m tales eliganturet aasumantur 

172 rtiiay Tetm, SO Geo. 2. 

1757- V^^^ secundiim conditioned et qualitates in stitutis dicti 

ST, John's collegijcxprei^iB habiles»et idotieos rejwttaVeHm, et qtios 

cbicLEGB '^ virtotibtrset»cietit*fe ad'fettiiorem et utllitatem cdHegtj 

^; praedicti plus fwdweproltee^ eft^pf^fecturoscredidef^ 
tod ing- ^''^^ pereonarum Vel ^ijtriae accep«ibtt€f/»anr<dfe favo*fe^io 
ton. invidia timore prtce etpretip^*post positft qaittufec^nq;. 
Item si ab -officio tne<y amoVear, nttt %[ ^^otit^ cefesero, 
bona collegy per n^ rt^tepttf^iit'^^pud raferemanentia prae- 
sidentiet tSesaurartfe cttlegrj *!at(precid5eme absente) socid 
maxim^ seniori in \>niy\aJ*«itJlte prs^enfci fet dlctis tb^u- 
rariis, si commOd^ p6terb contfnu6 sin minus saltern 
infra quindecim di^es; i6x tunc prdii. sequeti. feine con- 
trad ictiohe'ireu dimittUtione. per itoventarium inde inter 
roe et illos sub'b^sirnGiDnio et subsvriptione eorundemet 
ine&, restituanf. - 

Item, rt- per me^ seu occasjone meft, aliqua materia 
disie^onk 4rae Tel'dito>nli8&in didto coUegio (quod ab< 
}iitysyscitata[fuetiiyetptT prssld^tem decanos vel tbesau* 
raHos et -duoS' aRds ex septem coilegij senioribua finis 
nitionat»iIis sei;^ phUJliWlis infra quinq; dies factus wm 
fuerit, ttinc tniiedhMi tt^ttinUnih Cantabrigiae qui pro 
tempore ftxttit ]^afioiUtqke t&UehiV t^gelis^ 9lc magiiiri 
cf^egii CkHsH m eadehi uriirei^sitfete, sr tun^ iofira 
- candem prtesentes^ fuerittt, ac-, dicto eancdfafrio )>neposito 
iiut magi^ro exttK uni tertiPtatem slgen^iMs, 'ttbsentia 
nut abscntiumi Vites unWersitlrte gerentitint^ uMM'dlJiii 
fotidem^ex praBo^fmirtatitf quot in* uniTttrsitate-piiniMteli 

liter et eff^iftrrtet me subihittaiti : et qiiftftoM^'dtfb 

ex illis pro tempore, secundii!lfiH'4brt!Vnh»^'4frfm^qifeftii- 

tatam pro tempore consuiti, arbitrati fuerint statuerint 

^ 172 3 ordinaverint vel tHfiHiierint^irt e^ parte, id omne fideliter 

. observabo et iisdem cum efiectu par^bo, sine coQtra-* 

^drctio'ne quacunque, Oeirsantibus^ pravo(:ationityos i6pel<- 

^^a^ionibus querelis eyceptiotiibus « aliis jdris''fet'fe'<iki 

\Temediis quibuscuncj; qUibus omnibus et singulis hi' vim 

'.pacti reuuncioin his scriptis. -' * 

' Item, omnia et singula statuta et ofdinationes diiil 

j.f^ollegij per dictum lieverendum pattern Doitiinum Johafi- 

uem Roffen. episcopum, exeoutorem uJtima* voluntatis 

' jiominae Margarettae Comitissaei Richmondiit ei Dert)ia^ 

, eilita, et per eura dutn superstes fuerit edcnda, quantum, 

'me concernunt, secundum literalem et grammatic^Verki^ 

sensum et intellectum inviolabiliter tenebo exequar £% 6b« 

servabOr ^t quaptura in me fuerit faciam ab aliis obserrari^ 

Itemque fiu//tf i/n^u/a ieu ordinationes iriterpcet^iones 

hiDut«Ai9ft«a ifUmiotidnei. d^birationes aiU^xpo^itipnes 

V dMdcgtoim(: aU4<9a% prMeiitibtt9-ordinatioo;ibiia et^- sUAutiiB 

.r .^Mibi^iHiiit^^WM v^TQ a^istti et, intellectiii #(M;i|^dem 

fapttgoantM ^el r«pugimaia derogMtito vel deroga&tia 


Hilarjr T«m, SO Geo. S. 175 

COntrdrias vel contraria, per querocunq; seu quoscunq; 1757. 
aliumvel alios qtuim prr reverendum patrem Doiuinu st. john's 
Johannem RoflTeo. episcopum prffidictum faciendas vel college 
facienda, quomodo libet scienter acceptabo, vel ad ea con^ v« 
jeM^iam, aut \p9aL* tiViquMUr admittam^ uec eisdem parebo todik 
uWo tempore, vel itUendamy nee iliis vel illorum aliqua ton. 
ullo modo utar in collegio pracdicto vel extra, tacite vel 
expresse; sed eis et eorum cuiUbet contradicam et 
etiam rcsistam expfe«s^, ipsaq; fieri viis et modis om- 
nibus qulbus potero obstabo et impediam. 

Item Juroque, quai^tum in mefuerit et quateniis meam 

personam conceniat aut concernere poterit, me laudatas 

ac probas bujus coUegij consuetudines observaturum, \xnk 

cum aliis ordinationibus per magistrum et socios ac 

scbolares editis pro »ustentatione quorundam sociorura ac 

discipulorum^ juxta tenorem cujusdam juramenti quo 

magifiter oWifn et eocij se devinxerunt oraiuros tarn pro 

dtcto doa)ii>o ^ohanne Rotten, episcopo quam Henrico 

£diall .JVrcbidiacano Rofi'en. Hugone Ashton Archi- 

diacaa9i , Sboracensi Johanne Ripplyngbam in . sacrk 

th^ologia doctp/e et Roberto Dokket in eadero Bacca- 

I^iireo ac IVIannaduco Constable Equiteauratoet Roberta 

^yrnso^ inrartibus magistro caeterisu ; ^ui privatas aliquas 

aut fKH^ig^um^ut discipulorum tunaationeafegerint aut in 

posteruni facturi sint ; simukj ; et curabo^ quantum in 

me fuerit, ^oeteris omnibus tarn sociis quam disQpulis 

idem fieri; peque extortas eorundem i^^rpretatiopes 

(per .qMemauiiqme. faf^tas] admittam* aliter^qv^m aei^us 

eoruRi ^ertus p^titur et mea cooecieatia lui^is coufor- . 

nxem imji^Uit ainmo C9fiditoris. , / . 

,' .: ..,, . Pe Spciorum Qualitatibui.. . ,{[| -173 j 

|,j^uc itiJertiet leges dabimus residuq corpori; qtiod 

n^ftuh) ex sociis, quocunq; numero eos fore? contigerit, 

tanquani' eX pptioribus et solidfioribuS nienibris, voluratis 

integrari. Pro fundatrice ver6, tametsi fex illustrissimtw, 

ia -^arta licenti® suae quaqi aviae suae, dorti iiiac fundatriei, 

coBcessit, mentioneni fecerit de quinquagmta sociiaac 

scbblari^ua, nos tamen, qui ob subtractionein neddituum 

jiqnuprum ad valoren> c^uadringtarum libranim, ipsutn 

* PMijQierum iinplere nou possumus, quantum ad prftseir* 

',tein brdinationem spectat (si fieri potest) octo super ti- 

■ ^.uti deputari \olOmus et ordinamus. . 

, ^j., DelSbciorum Electiofie, ac ipsius Circumstantiif. 

'^ '^'^tfj|d6^powit exBCtior fieri socTonim ^ecfm^coMtootii 
''Hrtihrmua el statuim^s, (per magifttrum vel ipeo ab^cHte) 
''^^mide^tem, cunctoe 80ck» in uniyeMittte* pMBecrm^ 

17*. Hilary Term, SO Geo. S. 

IY57, primo die Lunae cujusq; quadragesimae, simul et comone" 
ST. John's ^^''^ " quatenus quisq; solitam inquisitionem faciei dc 
cpLLEQE *' j^venibtB quibusdam, t^ia nooribus quam eruditione 
y^ " magis idoneis, qui in sociorum numerum cooptentur; 

TODivo* '^ ^^ ut repertorum nomina, simul cum Doinine comita- 
'SQff^ " tAs quo quisq; fuit oriundus, in scedula conscribatur, 
** una cum aliis dotibus quibus ipsejuvenis fuerit pne- 
*' ditus;" Adquam inquisitionem teneri singulos volumus, 
iuTim jurasientisui i.cujusautem noroenclatura non ante 
septem dies electionis futura^, tradita magistro fuerit aut 
ejusrice-^ei^nti quando magister aberit, hunc, pro e& 
viee, ineligibilejn pronunciamu86. Porr, deiectum hunc 
quoties eveniet^celebrari volumus et prdinamus qudq; 
QieLunasquaB proximo sequitur DominicamPassionis: quo 
die magister et socij cuncti praesenles conveniantjin sacel- 
Ium,quum horologium insonuerit octavam ; et illic, pri- 
iBO^m lecto statuto de cooptandorum qualitatibus, magis* 
ter prioHuni, deinde reliqui per ordinem socij jusjurandum 
qiiodsequifcur, tactis sacris evangeliis praestabunL " Ego 
" N. JSf^ deum testor et b«c sancta ipsius evangelia, me 
*'Deminem in socium hujus collegij electurum, nisi quern 
** juxta statutum antelectum me conscientia magis iaone- 
" um indicabit; neq; istud faciam pretio vel mercede 
'* qu&vis^ i quopiam aut data aut expectala." Juratis 
itaq ; »iD$puIi8 fiat e vestigio scrutinium. per magistrum 
et duos i sociis maxima senioribus, (sic tamen ut hi 
non fuerint de numero septem s^niorum conscrip- 
torumj qui. prius etiam tactis Sanctis dei evangeliis 
promittant ** se veraciter et absq; dolo scrutiniam 
C ''74 3 '* Ipsam pro futura sociorum electione tractatu- 
". ros^ et . secretum penitus habituros^ neq; signo 
** aut nut^ aut alio quovis pacto rem indicaturos." 
Auditis erg5 singulorum votis et suffragiis, ilium vel 
illos ;t^ spcium vel socips dicti colleg^ magister pronun- 
ciabit^ in quern vel in quos ipse raagisteir, cum majori 
aut aeqi^ali parte sociorum, consenserit. .£t si magister, 
cum majori aot ^quali parte sociorum, - in aliquem aut 
aliquos eligendum vel eligendos haudquaque convenerint. 
Bed in e^ dis9en8ionetriduum ab incepto delectu persevera- 
rint, ti^ volumus ut hujus ne^otij diffinitio^ pro hac 
vice^ ad septem conscriptos seniores i-eferatur; itaque 
pro his de quibus non est consensus factus, electio sep-^ 
tem< illis senioribus deferenda sit, ad hunc mod um ut 
.sequitur. Quarto igitur die post incfiQatam.electionem^ 
conveniant iterum omnes in sacellum et primitils, per ^ 
septem ipaos seniores juraraento praestito " q^idLilluqi,,^.; 
** vel illos, de quibus fit dissidium, in socium velsocios ^ 
*' cooptabnnt, qui suis conscientiis magis videti^tufraut 
** videbuntur idonei;" praestito igitur hoc juramentp. 
fiat alteram iterate scrutiniumjn quomaglst^l^'tet^dtro 

Hilary Term, 90 Geo. 9. 175 

pttedicti scrutatores suffragia septem illorura seniorum IJSJ. 
scrulabuntur s et is vel ij in quem vdi quos major septem g^^ john's 
seniorum pars consenserit, proelectovel electts habean- college 
tur, atq; ita a caeteriB acceptetitur. Qn^- si forte coii« y, 
scientiis eonwn septem seniormn non'indeatur inter tqbing- 
eligendos aliqua disparitas, aut forsitan inter se major ^q^^ 
eoram pars baudquaqu&m consenserit, turn volumus ut 
is vel ij qui a magistro priils nominatus aut nominati 
fuerant, pro socio vel sociii: prottn^si declarabitur aut 
declarabuntor. Proviso ut neque in hacelectione neq; 
M quacunq ; cujuscunq ; persooae hifra dictum colle- 
gium faciendft, *suam vocem'aut sufiragium alteriOs * H«« »• •» 
pereonae cujuscunq ; arbitrio et disposition! quovis modo 5," ^^inlu 
committat, aut incertam personam aut pro incerto co- x\je com to 
mitatu vel diocesisub disjuhctione vel oonditione quo- comroitut i 
vis modo nominet aut eligat : contra facieiw, et sutfra- ^ic: '' Aliqub 
gium deinde suum et etiam dicti coMegij aecittatem^ !f^l'**'* ^^ 
ipso facto, ex tunc tmperpetuum amittat. Nee liceat, ciectonbuf* ' 
subposnaperjurij, cuique ex illis scrutatoribuSy nomina 
aliorum eligentium, alii cuipiam, quovis modo per se 
vel per inlerpositam personam ntitu verbo signo vel 
scripto, ante completam et pubiicatbdi socijieleotionemj 

De Morun^' Honestate servand^^ ^t Dissentionfbus se- 
Clu6d ^i inter magistrum et" alium atrt alios hujus col- 
legii sotibs, aut illius causa, aliqna materia dissensionis 
\Ti'fiiiiyefd'\scoTdid& in dicto collegro suscitata fuerit, 
et p^f tnigistrum decanos et majorem partem septem 
seniorum finis rattonabilis scu placabilis infra octo dies 
projtimi sequente^ factus non fuerit, tunc vdumus ut 
partes dfssentientes, virtutejuramenti 801, triduum post f 17 j 1 
illcSikJld^dies, duos socios eligant, qui electi, in sui vir- 
tute jdfiirfi^nti, infra biduum p6st eorum ad hoc elec- 
tionem et deputationem, prttfectum tdHegij regdth, et 
ma^Urum eollegij Christie ct magistrum sive custodem collegij 
divi MichaeliSt aut dictis prsdbcto niagistfo et custocte 
vel eorum aliquo extra' universitate agentibuJ^, tunc 
eorum vices absentium in dictis olficiis infA universita- 
tem gerentes, ac etiam reliquos pra&iiominatos siqui 
fuerinl in univetsitate prasentes, adeant; et eisdem hu* 
jusmodi dissensTonis causara sive rrtateriam, in scriptis 
siglrtfifcent etreferant: et qul^quid rfwo ex ilih, pro tem- 
port <;oh^ulti, <irbitraii fuerint et decreterirU, illi omnes 
parAtntet in sui virtute juramenti obfdiunt. 

' " De Mddof procedendi contra Magisti^ijm', &c. 

Hlior^ioe dispositis, ad errata huae accede re'. ppssunV ., 
pervenunus, adlubitun quae potenmus^ remedia^ inci* 

176 'Hilary Term, SO Geo, 2* 

77.51 • pieateA a magistro xit duce et principe, quo bono et pro- 
ST /ohn's ^^^ ut jnihilcst utilius, ita imprudenU inepto indigno 
cohisQE ^^nminojo nihil est detestabilius. Quo circa statuimus 
y Ut aiagi8tei;..quicunq; propter terrar una tenementorum 

TODiKG- re<iditumn,posseBsionum spiritualium seu temporaliura 
^^^ sua culpa .diminutionem seu alienationem, yel propter 
detractionem oblationum alienationem illicitam bonorura 
et rerum.. ipsi^ obllegij infamiam incontinentiamq ; 
notabileni,.negligentia(n intolerabilem homicidium vo« 
luntariuin alianive causam enormem ipsum magistruo) 
omnino reddentem criminaliter irregularem vel aliter 
iubabilem, nee non propter infirmitatem infectivam et 
contagiosam perpetuam, cujus occasione non poterit 
absque scandalo bujusmodo oflficium exercere, ab eo 
penttus amoveatur : ad cujus amotionem hoc modo pro- 
cedatur; videlicet, ut statim, vel saltern infra qui ndecim 
di^ postqu^n^; aliquod praemissorum cominiserit vei in 
eorum aliquod incident, prim6 per praesidentem, assis* 
ttttttibus .ei aliis duobus officiariis clavi*geris ct quatuor 
aiiis sociis ex septem senioribus dicti coilegij vel saltern 
$um assensu et assistentia duarum teriiarum par* 
tium .omnium sociorum dicti coilegij (sic qu6d 
inter eos sint quatuor seniores ex septem electij vel, 
praesidente nolente aut negligente, per decanum tfaeo- 
logii&clim praedictorum assistentia, moveatur magister 
ut suadeatur .ad voluntari^ recedendum ab officio. 
Qu6d si sponte infra triduum cedere noluerit, tunc infra 
octo dies post hujusmodi monitionem, ptaesidens, as« 
sensu et testimonio omnium sociorum dicti coilegij vel 
faltem omnium praedictorum modoaliquo pracdictosibi 
in magistri monitione assistentium* vel, ipso nolente aut 
Begligente,dictusdecanus theologian, cum as$en$u et testi- 
monio pnedictorum, denunciabit Domino £piscofo 
£ti£NSi,aut,eo in remotis agente, vicario in spiritualibus 
^ ^generally seu (sede vacaute) custodi in spiritualibus, 

L 176 J cjcsDCM» per'duos aut ties socios ipsius coilegij seniores, 
cum literie aliquo sigillo authcntico ac signo et subscrip- 
tioue alicujus notarij pubiici signatis, vel saltern loco 
sigilli authentici subscriptions dicti pnesidentis vel 
theologi'<£; decani et pr<£dictorum assistentium ac notarii 
publici signo communitis, causes defectus crimina ex- 
cessus vel enormia magistri continentibus. Proviso qu6d ** 
omnes hujusmodi assistentes et testimonium peribentcs, 
prifls, tactis sacro Sanctis Dei £vangelii8» coram praesi- 
dente aut decano theologixe, ipso primum id coram els 
praestante ac deinde u singulis iilorum exigente, jiirabuut, 
•* quod non per invidiam malitiam odium vel timorem 
•* ipsius magistri, amorem vel honorem alicujus pro- 
•* movendi ad illud officium, nee per conspirationem 
** aemulorum aut confoederationem, nee per procura- 
•• lionem' alicujus vel aliquorum, nee prece aut pretio 
*< aut alio quocunq; modo illicito inducti, sed pro bono 

ifilaiy Tera, «) (3«o. S. 




'^ zele «t tttilitatepredictt collegu et pro utiliori et con* 17/57. 
^ Teotentaori rRgimtne ejusdem et honore, testirogniuvi g^^ sonlt'^ 
** illud perhn)ui8se.** Efi^copos vb'ro Elibksis, ^I, 
ipso in remotis agente, suus viCAaitTB in spirrttmiibus 
generalisy aut (sede Eliensi vacaate) cnsTOS spiaiTUALi- 
TATis EJUSDEM, de catMis criminosis criminibus eic- 
cessibas et defectibiis contradictum XEagistrum exposttis, 

aUJfMAaiE^r Jk piano e/ SXTRA*inD1CtALIT0R COG« 

nose at: etsi^per infoTmationissuflicicntesniiiiislnitas^ 
hujusmodi suggesta quae ad dicti magistri amotionem 
sufficere debeant, rtcipiai esse tera, statim^aut saltern 
iofra triduum proximo seqautiirum, ipuun ab officio 
suoeiab administration e lui amove at sineulteriori di^ 
Jationej dictiquodq;coIIegiJ80ciisDCNUNCiET f^iNJUN- 
G\rutmd electionem navi magistri liber^procedere vahant et 
debe^Ht, juxta forraam in statuto superii^s expressam ; 


mis, quibus hujusmodi amotiotaleat iupi:diki aut 
DrPFERRi ; qum omnia ^urita esse^ volumus statumus 
W deeermmus* 

De Modo procedendi contra Socioe Scholares et 
Discipulos, in miyoribas Criminibus. 

— Etpnemissa, veleorumaliquod in pnesenti statnlocoii* 
teDlonim, coram magistrea saistentibas et praestdente-decn- 
nisettbesaurariiSytel saltern unodecaootbesanrarioetaliis, 
^uatuor ex septem senioribus, public^ confesauH fuerit, 
vel per testes idoneos pnedietoruoi judicio comproban- * 
dos, aut per faqti coram eis evtdenttam, manifeste reus *. 
eorum jttdicio et senlentia convictus fuerit ; eum statim . 
i dicto collegio« prsseotia vigore statuti nulli aliik mo- ^ 
nittone pnemissk, exclwum et priiwdim fore ipso facio 
decemimus, absq ; oujuscujiq;appellatioaia vel querelie % 

De ambiguis et obscuris interpretandis. 

Distribuisse igitur jam universis collegij loembris oF- 
ficia simui et officiorutn leges nobis videmur, et exacts 
quidem : quae si serventurad aaussim et inviolate, (quo<l 
utiif; vehementer optaiiius) ex eodcra viros baud dubia 
tperamu^ prodituros, qui magn^ turn utilitati turn ho- 
Dori non soliim huic collegio, verum etiam toti regno 
/uturi sint Provisum etiam est, ^^uo^d fieri potest per 
umuscujusq; juramentum^ quo nibil apud cbristiauoe 
£rtoiu6 aut 4intiquius haberi debet, ut statuta hsc per 
no« jam tradita et auctoritate sedis apostolicae corrobo- 
rati^ exactissinui aer?en*tiitr k singulis, qaateniks unum 
qo^ttique coiiGeniaiis. C^eterum quia mibi Jobauuj 

Voi., I. ' H 

i 177 ] 



178 Hilefipy Term, 30 Geo. 2. • 

1757. Roffensi, per quern Iigbc editn stmt, tarn i suitiifno pontU 
feT. John's ^'»ce Julie secundo, qa4ni a fuftdWrice ca^terisq; omnU 
bus eo-<5xecutorit)u&i auctortta^ ^est tributa npn soiium 
cotidendi ^tatuta quiB mihi'V'iddpeiitur hmc ^lejpo 
conducibilia, verftm • etiam' MagMtio simtfl '« "sotNwr 
eadetti exiifbiind!, jirramentliq ; i smgpMi*^ tani ^^ciis 
quam discipulw pro lllormn itiviolatoiH obeeri^atidneKiift* 
trictiu6 exigxindi, ised et caetf^ra'^uncta peragendi; qilas*; 
cunq; pro salubri collegij hujiis moderannfiue Biihi risa 
fuerint opportuna, atq ? id tain effioaciter quam sicuncti' 
Fimul bicessemus preesentes; ogo igitur, horunrotnniuni • 
pariter et meo ipsilis nbrniue, cassatis aliis quibusviB 
statutis prius cxcogltatjs, qu^tenus prajsentibus adver- 
s^antur, baec prsesentia ceu vera et salubri prouuncio : 
quibus observaudis, tkm niagi&trum quam socios et dis*- 
cipulos adstringi volo; rescrvati mihi nihilominus pro« 
testate quoad vixero, vol ndjiciendi vel minuendi seu 
reformandi interpretandi deciarandi mutandi derogandi 
tollendi disponsandi novaq; rursum alia (si licebit] sta^ 
tuendi simul et edendi, nou obstantibus his statutis factis 
et juramento firmatis; csteris autem omnibus, cujusvis 
dignitatis auctoritatis status gradCis aut conditionis ex- 
istant, ac magistro quoq; et scbolaribus tarn sociis 
quiim discipulis omnibus luijus collegij, prorsus inhi- 
bens ne cum aliquo dictorum staiutorum diapensent, 
aut quaevis nova statuta sive pro collegto seu pro quovis 
ejusdem membro, quae die torum statutorum alicuirepug- 
nabunt, condant aul decernant. Quod si forte canoellarius 
aut Tice-cancellarius aut reverendus paier EjasNsis 
rp I SCOPUS aut* denaiim quivis alius contrarium attemp- 
tavcrit, et novum uliquod staivium aliud <i pradictii adhw 
here raolitus fuerit, ab ejus obligatione, per banc auto- 
ritatem ab executovibus aliis mihi commissam, ma«» 
gisti urn et caeteros oinmes: tarn socios quam discipulos 
penitfts absolvo, eisque omnibus et singulis interdico 
iiecuivis hujusittodi statut6 aut oi-dinationi pareantad- 
mittantve quovis ^acto; sub poena perjurij atq; 
etiam amotionis perpetuse a dicto collegio ipso fac- 
r 178 1 ^" Cacterum quia ninil est usq; ad^o luculentum quod 
^ "^ non a captiosis verti poterit in quaestionem, obeam rem 

volumus quod si quJcqaam* in aliquo statutoimm pranlic- 
torum aul obscuritatteautambiguitatis magistro et majpri 
parti Eociorutn oecurmt (quoad nos Vixerimus, eoruttl* 
singulos in CllHsfi'tisceribus obtestanhir ilt ea dubiti 
nobis proponant quoties oriantur, qneiilftdAiodUm et 
hafctenus fecerunt; nosq; libentur(i!il dt a"ntenbn kernel 
fecimus) ilionrm dubioram obscaritatem exeuti^mua: 
qiiod si postquara nos ab hac luce riiigraverimus, noW' 
quidem scrnpuii reperti fuerint aut de novo suscttati, 
Ao'umus et ordinamus ut rectus et laadabilis statutorum / 

Hilary Term, 30 Geo. 2. 17S 

ttsus tnterea juxta mentein oostram observatus et qui 1757. 
maxime congruat instituto pientissimx fundatricis, t^it <,.j.^ john*9 
magistro pariter et sociis norma qim^dam et jL|,ijla quani college 
cum puritate consceotiarum stiarum sequantur in ejus- y^ 
modi scrupulis et ambiguitatibus omnibus. Xcquetanicn '^qt^iscm' 
per hoc intendimus, ut si pi^aster nociliam nostrani qui$- xok.' ' 
piam abusus in statutis ipsis» aut in quavis eoruiideiu 
parte, per magistrum autoQiciarios aut quenilibet^«eter- 
orum in cursufuerit, qd is pro recto et laudabili statute- 
rum usu recipiatur ; aut si nos cum ipso magistro qui 
nunc est, aut cum alio quovis sociorura, in ulla stalutorum 
parte dispensaverimus, nolmnus tamen ut hoc privilcgium, 
uni aut a iteri ex causis nos moventibtu concessuni, pro 
connnuni quuda liccntiateneatur: sed et cunctos oramns 
et per Christi vulnera precamur, ut jinamentorumsuoruni 
memiucrint, atq; iiostram mentem iii ipsi^statuiis re^pi- 
clant, magis quam aliquem qui praetor nsgeiiium nostrum 
ctam irrepsit eonmdem statutorum'sbusmncniuti.aiiiininoT 
prohibeiuus, ne per aliquam declarntioiiem nuCcbn^uetUH' 
dinem uilamautdiuturnum queralibet abusutn'veidt^mJKm 
actum aliquem, verbis ant inlentioni dictorum dtntutioipuni 
in aliq uo derogetu r. V>8 1 t a t i o n e m aulem hmftts: coKfgij. ^S9 
jevereMdis in C/nisto patrihus episcopis T^LiENSfBca 
coMMENDAMUs; quibus et concessimus cujuadfaoi^ 
idonei pnesentationcm, qui sit futurus in hoc collegsio 
sociuB. Idoneum autem inteiligimus, qui qualitaDea 
habeat eas qqes describuntur in statuto de qualitate 
sociorum : neq ; enim alium qu&mpiam recipt voiumus 
a coHegio. Eoadem etia m a mus et per Domrnum Jesum 
obsecmmus, ne quenquam precsenteut ni$i tatem qui pro 
sois mentis hoc sodalitiodigviusfuent, etcui cum statutis 
per omnia conveniat • ' 

■ » De; Vjsitatore. 

JJihil adeo bonis legibus firm;:fri muuiriq; ^otiest. quin 
ab his qui Uceuter viveic ^ i,uxui,libiiliniq; Jrdena laxarc 
stodeat, aliquo fraudis, c9m^ic;uto facile queat eludi^ 
^pf.'ig^tur fiducia benignitatvB^revereadi^siraorui^ pa^runi. 
epucp pnjum ElkuMOi tVcti, «t ^cmi^- primJs/.amatis^iini 
df)Biiii4<uui Nicolai WestqtM jsedeui ^iscopalem jami^uas. 
meri*i^ pbtifiet, nempe quod tam .if)se quum swoc^ssor^T 170 J 
ejus;. |)rq zelo quern ergu r^jm.publicara christiauam ge*.^ 
run^ HulUs futarii i-eJuporiiinAi b at li&sriui ka^ statuta 
contra nostram mentem ct contra sanctissiinum pienti&r 
simse fundatriciA institutum violari, statuimus ordiuamu^ • 
et voiumus quod episcopo cukis Eliensi qui pro Umfor^ 
JuerU, QUOTi es per magnlrum et prasidentem decanofq v tt 
tbeeaurarios^sive per magistrum et quatuor septem $eniori6u$ 
depuiatis, site per qmnq ; ex mdem senioribus- relyctoJHe 

N 2 

f so Hib«^ l^psm 30 Geo. 2. 

OQMMC n^i^»u> xNK)fti(l«rici»UM 4fiM/ ad eoi^f^^^fy^m^ 

^i^piUQ. qfiieia^i]Ae9itd0|^dHo^qm.|»^ 

.i^if. 3iawBraitaMi6ftO)aMM pFOcu- 

i/ratifseftumTmiitetis ejufideiiiii^fiunEterquam per alios qui 
«t( Mlipto «iUfl9io pro uliqilo Mlvine a#lt delicto ^if^ 
MA, 9ut ApfuMibMRii iMi^QiaAtnfogi^flllr recesserun W. .9^ 
dicti xolieg&j^i^j^aalAM quMMf^ ii^>iUQivf9mtft^,:|^r 
unam quiomnaauonno pro»flMifam^ ^I^P«iX9 :Pnf- 
ced^nUi 8tude^pta«, let prater^pi«n|]p^?.^fdi9k>¥if:iqwl^* 
citQq;;pnBdiGtonnnve,/aIiquem aut c^i^i^gi^i^^uf^us 
socy 4ietiic£>llegij klk^t ioquam, ad gti^ ^m!ff/^ih»s.n 
Hbeft mmdmt, magistrm^ M^^ac alio$ si^gfj/os^ilfi ^hotares 
ac Mbd^Im eftMom cimnJif ''^ ^*^^^^WiU/Wf^ convo^ 
CARBi: cut quUkm. rever^imQipfiiri au(::^4W;jCQnimi8sario, 
s^ie praes^iAiia statuti, BiditrjiMfiAif^CEoiMUs fotcs* 
TATEM, ut 9Up€r om^ih^ftrnf^Btiimf^cuIw et ffriffulii in 

.am8tt»9iatuti3.jamten^iafi4fi wibfifmmi-^rtkul^ 
camwwdnmau^Aonmm **' caH^gf^ <mmmi^Vkj9MLVff 
indiao eMBtio auiialifun Ulmfilftffmfk^nm 

trum SQcioS sdMaces efe^Qi|»j|^w.iwftff3i(tJg€/4jy^j^^ 

PBii cmii^raf^ si opus fulfil, 4Mlid^c^|»4- j^JTifH^at^^ 
; praemissis omnibus et singulis, p^i^t^qaani (ut g;adi];j(g^ 

«st) de secretis et occMltis; ^xqif^q; ac n^gtjg^^ 
crimina et delicta quprumcunqi^fl dicti coUegy qus^i^^ 
cunq ; commissar in ea visitatioi)^ cooiperta, w:unmm 

.}€Kcessus exigentiam et crimittis aui delicti. quajitaiem debiii 
FUNiAv et hefokmet; G4BT£ba4)u?; omnia et, siii- 
OULA PACiAT ET EXERCftA't fKcl:^^ (^r«m correctionem H 
reformationem sini fieeenaria aut quwismida j^ffprt&UQ^ 
etiam si ad PBiVATios^VL mU amoxionem magistriaut 

ij^ratidtttlkbaut.aktrius cujuscmtq; ah admiahfraiion^ suik 
vei.ofitio^ lett ii ad amoUonem alicyus locij scholaris veL 
dkeipmiiab eo coU^o^si tamen hoc ipsum siaiuta et ooli^ 
nattonea exigeBt#, procedere CQntingat» Quoa quidem 
Bif^trufn aocios et acholajes dii^cipulos^ ac pira^ter^a 

-tmDistn»>qu^acunq; etiam faoiulosr pra^9t9 o4p/^<^ 

. episoopojet kiijm comnuasario.quoadiHnBA^.et §ii|^^m 
niissa^ volumus et pf«:ipimusefiectualiteji^:'i^^B/i^Kft'^^ 
pwrasa; laUfcuaiities insuper ut nullus in lUf^MWf^iK^- 
diotinseix aliis sorutiniis facieudis m dict^ cp|nsg^,^4X|Mfa 
£180 1 na^i«tou0^AUi^«liquemali4imip9iAiscoUeguii^q^a^ 

-^ depoivBfe^.aeu deDuaciis}^ nisi qmsA v^^h\ Qrj$4i4^^> ^^ 

^de? qoii pubiica vox <jt ^s^ laborav^rjtcofiitra^ mflA^» 
ia liiiutfi juxameatt ab eii col^e^o pra^titi; ^rdui»xitea 

Hikny feia^ 9i Q«o/9. 


-pneterea iftoi 6omnmmipllfi^lfk$ ttimm<^ufkm in p9npnA ^^Sf. 

thesMnl^ imicMB eiHttmoollMitfSi rafectionem feciaot ; eaLi»Bi»E 
f i iteM ptic MfMttMttrMli <«pilMpMf vititaverit, iaodi- ^ 
inisMrio tf«a» rciftMim^ lititra bo^ TODina- 

Bartum biHiHto u«^^i9oiiteBtt Mtk' 4}M«nri0iuiioeptam 
al^itam Vmibti6MliA'«lmt dttMHKmpmiiM Mqtientea, 

prorolfif^aut cMtfM$vi'blill6<{MKrt^ tapao et 

exacts Hlo'l!ri<iuo» et^fMMdilt^ieciiiail^Ksdk^tia ultemie 
protopttmte7Mdl^tx$m$i6»a^^if^ viaitatio iUapro 
termiti^ftit et dissolUtA batetCMTi Et ai que in ea parte 
Gompererit corrigeiida #<; r0foi«Mtndd, que |n^e«itate tem- 
tx)ri9 corrigere et refkriMra{iioit potuerit, ea magistro in 
acriptla Ircuiat : qai aa onma, aecundikm fonaam et ext- 
^entiamtltatutoruiii, quam p^jimiliia dorfigere et reformare, 
in yiiiue jurameiiti et §«b\pMia privationia ab officio suo 
ipso ftcto, teneatu^." Frsdictioruiii quoq ; reverendo- 
Tunt patmm Eiieisalum episcoporunvet commisaarionim 
auonim quorumeunq ; couscientiM, apud aitissimuni 

Suantum poaauBDua)gfaviteoDeraniu9, ac in visceribus 
omiDi nostri Jeau Cbristi bortainur et obiecraaaua, ut 
in {acieDdoet exequeado praM&is6a> seeuttdAm aposloU 
doctTinam " Mik qucerant m$d sua sunt sed qa» Jesu 
*' Chriati/' 8otamq;'deiiW babentes pne oculis mentis, 
iavore timore odio preoe et pretiocoioribuaoccaaioQibua 
post poriitis quibuflcunq; iaquiattionis correctionia et re- 
formatienia dfficium diligeoter ittipeifdant et fideliter in 
ommbua ^equantur, aicut caraaa Deo in qjua axtremo 
Judicio in hoc caau Toloerint reddare ratMNKm ; statuentes 

Eneterea ut magiater soeiua scbalaHa aut alius quiapiam 
ujus collegy, super exeesaibua i^ dtUetia, m vitiMi* 
omlnu €i infMUitmitiitt per dkUun^nrmtnAimpatrem vel 
efta eommimarimk n$ puNmuMiur fatiendiB, accusatus vel 
delectus, copidfhi comperiorum vel detectorum bujus- 
^aodisibi tmdi dedi dari oatendi» acnomina detegentiuta 
yd denuncaaiVtium aibi exponi ant deciarari, nulla modo 
petat ; neq ; ipsa comperta et detecta, aut nomina dete^ 
^entiirai) tradantuv eidem aut ostendatur; sed super 
eiadem ooinpettia et detectis^ tt^tmxormn imodommo 
i^usapo vel gm €ommis$ario pirsonaiiperrenondutty ae eor^ 
rectionem MUam nAeat pro eisdem^ aecuaMm noatrarum 
ordinatioAam et slatutoram exigeittiam et tenoreas, 
cewkuHbm fmimum^ ; pravocBtion^s ap pM nhnUmi ^ae* 
ftH$ H etUkjnrh ^ifueti remedHB^ per qus ipaiua correctio 
€t punilio di&nri valeat aeu alias quovismodo inapadiri. 
Si tamen ad pmationem aut wkaMUatem magistri aut 
txpulsionem socij aut scbolaria per episcopum aut ejus 

l^l ' Hilary Term, 36 Geo. SL 

1757' t^omAiissarium a^atiir, tunc o^tendantHv ei detecta: quas si 
ST.'JOkk's "^" poterit rfttionabiliteret probabiliter efitare, et justa 
cilfiEOE tlofensione propulsare, amotentur sine appellatione cut 
y nltt^feri r^idio; dtf mnvodo ad ejus expuUsionem'coDcurrat 

WiJtWi- c^fw^eiisuf^ quattior <"' septem deputatissenioribus tunc in 
' TOif . univ^i'P!tatet)4n«iientibus; sint quorum consensu irritatasit 
•hnjiismodi expulsio, et nulla ipse iacto. Et insuper si 
c*t>i>trElhi2tgistrum, ad amotionem ab officio, per hujusmodt 
•domini episcopi commissarium, etiam coiiscntientibus ut 
prdefertiir quatuor illis senioribus, procedatur^ non nega- 
, mus ei i^mnes quel^eias et defenMones justas et boncstas 
ftpHdipsnm dominum episcopum Elienseu, dummgdo ultmd9 
ffon appellet; non obstante nostra ordatione prsadict^, aut 
aliis quibuscunq;. Pr.43Ter huhc visitationis modum, nos 
ALiuM NULLUM EUeusibus episcopus coucsdimus ; sed nee 
a sociis tolerari permittinuis, aliqiio pacto : quod etiam 
eis mandamus; in vim juramenii sui. Scimus enimqitod 
eximia virago domina fundatrix dum in humanis egit, 
impetravit ab Eliensi episcopoqui tunc fuerat^ jus fundationis^ 
£a quidem rntione ut ex desolatis lediculiB tarn itlustre 
collegium erigerit : quod cum eftecerit et consummaverlt 
* Vide post^ magno suo sumptu, par est et Eiienses episcopi kihilo * 
195, 195,20?. MAjouEM in hoc collegia sibi vindicent'autoritatem quam in 
cjRVEiiis academia collegiisubi non sufd fnnd&tores. Hi« 
itaq ; dictis legibus quas turn salubres tiim jtistad exi^ti- 
mamus, magistrum et scholares omrtes tarn socios quam 
discipulos coilegij divi Jolmnnis in Cantabrigia, t^gi 
volumus et gubernari : quibus si sese diligeiiter attem- 
perent, nihil dubitamus quin afflatus aderit divini spiritA&, 
qui recti perducet obsequentcs ad niagnam eruditioiiem 
curt pari conjunct^ sanctimonia. Neque enim fa« est ain- 
bigere, quin sacer ille spiritus qui in qu^viscongregatione 
christianorum residet, pra3sto sit adjuturus cunctos qui 
cum fide et pura conscientii conversari conantur, justisq; 
et salubribu!) monitis obtempemnt; prascipue tamen eo9 
qui studio sacrarum literarum insudant. Nam ob has 
potissinuim reserandas ille missus fuit ;" quum/* inquit, 
'* venerit ille qui est spiritus veritatis, ducet voe in 
" onmem veritatem.^ At quos ducet? nimihhn; htimites 
et obsequentcs. Super huj,usmodi requiescit, fovete eos, 
I ct indicibilibus eos consolationibu? reficiens: sedeti&tis 

qiium sit osiiarius, aperit ac reserat arcafta scripturaruro. 
Nihil igitur vobis hsesitandum est, fratres, quin si studue- 
ritis has leges observare, parttep et unanimes in charitate 
jugitur conversari, patri nostro cbmplacitum erit suo voa 
tandem affiare spiritu ; quod ut faciat, ipse, tam\et si pec- 
catorsim, assidu^ precabor; et vos vicissim, qufieso, pro 
' meprecimiai. 

Hilary Teria, 80 C?«l4 3. 

Dequatuor socits et duobus .4i8Qi|wlli» per Johaanooi 
Rofiensem EpiscopuiQ fumit^lis. 

' Quineti&ra ^kcisn^o quud ad txeccitatnei^ta scbolastica, 
^ftdeaqoai perstatuta coUegy. f}«teri.,i9Aai> pmo^plerc 
'tenentur, timiliter obat^itiga4itu;r.:. et:>94 f;a(p^ii|kpten4f%> 
pariteret ad has meas Cjvditiattione^ fal^Ul^' .obfiearMan^?^» 
'protinis ut electi fUeriot, jurameutum pj-^steftt corporate, 
et ccetera faciatttqiise ad hunQ^-^ffecilium eK%un|;ur; i^tBi 
^eliquerintt stttitli modo per. ofliBiu »ubjac^Ql; <x)trrec- 
tiopi: et idem etiarn^ quantum adA,Hiq9 illoa di^cipulos 
altinet, fiat» jaxta modfim et formam qutf. cseteri trac- 
'tautur drscipuiK Postrem6 i^olo quod ad has jneas 
ordinattones i^itra fraudero oljserirandas, tam. magis- 
ter quam <i&e(eri socij, raox ut decti fuerint* June- 
jorando 9int' obfitricti; ne forte per negligentiam et 
incurium suam, ob indenturaruitt inter nos confecUrum 
violationem, oollegio grafis iuferatur jactura. 

EXTRACTS from Qoeto Elizabeth's Statutes. 
;'ymarnble— ^ ••■ 
.. .^ ^. ,, *, .Elizahetha Dei Grqtia. 
\ Ita^;. vkultis sjuperiorib*As staiutis abro^aiis, multis muta* 
iiM^ft^efdf^dathf nonnuUisq; novis additis, A<sc, authoritate 
iK)^)trft/iqviolabiliter(ib omnibus qui In hoccoll^gio com* 
n^rantvii; ^^t cvmraoraturi sunt, custodiri et observari 
lYpfLUifiu^t quem ad modum uniuscujusq; officium in 
^tAtutis uequentibus des^criptum designatumq ; fuerit * , 
..r^bervat. semper nobis et successoribus nostris^ &c. 

* Note, tbis clause 6f reservation w not complete, in 
the original: but it is more fully expressed in the 
50th chapter. 



CiiAP. 2d. 

De electione Magistri. 

Quod si tunc p^r * viam spirjtAs ^aucti^ concordibus * Vim, (for^ 
animis, iieniine dissenliente, in ununi quempiam ^iis- w^ant) vide 
tnodi virum consenserint, qualis in ^tatutp antelecto de- ^^ ?• ^*^* 
scriptua est; aut si major pars prassentiom super uno 

• aiiquo bujusmodi coosenserint; volumus et statuimus 
absq; mor^ (nuU(i prorsus licentia,- ordinqirij visitJKj^oris 
a<lt alterius cujuscunq; jurisdictionem ordinariam prae- 
lendentia e.xpectat^) magister. collegii pronuncietur: 

' quodsiquinq; illorum de uno aiiquo non consenserint, r jqq n 
turn ad COLLEGII visitatorem venUUur; et ille pro ^ -^ 

raagistro habeatur, quern ^olu% visit ator duxerit praji^ 
cicndum» mod6 is statuto Je qualitate et officio magistri in 
omnibus respondeat. 

199^184 Hikuy Term, 30 Geo. i. 

17^7. OuAP. Iltb. De Eledtione Pimdif!, 

8TW ^H¥'9- QuM^^i fMi^t iria Afieita scnitinia, ipse magiflter nm 

coLJUfiC^ quatudFfle xma Dofi convtuerint, tftm is electos erit m 

T. quein4{)^'Tn2kgisC6t* coin tHbus maxima seoioribus, ex 

^oDM^a* - dicti«^^^^l§6VMHbdy soctifei domi^onesentibtn aut majosi 

Tom. e#hiiyAsriP>ftffie» tiMsfenserint Quod si neir quidem 

atfC^^boMil^Clsitiftrot ^sdem diei de tino cooptando (ut 

di<tinfih^eal)Q$&M^otdare podsitit, omnes taroeR octo seni* 

oft% fki^Wfitekrex his de'%iio^eltgendo unanimiter con* 

seiMl^itit, eo <Mn voltimus' magistrum lifts octo rel 

septdriif sic'tonfctittentfbtfS'iitssetisum suum accomrno* 

dare. ' Quod si tte ^ptetn qaWi^ sic ut pi^ictum est 

unaHitttfter-lfOfisenii^Dt, t&tti is- pre electo habeatur 

quern i^^^ 'ttMisTER solvs Homioarerit. 

■ . 'S>u. .Mil' . • ' 

CiiATw f»tb.»»* Ehi'Setiorom EleetiORe) ae ipsius Cir- 

^rrjliydelectum l^wc, <|uoties eveniet^ celebrari volu» 
xnus eieru litmus qua^; die Luna? qus proximo sequitur 
DcthinicdtTiq^alnlain tjuadragesiniai: quo die magister et 
octo'SeriiQres^onrehient ia sacellum, cum horologium' 
rasohue?rif'ib<Ajivamr ' et tilic, pTimikni lecto statuto 
de^ co0{)lt^d^rbiki^ dljatftattbbs, magister primto, de- 
iridertffi^W ^tiir* orainem seniores, jusjuraodum quod 
seejmtdr;- teAii^ ihcTid'evin^lii^^ p^aestabont •* Eg^ 
•* Ni^-Wipeut^^lfestor; et s^ancta ipsStis evangella^ 'me 
•*-nemiSehi -in" sodiim h&jus collegij electufum;^nisi 
*' quetifi Jfatk^Mikfctttiiirtifffticffctiliii niea co^ientia magr» 
^ idoneumjudicabit; neq; illud fodkm, pi^tio vel mer- 
*• cedfr^UibuiJiquopiairf ittt datikut expect^i, neq; 
•••«!& attH-Wretrft aal pravl affectJone/; -Jftinltis, sin- 
griis/fiiit'iitatiiti apertuni sirutinium.' "SeWofrte Veto^ Sit 
8iniir}atil^'%VbTnittendi et spes decipiendi h' mediu'Mtltur 
juxtfe-^eArdritatti^ ordipem, pqMice et ut Cfcteii eia\idjr^*' 
possfti¥,^u)ftagia conferant; et de quo inaj^Ster et^^i^dr 
ex djotts i^bribus consenserim» is-^ptb socio 'tia^atut ;^^ 
qada^sP^T^t aiterum tmt tertium sij^trbiumj, de iino^ 
qAtbdy c^iramagistro non consenseriot, tAm ei^fnodi^ 
prdCedatur.M^uo in electione pncsrdid et le^tor^'et^ 
^t i alioriith officiarium dictum est; et is sociiis bateakur^' qtlt^ 
eo tttodo electus fuerit. ^ *-• -^ * ' ^^ 

r 184 2 ;' Chai?- Mth. Jusjurandum elcctiSbdlC^^^ 

YJ.^\M^d ^ contiogat me postbac propter frftqftfiiMteiauq 
"je&JRwpHH iaQbedienti%m, fliaio^ m^PS^m.mkk 
« W^^ft, v4 prppter ^;»usas 10 pr^sentib^ f^tj«Mtii^i«mnn 
« tenU^, per magistrum yeL alios io b4}jji|i||^ .BM^^if'^ 
•* bab^jles. iatero;^,. corxigi Mt puniri aut jh<^ti c(Ann 
*' %Vl«Wte9tation^qt j|pfiis(8^ gfmgfj^ 

a ^ 

HOtfyiTten, dOGeo. 9. ^ ^HtJf* 


ttttorum Godudt e«|ielK wl anovevh tpsomtiuigutnim jy^gy . 
'* .«ttt tlitm penonam ift))aa# Mcaaioiie exfrnlsianis 9f$t ^^ i^L^'n' 
•• aq^onis hujusiMdi tpuvfuam pmequar .^eu. Wrpckt^rf* 
" qui^dbo, per mfi^f)jwft» val aliofk; nee ab.rfiliU in4lMt(> ^ v 
'* UivvQxan SMinquiatari proeurabo in Jbm(mpIaaia8(if3Q« [; ^r^^^^Av r 
^ a^|4.8ecubrit aeu alio quocimq; modo: 8a<lpqi|Mfc,ei( ta*' 
^^oerta mefc acieatift pard, apoiite» simpii^ater eft/jjiaigjutii ^^^* 
*' omDi actioniy oqcasione ooFraotaonia, pHilMpiua«f^wdi]^i. 
** sionis, seu amotionis. bujusmodi, adversHimciplfuai, 
** sea alios dicti cqUegii 4f|cio6et«cholareii n^i <|uomo- 
** dolibet coqJAHiGtiip siy^^ dtvwm 'Gprnp^lentii^ appet- 
'* latiooi qiioque et querete^aea parte fiiciaiV!}i8» «M 
" qiuurumcuiMi; Ittemrum iDipetralio»i»j«j(ia».p0aQibu6 
** priDcipum procemmf^ magnatiim* pi^^jOftcmpA et 
** aliorum quorumcunq; (quaotumcuiiq; mihi alias pro- 
** bitatis et vits oaeiiu snSn^buiitur,) in vim pacti 
" reountio.'* 

Chaf. dOth. Deimbigttis et obscuris ioterpretaodia^ 

Distribujnius jam liiniversis coHegii membris oiBcia 
sifnul et oniciorum leges: quie si serventur ad araussitn et 
inviolata,(quod utiqj vebementeroptamusj ezeodemviros 
baud di||>iQsperajnui£(rodituros, qui magDS turn utilitati 
turn bon6ri> noa solCkni buic coilegio, veri^m etiam toti 
regn9 ftituri sunt : pj^visum etiam eat, quoad fieri potest 
per^niuscttj usq; jurabentum, (quo nibil apud Christianbs 
iinnius .aut antiquius haberi debet) ut statuta h^ per 
nos jam tiadita exactissimi serventur a siatguHs, quateni^ 
unumquemq; coDcernant 

Abrogatiis igitur quibusvis alHs statutis |>ro hi\jas.coI- 
legii gubernatioae priilis excogitatis, baec prssentia cu;^ 
^era turn salubria pronunciamus; quibus obseryandis^ 
tarn magistrum quam socios et dis^ipulos astrin^ volu- ^ 
mus ; re$ervaiu wbis oihiloniifQUS potestate vel adjiciendt 
vel minuendif seu reformandu interpretandi^ declarandi^ 
xnutandi, derogandi, toUendi, dispenaandi. novaq; Tiirsua . 
aUa^ si opus erit, atalnendi et edendi, noi> obstantibus 
h|> ftalatia fitctis et ^uramento firmatis; aetens oiOffi^. 
aaiiiJAi^iyXujusounq; dignitatis, autfaoritatiSy-statAs^ gra-^. 
dAs. aut ccmditioDis existant, ac magistro quo^; acscbo* f ISi 1 
:Iaribus' tarn sociis quam discipulis omnibus bujus cdtlegii,^ ^ 

nAibentm^ ne cum aliquodictorumstatutorum diapensent,^ 
aut iilla^ova. statuta sive MO coHegio aivepro quocunq; 
-^ttsdem membro, qus dictorum statutorum alicai re- 
tpHgUlAilllt, oondant et deeftrnant. Qu6d si forte oamad* 
-lanus, aut vice^canciMartits, aut revtrmdus paier &itn$i$ 
ipiSeopui^ aut demikm quiris alius contrartum attentaTerit, 
et ndvam aliquod statutum aliud k praedictis adbibere 
molitus fuerit ; ab ejus obligatione, autboritate nostrft, 
m«|/lltMim ft csteroa onfoiefc'iam aociofli quam diacipulos 

166 Hilary Term, Sft Geo. 2. 

1757. penitits absolvimus, eieq; omiiikmB.'et 'shigulis interdi- 

-svjirouVs ciinu8,ne alii hujusmodi statuto aut ordinationi pareant, 

i»Li«BGE ^MUaiUantT&quoAria paeto}iaub fycena ^rpbril iKtqtJetiaixi 

^^ aitH>tioni&nperpcttittilidietocdlegio ipsofactOi n > % 

^mmnch "■ ^^^^^^^ ioleMiiagutnnttu et socioa^aQtiitieefsMite 

roK. ifKK)s»itli(^iwtBoatriioolbgij^Btiper aliqiio^Lrtfeoio statratx^ 

mm noalrcmum^vilfibiaMn v^alil}u0d, aut amib^itflaa/ con tiro- 

'veiaiftfttUK>puiituiuin vtKieikB,valkdia€iafdiii ovfatur/dojlia 

4i^cmot&Ji amitt 'etrpkuNp? iiifttUeohjsViiMm oetodieg, 

h . teinpQmi > exorieothi! 1 emergenti» et tommotae dnbifff. 

tiopiQ oimpiiti8ido^{UB()iinierit iaWr efos' habeii; tone 

Afoluaiuaat pfirtfls.:«iiB8ideiiteii« dhios est 49(^egio fiodOfi 

eligant, qui, ita electi^qasim cit6'poter1(V'nisvfiftBK9-uiii 

^mcefaiii fidMpiam^poI](imu8;)quelnqvju)r«| ptHBtmi, oonf* 
muuenpti titeralamet grammatioatmii s«ndunr ^t'tiH^d^- 
\mxi fm^fmmm aptiorem, oikin«» Hujtismodii-sytMri^T- 
tates mt^rpretaturimi, dissdhittimi&v ''itectehttutum, 
^bi^amuiv)*ubtci]nq;iiitm r^atiin A^U^AM-it, adeaiO'; 
«6L ^Ite»ji» i;Qtam controvereiam^ Ut d4i<>bii«> stei^fitis; ^^tA 
ipsqram ^raaiiu aut noiarii publicr ^ab^cilf^iob^, t^l 
aiioi^iis^'S^iUi authentioi ap^ositioM^ 'muitttid' i/tfem 

nO^i^^qmAimy ricemtdi tpiscopi detefrfaiWWft>ilf;'.intcf- 

.pi;el»ij(9rii.el; daclaratiowi, $uper pr*difctd aii^lo ita tit 

.prefajlwidisputato ac ad • eam-ddato, fatjiendis, radgis- 

. trui»Lipra»ideiii aoeios et ije&t^ros Wnnfes dictt collegii 

■obt^inpom^.vdttaiusi etcum^lTectu parei^; 'sub rpso- 

rum a^Wto juipmeirto coJtegto pi^stito ; et jf^cBfaa amo- 

fitoniaperpetiiaB A dkto coltegio, si comtd 'feccrint, ipso 

.faetoj .npleDtes qtiod. pfeP ^onisuetadin^m' ulfetti, &ut 

.diu^urtt^AOV quemlibet abustorti, aut demiim acturt ali- 

«iiefl^ srerbds:. aut intentioui dictomm statalordth in 

«iiqu<»<ki»gatur: illud autem imprimis mandarriu^; ut 

jiimttientorum suoFumineminerint,atq; nOstiarti mehtcm 

■m. ipsis atatutia respiciant, magid quam aliquerfi fqui 

.pf^ter^ftssensuai nostrum oWim irnepsit,) trorund^m sta- 

..tuterum ahusum. Visitationem uulm hujui edtlegn 

^ revermdu. m Chri$i& patribm episcofis Eljeni^ibus 

.COHMENDAMU&S qwibus et concessimus cyjusdam idonA 

pr/mfitufionem, qui sit faturus in hoc collegio socius- 

idonmini autem imeUigiinas. qui qualitates hkHeskt 

r 186 1 ^^^^^ ^"* describumur in statuto de dualitate sotjo- 

L ^'^ 4.JrMmj /icy; eifiw uiiim quenipiam uecipi volumUs i ^col^ 

irf^K^i^viJeBiweraatttem iUi prcBsentent. nisi taleto &tiPfcit> 

.^^wsiento hofc^aodaiiiio.digMs fuerit, vet cut cMm^ 

tutis per omnia conveniat. - - 7 . i.T 

-Jtm IIIJI.C :/''.l^A. 

Hilary Term, SO Geo. fi, W 

Chap. 61 bU De ViutalOfe; I757. 


Nihil adeo bonis tegibus firmari inaniriq ; potest^<}am collbsb 
ab iis qui licenter Yivere et luxui libUli«i fnena iaxave v. 
student, aliquo friiudis commento facili qoaat iHudi. Nos «raoiH&* 
igitar ^ucia benigoitatts reverendi in ohristo' palria fpc^ . ^oh. 
eopi Eiimsis qui nunc est, et succuBorwn tuontm^^ firetr, 
confisiq ; quod ortbodoxse fidei «t reipubltoi lOhristianft 
xelo baec nostra statuta perpctuis fucoria temporibils 
iDvioIabiliteri ad laudem dd et hoQorem eollegiiy.obseiv 
van procurabunt et nitentUD; et ea'vd ^onwD ^M^iiap 
contra nostram mentem et sanctt8S(mum*pia& futidatncia 
institutum, minioie violah patientur. 

Statuimua ordinanaus ct voiumus, ut ' musoopoa 
ELiENSia qui fro tempore fuerit^ QuoTtBft permafg^fattram 
et quinque ex senioribus, sive per aepteni sMiorea^ ^re- 
iuctaote magistro^ re^vibit us fuerk^nd coUegimn valeaft 
et postal accedere; magistTum» praesidem, 'deumos, ths- 
saurarioSy socios, soholares etdiscipoioi coDegiivin ecet^* 
siam ejusdem convocare ; eoliegium tarn 4n coffUti quim 
in membm visit a re ; ac de et supef omnibus et siagiilis, 
statuRi commoduni et bonorem'dicti collegii,- stivtttta, 
magistri, prxsidis, decanorum, tbcsauraponim^ socsomntt 
disci pulorum vel niinistroruni vefonnatiovanifeteorreo 
tionein» cpncernentibus, diligmter inqmem; jiMMntn' 
turn. *^ de dicendo veritatem in pnemistis omnibus et 
'' singulis/' ab iisdem exigere ; crioiina^ emeasua^ d6«. 
licta et negligeutias quortimcunq ; dktr cottegij/quali- 
tencunq; commissaiAeft visitationecompertajsecundAoi 
criminum^i excessuum, delictorum et negUgentiarum 
qualital^rp et exigentiani, debits pumire corngerevel refor- 
$nare^ ac j.vhui^ictiokem scam obdkn'ahiA'M> qmm 
voluwi,^ ^^ M^ stqlMto nottro ordimgmus ad euddam episoo- 
puQx JlliepsQni et.successoies suos in perpetnuwispectafre 
et pertiof^fe, in. n^agistrum et socios dicli collegij "tHrcete 
c^TA&AQUB ^MKiA sB7 SI14QVLA fucete tt extwtne qika 
ad eorum comciionem et reformationeM mmt neee$$urid aut 
qucvii m^do opportum : etiam «i ipeum ad privatiomem $^u 
avfiotwntm ^agistri praesidis aut alteritts cnjusounq ; ^ab 
adoiioistnitio^e vel oiticio^ sen ad amotionem alienjus 
^\\ schoUm vel discipuli ab eo coUegio, (st Camen hoc 
fjps^i^jp staiMtun^ et ordinatiooesexiganti) pvocedere cdn- 
H^%^^i Eum^aut^ volumus, yiaitatione semelinceptji 
^^i^'^^^^Syr*^^ coootmod^ potent, causas 

^dmn^g'ctjIHqi^t et determinet, ac finem visitationis suss [ 187 1 
'^^m&^ ^^;^rfl^ituM/<ciin postejaa ad collegium aoeesiio* 
f^Smoies laciat. 

Statuimus insnper» ut in visitationibm collegij per revet* 
emdum paJtrem Elwuem episeopum quenicunq ; pro tempore 
exiatentefn, nuUus sociorum aut scMariuoi contra ma« 


i»$ Hilary T^nB^^ Geo. S. 


€ / A7^7* gisUriipji4u,t ii^liquem alium itlitts ooltegii quicq^am dicftt^ 
^S^^oim'f 4qK»a(^f^€^ nisi quod r^AB crednt. 

cohhEGB ^%4F Q^'i^iw ^'^ vox ^^t Tama conlnusuDdMfi jKiboraty 

xoiMi^ ^}^f?'^f^P^^^^} * ^ au(>er ^buresiB&d Vjef 'deliotis m 
^^^« ^^Mwf?P^ ^iaquisitione huju^odiy'detecn, demmcialf 
?^i^6^^^ |[p9Dii9 ddteGlorum e't c6'ibpertbniiii, nomi- 
itium ild minVmd ^rkdmlj. irel osteDsis/] 

aiipe£^ikc'es3it)MS et dflictt^ tidj^SnfBflPcob^ituti conna 


tioiiem Sepii^am pr^ ii^<Jieti(ii. i&^ik^t^'ii eorurti ' quilibet 
8iibeat, ^ec^uid^jixi Qosifarutii '^Mihatftnitidi et^^^ 
«xigeati^W;^i^jipr^^ ; Cei^an^ibiis daibti^Wi '^rovo. 
caiiooil>ua^aj)pqua)^tonibuis;<)U^ ^lUtt^jMuijis et Aicti 
i^n^^ViSnJVer, IIU9 ipsoruin et cujiilltBet^^TfiiMeA xou 

iippe<jyb^r^rta^en ^4 priVationeiA in2t|ri^tT;^mt eocpaU 
^ODem 8ocg schbliiri^ verdiscipaM ^^iir.Hhn^ 

et alatuim^ iifc b^^pfifentur ^i ^k^t^¥i^\l^^iH ritiooa- 
J>ilitur etfir/ff^V\Xir evitaW et'j'iiBti ddfeH^one pro^ 
pnlaaft non polt^t^ volumus ut ambt^tur, Biiih appellt- 
tione «iit ulteriort reiacdto. ^ ' ' 

Et si qi« alia in membris corrigenda et reformanda 
faeribt; qusB brifarnlate temporis corrigi et itlifraiart aoo 
poterant^eaoniniaetsingtMainagtstro in acriptistradet: 
qiii, seciiiiddMii finftnam -et exigentiatt aUMnMoar et m 
viitute 88iiot» obediential ac juranenti aiitj aab TioiatiMM 
pcena, kiqaaiBodi c^mgenda et refomaada diltnnit^ 
et fideiiter oamgere 'et reformave &tudebit»etteawitai; 
I>iM<^lnrtAq ; TJaitatioiie, pro escuiiaatis, pocuktitis^ exp 
peaais, oaeribaa^ et pixicarationibua raltoa# iriiitatioBia 
bij|fuamodi ddalia^ voiaaAus etstatuimas ut samma peca* 
oiaria» in baas: memoriae domimJacobi oltm Elienaia 
epiaoapi coiuaeaafoaibaa et ocdinatiMibus Uaiiuta et 
dedarata, abaq ; dilatione qualibet aoifatur* Reveieadi 
yero patM e^aoopi £lienM ciyutcuaq; pna tesipore 
existeatis coaactentiam apud altiaBiaauia onefanaa, et ia 
ifiaaeribaa domini noatri Jeaur. Cbriati hortamur, at ia 
faciendo et exequendo {vaemisaa, secundAm apoaloti 
' dflwaiiaaaa ** non quaarat quae aua aunt, aed qutt Jeaa 
^>Chmti**; aoluraq; deunt babena pna oculia a»enti$» 
ftfvare, tiQiDiie,^odio,fMace, aut pietio^ cdoribaa aut oeoa* 
aayaibua^jpoat faabitua qoibaaoaa^i; Tisitatioatf^ iaqaiai- 
tionia, cortectionia, reforaiatioaia oflidaaa diligaiiler 
ianptpdMt^ et fidditer in omnibaaenqaaiar, aicas Mram 
QeQ, ia'^tiaextremojudiciOf inboccaauvoltttnktaddeia 
Titiannifn ^ ^• 

18B ]<».^lHia'igilnT dk^legibw, kc (aicnt in 
Tide p. iBt« cBfiitia de viaititafe^ia l^aaopi Fiabeii iiaitttia»>^^ 

HiUmt Ttenn, 9^ Ge<v ^ 189 

^'' , . i . [ill i ' r 

Cmr. 9Mfa. m Modej»iia, et Monim UrbaniUte. 1757.. 

iMf^ooBseoBUiiDagitiri, aut(^ itiigd« <¥^'« > 

omnas, vdmagUjgr^imij^ illf a1^%f WaSflti euinrfuo- 
bua sic electiSi, iebtfuA]\ui tMlefiht/ if i^ cmft|tfiesbaili 
dlsseotjeRtes : qui secdalfeceri^ <:ott%i(i' prrroi^, * Lte 
y^ro inter, magUtrutn e^socium ifnumailtplur^dttty a 
pficsideMreliquisseTtiotil^usi, aut (dt prflcs^ unuaittigith- 
tiuoa ;iit}& socio maxifpe sf^niore, qui jLitiiir litfntinahi 
no» ait, et CDgti6acaturet(8i fieri p<»tit) tre^[£ltfettr^ : 
340 ^tra bill Q,u£U hoc (lerL non possir, ad pfkj^Mtumtol* 

HitossoctqaMF^inq; eti^€nd(>8yli$dfefei7ttur; et oaoA'dim 
i% ilUs atafwriiit, jllx^ (arroatti'>tat(itoturti atttlegea 
pqgu»|«^j^ *li^'^,^^^;F*^^L St* iMlii:p«iri*eifji, collcgto 

'• tn flMnaUi|iUi(9r<l»tifigtotb^el^^ . 

Itia i«»MlMtf;3tlAt if ftve^ of ti|iirfeikari^>rftfW >WO 
acMtinier fit^ btfaeitdtdiiipop/tlm »atoddagi):alM»Mi fipt 
tei«»^ii5ctf^JiWtn|»^ tlite>th8y:>anfc(iQ;iOfBii^ tol^ 
vifiii^iykfaiia^; and bauiDtctfli&ealaaatd-aaiMffttei*, 

)iM^»i4M *4^*MMrer8 to: the atHnte* i« alliimiit^, mo* 
c9|tt4f^nlHi^quaHty 48ad otimiof mHfi^^M&Umimd 
tMMt sllBll Bignify lo the feUowa»:«mai(Cpll«09^. 
*^ilMW tu^nty daya fmm the daor of wsk ile^dioliaii 
MM«M(» b^^to^inalninieiii. jMaled.^itb . tkbifiptiforiiw 
pm9hA o4BQe; (be tamepenooao j^roqitwli to tfaeapaitieN 

Ilt^l^ cbaptu^ Mtoliug to tbo eleatiaft>6f fnifndaati 
''^46r!ttilM^^iittdt>th«r^ffioers» : . >>xj :o cfiu.:.;! 
It ia^ tfrdkified, that if the mwtUtJpoAiftHomMkmiA 
MjiPagraaifr the election; and the n)aat0tori)oalda.M>iit 
ffr^ kia^ton } th^n Af mkm the Biibfip^Bbf^ic I^smti »ft 
^f*lk%ki4f'4^Uge, beit^ wLtbia abe Juogdotti^ctfJiami r igg n 
Wi^lMt^b^lilected into the oflftce. .^ .r.:.^^ r.aoit ^ -^ 

^9bt^iM4bttRKiatioiiof«hetiao SoMthtttU^^^yj^,) 
mme objecU of election were soade prebndilAj|9 


Hilary Temi, SO Geo. 2- 

1757- ' 

8T; J0HN*8 




pended upon his being a PREFERABtE object; 
whereas Cravm was ouly a general one. But the ex- 
ception taken to Todington, against electing Arm into 
the fdlowship, though otherwise a preferable object 
within Dr. iCe/ojf's descriptions* was his be ins mu- 
xiLATBi>9 and thereby excluded, by the found ation» 
*fiom being capabie to be chosen : lor that by one of 
the old statutes, (prior to Dr. Ketons deed, which 
refers to them,) it is ordained ''that the persons 
" eligible as scAoAzrs, should be co/pore'nullis conta* 
*' giosis aut iocurabiiibus morbis vitioso, aliasvede- 
" formi aid kutilo." From whence it was inferred 
that though this clause is not indeed repeated as 
one of the qualifications of vl fellow^ yet it must be 
30 viiended: for the statutes could never mean to 
require less perfection in the fellows than in the 
scholars ; since the fellows are expressly described 
as potiora et solidiora membra coUegij, and are to be 
elected out of the scholars : and are considered as de* 
signed for the ministry and holy orders, into which 
no deformed or mutilated pei^sons are admissible. 
The counsel wlio shewed cause against the prohibition, 
and who argued (at first) only from Queen EUiabetKt 
statutes, (for Bishop Fi$/ier'» were not laid before the 
court, till some time afterwards,) made three points 
upon them ; viz. 

1st. Whether the bishop's general visitatorial autho- 
rity does not extend to the election of fellows, upon the 
original foundation. 
5d, Whether it extends to this ww/z^jre^/foundation, 
3d. Whether the clause which gives distress upon the 
estates of the college, excludes the visitor. 

And several of Queen Elizabeth's statutes were read, 
on behalf of the visitor; particularly, the 50th (de am- 
biguisetobscuris^interpretandis,) and C. 51st (de Visi- 
tatore,) and also C. 2. (de Electione Magistri.) ' 

Contra^ on behalf of the college, vicre read and relied 
on> C. 25th. (de Modestia, &c.) C. ISth. (de Electione 
^ Sociorum) and C. llth.( de Electione Pnesidis.) 
C 190 J N,B. All these were Queen LV/zaAe/A's statutes : and it 
was said by the coimsel for the visitor, that though 
Bishop Fisher as sur-siving executor of Margaret Coun- 
tess of Richmond^ gave statutes : yet he had no power, 
AS executor y to do so ; and that therefore Queen Eliza- 
beth afterwards gave /resA statutes. 
Cur\ Let it stand over till to-morrow : and let us have 
copies of the material statutes, in the mean time. 

On Friday the 26th of November 1756, this motion pro- 
ceeded. And on behalf of the visitatorial power^ it was 
argued^ 1st That the bishop had a okhzislal ri^ht of 

Haary^e^rin, SO Geo. 2. 1^1 

xidMian of the colltgt; which ineiuitd ihtxttetTos of 1757. 
rzLiA}^if 'as well as of Acr matters that t^oncerned the g^ jowk's 
coUega; 2d1y. Thattbte general right extevfds t6 Ylie'AN- collbgb 
NEXfii^,M well as to the or^jfui/ foundatioA ; and'Mly. y 
That the i?fai*ir'of otstres^^ (which bad} b^nurg^ to xoDiMa- 
be a disiinctntul particular remedy giveiv by IA« arfiiaxed .,^jj 
foundation,) did no* excludt the general ricfht of' the 
bishop to visit. ' ^ ^ -»^ 

First— the origiaal fbundatioti df the college whs iip- 
otf lpx;>re« tMifdithH ** That* the- Bishop of fc'/y thoiifd be 
" visitor.'* . And' Dr. Ktim^^ tbutuhtion is im^orporated 
with the original ferondation': • he was^ in eflvtot^ mfj^ a pm- 
ctmer of-two 'fellowships and two scbrtar$hip8. • 

A lid the n^w statutes (of Queen VJitrrhfth) vftreinhso 
qumi to Dr. Keton*t foundation : ' aiid Dr. K.'s fellows 
we^/wrr#'Of the GOttege, ut the time when these statutes 
comoYend thQ$ iFiaitatlon of t/^ college^ i.e. r>f tho^o/e col- 
lege, to tht bish0p8 of Ely *«• the time being: These 
statutes cdnfiftaotiy speak of the bishops of f/r/ Ktgemral 
visttors of the coliegt: ^tilnU time, and already so; and 
wof as being const! tutedtao, merely and only av those tta- 
tutts of Queen EHzaheih. And his g^MfX^p/ visHatorial 
power inttkdei th6 electioD of feilo^^rs, as well as other 
matters, ' • * . . , . , • 

The geii^rtfi. visitor, upon /^v-foundations, is tbeydr/^- . 
itr: upon 5p/rifMfl/ foundation*, theorrfi;wry. 

Theg^ii«-tf/ power of Tisitation ofthA college is given 
to the Bishop of J5(y, et nomine of " visiioP.'* * 

No particular set form of words is necessary to the 
appointment of a visitor. Fitz-Glh. 303. Dr. Hentley y. 
Bishop of Ely — " visitator sit Episcopus Klicnsis,*' was 
the bishop's tcltote right to be general visitor of Trinity 

And he Is complete visitor: and such power may cease T |Q| i 
and revive again. The case of The King v. Bishop ofChn- ^. 

ter^ warden of itfflwc/<r«/^r college, ^ Strange 797. proves 

The late case of Dr. Green v. Dr. Rutherford in Clian- 
eery, was only a trust, given upon another footing. 

No objection can arise, as to executive part, from the 
l^islafive power being reserved to the crown. 

Det>rivation and admission of fellows are incidental 
SBd essential to the general power of a visitor. Sir I'. 
Jones 173. The King v. Warden of All SouU College^ in 

Neitheris it any objection, *' that particular tinles and 
" occasions of going to the college, are stated and spect- 
" fied :" for upon particular gnravamens, he may exentfii^e 
the power of admission and deprivation^ eo npmintHi' 
thito^^ ' ' ^ ^ V 




15 Vex. IB. 


C 192 

Hilaiy Term, 30 Geo. S. 

Second point->*-The bishop's general visitatorial autto- 
rity extenos to the annexed fouadation, as well oi to 
the oi^um/ foundation. Both are within the same rea- 
son: tod these ingrafted fellows are to be bound by, and 
e^n to swear tQ the statutes then in being. And here, 
no new statutes are given by the annexed founder : and 
the power be reserved was only to give additional ones 
conformable to the old ones. And the indenture r^ers, 
throughout, to the ormnal foundation : which is a strong 
implication. In 5 Mod. 4^1. indeed, this point, ** whe- 
** ther the visitor appointed by the founder,can beextend* 
** ed to the new fellows" was doubted. This is cal- 
led Mr. Jcnmiig'j case, of Gare-Hall: it wasjbhen ad- 
journed, and does not appear ever to have been deter- 
mined. But on 21st March 1747, in the case of the At- 
torny general^ at the relation of Stapleioft^ y. 3WM, (the 
case of the master and fellows of Clare-Hall in Cambridge^ 
Lord HarAmcke Iield '' that the annexed foundation, 
'* wliere no new slaiutetzre given, must follow the origjinml 
** foundation*'' 

• Third point^This deed giving another remedy, viz. 
by DISTRESS, does HOT preclude the visitor. It is not ad 
idem: it is given to the church tf Southwell; not to the 
party infured in point of election and admission. But 
however, ifitux-o been given to the party iiljured, it 
could not have taken away his appeal to the uaitor^ for 
relief: for the one is in order to obtain election andadm^ 
rioH : the other, for the profits. The speci ric relief must 
come from the visitor: the distress would be only for the 
1 delay^ 2 Strange 1061, Middleton et ux. v Cr^ in B. JL 
(the third and last question) it was resolved ** that the 
** statute of 7 4r 8 ^. 3. did not^ by inflicting a penalty, 
•* take away the jurisdiction ^f the spiritual court/' The 
distress may be intended, to prevent cottusion between 
the college and the visitor ; and as a method to bring the 
matter collaterally in question : for notwithstanding what 
may be said in the books, particularly in the case of 
Phillips V. Bury {Exeter College case,) it would^very 
difficult tc maintain vl direct action for such collusion* 

These new fellowships were» by the deed, to h%vea// 
the rights of other fellows. Now one of these waj^ a right 
of appeal. And shall the nomine pmna and clause of 
distress given to the church ofSouUiwelU take away the 
DISTINCT rtgAli of the c^vdi^ate, and of the nxsjioi,*? 
woithey have a right to the remedy ^ but nime to the 
penaltif; the penalty belongs to the guuacu of Southwell. 
But i/ the penalty bad been given to the CANnmAT^ ; 
would that have hiscuai^gbb the collegers obligation 
to perform their contract? and the restriction firom 
going '* foras^* does not exclude the vufW, (for b^ i^ 

Hilary Term, 30 Geo. 9- 193 

Amesiic;) but it only excludes forensic jurisdictions^ courfs 1757. 

^^J--^!^*, ,1 , , .u . *r \ ST. John's 

And tje collateral penalty cdLVinot hurt the specific rr- collegc 
mtdtf : for it is not udeqiiateto the^njury ; nay, it is not even y^ 

given to the person iyared ;zni\ it is temporari/. However, tod/ng* 
the same person may have several remedies. And this is r^^^ 
not the first instance of the present question, in this very * . 

college; for Mr. Pejg's case in 1726 vi^as in point ; and 
there tiie college submitted. The case was exactly the 
same with the present, excepting only that it was upon 
Dr. Beresford' sfounddLtiow ; which also was by deed, antl 
withac/ai/se of distress, as this is. His foundation was ' 
likewise of tWo fellowships and two scholarships in this 
college, by indenture tripartite, made 12 Fcbmary \\ IL 
8. between the college, the dean and chapter of Litch- 
Jield^ and himself: in consideration of 400/. given by him 
to the college: in which indenture, a forfiiture is* fixed 
and a right of entry into the colle^(*-land«, given to the 
'dean and chapter of Litchjield, to distrain for it. M ** 
Pegg was electeil. Mr. Burton appealed to the Bishop of 
jB(y, as visitor. Mr. Pegg protested against his juris- 
dtetion. Civilians and common lawyers \\cre heard, 
upon the point of the jurisdiction. The visitor pronoun- 
ced for bis oyvn jurisdiction ; and afterwards gave sen- 
tence for Mr. Burton^ the appellant ; and issued his moni- 
tion to the n)aster, president and six senior fellows, " to 
** admit Mr. BurtonV This monition was Qbeued ; zud [tDam.Slu'] 
Mr. Burton admitted into the fellowship, by the presi- • 
dent: by whom a certificate thereof was duly returu- 
-ed to the visitor. z 

The right of visitation arises frorfi the common law; f 193 ]J 
Aft Ld. Ch. J. Holt held in the case of Philip v. Bury : ♦ V. Skinner 
♦(though Bxhhop' Stillhigfleet said it arose from the canon *83, 484. 
law.) There was a case of this very college, which is 
reported in 4 Mod. 'Z3S. Rex 4r Regim v. St. JohCs Col- 
/fgf , Cambridge ; and Contb. 270. S. C. and Stunner. 359, 
308, 393, 541). S. C. Where the court thought they 
ought to see that the law be executed. And another 
case also, relating to the same college, was Dr. Rather- 
ford^s case ; which was upon a special trust. But the 
"courts of justice will not interfere, unless the visitor 
abuses his power, in exerting it where he ouEjht not. 

Then the counsel for the bishop and Air. Todingtou 
i^erfd APFi D Av 1T5, as to matters of fact. 

Bui Lord Mansfield said, this court cannot enter into 
the MERITS o/*/Ae election: for the question £e- 

. /ore us is" whether the Bishop of il/y appears to 
" have a right to judge in this case, as visitor." If 
he has, there is no ground to prohibit: if he has no 
such jurisdiction^ be ought to be prohibited. 

Vol. 1. O 

134 ^ ihh^xyTemkr80iG^,:2^ ' 

1757. "^^^ coui^sel.^hotarg^ped for the pro^iMtiont begijKQi 

n^^^ ^N*^ with laying down 6{m^ gf«0fal p0%itm*r^^^ ^hat/wir 

\ / that » foikndpr may give ^tejkur^9& ; tlkAlxief? be dpeM^^jl;lie 
n-;D]LH€h> ""^^l^^ /pf visiting j<W^«W i^/tbefounderoi^ Ws^t 
TO^, h^ i^^ayj aj)p9^t,a; l^9itw^^e^t^ler f«ifr<*/»iP|!|>^rftw/, ( with 
r6ga,i:d to^, |:k(»wer8^ia8 de, himself f^ftas^]^ that if lie 
gives Juoi miyp^xti^ p^wer9tibe'/yi9Ttor\osyt/^^«eJ6feed 
tht^iD ;/^t it ih^ 'V;i9it<>r ^boiilil ^ttempt^ it^ the oQurt will 
);^yv{)i\9hi.^itji99 . Wr4^ ^Ae exc^;tsoCJurisdictioD; ttiatJtU^ 
cquit yril) neves |T^[ii^e li^iyto .«bc/<ir^ in prubihili^a» 
ivl\$ireverthi(^r^J3 t^hfi/fca^^dfwt/, (in order that the mat- 
ter, niay,^ \^ sQl^innly d^terxmiyed upon, record, and , so l>e 
subject tQ a regular cQurseof appeal 'J\ that a vi9itatorial 
povv;er j« be inferred by iinpHc^twrt^iHJt must begiven 
by ^JLpr^s$ 09i4 dirett words'; (s^ was deteriniuied by Lord 
Ci)uncelU>r Kingf assisted by it>VQ gr^al judges of the 
coaanun law» intliecasq q{ EdiH y. I^of/cr,- reported io 
2 Petrc fVms. 325. the case of hirmhigham scbooL) «o , 

.,Tbe0 they entered ti})QQ their argniinent, to the follow- 

ipg effect, l8t» The Biahop of ^/y is #/p/ gkkerax. 

visitoj i9f. this college,; but on/y visitor xw particular m-' 

stance :vaD0 the general right of visttatiou ii) M Mhfr 

Qn. V. ante instances, renaains in the crown, This, they said* wjll 

194. c- 35ih appear froi^the oOih, 5 1st, a^d 62d chapteia of j Queen 

L *y* J C. dOth. " Rei^rvdta nobis pote&taxe vel adjicjeadi 
** vel minuehdi, seu retbrmandi interpretaudi,"&c."Cir^m 
" autet^i OMNIBUS &c. inhibentes/* <rc. And iformediately 
,,afber, the Bishop of £/y is vkKTi^nhkjLuythfre mamt^t, 
as one of the persons pfohibiud from. couiU#nM:tii^K tbe 
statutes. And itconcl^udes with giving ^he. Bish9(> of 
JS/y a compcfisatioup viz^ the nominatipp of a f(E;Uovi9;«who 
must be idoneus: and the coUege are appointed. to j>tc(ge 
of t^e idoneity ; for it is said/* iiajiic eoimaliuiDiquein- 
** piam rccipi volunius a colUgio'* Indeed the bishop 
is immediately afterwards admonished to oH'er no other 
than a proper person : but still the collrg^ ar^ to be the 
judge3i«evenof the bishops own nominee* 

C. 5 1st. (de Vis|taiore) gives him power ai^cec^ere, only 
quoties he shall be requested, 4'c.; and he is thereby re^ 
strained to close his visitation within fifteen dayg: and 
there are imny particular powers minutely given him; 
uhich exclude the supposition " that be has the general 
•* power/' 

C. 25 th. (de Modestia) directs thatomnes lites domes- 
ticae intra collegium et cognoscanturet dijudiqentur ; and 
ur4|Qrs ^^pulsion to him quiybr^M vocaverit^&c.;,and refers 
U^if^ domestic disputes to be settled . either amongst 

HHaiy'l^ttrm, SO Gf*iy. 9. fl&o 

themselv^, 1ft college 5 or 1>y tb€ refifcTeut masters of the I757. 
other colh^es particulatly therein rtttmed. * g,.^ john's 

' They cfertled thht in Dn-*fet?/&y« case, the exprel^sion cotiiBGK 
^' sUvisUhiory* Mte$ tfife jfi^wWt)r the resolution : (which y. 

W^Ms, hoKveveiS are jh^, ^s they ohserved; in the preaeut roinaa^ 
<!a8«r.)t Butlri^that «5i«e lb* iat$Nt ofth€?<rrOi4fit fully ap- ^^^^ 
pelted; 'Hroughottt^ *• to give- tlie w/tote power to the 
F** Bishop Of i?^.** Whe1-ea$ lifewj; the crown resitves powJ- 
errto itself, 6f various kindft^; and might have appointed 
Mb visilOrt : but th^re,^n the c^tfan% the right wa^ 
l^&petHolly given to tbe bisbopsof £/Jir. Here, the b'ishop> 
visitatorial power is limited ^wi cijtuimetibtd : whehias a 
general 'visiror rtiiglU do alt that a fitinder tould A6'. 
Here, te cjhinot visit ex iffficio, hi less Chan five years. ' 

At to S^tatt^e^ 7S)7. the Bishop of Cheaters case, a.« war* 
yfett-of Uanche$ttt college— they agreetl tlK^t in certain 
cases, the visitatorial right may be saspeucleH, and revive 
agfert. Bulthatfcase. tb^y said, ivas not arall like the 
preseWt aaise. 

''Aalothecase-of Dr. Gr^eif v. Dr, Rntherfori'^\t\v2» 
oftly a construction of d will c'ontaiiilng a trnei; which was 
fiot^nobj'^W of the visitatorial jurisdiction. Besides, the 
poltit ofjudgment in that case, they »aid, was with 
them. ' 

Add they concluded, that- therefore no appeal lies to r \q^ y 
the Bishop of £(y in the prese/ir case, obon the foo^ if 
to being, ifi generaly' one of tb6 ieUowsbips of this 
college, . , 

2dly. Much tess docs it He in this caseof an annexed 
fellowship glvett'by a itelMeqnent fcuudtttion. 'the law • 

will KpT }i7i;^tha¥Dr; Ae/dii'isfoundation is subject to any 
ether Visitor' than himself and his heirs. 'An ingrafted 
foundation<k>e8 not fall under theformei^ powers, if the 
%iineted founder gives oMer la wid. ; 1. . 

Now thi^'-ia not a co^foundation, but Zfiew f»un^ 
liatioti.. ^' * ' 

It is not true,'*' that Dr. Keton khew the Bishop of 
•• Ely to be general visitor/* On the contrary, the bishop 
was Nor^o, by Bishop Fishers statutes: for by those.sta- 
tutes,the bishop had ho right to interfere in the* election *Ant^p. '81- 
of fellows. And Dr. KetOftl reserved a power to give sta- ****'" ^^^' 
tiHes consistent with the statutes of the college: ami 
this right is either still subsisting in Dr. Keton s heir ; or 
devolved to the crown. Now at that time of ]^r. Ketones 
foundation, the Bishop otEly had. mo right of visitation as 
io the eteetioft offtlhws. 

3dly. Here is a redress given: which no^ 
visitor dkn Kave a right to discuss. And the specific remedy 
is rtdito come from the Bishop of Eh/ at least ; whatever 
I may be, or from whomsoever it is to come. They may 
O 2 

IJjG Hilary Term, 30 Qeo. 2. 

1757 ^^ ^^ ^ proper jurisdiction, for it And as to the case 

John's ^^ J^^^'^^^t V. Pc^; perhaps the Bishop of Eli/ was ap- 

cojjEG»^ poinlLd visitpr.byDr. Berisford: or the party concerned 

' V " niiglitnbt think propir to oppose, or not be abte to op- 

Tc D'XQ- P^^^ tlUt bishop's' |f)rdceeding/ However the submission 

Tov ' ^^ ^^^^' college cannot take' away the tighc of ihe fomider^ 

j)Qr the right of /<w fd//r/; n^r gheXo the bi^top a riglit 

. whicli ho hasnot in'hrm. - 

^ * / . .\? to 4 jViod:ii3, Rvx et'Rbirimv, The blaster andFtU 

I res of Sl Johns College, and Skbmer, 33p. ^'c. S. C. ( Dr. 

Go?tcr'.srjJS'%) and Comherb. ^7:» -S*. C. The return wad 

noi tlio dictum of fAe college : and such pefieral temis were 

out of the' cti?e rtnd ini| roper. And the caseoi Middle-' 

ton &i t/V V. Cnifi is not applicable. The Register of 

JVtih , title Prohiljitiortes, pa. at\ i^- simihir to this case, 

as to the being a comtiidn-law contract: •*'cum placila 

" dc ann«n!\bu» red<litibu8, &c. feci &c/ad n©8 ef coronani 

•' et digt^itatem nostram specialiter pertttiearit," &c. 

The visitor is hoaftd by the deed ; fii^tl he cannot have 
any pretence to proCt^d in this case^ ttnfil the covenants 
are bmken, and the college have incurred the penalty j 

ClQ^ T ^"*' of turs, the courts Of common Itw tire to judge. If 
**^" J both jurisdictions should proceed fogelher, tlieit determi- 
nations may directly chBh*-thet'efore the cornAion-law 
courts will prohjbit him from proceeding at all.* 

Dr. Kef on was a tukchasek of these two fetlowarhips i 
and he-reserved a poxrtr of distress. The requisites to his 
fellowships are, being a chori^er of Soiifkwetf^ if, ^c; 
and htiv'it)^ karnittg and morals.' If the college should 
fail to choose srtcfr persons, i^c. they ai-e subjected to a 
forfeitttre : for \Vlfich,a //is/r<?s* may be taken': this ii/the 
sanction annexed; and this is an adequate rinudyi. ^And 
upon this deed, the chapter of Soeirt fire// are on)y Iwsfets 
for the candidate ; and they would be answerable to him. 
And this would subject the matter to the court of Chan- 
cery, as a trust; and might also sofbject it to this court, as to 
gk*anting'a utavdamtts to admit him. And therefore, though 
the bishop should even be considered as general visitor 
oi^'the collt^ge, vet this court would prohibit Kim, from 
proce€<!hn'g irt thispaiticular aflair ; or at least, give the 
college leave to declare in prohibition. This court will 
proliibit jurisdictions who are proceeding without ri^it ; 
(lUkoiigk ihey themselves cannot, perhaps, give an orfr- 
jw^/e remedy. However, here the founder, considers 
tr»e distress AS an adequate remedy.^ 

They concluded with saying that they only deshred 

leave to declare in prohibition; not an absolute prohibition, 

^ Mr. Just. Foster said he had not seen Bishop Ftshfrs 

Statutes; which though now repealed, were yet in force 

ut the time of this annexed foundation : Und they are said 

Hilary Term, 30 Geo. 2. 197 

* to restrain the bishop from exercising awy powers re- l757* 
latine: to the election offeflo.cs. Sow rnx-v may deserve s^. joiis'ft 
consiJeratiou, ^'/owgA these statutes should be twio ex- colllob 
pired : for they were understooil to be is fokce at that y. 
tiine when Dr. Kelon made his foundation. • todisc:-> 

On the day following (viz. Saturday^ 27lh Snvember tos. 
1756,) lA, Mam/irld said that upon lookii^g into the ^ 
papers left with him, he found it necessary, towards jg/ ani^Jji, 
coming' to a complete understanding either of the sta* 
tut*»s orofthedeed, " that the ruiOR constitution of. the 
** college, ant^ecedent to both, sliould be laid before the. 
" court;'* as both the deed and also Queen Elizabethan 
statutes erpressh/ reper to this prior constitution ofth<* 
college, and consequently must be (in some measure) 
unintelligible and inexplicable, unU^sitbe also known, 
" WHAT that prior constitution xcai,'* He proposed there- 
fore that the parties should^ in the best ntanner they . 
could, lay this constitution before the court; ami that 
the case should be spoken to ^again in the next term; 
not by all the counsel arguing it over %gain, but l)y only 
one counsel on each side, who should apply themselves 
ioisuck conclusionsas might arise from such prior const!- 
tutiottofthe college, and b^ applicable to Queen Eliza* 
beth*s statutes or to the deed of covenants. 
The case was accordingly adjourned till^nent term,[ 197 ] 

to be then spoken to by one counsel on each side, 

. OB the /ir/or constitution of the college, antecedent 

to Dr. Ketones annexed foundation and deedi and 

consequently to Queen Elizaheth*s statutes likewise. 

On this day (r/m/Woy, 3d February 1757,) this case 

was again spoken to, by one counsel on each side. 

Mr. Tor/se, solicitor general, on the part of the bishop 
and Mr. Todington,^ made three questions, vis. 

1st. Whether the bishop is not as extensive a visitor^ 
under the o/c/ constitution, as under the ueu\ 

2dly. Whether the college are not bound by the accept- 
ance of the i/cir statutes. 

3dly. Whether Dr. Kctonsfcllouships are not bpundhy ' 
the acceptance of the new statutes, as well as the rest of the 
■ college. 

First — he insisted that the bishop is as extensive and 
con)plete a visitor under the old statutes, as under the 
new. This he endeavoured to make out, from the old 
statutes of the college. (And upon these, the question 
must depend.) 

Secondly-*-! he college are bowed by the acceptance of the 
new statutes. 
Ld. Mansfield — ^The college will not (most undoubtedly) 
agitate that questio;) : for if they do, they mugt give 5 

198 Hrtary Torm, 30 Geo. Q. 

17^7. *^'* ^'^ ^^'^'*' livtagK, S^r, and all other tdvanlages that 

ST. joiiVs - tbey.cteiin usuBR them, 


Mr. ^or/o/i, on the part of the college, Teadily a^Teect 

to this ; ficfyin^ nhat th^ sii^zi/il nof (cerMtinly) mSte a 

todVkc^ q^'^ti^n of this ; ha^fihg acted MO jrcrfrf undea iht^nt^ 

TON ' 9tatute$. ■ i ' ^' 

* , Mr. Solicitor General then proceeded to hw thiri *<itCel»- 

tion. * • '' 

Thirdly --he insi&ted that Di^ Ketoyfi fiUomdkifis ^re 
hoand by 'the ntw >tatute«, 4n well as the mt of Hit O0I- 
le<^e : Ibf, as( lie bM not given nm etntutes^ these fetlovr^i 
ships are? to be conducted and boui^ by ^dMb yordinwjf 
statutes of the coilege; and the racier, f^r that lAiwf feU 
; lows enjoy all privities, and <iotne into the seirtority, in* 

the tavikt tfMnner ifi the rest of the fellows do. 
f 198 1 Mr, A^or/oM, co;i/ra— for the college. . . - ^ 

^ ' -* • This case stood orerjinonlertosee-whatwas^tb^stato of 
thecoWege^at the time whew Dr. KeiorCs deed of covenant 
wns niacte ; at fvhic/i tinte, Bisfwp Fishers statutes iu6« 

The bishops of jE/y were ownem, ori^nally, of the site 
of the college; amij as biahpps of fj/y, trere ii^niny 
vi*4irorsof this place: from one or both of which ctfcilini- 
slanee*^, they might possibly set up a right of visitation* 
Now Bishop Fisker^s statutes professedly meim to obviate 
any such pretension; and to prevent the bishop* ot^E/y 
from cluiminga fight of visitation, vm general vtsitdts of 
the college. Which position Mr. Nopfon eHdeavomreU to 
prov6 from Bishop Fisher's statutes. And he said that if 
the statutes were to be construed Otherwise, it would 
occasion h clashing of jurisdictions and the utmost con* 
fa^ion in the college. Astonny power or visitation that 
the bishops of /i/y may have at common law^ he said he 
did not mean to dispute that, with them : but as to the 
claim of a gen era l visitatorial power over the college, he 
praved leave to fkclare in prohibition; that it might be 
solemnly deternirned upon reconl, and that each side 
might have an opportunity of appealing elsewliere^ if dis* 
sittisfied with the determination of the court 

He strongly contended, that it was premature, to deteN 
mine now '* whether the Bishop of Ely hadjurisdiction;"^ 
Htat there ought to be.arulefor the plaintiffls to dtc/tfre .- 
that such 'was the c*ourse of the court, and it had noi beeij 
usual to' examine the matter upon shewing cause: after ft 
declaration in proliibition, the Whole would, appearlatiotk 
record, be sol^ipnly judged, and die judgment n»ight^ 
reviewed upon a writ of error. ' • 

• Ldau MAMsiMBiift-^Jf' the patty wh6 applies for a 
^ohibitioahaii a right to dedare, though tke «6urt%hou<rl 
ffiUhik^Miktl&t the moti<m ; a rule " to 6he w fcausfr ^¥1^ 

Hilary Tenoi 90 G«o. S. 199 


thepfobibition 9boold bqI be granted/* is' to no, pur- 1757^ 
pose; and bearing counsel i^pon the ^uffiQ^eKy o^ that .«'^^ohn*s 
cause is tiiM o^mpeiit. . . . -/ .;/ cjol^^gr 

. Wben.the.Bmtteraee«ia.#^&l^/.tQ,the^C)9iMt»up9n a v^ 
<yMBticii» of fftct ov law, ttas plalotiir 1ms \mY^ %^ d^iace ; .ro^niNci- 
that the parties may have the tact properly tried^fey.xa fay, 
juqFoct tbelaw soUdiHily 4:ow<fera4 »»jin^ cniise- .v. r^ hco M 

when the court is cli»irly of opinion that there fs suf^^ ^^ . ' * 
^^Mtgioatid for the pf0hiJ^ttoi|» therde(iM^nthap a 
rig^t i# put the plaioUif to declaMTiii t<hat» bi^^iuri^dittuiia'. 
nuiyi Mt be lak<^ f ram him* in a.fturomiMrjr ^^y» whiere .no< 
Vfiitof^anPQr wiU )i^ Buttf tbe coart be p^r/y Qfi>pi- r iqo "I 
nien ib^t tb^reia no gmuiii'for a prohibition; iiou^ ta * ' -* 

be deoiedt firtVmrtpntHng^th^d^&od^nt t9 exp/t^nc^ jvudi 
delaying^ in the^meavtiroe^^tbe exerlHse of ^bat dfijieaia 
to them a /a«^«/ jurifdiaion*< . ^ / < 

fiilJMfiadtc|k>A« tlie seiitlince. wiU be. a. nuUii^; and upon 
any.ajUenoipt to exeout^ or anforc^ il« ibe whole may be 
tried in an action. The plaintitf may also apply to any 
Qlker, oo^ft 'i9t ilV/i^tmimUrfkfiHi -for a prohibition ;^nd 

JC, in Q^aes^ef this kJMdyfihii! court ^qiUd tpo easily 
yieUitoJMiqg up tbe^maAtei'^ by; \tUmg the plan^tiff declare 
i»!fMr/lbibttiQo>; r^^M would coiQe toa>lf^t an^ ^9t 
toomiicbv i\, ' 

I. wa$^Teiy d^^aicoua^ « aa :there is no fiu;t di<$pi||ed» to gP ' ' 
fully if»lU> ftbe argument f|aa»; wd^if I aa\r no ^rpfipd to 
doubt oCtbe biahop*s jiuf iftdi^tion aa\vi€^tor;itf^at;9p-utt^ 
neccaaaiiy d(2ay,f;eii«/iwi» and expeirce< 

The:* Mri^l^ifaaltor pi- the- opmpla^t iIq; tlj^, i(iaitoj; 
ia i^ jcrgmp^ilion. /or *pi\pent lOftiiiteuaBcci and .^ac^ox^i 
upon ^an^eemo^nai^ytoundaJ^^;: the pai^ oUff^^coff^ 
t^tiofiiis.a conimv^Hfd ei^ioHi which i)» M^qf^pt; tp 
eBga^|Uidl^)in»9(te tbi^.«l|feqM)», ; > ., j, |, . 

1I91 eompasaion to tb« candid^teai ^ fori tbn B^f^^^f 
thia Iea«»ed.bqdy ; tb^ diapu^^^Af uol I9 bci;su|feri^diQ. 
coiHiMue toHgerihaniia.^aolutery unavoida^Qii, .1 nt - 

// the plaiBtijOr mic|it» n^fff rfgA^^.^ni^p^r.tQ i^l^re 
in tpiobibitiopr tb|^ 4s^^fie§um^ wipaldb!^ fat^iUiP bqth 
naii^faitii^s. ^be cci\^ej,.^^^^m,',{h Q< the P^^9iii^y; 
wiui^ .detefiyiittea :^e,hody»^i»ouid jiuppqrt ^he (dlectioo. 
tlkf^cr biid/niiid^,{«Dd oifiy ^m\y k^^, |b^ ir^hi^pr Pp ior 
X^W^.tb^.publictfock would b^ appU^d^to^^fr^y the; 
9bafge« . iq.ibefmeao time^ electiooa of nttw ffm^wa^n^ght 
ap|0<l%; ^tjlieijr validity anight dep^d/Q|>m ^be.rigb^JA 
dispute; the election of -maat^i^ might ^:9m^of^;,gfesJ^ 
abuaeBf. inaucha stata of coafuaicm,. woiiLdi n^y^aliy 
4mAiin.i.<iiU.aciplii>e cofddupt b^Keptup 1 WMH^)>^^ 

goo Hilary Term, .30 Geo. »* 

17^7* foundpr. The reason of a visUor would be de6lroye<£r 

ST, John's He is appointed and made absolute upon */A» principle^ 

COX.LEGB ** that,in these societies, ejrror of judgnient, thechance of 

y, ^* partiality; or Injustice, i&;ai less evil than .th« duration 

TODiNG- " of conteutipn :'* but if, by diisputing bi$ jurisdiction 

TON. without ground, his exercise of it may be piotsftctedas 

long as a cause cau be kept up for (delay, by parties whO' 

do not regard the cost8» the uiembers of everycoUege in 

both universities wbo complain of an injury done, must be 

j^ 2t)0 3 subjected to bofb inconveniences; Igt to the law'* delay, 

iii tue most deliberate method of judiciar proceeding; 

and,atlast» to tbe award .of an a,bsolute judge^ in the 

most summary method of trial. 

If wear^ clear " that the bishop has jurisdiction,** we 
should do injustice in the present case, and set a bad pise- - 
cedent for keeping up groundless strife, if we did not rfi- 
charge the rule* And therefore I thiuk, the niierks ahould 
be fully goue into fiow.. 
As to the a»eH/5-r— . . . , 

[2Duni,SlO.] The 1st qu^tion i.s ** whether the Bishop of £/jr is 
" visitor of St. .^oA//* college, as ta the election t^'fel^ 
*♦ lous und Other officers;" (for so is the suggestion ; 
where tlie averment is " that be is not visitor m that 
'* retpect ;" and tine inaster and senior fellows make the 

The Sd que^iou is, ''. whetlier, supposing bin. to hire 
" this poweur,. as* to the fellows of the oi*d foundation,. 
*' he has also the li^e power ^ as to tlie fellow* of this hew 
** ANNEXED fpundatioq of Dr. Jwc/c^aW 

The visitatorial power, if properly, ejcerciaedg viitbctut 

ex pence or delay, is useful and cotiTcnient (•< c^lieges, 

However, (be that ^s it, may,) wq inusttak^eit^ as it'k 

now estabUshMd. hy h\\ I and it is now settled. -and esu- 

^yjj^^j^l^j' blrshed, (since the case of* Pfiiiipn and/JBii^;y iAvDom^ 

106. anoSkinl Proc.) *' that the jurisdiction of the visiter is^^imnafy^nd 

ner 447. '* uilhout appeaUrpm it." 

Show, f . C. These foundations of colleges are to be considered in l«o 
55>&. i7>«M, viz. as Uiey are covforations^ and us they are elo^ 


As eleemosynary, they are the creatures oftiefoufider^ 
heuia^y delegate his power, either geuttfally^ox sfecialfy; 
he may/prescribe particttlar modes and manners, as U>ilie ' 
exercise of part of iL If he makes 9, general visitor^ <«b ^ 
by th^ general words" vidtatwr sit^") the person ao coqf 
stituted has all incidental power: but be may be rm^irpte* 
, ed as to particular vatances. The founder may 
appoint a special vmtor Jbr a^particular purpose, and Ho 
farther/ The founder may make a gewera/ visitor; and* 
uet appoint an inferior particular power, to be ex^outiKl 
without goings to the visitor in the fir&t ioslauc^ . .^ > * 

Hilary Tcim, 30 Geo. 9. 20 T 

No teAmcalpreeise form of words is necessary for the 1757. 
appoifttment of either general or special visitor. In ag^. joun*s 
caaeliefore Lord Hurdwicke^ on 21st March 1747, At* college 
/ormy Qbundv. Talbot^ in Cbancery, *' the chancellor of y. 
*'•: the university was held to be general visitor of Clart toding- 
'*' iUl,'Wk/umt express words of nppolntment :*' but it ton. 
waa in^pUed^ '^ fVom Various branches of the visitatorial 
^Sipovar being expressly given to him ; from his having 
** th6'interpretation of the statutes ; and from an express 
" exdiuton of the founder's heir," Therefore it musk 
be'collecstod from the whok purview o{ i\\e statutes con- 
sidered<togetber» " what power the founder hcakt to 
" give to the visitor." 

•Under* these general rales, I will now consider the pre- 
seafe<aiiev-as it stands npon the statutes of this college. 

Tbe^ndation of this college is to be taken (as to thi% 
queaboB>ii9om the statutes of Queen 'Elizabeth: which 
arethe now governing constitution of this college. These 
statutes restroe to the crown the legislative power: so that 
the oase of altering the statutts is certainly excepted : 
if md^ power Ik included in the office of visitor. But 
where e&M^ ^f^tatutn has been given by the founder, I 
sboykl doubt extremely, ^ whether a visitor can alter 
** those statutes, o^ give new laws :" (whatever may have 
been the notion in former times.) 

AiiL OTii£ft visitatorial power is given to the Bishop 
of jB^^ by Jthe statutes ; and principally by the 2d Chap. 
De Eiectione Magi'sf ri, the 50th,De ambiguis interpretan^ 
dis, and the 51st, De Visitatore ; (for the rest of the statutes 
are leas clear and explicit than these are, as to the proof 
of this point.) 

tiis lordship then went minutely throueh these three 
statutes, and shewed that they gave the Bishop of Ely 
tb^* gpieral power of visitation: which he specified in 
HUMiy instances, and particularly in the words, ** vhita^ 
** tionem hujus coilegij episcopis Eliensibus crnnmen" 
•• dmrnter 

lo the case of Green v. Ruiherforth^ iu Chancery, ^d [8. C. 1 Ytz\ 
May 9 1750, upon so much of these statutes as was then 462.] 
sbewn^ Ld. Hardzcicke gave his opinion, "that the Bishop 
** ofJSfy was general visitor of this college; but that be 
" coutd not make new statutes ; and it he should at-* 
** tempt it, the jurisdiction w6uld devolve to the king's 
•• courts, as in the King v. Bishop of Chesthr^ the case of 
** MakeheUet college, Fasch. the first of his present ma- 
•* jesly."* «V«fStrMig€ 

More statotes are now shewn'; but nothing arises from 707. 
them, to vary this construction. 

5f«abi»g appears upon the old foundation or the dther 
statutes^ to impeaeh this constrNctionr 


Hilfunf T^Tin, 30 Geo. 3« 

* Vide ante 
188. com* 
pared wilb 


1 7^. Tii^ viaiUi(ori9^l4y]t9^r as alioo^t as strongly ghsra bim 
8T, jQ^als^ hyMxe^ plcjriita^ute^, a^by tUe i»ew ; thf diKrence ia, that 
io^tthe^uew.aM^M^^ ^/^!^biSVP^ <^l&^se in re^traiotof 
ihebi^hppiSvp9wert;ta)yax48ittheend.of the old gtai^te 
I)eVi8ita|4Ke^ U*^mttte[4' •(. r- ^ . ,r - 

WhiLtxi%|b|3|f wd ci^ oQt reatTMQ the p^ivf^r of .tbe 
Bi8bop of Efyn w.strofgly as may at iinsb^ight appeiir. . 

The vieaoiog: of tl^> pip|(UiOi^V|eew» to b^ tbat fie 
shall claim jio right as a co^uwkn, wasi owmi: 
of. the 6it^;. ^it only act as in pt^er colieges,nrAcjrc ike iW 
nU foiinder, . Ap4 iu.opUege^ wWeUe i^ 9iot ConiMler. 
lie loay ai;l uxxi^ poivers of visitatioa ddtguted to bim. 
Hov^teverj. be the meaning as it may, this clause 4A (oiaHji 
omitiedinQ\i^Q» Elizabeth's sX^UUe^. 

,1'his is nQt tbe case, of expuUiauf, wh^te ikfi maiiter 
and four senior fellows are to •conspftt. The jw?iv^ of 
Judging awd giving reZie^ A>pon comflaiids and «|y^^i^{ ia 
ii|cid^ut;toth9o8ice^f general visitor; qq4 if tbia:caa# 
related, to one of tho old f^Uows^ip^, tbe statutes. bav8r 
1^ t^e visitor uiid§r no restcaint^ as to the jnode Md 
manner of ieJiewsinff^ it- > 

Asgenerii/ wi^^Uor therefore- of thi« coll^ (whixib I 
1 . tiii^k clearly th|B jl^i^hop is,) he vyouW. qertaihly: bavo ju- 

rJ8diction» ifth^.a{]^ealmlated tp one ^.itJI^t^ldf^lkwr 
ships. AV,^ich brings ra^ to the . 

^JKSCf^nd point— •• Whether the visitor of an .^^^foundja* 
** tion, has the. hhe pow/e^ and jjuriiidictiqii .over a ii^w 
**^ Aif jN^xi^ foundation, as be bas pver the ^4 uwJ] { 

U iaa Qu^tipn of extent and^q^nseiiHeoc^, ..... * v^ .^ .« 

in this collegff tbeFe ar^ thirty-it^o originfi^ .{ell^>v« 
shjpa^ aiiC) twenty-seven, upon annexed fou^dqii^i^ 
* .l'(ja(|tbat the gmtral dnethvd q{ i9tgmt(iif^:(^i9mk^ps,' 
is by i^(kntwi€, and i»ith a cluHsti^di^tm^. : I api>Fehi^od 
that this fl96tbpd took its me from the old t^iires^, by 
dlv^oe seifvicep (which - diS'er somevf bat frcMo^.^nnresr 
in ftatic ui^aigne.O where thedongii; bikd a pow^ lof dis*^ 
tress, pf cpnunon right, wbeo the service was ,(«ertaifD«' 
Out tbi3 is pHly a conjecture.) .....; ^ 

l.l^ve piociured information^ coac^ming ,^st of^tbe 
cqUeges in Oxford and Cambridge : ai^l 1 fiipfl tbat:fli#s^ 
oftht^Qhf^tolkgeii in both universities,. o^of^is^ ai)4c4^< 
made up, (less or oaofe.) o£ iifaaAfiR^p^ >^Uw?(f^i^tL 
[ 903 1 and ti^r^iyi B.Y itfPKN.TVa£a.tpo»; Ai|<iaU,^b^sa^||iire 
considered as part oJ the old tcdy; tades\ ti^i%i^%9»^. 
pa]:ticiAar e^o^ti^Hi^^iQs^^ieitfriiia.c^tbe Hew.ffmii4pt- 

There was aT^aje^ie^b ^"^^4740,) of JJnifHisily.C^. 
l^ge in Oiforii^l^nvled. Ji)y,ltiqg*^^ri^l);^Mrbe|« W^i 
of I>tfrA€ii9».a(terwi^4%/9Mmiedi:^o^ fellowc^ij^ 'f de* 
*' proximis Dunelmis pisurtibus/' A complaint waa. 

Hilaiy Twm, BO^Gteerf- 203-«H 

Mftde- !»• *toit UM diiMDcelkWj at Gi^i^t^kt ^viiiht of the VfSf. 
€0lk^ ^fi tight of th* Ifift^* fehd it iVte- det^rfhibid g^ ' johm's 

were considered as subject toth^g^tiersi vi^Mt'tf IM foiitBrc- 
0/«Pfduiilfeti<ytt. In iKi^tapaidi^' Ldrd' flit>^<f,;;^idte <6ok ^on* 
coglrisrtincej and tkte'eo(iegtf'ii)£¥^'^Miid4^ K&f objectionl *' * 

^^liv the caste of tlie AtHit\ftfX5kne*^ctl V: TObati which I 
iMntioii^l before, the Ootlntdss 6f €&!« wte fomidress 
of CtaH^hdlL ' 41>ne Ffe^eiHilh annexed* 'twoft I Ibwshrps ^ 
iv^ktme ;' (I do not- observe' there isttnf fclsuse effdis^^^s 
in in) ' IMie oottteert w«r for onif df Me^^ fe)l6wsfttp«. 
LordZftiriMdAe held <* that the' iftiestion bi^lofl^ to 
" the general visitor of t^ college: thatti^o^ feltowships 
'^ iDgf^afted must be subjeiit to the jtrris diction and die- 
•* cIpUM exercised over the oHiinat foundation/' * - ^t' ' ' 

Iil'th^\ of f>f. Green t. Riakerforth.SfiiL (winch ^• 

f ttiefftifoned before,) both Lord Hardnfkke and 8h* X 
SirMge; eicjirewlv laid it ddwo, ** that aea* ihgrerfted 
« -ftlt^rfbif^s, if nostattites were given by tlief fouwdei^ 
" of them, must follow the onjfino/ fooMationi arid b^ 
** sUtgecttothe^Tf^ discipUite and judicature. ]' 

I atn satisfied that, tipon mature 'relAectioo, the col- [^ '^n™-^^*'] 
lege* Wuld tremble at the eonse^tf ^^i^ of Mning every 
electipn into an^ of these ingrafted feUbwship^, or any 
oriier disfmt€*9'ccfncevniri^ them, open to cbufts 'Of taw, 
aftd^he «3f|lene^ and delay attending suits in thtoi. 

I think Vkavly, that Dr. KetM did so toiutS&' and in* 
tend** that hia^vew ^annexed fdundatiofi iMULl^ -na ni*- 
" j[«l lo <hfe laid statutes and constitution- of the college, 
" in case bte hims^M' should happen to dte Without mik- 
•• ihg any ofdinai^ce by will or otherwise*/- -^hese ftl- 
lowa<rf M' foundation are to bt^ elf ctdd 6s the other fel^ 
lows^; an* at the tim^ limitfed by the statutiM. fhey 
areto^enjoy ihesffme Merifes, ^c. as the othe# felhWs. 
The dath^ they were tef take during the life <tf Dr.*f^i«p 
"-ld-''dbey aucb statutes and ordinances a^- should t^ 
" made by him," is qualified wifeli this restriction, ^i6 
'^<<Aai^tltd^^d statutes should be conforthaWe with the - 

'^^BmiAfd^ of the/d«f/irfr^r^ of the said college/* which C 204 J 
iFfelxslfariiy impHea that they were, in the first pUce, to 
oi^ihe statutes of the fcftmdt^ss Of the college. 
M^^' explained this, by m^y dtMr passages in the 
sdoW'iifdentave.) \ 

4M^; eo v^mnu^^the hg/taftei felhtt beeome^ 
ijMeci and liable to the jurtsdictiop of the visitor over tht 
felMtii6^^t cMI^^^^ fellowa are ex- 

acily Me -ifaiM as W^the ^a bFthe fellows, e^ctepe hs 
te> the monty ttrtsiiig-to them fi^m the hm' fotindatien j 



Sa> Hilary Terpi, 30 Geo, 9. 

X'Yffj^ and are itititieti to qU the like privikgeB as the old fouti'^ 
8T. John's ^^^'*'^ fe/lows are intitled to.. -, 

coitEGB Theobjectlon ^ the biatiop's right of Tisxtitig in the 
present oase» arisen from the power of distress heregrreti 
i«T the forfeiture, in case the college do not obserte car*- 
tain terms which are prescribed to them. 

But several other engrafted Miovfship^ are just in the 
snme situation ? and therefore it would go a great way, 
(in point of consequencey) if, upon this grouad, we 
U^ere to determine tnetn n ot to, he part of the oW foun-- 

These are provisions diybuso intuitu* And indeed 
the digress would be a very irtADEc^UArB remedy, to 
the person ir^ured: nor is. it ev€n gice^i toMe p^sfmin^ 
jwrrrf, but to oMer persons. So that it 19 cnamfest^ that 
this clause of distress, given tr) the ckweh of Stpnthwell, 
ought not to take away the- spbci-fic remedjiffrom ihe 


It seeins to me very cllsar, thatthe bisltop is as mucb 
judge of MffCOttiplakit, as if it related co oneof the o/<f 
fdioW8hips>i and if it related' to imc ot* tlie- eid IWllow-* 
ships, I think the jurisdictioif of t be bishop, as visitor, 
most evident Therefore, I am o€ opinionythat the cause 
shewn against this rule ie eufflcient : and it ought to be 
discharged.^ t^ 

Mr. JusCjDMtson concurred, in the wh(»le, with Loixl 
' He thought clearly, that the Bishop of E//y was ge- 

neral visitor, except io the instanced particulairjy qx^ 

Kopurticulartechrticnlttords'VLTQ necessary to create a 
visitor. And so was the opinion of the court, in Dr. 
Snap^scsise, H. ^ G. Q. £. J£. as Welt as in the case of 
Philips V. Burif. And the main business of a visitor, isfto 
interpret tiie statutes, 
r 205 1 Now this deed^ though witli a clause of distress^ cannot 
take away the authority of the visitor: it is for anatber 
purpose. And Dr. Kdon never meant to exclude hisscho* 
iars and fellows from the benefii of an appeal, which the 
other fellows of tlie cotlege enjoined. And his feliows are 
sworn to observe all ihe statutes of the college. 

The distress is very little more than the form of the 

. conveyance ; and it is given to the church of Southwell 

too: but surely it is 1^0/ an adequate satisfaction rotke 

H^stcrr.T) fellow, who has a right'to be'elected into the 


The visitor has a tight to the interpretation of ttie 
statiites; and the ingrafted fellow has a right to appeal 
to him ; arid the clause of distress doto not take, it astaf 

Hilary Term, 30 Geo. 2. 206 

from him. And there is no mannep of reason why the 17^7. 

insmfi^ftUaa sbookl not have the 4WMe privitega as the st. j ohm's 

oM^r fellows have, coi.wbge 

lam BO clear aboat this matter, thai I thiuk* there is y^ 

no rea^^on forauOerf Dg the parlgr applying, for theproM* xouing- 

bittonto deeluTB in prohibition : but tbe role. ought to be -^oa, 
discharged, . ■ . .• 

He took particular notice of the ^th chapter of 
Qaeen Elizabetlit statutes, Ao\\i interpreting what might 
bo ambjf^^oua ocohsc*ure« Wiii^U statute^ he agreed, 
floes reserve to the queen a power to add or dimmish, 
reform, interpret, deckire, ^change, alter 'or dispense, &c. 
/iiitrAtf oocTRtNAj4i8CJpOj//io is espiessly glreti to the 
Bhh»p 9;f Ehf, in tlie very Mimtf statute ; and tbe college 
aretberd}y in joi ned, ia virtue of their oath, and under 
penalty of perpetoat amotion, tx>* obey his determinaiiott, * Vide ante 
vUtrfTttaiumt and deo/ardtiiin. 's^* 

He declared that he had no doubt tiiat the general 
power ef visitatiea w given to the bishop; nnd he said, 
ha saw no inconsistency in the statutes* As to the clauae 
oidistresi^^That would give no sort oi itdequait Uiti^ac- 
tioH to Ms «BiBCTeDjfe//0iD; who comes tor a* spedAc 
rtmetfy (or the iujiiry done to hin\. Therefore he declared 
bU concurrence .with Lord Mans^ld and Mr. Justice • 

And P^r Cur^ unantmousiy * N. B. Mr. 

The auLE was discharged. Ju«tice Wil- 

I not was Dot 

preient at anyone |)art oF thit motion t being cnsaged in the court of Chan* 
eery (an one 6t'thc lords coinmistionen,) durto; the vktMe of it. 

Ear! of Bath versusABVZY^&vii^BjBK^ 

A CASE out of Chanoery; for the opinion of tbisf 206 1 
court. '^ Friday. 4lh 

The question was, whether an executor of a cppY- February, 
H<it,»ER/o^aTBRMOF YBAHs.wasobligedto beiid«iV#&e/;^^j^^ i .\ 
(and, consequently, liable to pay a Jint upon »uch adniit-^f J^i^^^J^' 
tance.) * of copyhold 

The manor in which the hinds lay, was Siiolu Newing-^ land§ must bo 
tm in Middit^ex; the defendant, Mrs. Abney, is lady of "^""''^cd' and 
this manor; the pfeniisea demised, were 00 acres <>f the lordT(a) 
Btfeadow, let at 125L per annum. ^ [VideVin. 

Cop. (16.) 

i(«) Chancery will not compel the lord to give his io«.9Gilb. 
tenant licence to lease. CA. Pt. 572. ' LT/lLh 

Cimtom that on payment of 10 years rent, th^ lord 9,conUiU 
shall licence to lei for 99 years ; and if he will not Ijcei^ce, 
tt^^telmat my let wUboutj »4judged a good cuHom; 

206 Hilary Term, SO Geo* fc 

J757. ' Tto^stete^of the cage twis pretty long and fmniotilar: 

SARL^ jbttt -the quteliibti ivaB Ibort: {a) viz. *'wliel<ier ma 

BKTH ^*' ^'^t^J'JTOR of a tenant for years, cotoin^ int^tbe 

^^ 5ti€ofyhold, ttsiicliattel Wftrf,' finder his teetator^^wiit, 

*ABKXY *^^^ obliged^ to be admUtidif' For the counsel for the 

. * ^plaintiff; Acknowledged tiiai the being liable to a fine 

>vould couMMutnily follow a necesaity of ^-admittance: that 

is to say, tiiey admitted that if he ivas compellable to 

ooine in and be admitted, he wodld also be compellable 

ko pay a fine. (6) - ' 

The full »tate of the case was in substance this — I ' 

That Henry Guy being sensed in fee of sixty acres of 

Ineadow In ttie manor of Stoke NezctNgtdft^ let at 1^1. 

per aiinnm^ the said Henry Guy surrendered the saoie 

to the use of his will; aiid bfnring so surrenderedr (in 

a proper maimer) to the use of his will, he died sei^ 

/in fee; having tirst duly made his will, and thereby 

devised to John I'ayhur and Arthur LaA'e, thai reStecu tors 

fltit] administrators for ninety-nine years, if thr^ persons 

(in his said wHl named) or any of them sbou^ so loilg 

live; upon several trusts, (c)vlz. first, to the Use of the 

present Earl of Bath^ for life; then to ' fcis^issue imale^ 

(viz. first and other sons, 4rc.) in strict settlement; tiien 

m the like manner, to the use of the earl's brotbiH^ 

GeniBtal Pulteuey ; then , to the tate Mr, Datiitl Pulte^, 

yet the licence sedms uniiece^ary, ifthtre bearefasal, 
since it may bedOne without it. Gitb. Ttn. 294. 

To prove a custom to grant leases for years, itA% not 
sufficient to prove it for thirty or forty years ; but it ought 
to be " from time whereof, &c.'^ Cro. Eliz. 3. Std 
vide contra^i Dahv. 190. pL 1. in n. 

(a) I'here were, in fact, two questions, but the second 
was a consequence of the (irst, if it was decided for the 
lady of the manor. Vide post. 2 1 8. ^- 

(b) The devise was made by will founded ofi 'a sur- 
render to the use thereof; and therefore it was the swne as 
if it bad been made by surrender, as the lady of the manor 
or her steward made no objection to an admission for a 
term of ye^rs. 

(c) The devise was to the trustees for ninety*-nine 
years, in trust to pay life annuities, and on several trust^» 
not for the benefit of Lord Bath ; and after the delermi* 
nation of the term, then to Lord Bath for lite, with re* 
maioders over. On the testator's death, the trustees were 
admitted to the copyhold premises as joint tenants, se- 
eundum ienorem testamenti illius, and paid a fine of 2S0K 
which is under two ^ ears and one quarter value of tUe 
estate. ^ 

Hiltfy Tenn» 30 Geo. Gt §07 

1«like «i«Mr: then to tiaie isae of the EnI^fJB«M ia 1757 
fee. And after %h^ death <M' the said UsU^r, tbe said £^^,^0, 
Ta^ur and Xa^«» lUe Irustaea, c^laiiiied^ to be admitted •axh 
4tcordittg to 4he ienor nfUke will ; [V^ p^^. 913,] aod wei^ ^^ 
IhereUpOo adfuitted according toi th6^4u§toii^^theMid ^^itby^ 
laanor? did fealty ;attdMf(i«/iie«^390U^)r'tbetb r 4907 'n 

,. Oae4^tiie three itves ia stn^eitl^d; the other two^ 
filling; and boUviof the aaid two lesseeft,' JMkm Ta^Umr 
and Arthur Lake are dead ; but John Tayhtir nurv^ved 
Lake, 'fSMylaur^ lhe.«u reiving, (but now dooeased) leasee, 
appinie^jl Dr. John Tayhur zu^ aoother i^ersft hiiatxe- 
ciitQrs; and Dr. Toylour is now the surviving exeeMtai of 
Jai« 7V^/oiir,th« original and surviviiig co*le8aee.<4t) * 

Mes. Abmy\% now lady of the manor. 

-It'did not^pear to the lord or lady of the maobr, 
tbatdtibe lessees* Taylmtr and Lake^ were dead, till 17oftt^ 
M^wniihisifact waa fouud by the homage. 

Tbsp the executor of the survivor, (which was Dr. 
Jditn Tajfiour^ the surviving exeautor of the aaid John 
l^ylour the original to-lessee) was aoiniB^ned to coiqe 
in, and be adntitted'; the jury haviag found that ,the 
origiual lessees *were botlv dead: aad piociamattons 
issued, ^'c. [ti.B. The proclamation was for the Ah> of 
X^AM^or otfai^ person claiming, ^c. to come in, ^^3 

It is stated, that the general custom of the manor is, [See 9 Wik 
^ 'grant the copyholds for lil'e, or in fee; and that no *^^-] 
07Mifc|( Mstanee tAsigrttnifor years, beside:^ the present 
instance (now before Che court,) has been known in the 
99id Buaaof^^f Stoke NewingtoH, 

. The.QfJse further states, that fine^ have been usually 
];^dt(|i9ii.tfrfmi«ifpn;(jfr) and that the usual m^e of such 

{flJLtAftpr Uie^dealb of Taylour, the surviving trustee, 
Mrs. Abntyy the lady of the manor, caused proclamation to 
b^^nied^e libr somebody to come and take the estate: 
Wiieienpon the now i>laintilfs, who are the remainder- 
men,* the representative of the surviving trustee, and 
tl^.4wo^#urviving annuitants, filed a btU, and upon alle- 
gation tha^ the trustees were admitted to, and paid a /iue 
fo^ttb^Wl^eierm^ and thai the representative of the sur^ 
9ming ^^ee, baa a right to be admitted without hne, 
{\f^^^sxy. admiasion be necessary,) they p^yed that the 
lady of thQ. manor might be reatrainedfrom taking ad- 
vanta^ of the forfeiture and from bringing any eject-* 

ik) If there be any exception to the rule, that admis- 
sion universaUy gives a right to a fine» it is in the case of 
» widow*s estate, or of a tenant by the curtesy ; as to 
wbicb^ vide Gilb. Tenures, Ed. 1757, page 392, 223. 






I 208 3 

Hilary Term, 30 Geo. 2. 

fines has been a year and a half's improved rent of the 
premises to which the tenant is admitted. 

And by the usage of this manor, the fine usually 
taken for two lives, is as much and half as much, as the 
fine for one life : and the fine usually taken for three 
lives, is as much and half as much, as the fine for two 

The two questions made upon this case, and sent to 
this court for Jtheir opinion upon them, were, 1st. whether 
the surviving executor of John Taylour (the surviving 
trustee of the /erm for ninety-nine years) ought to come 
in, TO BE ADMITTED tenant of the copyhold premises 
in question : 2dly. In case he ought, then whether the 
lady of the manor will be entitled to any fine upon such 

This case was twice spoken to, in this court : first, on 
Tuesday.lSth May 1756, by Mr. Pratt for the plaiutilBr, 
and Mr. Sewell for the defendant ; and a second time, on 
Friday^ Ath Feb. 1757, by Mr. Nofton for the plaintifi', and 
Mr. Gould for the defendant 

And the two questions being reduced into one, as is 
aSove-mentioned, (it being agreed ** that if tiie executor 
** was compellable to be admitted, he would consequent- 
" lybeliabletoafine;") 

It was argued, on the part of the plaintiff, the Earl of 
Bath, that the fine becomes due to the lord (or lady) of 
the manor, upon t\ery change of ike estate; not upon 
t\iQchafige of the tenant, where there is no change of 
the estate. 

For where there are several remainders, to several per- 
sons, thtadmmioH of the first taker is the admission of 
EVERY person in remainder. 4 Co. 22. b. Copyhold Cases; 
and 4 Co. 23. a. Case the 6th. Cro. Eliz. 504. Gyppin v. 
Bunneu. Kitchen, 122. 

Ana beref 2 fly/oMf and Lake were admitted according 
ito the ^enor of their testator's will*, which must have been 
to the zchole estate comprized in the will. And therefore 

N.B. In a manor in which the tenants held estates by 
copy, to them and their heirs, by the words (nbi et 
sms) for ninety-nine years, yielding a rent ; and mention* 
ed^ that by a custom,, the lords upon expiration of every 
estate, ought to renew upon reasonable fines; the lonl 
insisted that there was such a custom to renew, but the 
fines were always such^ae the plaintirfis could agree 
with him for, there being no benefit to the lord, during 
the ninety-nine years; but the court declared that 
the plaintiffs on payment of two years value should be 
admitted to their estates. Morgan t. Scudamortf 2 Ch. 
Rep. 134. 

Hilary Term, 30 Geo. 2. 209 

the /fire must have been proportionable to the value of 1757. 
the trAo/d term of 92 years: and it is against conscience earl op 
that the executor of the deceased lessee should pay bath 
fliio/iier fine for the i^/ffie estate. Neither is he compel- v. 

I^ble to come in and be admitted afresh; it being the abney. 
same estate. 

And that no fresh admittance is necessary, norany /<//- 
ther One payahle, appears from the case of Dell v. 7//g- 
den in Moore^ZbS, unA tlie case Tipiiig v. Banning, Moore^ 
4()5. In both which cases it was holden and resolved 
" that the admittance of a tenant for life, of a copyhold, 
" is an admittance of him in remainder; and that no 
*' new line is due from him in remainder;" and in Cro» 
Etiz, 504. Gt/ppyn v. Bunney (which is S. C. with Moore, 
4(i.i.) Pophatu and Fenuer hehl accordingly; and that, 
because they have but one estate in law: and they held 
that onLYone (me is due; which the first taker shall 


In 3 Ler. 308. Tlie case of Barnes v. Corke-^Tr. 1 IV. 
i;.M. in C. B. it came directly in question; and Lord 
Coke*s dictum in 4 Rep. ^3 a. was taken into considera- 
tion, and explained to be restrained to special customs 
only: but the general principle of law was settled to be, 
" that fio fine is due to the lord, from the remainder- 
" man, wit/iout a special custom for it.*' 

And the reason is, (as Popham said, in the case of Gyp- 
pi/n V. Bunney,) '* because both have but one estate in 
" law, and the lord has already admitted to the w Ao/c :" 
which reasoning is quite applicable to the present case. 

Ifa copyholder" in fee grants his copyhold upon con- r onn 1 
dition, and enters for the condition broken; there shall L '^ J 
he no fresh admittance, nor fine: because he \s in statu 
quofjrius. Cokes Complete Copyholder, %b(5. So, if there be 
tv.ojoint-tcnants, and one die: the survivor needs no ad- 
niittance, nor shall pay a fine. Ibidem, ^'o the widow of a 
Copyholder, for h'.*r customary fn^c-bench : because it is 
part of the old estat'/, and is cast upon her and vested by 

So it is al}?o in dower, and tenancy by curtesy; though 
tfierc a new tenant intervenes. 

AToy, 29. Rrnnington v. Co/e, is full in point. Also Hut- 
ton, 1*8. Jurdm v. Stone, S. C. Hob. 181. Howard R'^ainst 
Bartlet, S. P. 2 Danv. 184. title Copyhold, hotter ^\.pl. 1. 
in point Cro. Jac. 573. Hdldoe v. Fratices Bartlet IV id. 
S.C. with HoiX 181. (but not this same po;nt.) ^Ro. 
Rep. 17S. fValtcr v. Bartlet, ?. C. It is ronsidend only 
«s an excrescence out of the original estate, by Ld. Uoi)art, 
pfl. 181. And an executor of a copyholder for years is 
within the same reason; for it is only the old estate 

Vol.1. P 

909 Hilary Tenn, 50 Geo. 01 

1757. But the cas^ of DEScstiTs may be* objected: for tbeit 

BABh OF ^^^ £8TATfi IS ihtHtmBf oiily the leiMm^ altered. 

BATH ^^^ ^^ ™^y ^ diflicttlt to enter into the true reanon 

Y^ of this* But it may be considered as a change of €$iate ; 

▲BM£T. Md as a new grant: the lord gave a new admittanceia 

new grant* 

But perhaps that case of descents may be an exupiian 
from the general rule. 

There are several cases in point; for the plaintiff: and 
no authority against him, except WatofCt opinion in 
Dedieoti*9 case. Dedieoit^M case itself in 3 Lem. 9. is most 
express in point : and Djfer^ 35 1. is S. C. (But Djfer does 
not mention this point at all.) (a) The-wife's interest was 

(a) This case is very clearly reported in thfer^ and is a 
▼ery strong authority against the plaintiff: forthe opinion 
of the whole court there was (according to that report, 
'* that the entry of the administrator of the wife, to whom 
" also the lord bad granted the land, during the non-age 
'' of the 8on,(thi^t was during the term,) was unlawful ; but 
" the interest which was in the wife, was a term, the 
*' which by the death of the feme vested in the bus- 
** band by the law and custom of the realm, if there be 
** not some private custom of the manor to the contrary." 
Now it is well known that the wife's term in freehqld 
lands will vest in the husband by survivorship, if be out- 
' lives the wife in his own right ; and that he has no occasion 
to take out administration if the term was in his posses- 
sion : but if not, he must then take put administration to 
entitle himself to it, the same as to other choses in action. 
Co. jLiV. 46. 6. 299. b. 300. a. This, therefore, shews that 
the court considered the term as an interest at common law, 
and this was the point adjudged. The other point there 
mentioned, which is the same as the point in the principal 
ca3^ there, was probably not taken notice of; because, as 
appears in 3 Leon. 9. there was a difference in opinion 
about it, andlt^wa^ not directly the point in judgment, 
though.tbere is a strong analogy between the two points; 
because the husband was a. new tenant, and holden to he 
. intitled by the common law ; and if tbecommon law gave 
it to him without admission, though be was a new tenant, 
on the general principle, that a term for years belonging 
to the wile willVest in the husband by survivorship, there 
seems no r^son why, since tbecommon law will in other 
cases vest tlie t^rm in 'the executors of the termor, they 
.should be obliged to be admitted any more than the hus- 
^hand; for it is not like the case of joint-tenant; for the 
'xeason why ajoipt-tenant shall notbeadmitted, is, because 
b^ was before admitted generally ; all the joint-tenants are 
expressly admitted ; but if Qot, the administration of one is 

Hilaiy Term, SO Geo. H^ S09 

fehtr^ atchattel-interest ; and ske was to have k. for six- t747. 
teen years: and ber second buab^wi^ wlio sucvii^ lier» ^j^^ll of 
backric as ber assignee, wiih'cmi fsi^iig osty.&m^ or heiug ^^th 

ll^eciidamiHatffatiQnof alt,»:C'(i# €i^«iH)^a(a^i'Biifc.tbat reasoip .^g||g^. 
does not apply to tbe case of a feme who hath a ternji/^V 
mam» ta «cepyboU^aadtJi$t)«waid^ iik^s husban^f^d 
dies, which is the case in Dytr\ andsibfrefore there j^niif) 
similitude bin tbds rrtpf«tulietffr«itiB ths^case in l>^and 
tbe caseof joiotmetfeii^ 9 >b4it the cas^oC l^be busbaii^ snii- 
vtving and liottliti^ daring the term, ^t^thq^tjU^y adu^l- 
sion, is more^ke the^aseof execito|y|}(^ao9Nmi#Hi4bfH;the 
busbaufLjixor tihe executors c\^im\hjimc^lwi^ v^U)^ com* 
moa law ; .aiuLas the^QUfiis not auiufict to aa.adiuis8U)n»And 
fine, thou^i \xi^ W9P pever adgiitted, there is nOf ri^^on 
whyjthe o^^ -^ 4ioul4 ^be stibject thereto;, and ditbcrt, in 
his Trei^li uiijh^E<h^73is, pag. ^p; 273. fid. 17o7. 

pag'^hOt^ i f^aliuVecase\n3l<o/i,9.and jC)yer251. 

and afte/ 4 notijj^ ibaf 6he judge'difcrs from the 

other t\yO(^^vtis iiis'bpliii^in m favour of tjie nght/6f the 
executdgp^,, to' (iavej tfie l^rt^i without ariy hew fidrfnit- 
taiice; tor tji^obseryc|i*Uiil opinion seems reayon^blei fpr 
they coui''T"^ Mrt^ po^tssion of the testator',' aija lia've Jit 
only to his u§e/\ ,'^^ ^' ; ^, ^ * ; 

Before this^^eterniination, all the authoritfes/of^^aVlea^t 
tbe great weig^lit of them, were in favour of the cxecJio/s,; 
and the'principfes on which other cases have beep deter- 
mined, are also in favo^ur of the executors; for'^t was 
holden uniforn^ly, if tl^e lord hath a particular estate in 
tbe manor; if his estate determines before the expiration 
of the term of years for wl^ich the lease was made, and the 
licence granted by him, that the leas^ will be determined, 
2 BrownL 40. And the redson is, that such a lord cannot; 
discharge the lord's interest any further than his own in- 
terest in tbe manor extends. Ciib. Ten. 299. 

It is also holden, that if the lord seized in fee gives 
licence to lease, and tbe copyholder leases according to 
tbe licence, his lessee may assign or make an under-lease 
without any new licence, G/7ft. Ten, 499. Though the re- 
ference there is not to the point ; but tbe same points are 
mentioned as of course, though without any state of the 
case, or any notice taken by whom, in 12 Mod. 230. ; and 
this reason is given, viz. ** because the lord's interest was 
•^ bound for ninety -nine years." 

N.B. If tenant in fee of a copyhold surrenders to one for 
years, it seems that he shall bold of tbe 4ord ; but if the 
leaae be made by indenture, there it seems be holds of 
bis lessor, Gilb. Ten. 175. ecUt. 1757. Note also, that tbe 
Jease for years was in this case, of tbe Earl of Batk ^. 
Jbney^ created by devise pursuant to a surrender to the 



filO HHary Term, 30 Geo. 2. 

1757. admitted. And in 3 Leon^Q* Brawn and Dyer put the 
BARL OF ^^^ present case in terras, of an executor of a copyholder 
BATH for years; and agree that be shall have the term without 
admittance. And the case of Otltry monastery, in 
1 Leon. 4. and 4 Leon. 118. S. C (twice printed, verbatim 
alike, almost,) mentions a determination of the present 
question, in point: agreeable to which, is another report 
of it, called //eydoit's case, in Moore 128. S. C. Egerton^ in 
his argument, of that case of Othry, vouchesa case as deter* 
r 210 1 mined in 8 Eliz. in C.\ B. which case is expressly in 
^ point with us. But the case itself ^ of 8 Eliz. in C. i). 

which he so cites, is not to be found. 2 Danv. 190. letter 
Y; mentions S. C. Sheppard's Court-Keepers Guides 5tU 
edit. pa. \36. and Calthiop's Mendings on Copyholds, 2d edit. 
|jfl. 67. is express in point: and so again, in j?ii. 72. te- 
nant in dower and freebencb. Tenures 272, 273. S. P. 
accordingly: (the Book of Tenures that has noname to 
it.) And Comberbachy 445. express " that the executors 
" of a termor for years of a copy hold shall pay no line for 
" admittance." 

They said that the case of Dell v. Iligden, in Moore, 
358. was but a loose note : and Cro. Eliz. 372. which is 

use of the will ; and in all such cases the estate passes by 
the surrender, and the will is only declaratory of the uses: 
therefore this case is to be considered in the same light, 
as if the teim had been created by surrender, and conse- 
quently the termors were tenants to the lord; and therefore 
on the death of the survivor, a fine would be due from bis 
executors, who would also be tenants to the lady of the 
manor ; and wherever there is an admission there is gene- 
rally a fine due : but if the lease bad been created by deed» 
and by licence, then the termors would not have been 
tenant's to the lady of the manor (G/7A. ubisup.): therefore 
Burrow ought in this report to have stated how the term 
was created; and the judgment in this case ought to have 
been founded upon the above distinction; but as it was 
not, but is given generally as law, with respect to^ all 
terms for years, in copyholds, the judgment, as it appears 
on this report, and as it seenis to have been given by the 
court, is not law, because it is given aS law with respect 
to kases, whether made by deed by the copyholder with 
liceiice, or by grant by the lord; whereas in fact it is law 
only in the last of thobc two cases.* 

* In the index, Tit. CopjhoW, the raae is put nghtly i for it b there 
Dut of a grant t)f a copyhold, which means a ^rant by the lord ; there* 
tore as there put the; case is right i and Qu- if in licences to lease* 
there are not frequently speciid reservations so as to |iieveBi aioj 
pngudioeto the lord I lor there are ia all or most I have eeu. 

llilmy Tenn, 90 Geo, 2. cj i 

a report of the very sftmecase, does not mention any such 1757 
question in it. ^f^i* 

And as to what was cited out of the case of Gyppyn r. *^^^ ^^ 
Bunnty, Cro. Eliz. 504. and Moore, 405, they said it *^^" 
was no more than a dictum of Pophamju \' 

Then, j^ the executor is not obliged to be admitted^ abkev. 
no/fwcisdue: for no fine is due, but opon .admittance. 
But the inconvenience may be objected, " that a lord 
" may be stripped of his inheritance, by copyholder's 
•• surrendering tor lottg terms (as even for a term of lOCO 
*• years :") and so the lord might lose his fines. 

But, Ist. This inconvenience does not rea/ly exist at ^yide 2 Yen. 
present : and, 2dly. The lord might in such case refuse 331. contra 
Co admit ; and could not be forced to it, either in law <•«« tembu.} 
or eouity. 

2 Buisi. 336. Foorde v. Ho^kins^ proves** that the copy- 
" holder cannot bring an action at law.'* (It is a most 
express determination in point.) 

And in equity^ they would not assist the copyholder in 
such an attempt. Comberb. 445. 

The present case is a lease to two persons, for 99 years 
determinable upon three lives : in which, the fine 
might easily, injact^ be settled by a proportional compu^ 
taiion^ if it could be done by law. 

The copyholder derives his estate, no/ from the lord, 
but from the custom of the manor : for a lord who is only 
tenant for life, mayadmit in fee. 

A ad " that the lord would not be bound, either in law or 
" equity, to admit, upon a surrender by a copyholder m 
•* fee, for 1000 years," Combtrb. 445. * expressly proves; r g j j 1 
" and /i/so proves " that in such a case, an execw^or shall *- 
" pay NOjtfue for admittance." which, it must be suppo- 
sed, was taken down by the reporter, as Lord Holt's opi- 
nion. (•This is no part of the case of Sandwell v. Sand" 
well; but manifestly, a quite distinct case; prbbably, at 

The lord's interest in his fine is sacred: an act of par- 
liament sliall not be construed so as to deprive him of it 
[y.Manwood'sDiversiiy, in Moore, 12S.) 

It would be very hard on our side, if a year and a 
balfsrack rent was to be paid upon every charge of an 

Therefore they prayed a certificate in the plaintifTs 

On the partof Mrs. ^i;zey, lady of the manor, it was 
agreed, that,*iu. this particular case, the fine and the ad- 
mittance must depend on each other ; i. e, that either both 
Ittlght be reriuIrM, or neithef could. 

Bmtt wa^ gajd that the reason of admittance, in gene- 
ral, aeperid^ upon the relation that subsists between 


Hilary Term, 30 GcfO, f. 


V. / 

[ 212 

lord and tenant: and that the admission of the tenflnt, in 
these cases, was personal to the tenant himself only ; 
and the estate depended upon the will and pleasure of the 
lord. He might originally admit whorrt he pleased,' on 
the decease of a tenant. Indeed, at length, a sort of claim 
in the heir at law/ to succeed to his ancestor, became 
established by cmWoiw. However, di great deal bi ill re- 
thains in tfre lord's power and . discretion : and the 
tenure is still (stVlctjy) at the lord's wilt. 

It was alwiiys n^cessaiy that the new tenant should per- 
soifally^ajypear : 2LXiA \t so remains still, to this day; he 
must pay his fine, and do fealty /« person. Co. Copy 
holder J § IP. and 4 Rep, S2. A. &c. f o the like effect 

Aiid ihey forfeit, if they grant leases without licence^ 
4 Co. Copyhold Cases. 9 Rep, 76. a. Comhes case. 

And they must be persons capable of being admitted : 
for it is impossible to adrtiit one who Is incapable of ad* 

Now no man is heir or executor to the tenant during 
the tenant's life. Therefore the thing itself is impossible, 
" that the admission of the first tenant should be an ad- 
" mission of them, aho^as heir or executor to such fiist 
♦' tenant." . ' 

"] The " change o/est ATE, and not of tenant, cannot be 
-* *' the true ground of the fine to the lord." For that 
notion would let in many inconveniences : and it woukl 
be most unreasonable that one single fine to the lord should 
answer to all changes of the tenant. 

The remainder-man may be tenant for one purpose ; 
fio< for another. Co. 4. Rep. ^3. a. b. 

Admittar^ce precedes the fine ; and is the cause of it. 
It is necessary, m order to intitle the lord to a fine. And 
this appears to be the sense of the legislature, by 9 G. K 
c. 29. "An act to enable lords of manors more easily to 
'" recover, their fines, ^ic" And upon admittance, a fine 
•is due. And I Mod. 10-2*^ 1^0. Blackburn v. Graves, 
proves that the lord shall still have his fine ; although the 
admission of the particular tenant be the admission of 
the remainder-man. It does not follow, that because 
the estate invested, therefore there shall be no admittance 
or fine : for upon descents, (where there is no doubt but 
that a fine is payable,)yet the estate is undoubtedly vkst- 
#Vij^ ED til the heir, hni Cokeys Complete Copyholder, % 50. • 

s Keble, 263. puge 63, is express in point ** that be in remainder shall 
S29.S. C. *' oe admitted, andpay a fine; although bis estate was 
•• vested by the admittance of the tenant for life." 

In thecaseof J5ar»es v. Corke^ S Lev. 308, the prin- 
cipal question, they said, was upon the forfeiture : and 
that the other points were only * incidental. (But the 
Ist point was (in terms) *' whether a fine was due.*') 

Hilary T^rm, 30 Geo, 3. SlS 

Id the case jiiat now mentioned^ stiled Batmort 4r ux* \7ST 
V. Graven^ in 1 Fentr, "Zm. Or * ratbqr Blackburn v. « . », or 
Cniiw,a8 it if galled jp I JMTprf. 10%A,120.' *S. C. It was \^^^ 
determined '* that the „admis^ib;i of tenant for years [ ^ 
** was an admittance of him in remainder, and occasioned ^3,^^^ 
** a possessio frairU :*' and it is there resolved, that the #y^j^ 3 i^^j^j^ 
admission of the tenant for years, though it is an admit- s$s/jss.s.a 
tance of him in the remainder, y^^ shall not prrjudice the 
lordf as to the fine from the remainder man. And I 
Fenir. 960. is, express and plain, " that the remainder* 
*' man must pay a fine, when his estate comes in es^^ 

Indeed, where the whole fine has been already r aid to 
the lord upon t\iejir$t admission, there is no reason why 
itshould he paid o^eraMi^: and the remainder man is 
in fact admitted, in such case. But where the fine is mot 
paid for the whole, upon the original admission ; there, 
the remainder-man must mjt a fine, and must be admit- 
ted. (F. I Feni. 260. ancl I Mod. l&O. where this matter [ SlJ j 
seems to be put upon a right and reasoimble foot) 

If the remainder-man dies during the life of the tenant 
for life. All A^r shall be admitted and must pay a fine. 
Therefore the payment is for liyes in being ; and the fine 
is payable upon the change of the tenant: and the ad- 
mittance, does not extend beyond the persons of the 
tenants admitted. Ttieyaie^/iY/ only tenants at will. 
Co. Copyholder.^ 14. §39. | 41. expressly, 4 Aep. 29. b. S. P. ' 
inpK>injt^ accordingly. And the ^tate is only vested in the 
tenant ^fiona/fy. 

In the present case, the persons originally admitted, 
prayed to be admitted *• according to the tenor of the 
** testator's will;" and it w^ granted to them, according 
to the custom of th'cj/naqor : there is nothing said of 
their executys. And, tney were admitted as trustees, uni 
not for their own bei^efit: and their admission was only 
penonaL . " 

llie admittance of an /i^/r is very difl'erent. Compleat 
Copyholder, % 41. 4 Rep. 22. i. 

Ihe heir has very considerable interest, As^re admis- 
sion ; yet/iemustbe admitted. < 

Astolfenants jpotrr fli//re rw, they shall be admitted, 
and pay fines. Cq. Copyholder, § 56, nn. i^ 

All who allow of a general occupant, say Ae must be [Thare on be 
admitted: and there is no doubt but that a special «^^tf- ihoao^h ihi« 
font nutf^be admitted and pay a fine. ma? be aspe- 

Whercver a right is transferred, upon death, there must cisi 0ccinaot 
beanadmittoncc. fa^r^Ab ^ 

A termor may ^ie intestate^ and have iw administra- i, 3 vin. ^' 
Jor ; or may make' a will, and the executor renounce : cop. (P).s U. 
and shall the lord have no tenant? Surely in these cases. Rep. ii4S. 
^e lord shall not be withmt k%y tenant at att. if Vio. S9. 

2 14 Hilary Term, 30 Ge o. 2. 

17o7. An assignee of a term shall pay a floe ; so, a devisee of a 

BARLOF ^^^™'» indeeA^ even/ new tenant shall pay: A mortgagee: 

BATH, an fl5sig?iec of a bankrupt; the heir of the assignee; iushort, 

^^ wherever there is a change o/* ten a kt, 

ABMEY.i Ifit depended upon the change off 5^tf/e only, an estate ' 
in fee would neveu pay. 
r 214 J Dedicoit's case is strong for the defendant. 

Dyer, 251. explains 3 Leon, 9- The husband, it appears 
>by J5yer, was not the personal representative of his wife : 
for she had an admin Tstrator, appointed by the ordinary. 
In 3 Leoit.9. there was, as he reports it, an obiter dictum 
of two judges, indeed; but contradicted by another. In 
Dyer, it. appears that the husband held in, in right of his 
wife : and the dispute was between the w ife's adminis- 
trator, and the husband. The husband was pos.'^essed 
jointly with the wife, on his marriage ; and he only con- 
tinued in possession. Executors may be considered as 
/iwig/iew, (the rather as copyhold estates are not assets:) 
but the husband could not, in this case ofDedicott, be 
cousideried as asJignee. In 5 Rep. 18. a. Lord Co^^ cites 
'29 JE. 3. 48. and 30 E. 3. 14. Simpkin Simeons case; by 
which it appears ^* that the baron is not assignee to his 
" wife ;*• in D'edicotfs case, there was no transmission of 
estate. It is like the c?isc of joint-tenants ; where the 
survivor shall not pay. Co. Copyholder, § 56. 

Cahhrop*s Reading, 67. is plainly the same case with 
3 Leon. 9. and Dyer 261. Hauchet v. Rose ; as appears by 
the margin oiDyer, and by the end of the case itself too, ■ 
It is only a scrap, out of Leonard. 
As to the case of Otlery monastery, reported in Moore 
r 128. and in 1 Leon. 4. and 4 Leon. 117. (S. C. in terms) 

and the case of 6 Eliz. there cited by Mr. Solicitor Gene- 
ral Egerton ; there was no question between tenant and 
lord : and Egerton plainly means Dedicotfs case, and the 
dictum there mentioned. For Dedicotfs case was in 
C. .B.and was in 7 Eliz. according to 1 Leon. 9. and //. 8 
Eliz. according to Dyer. 

As to Noy,-49. Rennington against Co/e— the custom of 
the manor was for the wife to hold durante viduitate : 
and the wife's estate durante viduif ate was " bU| a ftranc/* 
" of the husband* s estate,'* [as is rightly there said Hobart.) 
As to Hob. 181. the case of Howard v. Bartlet, — the 
earoe custom is stated: and the liusband's estate was 
holden not to be merged ; and the last-mentioned case, of 
Rennington v. Cole^vfdiS there taken notice of and cited by 
Lord Hobart. 

As to Comberb. 445. it is a mere short, loose, nisi-prius 
note: neither the book itself, nor this note in it, are of 
any authority. And won constat zchose o\nn\on it is, that 
the note mentions. If it were good law, it would render 

Hilary Term, 30 Geo. 2. 215 

all family-settlements ineffectual : for he asserts " that 1757. 
•* the surrender may be for a thousand years, and that the e^r^ op 
*' executor shall pay no fine " At this rate, the grant- bath 
ing copyholds for terms of years would be, in effect, in- y^ 
franchising them. abney. 

We are not now upon any special custom of a manor ; 
but upon the general custom of manors : Therefore the 
cases upon particular customs are not applicable to the 
present. The collateral qualities of dower, freebank, 
^c. are not incident to copyholds; but depend upon 
special customs. In this manor, the fines are uncertain : [2 Wil«. 163.] 
butone year and a halfs value of the nett year's rent has 
been gcnerully taken, for one life ; two years and a 
quarter for two lives ; and for three lives, half as much 

And regardought to be had to tire fine paid on the last 

This estate was of the value of 125l. per nnii. when the 
two tenants Taylour^xiA Lake, the first lives were admit- |. ,. 

ted ; and the fine paid (viz. 2801.) ♦ answers to the two ♦ 1 year U5 
lives admitted, according to the abovementioned rule : i « yg^f ^^ ^Q 
and the length of the term is of no consequence. These ^l^^^i 1*^ J^ 
tsiv persons therefore were the tenants: ajier their death jof^yw 93 15 
the lord has wo tenant: it makes no difference, whether ^ ^*^^" & i ^81 
the admittance be for lives : or for a term of years rfefer- 
minable on lives. 

Upon the usage stated on this case, a proportionable 
sum is to be paid for a fine, according to the number of 
lives. And this is a just rule, and the best rule: and it 
is better to keep to this rule, than to form a new rule, upon , 

a suit in equity " to compel the lord to admit.'* 

The point turns merely and entirely upon the change of 
tenant. If it were otherwise, lords of manors, nay even 
jointured ladies of manors, might make voluntary grants, 
and incumber their posterity, ad libitum^ The lady of 
^Ai's manoris lessee under a prebendary : and consequent- 
ly, such lessee (though she were only so for one year) 
might admit for 5{iO years, without any fresh fine, upon 
Meir principles; and so defraud the original owner of the 
manor in fee. It would take it out of the restraining 
statutes of Queen Elizabeth. 

The first admission was in 1709; ('oiz* the admission 
of the two lives who were admitted according to the 
tenor of the testator's will.) 

Reply, on the part of the plaintiff. £ 216 3 

The dispute between us is, " upon yfiik.'i princlplejines 
" are due io the lord." 

They say, " on th^ change of tenant ;" we say, ** on 
** the change of estate, only/' 


Hilary Term, SO Geo. ». 






They argue the admftt&Qce to be pergonal; and urge 
it, from the doing ^ea//y, at the time of admission. 

We agree, this was so origiikalfy : but ve say the 
admittance is not always persoDal, mow. . The cases of 
dower, and of tenant by curtesy prove this : foriret/Aerof 
/Aese tenants appear personally; or do fe^ty. Andt^e 
case of JScintff against Corke, in 3 Iav. 308. alpne pror^ 
the same thing. . . t ,. 

And Ld. Coke, in his Copyholdtr, a^c^ '' th^t the heir 
** would not need to be admitted, if it w^re not on ac- ' 
/* count of the lord*s fine." 

And all the remainder*men are admitted under the 
original admittance, till a descent : but we agree that 
whtfiiver a OEScfiNx happens, the lord $hnH have a fine* 

The gradual diminution of fines, on^ admitting for 
several lives, seems to shew that only one fine is due ; 
and that that fine is payable on the>?r^ admission, (a) 

The case of an occupant pour autre vie, is a new istate: 
f6r the old estate is gone ; though the grantor is estopped 
to take against his own grant, (which extended beyond 
the life of the grantee himself.) 

As toihe assignee of a term— -he can only come in by 
surrender and admittance: which is a new estate; and he 
can have nothing till admittance. 

So, in case of a inorigoge, the mortgagee comes in under 
a surrender: which makes a new r«fa^e. 

So, in case of tmassignee of a bankruot. And the act of 
parliament of King Joe* 1. requires tne assignees coming 
in thus : it takes express care of the lord's interest, (r. 
13 Eliz. c. 7. 1 J. 1. c. 13. 21 J. 1, c. Ifi. and also Co. 
Cop^Ao/efer, §56. |Mi.<fii2 at the verjr bottom.) • . .. 

Ihe case of sl devisee^ is likewise undoubte(Uy a sev 
[ 217 3 And in case <rf the executor's renouncing^ or 9f m> 
administrafion being taken out, still the lord will not lose 
his fine. 

[a) The lord may set a fine for the particular estate, 
and another for the remainder, dui. 1 F^.9S0. 

But there ought to be a special custom, otherwise a 
fine is not due i^r a remainder, per two judges, 3 Jav. 
308. ; per t6. Cro. EL 504, And if another fine is set {or a 
remainder, it is only half. KiLl2%.b. 

And it need not be paid till the remainder coipeaUito 
possession. Per Wiid, I Vent. 060. 

If a copyhold be (pwted to A. foryear^t who dies 
during the term, the executor phall be adpitt^4« 9od 
payaiinet Per ^c8toii,SXeoii»9.2 C0m.£%ia92. 

Hikury Term, SQ Geo. 2. 817 

'Incweofa'wdTfltin's frfe ft^nc*, there is a change of 1757. 
ttnant. Sato a tenant h/ cur$efif9 cHff. * b a rl ov 

As to th« case in Dyer, 251. thelHKband \%iMtt» tenant^ 3^^^ 
it is true P6utthe e9tate is the unne, a *i.i 9 ■ ^^ 

Just so %^re» in the case of an executor, the estate ^bnbt. 
lemaifastheiai^W -^ t ' ^' 

Probably tjic <ca8d mention^ by Mry:,Calthtop is the 
same case with that in Dyer. But still Mr. Calthrop\ 
opinion stands uneonimdicMA^ Mi* it hr confirmed by 
LordCb. J. Foft"^ dictdh), M^tojt Mfle'limrff, and by 
Danvers. (F. ante, 2,10.) ' - ^f - 

As to the quattfiMt of '%he flne^thejfsay the original 
fine was taken only as ah equivalent for Avar Uves? aifd 
that theref6r^ another ought now to be paid'; ad smequivas 
lent f©r a third. - 

Bat the fine usually taken in this" mafjof,-' where a third bT. B. The 
life is added to two former Ones; i^ on^ the fine upon two fine for two 
lives, and if alf om much more.^^ ''^**' 'If'lh 

Whereas thejr aofc demand a whole fine: and theyJ^JJ^'f^^"^**, 
might just as well demand it» if only a few years of the and the fine 
term remained unexpired. • for three if 

As to the vieonveniences, the lord cannot be compelled ■**!"• ®^ *J**^^ 
to admit, either by law, or in equity, without the tenant's b>^1!he u«^e* 
paying a reasonable fine to the lord. of this mu^r. 

And a temporary lord eannever infranchin the tenants' VideSOY.snte. 
estates, fry collusion : for that wouM be a void grant, * 

and wbulabe considered ts a voluntary admission, which 
would not prejudice the capital lord. 

This is owing to the niodern fashion of mtroducing 
long terms unknown to our ancestors and to our old 
law : which none but the parliament can change. 

Perhaps it would be no bad policy, if all copyholds 
were infrancbised. However, though a lord may grant 
a copyhold fof a term t>f years, yet he is not compellable 
to do so: it isvdnntary; the lord is not 06/tgeii to admit 
for term of years, {a) 

{fffTh^'huiband Is seise* iit fight df his \^fe^of %u8- 
tomaty landh in ft^, and he and tits wite by'lidMice of 
tlMtenf makeli' lease for yeartf'by irid^ure, have' issue 
two ttatrgbti^rB, ma tile buftbaMkttiei ; the wife takes an- 
ottfer fauobmd; und - <hey ^a»e issue a%on and a daughter, 
and die; the son is^ admitted l»^ tbe^f^lirsion, and dies 
without issue: by MaiNMo^ tha^e^rsiob ^^lall descend 
to all the daughters r^r 'the estate for >ean^, which is 
msde b^ iilteMure, by licefloe of die lord, Ha demise 
according td th^commoD laws andllftccortiVng to the na* 
lure of the^' demise, the possepsi^Mi shall- be sN|udged, 
which poasessipn caonot be said poiBesaionof the copy* 






C 219 

Feb, 1757 


Hilary Term, 30 Geo, 2. 

Here they are admitted *' accorf/tii^ to theteaorofthe 
" will:'* for so they pray it; and their prayer is grarUfd. 
[F.aute^OG.) * .. , ,s 

The law is clear» '' that no admis$ion of thQireiiQa\ndep- 
** man is necessary." .r. ,r 

And there are no inconveniences attending sucH a, 4^<) 
termination but what the lord himself may obviate, ... 

'i'he court .t09k -time ,to advise ; 
and, after advising, to certify. 

And, about a fortnight after the end of this term they 
gave their certificate: which is here subjoined* 

N.B. What is said by /fa/as and Wylde, in I Mod. 120. 
and 1 Fcntr. 260, seems to be the justice of the case. 

The OPINION of the court of King s Bench on the 
case stated, upon the following questions, viz, 

Ist. Whether the surviving executor of John Taylour^ 
(the surviving trustee of the term of ninety-nine years,) 
ought to come in, to be admitted tenant of the copyhold 
premises in questipn ? . 

2d. In case he ought, whether the lady of the manor 
will be intitled to ^nyfoie upon such admittance. 

Having heard counsel on both sides » and considered 
of this case, we are of opinion " that the surviving 
" executor of JoA/i Tfly/oiir, {the surviving trustee 
" of the term of ninety-nine years,) ought to 
** come in to be admitted tenant of the copyhold 
" premises in question ; and that the lady of the 
** manor will be intiiled to a fiie upon sucbad*- 
" mittance." 



24th February 1757. M. Foster. 

J. E. Wilmot. 

Sir John Trblawny, Bart, versus Bishop of Win- 

HiL^6G.2. Roll. 868. 

[Lord Commissiotier Wilmot absent in Chancery,) 
Bishopi may jj ^as an actiop of debt for 600/. for five years aalary of 
offices*with" several offices, I'iz.grfflr or chief steward to thebisiioprieJc, 
the ancient .^— — > ■ 

''^C. Barn's holder; for his possession is customary, and the other 
fcc^ L. 2d vol. is mere contrary, therefore there shall be no po$sessio 
ed. 1781, fratris. But if one had been the guardian by custom, 
f». 341.] or the lease had been made by surrender^ tiierethe sis- 

ter of the half blood should not inherit And Mead 
said, the case of the guardian had been adjudged, 4 Le. 
38. d. 103, 7 Fin. 585t J?/, 35. 

Hilary Term, 30 Geo. 2. 219-220 

and all its castles, lordships, manors, Ac; and conductor of - 1757. 
tit men and tetiants of the bishop theretf; with a salary oi ^^^^^^^^ 
100/. per annum; and of master keeper or preserver of the y^ 
wild beast in all the forests, parks, chases, and warrens be- gigHOp or 
loiiorino: to the bishop, and chief governor of all birds, fish, ^xnches- 
and beasts of warren, ^c. (commonly called chief parker ;) jeblb 
with a salary of ^L per annum: which offices and sala- 
ries were granted to the plaintiff by Sir Jonathan Trelaw 
stey, bart. late Bishop of Wiuton by letters patent, with 
clause of distress if unpaid. 

The bishop pleads the $ statute of 1 Eliz. c* 19. And 4 See the last 
also that the offices aforesaid are ttot ancient offices of the clauie of that 
bishoprick, nor were usually granted for life; and that the u "^i'^^'*^'* 
said fees are not the ancient fees; and that the said offices baim^as in!'* 
are useless and merely nominal^ and no duty or service to be fra, 330, and 
done for or in respect of them ; and that the grants are S9i. 
grants of hereditaments parcel of the possessions of thet^^,?^®^.^ 
bishoprick, «c. 11a 

The plaintiff replies that they are ancient offices; and 
the fees, the ancient fses;2iX\d that they have been u^uail^ 
granted for bfe : absque hoc that they are unlen and mereiy 

The bishop rejoins that the offices are useless and mere* 
ly nominal^ and without any duty or service to be done 
tor or in respect of them ; m manner and form as, S^c* and 
issue is joined thereon. 

The special verdict finds, that the offices of chief stew' 
ard, and 6f conductor of men and tenants of the bishoprick, 
ABE A NCI EN To^f<?« of the bishops; and have &€e/i an- 
ciently AND usually granted fur life, with an annu- 
ity; and that the annuity of 100/. is/Ae ANCIENT fee. 

That the same were granted to the plaintifl', by Jowa- 
than late Bishop of Winchester, on the 4th July, 10 Queen 
jinne : which grant was approved by the dean and chap- 
ter, and confirmed by them. 

That the plaintiff thereby became seised, and is still f 320 ]) 
seised tliereof: and nEccivED the annuity during the 
hif" oi Jonathan late Bishop oi Winlon (the grantor,) and 
of his successor CAflr/e5 (Xrimwc/,) and of his successor 
Richard {Willis,) and also during the fiast eleven years 
of the present bishop's time (Dr. Benjamin Hoadly *) and 
that five years annuity, ending at Michaelmas 1751, re- 
mains ttopaid. 

Then they tind (verbatim)the* private statute of 1 Eliz^ * It « No. i^. (See Moore s Reports 107; and post. 221.) By . . 
the last clause of which act, '^all gifts, grants, 4rc. made 
^ by any archbishop or bishop, of any honors, castles, 
** manors, iands^ teneihents, ok otw^ir. hereditaments he» 
•* log part of the possessions of his archbishoprick or 
'^ bishoprickj or united, apperlaining or belonging to any 

SSI Hilary Term, so. Geo. S. 

1757* " of the same archbisbo{>ricki or bishopricka: to any 

TRELAWif T ** P<^rsou OT persons, bodies politic or iDcorporate^ (other 

' yj ^ than to the queen' sJiighness her heirs and successors z] 

BISHOP OF ** tcherthf aftyettaie or esUxie$ shall or nuiff pa$s from the 

wivcHcs- '' sat£2arcrAi/Mop5 or M^Aopjor any of tbem, (other than for 

XBJU •' the term of twenty-ODe y^are. or threb fives, irom 

" such tinie as aay such lease, grant or assurance shall 

** begin, and whereupon the oM accustomed yearly reot 

** or wore sImJI be reserved and payable yearly during 

" the said , term of twentv-one years or three lives;) 

* " shall be if^t^ffy VOID and ofnone effect, to all intents, 

" constructions and purposes ; any law, custom or usage 

** to the contrary in any wise notwithstanding/' 

That these offices, at the time of the making of tWis act, 
andnov, are mearly nominal^ and vo auiy attend^* 
ance or service to be done for or in respect of them or 
either of them ; in manner and form as the bishop has 
But whether, ^«« 

At to the oiher office (of tnasier-keeper of all the 
bwwts in the parks, or chief parker^ they find that tkai is 
KOTidH ANCIENT office ; and that the bishop for the time 
beiag^Mith not auemifyand usually granted it, nor the 
amnii^^for the life of the grantee; and that tkai office 
alm> was, at the time of making the act, and still is an 
office MEABLT NOMINAL; and that noda^^ service, 
work, labour, attendance or business ever was or is, Sfc. 
I ^ ^^ , Tb<l flue9ti<m upon this special Verdict, was, ^'whether 
^ ^ M.,Sir^J^ Tftlaumy, the grantee, \vas entitled to hold 

*' the two first mentioned offices, abd to recover these 
^l arrears against tint present bishop." As to the last 
r SSI T rooitioii^ /^^Aoe (of chief parker) the facts fonjid by 
' * :^'#ie ^^peoin^v^dict ^smdefMi.end of any question con- 
:, , ^| j3fnMPg>it^ and the pptnt was given up. 
, ^ Vi This case was first argued, upon lu^sday 27th of Ja- 
'' ^ AM^iy ySk^^y Mr. Salusbury Brereiou for the plaintiff, 
-* ^ afudiJ^id'PM/lfoithedefenci^t. 
•s &W s^ -,:,l^te^Sir Jo/m Trelatpny^ the plaintiff, * diei during 
c. 11. f. ii ^ Ttl|$ tiMs .€(f the fiimt argument: but as the demand 
Jaiesonljto ? . \wa%|btarr^rages, this eyeiakt did not prevent the 
plaintiCPfor . court from pcoceeding'tp.'hear the ai^uments. 
defendant*! Qn Ti^psdajK tst Febntary 1757, it was again very fully 
u^l^^y'^'^S^^ by. Mr. Norton for the plaintiff, and Mr. SoUcitor 
Jnd^imnt, aii(b6eneral<y^ribei C^ th« detiandant. 
be£re final. ., Lord Manttkld said he, was ready to give bis opinioQ 
fioflp: but as Mr. Justice JVilmot had heard the fimt aigu- 
jnent, he^cboee to report to him. what bad passed upon 
this, and to know his sentiments, before judgment shouUL 
^ given : and therefore ordered it to stand over till Satuv* 
iay then neat, 

Hilary Term, 50 Geo. 2. ««« 

And, this day, his tordsbip ^re the resolution ei ibe \'JS7. 
whoW court; after having .fir«t stated the case, to the ^|(£]^^^ii Y 
effect as aNnre, Ar. * •- v. 

Lotd MttntfiM^y^ eomm&ninw^ a bishop, Kith the eon- bishop of 
firwu^nfm of^is 4eM and cHa^iter, might exercise eofry act ^idcue^ 
tf'mbtoluit omnetMpt over the revenues of his see; and ^^^^^^ 
biMh^mtceentHrs^ as Much as tenant in fee can bind his 
JMiv*'' - - ' * 

By the iMute'etl' £liz. <. 19. " AH sifts, grants, fe- 
** offAientsJ^fines and other cqiiveyance. Or estates, FaoH 
'« theHirst dAy of^that pnHtament; had, made, done or 
•* suffered, or to be had, made, done or suffered, by any 
*' archbishdp; orbishop, of any honours, castles, manors, 
** lands, tedements; or other hereditaments, being parcel 
** of the \fo9semton of his arehbishopritk or bishopridc, 
> *' or ftiiim, uppertainimg or Monging, to^dy* of the ^me ; 
'« to any person (other tbatv to the queen, hdr heira or 
*' successors ;) tthereby any estate should or nmht pais from 
*' the archbishop or bishop, OTHf^R than Jwr the term of 
H twemtf^one jj/ears^'^ thr^ //c^, from such time as any 
*• lM^,lgtafl€ or "atfeumncv shall beginr ttttd^w h tres f on 
** ^^ke^meiuihmid ife(A4tfr€ntor more, shaH be^reserved, 
'^ipajfsbleyearijrHutiiiif the%aid termof twentf^meyeafi 
^ ^f three K^e^' shaH be v^r^fthT rmb^^Umf inw^ 
« cti8tom,^^;iiot#ithstaading." * . .. 

Pdimiit^^i^ghitfi^dfoflHis, wtth'fiMs^ sdaries, or profits 
aifbexed t^ them, are not iheniiimed in tHa aot ; there are 
oil g«Aera] words adlvpted to »lie ttae ^i<^gitti$. And yet, f flSS 1 
there was^ 'nolfll singie bi^hi^fMk, attbafiitime, withaui 
W)ine office granted. * '•• > J 

bad tho lej^lature meant to rMrain the re^-gr^mting 
them, tti tbey'sh^ld drdp intit must hsvef been done by 
a special jpTOfvhich^^yfi^ixi'exteptioHoX^^^ at hast ofjudi' li^^^^J* 
eial cfficts. As the gtnmd rfstraissi is not extended to the MmiTo l« 
case^ there wad lib occf^sion'to ttkoke exceptions^ reuontbiettlie 

Cov9i^f7iKo«ffCP^'<^ef, wkh the ancieut/eef in the Ian however 
us¥al manner, was not a dilapidation of the revenue of the J* ^"•"""J ^^ 
Wsbof^rtek. Every bishop left this power to be excr- "*^J 
cised by his fuccessor, as his predecessors left it to be 
exercised by lUm. Such grants bring tfo nem charge 
upon t^re'bishoprickf which only remains liable to the 
toffees or usiarier; to which it was liable before. 

The act lias no retrospect, as to any charges or incum- 
brancefl whatsoever, brou|fbt upon the revenues of the 
bishoprick, before the first day of that session (23 Jams* 
my 1558.) 

So little were offic£s thought within it, thai the 
Bishop of Ely, on the 20th of April 1558, madeanMV ' 

grant of the office of keeping his house and garden, (whiofa 
was never granted before,) with a fee or salary of 3^ a.yeat. 

223 Hilary Term, 30 Geo. 2. 

1757, Thiscame in jiiflgment in H.lOEliz. Ro. 75S. as cited 
TR EL A WHY ^" ^^ ''^' * ^^ "^^^ lioldcn good ; because the office 
y^ was iliought to br a necessary office, and the fee reason^ 

BISHOP of"*^^* Which is the proper measure whereby tojud«re, 
WINCHES- " whether it was an i/idiVfrt alienation, under cofotirofa 
TER. " "^^^ grant:" though it was extraordinary, to hold thi? of- 
♦ M ' ^'^^ necessary, or the fee reasonable; or indeed, to imagine 
p gal'reporU that any oflTice could be necessary, which never extsted he- 
thia case fore, (a) However, that deternUiiation has been esteemed 
(thou^bhe good, and acquiesced in. 

<»lls the plain- The next case was in Trinity 30 vtnA Hilary 3\ Eliz, 
and thTi^'iw (<^*»'^^ in ^^ C"©. 6l . h. and Lq^ 72 4r 75.) The Bishop of 
8toD Down- Chester granted five marks for life, pro concilio, jrc. to BoU 
ham,>aKof thefon: and Bolton averred that his predecessors had grant- 
same term, 10 ^j reasonable fees, but did not aver this fee ever to have 
758 But^ln ^^^^ granted before. The opinion of the court was against 
Cro. Car. 48. ^^e plaintiff; SO he never had juvlgment: and thetf^*- 
it if cited asof son of the opinion was/' that this was a voluntary thing, 
H. lOJac. « and not an officer 

ro758. And At last, in the 43dof E//z. the true distinction seems to 
^^J^^^'^^y^*. have been taken, in Ley 75\) where the Archbishop of 
aaof M^*9 Jac. Canterbury granted the office of surveyorship, with the 
1611 ' ancient fee, Awd more : it was holden void, on account of 

+ Ley, 75. the' nbw addition. That was an injury to the suc- 
. f 223 1 In the fiist year of the reign of King James the first, 
the legislature had this act, and the subject matter of it, 
under 'consideration. The 1 Jac, I.e. 3. extends to the 
king, that restraint which the first of Eliz. laid upon grants 
made by a bishop to a sulyject. But though questions had 
. arisen upon grants of offices; though, in fact, during the 
whole long reign of Queen EHzabtth, the bishops had re- 
granted their ancient offices as they fell in;— yef, the 
legislature did not interpose ; and therefore meant that 
this power ihould continue. They were satisfied with the 
distinction of the Archbishop of Cantetbury^s case, in the 
43d of Eiiz. " that np new charge could be brought upon 
•• the see." 
[A grant of a From the 10th of E/iz. (the time of the Bishop of Efys 
ne,^ om^e'i9 case,) to this day, no grant ofaf^ra office, with a wfw 
prohihiiion of ^*^^> ®^^''' ^^^ '^^^'^ ^^ ^^ ^^^^- -Sf/cAa grant is within the 
the star. meanins of the 1st of Eiiz. by construction; because it 

1 £liz.] is a colourable alienation; and under that pretext, the 

whole statute might be evaded. 

{fl)These might be the reasons, but not mentioned to be 
so by Moore, nor clearly so mentioned in Ley 78. The re- 
cord of the case is BendL 1S2. by the name of Hazcse and 
the Bishop of Ely. 

Hilary Term, 30 Geo. 9. S24 

From the Ist of Eliz. to this day, there is no case, 1757. 
where the ff-^rit/if of an office in being before tke ^nt ojf* >g^^j^^^^^ 
EUz. in the Msnal manner, with the ancient fee^ was ad- y^ • 
jadgedto be within the restraint of that statute. bishop of 

Ifthese grants are not within the statute, but stand as ^iif(«i{£S« 
they did at common law; the utility or necessity ef them t^^i. 
can never be material. A bishop, at common law, with 
the confirmation of his dean and chapter, might bind liis 
successors by grants from which they could have no benefit. 

There is no case since the 10th of EUz. that has judi- 
cially turned upon the t/f /My or ^cessiTy of the office: the 
only question has been *' whether the grant was agreeable 
" to the utage before the first of Eliz:* 

The Bishop of Salisbury $ case ( 10 Co, 58. b.) T. 1 1 Jae. 
1614, came before the court upon a demurrer.^ It is not 
alledged in the pleadings of either side," that the office was 
•* or was not necessary^* The plea in bar t(» the avowry was, 
singly, •* that the office never was granted before, beyond 
** one life :" and the grant was holden good. In the * th 
resolution, * it was resolved " that Uie grant of an ancient * *^ Co.62. «« 
" office to one, with the ancient fee^ by a bishop, shall not 
** bind his successor, unless it beconfirmed by the dean and 
-" chapter: (a) for sucu grants are Mo^,as appears beforc,re- 
'' Btrsmed by the statute of the first of Eliz, ; (b) and there- 
'' fore remain at the common law ; and by Consequence ought 
** to be confirmed by the dean and chapter." If so, the 
utility or necessity of the office was not at all material :[] S24 J 
for, by the common law, the utility or necessity of an of- 
fice was no requisite towards rendering the bishop*s grant 
of it (confirmed by his dean and chapter) good and valid. 

The Bishop of Chichester s case,* in Cro. Car. 47« and « Gee, Bishop 
. — i ' >■■ , — ofChirhefter 

(a) Confirmation is necessary. v.Freedlind. 

(b) This is but half reasoning ; because if such grants 
ire within the 3Q Hen. 8. c. then if made with the 
requisites of that act^ they would be good without any 
confirmation, if they were not restrained by I Eliz.; and 
therefore the statute of Hen. 8. remained in force as to 
such offices, supposing they were made' agreeable to it— 
But Qu. Why such offices as have been immemorially, 
are not within l£/iz. c. they were resolved to be, Cro. 

.JE/tz.259.? And thejudgmenl there was affirmed in Donu 
Proe. in May 1641. And the reason given in Cro. Car. fox 
the resolution appears there to have been, that " they 
'* are within the words and the intent of the statutes ; 
" for they be hereditaments, and appertaining.untothem :" 
and note the very words of 1 E/iz. e.g. are *• manors, 
** lands, tenements, or hereditaments, part of the posses* 
" siotts of, OR united^ appertaining or belpnging tOTtny 
" the archbishopricks or bishopricks.'* 
Vol. I. Q 

225 Hihi^ Tenn; ^30 Getoi «. 

17o7. I^,7ll;(2 Cc/r. I, ^wM Dcwi:. i69(J.)\ciitttB-.^ the 

tR£K.ik¥^NT ^P^^'^J^R^^^jf jiemui^rer too— ^fUere |$ oc a\Ifiaittbtf itt^e 

V. i>leviQiiig^ :op ^iihejc aidei "^^ to th6 oHice twnijig' Wcworff, 

BISHOP OP or uo£: jtlW^^stip^^tupied i^^^^ upon' the jt^tfiV^^ bfa 

WINCHES- newfee. . . \, ' * *J^' '' ' *^ ,. 

TKii. /fh^ ^^ of the frfegitt'er Qi Rochester^ in Cr6*. Ctfn Ssy, 

//|7,14C.l.A«o D^^/ii 1638. came before tti^ liouft 
I yT"'cr "P^^ ^ special verdi'et. .There is not a word a^ 'id^tbe 
Car! 555/^' office or reversioii^ry gr^nt being 'fi«»«ary;'birf'ft 
March 38. found to have been usupf/y granted in reversion ;''aijd 
« K'j. Abr. therefore the court adjudgea sucti a grant in i-eTerribtk*" tb 
153. pi 7, 8. be gQQ^ againsa the successor'. ' . , , - 

See also Sir William Jooes Sll. Yonge ▼. Stowell, Tr. ^.Car. (m it action upoa 
the case, fot diftuib'ri»| the plifi^tiffia the same office.) S. P. accord. 

Thus itoodthe eonstructkmof this statute, upon the 
reason Vnd words of the law, practice, and judicial deter- 
in inarioiw. But it happened that, hesideb the real ground 
of the judgment^ in the Bishop oiSalisburj/s case, they 
eclioeri the rfflioirfw* of the Bishop of £/y*«, without di^ 
V *tihguishing the esffentftil difference between tlie two cases ; 

• V. loCo. unci* labourM to pro%'e, '^ that the office was nece$* 
61. a. b. « saryr 

Under tlie great authority of the reporter, the same 
reasonmg is reputed in the subsequent cases^ and 
where the grant ibgood, becanne it was warranied bvihe 
usage before the 1st of jB/ti • they needs must, ex Mmn- 
dantif labour to shew, " that tbe office is tteeeuarg^^ hgr 
arguments so inconclusive, and so contradictory; Aat 
one IS sorry to read, or repeat them. ** It is neceMary 
** to grant for one life; but not necessaiy to gran( for 
*' two, or in reversion :*' And then, *• it is necessary to 
" grant in reversion; that ivhen the first life drops, 
" there may be another immediately to fill the office.'* 
Whereas in real truths few oftliese patent offices (except 
the judicial) are tfseful^ or necessaiy in any sense: fewer 
are necessary,, or even expedient, tb continue beyon,d the 
bishop's ocpw time : none necessary (by any colour of ar- 
gument),to be granted in rtternon^ or for iwore thcii one 
life. But if Ihey existed befote the Ut ofBlit. tbcy are 
Kot KxthiH-Ai^ statute, fhey are governed by the auivmon 
law; and therefore grants of them bind the auocesaois, 
hdwtmlm soever they may happen to be. 
r go < ' n iThe next case that was mentioned, was tbe case of 

♦ This wasan ^^^^^9 ^: ?*>»««> 2 Lev. 136- 5i7 C. ^ ♦Tbem the.4jie- 
I acticntupon ciat verdictfound the office to be a neetnar^'0&c& ;i(^bich 
, the case, in \^ ihefiht instance where it appeared Judicially* tor the 

B. R. fordis- court, "that tbe office was necessary;**) and tfauath bad 
tarbiDj^the . / 

iilaintiain hi« oflifeprrogistfrlolheBiflhaporiSrhtol, (a tiefr biibopiML 
1cmp.H, 8.) ^es ij Kebfe 474, W6, d40, 560.. ».C, 

HUvy Term, 30 Ge». 3. fi6 


\ieeu 9e/fmlibus temporibus, since the foundbtioa of tlve 17^7 
bUhbprujt 'granted for three livc8,^ *7*./. 

My i^pm^Rak (who distinguisherf what he read, and '•M'^WMY 
though^ ^pi reasoned from himself) says " before the Trf ^' 

" oJTEVtz. there w^^mdtjference between the grant of of- *^*«^p ^^ 
V^^c^^offf^^CA^and fica? bi$boprick&: &o/A made^ar ^^^^^^^< 
Auft^^Wi^^^^*^*®' and if they usually granted'for '^^^' 
^i^f^M^i^ kefort the statiit€^ they may grant so after. 
r ^ul tJie veroict J? defective, because it does • not find 
*^ inat it was vsvullx so done before the 1st of Elis:^ 
And nn account of tibe incertainty^ there was a venire ie 
novo : of Aertrise, judgment would nave been giveny*or the ^ 

defendants So that you see, finding the office to be neceS' 
scrry, was totally immaferiah 

In the case ot Jones v. Beau, in B. R.SW.^^ M, 1691. 
reported \x\AMod.\Q. Iihe issue directed out of Chan- 
cery was, ^^ whether the. office of chancellor QfLaj»^/«/f, 
*' JM b^n sismily granted to two, before the Ist of £/iz." 
Attd )ii^ jury finding " th^t it A«d/' the court held the 
giSint <tf 4h^. office to two to be good« And no man 
alive>wiU saj9» ^' tbatitwas jvcesanrv that the office, of a 
**. iMshofiis chiaflcellor -should be granted to tvo^ 

The office in question in this cause, is. found " never to 
'M)aye. been more useful or necessary tbaa»it*is rioe? :** 
Aed.yet a// the bishops of fFfiic^er^ from the 1st of 
J3fta^ bave thought the graatSr of it valid ; and every suc- 
oMdiog .hisliop has submitftd to the grant made by his 
fft'^c|§ae$sorj;. andt the greatest meqiof the kingdom, ^^f gj^j u . 
ttll^ p^UK!fA . relations to the bishops, have successively Grant wa^— 
ilcMo ^Mie office. The prtse»\ bishop thought this grant •« Tu hold in 
xt!0O^{^ tleven years; but has* conceived a doubt, fiom t^^ni amplo 
^•Ih^iiims^appiication and repetition of inconclusive 5??^®» *■ 
«ndl^onJ.radictpry arguments about the office being wees- of Portland 
Mijb' whkbaiieta be found in tlip reports pf, the cases I Thomai Cary, 
"i^uvt men tioned^ before the 27 tb ofC- C4« # ncoi^e Uuke' 

vof Buckinghain.CJliarleiERrlaf Notimebani, TbomasDnkeofKorfolk. Philip Earl or 
Pembroke md Moot^oniflrT. Jaxnei Duke of Ormoad, or Hennr Cairi of Clarendon 

\Vhereas we are all i^oanimouBly of opinioni that an [$. p. Cro.Ca:. 
office and fee, which existbo jasFoiu^ thb fiasr of 259.] 
luL^iz. is not within tl)e statute;. but m£^ he granted 
since^ precisely \a the same, mamtert^ in whjuch it xyas grant- 
ed be/ore; and that the utility, or necessity of suc))i an [4 j^^^ j^^ . 
office^ is no more materiaU siMce the 1st of Mliz^^ than ijt ace. 
was brfore. And this opinion we think figi^^ib^' to 
tbe words and intent of the act,, and ^verjf.^prea^nt siuce r "o^fl 1 
the staitute. And in this opinion* my bi?ptber* JFi7mo( L f , . J 
* cooBius with us. And ^therelbi^ thf^j-eoipat be *.J' *«rt« *i^ 

JUDGMENT fox the ?LAJ»T^FF.^^ ***; ' ' 

Which judgment was ordered, at Mi:^,3?oWa»?V/^4**^^» f *' ' 
lobe entered as of the term in which the tuutea was retuui^ "^ 

Q 3 


227 , Hilary. '^CFm, 3pQeo.,2. ,; 

1757* able: because ^\r ..jQ^n.Trelappaigf, wnsf dead, .bet\vcM 
GOss' that time Apcl,th€^{K^seut time pfpronouacingtbe j(udg<«. 
V. ihent. . . ^y *^ .. .^ . . - • ..♦,..* 

t!^^»,c.^i. '• ' ' " ';oossi^ri«N-EL8oir. " ■ r •■;■•;; 

Saturday. IVT'^ Goutd^pro quer\ shewed .cause wl^y the ju4g- 
5ih Feb. 1757. -L"-*- ra eo t ob tamed by the plain tiff against tbedefeo^qptiu ^ 
Note of hand an action upba a pronii!<sory note should not be arrested^; 
payable to an the note having beep objected to, as contingent, uncer- 
Infant when he ^j„^ j^,jj ^^^ negotiable within the act of 3, 4 Ann. , Mr. 
Lc.f^dfytn^ poultf* answer was, that the aum payable by this 
^e'daj, u a hote, is debitum in PRi^sEXxi : though solvcudum i»iju^ 
ood note.^ lura. 

S.C.BiilI.275.] iThe, question depended entirely upon the va^iiUty pf 
^ - thrs note; which was a promissory note given to an -in- 

^ohcrtTv. fant,+ payable, " WHKN he (the infant) should com€ op 
Pcake; alike ** AGJi;;" and sphcifying the xi M£ei)Aeii that was ^piiq, 
point, (viz. t^iz, 12th J?/wc 1750. The defendant's counselbad moved 
P*y**'*« /*** to arrest the judgment, for that this was not (ak tliey al- 
0.*H ) le^^dla S^od note, within 3, 4 ^/m cO. § 1 ; for giving 

[sfee alio like remedy upon prornissory notes, a^ upon, biUs of ex- 
1 Du^n. 637. cl;)Bn^e. .| ! L . ., ; 

6 ▼«•• 248. .tnans\ver to. which, Mr. (ioz^/d nW cjted 2 Strange^, 

486?"' ' ^^^^» ^^^ ^^^^ °^ ^^^^' ^' ^<>^^V ^ whei^an^te, " to, 
" pay in six weeks after .the defendant's fat^jer^s dpa.thV' 
was holden a good note. , : ^. . 

Mr. C£iifeco( coii/rtf purf{/\-Hep arCjin^^ 
tw countson notes of hand^mdeeu : but the notes set fof^h » 
in the declaration, ^re not notes for the.hen^t of trade ; 
nor is the money made certainly payable. 1 he notfe 
was given to the plaintiff, thirteen yjjaus btfore the 
tim^ yben be yfas to come of age ; and it . was no/ at «b11 
certain that. he iroifW /ire to attain that agg, 

H(B cited 2 Strange, 1151. The case of Beard$ley y. 
Baldwifn: w,Uere a note " to pay within ^$o many days 
**" after the defendant should marry*' was h^ld jiot to be 
a negotiable uole within the statute. 

C927 1 '^^^ ^^^ ^ ^^* ^' Colehan (cited by Mr. Gould) 2 
•^ S//a»gc, 1217, was payable six wc^jeks after acfeo/A: 
which was a certain event 

In order to have tbe effect ofti promissory note within 
this statute, it ought to be a cash-noit^ and payable at all 

No note is negotiable, which is not for the payment of 
money absolutely. 1 Strange, (i2f), Morris v. Lee. That 
wa$ a note promising ** to be accountable to the plaintiff* 
•* or order tor 1001. value received."— And held goo^*' 
' * ; But a " quare tamen^* is added by Sir John Strange. A|l 

notes payable on contingencies are bad, witliin this act ; and 
this is a cofUingency, " whether be may arrive at tbe ag|» 
*** of twenty-one, 08 not'* 

Hilary Term, 30'6cb.2/ 




(tliatU to say, on ^ day certain ;) without mentioning Vh^- 
plaintiff's being thenip^^(mM3,pf 9ig^;p^d surely it is not 
the Uf seer tain ^(or adm?ig^i\ydtcnc\xv[\st^nce. , x * ^ 
-'i^tfc#i ai^'6fa'dfffefentMlure':'and'ihpyarcdet4^ ' /' 

mWfed by ^dUfferenttkit^- "They; are diredttobs to the exe- 
cufcorto payiand iille^Tes there is a kncnvii distinction 
between the time beih^ annexed to the subf^tance of the 
giftj or to the payment Tf conaplete words ofgifk direct 
the executor to pay V tfxe other words onlyT^r the tiIvti: 
of»felich payment : and then the legacy vests, and is trans- 
missible, though, the legatee should die before the day 
of payment: as a Icigacy given, "to he paid at twenty- 
•*''One.** But if the time is -annexed to Jhe «ii5^tf/ire of « : 

the gift, as« ti legacy *' if* or ''when' he shall 'attain '■ 

twenty-one; it will \nof vest before that conUngehcy 
happens. ' ^ 

But here the wordrof^ffgagement make ^/i^ </g6/;. and 
it is no direction to another person. The former part of ' 

the note is a promise to pay the money : and the rest is 
only Qxing the patticular time u^ien it is to be paid. It 
is enough, if it becERXAiKLY and at all events payahle 
at that- lime, ^irAfeMfr be lives till then, or dies in the 
interim. Tlierefore it is a good note, within this renfe- 
dial statute, : * . 

indtl^d ne^ttiffgtHt vote^ wher6 tt is uncertain " whe- [5 Dum. 48*0 
••''tber the n^oney shall erer becoire payable at alitor 
•* not;*' ii another case: sucri a tiote ik not within the 
Etatnte. ; ' 

' ;Mr. ftfst Denison conlfcurredJ ' 

For here is noceniition or t75*CER4*A^feTY : but it is f 
to be paid certainfys andi<t/ all events ; btily th6 time of 
patfMeftt h phstponeil. '* ' \ 

And. the case of <7oVAv. Colehan' "^^i the* opinion of 
the' whole court. . 1 <' 

He also cited Boraston's case, 3 Cb.\Rg). IP, (which 
pfoveft •• that where the words refer to what inust ^c- \ 
** emnrily happen, it is no contingehcy/but a remainder* 
- executed:' F. Equity Cases Abridged, fo. ISO. pL ip: 
iS« C) 

Mr. Just. Foster concurred. 

A l^acy may be given upon fi/iv terms. 
' But tif>Oha promissory note, the time of payment is 
otA^ for the benefit of the debtor. Here, the time of pay-' 
nienf fe iJERTAiKLY^xed: and the particular day specifi^4 
fcffy^ment of the. money, being mientioued to ,be th^ 
d^jon teftStX the infant is to come ofa^e, makes no dffl'^r-* 
e^it^fiahfi what it would have been, if that circumstance' 

2S8 ] 

929 Hilary Term, 30 tJeo. 2. 

17.17. ^^^ ^^^^y ^^ Agreed tfiat this vfVisdebifum in preseufr^ 

GQsa t\iou^\\ sqhendum in futurth *^ 

Per Cur* unanimoosty actfi disCma hged : 
Anid ihepost^a ordered to be deUveted to the plaintiff. 


Tuesday, Ooodtitlb, E3t DiHiss.' Baywaud, rersjis Vt^iiiVti'4^? 

«th February ,^ - . . . • 

1757. ( Mr. JuslVosti^r absent.) ^' " ' ''' ' 

Deviic to n^TIIS was a case from Lancaster assizes, upon 4b ^Jeirt* 

trustees^ in -*- ment, % ' 

*TVh*^ '*y R' P' being seised, S(c. devised all his messuages^ i^nffs, 
todprofitefuc^^"^"*^"^'^**^ hereditaments, whatsoever and Wereso- 
tbemainte- ever situate, to ,tlie Reverend Mr. Thomas Hamtar4}ind 
nance of two J(^n Bates and the survivor of them and ftie hetts oY'giich 
»«phejrf,and survivor; "intrust, that th6y and the-surtivOf of thfem, 
toin iwciS?*^ *' ^^^ *^'''* ^"^ assigns, should lay out, employ andliestW 
one, to be to " the, rents and profits of the devised premises, for the 
them and their '^wwiw/ewawce, education, bringing m and pntdng^ forth 
heirs/wanira. ** into the world, of I%oma« and John Hayward, iotisof 
T^dt^ih *' ^^^ testator^ sister Elizabeth Hayuard,t)\jRUQJ%^r 
aepbcwsim* " MiN0RiTiE.s: and whev and AS they should re^ecHtely 
mediately, " ATTAIN their ages of 21, then to the use ?nd behoof 
ivith a trust to " of the said sons of bis sister Hay ward, the said Thomct^ 
f*'*;^^"if'* " ^^^y^^^d and John Haywqrd, and ttieir Heirs, husilfy."* 
mdurliff A"^ }^^^ testator made the said two truf^t'ees, the Iteverend 
their minoriiy. Thomas Hoyumd and John Bates his executorsl . 
rSee 8 Vin, It is stated that Tfwmas Whitby, the' defendant, w the 

285. pi. 4. testator's heir at law, 

3 Dure! 4i . ^^^^ Thomas and John Hayward Are the tes(atof*ssi»ter*s 
1 Durn. sVl . ^^^^^' 

9Vc8. J?8.] Thomas Uayward the elder of the testator's said two 

[ i29 ] nephews died under the age ofttienfy^iie,nn({ tvithont issue. 

Upon his death, Ifife brother John being then under age, 

TAo;/i«s (i7i/% the testator's heir at law, was let into' the 

MOIETY of ihe Dj^cniizii nephew, Thomas Hayward, \>y 

the trustees. ^ " -^ •. . 

Join the surviVmg brother brings the ejectment^ b^ing 
now come of age ; and claiming tlie moiety of his deceased 
brother as vcell as his own proper moiety. 

Question-" Whether this moiety of Thomas the de- 
'• ceased brother, belongs to John lUyward, either as 
" heir to his brother, or as surviving" joint-tenant; or 
" whether it belongs to Thomas Whitby, as heir atlai¥ of 
'• the testator as an undevised estate^ 

Mr. Perrot for the plaintiff, {viz. for John Hayttafi, the 
surviving nephew of the testator.) 

This point is settled by Hiany resolutions. 

IstThis is only a cAa/f eZ-interesl in the trustees, [tkough 


Hilary Term, 30 Geo. 2. 230 

gnren te tbcm and their heirs :) because it is to last okly 1757. 


The question is, " whether the remainder vested in ^^ dimiss. 
**■ tkoituis find John Hayward;* or " whether it remained haywakd 
** lA coNtiNGENCY, /i// their re8pectivefoi»f/7go/'tfge.** . ^ 

All that the testaior had in view^ in this trust, was to 
prQT^d^ for the care of bis nephews. durj^ng their mino- 
RiTiEs: and he only meant tliat the time of ilmr taming 
^f^gtt should determine the timb when tUey should be ] 

capable o{ acting for themielves; not to make it contin- 
gent tiii they should come to twenty-one. For at tnat 
rate, y they had married aud died under twenty-one^ TfiEiii 
CttiLOKEN could »or have taken: which the testator, 
JDOst undoubtedly, could never rncan. - on 1 

liorastons case, 3 Co. 21. was held a vested remainder, t ^^ J 

*rfve case of Taylor v. Biddal, 2 Utod. 2$9. is in point 

The case of Edwards v. Hatnmond, 3 Lev. 132. {where 
tte;' estate's being contingent or not, depended on its ** ^ 

being a condition precedent or subsequent,) was only 
held a condition subsequent^ and a present devise to the 
eldest son. 

Equity Cases abridged^ H.n 13. fo. \, Th<2 case 
of Mansfie/d V. Dugardf is almost the same with the pre- 
sent casp. \ 

So here, the estate vesledimmediate/t/ in tlie twonepheW8« 
upon the death of the testator ; and therefore, upon the 
tleath of Thomas^ his brother John is intitled to this 
moiety ; either as heir at law to him, or as survivor. 

Mr. Norton pro def Thomas WlUtby^ the testator's heir 
at law. ' » 

The will is, in substance, no more than this— 

The testator gives to A. and B* and the survivor of 
them and the heirs of such survivor, all his messuages^ 
tands, tenements, ^c in trust that they shall dispose of 
the rents and. profits of the devised premises for the ' 
tnaintenaucC; educatiou, bringing up, and putting forth 
into the world, of his two nephews (his sister's sons,) 
Thomas and John Haywardy during their minorilies: an/l 
iVH^N and Ad they should respectively attain to twenty- 
one, then to the use and behoof of them the said Thomds 
and John Hayward his two nephews, and their heirs, 

The cases on this bead appear indeed usconsistent and 
repugnant: but the true method of solving them is, to at- 
teod to the intention of the testator. 

Now here the teaUtor intended his nephews a^e^, if 
ihey should liv4 to make use of it; if no^, thenoff^«' 
provision during their minority. 

And it is a rule, *' that the heir at law shall xeot be di$-' 
** iohtrited by uncertain words of a devise/* 

GiMiWta^^jiXidunng tbeiVim>wrtAi4 « . • • ^ ' ^^ - 1 -.i. "• ^ .n. 
\ 7 _ i ^\^'^ * *^ **^ l^sWO^ kitd f#i/e;frf«rft bfcnriftfc'lrf «§i whW»Ai»p,H to 
wivwwwit •ii^'We werphqtr*, be *//r»' ikaif to' do ikrisi «^^tfofcy 

^/ a/iofAer/jar^ of his' wilU * ' '^ - ' "^i i .rii' 

iTHiiaAV/ ThetWt^ neph^WRf were not each of ihemf/inrfiM/o a 

I 231 J only to be mawldined at the jyiscuBtiOHofiktijctMars. ' 

. I'he question is,.** whetlief this be, o^be1lOt,1K c^dition 

" precedent; or an estate depeDciitig.upon a filture 

*f event that makes it uncertain wuether it sbun e^r take 

*' efiect." V • ' " 

Sheppard's Touchstone, of Commim AssuranteSy 117^ de** 
iiaes aeonditioii precedent^ to be ** where the condition 
*» must bt fulfiUed, ere the eftatd can take efllect;*^ 

A; gift to A. '*'ir he coittcs from Rome/' does not rest 
tiUhecomeBfromRome* -^ 

. Just so^<a devise to A. irhe oomes of age; canifot ve^ 
<iW he loomea of age. 

A nd he wasaot to have the fee» tUi tlien. 

In gifts of per$onal estate or legacies, it is t-h# same. 

For. if the time is annexed to tl>e iegacy itself^ and not l<6 

the pay ment of it, then, if the legatee dies before tile tiine 

of payment, it is a lapsed legacy : but if anueted^fo tbA 

♦ v. ante Si6. jpuyment^ then it is not* 1 L«?. 167.* ** ' 5 

S. P. accord. t Salk. 41^ p/. 1. The case oiSmtU contra Dee, e^d^ 

in Chancery, « Verity 34p. - • . c k i m 

• As to the executors takingoniy a ouxrt%'L*inMt4itiWi6 

being defcasMe does not make it the losA^fte, : « ^ 

In theci»eof Gainer V, Shtjflojii (yaugkiin^ i^ftik 
so laid down by Ld. Vetughan, 

Tliis is a fee to the trustees and their heirs ; thongli 
Uabbd'iwktdto a contingency. It is the word ** Actr^'that 
makes it a fee. Littleton^ § 1. 

. Lf so,' then it cannot be a vested remainder; but must 
bean executory devise, a mere coiitivgeiU intvrest* \OOk 
Sq. Leonard Loveis*s case. 
r 232 1 A 8 <ot Mr. PerroW'a cases— 

BorastoAt case, 3 Co. 23. is not at all applicable to the 
present case : and it was there necessary^ towards forward.- 
ing the inieutivu of the testator^ that it should be a vested 
Yntti'est. -Aod that was an ezpre^s devise of a cAo^/e/ ; so 
that the /re vesUd immediately. But here are no such cir« 
cumstances, in this case. 

:As< to the case of Taylor y. Biddal, 2 Mod. 289. there 

also WW aft egress dtviu of a chattel, to Elizabeth Whar- 

ton ; and the fee descending to her, would hm>e mseged 

the term^ contrary to the intention and words of the tea* 

ilator* . 

As tathe case of Edwards ▼. Hanmumd, 3 Lev. 132. 

Hilary frmn,90iGQ»:.ti .* SSI 

ii iff '^MOHBOffe . AppticaUs .to th^ prfieot- ctae^ . tban tiie 17^7. 
other two are. That was a condition mlmfuenU ooowriTitB 

But A<r^aM«« ^lodrda to ihiaw Ihei mfrnAioii o/'the teg- ^t iliti-Mi 
Ulop to.>^ve>beei^ *< that iCeitl^e^^of his Mphews abould uAvT^aT 
" die, his heir at law should not inherit.*' ; • ha^wato.. 

A4iii\b9re U ifl stated that the iKsta tor s il^ir at law was »ouby 
let^t^ and told thia moiety by ^ounnt of all the parliciv *^ * 

, A^t^t\^e^ase^4>tMMi9fieUy. Dagard/\t isdiatinguiBh- 
al^te Aom tbi^ipr^eiU cose. 

IdnPtfT^t waa, going to repIy'-^tLord J/uiff^/cf 
stopped him, and said it was unnecessary. 

r.J^b^ case is do more than this. R. P. being seised ifH 
fee, makes his vriii to the following -ctfect*^^ I give and 
de^ise>ail my Aiessoagesi lands, teodinents and heredity- 
ments,4r<?. unto the Reverend Thomas llayward.und Joim 
BaitUf aod thesunrivor of tliem, and to- the /ieir« of such 
survivor, in trust to and for the benefit of my nephewfr 
Thomoi and John Htttp^ftrd: tliat is to say, upon trust 
a«4co9£dence ttiatlh^ ^aid Tlu^mu& Ha^mrd zx\(\.Jolin 
tiflii^i Md th^ Burviifor <ot' tham« Uts luiirs and assigns; 
9iuA\ lay oiH'and employ theit^nta and profits of the said 
^^TWtfii^x tki^mawtett^Mcey eiiueqiiou, bwigingup and 
puiiiiig out iu the world, of th^ said Thwnasznd John ' ' 

J^i^qt^ri;),' (tjie tfslatoF's two nephews,) during their 
MiMORiTiEs: and wiJLN and as they slia^l attain their 
iji^^pective ages of twenty^-one^ my %vill and desire is, that 
the same prouus^s sholl he and iTmiiin to Uiem the said 
Thomas Ilayward and Ji^hn Ha^rcard, iuid their heirs, 
equally.'* And he makes tl^ some T. H. and J. jB. bt» 
cpcecutors. . • 

' Itis^stated, that tbe defendant. IVhUbj/ is the testator's r oqo -i 
heir at law f but the case does not f^itJiow, and in what ^ ^ 

OQiirsei^ consanguinity, Thotftas JVhitby is l)«ir at law. 
IC is probable that be is not of tiie rmde line ; because his 
name is Whitby. 

The testator died. T. IL and J. A the^ two trustees, 
enter>ed into possession. Then Thvmas Heyuwd^ one of. 
the. two nephews and devisees died, under uge^and with- 
out issue. Then, the trustees let the bow defetidant^ the 
testator's beir at law, into possession of his moiety. • But 
it is not material what they did among ^ji/3dy?esj that 
will not affect the right of the plaintiff. 
* 'T^e <}iiestion is, '' whether the estate vested immedi- 
'< joMy ID the two nephews, upon the death of the testa- 
ffjtofa ox^sfimaimd in contingency, till their respective 
^ cooing > of age:" and conseftuently* ''whether this 
" moiety belongs to John Hoffward, upon the death of his 
^ brother Thm^, ti^r jis bia boil at law» or da survivor; 

234 Hility Term, 'SO ^Cm. «• 

1757 *' or whether Hdeac^ttd's tbttieh^r at law ef Khe»^Ma^ 

ex a i miss, ^^ ^^^ consii-dctfon iff WflW, adjudged easfe^* rtWy 'irfiy 

HAYWARD properly W argued 'from; if they*e8tablrsb'gfeT*>at rtftai 

^ of constrtiction, tofind^but theihMntiA^f the testator; 

WHITBY, ^hich intention ought to priPcaitiU^gretaMe to the rules 

[Hale'fHw/ oflaw. , / 

C. L. Ch. 4. Here it is agreed that a/«e t5 devisedto tb^nephews: but 

p. uJt] it is made a question " whether it be a fee depending 

*• upon a precedent contingency ; or, ^nimmedwte fee/* 

He said he would lay down a rule or two of ^eonstiwo- 
tion, previously to giving his particular t^pinion <H)^ tMs 
case. ' ' ^ 

1st Wherever the erAofe property is devised, with Apai^ 
ticular interest given out of it^ it operates b5^*Wiiyof 
exception out of the absolute propefrty. * ^ A 

This rule is laid xlown in Matthtw Mtmnik^B e^ss^ 
8 Co. 95. ft. ' • 

•id. Where an nhsoldtte property is given ; and a parti- 
cular interest given, in the mean time, as " untii. the 
^* devisee shall come of age, Sfc, : and when he shall come 
*' of age, ^^. then to him;^c.:*' the rukis,4batfthataball 
not operate as a condition precedent; but as a descrip- 
tion of the time when the remainder-man is to take in 
possession. .... .> T.r|^ 

And to this purpose is Boraston^s t^Be^ StOh^^l.aM. 
' where this doctrine is fully laid down and explained, : 
r 334 1 And this 10 Sufficient to answer the intention of the 
^ ~^ testatof : this devisee does not txkmt it in th^ mmiin time. 

The case ot^MdH^eld v. Dugardr-'m the Abridgment of 
Equity CatetX^. pi. 4. is also very alrong, to prove tfaie 

Here^ upon the reason of the thing, the infant is the 
object of the testator's bounty : and the testatbr does not 
mean to deprive him of it, in a,ny event, Nowmppose 
that this object of the testator*s bounty marries^ zjM^dies 
before his age of twenty^one^ leaving cHihJ>Miiis ; could the 
idstator intend in such an event, to disitiherit him 9 certain- 
ly, he could not. And as to the testator's heir at law, 
his heir at law is only to take what the testator has not 
deiised away from him. 

But in the present case the testator takes no notice of 
this^ Thomas Whitby, who is indeed stated to be (but it 
fhith not appear ko^) his heir at law. And be does not 
except any thin^ out of th^e interest he has given to his 
nephews; he only makes a trust, to be executed for 
THEIR btnejil ; and devises nothing for the benefit of ttie 
trustees, who were also his executors. And this is Wjr a' 
f^ee 8 Dura. CHATTSL^ilterest, which cati not last twtnty^ne years. 
597. 4 ves. pn the rule in Matthew Mannings cbb^, here is (at the 



OK/ ^ the absolute property giveq to hU nepl^e.wa. . oopptitlb 

kriarta plaiaupm th& true iotewt and meauiiig of Uiis Vx dimiss 
mU^ t#at it Ua a&UQe to cite ca^ea iwpiou it- But vet I wayward 
femember aa apposite ca^c^ ia K* Jl? C. 2. In C«iic. Tom- ^ y 
ki^ir. VamUt^a^ where the devUe waa ** fo his biolbcr, in ^mxay. 
** trust for bis eldest son B. till he should attain twenty- 
^ OD&yeafa; aiid if he should die before twenty-one, then 
adevise over.'* The comi held the age of twenty-one 
to be no Innitatioo of B.*$ iNTsassT : but only a limiu- 
tionof the irtri/, during bis iuinority; and that £. took 
the whole by implication.{i} 

So here, the properti/ \» absohilelif givtH : and the limi- 
tation is ouly of the trust. 
Therefore upoatbe whole, beheld the present case to be 
An immediate gift to the two nephews; witli a trjast to « 

^executed for their benefit, during their minority. 
Per Cur. Let the po$iea be 
delivered to the piaintifil 

Passey. [ 235 ] 

TmiS was an action of debt brought upon a bye-law a corapany*! 
^ <iftbistompany.(6) rurhltohaTc 

Tb^46eliiraliM(aftera pvoper introduction) set forth »'«T*^''yw"«t 
tHe^^ldW, which was made on the ^^^h Jfrii 1656^^1^^^^^^ 
intitled'* aiittdiiiance of election of then into the livery lom.uiacui-' 
** Uf the corporation or mystery of vintners of the city of not be pre- 
** Lokdott :** whereby it was oodained and establisbqd, tfiat «iined. 
the master and wardens of the corporation or mystery of the [^ In ^***"' 

100| lOi.] 

' (1/) That IS B.'when he came of age took the whole by 
f}t)p1t6ition ; the doubt must have arisen on this, that it 
'wilt given to B. only until he should eome of age ; without 
adding, as it ought, these or the like words, viz. and if B. 
shall The (0 the age oftweniy-one ^ears,then to kirn* The 
omission of these or the like words were supplied by the 
court, in order to support what the court thought must 
have been the implied intention of the testator. 

(&) A bye-faw that every member of' a corporation 
chosen into a particular corporate oRice mentioned in the 
bye-law^ shall accept it under a penalty, is good ; though 
there be no exception of unfit persons : for if sudi a one 
be chosen he may give his excuse in nil debet pleaded to 
debt on the bj^e-law* 

The above is all that was dctemined in this case, and 
it is nothing new. 

236 Hilary Teftn, Whd&. 2. 

1 7S?. vifttiwH toftbe 'c?e^ 6f Lotiddk' f^^lhi ilxAWh^f^, "ihaiiW 
TfHWiWt Iftive adertritliVieW/corticiywtWiffl meet to 

cd^pATftir ^ttc^nd upotitt* tewFhfiy<*^nQ htfbVfetftYefllh^ -aWterrtreh'; 
y ' of*h^Bflia dtyfittfai tittle tey^lkW^ ifrtfttta;>te ne^ff^ 

pAt'ffirV 8ht>uW'i^eqWfi*r ^nft*ta0dii«fe^M»^^a 

at all siidh Hlhe 6r tin1'^«r*thl^iiffer; '(ttifa'^lH 9i!i6h^-«;#iis , 
and Hv^ri\fi8, aal th*y*haWd'b^ tewftifly \vSrtife<l find stf m- 
moned to come and be in, tipon'afiy necessary 6cteiWW&4l^ 
corioSrning the credit and worship of thesaracbfalj^nyr 
and also that once in every year," or*ofteher'?f6ccSsidti' 
shouM serve, the said master, wardens and assistantd; br 
the major part of them which should*b^ then preseiA^I'S' 
court erf assistants for the time being:, to be holden for tbe 
said mystery, should and might ^lt^ct and choose iuta'iJhi^ 
LtVERY or CLOTHING of the Said corporation bffifryit&yi^^ 
sucii AND filo MANY ofthe yeomanry of the ^iSJ riiylrtdrr^* 
as should seem most meet and convenient unto the^;* ana* 
that EVEUV su6h PERSON of tht saidyeomanry so ihh^n 
into the said Hvery as aforesaid, ihould^ at dr before AjrVVirfJ'^ 
mission tnto the said Hvery ^ pay to the sriid master, -waMfeift* 
atid freemen and cotnmonaity of the rayste^ of vintrter^ 
of the city of London, to their use, the sum of31/.'W^:*Ml' - 
of lawful money of England. And then and thfel^,at t^e 
same assembly, the said master, S^c. did make anotb'^'bj^* 
law, that every person and persons of >Sxe said cbr|SWa1*cfDr* 
tchicfi at any time thereafter should &e by ^ tbe saiil master, 
wardens, i^c* for the time bein^^, at any court, S^c. elected 
OK CHOSEN into the ftV^bf trie said mystery; and shbiid 
not^ ^pon notice ^iven to him or them in that behalf, by 
the clferk or beadJe', acc£pt of the same; or, Wpon •ac- 
ceptance therei^f, should,' before his admission JHtd'ft'^'* 
said Ifvery; fUErtJ«E'/<^ pay to the naid masted, ^^. ttte 
sum qf3\L \3s. Ad* that tlien every particulat shi refHsingtS' 
accept^ ijt. or to pa/ ai aforesaid, tlhould tburi^iT^'Stt. to 
the said master, fltr. the *i/m ofz^l. to be recovered by 
action of d6bt, bill, plailhi, or inforniation, to be brott^ht 
in any court of record within thii Commonwealth of ^^- 
lahd, by the said master, fty?, 
[ 236 3 Then the declaration avers both the said bye-laws to 
be reasonable, ifc, ; and also, that at the time of the 
making them, and ever since, all the freemen of the said 
mystery, before their admission to the livery, wetfe* 
kno^illiy the nam^ of the yeomanry ; and that the de- 
fenda))€ wtta a^fit and able and proper person to be elect<jd 
into the livery and clothing of the said company. Thefi 
it sets fbiiSi JiiflTelectibn upon the livery ; and that be re* 
fu8ed,4rc.^ .♦,... 
T<»thiBd*claration— . . 

The first plea was " nil debet :^ And there was also, by^ 
leave, a 2d plea^ that there are twelve greafrr livery-coiih* 

patiiesiiD Xo9ffa)fv^9dolheivinf<^iorpoiQPA9ieB;ai^tb^4;t»^ 17?^- 

orderwaitint^eiitacQurt^bpldeu before the lord 1^^ 

ajdennjwi, 4^, 6ii^4c« a,tj4c.; atwhic)^ ^ourt it Vff«i/BnaQtcd»|joj(U5Ji,i,i" 

%.,',%a^dWt 00^ p^npp sqauld .take bpon«bitn&eIf.tbr v. 

" : li V(^ pf-aqy company .being one ofihe said twelve own- p ^gg^ y. 

^^ Danies, 4r«» unlc^a-he sbgulg have an estate of lOOOK 

•* 2tfc." AQdtt)e.pIeaayer9,tbs(ttbisvtfSdiieo/*Metwelva 

€ompanieB ; and ibat be had not iin estate of lOOOU ,6sc. 

Aod therefore he says, that be was- not duly elected upon 

the saidli^ry of this compaoy of vintners. 

The plaintiffs demur to this dd plea: and the defenc|<' 
ant joins in demurrer. 

Mr. fViliiamspro quer. made three objections, lo the 

1st Q())ection-^That it is not set out by whajt-authorit^ 
the court which made this order«>was holden. Clift. 
IJKS. 196. . . 

2d Objection, The court \^uncerUnn : for «i<yiy courts 
are hoklen before the .tqayor . and alderaiea ; and iioo 
condat^ which of t hero this is. - ' * 

. 3dly« Hon constat ^ rs^hat autkorily the court of the lord . 
mayor and aldermen had to make tbis order* . 

Mr* Serjeant Martin fro def. said — 

It was not known, a(^ileftio« of the ptea^ nor can now 
bekao.wn,,WHAT authoritif the court of lord mayor and 
aldermep bad to make this order : Uierefo^e 1^ gave up 
V !Bul he objected to the declarati5>a, in two respjccts. [ S37 3 

;l8t The byeflaws arc bad. ^. .. • , . 

^. The defendant waa uoi dufytummotiedti^ attend a^ 
the tfiurtiifaniitiiutMp to take won him the livefy« * : 

.Firstr-Tbe bya^laws a|)e atoi/iraryt^iUegal^i^rmivfijd^ 
fi0|t varriiii/fd by custom or clu^rter.r « : 

They are,'* that tha cqmpany may ^lect $utK oC.the 
".yeofoanry of their members as sliould ifem mod^.neet, 
** emd convenient to them^, upon the liveiry of their com- 
** piayV' and" thajt every persoa so elected^ who shquld 
*' refuse, ^c. shall forfeit, 4rc.:and evkby/^tjou 40 4l€c^df 
'* ahaU accept the same» and shall upoR ot before Mmis- 
'* aion, pay 311. 13s. 4d. for an admission fee, on forfeiture 
** of 251.*' (which penalty of 251. is made payable. abao*. 
lutely and in all events.) 

Now the livery-men ought tobejMfrcant of 4ubstance^ ^ 
cqpoi/eof being at the expence of serving or. paying tb^* 

And the averment ** that be waaa fit and able and 
** proper person," goes only to the just execution of th^ 
bye-law ; but will not make the bye^aw itnlf good, 
which is in itself void* 

S98 Hilary Term, SO Geo. 9. 

T7S7, ' (B£ed^)B08. Mayor, 4pc^ of Clr^bnfv.fft^^ 
vannAs's ^* ^^ this.) 
tx>MRA«iT ^''^ ^S^^ ** ^ ^^^ ^ livery" must be fouaded (tfther 

y^ QD charter or custom. ./. 

FA8AfiT« ^^vccA- 30 G. !2. Innbolders Company v* GledhiU^ B* 
ILrr^tB so deienaiaed; fftnd that the cotift cannot pre* 
warn it s and the want of shewing thUp "waa boklea to 
be such a fault in the deoluf ation asMiifbt be taken ad- 
vantage of upon general demurrer. 

In LUly's J^ntriea there is a precedent of iiich 

a pleading upoaauch a bye^Iaw. 

On 27th July 1(397, the mayor and aldermen made 
an order (set forth in the pleadings,) which shews the 
opinion of that court upon this head of sufficiency of the 
persons elected, ^ 

Id Raym. 446. Tatwrjier'^case, 33 C. 2. {which be cited 
for the sake of the return,) this very company made it part 
of (beir return totbe ittandaaaua *' that every liveiy-maa 

r OQQ 1 '' ^^ ^^ ^^y <^^^V^^y ^^ H^ ^"^ ougb^ lo be de 
I -^^o J *' bono statu et substantia;' 8sc. {B«t N. B. tbe Sm <rf 3IL 
J^ 4d.'Wa0lbere allowed to be good.) . 

Comberb. 221. The case of the Stationers Company v. 
Salisbury: (which wpa cited, as to the first otyectionof 
it, and applied to the Istotyection beraO^lso the lid ex- 
ception there* anawers. (as tiie serjeant observed) U> the 
^ Ejection ^bere* iBut tbat case was not deterauned.> 

2d Objection to the declaration — non constat Uiat:|ie 
was summoned to attend at the court o( assistasUs, to A^ 
upon him llie livery. ij 

; Tbe,deolaration shews* that the master aiHioM li^aiden 
may .^ppoiot a court tfAmever tb^y piease; ap. d»t 4totii»e 
fof t^^iduig this court i^ wtctrt^iu. . And tbQr only shew 
that l)e was.summoned to attend at t^he ji«i/ooiirty gem- 
snlly; < wkbouliBpeeifying wai^ it w^s tv htoMeu, 
. Mr. /F4//iamf in reply. 

iat Tbese |pgre*law3 are now of above 100 yeaia 
standing : and th^ bavebeen boMen good, aotwithsWuA-* 
ing^all olgections. Vide Raym. 44(i. Tmcern€r'9 oise : 
{ wbeie tbe return of tbem was allowed*) Aiid they ^ogbt 
to receive a iavourable construction. 

If tbey choose a person unfit, it may be taken a4i(aB» 
ti^e of in pleading, or upon evidence. 

City of L^nim v. Fanacker, CartAew^ 480»48ak:« A 
power*' to elect such persons as should seism toilwea to 
" be fit and able"— gives them a discretion. 5 Ca.itOO. 
«• RuokescsM. .... ^^^4 ., ,« 

Tbisi^ardiscretKHNiiy powf^r; and is eonfinadiAi^Mcli 
«.a«.arej<iwidable;:i^i|gbj.t If^i^ly^awcMadl * ' 

It is objected also, that the penalty of 2dik ' 

Hilary 'Veno, 30 Geo. 9. SM 

jmyMe ^imhady : wheMK it ought to be, Uilm be has 1757. 
a reasonable excuse. viir'nniR*s 

'^t tbia^i^ implied. comp^xt 

And if he has a reasonable excote* be may plead m7 v. 

-'CMhtm^ASS* City of IiOiiifenT. FmmiUh^: {m point) 
¥£ttlti^ 409. Bjr^tew of' the eity of Cmntetiury : wbere 
^y#it ^irtowas ^Iduidd.^ <V. fd. 403.) r an 1 

In answer to the 2d objeolion*— » L *^^ J 

* A»'^o cbe thMiX hotding the co«irt, the objectioa' is 
only to the form of the declaration* Bitty 

If isaterred*' that notice was buly given him of his 
^->eieetfOii :" and *^ ttiat notice was nutvT given him, to 
*f attend at the nev/ court of asaistants^'* 

Resides, he as a member <>fth4 company^ wasoBiiiQ- 
Bima tAKB ito^ire of the Itm^ of boiding their «oul*ts*> 
^'<A8toSLa9.293. The bye^law there does not even 
iaM>>&teittotheiiiAafriVaiii»of tbe'dtyt but thk is confined 
to the members of the company. ' {^fiVA^ -this^ is no answer 
to the material objection.) * 

As to Comberb. fi9t. it was not deMmrinedi* (No 
more it wasw) 

JjORn Mansfield'^ 

Tkephak^mimitied tohebfA. ^ 

The obfeetionsare to the bye-law : which baa been of 
lOl^years standing ; and, several times, judicfaUy before 
tb^'O^urt; and yet this olgectton ^smeirer been hit 

However, one answer strikes me : which is ^ that irtL 
^* BBBM iikty be pleading, if tti^ party vn»ftaffy unfH*^ 
€af^Jkm^483.f^anacker8€iiMe, and 1 JLiisMv. 409. 40d. Major, 
^IS^de Cttmbridge v. Herring^wce proofs of thfs.^By Ibe 
fsn^ it appears that it may be gtven in •«? idefyce» tipon 
ml iU«f^f4eaded ; and in the latter, it %!*«« ^tnaHy 
plended; and issue taken tipou it. And -this eqanlly 
iMd46,ai to My reasonable excuier« Aiyd we mli rMin^ 
iMitiiim tetiBM been an rmpnapaf peiwa. 

ifetw^lHMvj^MMofthecottipany, be 0itgktto tsMw 
arhos'ttieMi^toouit is: and theMforefftti objection has 
not much weight 

Mr. iuOL. i>enk0m ' 

Thebjre-Iaw givespower^' to elect stidh and i^mamf 
^ «Ht'oitbe yeomanry, upon the liv«ty, as shall aeem 
** to them JBWit4neet'^aiM<KiiiTenient.^ The ntflki de- 
sign seems to relate to the number. As to the 'ability — 
Bye-laws ought to have a reasonable con$traetion t we 
o ilgbt i i a t ^to^eoDStrtiethem aoatg&et^y , s» loitatel^m to 
be Mid, tf ^ovigf pttrtmUir wtnmk tff matsMig ^thete, 4aea 


Hilary Tenn, ao Geer. H. 




Now b#Ee, it» objected "that the pemon elected itay 

But we can neoeritittendth'iiX they would choose persons: 
HOT mtet and convtnienU 

And if this be done, " mldebt^ will bring that question 
before the court. 

And you cannot, upon thii reeord^ take in the order of 
the court of lord mayor and aldermen; because that 
plea is given up. 

A nd the notice shall be intended to be regular. 
This is an ancient bye-law ; and nothing unreasonabte 
appears upon the face oi it. 

Per Cur. {viz. Lord Mansfield and Mr. Justice 

Denisoii, the other two judges being absent,) 

Judgment lor the Pjdaintiff. 

Wilson, Clerk^ versus Ghukyes. 

KSS"" TVf ^ Serjeant Hewiit shewed causeagainst a prohibition, 
coart tosUiy ^'^ which Mr. Serjeant Poole had moved for (on the 
proceediogf 6th of Jul^ last) to i)e directed to the Archdeacon of' 
upon the flat. }^ oUingh am ^ to stay bis proceeding in a suit asrainst Mr. 
6aDd6 Bd. 6. ff^ii^^^ (parson of Newark,) for brawling in the church, 

K' Suiti for 
against the 
iBt and Sd 
sections are 
limited to 
eight caleoi 
^ mouths, 
by «7 Geo. 3. 
c. 44.] 

[ 241 

distinct clauses, levelled against three distinct offences 
committed in the churclies andchurch-yards ; viz. the 1st 
against quarrelling, chiding, or brawling, by words only; 
the 2d, against smiting, or laying violent bands ; the., 
third, against striking with a weapon, or drawing one with 
intent to strike. * 

His objection Was, (a) that as to fhis offence of smiti»g 
in the church, there* ought to have been a previous cbH' 
vicTioN at LAW ; though the statute, says'* tbatheshaJl 
'• ipso facto be deemed excommunicate." In proof of 
which, he cited Cro. Eliz, ^^^.pL 6. i:)e/iici5:'s case ; where 
he was indicted, upon this statute of 3, 6 E. 6. for striking 
in St Pauls church-yard : though he got ofi* indeed, for 
want of being named Garter* 

1 P'entr.lM}. The case of %^r v. JEfl«r, is full in point, 
*' that the striker in a church-yard does not stand, ipso 
2 *.*/ac/o excommunicated, UNiUihe be thereof convicted 
" at law, and tliis transmitted to the ordinary." 

(/i)Thia case is a trifling case, not worUi reporting; 
not a new point in it; nor any correct citation of any 
report but 1 Vfnt. UO. and that had been 'done lofig be* 
fore, Cas. Temp. Hard. 193. 

Hilary Tenn, SO Geo. 3 242 

Aud here having; been xo pnmom comvicihn at lawt 1757. 
lie prayed a prohibition quoad the tmiting ; and obtained. • clbiik 

A HULE to shew caufee. ^y^ 

A^inst which rule, Mr. Serjeant Hewilt (on Moiidatf c^eave^. 
7 til Fdfruar^ 1 757,) shewed cause, as follows. 

Ou a, 6 E. 6. c* 4. there are three sections, and three 
different offences : and this offence charged in the tibcl, 
)» not an offence constituted so by this act ; but was a 
liidtter within the jurisdiction of the spiritual court, 
hefurc. ihht act, and abstractedly frwn it. They have, 
without dispute, jurisdiction Xk&iQt\\ebratcling. And as 
to the second hvvLWcXi^iorsnutinf^in Me ^Aurr/f, there needs 
not be a previous conviction at cammo/i law: it is enou<rh, 
if the excomoMinication be in the spiritual court , J'o 
prove which, he cited llet/ei/ 86. 'I'he case oi ^ iner v. 
Eaton: Cro* Jac. 46*2. The case of Larfrf v. ^Iton^ 
pL 7 : Cro,Eliz. 080. The case of liaker v. Brent and Uo- 
binson; 1 //uaA. P. 139. c. 03. § 27. 

2 W. Rayai, S.^0. 'I'he case of IVennionth v. ColUns. 
The court denied a prohibition; because this offence was 
originally and before this statute, conusable in the eccle- 
siai^tical court, ra/ioMe/(/c/; and that the statute, though 
it provides a penalty, does not alter the jurisdiction. 

Therefore he concluded that notwithstanding this ob- 
jection, the spiritual court Atfre jurisdiction. 

It was then adjourned to the next day; when it pro- 
ceed and was determined. Mr. Justice Foster 
and Mr. Justice Wibnot were both absent. 

Mr. Sejrjeant Poole — I cited 1 VeutT. I4(j. Dyer v. Eo$t^ Tue«day fith 
ap a casein point, •' t/iat there must he a previous convic- Feb. \ni 
•* tion by a trial «/ iuic:'' and " that such conviction 
•* must be transmitted to the spiritual court.** 

Cro. Eliz.2*lA. DetAi'ck^sc^se: where there was an in- 
dictment actually found and pleaded to. 

As to my brother Hewitt's cases— 

iTetleyS^. Finer against £aton/\s a loose, incomplete 
note ; and gives no reason why the prohibition was de- 

CVo. Jac. 46'2. Large v. ^Iton proves nothing at all to p g^^ T 
the present purpose: and it was for brawling^ o/i/^;in^ 
w^ich case, I agree that no prohibition shall go. 

Cro. JS/»^686. is indeed in the alternative, ** after sen- 
" tence, or due trial and conviction, and not before.** But 
that is^ only said by Doddcridge^ then at the bar, in arguing 
j or the defendant 

fVenmouth v. CoWns might be for a prohibition general^ 
/i/. Indeed a reason is given for denying the prohibition; 
viz. ** that the spiritual court originally had jurisdiction 
•• to hold plea of this matter, before the act." 

But I deny that they had such or?gma/ jurisdiction: 

Vol. I. R 


Hilary Term,' 3d 6*6. i. 



[243 ] 

and tbe ^(A give9 tiem none. Thm is aforcevi e/ armii; 
an assault and beating : and fiie temporal courts will pr<>« 
hibk thc%n< from pr66eedilig upon it. - • * 

Bro. ProhibilMt, ft. \4l and Bro. Cofuukatiom.G. arts 
ejcpress/' that where a inanr sueft in the spmtuai couif: 
** and an action at common law lie« for the satrve maftter ; 
** a prohibition lies, and no consultation shall be grant* 
•• ed-'* (These are both the saitae case ; c«. 2^ B. 
4. SO.) 

Mr. Taylor White spoke on trbe same side, fdr Mr. 
Wil^n. ^ ' . " 

' He even atte^npted to alie^ir 'that a prohibttiofa would 
lie reasonable as to the tranriinff^ #or tbst the fbotBtet^ 
could'iiot ^oome within- the notjonof brawling; and it 
wasjcmly speaking "to a third person^ to turn Gmratf obit 

As to the «trikiQg*^tbe spiritual court bad no josUdic- 
tion before the statute; and the statute givee tbeatno^tf: 
tb^ ha^ie only power to pronounce the $eMt$nce Of tcx- 
\commaiiioatiOD ; but not ibe power o( judging. 

As to the case of IVenmeuth v. CoUingSy it is but a loose 
luite ; and Holl was absent ; and there niiglit have been 
a confession. 

And there have been iriany indictmentSi he said{-. on 
this statute; aud this method of conviction was the 
ancietU method. 

Lord Mttfiifielc^ 

The statute of5, 6Erf. 6. c. 4. bas three degrees of 
ofiences^und three differ^ntpmiiBhments. ' 

And whatever jurisdiction tho spiritual court might 
cWim tefbre the act, they are now proceeding since 'the 
act ; therefore it is not very material how the matter 
stood before the act, 

Tbepuhishroentis'given* by this act, to the etxlesias* 
tical court : and the punisbnrent Usuch ascau only be 
executed bx the ordinary. 
The case stated with r^ard to the first offence, is 

[Except what 
u roention- 
ed infrB Ai 
to one part of 

meot^for the sufficiently a braidings within the meaning of tb€ 
third o(&DCc.] ^ct, sec. 1 . 

The second offence is smiting in the xhimb^ or 

[ Hobarti Now this is indeed still an offence at commoA la«r; sind 

sei.] ' h^ fnay be indicted for it.(a) But^ besides this, h^may^ bj 

this act, be ipso fiitto, excommunicated. By whom? l^ 

(fl) No indictment is toaintahmble on the act fiottliift 
cffffencfe, Cro.ELllSl.Cro. Car. 464.; therefore the trords 
at common latt are propctly here made useof t^'t^brd 

Hilaiy Term, SO Geo. fi. 944 

^ ordiaary.. Indeed the ordinary may use a convictioa ] ;p^^T, 
ailsuv/zaaa^o^'of the fact. „ clerik 

And the case iu J2«ym. (2 JLJ. fiig^n. 8aO«^Fe/ii7uiiiei y 
V, Cb/iitti,)v is a plaid proof tiiat the ecckaiastical court ^j^b/ves 
viay pnn^ciad upon the tivio firat ciaufies/aad are not to be 
. prpblbilftd« 
ruiB^t j|bcD:filiere iaa third oflSence and third punishment 
meotioned in the act»of 5» iiE.6. c. 4: which has made 
all the confusion* This offence is maliciously sthking 
WHb any weapoa,) in awy cbuvcbiH* cbiircli-yard>or draw* 
ing any weapon there, with intent to strike. For tins 
third offence* tfao act inflicts a doobJe punishment;' one 
temporal: the Qther, spiritual t the teoipond punishmedt 
is loss of ail €air» oroiarking in the ch^ek, ^r^ eonvktion; 
tlieaptrilAifll it,f and besides^ ewtry such peiaaB to b&and 
** stand f]psoy«ctoexcoi|iimunicated as is aforesaid/' 
< iSfte, rndsed, tbere ilitislilfa a prwioue conviction-; and 
a ^nsmissiofM^ the seBteolQQ ;. and aidedaration. . 
A^lit on the aected da<»s6».|io fnaomu$ cdnTictioo is ne- 
€^sary:(lbo«fgh>j^*tfaereisiHie,itmi^ beusedaaa^o^ '^ 

. j *'ll'his\Mhei is upoa tbe.;&ir and uarnd dause« : not upon 
the third. 

And the ptooeedinga of the tw» coturta being diterso [s Atk. 673. 
flif#iiifi^ itis no irtrjectioD. to say,:^* that a man. will, ait Salk. hb2 
•* this rate, be /tvice p{/m«Ae<^ for the «a;neofffnce.*' ?g ^f:^y^'^* 

Thi^ i^ common^ in many oases : tor tf-e* proceed; to ^33. pi, ^"4 1 

It is clear, that upon th^ twi» fibsii. ilauxst the eo* L *^^ J 
^'lesiastical cc^art h4:S a j urisdiction* 
* The cases upon words do not apply to the present 

Mr. Just. DenUon concurred. 

Their proceedings are jvro salute ammm*' Indeed ifthey 
jMioceed iordamage^t this court will prohibit them. And 
that was Ikid down by the court, io the ca^ ot Lnrg/t v. 
^Ii9n^ ii\ Oo. Juc. 4ii2. where the costs being •given only 
^pro expends .iHi9^ the court would not nrolubit them : 
but they declared that they would have done otherwise^ 
if it bud been ;m» </<n»;tM. 

And it is plain to me, that the case in 1 Vsnlr. 146, 
I^fer^m Eeai^ was really a determination ^upon tt^ third 
clauM&of theaet; and is a mistake : 1 •oppose tfaewordfi 
•* witk4s weapon** are l^ out, by mUiake. The reporter 
vras then a young man. 

''Bat however, this is the only case to be m^t with, to 
fim pnipQSe; and it must be a mistake^ either in tbe state 
oui&e case, or in the opinion : for on the sccovd clause, 
tiax4y^we can mox prohibit them ; .because th^ ^re ex- 
actty within the wordi of the statute," that if m^y pqr- 


245 Hilary Term, 30 Geo. 5. 

1737 *' son or persons Bh'airsmlte;6fTt<y any 'violent handa 

"LERK '* upon any oth^V, either iti Wrt^ diuHrhbr 'chureh^jfindl, 

*^ '' tliey'slialrzpsoj^c^t) be aeemefl eicommiifficate/^ -> 


' tile KuLEl'VeiS t)ISCHi^KGl?D.^^^^ ' * *' 

Wednesday, ' WooLLBV et al* rcrs-wi CoB^fc et ar'(BiTl oi' CMbr, 

9lhFeb,.l767. k fl*rtcTUpt> - i . ♦• 

The bankrupt r^tH^ original defendant 1)ec«fne^b«nknipt^ perfding 
STafc' -^ the action. The bail w^^Jitedtn Jidjr.- 'Ifhetaipk- 
prior to the ' rupt obtTiiifed his ce/tt/?ca/e, m-rfz/^sT following.' v , 
fixing of his • The question \va*, ^ whtftther Ib^^btM ^honMiheitiig- 
liail will dis. * <i' chat^e(J, hf ' this ceitfjicatt,'' ftfhifcii' wag^ndt obtfatned 
r^^ce\^3ot^\ '^'^ AFTEK they werejlxed and the drft/ levied upMthQm 
* 450. n. "* ^ by //.y>/. and the money aclual/y inthe hands ofth^}ik&iff':) 
1 Aik.'sss. or** whether the bail were become absolutefj^- liable ;* 
7 vin. 71. and consenue^tlv, the certificate came too iatt- to iielp 

r c^A,^ 1 Lord ilftf/zj/zV/y made ft flistinction, and Mn Just. 'D^/^i- 

i ^^^ J 5o;*an(\ ]Mr. Jast /Wer agreed toit,** that if theneitili- 

" cate is obtained *(/»re the* bail are^Vrf, they shell be 

ii / j^A/f/aAf(^* dhchcmed: but if they are jti erf, before, the certificate 

t^A OOyx^^^^U jg obtained, tlM>v remain liable." («) • 

ru)f^ SIM-- 43()/WfA. 1757. 31 G. 2. J5. J?. Cacktrtoh v. 

Ou'sicn 5?. P. p<iieed to by the whole court. Also, 
Ludlum V. Makhidly ^Oih AJ<iy 1772, 12 Gv 3. 

Rex:' irr5W5 GatEr, Esq. 

An afling jus- IjLM^^'Ciou^A and Mr. Wilhs shewed cause against qoadh- 
tkeot* peace ^^ iiig an order of sessions, which (upon appeal to 
a iubsi antial them, by Mr. Gm/er,) discharged an onler of two justices 
and a li uitn^ appointing James Gayer, Esq. and Benjamin tobieffiohe 
ant of marines overseers of the parish of Rockbear in com. Devon. - 
ttot compel' Mr. Gayer alon6 appealed from this order of appoint* 
lable to serve ment ; and the sessions discharged it, as to the appoint- 
Movcnecrs of ^^ent of Mr.Gtfj^er only : {the words of the order are—" ii 
'where theiei ^* *appedring vtiio this'court that, tfc. and ^aiso, Ac and 
areotbcriuf. '* '/W; 4 r*; this court doth THER£rou£ vacate and mtikie 

^cientpcnous • 

irithin the - • ' - " "• ^ \ ,- ' 

[Seespougl^ (fl). This last point \ras a^in so determined in B/R. 

isi. « Dnrn.'Soth i^fflfy, 1772. Ea. l^ Geo. :J. and Serjenxii. Burland and 

SD8, 779.] Serjeant /)flrjf acGuainted the court that the point Imd 

been 66 held in C. B. and the court said it was a' new 

caus6 'of action'-aga insk the bankrupt. - ' - : ' 

Hilary, Term, 3Q Geo, -2. 2^6 

r^-¥oi<J the said warmut, as to the said J, Gaver.^) It 1757. 
IftppeftrjNfg unto tbem» that be had some years beeu^ aad nci* 
was att^ time of the ppimiiationj, ^d stiti at the tiii\e ;. ^' 
of making the sessions order« an actikc JUsticE of q^y'er 
peaUi .for • t^e said coy nty» residing within the said, parish 
of Rockbear^ and a sub^ntial. housekeeper there; and 
also a lieutenafU of marines in his majesty s service, on 
hat/'pay; and that thei'e are ot/ier sufficient substantial 
'boiiiteboldeff$r wUhin the said parish^ for the doing such 
office. The court" thsr«jpo«e vacated and made void 
*' the said warrant, as to the said James Gayer J^ 

-Mr. Norfvis bad, on .i3th November 1756» moved to 
quash this Ofdet of aestf ions: iorih^it neither of these Atro 
rrajoii^ weresuSioient to justify the sessions in quashing 
tboi^rdeff of^wo justices, whereby Mr. Gt^er was legally 
andregularly appoiBted ope of the overseers of the said 

" Aad a aui^b was thereupon granted, " to shew 

On shewing ca«ae> the counsel .on both sides went (at 
large) into a long argument/* whether the reasons giveii 
•* were sufficieat:" particularly,, •* whether the office o{ 
** justice of peace, and the office of overseer, were com* [is Tia. 132, . 
" patibk;" aad *• whether the objection could beremov- issj 
•* ed by appointing a 'di^/^-overseer^, if it could, then [ 246 ] 
** whether a justice of peace was Uable to be appointed 
*^ overseer, in order to his executing the office by 
'* deputy." 

Lord Man^tld said, the general questions con- 
cerning the incompatibility of offices, and the power of 
appointing dfiputies, area large field indeed; but the^^re- 
sent question seems to turn in a very narrow compass. 

The lefsioiM, upon an appeal, have a right to exercise 
ike futile latitude of discretion, in judging " who are fit 
- ^*' to be nominated overseers," a,s the two justices 
bad. They have given their opinion " that Mr. Gayer rs. p. 4 Burr. 
" was not a proper person to be appointed overseer." 5l08. ace] 
They are not obliged to give un^ reason for their opinion : 
'because the legislature has intrusted them, upon an 
appeal, with the pow^r or authority of appointing over- 

J^'tbey had given no reason, their order had uhdoubt* 
"jcdly been good : we must htive presumed ttiat they acted 
upon proper grounds. 

It is true, that where the tthole reason isset out, and 
isr ^clearly wrongs we may and ought to quash an 
. pr4^r manifestly made by mistake, upon an erroneous ' 


r -.: But.tbcQ the badxeason given mustappear tp hav^ been 
their only inducement If tbore may have been oM«r 

247 Hilary Tferm, 30 Gteo. 9. 

^4^* grounds, they should be presumed sujQRcient ; and the 

Rcx ^^ order ought nortft6 belseS^itf^;' betmtMMne of tbeiw* 

y 8ons. unnecessarily ^lY^n, appear to be bad. 

'Q^Yjf^sL] 'Therfe itWW*>&^i5»y fbr>appointii%> Wfe(0*yif"i;it|e 

\^ ; ,<;( ^e^iotiis ^kte ^*th^*tbe#d were olhep»ufide»i>8ubBtdU 

:^ tial householders , within the said |Mirisb.** ' Tl^ 

^niight think Vir} Caifer, under M the eiroteistaiii^. 

^irmprop^r urmece^drflf \!o be ipp6i)ited: his beiogr'an 

acting justice of peace residing witbtn* the parish, and 

^ , -ii Keutenant of marines, might bis two' circumstances 

which weigiied among others. But it does not follow, 

heithef ts it said, lliat tbey looked upon both or eitb^r 

of th^se reasons, as mexempiion ftsNn being appoimtd^ 

' ; ' or a disabifiijt io ^r^e the office of overseer; and ikat 

?, M : ^ thcjr ijicated the warrant of two justices «i iliegal u^on 

/ 'k . that arrf'ount; • . • 

' The execution of a discretionary power, where it' i^ 

tfot necessary to c^ive a reason, ought- to be supported, 

wiUss the t/hole reason is set out, and manifesHy wrengi 

Here; the whole rcnson upon which the sessions acted, is 

hoi given.. 'I'bey say there were other p««ons, qualified. 

Suppo^nglilr. Gayer liable to serve the office^ they-night 

-think him not ^o proper as many others. And therefore 

r 247 1 we are not obliged to say "that the^ whole restsou they 

"* *• went upon is bad;" allowing (for argument) that thtie 

arose no legal objection to the appointraent ol Mr. 

Gayer: which, I think, there is no occasion now to 

examine. * 

Mr. Justice DenisoH concufred. 
; They were not ebliged to give ciiy reason at aU : and 
}f it be onfy an imperfect one, we ought mi/ to quash tbetr 

He added— I remember a case, (Her v, Spaldif^ I 
think it was,) whet^ the justices held a man settled in n 
parish; by reason of an apprenticeship ; not saying*' that 
•* bt had served forty days in theparisb^ under it;" yel 
the court would nol intend that tbey did wrong. 

We will rntetui eveht Ming in favooa of the justices, 
in their ordets. 

Nb w here, the reason does not appear to be a wrong 
, reason ; it is enough, that they judged him an impuopsr 
■■ perion fb be ot)erseet» 

Mr. Justice ibiler concurred. 
.,. : . Pfr Ctir. unanimously 

« ^-^ Order of SESSIONS confirmed: 

OAn£R of TWO jusviOBsquashedi 

Thumday, ^ Rex vernr^lKHABiTANTs OF CHiDiKOFOX^n^ .' ' 
\^^ ^^^' See tftis cAj^G abridged in the vabaa \ wd at large 

1757. .^ ; / ^1^ ^^^ ^arto editiM of my SsnaAKJiKx-OAfws^ 

No. 132. p. 415. 

Hilaiy Term, , 9P ,Geo. 9.> 218-249 

i ,f X.VIiKB« ««r«U| B^KTHA^* ,:.,..; PLVXBEBR 

fpHE.ttCCH;derq£J4MME9« (Sir fritfioM/JJSjr^^) cfme bbntYia^m. 

Afn. /fiilifmi movadL (when Sir H'fUiam Morttov- was cauom of 
dowoiiat' UiQ tor^ (Im^ the. recor4^ of Loudon ia(iAjg.hJtI.oodiiatob« 
fotttrji V9fOi^v9Sitsolc€giior0ti clifectod to the lord mayor certified at 
ii«A«lderiBfutofLoiW#i»» to certify two of th^ custooi^kOf ^^«^^>y the 

'And then Mr. JViUiumiKi^mt^A, the. case, m.that H^^yj^^ \^ 
iMm aaivAipB rf tr^pasi o»«e brought by the ftroiml- Eul 
fiaitoliffiagftHWt the dcf(^daiit, for obstructing kis oHcieai loo. loii. 
hghU^ by ^fmm oi^ciiQnor building which the defendant Cl«r. 4Bd.S0, 
had raid^ against them ; to which, the defendant had, J^?« * I"*** 
thy leav«,) pleaded two justifications, both of them tjnder "fj "* 
Ibe custom of the city of London. One of them w^, 
tiiat; iliitfra is an ancient custom in the city of London^ 
•« that • if asy peiaoti has a sDessuage or house in the 
^* city.' pf XiMMfefiy adjoining or contiguous to another 
** jccssuAGii OR HOUSE or to the ancient /oMJt^^ii>/i« o/' 
*' one in the said city, which former house has ancient 
*^ U^hii or windows fronting opposite to or over such 
^^ other adjoining or contiguous mKssuage or house 
** ox %nc\ent foundation of ont: such oMa* person, owner 
^ of the LATTER taesBuage or bouse^ or ancient ybu/iia^io/^ 
•• ojf one^may well and lawfully exalt such his messuage 
^ or house^ or rebuild upon the uncieiU foundations of such 
** ^is adjacent or contiguous messuage or uousjc any 
1*. n€W Mesfunge or house, to amy height that he shall 
^ please^ against and opposite to the said ancient lights and 
** erindows of such firstF-mentioned nei^bourJDg jqes* 
^ fiuage or house to which his messuage or house or an- 
^ cieiit IbiHidations of a messuage ornquse are lo.cooti* 
^< guotis or adjoiniug ; and thenby darken and qbscure 
«< such ancient lights and windows of such f^rst-men* 
** tioned neighbouring house^ having such ancient lights 
** and windows: unless there has been sonie writing, in* 
«' strument or record of an agreement in restriction to 
*• the contrary." 

On this plea, issue was joined : and a certiorari issued, [ ^49 "1 
directed to the mayor and aldermen of the city of ion- *• ^ ^ J 
doji, to certify *' whether they have or have not such a ,^ 

•• custom." ^iK^i'sf f • 

The second plea, issue, and certiorari were the same * '-^ 
with the first, only with this difference or rather extent 
$ion of tfce t;uBtom pleaded; mx. ** that the owner' of any 
^-' Rtiicnov OR.aQiL9iHa»or theancienjtfQUj^d^tion oC 
f^dgty CBKCTiON QR »uxi<PiNo, might well ^p41 awfully 

250 Hi|aryi1Jec«n,..^C^0e&.ai) 


PLUMMER *' buidl ib^TffOtt} anaew BJtHCTioiror'fei/^L'Diso'W'iafiy 
* Vi V - "^* Iwfigtb^t UiJit .t»pliw»es|i4rfl-^'"«ind m otey «« in theffer-* 
bent}/am. m^r: i^tef^:? ,onlJ« '/thail theffomneir' plea^: c6ttlitiQd the' 
•' ' cl^im.. olfr>.tl>B;piiTilegef • to. m«Mtnig«t or AoAJii^s^' wbJttf' 

ttiie Utter. fj^ttxtends to all erections bfi^bifAliiiiigi. '• ' 
fs^itJViUivm Maretou; kvtt. recdipder of LoiiS^ni ^c^e^ofd-' 
♦Seeibc first *"S*y certified okb rcEjros, . by oMnmflfnd of tfee/tefd' 
ca^t' in Sir U. mayof and eldtfrnienv (nft«r baring i^rted^«be ^l6»^ir»^s * 
C»lihro^>*s ' and c^rC/orofiU ^ ttet iheneu s«cb c^'<:iiitom '^ isdll^g- 
Ho|)ort8,(pret- " «d ju til e./oriwf. plea; but that there is'jw such cUs- 
*'*y '•"'l^^^f^^ " torn as isaikdgedinthe kitterplea,'^ - > *= • " '* 
rwdin^.) ' '^^^^ iw^rder then . deUvered in botli> the^ write- of cv»>-- ' 

\?here**«ho t'lArari^ wilU tE^hitlai copiM of : the re^peciiv^ retornjj ail- 
qntfltionw.s nexed ; tbqugh he .had delirered xittfai^rtt^tUMZii^e. 
very like the ^^^, . ( whichv'hd ooW iiie, was iiswihI;)i: Tb^'refiflftt^ vw^re 
fb"^'ilct' mi- worded as. ibUowat-risi 'the«xeoutkm bf tlw^ Vrrtf fa^ 
nation a^rce- P^^^f * ^H ^a, certata .<:Bi ti ficate by ug tb« may^^v artd ^der- 
aiile lo The me*i of the said* city of London, made by U>e ^econ!^c^ of 
ccriiiicutc as tlj^BAJd cUy at the day and plaice within oon^ained, 'ac- 
to this first cordiBg to tlie custom <£ the wiid city, by w'oi'd'of iiioilth, 
[S^e^also^ovin. as i» \f ithio comiaaiided. 

(C)l. *?l Viii. . ' ' . . 

24,25, «6, 27.] y^^ Answer of Mar?he Dickinson, JBjW; tic Mayor, uni qf 

the Aldermen of the ma] City. ,\ , ' .. ' 

We the said mayor' and aldermen of the said city, \)y 
S\T WHliam Moreton, knt. recorder of the said city^'bjt ^ 
word of mouth of the said Recorder, according to the » 
said custom of the ^aid city, do, in obedience to flie s^icjl » 
annexecf init, h'trmfeiy' certify that there is now bail,. ». 
and from tlie time'whereof the memory of man is not .< 
to the contrary -rii^e hath Been had and received siicU •> 
• ancient and laiidable cusfqni in the said city used ap^^ » 
approved: to wit, *^ that if any one hath it messua^e^or, - 
** house iri the said dty,' near or contiguous and ac^joitir . 
" ing to imbtfidf ancient messuage oii house, or to tW *. 
" aAcfent Jhundiiion of another ancient messuage o* * 
" irob^fe m the kaid city, of another person his neighho}ji^\ . 
r 950 1 " there ; imrf th<f windows or lights of such messuage or , 
*• Adwfe are looking Fronting or situate towards, upoiior.!' 
*• over ov'tigaittst the said other ancient messuage o.ii" 
j , " " y^eSE or nntxent foundation of such other ahcj(?iit' 
" *Mft»W-/^GE OR house ofsuch Other jjcrson hisnei^hbouri . 
" so 'being' near, adjacent, contiguous or adjoining,^]?-.. 
** tlt&H^h ' ixxth messuage or house and the Hgbt$ ap4 j *t 
** witWoWii*thetebfbe or were ancient, vet such.()?//cr.', . 
** person his nei^hboitr^ being the" owner ofsuch other ' 
**^ MfedstJiStffi^oii nouȣ 6r ^tioiemfounialioJis so boiug ' 


Hilary 7tfptn,. 30 CSeo. 2. 251 

*^pear, adjacent or adjoining^ by and aceonliiig to the' 1737. 
'^ custom of the ialidcity io the same city forall thepj^^j^ ' ^ 
*' time aforesaid iMed and approved, miU ^nd IwasfMy y^ 
'' may^ might and hatb used, at hi» wiiland pleasure, j^^jj^^^^^ 
^' his viid othr vewuxosoR house so belong near^ adja* 
** cent or adjoiniag» by building to exalt or erut : or^ of ' 
** fn^ve, upoJi the ancieol foundaiiom Oif 0uch oMef mes- 
*\ SUA6E oa ilOf7BB SO beiog Deaf^-adjaceDt br adjoining 
" f» build and erect a nem masuage or houie to svcH 


** ^nd opposUt-to the said ligAts and uindows near or con- 
*' ti|°^uou8 to such OTHEit KKS8CJAGB OR iio08E» and by 
** mesiis thereof TO obscuee akd daakbm such win- 
*' 4owa or lights : unless there Ue or bath been some 
'Sliritii)g> iostruineot or record of an agreement or re-* 
" strict ion to theconliufy tl^reof io that behalf." 
T,he- retura to the oiJlier writ of certiorari V92ls in the , 

sa<ne fpror, and to the very same effect as to the cas« 
. toip certified by the former; and repeated the return 
to the former certiorari in totidem verbis^ very nearly : 
y. but it went oof urtlier, with a negation oi the exist- 
ence of any such custom as the defendant bad a|- 
ledged in his leco/id justificatiot^ The additional 
part was fts follows;^ 
And thatin the said city of London there is not now 
or ever was any iUch custom, '* that if any one hath a mes- 
^* suage or house in tbe said city, near.or contiguoua and 
** sidyoining' to an erection or buildino or to the 
*' ^Qcient foundations of £(n erection or building, la 
'* tfit; sa'id (^ity» ofai^other person bis neighbour there; 
*' atid^the Windows or lights of such messuage or house 
•* ard'teoking fronting or situate towar/Is^ upon* over or 
" a^inst ^uch ejection or auixDiNa .or the ancienf 
" foundations of such erection or building of such 
*' other petson his neighbour so being i^ear, adjacent, con- 
'^ tigubus or adjoining: although such messuage or hou^e, 
" and the lights and windows thereof be or were micient^, 
** yet such other person his neighbour, b^ing th^ ownef 
** oVsuch ERECTION or BUILDING oraucicut fouddations 
" of such ERECTION or QUiLDiNc SO bciug near, ad- , 

** ja^eiit or adjoining, by and according to the cui|tom«Qf 
" the kaid city in the same city for all the time aforesaid 
used inA approved, well and lawfully may, might and f 33 ( 1 
hath used, at his will and pleasure, his said erection- -^ 

or BUILDING so being adjacent or adjoining, by build- 
ing to exa/t and erect; or, of new, upon the ancient • 
foundations of the said erection or building so 
being near,adjacent or adjoining to bujld and erect a new 
erection or buUding^to aucu iieigutu as^Aeonvicr lAa// 
/^/eff^^/againstand opposite to the said lights aad win* 


9SS^ HUnry Tern, aoGco. !fe 

I7&7* *^' <*<>^^ <tf Meh mesB^ogt oi^ bouacv igKi by means tb8iM( 
pirV M ttsR *^ "^ obaeute and datkeii siiclx mndows or lights." i 
y, ^ The coiiiiT ord«^ed Ibe UrtUrari to, be fikd, 99A the* 

^ Noto — ^Nothing of this kind has actually 1/appened for 

TQ^^ Q^^ many years paat^ (not eveo sii^e U. the sixth's reign,) 

£nt. 144*1 in ^'« court; (though it has ia the court ofCbsB-* 

ceiy.) And a tonsultat^ioaivajS bad in'thecity«.cott- 

r certting the s6rt of gown which it was pnoper foi the 

recorder to put on, to niAke tbisorf-<«iwb return t in 

which consultatioti it was detenniaed that it ought 

to be the purple cloth robe, faced with black velvet; 

and not his scarlet gown, his black silk one^ nor the 

common bar-gown^ 

'& ^ '^"™* ^' ^^^^'^ ^iridgment ; Title Ct^siom ofUnd^H, letter 

'-'. P.piadta ^ &4. concerning tliis manner of , trying 

the customs of Unidon: and how to $urmise */ that 

** they ought to be tried thus,.and iK)t by thfc country:** 

It is FoL 7' page^4(i. Note — wiiioiU saob dkturmist^ 

they shall be tried by the cottntsy , asi Uhitr issues in 

taot are* . ♦^ ^ 

Rex versus Strong.^ ', ' 

IndictiiieBtfor l^R. Serjeant Poole shewed cause against quaahin^ f^n 

.tnSecooLiU indictment on 5 JE/ia. c. 4.s<ci»ai. (foif e^wrcisi^jga 

to 5 Elis. tiL trade, not having served an^prenticeship thc^^inj found 

maj be found at tbe aeasioitt for the cii^' of CarlUU. 

*'*«*y;r Mr. JNeria» had (on. 27th November 1756) moved, to' 

•cmSm" quash it, upon an objection^ " that the nVy sessions bad 

•• no juriadittion^^ And he had cited^ in proof of it» the 

case of ReghuL v« T/tylor^ ^ Ld« Raym. 767, where h^fch 

an indictment was x)uashed» *' because the bobough 

** sessions had no jfurtMljc^joii to take such indictments^*' 

He inaialed tha* oitXrV the j^iiaKer-sessionsof tbe goui<(TV 

have jurisdiction. Tbe indictment in that case of trn^ 

lor w» feund at the sessions for the corporation of ffelt^i 

r 950 1 ^^ i*i<»red hikbey hy certiornrL .^, 

TThe doubt ^^^"'^^ MaaafiMy at the time of the original motion, 

whether tbe lulled into tliejactof d Eliz. a 4. and said that tfbis^^ct 

borough tet* (§ 39.)exprefisiy gives tlie power to mayors or other, b^^ 

SMS had Juris- oQkerft ot cities or twom corporaUt at xac in sessiii>n9> ,^ . J 

diction in this ^^^ „<>^ ^p^jn ahe-wiog cau%e, , ;. '^/t 

case arose on rr»i "^ ^* • ■ #%^i > «i.»//j 

31 Kliz. c. 5. T*"^ COURT was unanimously of Uiat Q^^Y^f^^,,^ t/ 

1. 7. as ap- The case of the Queen tagainst Tajfk/ w^ In ySjfHl^r 

Mania terna, 1702, lj{n«tfi;and is cotUradicf^d by, toali.Q^ 

SMod^SSO. ' .^■' 

not 00 thisstat. 5 Bnz.r,4. Had the case rested only on that» there never iri^ W^dMVS 

Oave been a colour for any doullti koircter the d^nbtwaf rmoieiif tb*dftie» 

here referred id.] - -' " - ■ , i '. - .. .^j; ' ; 

determiiMd vet Mai^3 Aam, 1904. thoagh it iftio l Soik - q^ 
370, hy mtaldb* put under Mich. S fFit^.^ Kdr. 'y; ' 

Per Cur. kulb oiscHAKeeiK •TSC^m* 


~i; . . . 

The.cou&T' was not up tUl n^ar an hour afler 
midiiigbt; though many rules were enlarged, 
:aiid oiasy long motions adjourned over titi 
•• mextteriB* 

, A* the regulation made by the court concerning tibws 
fook ife rise i* thh term, it may be proper here to state 
^ej^ thing reUtive to that subject ; which, al the time of 
iiif m$blicatiofi, is a practice fully settled. 

The gtaatittg of rules for- VIEWS in * dvil ctuses ah q 4 5^^^ 
Btandg't'nwvstttkdtipoa the follow ii^ foot. c I6. ^ S. 

GREAT INCONVENIENCE bad arisen from theabusc of doet oot ex- 
views and their being perverted into means of de- ^* '^ <^i- 
LAY, to the intolerable hindrance of justice* Some late JU'^^I^^ 
instances shewed the mischief in a glaring light : and the them there 
example being once set, there was no doubt it would be can be ao 

foll<>#ed. ndeforii 

QJWfr Ae 4 * 5 Ann. c. 16. $eei. 8- Views were granted, I^in^ 
a)k>N motion, ofc&arse. And upoii this act and 3 G. ^ c^ot; 
c.2p. secM4. a notion prevailed '' tiiaft siw (^ the fir$i f in iw, 
**tttihii Upon the jmrniel most view^ iiid appear at the f 855 1 
•*'ttia^ if they dt* not, therd could be no trial, and the ' 
•• eanisemtatgoofF;* ' 

' Inhere eWier party wished delay or vexation^ be moved 
^a view. A thousand attCidenta might pDevent a view^ 
or iix of the first twelve from attending the view» or their 
dtt^ing the trial. He who wished them not ta atteod* 
mighjt by various ways bring it about. Wbenpea.defci»« 
dant in possession was well liked, and the fdauitiff a 
Biranger or unpopular, genilemen of themaelvea ibaod 
excuses; especially, if the view was trooblesome and* at 
a distance. Canses in several counties had at a great ex« 
pente beeti rfgpeatedly carried down, and put off; either 
beeaufe ttlere wu no view, or because six of the firsi 
twelve did not attend the view or did notatjtend the trial. 
ThoiugH twelteviewera should appear zt the trial, yet ac- 
cd^i^p to the notiw which prevailed^ if sir e^ t ha first 
haeittwpM the pa&Ml were not among them, the cause 

YsrSlMiteM^HOy of tbif abuse» to delay,, vexaVious ex- 

peoce and the obstruction of justice^ was so maaifest» that ', 

§34 Hilary Term, SO Geo. 2. 

1757. the court thouglit it their duty to consider of HfettWrfy; 

and in. Michaelmas term 1757, and a* otfc^' tlm^;lJerfd 

Mansfield informed the bar to thefollowidg^^efleetr **lthat 

. *^ they haM cbrffefrred together upon the X'B'uBfibf i^l^ws, 

'*• and considered of a remedy in the poweii* 6f the tfewtl** 

Before the 4 H^ 5 Ann. c. \6. sect. 8. there cdMd ble no 
view till after the cause had been brought on toWali'^ If 
the court saw the question involved In obscurity' which 
might be cleared up »y a view, the catfsa^ ^viB i>tftofl^/that 
the jurors might have a view before itc4me"0n'to fce 
tried again . The riile for a view proceed^ updnTthe |>re- 
vious opinion of the court or judge, at the trial,** that the 
•* nature of the question made a rieW not only pr*^er 
*• but 7teces$ari/ :** for, the judges at the assizes were not 
to give way to the delay and ex pence of a \new, Unless 
' they saw that the cause could not be understood without 
one. However, it often happened in feet, that iipoh the 
desire of either party, causes were put oflTor want of a 
view, upon specious allegations from the nature of the 
, question," that a view was proper;" without going iifto_ 
. the proof, so as to be able tojudge whether theevidence 
might not be understood without it. 
f 854 T This circuity occasioned delay and expense : to pre- 
vent which, the 4 8)^5 Ann. c. iG.sect 8. impowered the 
courts at f Vest minster to grant a view in the first instiUCe, 
previous to the trial. • ' 

As a view mj^htbe of use, and in rt?> shape was 
attended with no delaij and but little expenc^, it became 
, tiie practice to grant tliem of course, upon the riiotion of 
c/V//er party. ' 

The 3 G. 2. c. 5^5. sect. 14. provides*' that where a view 
*' shall he allowed, the jurors who have had theview shall 
^* be first sworn, (or such ofttfemasshallappear,) before 
•* any drawing:** which means, in opposition to diich 
' other jurois as are to be drawn by ballot; and nt^tXo 
establish " that six at least of the first twelve shall be 
•^' sworn." 

Upon a strict construction of these two acts f/r practite, 
the abuse' yvhich is now grown into an intolerable grie** 
vance has arisen. 

Nothing can he plainer than the 4^5 Ann. c. 16. sect. 
B. The courts are fwt bound to grant a view of course; 
the act only says " they may order it, where it shall 
" <//?^f(zrfo//i^w that it. will ba proper and ffecessary** 

It is infinitely better that a cause should be tried' upon 

a vievy hatl by ant/ iuelve, than by six of the frst twelve ; 

or by any' six ; or by febcer than six ; or even without 

any view at all : than that the tj*ial should be i>EtAY£D 

^/ro/n yw /o year, perhaps for ever : it can never be pro* 

Hiktj Term, 30G«O. 3. 255 

ptf^ Hfc^M/iryta grant a vtew wrhich !» asked, anil used 17^. 

:, .'There Inave. been instances of great causes put otT for 

y^ars? and tliou^-b eveu, nine, ten. or ejeven viewer^ have 

nt^^Q4ed|>yet upon, olyection •* that they were, not six of 

, •? lAktJirii /«ie/pe,'Vtbe cause baa beei> put off, and a view 

\tnovi^fof« as. of course, again by the party who liad avail - 

'e^jbin(]|seU*af so glaring a chicane. 

• -We'are aU clearly of opinioru that the act ofparlia- 
meat.ineaot a vievr should not be granted, Wes^ the 
4M>uct«yftada/j{/fefi(thatJt waspAOFCR and NEcr.^SARY* 

> 'j'be abuse to ivhich they are now perverted makes this 
caution our indispensable duty : and therefore, upon 
.eye)Fy. motion ibr a view, we will hear both parties, and 
e|:affiii^(upof) all the circumstances which shall be laid 
beforj^ US on both skies) into the proprietj/ and necessity 
4»f .tbempti^n ; unless the party who applies will consent 
to fiid move it upon terms which shall prevent; an unfair 
use beipg made «f i^ to the prejudice of the other side 
and the obstniction of justice. 

• LoiLD Mansfield having made this declaration, bis f g^j "j 
lordship desired the geutlemen of the bar to thhik of 
itf and, if any olgections should occur, to mention lUcith 
,' The expedient proposed by the court wa^ universally ^ ' 

The first instance happened in Hihin/ term 1757, in 
- a grc^tcaust^ between Pierce zml the Earl of Fautcoiiberg 
, ;iud 0ther3 : which was an issue out of Chancery, often 

• tried at Durhum by special jupcs, and now ordered to be 
tried at bar by a special jury from Yorkshire. (Seethe 
rule at large, together with the addiiion of the tonsent- 
part, iftfra, pa. 25(), ^57.) 

Subsequent to this, was the cause of the Farl of Dor* 

linkglon V. George Boves^ esq. which was an issue out pf 
.Ctoncerj% and had been thrice carried down to ba tried 
<.^t.X)iir£atfi (where tliere are assizes only ouCc a year) at 

a great expence, and every time put off by the defendant, 

.^poa otigecjtions on account of the view. Once, nine view- 

« ers appeared;, but they were not six of the first twelve. 

Another time, only four viewers appeared at the assi^tts. 
*Ib 17579 a. view was granted by. mutual consent, upon 

.tern^t but by an accident (of a fall from his horiie) the 
.judge of assize was prevented from trying it. The de- 

feniTaDt Bowes moved, in Trinity term 1758, for a view ; 
.,JHlt ^use4to renew his former consent, or to come into 

ajn(y lernas ; ii^sisting that by law he was entitled to a view 
j'f^^QOitT^e^ .The plaintiff bad likewise moved for a view ; 
.i$9i)6eK|ting to the terms. Both motions were adiourned 
'M Ife^ la^.day, of the same Triniti^ term 1753 : vjrbeh the 

court, iipon all the circuqistances^ rejected the defend* 

256 Hilary T*rm^ • 30 Geo. i. 

1757. m^'a motiOBvunless be riiOiikicoBBent within a week totfae 
terms proposed. He wopuld nol tzoasent. Tte -caiiae cncne 
On to be' tried at DifrAoan, without a 'view, bcKore Mr. 
BaroD Smtfihe, < It happened, many of the juflcnrs had 
viewed upon scHne of the former occasions^ - A ivieniict 
was giren, for the plaintiff, to tlie salsis&ctiQFn of tb« 
judge. Tb^defendant moved tlie court of Cbaooery 
for a new trial ; because he had been refitsed^anew; 
«nd beoause it might be fit to bate another^triali bcA>re 
his ieberitanoe was bound. Mr. Baron Smythe certified 
** that he was sattsfied with the verdict^*' and also, 
*' that aTiewwas totally uimecessary, thete beiofr d6 
^' dispttte coRcerning the locality, discriminatiott or limits 
** of the pretnises, but merely a questioQ to whom cer- 
** tarn lands belonged."* The court of Chancery lAiought 
proper tagvant anotlier trial ; but q[)proTed the deaytng 
a view^ ii»/€si he renewed his consent ( and made it plirt 
tyf the order for a new trial, *' that he lAoir/df confient 46 
"the terms.*' It was again triied, before Mr. Josftice 
r 2^5 1 Bttthurst: and a verdict was. found for the plaintilV, to 
his saiisfa(Gtion« The defendant mo.ired the court of Cban- 
oery Sotvl new trial: which was refused. 

Had notthecourt put ac^cA to granting views, IVom 
lifae to liime, as of course, a rich defendant, conscious that 
the merits were against him, might, from pique or humour 
or litigiouaneas, have kept offtl^ oauieas Img as he lived ,« 
for want of a view, upon a question Wibere a view could 
not be of the least utility. 

The wisdom and fitaess of what the oourt bad dtoe 

toregulateviews was so folly' manifested upon the occa« 

sion^ofthisx cause, and i^peared to be so well justified 

by thciaudiorky given them by the aa of parliament 

and by »enny principle of justice and convenience, that 

BO party has erer since moved for a view^ without coiw 

seating to^ the terms: and it is fiaund in experience^ 

that' views are. * now regularly had, and a comp^ 

*Ai the time tent number of viewers appear at the trial. A view ip 

of this pub^ notaskedt sow,' except in eases where it may probaUf 

(17650 ^ of ttse: .and <ad the non*attendance of viewers can now 

tV.Bopra. gratify neither party, both* concur in wishing the dmty 


The. rule* that was made in the first instance, that bap* 

'peti€9d afler the expedient was proposed by tbe 

<' >ooilirt,aad was received with general approbation sH 

is above-mentioned, was dmwo up. in >ihe fiotkming' 


*29ih January irw Satiifday next after fifleen days of St. Hilarv in Ibe 

*'^7. ^'^CMh^yewofKtngiGcoi^tftheftd.'' 

*• Pierce^ wtj. r. Earl FnnlcoTiherg and others 
'' By cOds^nC df counsel on both side^ti it is ordeiieid, 

Hitefy Term, SO Geo. S. 357 

\^ that there issue a vnt of ditifitfgiisfataiDmt^ ta bt^ <ti- 17^. 

4*niected to the ftberiff of the county di' Yo9^ ; m which 

*'< 4liaU be gontained a clause commanding the said ^hcrift' 

*' to-hne aiocor more of due firet twelve of thejuaats 

^ lx> be impanaolled and returned to try the issue betweea 

?titbft pvartiea^ at the place in question; before the time 

^•flftitbo trial of the said issue, to wit, iipou, ^c; and 

'^-thiit B» Ji..on the part of the plairttiif, and T. H\ oa 

^ Ifae {)art of tbe defendants, ahatl attend gu the saxne 

^ daif and ahew^ the iliatters in question to tbe «aid aix 

** ar SMore of the first twelve of the said juror.s ; and that 

*^. tbeeitfpeuces of taking the said view siialt be equally 

*^ borne by both parties; and no evidence shall be given, 

^ <n\ either side, at tbe time of taking thereoiL" 

•• t And by tlie like consent, it is fuifther onlesed, r 357 1 
^ that in case no xitw shall be had; or if a Yiev«hati 
^ be had by akit of the said jurora, (whether tbey shall 
f^t happen to beany of the twctvt jurors who ahaU be 
^}^i«ST named in the said writ, or -not :) yet tlieaaid trial 
** sbftH pioceed ; and no obfection shall be made on Neither 
1* aide, either for ti^nn^ of a view, or that a view *waa not 
•• bad by any of the twelve jurcrsjirst named; or fortliat it 
^ ,9ras not had by any partkidar nambtr of 'the furors 
^ fiamed in the said wrk, or for want of a pwperrttmrA 
^. to tht aakl wcit/* 
^ *^ On the motion of Mr. Nariou, of oovokI for tbe 

*' plaintitf ; «od of Mr. Gmild, of ooimael for the de^ 

" fendants." 
Tbef cause was tried at tbe bar, on tbe HtvoC May 

17^7 : and a full j«ry of viewers appeaicxl. 
'. Tbe above recited rule wasfor a view to foe had bya 
jpmialjvLwy ; and was made absolute at once, being «eoa-< 
amedtO'by both parties: but during tite renmind^r of 
tbie aame term (of Uliary 17d7,)and>also^during itoe thpree 
{oUowing terms (X^tEAster, Trimiij waA Mi<kaelmMsVl^l,) 
tbe court, upon proper affidavits, -granted tike^ rules {nrn* 
tainrmmtakdis) in cases that were to be triad by tommon 
JaSrJcs!; making them^nly ** to shew»oause/* em absohite 
iwibe Jrst instance. The neict terra (HtiatynM,) they 
nuMfe some nf them, ** to shew eaoae;"'Otifei*fiv!aihsoiutein^ 
the first instance; but none without proper titfirdavitiu 
Soon aftbr, vixAn Trhtky term 1756, they tnad^ali^ttiese 
n^ idlsohite in tbe first instance ; some, upon «fiidavit ; 
eiiiera^anf of course: smce which time^ this^ are become 
fllDtie«lii'6foonrse,withoutaifidavit. 'i - 

-:j? — r-: f — . . <■ . 

^ Mote-Hie feraer dwio of tiiit rale wi| in li^mmmt>fmm tff 
rules for Tiewi whem the trial wat to be liy a special jurj. 

Bat this Jatter dau«e C* and b; the Jili^ ceos^t^t 19 Jmiher ordcr- 


Hilary Term, 30 Geo. 2, 


♦See last 

C 258 ] 

♦ K. B. This 
art (of 3 6. 
f .) (toes not 
reijuirc them 
to be six of 
the lirst 
+ These words 
are taken 
from the same 
actof parlia* 
jnent, sect. 14. 
i V. tupra. 
note (♦)(+) 

^ V. supra. 

notci (»)&(+) 

The form of them is as follows— , 

If the trial is to be by a special jury, the rule runs 

It is ordered that there issue a writ of distringas jura^ 
tores, S^cSfc. — " taking thereof:** (in the, words of the first 
clause of the above recited rule between Pierre and Lord 
Fautconherg and others.*) The additional clause is ex- 
pressed in these terms — ** the plaintiff, (or the defendant, 
•* viz. the party who prays the view) consentin»2f that in 
" case no view shall be had ; or if a view ^liull be had by 
•* any of the said jurors, whether they shall happen to be 
** any of the /ane/re jurors who sliall hejirst named in the 
" said writ, or not; yet the said trial shall proceed; and 
" no objection shall be made, on either side, on account 
" thereof, or for want of a proper return to the said writ" 

The rule for a view, where the cause is to be tried by a 
common jury could not continue the same, since the bal- 
loting act (3 G. 2. c. 25 ;) as it was before; nor coula it be 
ejrflf/(y like to that for views by apcria/ juries, (by reason 
of the particular directions given by the 14tli section 
of the ballotting act :) but it used to run much hke it, 
oiily mutatis mutandis. The present form {since that act,) 
is this — ** it is ordered that there issue a writ of thstrii^ai 
*' juratores, to be directed to the sheriff of the county of 
** ' Y. : in which, shall be contained a clause commanding 
" the said sheriff to have six or some greater number of 
** * the jurors to be impanelled and returned to try the 
" issue between the parties, t ©'Ao shali be mutnat/y cou" 
•• sented to bj/ the said parties or their agoits, at the place 
•* in question, before the time of the trial of the said 
" issue, to wit, upon, &c. ; and that ii. iJ. on the part of 
** the plaintiff, and T. W. on the part of the defendant, 
" shall attend on the same day, and shew the matters in 
** question to the said six or some greater number of the 
" } said jurors, who shall be mutuallj/ consented to as afore- 
. *' said; and that the expeuces of taking the said view 
" shall be equally borne by both parties : and no evidence 
" Shan be ghren, on either side, at the time of taking 
•' thereof." 

The additional clause, now added to this rule, is in 
" these words— the plaintiff," or " the defendant," (the 
party at whose instance the rule is prayed) •' consent- 
" ING that in case no view shall be had, or if a view shall 
" be had by any of the jurors, whether they shall 
" happen to be six § or any particular number of tht 
** jurors § uho shall be so mutually consented to as aforesaid; 
** yet the said trial shall proceed ; and no objection shalt 
** be made, on either side, on account tliereof or for tmfU 
" of a proper return to the said writ" 

The end of Hilary tefm, 30 Geo. 2. .1757. 


90 GEO. IL B. R. 1737. 
Three Judges present, viu 

Lord Maasfield; 

Mr. JusL DenisoB, und 

Mr. Just. Foster. 

{L^rd Cammimmier Wi Lx ot absent^ inChtmcery.) 

Cooper vemn Marshall. 17^. '^ 

^pHlS case was the same point with a case of Cope ▼• [S. C s wfc 
■*- Marshall, which had been formerly twice argued, {viz. ^JO ^ 
onKth June 1754, and 31st January 17B5.) Both of J™^««*^- 
them stood now in the paper for argument ; the present tretpaa^ that 
case having been never argued at all, and the other having it wti done to 
never been argued either before Lord Mansfield or Mr. «*Ma«a 
Justice fVilmot. ""hSTif •^'*^" 

This case of Cooper v. Marshall stood first in the paper, ^uM no* 
and came on first It was an action of trespass for break- mjoy hii 
i»g» entering, and digging up the plaintiff's close, nxidfillifig coromon as oT 
fip ^ni sDoiUng the coney^urroms there, 4c. And ttiere ^'^j**^?"!^ 
was a 2d count for doing the like in the plaintiff's/re^ ^Ed iwordl 

^^!;'^*- inglyund 

Several pleas were pleaded, by leave of the court that s; eneral 

Plea— As to the 1st count, was a justification under a ^«^'"*|on 
right of common in twenty )acres, &c ; and that the coney- Joura 74*°*^ 
burrows were wrongfully, unlawfully, and injuriously ibomo.u.ic 
■newly erected and kept up there : by reason whereof the ^Ouro.'484. 
«aid common was surcharged attd spoiled; so that the de- f 260 3 
fendant could not enioy tijj^cien^ common in the saidMealio4Bii& 
twenty acres, as of right he ought And therefore, he«*«5- 
Justifies the bfeaking,entering, and efigginj 191 the plaintUTs 
close, ^nd filling up and spotUng the coney-burrows, as it 
was lawful for him to do, in order to abate the said 

There was also a second jurtification, much to the 

To the 2d count— were two justifications not fiiach di£« . 
lisrent froia the forimen 

VoL.^ S 

261 Easter Term, 30 Geo. 2. 

The plaintiff demurs to these pleas: and 
►ins in the demurrer. 
Mr. Morton pro quer. — The justification arises merely 

1767 *^'^^ plaintiff demurs to these pleas : and the defentfant 

COOPER joins inthe demurrer. 

MARSHALL ^^^^ ^^^ plaintiff's having 5wrcAarg€d the common : and 
Hhe wording of the plea cannot alter the matter and sub- 
stance of it. So that the defendant's callwg it a nu csance 
will not make it so : but it really is a mere surcharge of 
common. Therefore the word ** nuisance" is here mis- 
applied. 9 

He cited Cro. Jflc.446. the case of Fowler y. Sanders: 
where the prescription was treated as a prescription to 
make a nuisance, though not so expressed in terms. 

But it is not an illegal act, for the lord to place conies 
upon his own land ; though the land be liable to right of 
common. They are beasts of warren, and profitable to 
the lord : and the commoner cannot chase and kill them. 

Bracton^ lib. A. 2?1. makes a difference between ano- 
cuxnenium justum^ and a nocumentum injuriosum. 

Fleta^ lib. 4. c. 26. dt Nocumenf Servitutibus injuriosis, 
makes the like distinction : " nocumentomm aliud, inju- 
" riosura et dampnosum ; et aliud, dampnosum et nou 
• ~ ' " injuriosum." 

These authorities shew that the injury arises ow/y from 
the excess. 

And the commoner has no such remedy, as the defendant 
here relics on. 

The question therefore is, " whether the comnrioner 
" has a right to dig up the lorcTs soil ; in order to pre* 
" serve his right of common." 
r 261 3 ^^^ lord cannot indeed /o/a//jf de«/roy the commoner's 
qualified interest, contrary to his own grant. Yet the 
lord has rights compatible with the commoner's right : and 
these are legal in their own nature : though they may 
become injurious, by excess. 

On which head, he cited Fleta^ lib. A. pa. 232. [ 
252, 253, in cap. 18. de pertinent iis.) 

But this justification puts the latter case upon the same 
foot with the former : whereas the commoner's remedy is, 
real/y adequate only to the injury done to him. Now a 
surciiarge of common is of the latter kind of injury : and 
yet he here claims a right to dig up the soil and destroy 
the conies. So that the remedy claimed by the justifica- 
tion cxc£KDS the injury done. And indeed it would go 
furtl'tr than a judgment upon a writ of admeasurement 
would carry it : for which, he referred to Fitzh. Nat. Brcv. 
295. (27 G) and Ifeatm. 2. c. 8. (13 £. 1.) There, the tenant 
who is guilty of a second surcharge shall only pay 
dama^rts, andlbrteit the overcharge to the king .- wherea^s 
vK?.t is hf'v i'-rimed, is 2l total coujiscation of the lord's 
J ^ t inj u ry done tO the commoner. 


Easter Term, 30 Geo. 9. 9GS 

Aotborities io point, or nearly so» ** that the commoner 1757 . 
* cannot do this/' are Godbolt 122. Coney^s case^ H. 29 cooper 
£&. which is full in point: and the principal resolution ^^ 

h confirmed by 4 heon. 7. Oidd and Coney's case, S. C. In M^jigj^^jti, 
which case, it was adjudged ** that the commoner cannot 
" kill or destroy the conies which destroy his common C* 
but it appears by Godbolt^ that '* he may have other 
" remedy. Audper SkiV, Justice, he may have an action 
** of the case or assize, against the lord, for putting in 
■ * the conies, if he has not sufficient common left" 
Indeed it is said in I Leon. 7. ** that he hath not any other 
** remedy.'* But Fleta^M. 4. c. 23. deadmensur. Pasture, 
fa. 262, 263. justifies Mr. Just Su\Cs opinion, '' that he 
** has remedy ;" viz. either admensuration, or assize of 
novel disseisin. 

A commoner cannot even distrain the lord's beasts 
which surcharge a common. For which position he cited 
CodbolitUt supra, pa, 124. as an authority* {F, what is 
there saidjper Gi(idfrey arguendo; but not any part of the 
resolution of the case.) Much less, then, can he destroy 

Cro. Efiz. S76,|). 43 E/j«.Thecaseof JBe//«i? v. Langden, 
the same point, and adjudged accordingly; " that the 
'• keeping of conies by the owner of the soil is lawful ; 
'* and the killing them, unlawful." And Oaen 114. S. C. 
(there called the case of Pellinv. Langden,) S. P. accord- 
ingly : which adds, that the owner of the soil may make T g62 1 
a fish-pond upon the common ; and that the commoner -^ 

could not destroy it. 

Yilv. 10^. Hoddesdon Mil. v. GrrsiV, M. 5 Jac. B. jR. 
and Cro. Jac. 195. P. 3 Jac. S. C. there called Hadesden 
y.Grissel; it was adjudged "that the commoner cannot 
•* Mil nor chase the lord's beasts off the common ; but 
*• his remedy is by assize, or action on the case." 

Agreeable to this resolution — in a case in Cro. Jac, 
^29. M. 7 Jac.l. there called Sir Jerdm Horsey v. Hag- 
ierioa, a plea very like the present, was over-ruled with- 
out defence* The case really was between Sir Jerme 
'Horsey and Mead and Havor and his wife. The justification 
was, '* of levelling the coney-burrous^ and laying them smooth 
*• and even with the ground ^ and the reason given for 
doing it, was, " that uti non potuit his common, prout 
'* debmt^^ Adjudged, without argument, " that the com- 
*' moner could no/ do this." 

After this, the commoners tried their chance igain, by 
altering their manner of pleading, l^his was in the case 
in 2 BuUtr. 116. Carrill v. Pack and Baker, Tr. 11 

Here, the coney-burrows were treated, by the justi- 
fication, as holes made upon the common, by the plainti£^ 



965 Easter T^m, 30 Geo, 2. 

1757. Jnto which the commMers sheep fcll ; and that the sheep 
COOPBE ^f ^h® commooers often fell into those holes^ and were 
Y. thereby lost; wd therefore they jnstify the channg the 
XAliBBALt. conies, and digging anaJHUng up the burrows. 

And agreeably to thi« case, the pleading in the pre-* 
•• sent case is, that the plaintiff erected coney-burrows. 
*• i^cr 

In that case^ all the cases and arguments were urged : 
iind yet it was fld[judged against the defendant; wholiad 
justified the chasing the conies, and digging down the bur* 
rows zxiA filling up the holes. 

^ificewfaich time, the gs^nd point has never come io 
Mr. Aston pro dtp 

In the first place, it does nQt appear that the defendaQl: 

did KILL any of the conies : though Mr. JtfoWon would 

Suppose that to be implied in his digging and filling up 

the burrows. 

r ^S 1 ^^^ ^^^ "**y ^^ ^^ depastute the tomnlon,! agfte : 

L ^^*' J knd the commoner cannot kiU or chase his cattle;^ 

But it does not follow, that where necessity obliges the 
commoner to abate a kuisakcc, he may not do it. 

And surcharging a common With rabbits in a great 
degree, is a private nu'isamce. 

1 Hawk. rUCor^ 197. c.76- treats of common nusances, 
and how they tnav be removed ; and he says " that any 
•• one prejudiced by a private nuisiLnce may destroy it.** 
Pa. 199. S 1 2. -is express. 

d Rol Jbr. Tit. Indictmaft, letter Q. Nuisance TL 7, 8. 
A presentment of a surcharge of common, is not good : 
hecause^it concerns a private interest The same, of an 
inclosure of common, in nuisance of the commotiers. 

Bracton^ lib. A. c. 21.|mi.221. sheWs that though the 
act was kgal at first, the excessmakes it mtsance. 

But here the 2d plea is ** that the lord has erected so 
** matiy coney-burrows that the commoner bad not 
*' sufficient commoxi\eff* And this fact is admjffed by 
the demurrer. Therefore the lord has brdken through 
the bound of right between the lord and ihe commoner. . 
The lord cannot inclose or build upon the common. ' 
And there are no degrees 'of insufficiency: the Only 
question is'* whether there be .or be not sufficieilt com- 
** mon left ;** as in the case in 2 Mod. 7. Smith v. FevereL 
And the commoner may in such case abate ihe niisttace. 
2 Inst. 88. is in point 13 if. 7, 10 6. is also in point* 
He may ALSO, indeed, if he chooses it, bring an action 6f 
trespass or assize. But be may abate th^tn, MJIdttf suit. 
HaUs Analysis 110. [F. pa. 125. ( 42.) Roberi MWy*M 
case, 9 Co. 1 12. b. affords the KttOo ; viz. the preventinc 
multiplicity of suits. 

Easter Tenn, 30 Qeq. 3. S64*26^ 

As to the doctrine of the 4Xttninaner*s not meddling 17^7 
with the w/- CTOpik 

I'he lord could approve before the statute of Uerion. y^ 
1 JBo. Rep. The case of Sir S- Proctor v. Sir J- Mallorie ; Marshall* 
jprr Cofe .- and agreed to by the lord chancellor. FUzb. r qca t 
Title ^^fweiwew^ (there cited.) L ^"* J 

And this appears too by the writ of Quod permittaL 
Bracton^ lib. 4. pa. 227. b. (the writ there) shews that 
the commoner might p|iU down pales, ^c. 2 InU. 88. 
ad idem. 

This is like all other cases of nuisance : a person may 
abate a nuisanc/e to his property, tboogh upon the land of 
another. 9 £. 4. 3d. a. is so. 

As to Mr. Mortons cases— there is no material diffe- 
rence betweendestroyipg hhedge^ and destroyii^' a coney:' 
burrow. Nokv 2. Mod. 65, the case of Ca$ar v. Mason 
is in point, ** that the commoner may prostrate and abate 
*' a hedge;* and surely that is meddling witlrthe siriL 

And there mm be cases where the commoner may 
cbase off the lord s beasts : as suppose they are infected. 

As to Con^^s case, it was very different from the pre- 
sent : for there the lulling and carrying awt^ was justi« 
fied ; wbereas we do not j ustjfy kilUng^ chasing, or taking 

So the case of BiU^ v« Langi^n was kUUng. There 
was no pretence of any sMrcbarge of common. It is a 
justification of killing the conies as being damage-feasant : 
and it is only adjudged tbere *' that the killing them was 
** unlawful.** 

So Yelv, 104. was chasing and kUUng. 

Aod in those cases, there might be sufficient common 
lefty for SMght thai appears to the contrary, in any one of 

Sir Jerome Horsey sc^ae is not like this. That is for 
breaking a warren : and the coaey*burrows there are not 
i^id to hojuwly erected. And it was done io prevent the 
coney^burrows increasing, so as to be a nuisance : not aver« 
ring *^ that they were then a nuisance." 

Wbgre^ts here it is averred do be a nuisance^ and a new 

As to the case of CarnYv. Pack ondBaker^it is for 
entering the plaintiff's free warren, and digging the land- 
And there, in the justification, it is alledged to be done 
Sot the bettbb preservation of tl^e comcnon. And the 
free warren is adi^itted : aivd therefore he could not 
J listify the killings Sfc. 

As^tp a pond— ii' it was so large ad not to leave suffici- r pQ^ n 
ent qommon, it would bea nuisance, and might beabated. L ^ J 

1 Lutw. 101. The case of Hassard ▼• Cantrell (which 
i.ipeatiQned on a former aigument) was only '' that the 

265 Easter Term, 30 Geo. ?. 

IjAy^ " commoner could not enjoy his common iu so beneficial, 
COOPER * fl«d fliwpfe a manner as before." But it does not say, 
as here, '* that there was not sufficient common left." 
' », Which i»goinff a great deal further than that case does. 
K*H«iAl.i. Mr.Mor«a«inreply- 

Mr. jiston agrees that the act of the lord is legaL There-* 
fore it is not like acts which are against his own grant ; 
or cases which become mamfe^ta disseisina. 

*• Ulterius nocumentum" imports a present nuisance-^ 
Lord Mansfield stopped Mr. Morton in 
liis reply. 

" Whether it be or be not hurtful :*' or " how far it may 
•* be so ;" is not the question : the question turns' upon 
the REMEDY ; *• whether it is abatable ; whether the 
" commoner can do Aam^^/ir justice." 

It may Ke prejudicial to the commoner, yet not injuria 
. ous : it may be both prejudicial and injurious, yet not 

abatable. ^ 

The lord, by his grant of common, gives every thing 
incident to the enjoyment of it, (as ingress, egress, t^c, ;)' 
and thereby authorizes the commoner to remove eveiy 
obstruction to his cattle*s gra2ing the grass which grows 
upon such a spot of ground : because every such obstruc- 
tion is directly contrary to the terms of the grant. A 
[iB#ianq.l5, hedge^ zgate, or a wall, to keep the commoner's cattle 
^fi] »ut,isinco9tsiitent mth a grant which gives them a right 

to come in. 
[Qa ? Ore. ^"^ ^^^ '^^^ ^^^^^ remains owner of the soil: and is not 

Bite. 198, 199. debarred from exercising any act oj ownership, 
fl 19.] The commoner has no right to meddle with the soil. 

The true distinction is taken in the case of Mason v^ 
Cmiaf in 2 Mod. 66 : where the court was of opinion 
** that the defendant^ a commoner, tR/gi^ abate the hedges; 
** FOR thereby he did wot meddle with the soil, but only 
" pulled down the erection.'' 
[ i66 3 '^ *^® hedge stopped the commoner from entering, and 
putting in his beasts. The grant gave him leave to enter, 
and put in his beasts r therefore it virtually authorized 
him to remove any obstruction directly repugnant-to that 

But in the present case, the lord has" done nothing eonr 

Irflf-ytothe grant: he has not obstructed the commoner 

from entering and putting in his cattle. 

[Cro. Jac. The lord has a right to put conies upon the common : 

195.] as appears from the case of Carrill v. Pack and Baker^ 

in2J3«/«rr. 115,110\ 

The conies themselves naturally make the burrovs.. 
So that they are incident to the right of putting on thb 
If the lord surcharges, the commoner is t/j^w-erf in his 

Easter Term, 30 Geo. 2 2C7 

fight of common, it is true : but wlitt is the commoner's 1757. 
Ttmtdjf f Not to abate : not to be his ojxnjudgtt in a com- coopbr 
plicated question, which may admit of nicety to deter- y. 

There is a certam Unt to be drawn : the lord has a 
right so far; but no farther. Yet the commoner cannot 
destroy Of drive qfffthe conies : nor, consequently can he 
destroy the bvhrov/s; which is, in effect, destroying the 

This is {bunded upon reason, and upon many autho- 

Sir Jerome Horsey s case. (T. anie^ 262.) 2 Bulstr. 
115, 1 10. The case oiCarrill v. Pack and Baker {V, ante, 

And its being a^ree ®arr€» makes no difference. ^ 

So that the question is not, " whether this be an injury"*: [g^ 2.T' 
'* but,wbether it is ABATABLE." 

I think it so clear a case, that I have no difficulty at 
all about it. 

Mr. Just. Denison declared the same thing : and he said 
he saw no difference between this case, and the cases 
cited : but merely in the expression^ viz* that in this case 
it is treated as a nuitance ; which is not the expression, 
IB them. But this /brm of expression makes no difference. 

Upon this record, it must be taken, '' that the plaintiff 
" was owner of the soil, and had a free warren ; and that 
** there is not sufficient common left^ (by the increase of r 057 "i 
" the conies) for the use of the commoner." ^ " A 

The question then is, ** whether the commoner shall 
" be intrusted to destroy the ESTATEof thelord, inorcler 
*' to preserve his own small right of common." 

1 RoL Abr. 405. pL 2. gives the reason why the com- 
moner cannot* kill the conies, but ought to bring his* Yet Roll 
assize or action ; viz. ** because he cannot be his own "*y'^ " DM\i\' 
^'JHdger *•*'*'•" 

So here, thisjustilication wouhl make him a judge in 
his own cause. No : let him take his proper remedy. 

This is plain reason; even if it wasrM)/ supported by 
authorities : but the cases are alsostrong, to prove it. 

The only point of this case turns upon these pleadings 
CALLikaita nuisance. .u 

But this will not make it a nuisance abatable by the 
defendant himself ; nor can it alter the law. 

In Sir. Jerome Horsey s case, Cro. Jac. 22P, it was 
adjudged *' that the commoner has no other interest than 
** to take the common, by feeding his cattle there : and 
*• may not destroy the conies nor coney-burrows." 

A coney-burrow is not, of its own nature^ a nuisance : 
on the contrary, it is essential to a free warren. 

Therefore the nuisance depends upon the smmber of 

«6K Easter Tferm, m flea.*. 

I7^7r ^^^^ * and you can, at the utmort, only state *^ 

Cooper ^^f^th^Qgaa ts aitaisaace. Tou caiitiot'tkstpojr the 

y tshole, (which is the right here claimed iy bai^nly iomtnth 

MhHsnjttJu ^^^^^ ^'™^ ^ ^iw*** it a imisanee^ . 

^ ^ In 1 Strange 6SS 9 in the case ©f Ufx t. P^^foii^ 
' .. Lord Ch. Just. Raymond expressly declares so. Suj)* 
pose a DOffln builds bis bouse up so hieh» as to be aiiai- 
sauce to his neighbour, by obstructing bis lights Of in any 
ether respect arising' firdm its exaen ; ^o» cannot i&is^y" 
'' the te^/b/e house, but only jo much of it as by its earcesv 

^.. ' above what is allowable, constitutes tbenoislRice. 
' ;» . Mr. Justice Foir^r was of the same opiinoB. 

This justification is Clearly bad. It is Ibunded on a 
- ^; daiim (fright which cannot be roaintaiBed. 

f ' 56S T ^^ ^ admitted ^ that stcoinhioner ^sanoot, in this ease,. 
■■^ -^ " des&oy the contW Consequently^ be canndt d^ptmy 

^.>t . tbe ftirrroo:^: for the effect iii destroying the cdhtek 
^ /' \ If the lord bas exceeded the bocnids of his right, the 

'r ^^^ /oiv is tadeteribine the faaidttm Of such exem^; vend t)6 
Ibe law the ^commoner must resort for bis teoMkly, if he 
i« fc^gric^ed. 

p€i* Cur. iinaniinonsly. 
I JuDOMCHrfor the PjLAiiiTirp.fd) 

. See the next case— the same point 

rs. C^MUb. Copx versus M:&rshall. 

^TVHIS being the same point with the last preceding case 
-*^ of Cooper y.Mar%hail: 
* r !Thi^ court without argument at this thne, (but tbis^ 

— "-*- 

(a) This case was briefly as follows: " trespass for 
'1 brelEiKing plaintiff's close aud spoiling coney4>urrow» 
'V there; and a second count for the like, in the piaintiff^a 
*' free warren : the defendant justified under a right of 
^ common, and that the coney-burrows were wrongfully 
^'^ newly made there, so that be could not enjoy as of 
** right he ought, and therefore be filled up the coney- 
^ burrows \ on demurrer there was judgment against toe 
<* defendant, for the lord has a right to put conies on 
*' the common, provided he does not surcharge the com- 
*' mop, which if be does, then and tbm only the com- 
** moner is injured, and may have remedy, but it, must 
f^ be by action ; for be cannot be hisownjudge. aodk^ 
** the conies, or fill up the hurrows.*' And the jedg*. 
ment in this case is in ^ect the same, and grounded 
on the same h^asoa 9s that in 2 Bulst. lldf 


EttterTerm, 90 Geo. 9. f69 

Wk^^Asebad been argued twice before,* though not be- 1757. 
fbidLord Mon^eld and Mr. Jast JY^hnoi,) gaye the like ^^p^ 
joM^ent as last above, m. v. 

Judgment for the Plaintiff, habshali*. 

'Hops, ex dimiss. Brown et Ux. versm Taylor. 

•Tide lata 

came on upon a case stated, upon the trial of An «rdl- 
angectment ^ IIS^TS 

The case stated was this : o^n ^IH ^ini. 

Robert Johnson^ seised in fee {inter aRa) of a copyhold of onlany sintl* 
liAeritance, and having first surrendered to the use of his >»««> sad af* , 
will devised to John Wedgeborough^ his sister's eldest son. H^^^J??^ 
his bouse in the brook with the out-buildings : and SOL ^J^'^^unt 
to be paid within tv^elve months after his decease ; to his « ^Mmff 
nephew Robert Taj^r, 50/. to be paid within twelve lA^fMriMM 
itiofiths after his decease ; to his nephews Charles Tayhr, *gA wyjgy * 
Robert Tayhr^nnd JVittktm Taylor ^ his sister's three sons, ^^J'SjISji^ 
twenty«nineacresof arable and meadow land bought of ^fgHtm^ht 
J3. ; not to be parted, biit to part the rent equally be-M/iii^fliy 
t#e<in thetti; then to William Tayloh, his sister's •*«»*«' «f^ 
sdii, the house in question, by the description of '* bis f S69 J 
* hbuse on thfe green : with the ground and outhouses Z^^!t^ 
« thereto belonging ;" and gives him also 10/. and to S|IIf^J5Xt 
his broiher-in-Jaw Charles Taylor 5/.: and he directs the ^|g^;*t |^ 
sAid legacies to be paid mthin twelve months after his de- creates an 
ceas6 ; ahd declares his will and meaning to be '* that ifesuie taiL 
•• either of the persons before named die without issue law- [^ * ^Jj""* 
•* fully begotten, tlien the said legacy shall be divided 3'^^^ 5 n„,^ 
** equally betinreen them that are left alive^ 7la/Bnd qo. 

Note— It was stated that the l^tator had^e houses: Feane a||67, 
in- All ; ahd that the will begun With this expression, ^^^-l 
** as to ALL my worldly estate^ IfcJ* And it con^ 
dudes thus, ^ and all the rest of my houses, goods, 
*' {and, and cattle, I give to my kinswoman EUza^ 
^ i€fh Wedgeborough i and make her my sole exe^ 
«« cutrix." 
The testator died seised of the sard five houses and 

ffiUiatn 7Viy/or entered, and was admitted, and en- 
;Joyed till the i:fth of June 1765 ; when he died, leaving 
tAe defaidattt Jfilliam Taylor, his only son, and heir at 

The wife oS Brown, the lessor of the plaintiiT, is heir 
-at law to the testator; and, as such, brought this ^ct« 
ment, against Ae defendant fVilliam Ttfy/or the son, vrUt 
dahtts as tenant in (aiL 

In this case, there afe made 

TwoitHWTS, which are (in substance) 

270 Easter Term, 30 Geo. 3. 

1767. Is^ What estate William Taylor, the devisee, took; 

HOPE l>y ^^^ v('ill ; viz. whether an estate tailf Or for life ooly. 

y. 2dly, If only an estate for life, then whether the resi- 

TAYLOJi. diiary clause did not carry the reversion infee^ to the r«i- 

duary deviice : (in which case, the heir at law could have 

no claim.) 

MX'Clayton for the lessor of the plaintiff, the heir at law. 

To the 1st question, he argued that Wijliam Taylor the 
defendant's father, took only an estate for life ; not ao 

The devise is only to WJlliam Taylor himself; without 
any further limitation whatsoever. 

The subsequent words are, " that if either of, 4'C' shall 
'^ die without issue, then the said legacies to be di- 
•* vided amongst the survivors/* 
r 270 1 Now the word " legacies" will be satisfied by the 
*• mane^legacies : and there were four money-legacies be- 

fore given, therefore this clause shall not be extended to 
the devise oireal estate. For an heir at law shall not be 
disinherited, by doubtful vvords« or bv implicatiotu 

id Question, upon the residuary clause . 

The residuary clause does not carry he reversion im 
fee in these premises in qucstion^ioElizabethJVedgeborough. 

There were other lands besides these, for the words to^ 
operate upon : and these words here are, '^ all tba rest of 
•* my houses, lands, ^c." 

3 reere Wms.o6.The case of Chester v. Chester was acase, 
(and many other cases might be mentioned,) where tbere 
were no other ItLuds for the words to operate upon. 

But here he bad five houses ; and only three were de- 
vised : so that '* reU'* means his other houses. 

But (what goes to both points-^) 

This was copyAo/J; and he had likewise/reeAoi^^ lauds, 
distinct from the copyhold: and therelTore the copyhold 
not being particularly named, the words of the devise shall 
only extend to the freehold, ^ Which is fully proved by 
two resolutions in Cases in Equity abridged, p. 124. p/1 13* 
SfpL 14. 

Mr- Narespro defend^. 

He made the same two points, with Mr. Clayton. 

IsL The testator had no child, but ^veral nephews; 
VIZ. J. W. his sister's son by a former husband, and three 
nephews Taylors^ her sons by a latter husband ; and be 
gives houses and legacies amongst them, in different pr<>r 

The word '' legacy" relates^and the testator intend* 
ed it to relate, to the houses, as well as to the money* 
legacies. He could never intend to* give such a trifle^ 
the interest of 5/. to his brother-in-law, for bis life only* 
And it may be observed^ that if this Charles Taylor^ tbe 

fiasterterm, 90^Geo« a 


tefttaior*« buotber-ui^hiir, (one of tbe legatees above 
named,) ehall happen to dienritkont usue^ tbe other three 
legatees (bis three mm) must conseqaenlty be dead too : 
and then there wonld be nobody leift alive^ to^diTide it 

And if the word ** legacy" relates to the real estate, f 
it is a clear estate tail in William Taylor, (Wbiich posi- 
tion Mr. Clayton agreed to.) 

^d Question-— The will begins, '* as to tf/2 my worldly> 
" estate." Therefore he meant to pass every thing by t^is 
bis will. 

The cases of Ibbetson v. Beckwiih, (Porretitr 167.) M. 
1735. in Cane. BiiA of Tannery. fVise, in 8 Peere Wm. 295. 
both of them prove this. 

1 Ittv. 212. The case of Cooke v. Oemtrd is expressly 
in point— ^** that tbe word land** in a devise meant 
not only the thing itself; but the '^ interest of the thing.'* 

As to Cases in Eauie^ abridged 124,there was no surren- 
der of the copyhola estate t but it is here stated ** that the 
** testator had surrendered the copyhold estate, to the use 
" of his will." Which renders his intention clear, to dis-^ . 
pose of it 

However, this reasoning only reaches the 2d qaestion: 
for the fast devise is exprew* 

And the defendant is son and heir to WilliamTc^r. , 

Therefore he prayed judgment of nonsuit against the 
• Mr. C&i^o/iin reply-^ 

All the money-^legacies are to be paid within a year. 
Therefore the event must happen within that year ; or 
else the eventual devise could not take effect. 

The word"rf 5r"clearly excludes what he hsAbeforc devised. 

Lord Mansfield— Mr. C/oyton admits thatt/thewOrd 
*' JLEOACY*' ts applicable to lands^ W, T has an estate tail 

This is plainly a will of a man's own drawing. 

He professes to dispose of his whole estate. He means 
to make one of his relations his general heir ; the other 
objects of his bounty are four nephews. And he gives 
them land ; and also gives some pecuniary legacies, to 
he "^lA within tscelve months sl^x his death: (which in- 
deed the law would have implied.) 

Then he gives his brother-in-law 5/. 

And if either of these persons before named shall die 
viVAoiif time lawfully begotten, then he gives the^' said 
** i4EaACT" to those that shall be left alive, to be equally 
divided between them. 

The explanation of this word " legacy" must be 
governed by the intention of the testator: and to this 
purpose, some stress may be laid upon this introduction 
of the professed disposition of aU his worldly estate. A 
J^crent construction has been sometime put upon the 





271 ] 

[ 272 3 

975 £adter tem, SO Geo. $i, 

17^7; ^'y '^^^'^ words» as applied to money and lands; in order 
HOFB ^ mpport tie intent of the U^tor : as in the qa«e of Forth 
^ ^ V. Ckapmam^ by Ld. Maccle^iM 
VAV A«r; ^^ ^^ '''^^ agnedbU to the intention of the testator in thia 
case, to construe this word '* l^cy " to extend to land* 

It would not be a legai limitation, if confined to 
■^ money* 

Ttie legacies may happen to be spent, soon after the 
l«pelve«mott4h is expired. 

And it could never be intended that so tmallz sum as 
the 5/. should be put out to interest, and keep liable to 
tbia limitation. 

If the broitber-in*Iaw died vpUhovt issue, there would be 
90 one left to devide the legacies.. 

Coimno/i people do not make such distinction between 
money and land, as persons conversant in law matr 

Tlie testator meant this clause as a nestraint upon his 
former bequest ; and meant that the issue should have it . 

The weed ** li^ctea'* does extend to lands, aa well aa 
to monies. Common persons would not thmk of usipg^ 
the word '' devise:'' (which is the more usual kgaltech^ 
nicstl term.) 

I'herefore upon the first question I think it is an es- 
tate iaii.. 

But his lordship did not choose (it npt being at all ne- 
cessary) to declare any opinion upon the. 3d question x 
because a third persou not now before the court, might 
be afi'ected by it 

Mr* Just Sknkon concurred—he thought the word 
" legacies" extended to rctt/ estate; and consequently 
4hat it was tm estate taiL 
r £73 1 Mr. Just Foeter alao held that the testator ta^em/ed the 
^ land to go over ; and that it was an^state iaiL 

If the word ** legacy** was ponfined to peatnieny lega- 
cies, tlie devise over could not have taken effect; b^ng 
s^ier a dyisi^ without issue ; (F, antep. 373. Lord Mam^ 
Jietd accordingly.) 

Besides, Ckirles Taylor^ who was one of the persona 
before named^ h^s no pecmieirjf legacy given Am : so that 
it must mean land, as to him* 

And these are small h^fp^des^O^oe of them only of5il) 
and payafate within a tmlvemontk. Therefore the testa- 
' tor cannot be supposed to apply this limitation .to tbeai^ 
but to the LAND which he had devised Uyhis will. 

Per Cur. unanimously 

.JU9QJinXIT for.the I>I%F«N1>ANT 

(ot^^of Noi«suis of tbs FirAiMZAvr«) 

E«ter Term, » Oed. f ; £7* 

Dbk V «en«t Lord Caboqait et al\ «. 

THIS day having been appointed for a trial at bar, in ^*2^, 
this cause, onlt nine of tie jury (glared. i?M. 

Sir Richard Uoj/d pro qutr^ pra;^ed a decern talei* Docm tale* 

By the course ot* the court, this trial could not have p-aaiod upoft 
come on again, till Michaelmas term; (the immedratel;^ a fiatoejiyj 
next term being an muabk term, wherein there arc no JJ^J^V !Sil. 
iriahatbar.) , . . ,., Inwingj asdit 

But the court observing the great expence and delay iheAalia- 
which would by this method of proceeding be occasion- tUacs. 
ed to the parties, asked ** whether there were gentlemen 
" of the county enough In^toi^o, to make a complete 
« jury;* 

And being told " that there were ;" and the gentlemen ^v 

of the Jury who now attended, expressiqga desire *' not 
•• to be kept in town,** 

The COURT ordered the retam of i\\^^dec€mtaltt 
to be on the Monday Jollotmng; (though there had never 
been before an instance of it) 

And by so doing, they saved vast expence, as well t% r g^ - ^ 
some delay to the parties concerned. L ^ J 

For now, on Monday 2d May 1767, a full Jury a ppeared: 
and the trial proceeded. 

The cause itself had no difficulty in it; and was 
soon over. 

For the lessors of the plaintiff claimed as'heirs at law 
kA George Smithy eso. who died in 1607: and they drew 
down their descent tnrdugh two sisters, who had married 
Carbxand Underwood. One of their other ancestors, as 
they pretended, was Francis Smith, third brother of the 
first Lord Carringlon, {Charles Smith, alias Carrington:) 
but they could not by any means make this out 

Their claiiti was as heira at law, under a family settle- 
ment of the Lord CffiTJiig^oii, in 1687. But they could not 
shew the leastjprobability that !Frajfct« the third brother 
of the Lord Carrington (whose estate was prior to the 
plamtiff*8 claim)' was dead without isem* 

Whereupon the plaintiff was nonsuitko. 
The coifRT, on the application of the gentlemen of 
the jnqr» took off the Jvm (of 20/. a-piece) which had 
been set, on Saturday last, vpon the defaulters. 

275 Easter Tepod, .30^. Geo.*g<« * 

1757. HAWKinf^^eemuCtQLChoxjaff.^ 

HAWKiKs Srnw.Sd,80G.«. iJ<i/'fo 96%. 

t*t%T 1''*' '••' '' .''''•' •', .^< 

cLouoH* [Lord CommUsiofier Wilmot absent, in Chancety.) 

Tuesday, • ' 

3d May 1757. TN an actioD of trespass for an assault^ battery and faUe 
Award that -■- imprisonment: an award (made .pending the action) 
2all^*^th * '^'"S pleaded to this action, and a tender of the sum 
oun chlrg^ awarded ; the plaintiff demurred- 
at law, afd The award (which was made upon a submission of all 
tbatibedefen- disputes^ ^c) was in these words — '' whereas there has 
*°* '^^W « been a suit at law between the parties, that hath run 
S?5i!ftSh°f"' " ^^* great expence on both sides; and it being left to 
makiogthe " ^^ to make an end of it; I determine that they shall 
fint breach in ** each of them pay their own charges at law ; and that 
law if certain " the defendant pay the plaintiff five shillings, for his 
and final. .. making the first breach in the law." 
[^ 975 3 Mr. Anguish proquer* olgected ^o the award, as being 
Ist. Uncertain i 
ftdly. Not final 

First — it is uncertain*. The submission is of several 
matters: and the award does not at all shew, t&AccA of 
them it means to determine. liio«^6r. 242. letter B. 
pLl.5t52.pL 10. 

And art averment without a fact to support it is of no 
avail. 1 Ld. Raym. 24G; in the case of Bacon v. Dubarry^ 
the fourth resolution is expressly so. 

This is an action of trespass. The submission is of all 
trespasses : and the award does not distinguish what tres- 
passes it determines. lRo.Abr.2&\. letter I. />/• 1. and 
pi. 3. and the case of Maw v. Samuel in Popham 134. and 
2 jRo. Rtp. I. the case of Bac&n v. Dubarry (before cited.) 
^'he third resolution says *' that the award was void for 
" the uncertainty, without releases." 

Now here are wo releases. Each is to pay their own 
charges. And the defendant is awarded to pay to the 
plaintiff bs, for his (the defendant's) having been guiHy of 
the first breach of the law. 

The injury complainedof was assault, batteiy and false 
imprisonment. And here is no satisfaction awarded for 
the injury. 1 Ld. Raym. 247. The case of Freeman ▼• 
Second point— it is not final: which it ought to be. 
An award must be final But this awwl was made 
pending the action: and it does not put any end to it 
at all. 

Under this head, he cited 1 Ro. Abr. 252. dL 16, 17. 
(But one of these is marked by the abridger, ** aubitaturz** 
tl}p other, <' Contra 15 Xf. 7.22/') Al802 StrangelOi4. , 

Easter Term, SO Geo. 9. 


the case of Tipping ▼. Smith, wtere the award was held 
ill, being uncertain and not final; and Cro. £/tz.904. the 
case of Coition v. Harris : where the award was holden 
▼Old; because nothing was awarded to the defendant, nor 
to be free from suits : so no advantage to him. 

Mr. Caldecot contra pro def. 

*Tbis award is pleaded by cqnsent of the plaintiff, and 
by leave of the court And though pleaded as being 
made pending the action, viz. between the action brought f 
and the plea pleaded ; yet the court will determine upon 
the merevalidityof it 

' 1st It does appear upon what particular suit, the 
award was. 

The generality of the submission is not inconsistent 
with the particularity of the award. 8 Rep* 98. 6. JBos* 
pok*8 case. (Second resolution.) 

This shall be taken to be the whole matter depending 
between the parties : and no other suit than this appears 
to have been depending between the parties. 

The case of Bacon v. Dubarry^ in 1 LcL Raym. S46. is 
not like or similar to the present case. 

After patient made or tendered, the action of trespass 
is discharged. 

Hob.AQ* the case of NichoUs v. Gnmn/on is expressly so. 
(The words are — ** for ^ satisfaction implies a discharge.*') 

The present award (which was made by a tobkr) re- 
cites that there was such a suit : and that it being left to 
him to make an end of the said suit, he determined as 
follows, viz. ** that the said J. H. and /. C should each 
" of them pa^ their own costs and charges at law ; and 
** that the said J. C. should pay the said J, H. 5 shillings 
'' for his making the first breach in the law,** 

And this may be pleaded in bar, in another action. 

The arbitrator certainly intended to make an end of 
this suit depending between the parties ; and thought55. 
adequate to the injury. 

Mr. Anguish in reply— notwithstanding the consent 
** to plead this award m bar." Yet all objections to the 
award itself are still open. 

This is not shewn to be the only matter between them : 
and non constat that the award was made concerning 
this particular action. - 

I agree that payment discharges the trespass. But then 
it ought to appear that the payment was in satisfaction 
of the SAME trespass^ which does not appear in this case. 

Lord Mansfieli^'* 

The question is whether this be ^good award. 

Awards are now considered with greater latitude and 
less itrictness, than they were /ormer^. And it is right 
ttial^tliey should be liO0ra//y construed; because they are 






276 ] 

[ m 3 

tT$ Easter Term, 90 Geo. $. 

1767. ^'"^ ^ '«h^t^ oii)^^ parties ovii cioonitf. jflpd thia it 
«4WJUii8 ^'^'V (Btitia here,) in cases of m^ ^ops^ui^ic^y Viv^w 
^^ tbe f^a^ is not worth the candle. 

^^^ fadotd they most have these two propertieiki to ^ err- 

ci^ouQH* ^^» aodyinii/L 

5Cro.EIis.6<>. But the certainty may be judged of aqcording tpa 
Diiiii.}^] coMift^i XDtent, and consistent with fair andpro6a&Zej9re- 

t'bia Bttbmisaion is, in general terms, '* of ntf actipiis, 
^ controversies and puitsl^tween them.'* The arbitrator 
recites oke ; referring to the subinissioii^ as authorising 
him to determine it rand it appears thatMi^ suit wa^de-^ 
fending between the parties. And the parties have noi 
detdred io hehmrd upon any inore than this one. There- 
fore there is no probable presuuqdfwoinny other. 

2dly. As to its being>£iia^it seems to be a leafosk^ 
aUe and ihir award. 

The arbitrator, plainly, thought it . a ^sas taji^b; 
and seems to have thought botk parties to have be^n in . 
the !iiirQng; a^d therefore si\9rarded each to stand by {lis 
. own costs. 

And the &f. awarded to be paid, i$ pUinly t» satiffiictfon 
0f this stone action ; and therefore is a discharge pf it, being 
paid or tendered. 
Pr And he declared ag^nst critical uicttiies, in scanning 
amards made by judges of the parties own choosing, in 
order to the determination of disputes between thefn. 

Therefore he was clear that the judgment .ought \o be 
for the defendant 

Mr. Just Denisok conQirred~ 

The submission is general: the arbitration is alledgied 
to be ^ de et super pr^mum;" and it does. not igmar- 
that anything else was before the arbitrator. It is pv^n 
that this matter was submitted: and we. have no reason to 

3 presume** that there was any other^ 
And it is sufficiently final : it is to pay 5s. fo^ havii^ 
been guil^ of the first breach o{ the |aw. Therefore it 
is tl)e some as if it said ** tit sfiti^actipn** Therefore it is 
mutual and final. 

And awards ought to be construed /i&«|^% noAfavourm 

Mr. Just Foster concuned, for the wmfiB is)re^y. 

JuDowavT for tbeDsBBitoAii^T. 

PSRRY (^ntlf NlCUOIMll. 

Inacthm or 

part of 

' Ml 

inactma or 

debt opon an A FT£R an unsuceesfiful motion, made oti the part 

SraedilbAir ^^^ defendant, ** to set aside an awari;** and 


EastOT Term, 30 Geo. S. 279 

equally uoftuccessful one, madeoh the partof the plaintiff, ^j^j • 
" to enforce it by an attachment for non-performance*/' . p^m^Y 
the plaintiff found himael^obliged to have recourse to his ^ 
action against the defendant upon it. viciint 

-And now, upon an action of debt brought by hini on **^^o*'aO"- 
this award, reciting that in an action of auampsU, the 
parties, at Che trial, had submitted the matters in difler* 
enc^ in the said caus£, to certain arbitrators, 4fv» so as 
tbey should publish their award is whitIng concerning 
the premises, before, Ac; and that they accordingly did ^ 

publish their award in whiting, Sfc. and awarded '^ that 
*' the defendant Nicholson should pay to the plaintiff 
*^ Perry 48/. lU. lOd. in full payment^ discharge and sa« 
•* tisfaction of all money whatsoever or any ways due or , 

" owing unto Perry hy Nicholson, at the time of com- 
" moncing the said action ; and that all actions depend- 
•* ing between them for a9nf matter^ cause or thing 
*' whatsoever arising before or at the time of referring 
" shouldy>t>fft thenceforth cease : and that upon payment 
** of that sum, they should within two days after the 
'^ taxation of costs in the action and payment thereof to 
*• Perry^ seal and execute to each other, general re- 
" leases of all matters in difference in the said cause." 

Then the plaintiff avers that there was, at the com- 
mencement of the action, or at the time of referencCi no 
other money whatsoever, any ways due to him the said 
plaintiff Perry from Nicholson, but the matter in difference 
in the said cause; and that jto other action was depending 
between them ; and that the costs were taxed at 2d/« 

The defendant pleads •* that no suchaward was made." 
Replication — ** that there was such an award, 6ic.'* And 
issue thereupon. 

The plaintiff gave in evidence, an award in writing, f 279 T 
indented, under the hands and seals ot the said arbitrators 
named in his declaration and replication, with the fol- 
lowing variations from and additions to'^the award set ^ 
forth inthe declaration— riz. there was in the declaration, 

1st. An o/«is«art (after the award ** to pay, ^c") of these 
following words— *• that Nicholson nt the same time &• 
" liver up to Perry a promissory note of Perry s payable to 
•* Nicholson or order for 5/. 75. to be cancelled, 

2d. A misrepresepitation of the release: which is " that . 
" they should execute mttual and general releases ' 

** of all actions, 4c. debts, 4rc. for any matter, cause or 
" thing whatsoever from the beginning of the world unto 
" the day of the date hereof." 

3dly. The award produced in evidence, is by deed i;i- 
dented, under hand and ^al: whereas the award declared 
vpon is only an award " in writing^^ merely. 

Upon this evidence, there was a verdict for the plaintiff. 

Vol. I. T 

jSOr Easter Toth, 99 Geo# ft . 

1757 subject to the opinion of the courts on this question,-** 
pcHftY ** wlrdhef Aert be kAxitii^L htiimhcis' betWe^o,thc 
/^^, •« atr^rd A^ittA it^^^tinU the a^i* given itt^evidence.*^ 
wfffltMOK Mr: Serjeant HE^rt-i^jih)<toe/^; ^' 

r^ Thi8 ^tftfri isiiti HCtiott of del)t o* Jlk€ KviXKn itielf ; 
not aA aetJbrf of debt a» the ai<)iinit5b6 bo^b;; an<jl qd 
tuth an actiort, no mote tteted^ lie-set oirt, thah is'tnj^lenaj, 
and enough ro enf If & #Ae p/at^^ to his demand. ' \ Ueon. 
7^- the "icAse' of *n/^* r. Kirfhdtri SW*. 74; the^ ^ase 
of iPdtrhrtd'v. Mafygold.' Both -'which casea are )^^ 
pressly so* ;...'. 

- - - . Another rule concernitig a^^ards is, that i\\& gp^erhjiUy 
tiffkt'tmrik^ of them xn^yher^strained^ so- as to becon- 
fiff ttied'to ambdnf to no more thtm they ought to aniount 
to. One way of doing this, is by atermcnt connecting the 
a^aW^Hihr the ^ubmissiofi : as it is said in the case i& 
Jleyn 51, 59. Roose v. Spafk (first point) " That the 
•*^ v^oiiSk^^d^'prdnnUih ha^e been newly used in pleading 
•* awards; in order properly to apply the general wordb 
* prepbrtionable 16 the things submitted." 
' Atiother way of yoihg thii> is by plewling' them accord- 
ing to their kgal operation. 

Another way of restraining the generality of words i» 
Wintenimttitbficttc: as^vis^done in 1 Satk, 74. Simony.. 

r ggQ 7 Anothtftn"^ IS by pkhditfg the fnhttl^ : (whi<?b is the 
*■ bropcr waj^ for the' defendatrt to take advantage of it :)' a^ 

• wModf«$85;No.W42. ThecaseofXeav. P«m^. . 
^Another way h, that award may be good in parts and 
l^in'fart; if rtlatlve to drstract things. 

' ' To a {>ply these! pomtions*-Hei'e are four things ^y^ajd* 
€34 tfrhich it ii'true,afenotall particularly set forth. " 

But ALL that is necessajiy to this suif^ h set forth; 
the if A«r things affe'riot refatrve to 27. And h6re is'an 
averm^tU " that no other thing was in dispute.*' 

• - ^fte'^qnestion is, •* whether this award produced j^ 
«* erAl^n ce proves the* declaration." 

Now ////that is material \i\ the declaration, upon tAi^ 
' actiori bPVlebt upon the award; is the award of the 48i 
and th^ 28/; costs. So that it is sufficient to prove the 
declaration. \ 

Mr. A SGV^m contra pro def^>^ 

* let. Here is^ari mission of that part which oblijgeai the 
defendatrt 'Nicholson to deliver up a note: whidi note 
composes part of the sum, and was in consideration to 
make irp the 48/. 

To suppose it otherwise, is inconsistent: b6caus(^»« 
otbefMsc,1;hey would not have ordered it to be given gp^ 
'^ He cited ^ Lev. 235. The case of Adams v. $ltah(m, a 
,wliere-«n omission vitiated the award. 
^- -'- -^'"-" ' ' • 2 

"^Easfer^eVm/'io^iGteorg. S8I 

mr AWARD a mift haa^iift, i^ed fq. i^f M /f^^fl^kr^ion V^ 

!™9.haaf>eqo.Ui^ la^,. 9Q;\ortj ^^/^ wro tbe tifne of 
jCOT]^^6|e/; wbi^r/^^h^fe ii a i^rU^uhicasetafoirtluoafy 
iJiarinudn as is necessary, ( T. jR^giVer 1*1 1. j ^ 

y ^.. Then, with Vegaixi jp fy^ril^se^Xh^ court, will iW^W f 281 ] 
"tfiat therei^aic, fi\fyiU ^x(^ffdoisic^,jQJhi matter. U^^d^ ike 
j^mlision- , B^^j<l^s W^j^e t^'ey bav^ ftvec^fed ** t^af. tJt^eie 
^.;imVio ofiifer majkter ia variapjqeu" 
^ 'Therefore I think there is ^o maUrial «fiKt4«^fri^ 
j^e declaration and the evideace. . \ 

r ' M^r;^*'*^ t)jEi?j isoN-rWas as clearly of thej^aqoiecHRiuion: 
?f hfcn he d.^clar^d' to tbfi foUav?/;^g tffecU 

The question i^ ** whether the av^^rd given ior^yid^ce 
'^ is sufficient to support the awjard sj^t foct)A^,ip^the 
* declaration." . ....... 

Now nothing is clain^ied by this action, but the money. 
And the question Is whetbec it was nec^ssaryt in this 
action, to set forth any thing more than supported his 
ciaiin to recover, and shewed his r^ht U this montjf* 
! ttii^s beep settled that in actions upon awaWi>« (^whici^ 
are no specialties,) there is fit occasion to sei /brih the 
whole aw^rd: the plaintiif^i^y jio/shew aiijr thing more 
than what is necessary to support tb^tpar^icuiCar claio) t 
and to iqii^le him to the/Aii!^,'.an4 if thedefendant will 
iaipeachUxe^ award for any things that istto cojii^.Qjai m^ 
part . ?: 

1 Leon. 74. Smith and Ki^oofs case, is expr^o^y so 
resolved, , .* ^ v. 

IJttkion*s Rep. 315^313.. Leake v.BuJtler, is ^lik^ re-* 
solution: Where the form of declaring is ^aid tp betaken 
from a writ in the Register, 111. 

( And this distinction between debt upoa the.avar^ itself, 
abd debt upon the arbitration^rftoni/, was admitted in 
^ i Sulk. 73. the casie of Foreland \. Marygold: wbidi 
was an action of debt, upon bond to perform an award, 
and, I Lord Rqyni, 715. Foreland v. Hornigold is the saqne ^ 

case : where also it appears to have been nn actioA of 
debt upon the bond. 

Here, the award is ** that Nicholson shall pay. the 
'* money, and deliver up the note." And this is an ac- 
tion of debt brought by Perry, upon this award, for the 
moneif. It would, as I have already said, h^ve been a 
quite different case, if it had been an action upon ^he arbi" 
tratioii'BOiij}, But it is hen good, even though on the 

T 2 

2^2-285 Easter Terra, 30 Geo. 2. 

! . 1 ■ 

\7^. Uiere face of the' declaration it should appeal* as u had 

PERKY award, by appearing thereupon and as there set foitb, 

6x dimiss. as if it were only an awrfrd on One side. For the ptdintiiT,/ 

plowdek; ^^ fA« action upon the award itself, needed only to«hew 

V * inch part as he grdlindsliis ate<Vtl tifwif/ '• 
» ICHOLSOK Then as fc thi riledses—ilit a<vaW ♦* 6tgtnefdl vAttns^^ 
'was w/d, dito OTHER nt^t'terbViyyt'^ubittitte*.'''!^ 
nothing is submitted;"' Hdt irf/Aif patti^ulit^tettoflf Atid 
ta an action upc^n th^'lfonH, '*^^^ fi^lefe^aSid Irf^^fikKnpi** 
•• under submissibri^ tr6uH b^' a* g6od pleat ^tHOugh «W 
Sivvard. be an award of •^g'enW-rf/'frfeitees/i ' ^' « ' ' 
' But liere it is expressfy ^ttrircd, ** that*thtef6«*re'^tt 
•• OTHER matters in dispute." However, th€^eWai'W4 
occa^ioiv for that; averment ; becausewe trtwM ftor icve 
iw/enrferf '' thatthercivere arfy other.'* • 

Mr. Ju«t, Fostir^f^^ of the same opinion. - •• 

He^aid it w^ si^fficient \h( an' action c>f dcbl «po»'Mc 

awa;id itself, to set forth so mt/cA btily as ii neees^rjr 

to suppoTt the' plalntilf'k clahn: ^xe- brt^f pwt «f the 

award may, perhaps, ftfi jper/brmVif, 

He thought, therefore, that thcf evtacnce v^ll pwvefl 
the declaration.* . - • - 

Per Cur. iinanibously (Mr. Just. Jfihtot abseitt) 
Let the 'postea be delivered to tlie Vi^Aivrtrr* 

WbighTi ex dimiss. pLOM^b'isTi^, AVmi. •der$u$ Cart- 

tesiefor f\^ ^ ^^ stated, froift the assiiei?. 

yean,iflciiee^-^ Edmund' P louden, being seised in fee, demised on 

•olonghvcr, ^^e 5th of Oclober IGlii, by deed, (m. by indenture of 

jJ'ginS^j,^^,. lease between him and Elizabeth Cartwright, X>nly^) to 

beld thftt the ' the said EUz. Cafttsright for ninety-nine years, if she 

. rettiaiader should 30 long live ; and after her death, if she hap|^ to 

«°" ^*". die within the said iterm (a) or other end of tteterttiina- 

SirhciSiduo ^»onof the said '^ERM, the remainder ihertofXo Itottfahd 

of the yean to Cartwrlgfit her eldest son, ( theh under age,) for and durinz 

come. the re^idiie of the said ¥erm, from thence ehsuitig Hbd 

fully to be cpmpletd and* ended : ]^ielding]ind payihg; ftc. 

and doing s\jit at^amill, &c.; with a penalty for 'every 

time that bhe or Rowland shall grind at another tuill; 

CI Q^^ -j and paying a heriot on the death of cither. And it is go- 
^°^ J venanted that both of them shall reparip, Sfc* arid the 
lessor on his part covenants that both shall 'ijUk^ly 
enjoy, ^c. * ' 

■■ ■ ■ lie 

{a) Term may signify either thne or the intepest'during 
the time in a demise, and shall be taken in that.; • iw^bi^ of 
the two senses will support the intention of thegrontor* 
Same principle. Cowp. 731j. BrownL 63* : '^ 

E^stet.Tewn, 30 Qqo, .2.; . $M 

. Eliz^Cartu^ight entered awl was posseiEtsed ; ^atuji died 1757, 
evi:i\iie '4^hQti^Sfpt0fnber 1694. .WKereiipoo . lt()?r/^7irf wright 
QirtaPr^^^9terttd aii^r was pofsessed.^till tbeslftld.Ror(^- ex dimiss 
/•nei^^wxl; ivbfCO.happeM^fl qu..5t.h Navtmbcr 17?3. plowden^ 

The lessor of the plaintiff Ts b^i^,^t' hiNv lo !Edn/iutid ' "y'^ 
F^hmiffHi <he .tewxr** .- The. 4©fe"dHbt is t^' p^rSouiilire- (ixvlj^ 
pi«rt»tali¥€ of;,fi<tf^Vi^XV^^ . . ^; \ ; ' ,. Wright. 
f 7ibe qitasiipn iff iV. \i[h^VtierVve xiiHMf4:/>43 :" 1. tf. whether 
it ttmiinm i»|BTP«W> thf /Jfo V ' ^'*^* .C(irjwrighf. For ^ 
ttl9l?Biiafi4<^ ^pt^QQutmu^rb^yoii^ tfae life ofJS. C. then 
the lessor of the ^UijntW.h^a.Utlfi I9 recovt* r: if it does, 
theatiie d^fida^ haib^^^Ue^ aj!s rjejKedeiUative of Koz^ 

Argued that the term was expned: it expired on tlife 
death of Elizabeth f the limitation over» bein^; Void. And 
' hd oiled STi-. 8 Eliii^JOyier 253. 6- p/- 102. >hich is exactly 
lhe.#ax^e Jioiitalion ; vi^. '* to fif. Cecil j^ro terminb 12 
H jKlfiiiorMQi, u inm diu vixcfrit ; etai obUrit injra prmdictuiti 
** terminum, iune^ S^c. T^ re«)aii>ders were holden void ; 
*' kiecfBiViMlh» term is dete«pk)able upon the lifeoiTT. C/* 
And he also cited Cro. Eliz. 210. Tr. 32 EKz. The ckse ^f . 
G/em Tf Edwari^^ , , That waa exactly, th i^* ca^ q. It was a 
fcii^^ tQi/^'^..for,«iittety years,^. if heliv? so long; and if 
he die within the ierm^ that then his wife shall have it,. 
4nt»d^etQtO',f^M,Uminipr^kk\: it was held void to the 
wife ; and that she too^k nothing And he said that 1 Co* ' 

Rep. 153. 6. rector of Chediftgions case, is express and full 
to the same eifect ; and was agreed per tot' cur\ And.that 
Cq. LiUfA^. b^ i^jexpress that.'' term'' signifies the %smte 
' and ialerest that passes ; and differs from a specification of .. 
the numben pt years ; aivd «ays^** so note the diversity .** 
All wbicli cascsi, hie insisted, prpvisi . tMs liir^itation to be 

, , . ile cited Shtppard*s Tonchstpije qfjCqinmoh Assurances, 
i ,^74^ Where it is said, that if a no^n m^kes a lease to ^^. • 
. fer eighty yoars, if he so long live; and' if be die witbift 
'. tbe s^. t^rro, or. alien, that then hi? estate shall ceai^i '"' 
luid by the same deed tfae lessor farther lets Xq B. for so 
wany years as shall then remain unexpired. aft<sr; 4rc. for 
.tbe residue of the said term of eighty years, if he shall: so 
lopg ii vef ^^ this caso l^be lease to B. *\ during the residue 
.?♦ ^ th^ TSRiff," is void : for after the death of A. the r ^. j -i 
V ' v£#rtf ia at an end. But if be say, " for and during (hi *• * J 

•• residue of the eighty years," it is good. 
— Mr. Nut^ contra p$o def. was begimjing to speak—' 
^ I But LpHB Mansfiejud stopped bim; (as oot. being 
geceaaary :) axul be himself proceeded thus— 

LoRfi Mansbield — ^The distinction just cited from 
Sheppard, (whioh he. (akes from the rector of Ci€^^gtan*$ 

S85 £a9tef Tt^no^ ^ Geo. 3. 

1757* ot0^)*Make» no dtffitieace; r/ the word ** term*' miy' 
irvMfriiT signify the Aum) ae w^ ai| the interest : for then it becomes 
ex diminat ''^^"•*y a jqiftftstion of cooBtruction, " opAicA sense the wnJrd 
i»iiC»iiKM« 'V ongtrtto be umkntoad in." ^'^ 

^^r^* So^-AiAf^a afgued, in Gmn v. Edwrnrds: ho Slfit^ 
' " '^ ^h® ^*^^ '^^** ^^^^ * party to the deed, durante it fuminSii 
wuoiTff / "-^hwht fiW be taken for the in/er^i^, but for the i*i»l" 
' *^"*"**' He said, •' the wosd >Urm 4Banoot be lAken to neM^thf^^ 
*':«Kercit: which the hnsband bad for ninety years.*' <P6r 
iS>itisfl^iiQderstcxid^ hy yhi$ death the whole would b»d«fl' 
teonined; add thentife could hdve nothing: and thei^ 
foxcdit eonld not be used in this sense. But the lesso/s W^ 
the word V ierm'' must mean the time of ninety years ; aM^ 
tHe waBL^^ itfrm** signifies as wed the time or amee of moety * 
yeai-s, as the interest.) The«other judges held the tinttta- 
ii0n' hf SEWj^ of remainder to^be void^ from the-nMehrcriiii^ of I 

commewemeiU: and denied that the wife*8 being aflartf ^ I 

W9uJ4 ibaremEde any alteration^ . ., r . 

Tbo o/d eeae% held *' thal.thsre could be tro tvimtdti^ 
•• or substitution of a term ff/irr tonMe^/of-ft/f^^br ' 
'* Amf, oi is:t7^" It was a mere possibitity. It wasvattf; 
. :from the nhiertaifit/ qf eonmtememesdu Ttiere was iioftai^ ' i 

ticular^ate. The ^ift of a tertnt(iike Any other chattel for 
anAoiir,wasgoodjft;rei7er. . . 
The objections were subtle and artificial* 
When hn^^and hem^eial terms catne in use^ the con^ 
veni^nee offitmHies jrtquired that they might be settled 
upon a child t^itr the. death of a patent. .Sock limitations ' 
were soon allovKsd to 1:^ created by wM: and tbe old ob- • 
jectioosi were removed^ by changing tbe name^ . from re-' 
mavndersi^, to iQ(i&souTaRv d^iser. 

The same reason required that 8uoh liniitatfons iMight 
be created by deed ; cs^ for instance, mmnigeiWttleinmtS) 
to answer the agreement of parties, and exigencies -^of^^ 
families*. Tiieifefere^ to get out of the Iherad sivthority of ^ 
r 285 1 old .caaes,iaii ingenious distinction was invented: SL-ni^ 
"^ matioder might be limited for tlie residue of thejwrsv bu4f ^ 
fiot fot Ibe residee of the term^ •• ' 

Now in this case, upon the true construction of the 
lease, 1 am ct^eirty of opinion, " that Ihe land is^ demtseT" 
'* tP.thiS flon/ifiaonNany of ninety^int years as ikovid be- 
•* voexf ired at the death of his mothen" - 

Tbf^r^are joaay maxims of law, that deeds, especially!' 
such ** as execute mutual agreements for valuable -cou^ -- ' 
.*< sid^mtion^ should be construed Uberaliy^ tU fee ms^ii 
*' valeat, eecordmgtto tfae inieni :'* wbicb ougbtelways tx^^ 
prevail ualeoa it be contmnr to law. < --*- 

The passage from Coke Liitldon,A5. eited by Mr. jf^Mr-" ' 
defines ibe word *^term'^ to signify, in undeietltndtiig <if> « ' 

Easter Term, 40 Geo^ f« 286 

(aw, *^jmt only <i« Umiin o^ Jimiimdbu afiimu ^t ' pliS \JS7^ 
"•• the ^ate and interest wbich pasiba fer thtrtirtie.* : ." wfUG«tp 
Ifm lAr^.lease, tlie ixrcnrd be tskea in tiM db^f Mige; eX'diiniss. 
the widow can only have itfbr somanj^ofhovetyHiiine i»mjw0*n' 
^ears as sAr»«liouldiiv«; and dteaoabatei nwu^o after- y , * 
wards. . - , \ . r • q .' r ' ' '^ catw- 

But it is manifest that aaititsffest was diiderstMdto ^i^q^ 
^onthme tffitr her dealA, to be. ettjtfjfBd bflmr mt. * • ' 
From tbecoimeof itaftuiiev itieould^bot be 'supposed 
that shb would ^^ime die tiin^y^tiine jfearSb Rowkmd is . 
to fMiy a^pcfuUtyt for grindiog' ktanetber mftL . jffe 10 Cl> 
shm^aheriAt oki theidealhoE bk motihec H^ is tBrepaitk ' 
rKe lessor ccMrenaats ** thak Rowland 4kail qui^Cfy enfoy t** 
i. e. lor 89 na^yeaiv as^bttuldnot he Diti» at tke deatd ot ' 
bv^ mother. 

• Tke^fint aease of tire wofd makes e««ry thing oMisisteiit 
aj^^^BketfiAlt the $ecmui sense destroys one half of the 
lease, as repugnant and contmdk^ory to tbe either. Tliere 
ouf^-ia be no deublr^ therefore, m wkieA sense tbe word 
6bMldi be undcsstood. 

Mrn^Jton baa laid no stress upon the only okyection rAad.956.Cro. 
wbicb weighed witii MmknMiSO long ago as the ddd of «». 817.] 
EHzxAeth^ viz. '^ that B^kland was tto pttrty to the lease :** 
^nd rightly. Tbe reason why he was no party, appears 
{torn the lease: bh was then ^ti injwa^ (a) The n[K>ther 
^QAlracta^' aod procores tbislimitationyor Am.' A grant 
m^y benuUle to a person, by a deed to which be is no 
parly,'. jAoit/i^iMi^scc^teri and actually eJi/oy«<2, after bis 
mo«bel:% death* from tbe 4th of Septtfitbtr, 1U94, to his 
own death, tbe 6lh of Novanber^ 1758* Tbe lease was so 
intelligible to every tt/i/e/irnedeye, that nobody doubted of 
liis ttlie for sixty years. 

LimUttU^ta o/'ImnM afe nam of^aoeral use^ • Their £ S86 J 
bonndsftfe settled* Tbe roles ooncerniag J^em are cer- 
tain md established* • When they came to beailowed by 
willt.or by declaration of trust, the tabt^mtiiiU reason ' 
waft the senile for allowing ibem by deid. A strained 
construction should not be made, to overturn tbe lawful . 

(iij life, might have been a party notwithstanding big 
infancy, for ttough he did not execate, thait troutd be no 
objedAQDt^M it is not necessary that a grantee should 

k js a settled xtite that tiooe can take an estate of fVee- 
lioM'^inposaessioa by a'conTeyance at common law, if he 
be not a party to the deed. Hoi. 3ia.; though be may 
take buriUnodCatiea over of an use : and by iray of re« 
maindor a person not party to a deed may take, eveo 
Uiougb tbe conveyance be a conveyance at commoo law. 

23t Eastei^'YfeVmj 30'Geo, S. 

YjSi »wfe»rof tfie j^a'ftfes. ' Il'^¥ i^fa; * se^rl^^tM^i tease 

wkirMT for the benefit of the mother '(MriflFg twtlife^aii* after- 

ex aimiss ^drdgly »^of prOVifeTon «rh^nibA. /' ^^//Hh^jwrtfes 

PLOWDE^ undooWMlf rWe^rffd it. " Tlte cciv^tiMilfii^fe; "'*th»t «cfcr- 

^ " ///7?a'^hbuid*feii;f6y^fT^Wi* lihe'dtirth t>f hisWdfhel-; for 

CART- ** *^ 'refeidtte'^of nlnetyVAne y^^*-^'>fe^9U(ft*ieally cer-'- 

WBiGUT. ^^'^' ^"^ iriight/cfUtelf, amount *td'a lease. . * -' 

Mr. Justice Dfikf^b!^^Tlif» tnast' be takfen that riie 

should hold' it *^r 86 'ttvivdf df ttie term of §^H fe siie 

^^ slYouldlive; ahd /fott^ei,^, rfiit inj therteaindey^- '-" ■' 

The fV/f^w/iort of tlfe defed fc obvioufet and it certainly 

«he\vs, (upon the \VhoW tei^orof it,) lh«t4rc iw^«f4f)i« of 

the parties tfaa ** that both should eryoy during -xti© 

••'w^iol^ "term • and' ni^mbef of year's." And it. * We 

ctf>* supjk)ft rtie ifiUfiii^, by ahy eoristnH!rti6n, w^-tcTll 

do it. , ^, V ...... ^^ . 

Mr. Justice To^Ttfft was cl^arthaVtb^ ly+EK-'tioK'*'as 

that both should enjoy during the wliole'f^rm'fli/d^^titiffcrr 

fifj/e^fsi;vr± Elizabeth foV so (ong of It, asSte fehbUld 

hveV and Rontimd, durrng tlfr* remaiudfei*. All the Cir- 

i^u^rfetancesshewthisf ahd the re^rVing a AmVupdn'the 

cleatb of i?dtt7a;/rf prt)ves th^ t^tnti*m to haVe been 

' *♦ that the /m» ^alibuld tofttimh' ^ Rewlatkt, ifitr the 

" death of his liiolher.'* Aiwl 'thie cM^e'walntte tfU alo^ng 

^ run, ,"*• that Rowland shall quietly enjoy?' ' ' ''^ • • '- ■' 

'Therefore h^ concurred. ' '/ ■ '^•''" * ^- 

Pet Cur\ unanimously (Mr; Judt. WtlMt ^bsftntj) 

•Rlle— That the PtAiSTir't' b6^it>i{gUifr£D. 


287 ] 


AthM^^^' Lant, Esq. rer5tii Norris. 

1757 ' ' ' 

[Seel Hen. ' ' '\ ^' ^^ ^- ^- RoTlo.GOQ. 

fil. 36* J 


Covenant te fpHts ^as anacybn of covenant, by Robeti Lanl, dsq. 

wremifoIwUh *^" and heir of Thomas Lant, tsq.n^^\x\kfV(t/hmi 

allneweree* Narm, administrator of JoA/i NDrm,e^q. his late KKhet ; 

tioiuwellre- \?hich Jihn NorHs was assignee'of Thvtnas fVilsoSli nnd 

paircd,cxteiidsi|^^g^,poiian indenture of lease niade oii 23d iftivmary, 

nJuxwtouW^'^^'^'^y tl^es^'^ Thomas tW deceased, who wassefeed 

•-'of certain messuages, ground and premises (Aiehttened 

• irt the indenture,) of the one part, and the sttiA T^mas 

JVilsohi on the other part ; whereby, in consideratibn of 

'^tOD/. to be hid out in, upon or about rebuilding upon the 

-grdimd and pi^emised thereby demised, and othef'cove- 

"nantsy the said ThonMs Lani did demise to tlve said 

'TSomds Wihon^ alt that piece of grofificf, and all tiiit mes- 

' siftr^A, lenemerits/bouftes, tfc. thereon standings in Suffolk 

Flae^, in the parish of St. George ihe Martyr, Rebutted 

Easter T^INP, ^ Geor 9. 988 

and bounded, iSr«« froiq (;;4rif<Mffrl71^*fof forty-three 17A7. 
yeera, at l7/.perai8mMii,r6nt . , i . x^ant 

' Tfimms JVUfpn, the le$see» coyenantp to .lay pat the y. 
said lAiai of 200/. ivithiD fifteesiyears^ la jumcTt va. an^i koruis. 
nm'bvihnivG'Of messaages or teiievi|^u or .§onie ' other 
buiidinga. npofi the ground and pfpemiitn an4 ^^^^^ M^® 
to time, and at aR tin^, alt, '4^ aingular tha said 
mtevages or tenemenU iO'I^Ojie eiseciid^ with all auch 
oilier bQii»€»^ edifices, ^ as should at any time or times 
THEREAFTER be ertctfd^ ifC^ to repair, ifc. And the jfi 

SAID '^EMlStp PREMISES, ,wHl^ all ^wM O^AfT hoiises, Si'C, 

so VELL &EpAiRBi>, 6fc. at the Mid or other spoaer. de- 
termination of the said terra, to deliver up, ^c. 

Wihon the lessee entered. Tho. hav$ died ^PthificTy, 
I79t2, seised : and the reversion descended to John Lant^ 
his son and heir. 

Oil 94tA March, 1738, WUwa assigned tl^e teriir to 
John Norris: who entered, » 

On the 94th March 17SS, John Laid died seised, and the 
refereiondescended tQ-tbe pliaintiff bis hrottier and heir* . 

The breacbes aligned were, Brft, that after the term 
canfte to /. Norri^^ ani afi^ the plaintiif became seis^ 
of the reversion; tn A whilst, t|ie said /. N« was possess* f 288 ] 
ed, ia«* on \^May 1746» the said •). iST. in his life-time ' 
permitted all the said dimi^edimiuuagesxo be uncovered, 
tfc; by reason whereof the walla of the same defnised 
/^fwnttH;^ were' y>ut ..of 'repair; and goes on ^ other 
damages, stilLxalliQ.i(, them (all along) ** the. $aid demited 
" premisei/* 2dly. That the said J. N. did permit six 
messuages, parcel of the laid ** demised premiiei^* to be 
prostrated; and to remain so till bis death, ddly. That 
the said" J. N.on 1st March 1747, did pw// down six other 
messuages then erected and. built on the said demised 
premises. ' 

Plea as to the Ist breach, tiiat the said T. Wilson or 
his executors did not within fifteen years, or at any 
Qther. tjm^fcj^y out 2001. or any part thereof, in erecting 
(urt^ilding 0? any messuages : and that the said mcs- 
'ftUHg^ l^d ^ever. bieen rebuilt. As to the 2df breach, the 
a^mc^ plea. As to thedd breach, ^* non infregit eonven^ 
V tiouen^n* To a4Jlthe breaches, the same plea as above 
to the lat and 2d over again, " that T. tV. never laid 
^' out dOO/." and ^* that the messuages never were re* 
/.* bnilt;" and ^' that J. JN. after he became assignee, 
• " and after the plaintiff became seised of the reveraion, 
ff IstMareh 1753, died intestatci so possessed; and ad- 
** ministration was granted to the defendant : by yirtue 
'* of which, he eutered : and being ao possessed, before 
" exhibiting the plaintiff's bill, viz. 24th June 1754, as- 
*^ signed the demised premises to one John Townsend^for 
** the residue of the term ; who entered«and is possessed/* 

998 Ea8terMDeroi«raih(S09i^.- 

17J7. Thephiniiff ^murs geoeraUy to die lit piek to the 

L4Kt' • ^^^ breach^ and alsa taif&e iBt pUs^^toahe'^d breach; 

y^ ; ' especklly^o^to.tbe lat piea to; the ^ breach v generally 

vouMMi ' ^^ ^'^^ ^ P'^^ ^ ^^^ ^^ breach ; and generally, to" the 

l^pkfttoall the 3breaohe8..;vTbereT«rft8alfio a plea t>f 

npnfimtiParit taiid 4;dnilurrervid it*.- ^ - 

1 T(iie»defieadaist j6i8Ctiii deaiisirer^totall the' deniar^' 

JAufVyme^ for the plaintiff, urged tint the plai8^4»re 
noawweis and that, ftey adtber cob&Med and amid^ 
thecharAedii the declaxfition, nor denied it. . ' .^^ i .0 
Mr* GimU . t07ifra-<Hfoc tbci defendant, gave ivp <thfi * 
pleas ; but he otijected to th^ declaration; viz. tbatttie 
intenfioD of the parties was Ip: oonfioe the repairs to tke 
buildings tkentf^ to Bttesected: as it appt^rs. that 
there were noMildingo (of any consideration |f upon ^e 
land* Qi.tU Anoc of the toasa; nor ie tHere any a^nifieht 
in the dedanatkm " tbat the lessee" {Wihon) *'49w4id 
*' jsrrcf any auch*** Which swnmnt'ought to'.bai0e heetk . 
^ ^ made, in older lio bawe maintained this adions for> * 

L S89 J wkhM such erertion, the defendant coiM not be, oUigM 
to repair. And a plaintiff must shew every thing in ttia 
d6Qlaiiation».t|iat w necesaary to maiatain^ bis action. 
pVeat. 12S, The words <' the «ikicin»cMi premised must febiteto 
1^^] those if» tbci beginiung of. the covenant; 4ind therefore 

only a»eM f^ ittlefid << that he obould leav^ tbem^ iNar«' 
** the new erected and rebuilt edifices, in repair lit the 
" ««rf<rfthekate;* , ^ 

^ The covenant is future; and. the lessor coold not faiivie 

I adyaoti«i|>i«poiiit|^tfaaea£{oftbeteiiiK > ' ^' 

It «ppeii» bjr 5 Rt^^ S(l.i0« Sir Anthotnf'i Mmn*s ca0e« 
thatji^a ^ow.leUi a. manor Cor years; and the lessee cc^* ' 
venaoits to4eep^ithe<iioaaea td the oianor wd wlialsoii- '' 
ever W94 wtthiir .tb6.iaSnor, in as good a staterns hefMntf 
them, during tbe term 3 asid ibe leasee makliS'Wasf& M' 
theli0us€$,a^mo^XtiMig.imk$; the lesaor my b#ifng^ 

{a) This^lea 'Was bad, if, aa I suppose,' the cittise aa^ 
sigited for fehe demurrer waa, that this |>lea was too ge- 
neral, though it wottM have been good if issue ha^ bethi' 
joined upon it, and there bad been a verdict fqr the J 
plaintifi; ] Lev. 183. 1 Siderf. ^189. Oitb. Hht. afCf. ' 
EdcUQl^ p» 155, and it seems by the stat. 4 afid 5 Jkn. 
€. 1^ s. I. it woiild have been good on a general demur- 
rer: however the other plea tion prosiravit was a goofi , 
plet^fandwas admitted by the demiirren andtfaeimit*' 
tbatftiust have been the i«ason« Mr. WyHnein the ne^ 
pag^gaveop^ the* 3d breach because iaaue was ofifercd 
onik .' 

Easter T«m, so (sb& 9 


action of coveiNHrf; teftM* tbe mk^ df tbe tsm ib^ 
the Mka; for.ybr Manv it was impomble ithattlMr coi* 
T^lml,ii0ul4 be performed 9 teit itis otbenrnfe, of >Mie 
kouiei.^ . .: .^ '. • . /»; ; !. .* ,* ' 

And witb (bis agrees. jR^z. JMblL^ jBm< €^fKV editkM, 
324. Letter I. the same huiir. Tbpugfa it he feUs lnttber» 
Sfc^M be d» waateobi wooA) he inay haite ite aottM x>f 
covenant DURING the term; "for ^A«r (says the book). 
" eaimot be lepaned/' • * ';':'.;-.. • 

Ha likewiae cited 1 ^allL 199 j Tb^ otsecf OretMt v. 
Grrnt, where the kaaae coyeoantedifor him and bib as* ^ 
aigas* to rebuild and inish a boose uMin nmk a time: 
waA^/i€r the time expired, Ae lessee isaigaad la^r the . 
pii^niseB,. tbe bouae not beiag then bttilt and iinisbed asM 
cQidiagr^ih^coireBant; mod per Holt, Cb. Jost* Thia 
cov4mfft ^hall iiol):bind the assignee : because it waa 
br§he^ b^ore^tie rndgnwient.^ ^ liter, if brolDCO iffler the 
asaignaietttt ^Ulik: lessee»bad asrigned befim the time 
bad been expired. Which case vma died to pioye *' that 
<< Ihe aeltieii did not lie in. the pseseat case ; because 
*' Ibe Maignmept «aa aiade mfter the fifteen years were 
«' expired," . 

Mr. ^|ftia<*<»Tba moonlis now tD be considered as 
upioi 4ig|i^eial demurler to the whote- declaration : and I 
«bali tmy ea the 1st nd sd bteacbes, and not on the 
3d,n(whteh baa, I own,, reoeived a proper anH\i»«t)| bjr isaue* 
b^H^offeredk) . . • . / 

Covenants are to be construed for the beaafit of tbe m^ 
ven§m(e^;.mit^ the ^oxxmnter. 

These are buildings deaiieed t and MOI. is agreed to [ 
belaj^ out ialepuirt.of tiem^ or. in greeting mm ones : 
then there is a covenant '« to repair the buildings tabt 
'* elected on the demised premises ) and the SAitf <»a« 
" aiis£jDPR£Mi9BS,*a)idelAiff5«o tcibaei«eted/ger betog 
*• well and sufficiently repaired , Sfc. to leave, ^;- 

Xbis intimate that the iA^«iiierf buildings, as mdl^tUt 
new erections, were to be kept in repair. Herejs suffi- 
cient, froUT Whence t6^co1lect the fntention and meaning^ 
of tl|e pa|tics» to^be so ; which wHI amOiait to a covenant 
And won this general demurrer, the court wiH not intend 
thatjAe WOl were laid out only on the other buiMinga 
newly to beicrected. 

La^D Mahsfi &CD^ 

Icbeoae to look into it, and^eonsider it a little. No 
particular teqhnical wordsate reouisite towards making 

^Y^^^^*?**^^"'*^ question only is whcthenaba 
words ^' demised premim;' are omitted, by mistake, in 
toe formar oart of the. covenant; or superadded; by 
mistake, in the latter: for there appears to be a mistake 


29^- ] 

ll^^ ^i'lyS^'^ 

«9l Easter *B©ntt, 30 Get>«^^. 

1767. in'efthei^ oh6 or the pUber^ tii tb* deed it^ir;>' Tl^tfeMe 
LANT* is a building-leiile. * '*"^^ ' . t ,; • ,,.^ ^p,»^ii, 

KOBuiS. Tte^^fifr^ frtbt^d^c4i^ be iW»Htfed'h^cfevciitot Wt^^ 
tlitm. The covenant " to repair," is confined to the'teiw- 
inent8% l6^'*i*6tM f- AtR?€^*i«fHt^»* ^a'^ftave W 'Y^Ar" 
extendi ^^6 tHii^dfe^fe^ >'cfiffise«^ foi:eif%^v^MfS allvstfdlir 
othpr'a$sb*ttb<^^ffi&fe*fter^^i4ttted/-^ ' i^iifl -^a-i'H nm/; 
Mr. Jtiit; Pdrfs! A'i-ft i* ^ tiuiWiiig wirflr^piifHft^ iMis^;^ 
In ordef^b !6ofcittto4h^lca»fe',it M6*d^3ver;'^rt*^k£i • 

And iiWi<haVfng'eOftWdei^*Htm%1fertt«ttd*y:dMJ^,) 
Loan MAimtHELD- l»fd,nv« ameittr^mely^t^^t, ^tiiitt 
not onljr the words of the covenant, but also the intiiik^ 
the parties, manifestly sbe^ that it wastior'ni^»H{l^i^at 
any of Che money should be laid out on the o/^MRMfhp: 
i)ut that iht^ were to be pitied down \ 'amd Ab^&^Wtever 
he sHOiTtD CTftf , neith the ^H)(M. oroth«rW%6; ftor>his own 
convenience, should be kept in repair. 

The woisds ^^ dentked fnmkei' are put is^ 9ppd^iion [a] 
to the buildings that were to bb erected thereupon with 
the 2001. ; .' • ' V. , i. "y i . V 

r ngj -I And the covenant " to deliver up," is-agreeabfe to 
*- ^ J this conjstraction: that covenant ^iiig t9 4e»v^ r f i tire 
'* demised premises, together With aU.$ueiia^^'lH>usls, 
*• Ire as dumld beafiemards erected^ ^e^B^ .^dl rfej^iipd," 
It is therefore clear against tjmjglaintiii; ^Pfxp JUhe 1st 
and Sd breach ; and Mr. *A881(cKnowJedge&.rt to be 
. against him on the Mird. , ^ - , . .,^- v^ .; 

Therefore the oauBT gave 
, JuDUME^xfar (h/e DQ,r£K«A^n. 

.. jf 
WecheMliiy, ^ EkaZ^e's CaSJB.,,. . j. * ; 

4lhMayl757. .,.,..• ' ."'",.*',,.,,• 

\. f he covRT joeas/ufl '!V, 

JriS^oi'to^npK^^ -^'•«^«'» ^'ng ^ attorney of.this cour^.had 

be articled at . takenfor hisarticle-cltrk, one Sniiih^ a tumHy of 

cterk to an the King'3 Bench Prison ; a full-aged man^ and i^^o still 

attorncj. continued to act as turnkey. It did not, appear* thiiany 

money was paid ; or that the master fed, lodged ,or, ^n- 

tertainexi the clerk, (though the articles indeed cpv^w^ted 

" that he should ;") nor did the clerk officiate for Prdzer, 

but in matters relating to the prison. It appeared tiiat 

Frazer bad; since these articles, (which were datedjoaly 

(a) I>/f0 reference instead of opiM>sitiOQ--«fiiid 8ee9'X». 

twf^jrenfs: a^o, ii» 1 755) become-emceroed ia s>xty*three 17 j7« 
causes, on behalf of the prisoner^ in the gaol. . fr azer*s 

vTl^i^vtloJe matter .beiog^disclo^ to the court, upon case, 
the application of Mn Jifoii» the cl^Jk of the ^s^pej^softl^ 
prison, - ; ....,, 

"-T^he couaT, wefQ ff/Z-iffiry clea« that tbe^articlies were 
merely [ eodwi^e^^^jtik^t tb«. wb^^ \V(J!i^9^cntUirivqn€e, be- 
tween Fraxer and the tqrDkay^ Jb^ seour^^ the business 
ari#i|9^ frpm t)|e prispaeirf t .tli%t thi^ e^^rciae of the office 
of ^durnhfy^ in n^ prisoa; w§fi^, bqth in it^'* ^uid ^ also Re- 
cord inj; to (he intent ai^d spiril of the act for regulating 
at|ornie9<a very improper education for^^on 
€^iin attorney ; and that these articles ougi^t tf^b^. c^fnT 
tfilkiL J* 

• r And^ccordingly^ they were,, by.tiie express, arder pi 
tb$r<3oart» * ; 

• .<;:AKc^t.X'Ei> ii^c^Hrt {by piaster CUrU) and directed 
to be kept in cow;t, avd iM)t deUxered iapt ,^ • 

PiEusc, Esq.tvrs/fjLeiit Fa,u€05Bjciiq« I f?*"'???! '* 

Jiaj 17o7» 
( Lord Commissioner Wi lm ox absent, in Chanaty.) L -^ J 

TPHIS was atrial si ba^» on the civil sideof tfae court, a rifhttoa 
by a sjjeetal jury of the coxntty of York : track path on 

The' quedtfon ^*^ cdtioeming a right to trafek or ioy^^\*^^^^l^ 
ve^fc.npontfee banks of the river IWt (iirhichr divides ^®[^^^rj«» 
Yorfcskfre tio^ the - county -palatine of DurAain) from [Sec 3 Durn. 
Yantm-hridge up to Ix)w WorsalL . » 555. 860. 2fi«. 

There had been a farmer issue tHid<l, •* whether the J-d. Raym. 
*• river-FfM was 9l navigable tivti^ixom yiirMm-bridge ^^^^jj 9Q-(g9v 
** to Lov WorsuUr which issue had been found in the ,^,1 qu j El 
affirmative. ., vide Uar^. 

And the present trial was a' new trial (a ^cond new TR^»a7»} 
trial indeed) directed by the court otChancery, upon an ' ' ' 
issue " whether the * plaintiff had"^ right to a track-path 
•* on each sjde.of the river (alternately accor^jj^? tQ . ,.. . . 
; *^ ^ tffe'couft^ of iu banks) for the cpnvenifence^of toivT|g ;.» . * , - . 
■** *i^^U1S6at'let or hindrance from or payhig Any ^cjkuow**. '-■ "*• - ' 
' ""^ f^lfment to the respective owners ofthe feoili'**' '^ ' "*• •' '\ 
Y' t^SA'ial lasted till ab^^ . ^ ' * 

"ing: at wli|ch time thejury (after staying out about aqukr- 
terdfanbour) brought in a verdict 

"^ TT.B. ThelffainliirdW nx)tX!Wm iritsrwniTlferfncf 

;nfe<iiMKnght4>f bis^own; bulaftagrirarffjiigh^ claniiable 

by ii// persony^bose occasions led them tg navigate (bis 


S9S Easter Term, do Geo, 2* 

1737. Re* tersus^^OBK Ph iLips, Mayor of Cabma&theh* 
V. [Lord Commissioner Wilmot abseni, in CAanc€r^\ « 

Monday, 9th npHE'deretidfiift hacf pleadcfd loan information innaturjp 
May, 1 757. oH^tro imrf^Mtb ekhfbtt^ sigamst hiin, *' to shew by 

v^djctoaan m ^\^^^ ttuthorrtyfie abted as amayqif of this borough,? 
^I^^rr^t0 ***^^ of clerffen.apd swearing W(?r a mandamus jpufr 
let afi4e,Dpoo ^iJ^nt to 11 G. 1 . fc. 4. 

8efeiiAan(> i Bnt'tfae ireearing wan' (by niistake) set/fbrth (0 hav^ 
f 293 3 ^^^0 the same manner as it ought to have bj6eu it.i^s^ 
payment of the election had b^eq tfpon the cnABT£R-4ay. . 
cotu, with Vppn khe repfication, no less than fourteen issues ypr» 
ameo^hU Jp*^^ : t^hich went down to be tried before Lcf. Ch, 

FIct. ' Baron Parker, as judge of nisi prius. But cine of ih^ 
See 4 Bur. issues [the Dth) was taken upon the swearing t^uV (^^ro- 
8133. S1S7. ifieously) alledged to be before such persons as v^re (^J^ 
1^*^* ' ^""^* pmper to precideupoN the cHARTER-day; IfukaiY^ 
^ n^ in fact Vein an election under thIb charter :j '^Jcb 

yfzi a mere mistake in the defendant's plea ;, for*fiis mal 
Sweating in fact was rights viz. AGREEABLi'^b-jfw ^- 
tectionsof II G, I. concerriing the manner of b^ingiVora 
ilnder and pursuant to a writ of mandamus^' l^ne'^jc^ea 
Was worded thus, as to his being sworn in; -jpi^s. '* That 
*' after the defend;>nt had been so elected and (il^6s€^*to 
" be mayor, *c. and before he took upon himself to 6X6- 
" cute the said oflSce ; to wit, at that same medin^an4, 
•• ammhly so holden upon the said Friday the s^d 30tn 
** day of May in the 2Sth year aforesaid m manner afoire- 
** said, he the said 'Roger Philips^ immediatelSt iz/ler 
** liissaid election, did thai and there accoroikg to the 
** 'b\VLZCt\0H^6fthe LETTERS PATENT of the said late 
•* King Vtertry the Sth take his corporal oath^ tipon tfaq 
** holy evangelists of God, before John Evans mer^. 
'" chant, George Jenkins^ Daniel James, William Sears^^ 
*• Lazarus Thomas, Samuel Morgan^ John JBraws carpenter, 
*• John Evans currier, Richard Leigh, George Bayle^ 
** Thomas Richard, and Lewis Philipp then and there 
*' being twelve discreet and honest men of the burgesses 
'* of the said county-burrough, rightly well and faithfully 
•* to execute the said office of mayor of the said county- 
*' borough, in all things touching and concerning the 
** said office ; they the said John Evans merchant, Cr. J» 
" D. J. W. 8. L. T. S. M. J. E. C. J. E. C. R. L. G. B. 
" .r. R. and £. P. then being twelve discreet and konesi 
*^ I7ie»i ^^Ae burgesses of the said county*borough then 
•• and there appointed according fa ^A^diIiections 
" iff the said letters patent last before nxentidned, 
^* by the said then common council of the said county-^ 
'* bSrough BfiirosE WHOM the said Roger PkiUpSi so 


£aflt»9 Term, 90 Ceo. 3. 294 

*' ^^ted and ebosen w^ov M tlfi aatd couuty-Jiopttjih 17^7* 
^ a^ aforesaid, was to take liis said oath : and that he ubx 
•• the saui Mog^ Philips wag^TiCERpupoMj^^thm and ' y, 

•• ibeVe, m due manner^ admitted into the said office otitiayor f aii^pj- 

;\ he tl^, said Rthger rJiilips^ on, the ss^fne. Jiff 4^ . % »«d . ; * 

•* i30th day.of Jlay in the 2Stb *, yftar^i{gf^i4 ^ryl ficow 
••'.tbQneftcbntiwwy.;^ft^^?[?irda^ 4^ 

*• i/iid by THAT warranty Tie the saij^ •^<^^P4^M»» on, ^ , ' 

•• Jlfc. wid,fraip^ . 4rc. -mP^^ *^ ^^^f^^ ^W^»,W*? W .^er- [ , gji { J 
*' cise the said pOice ol mayor, 4fc.. apd to^, aii4. during aU \v : , 
**' the said twe, did tUereclaim^^^ . . . ... :.\- ^f. . 

T^htLordQf^i^.BarQU^\9)ioti\j^.\i^^ - - . 

t^t he was, opuiioD, upoQ thetpal^ *• th^t,u(M^ the 9^ 
!*, l^ue, the d^eoidant cquld uf^ give evidence 4^r a dijfcrepf 
^^ swearing froxn, what he bad jaUedg^iMpc^ thf; record ;' 
^nd *Vth;3t upon tb^ lOth i^aua"! (tal^en upoa tbefaii^^tfoa 
pf being by virtue thereof mayor, Ssf^^ *' bQ f<Ni& ;iaif jwy 
*^ from the /i^^ Ac/b^^ ^^ o<rt». by j^irtue \i(berepf be claiifUi 
** (ojbefp^yor." And IvelvajdiJirpcted tjjejuxX'tD^fipdiJQr 
th^ iting : iind tbey foiujd a xerdict.aow^rdingly,. ^h^ M 
also.reported 1' that no ^videnpeL.was entered mto^upon 

^*^S upon a// 9f.tlv^in : ^^^| that t6is was ogTVB^ to ^ 
•• ,irtf^flii^ ;fr(/iiAcf inca»y/«i;iir« ^rifl^^^^^ 

W[r. Hi^tpH^ *Jf, Morton^ s^nd Mr. jPwA^for, the de- 
i^ndi^t had t ber^on .nxQved for and obtained a rule for 
tb^proseciitors ( wbo.had thua-got^ a verdict^ to ^^w 
cause .^^ why. there abo^ldnothea Jiep* trial ;\' upqaan- 
''.insinuation 'U^^ ^he judge w^o tri§d tbe-caMse^ bad 
^Vmiscfirec^eitfaejury.-*.' vf\mh misdirect^f^ %<^hfii^imf^^" 
they alledged, in th'\9^ viz. '[ That the j.ud^ bad^pi^e^^ 
" duded tn^ d^fewdai^t iron* giving any endi^iffftio^Tyf9 
" his "swearing, as s^lf^rth. \\\ the aaid 9t^j^fe;^.jjiep 
*' jud^e apprehending and ft9 directing tb^j^gr, t^a^j^it 
•• could be of /io kindofservieff t,Q tie ^ejeiii&i(, ta\ji^ad- 
*• mittedto prove an ^ssuei whicb l^ prdv^^gr^^ ft^^ * 
'' miited^lzoxxXfl s^oT aiaUteud to imke out y^^^7*^g/i^.«vj$r > 
'* that if this swearing ^ iji^n^A a pii^^T^^^lf^j^ga'- 
** were to be admitted^ yet still it would{.nqtr^W[^j^4»** 
*' ANY part of the record^ that he y^9» rfig/daNjf^^^9^''* 
*• uicnBa a M4Ni>AM,us-election ; whic^h Yi^-^iV^^" 
** jciesyof flection under which he claimed." r. . , .. j^, , 

Sir ki^hard Lloyd, Mt. Serjeant Poo/e,an^ ^^^^n * 
vrere prepared, as they sai4» to shew cause^ bf fpftv^ficitg 
the court V that the direction oftbe^'iid^e wq$^ Hf^o^^i'- 
•\ and consequently, that the verdict oug/S to sta^\- ^:^ * 
'Lord Mansfield— The directionof the j^^dgjgi^w^ ' 
certainly right. Therefore, if you should pfevai^ in this * 
a^giicatioa for anew trial, it could be ^(.jpo^:^!]^^:"^ 

295 Easter Term, 30 Geo. 2. 

1757. for, A3 the record stands, the same direction must be gken 
REX again. 

V. Tetlam very desirous to cure this slip, if possible: 

PHILIPS, fo^ the merits have nev^ been tried. 

Consider whether the verdict may not be set aside ; 
and the parties admitted to p/ea^I again. 
_ 1 The RULE was enlarged; with this addition, vizAo 

L *^^ J shew cause " why the verdict should not be set aside, 

" A N D a repleader awarded,** 
r4Bnrr.3l9S*] ^*''- Serjeant Poole, for the prosecutor, now shewed 
cause against setting aside the verdict and awarding a 
repleader. And he alledged that, though there should 
be a repleader awarded, y^jt the whole record niust never- 
theless stand as it is at present. 

As to the repleaders in general — ^he cited 6 Mod. ]. 
The case of Staple v. Haydony^(l9t resolution :) it can 
only be on such an impertinent issue, as the court can 
giveno judgment upon. 

Mr. Norton, Mr. Morton, and Mr. Price — contra — for 
the defendant — the issued are not all found against us, 
absolutely; but toithout prtjudice to any future dispute, 
except as to the 10th issue. 

Mr. Norton, Mr. Morton, and Mr. Prtce stated th« mis- 
take: which they said was thus: viz. The defence set 
up was ** an election of the defendant Under a mnndamus, 
" issued pursuanttoll G. 1.'* And in setting out his 
oath of office, he avers it to have been duly takeh; and 
shews it to be an oath, taken by him upon this tkction^ 
and sets out the right and proper oath uf ofiee $ but the 
plea, it is true, goes on, (following, by mistake, a prece- 
dent of a plea of an oath of office taken under an election 
upon the proper chartcr^day,) and alledges it to be a' 
swearing at the same meeting %oholden^l^c. before persons 
who were only proper to preside upon the cuART£ii-i2ay ; 
riz. ( B E FO R E 1 2 burgesses, S^c. ) 

Which swearing before these improper persons, they 
urged to be totally immaterial : and that, for the sake of 
attaining justice, it ought to be some how or other, set 
right; the true [question having never been tried, viz. 
•• Whether he took the- oath of office, agreeably to the 

*• DfRECTIONSOF 11 G. I.*' 

I'herefore it shall either be amendedfOR a repleader 
awarded: for upon the present record, there is /iojustifi-> 
cation at alt; and therefore the issue joined is totally nn'^ 
material. The case of Staple v. Haydon, 6 M^. 1 . is almost 
in point. 1 Ld. Raym. 707. S. C. (1 Salk. 173. 216. S. C.) 

This is a good plea in substance ; but ill pleaded in 
point of form. 

They ought to have demurheb to this part of the plea ; 
and not to have taken iisue upon it : for it is a matter of 

Easter Term, SO Geo. 9. 296-297 

fer, *' whether the taking this oath would have justified 1757. 
•* the defendant." And a verdict cannot make that good, j^g^^ 
which tlw court sees cannot be so in law. Therefore y^ 
this verdict is utterly roiJ: just like that in Hobart 11^. pHu^ipg 
Tusker y. Salter. 

And such repleaders, in informations, are no novelties. 
For in 1 Fentris 122. the case of • Reynel v. Heale; a re- 
pleadtT was awarded, because th6 issue was mis-joined. 

And they oferedtopay costs, in order to have this mat- 
ter set right: and insisUMi that this is but just and reason* 
able; especially, as many o^Aer persons' rights depend 
upon the right of this mayoi;. « 

They also cited Cro. El&,^ 245. the case of Lover. 
WoltQB — where a repleader was awarded after verdict; 
the defendaut having mispleaded the statute. The 
reason of awarding the repleader there, must be, •'be- 
*• cau$e the^rue merits had never been triedJ"* 

They even ur^^ farther, that it might well be taken, 
upon the face ot the record* ** that be was swoni before' 
•• thepraper persons:" it being alledged " that it was at 
** the SAME meeting then and there so holden.*' 

But they insisted that, at most, this is only form. % 

As i% repleaders in general — they cited 1 Sir J.S,394. 
The case of Rex v. PhUips Mayor of Bodmvn; where the 
defendant's title was clearly defective^ and confessed an 
usurpation; and therefore, as the meritt appeared to be 
against the defendant, the repleader was riot indeed > 
there granted: but the general position seems to be, 
*• that It miglU, olitrwise, have been c^ranted." 

Mr. Serjeant Poo/e, Jjir Richard Lloyd, Mr. Jston, and 
Mr. Narespro rrg€-*-argued that it is needless to grant a 
repleader, where there is sufficient appearing upon the 
record, whereupon to give jutJtrraent against the party, 
exclusive of the part which is pretended to be immaterial. 

2wor shall a repleader be awarded, where the defendant 
has set forth a defective title. 

Now, certainly, this is 9l defective title: he appears to r ^yr t 
be sworn before imjtroper persons ; and does not at all^ *** "^ 
appear to have been ever »worn before the proper ones. 

J'his is ffo/ a mere defective manmek of pleading; 
like Cro. Jac. 434. the case of Holms v. Broket — where 
issue was joined on a pica of payuK^nt i^^bre the day ; 
or Hob. 1 12. tlie case oi' Tasker v. Salter; where the is$ue 
(upon the wat^) was in eliect no i«sue at all. 

But this is absoiuttfly a defective title; a swearing 

* N. B. This is a qui tarn ioforniation, at least; if not a 
gtii tarn action : the book is incouolstent with itself; but 
the tide of the cause shews thai it was an fiction. 

Vol. I. U 

ggS Easier Term, 3Q Geo* 2^* 

17^7 before improper persons; and is like 6 Mod. t. the* c^s» 
Kux of Staple r. Haydon. And they cited Cro. Eliz. tU. the 
case of Lacj^ r, Reynolds; where though the issue w«* 
PHILIPS^ immaterial, yet, the plea confessing the words, the court 
gave jinlgnvent as upon a confession. So» Carihtw 371^ 
The case of Jonei v. Bf^dinner; aiwl 1 Sa/A. 173. S. Cr resolution. So,-l Ld. iirij^ffi. 390. the case of PUU 
r, PoUhampton^ 

. But if a repleader sliould be granted as to this issue, 
yet enough (besides this) will stand upon this recortl to 
entitle us to judgment for the king. 

Repleaders are never ^warded for the sake of the par-, 
tifi$ ; but for the sake of the c ov It t. 

And this is the reason why there are no eost$ upon re- ^ 
pleaiVers : as appears by SSa/ft.— Title Repleader, p. 579- 
(whicfo is an abridgment of the case of Stapit v« Hafdou^ 
in 6 Mod. 1 . and 1 Ld. Kaym. 707.) 

Nor shall repleaders ever be awarded, where st^mttt 
appears upon the recopd^ whereup^i the court can givejudg* 
f^^nU 'I'hey shall not be awarded, only because the 
party ha» m istakbn his ease: they sb«U never be award- 
ed, but where the issue is so itmmuJtenal that the court 
cannot tell how. to give judgment. In the case of Serjeant 
V. Fidrfax in 1 Xev. 3'2.. it is laid down by Twysden^ and 
agreed by the Cb. Justice and Wy^idham^ that " an im« 
•* material issue is, where, upon the verdict, the court can- 
•• not know for wbom to give judgment; whether for 
•* the plaintiff, or for the defendant.'^ 

It depends upon the plea pleaded; not. upon the real 
merits : for though the issue be improper ^ yet judgment 
shall be given ; as Is expressly laid down in the same case 
of Serjeant v. Fairfax — 1 Lev. 32. •• If an lAiPBOPER 
" ifsue is taken, and vefdict given thereon: judgment 
•• shall be given thereupon ; be it for the plaintitf, or Tot 
•• the defendant,** Cro. Jac. 2S8, tlie case of Tampion 
r 298 1^' ^fw*«'»t ond Bridgtt his vife: the pl^ of the feme, 
^ without the baron was bo plea at all* nor confessed i^ny 

thing. In Bfo. Repleader 55. it did not appear, hovr ' 
much the executors had; who pleaded **rien8. inter 
** Aiaines,'* which was found against tliem. Cro. Eliz. 
245, the cas^ of Love v. Wotton^ J where the statute of 
usury was niisrecited) was a case where no judgment eovtd ' 
be gfven ; for the court were boimd to know the statute ; 
and that there was no such statute as wa& pleaded, wbrc;^ 
was a statute made the sixth of February. 

Itt the present ease here is ko fault in ttie pleadings^ 
Therefore where shall the repleader begin ? This case is 
NOT the subject-matter of' a repleader: This is mfy a db- 


It would be an fcRRaa, to gw)t a repleader^ wbece^thfe' 

Ea^tet Yerm, 30 6eo, 3. 


cof^rt cdn givejadgtp^nt vfou the pleadings alrtain before 
tfaem* ^ 

. !^7ow feere, the defendant who claims to be mayor has 
^OT Jictou** that lie was vtorn before the proper per- 
** sons;** and the court cattnot presumr it. He is asked 
** quo warranto'* he aqted as mayor : and bis defence is 
tffis •• by a proper election and {improper) swearing :" and.^ 
that " EG zcarranto^* he acted as maygr. But tUts plainly 
appears to the court to be uo warrant at^ att. Therefore 
the court must give judgment a^fli/«f him. 

And the chief baron certainly determined right: for a 
man cannot plead onecase^ and then prove aitotfier* 

Hob. 112. The case of Tasker v. Sailer is not like this 
case. ThU is Vifact ; on whicli the jury Aare judged. 

And purely it doe^ not follow, nor can it be taken upon 
the fac^ of this record, that because he was sworn at that 
AsssuBLYj be mpst therefore be sworn before the proptr 


On the contrary, it is most manifest that he has not set 
out neompkfe title to exercise the franchise: and there* 
forc the court must give judgment against him. 

The other issues were never proved: and evea this bad 
title, set up by this issue, is found false; viz. " That he 
'* was not so szcorn in, as he has pleaded.'* 

Judgment shall be given against the defendant, even 
upon an issue misjoined, iffoand for the plaintiff . Cro. 
JEUz. 778. The case otUilhlon v. Bartholomew. 5 Co. 
Rep. 43. NichoFs case. Cro. Jac. 377. The case of 
JEdward Maria Wiugfidd v. Bcli 2 IL 7- 11. b. ilex v.. 
iUrU. Which case" proves that if a man sets up a i:i.a^ht, p 
different (torn his title, it shall be against him; aud he L 
sUall not set up another title, afierzs>ards. 

Tlie C9nrt may here give judgment as upon a confes- 
sion^ when tlie issue is. immaterial, and the mistake not 
amendable:, and there shall in such case, be no repleader, 
Carthew3Ti. The cas^ of Jones v. iJu(///i/ier, expressly, 
^Mod. •220', 2^7. S. C. Cro. Jac. 678. The case of Johns 
yf'y Rid/er: where though the issue was immaterial, yet 
heit^t'okxnd for the plaintiff, it was adjudged for him, 
upon.t^e defepdant^s confessing the ejecting. 

tn the case of Lave y. fVotton, Cro. Eliz. 245. the court 
coutdiiid give a compjele judgment 
•^ Cijd. Cfir. -25. The case of Knight v. Ilarve^f adminis- 
tratey of Hanpey, M. 1 C. 1. (wljere the defendant pleaded, 
an inapc^sibie judgment, and riena enjesmmms, but9nly 
toi&w«^"^i'f ami the plamtitf replymg, the issue was 
fouM^f fof the plafQCiif, and \\t had judigment;) is a case 
ptn-SU^l^d the present : for as the judgment there pleaded 
wa^ a b^^y ud^^fueut, ^o this is certainly a dai) BWjsarifig in. 
^k^diMi^tht cooriwiU here give judgment upon the vi^ 



FHi Lt rs« 

299 ] 

SOO Easter Term, 30 ^eo. 2: 

1757. formation; as they did upon the plaintifTs declaration 
HEX thercf notwithstanding that impossible issue being found, 
V- it being found for the plaintiff. 

FHiLiFS» Here, both the election and swearirtg in> ought to have 
been well pleaded : neither is a defence, of itself alone. 

And the court cannot take notice of the fact ^ otherwise 
than AS it has been pleaded. 

Therefpre judgment maybe given, as upon a confession j 
ill the present case: for the defendant sfieies no right at 
aiU to act as mayor. 

So that, upon the v^rhole, judgment ought to be entered 
for the king, upon the face of this record. To prove which, 
they cited 2 Strange 873. The case of Broome v. Jfi^e 
Acr/Mn C. /i. as in point: where, though the justification 
confessed the cause of action, in effect, yet the plaintifl* 
replying "de injuria suS propria absq; tali causa " issue 
was thereon joined, and found for the defendant; but the 
verdict was set aside; and judgment ordered to be en- 
tered for the plaintifl', and a writ of inquiry of damages 
to issue. 

Mr. Norton in reply.—- 

The SUBSTANTIAL part of this plea, is the *• being 
•* sreornat this assembli/y immediately after the election;** 
f 300 1 ^^^ ^^^ PERSONS *• bejore whom the swearing is alledged 
*" -* •* to have been," may be considered as surplusage. IjsOt 

we ought to have been let in, at nisiprins^ to prove our 
plea: if it is not so to be taken, we ought now to be let 
in, either to flm^/?d, or to replead. 

This would plainly be a good har^ \v wdl pkaded. 
Therefore the court will, for the sake of justice, grant a 

The title set up by the defendant is an ehction under a. 
mandai^us ; and the defendant has accordingly stated an 
election made i3ur8uant to the directions of the 11 G. 1. 
aad a swearing in, pursuant to it : but he goes on, and par- 
ticularly shew s a swearing in before twelve burgeises^ the 
cifARTEu-oiTiccrs, (which should hare been aHedged to 
be before " the persons directed by the 11 G. 1. viz. the 
." \i\ei) presiding officer;') and this upon issue taken there- 
on, is found agaifist him. Now surely "ftiis has not tried the 
mer ITS: this issue was quite immaterial. And therefore 
there shall be a repleader: and this must be a repleader 
of our whok entire title. 

^* 'But they say that " this is a uetective title; not a 
'^ mere improper title: and tlrat thertfore judgment shall 
^ " be given against the defendant.** 

Now this is not the rule of repleaders. Indeed if the 
bar be evidently not a good justification, it is idW to ^nt 
ar^leader: but otherwise, a repleatfer *Afl//be*¥raW9d. 
In Cro. Jac.5. The case of Coxe r, CroptteU, tlit has- 

EisterTerm, SO Geo. 2. 301 

band pleaded ** not guilty/* when no tort was 8Mp|)osed in 17^7. 
him ; so that this was a case where the real question had b£x' 
not been tried: and therefore the court granted a re- y^ 

pleader. ph r l i ?§• 

And the party who makes the first fault, may, notwith- 
standing that, pray a repleader. 

Wherever the court sec, upon the whole record, that 
the issue joined will not try the true question^ tlie court 
will grant direpleader, 

• The case of Seneant v. Fairfax, 1 Lev. 32. P. 13 C. 2. 
£.. R. is strongly for us. It was a bad plea ; it proceeded 
originally /ro/it the defeitdaiU: an immaterial is&ue was 
joiaed ; and a verdict was ♦ against him : and yet a re- • No t the 
pleader was awarded; because the merits had not been ytrdlct wm 
determined, and the court couid not therefore know for Jo' j^e de- 
«*o»i to give judgment. S?iuiniiff"* 

But they say that '* here is sufficient for the court to r 59 1 1 
" give judgment upon." ., , moved for a"^ 

I answer, that these are not to be taken as independent, repleader. In- 
unconnected issues; but as one entire titl.£, though deed Twitden 
consisting indeed of various distinct parts. And hef*'^ "th**' 
said he could see no reason for the crown's taking such '^,^"ihin- 
m number of issues, upon these quo warranto informa-betheverdict 
tions: indeed perhaps ibe single issue of " not mayor/* for the pUia- 
would take in the whole. ^ *»ffor tbede- 

Lord Mansfield- ^^^*°*-' 

General rules are wisely established, for attaining-jus- 
tice with ease, certainty, and dispatch. 

But the great end of them being " to do justice,'' the 
. court are to see that it be really attained. 

In order to discover what was just upon the present 
occasioDp he said he would consider this case in two 
views; tit. 

Ist. Upon the mere foot of the swearing, as it is here 
pleaded and put in issue; and 

^ly. What alteration is made by the ot/ier issues, and 
tile iserdjc^s upon them, found in the manner as they have 
here been. 

Firat*-If this issue upon this swearing-in, had stood 
alone^ this had been an immaterial and void issue; as it 
tends to prove nothing, either for the crown, or for the <&• 
fmdamti and from which, no conclusion can be drawn, 
either way. 

It appears too, upon the record, that this might have 
been so pleaded, as to have shewn whether he had, or 
had not a right: (supposing the question to be confined to 
this single issue.) ' 

' What is the rule of law then, as to such an immaterial 
M6ue joined, iiod verdict upon it ? 
r It iai '* t)iat when the finding upon it does kot deters 

302 £asterT€np» 90G«i.'3. 

1757* " ^ne the right, the court ought to trtffttid^ r^MtStr: 
RBx " iiiffew it appears ftx)m the whole record, thftt liO merwer - 
V* " ^"pleading the mzlier^covisb have uvailtd/'* 
PBUI98* 'J'he principal cases to prove tbis are (amongst miny 

others to the same efl'ect.) 
[ 302 3 6 Mod. 2. The case of Stapk r. HtiyJkm. (first resc^u- 
tion ;) where the court held " that a repletder is to W 
" awarded, when fHcA an isstieis join^, as- the court, 
" after trial thereof, cannot give a judgfoent ; as bein^ 
" impertinent, and wot determining the tight \* (I lay *he 
stress on these words, ** and wot attermniTtg the rightr) 
Moore Sei. The cz&e of fagker r. .Salter, (SC.with 
. Hobart 1 12.) The verdict passed upon a void issue : and 
the court awarded a repleader. It was as no issue at all, 
and impertinent, as pleaded. 

Here, it MiGUT Aare been pleaded right: btit«5th€re 
pleaded, it did not conclude ; and therefore the court 
could not determine the right. 

So the case in Cro, Elix. ^45. Love v. Wotton, <a plea 
of the statute of usury, upon the usurious bond*—) ihece^, 
as the statute was pleaded, theoouclusion " tbattheobli- 
•* gat ion was taken by usury, 4r^.*' was immaterial : but the 
statute might have been pleaded right ; and then it would 
have been a good defence. And therefore the cooft 
r . awarded a repleader. 

But there is a later case, (and the courts have been 

J, more liberal of late years, in their determinations, and 

have more endeavoured to attend to the teal justice of the 

' case than formerly ;) and this is the case of Tryon v. 

; . . Carter, M.3 G. 2. which is tepdrted in'i Strange 994: ind 

is a very material case, '* A botwJconditionfed for jwyment 

^* oif money on, or before Mh Dcceather. Pfea of pay- 

^* inent on 5th December; replication, issue, and verdict 

■* fdrtlie plaintiff.*' Thts was hblden to be an iminaterial 

issue-,'and a repleader was therefore awarded : thdugfa it 

would bave been conclusive, iffonnd for the defendant; 

but did not conclude, when found for the plaintiff. 

Therefore, {though that was a slip of the defetidant) as it 

did not determine the question, a repleader wis awafd<^. 

The case that has been mentlont^, of Iter v. PMi^, 

M.l G.l.inl Strattge 304. i^ material, for the' reason 

given by Ld. Ch. J. Pratt: For if tfae\|t;sttfi^ticAi is 

such in point of matter and '?ub^tance, as'touWwot, if 

^t into any form of words/be material with" ret^rfd' to 

tiie defendant by way of defence, it is in>rtHri Wc^iwtra 

I* ^ r repleader ; it being to no purpose to do ko\ WHferfe ttti^4»« 

itself cannot be amended, or would' be it ^11 iil!rftttnat,'rP'yNit 

in nfty shape whatsoever: which was theCi^; fofr it 

amounted to a confession of tfaetkutpation, aA %ar ^ere 

hoMcn. And if it did, then be very tightly taid *^ Ifaat iff 

^ thex:ourt«hould,granta repleader, the defeiuknt anfM 17x7 
** not maid his case: for the plea would stand ; -and after 
^ the formality of a demurrer, tlxe court must give judg* **^ 
^* ment upon the goodness or baduess of it" And Ld. ^h. ^" 
Just. Pratt went on, and compared it to, an lU justifica- ^^^^^^^ 
U^a in trespass, (where no form .of words would. have ^ 
toade it a defence;) and therefore was of opinion tW aa 
the plea was ill, and contained no title to the franchise^ 
the qourt might give judgment upon it, as confessing an 
Dsurpation. [K I Slratige 398.] 

Nqvv Aerc, supposing (as I said before] the swearing to 
\» tikconljf issue ; it is not a question totally inconcludvt^ 
•' whether he was, or was not sworn before these »»> 
•* $Qfu?'! Does it at aU conclude to the real question r ts 
hot this, manifestly, a $lip? Does it not appear that this 
plea * COULD havt bten mended? Certainly, it could;, wz* • N. B. This 
by pleading the swearing-in, to have been agreeable tg the P'^ •cemt to 
statute of 11 G. 1. (c. 4. § 4, which directs it to be before ^^^^ >*;«» 
the t presiding oIQcer.) Therefore, the ^^^^ justice of l^J^l^^[ 
the case ia, that thia slip should not be fatal/or ever^ at to A^t 

Tbia is a franchise of great importance. It is so, in See Fortei- 
itself: and, besides, the rights and privileges of many ^."•'■. <*»*««- 
4>/A«r persona do depend upon it. And these ^vrita of j^^^I? 
mandamus issuing pursuant to this act were intended for 999. ^^' 
the settling and preserving of corporations. ^ yjj^ ^^^ ^ , 

Xr this was the single issue, I think they would b« Charle* Mal< 
cUarlj^ intUledj in th;s case, to a repleader. Yet deo, B. R. 

SecQndly— it is olyected " that here are many otlier l^^^^^'^ 
" issues^ att found for tlie crown, as well as this." ' ^ ^J^^iso 

But the issue just now spoken of as immaterial and r^gJI^jj 3 A 
void i^ an isstie taken upon an essential part of an e$Uire * '' 

defence : for the defence here pleaded by the defendant 
is o»e ^n^ir^ defence ;^ notwithstanding that the crown is 
at liberty* to take distinct jssues upon the distinct/itfr/i of 
it,. And therefore it would be absurd and iucousistent, 
thai; the fiadiog against the defendant upon the otJtY 
issues, the other p^r/.¥ of one entire defence, should stand; 
in case wc should £rant a repleader upon, or an amenu- 
ment of this part: Jgr, if that should be permitted, the 
finding wouk) still be /i^a/izsMhe- title of the defenjiant, 
it being set up and pleaded as one entire title. 

I agree that if it appeared upon the whole record, 
'* that the defendant was not duly elected," it would be 
as Ld. Ch. Juat, J^ratt ^ays, a vain and idle thing, to 
grant a repleader. V 

But if the rest of the jssues are only parts of^and^tf-r jq^ "1 
ftsndamt upon ^e wuolb titlk; the same reason does "* 

p6^ then hold. 

.The v^ajr to do complete justice indeed^ is to let ia tb^ 
0ne 9ide, without pr^udicing the other. 

304«30i Easter Term, 30 Oeo. S. 

1757. '^ ^ repleader w^s to be granted,(uiioii the suppoditioii 

j^j.3^* of this being theo/i/y issue,) it must be * without cosU^ 

^^ But as this was ^mistake of the defendant ; (in which the 

PHILIPS, Prosecutor was nq^ to blame,) we ought to do the most 

♦ V. ^ Mod.* complete justice we can, between both. 

2, 5th pointy My Ld. Cb- Baron was right in his opinion, " that be 

sccord. «« could not admit iprooidifireni from the issue joined ;** 

and also " that this is3ue was connected with the others.** 

If soothe verdict? were without evidence: and it was 
agreed'^ that they were to be without prejudice-'*. 
Therefore such verdicts ought to be set aside, es without 
evidence: and not to conclude against the defendant, 
which Tx:onId be a prejudice. 
[4 Bur. S11S9.] Therefore he proposed to set aside these whole verdicts^ 
or\ payment of costs; and to give the defendant leave to 
amend his plea. 

If it had been upon a demurrer (which there might 
have been) the court tscould have given leave to amend. 
[Vide Ch. Pr. This seems to be the true way to come at justice ; and 
399. Ld. what we therefore ought to do : Yor the true text is •• beui 
lUym. 956.] « judicis est erwip/wre justitiam ;" (wot*' jutisdictiouem^* 
as it has been often cited.) 
This is what I would wish to do, if we can do it. 
Mr. Just. Denison — 

Formerly, verdicts were not used to be set aside : and 
therefore, at that time, repleaders used very commonly 
to be granted. But they have been less usual of late, 
since u\e practice of setting aside verdicts has prevailed. 
On repleaders, the issue was considered as void; and 
the verdict too; and consequently, the judgment wa.% 
" to replead.'' 

An information in nature of a quo warranto does not dif- 
. fer from other cases. ; ^ 

C305 1 ^^^^^s 'dn entire pica: the replication ^epar^tSB it, and 
-! takes issue on different parts of it. The replicati<)fi nought 
to have demurred to this immaterial part of the plea; 
but mf/e is joined upon it; and there is a^ verdict upon 
it in the negative, viz» ** that the defendant was not so 
" sworn as he has pleaded." . What can the court do? 
Th^ssue and verdict are impertinent and void^ . Bow tbeg 
can the court g[ye jud^mentyWhen it does not appear ^he^ 
therthe defendant had a right, oR not? (I speak now 
upon this single issue only.) - • 

Well then, if you set aside anypjr/ of the verdict, you 
must set aside the. ajpAo/e. 

And this used, formerly, to be one issue. 

I well remember that case of Rex v. Philips^ M. 7 G. 
1. It went upon an usage to hold over. The point was 
wh^her a repleader should be grantedj^ wj^en the case 
could not be varied: and it was holden, that that would 

EasterTbfm, ^0 Geo. 2. 306 

have been ▼ain attd -Mile. On the contrary, it was said 1757, 
that it would bea* differerit thing; if the case could have rex* 
been mended upon a repleader. I do not doubt but that ^^ 
there were great nuaabers of other issaes in that case, as pm^ips. 
well as in this: and yet a repleader would have been there 
granted if thcfcase could have been mended, on the usage. 

The tehole m ust be set aside, if part is set aside. 

It is said *• «b%t this is a nti^B ctivb title** 

But it is VQ title at all: it is on/y one link of the whole 
diain. ' 

I think we may set aside the whole verdict upon one 
of the issues being void. And this is better than grant- 
ing a repleader upon which a writ of error may be brought, 
and' may longdepend; which will be a much greater de-* 
lay of jttstice. 

Mr. Just. Foster— 

TM^wasan election nnder a mandamus, upon the sta* 
tute of 11 G. 1. in order to settle the peace of the bo- 
o ti^h. 

^mreare twelve tssues joined, all found for the king; 
and without evidence, or any of them : so that none of 
them have been yet realljf tried. 

It is agreed ** that in case of a single issue which doth 
'* not determine the right, (which way soever found,) a 
*« fiftpleader may be granted.'* 

The ninth Issue, in this case, falls directly within this r 306 1 
rute. It is totally immaterial to the question of right ^ ^ 

If theref<sre the verdicts on the other issues, upon which 
fio evidence was given, vary the case and sund in the way 
of a repleader, they ought to be all set aside : or other* 
wise complete justice can not be done. 

And I think, as this case is circumstanced, the agree* 
incnt mentioned by the Lord Chief Baron, ••• that the ver- * Y*"***' 
•* diets w^re to be TVithout prejudice in zmfiaurt trial ^** 
may without a strain be extended to any yir^t/r«/tVfga(ion 
in the cause. 

LokD MawsHblo— 

I am now flilly satisfied, by what my brothers have [* Burr. 
said, that the wAofc verdict may be*r< nWdf, onpiiynjeii***^^-] 
of costs, and with tibtfty to amend the plea. 

But that must be upon a particular motion. 
'And Ibuveno doubt but that We may do this, with- 
out the consent of the prosecutors. 

Which motions' (to '«*t aside the verdict, on payment 
of costs; and, to amend the plea, on payment of costs;) 
were accordingly afterwards made by Mr. Norton ; and 
gr&te<f, after a faint attempt by Mr. Serjeant Poole td 
shew ^U8e> and then to get costs as between client and 
attorney ; in both which attempts, be was unsuccessful : 

307-315 Eastat^I^mD^ OO Gm. t. 

w,^^ for tbemleB were tetb^£tbem 94ite«biotutei up«i |iij« 
^^» " meat of omruiioii W9^ >ohligii|g;tfae diefeiitoil* iiamvw^ 

' See this case abridged intbe TAsts; and at iaq{a>te 
. ibequarto<diti(>nofmyiSsTTLSK£Na>oAA&i^lJ<ii 

I • , • . • • : • . ' 


17th May iLpril CommfWofler Wilmot^oAmii^) 


See Ibis case abrid^d in the Taalb; atidal! large 
in tbe quarto-edttiOQ of my SfivttJUSMBHT'HJAaBs, 

Prohibition 1%fR« Noncn shewed catme agaiAst a prohibition. 

Bot to goaf* ITJL ' . ■ 

^1^° def^ Thia was a question whether a prohibition should be 
of Jurisdiction Knitted, to atdy proce^djrtg^ in an ecclesiastical coui^ 
be apparent in a suit by a quater, for n seat in a church; founding 
in the libel, his title upon a pfeseiiptik>e righu in which suit the 
eedeaiastical conrt had dtMrHtkud agBiiK^ hit»« And he 
now catne, after sentence below^ for a prohibition^ Note 
— *an immemorial prescription was alleaged on bpih Sides. 
Mr. AToffon— against the prohibition, cited 2 Ld. Raym* 
755. the case of Jacdb v. Ddhw. 2 Salk. 651. S. C 5 ilTodL 
436. S. C. Cases in B. R. temp, W, ». 333. S. C, Btrredtf, 
8. S. C. {a) 
f 315 1 As to prohibitions cr/tn'sai^enUtf'— 
*- J Hetley 92. the case of Baton t. Ayl^i (which hid betn 

(a) See also 3 EoBt, 47a 5 Ea$i, 348« 17 Fia.i^70, 
571« «i to seats ia a church. As to prohibition on aG> 
oount of a.{Mreacriptioii, vide 17 Fin. 560. pL 16 and IS. 
and the^notts S6l. pL 18, 19. 

A libel for an. eecleaiastical duty may be founded om a 
lifescriptioDi and it is not any ^caine -for a prohibiltwi 
unksa it l^ie denied, and .then it is. PtUfiu 44(1 Nay^ 81. 

EaafttrTmn^aaGeo. i. sib 

dMi M^e otberside,). ii t me to iHiieb th» court ifrill j^^^ 
notffUfi^mt$^Umaiamz H wk xlefUmmiiicd Mnfi. C f<. paxi^oh 
and IK a loose note ; and e^en ^ fAt. Waimm itt Bin Cam* y^ 
pkie Ii^cumbent treats it as a case of no aatbority. KHioilt. 

Tbe court will not, after »emtmce^ {a) grant a profaibi- • np, j^^/ 
tion, imieas tlw defect of juriidietioii appeals upon the Peotfon qIh 
face €fihe liheL (b) • ferTed* that , 

1 Sirangt 167. tbeoase of Arwk v. HaM-^ is expressly ^ ^SJt* 
so in point And the case <A Stone y. Fowler^ ^^*^*' ^ warMTwrit- 
Anm^^ there cited (fo. 188.) is to the same effect. 1 Ld. ten br Wat- 
Jiiryai. 436. is also in point : the churchwardeifs of Mar* >on s bat bj 
ket Bomorth v. the rector of Markit Bomortk ; where the ^^'*** •^ 
spiritual court had adjudged against the custom set up; ^^^* 
though their law allows a leuWmt^ than the common law, 
to make a custom : but the prohibition was denied. So 
here, if the spiritual court will admit /ess evidence of a 
prescription, than the temporal courts will ; and the pre- 
scription is nevertheless found to be groundless ; it is cer- 
tain that the party wlw tets ii up, can have no reason to 
oome for a prohibition, afier sentence.* And bis only rea- « y p n ^ 
eon for it can be, (as the court observed in the last cited HutcbiL,^' 
case,) to get clear of those costs, which he has by his own p. 175, pott, 
vexatious suit, rendered himself liable to; and which (as fa. 
was there adjudgy^) he ought to pay. 
^ But the COURT seemed to think tnat if the sentence 
of the ecclesiastical court was a nuUitijf, their award of 
costs must be so too. And here are reciprocal prescriptions 
alledged : and the prescriptive right of the one is deter- 
mined^ ,* though that of the other is determined gainst. 
They have adjudged the adverse prescription to be a 
good one : which they could not try ; and which they 
will establish upon less evidence than the coimnon law 

ifi) But that they will, if it appears on the face of the 
proceedings, see^iSalk. 548. 1^ Mod. 13^. Godb. 163. 
Vomb. 356. Mos.907. A Bur. W37. a WUs.Wo. 

(b) This is a clear ground for gr^tiug the probiUition if 
i^o epclqaiastical court did adjudge the prescription in- 
stated on by the defendant to be good; but no such thing 
JA m^fcf^iftn^ in ttiejitate«of tile. ca8fi#. and .it.ia.v^ry 
•tranee if they did; for as tbe defendant was here re* 
IINkndeity there it was suIBcJent for them to determine 
afatest-tlie piatmtiif's ^reacriptran ; ^ifldiftbat was aOp 
•M tho oaaea ,citad by Mr. Nattm^ue #» fpatt ^gaanat 
granting tbe prdiibitioo ; that in 14- M sn fm ; 7&A« g«ea 
ItMhei^ ifortlMm. the oawrt vefiMed • prohibittoo lifter 
aaat6iHre» )DOtii^atafidiBg the ecclesiaatical court had 
dfet^rmined in &vQur of a suit these fsunded 00 usa^e* 


316 Easter Term, 30 Geo. 2. 

1757. And Lord Mansfield said thW; though Ir^^Airvfeiy 

PAXTON sorry that the court were obliged to grant a prbbiDition, 

Y. (because the party applied for it, onty to get rid of paying 

the costs occasioned by his own vexatious suit ;) yet he 

thought they could not avoid doing it. 

Ftr CUT. Rule for a prohibition made absoluti;. 


r gig -I Rex wrsMS Joseph. Chaplin Hankky, Esq. 

16th Maj [Jutird Commissioner Wilmot absent,) 


Information /^NE Ralph Carr an attorney, applied for an informal 

forachallenge V-' Iwn against the defendant, for sending him a cAfli- 

deniedtothe few^f. 

■«nacr. Upon hearing the affidavits, and the letters that passed 
between these two gentlemen, the court thought that Carr 
himself appeared to have sent the first challenge to the 
other; at least, that his letters manifestly imported vl chdl- 
lenge : which the other clearly so understoodf, and accord- 
ingly accepted, and proposed to fight with pistols. 

[Comb. 10.] The court held, that though the defendant had 
behaved very improperly; and though it would have been 
right for the court to have granted even CROss-in/urwfl- 
iions^ in case each party had applied for an information 
against the other ; yet 'they thought that when the flg- 
gressory who gave the first challenge, came and applied 
for an information against the other who on/y accepted xtt 
(however improperly and unlawfully ;) it was a very dif- 
ferent case ; and that the court had no reason to give him 
this extraordinary remedy, by way of information : 

fLd Ha but ought rather to leave him to his oudinary remedy^ 

1M9.J "' ^y action or by indictment. 

Therefore the rule" to shew c ause why an information 
** should not be granted," was bi^uakgeo. 

Robinson versus RaiiET. 

w rr.25G.ft. JBor/a.775. 

?T"'^h °®* T^HIS was an action of trespass. The declaration con- 
drawna^'r tained a great number of counts ; amongst the rest, 

trial of other <>o^ in trespass for breaking and enterine: the plaintiff's 
ifiuet. close ; and depasturing it with, S^c. ; and for breaking and 

laQ^'-^**' entering his free-warren; a 2d count, to the like ^ect; 
conctadif * ^^^' '" different years;) so a 3d, 4th, 6tb and 0th) and 
but dearly re- ^^^ niore, for breaking and entering another ciosi^'f^Hed 
ported. Bull. Sands' s Piece i a 13th for taking and carryfh^'away^the 
93. See alio plaintirs trees ; and a 14th for takiflft and caftyititf iriirty 
?5J;J/35^«-hisg<X)ds and chattels. ' J^: |5 ^ 

East^ Term, 30 Geo. 3. ^ 317-S18 

The defendant bad leave to plead several pleas : a^id 1757. 
^cordinsrly he. pleaded, l&t the general issue, to the ROBins'oy 
whole, . \ .^'lea by leave, (if/ supra,] that as to the close y^ 

calledii'i i ..'-wa/As,** that it is one rood of land, parcel of a aA.LBY. 
** comuh : :'. i.l; and that Mr. Finch, in right of hjs 
" J>»t5l^»w<* ^ . i He, and all, 8fc. have right of common, fir. 
" in r: iijldscalled Middle fields, whereof the Rabbet- 
•* walks are parcel :'* which rights he derives to himself; ^ 

and so-jiistifies under it. The like plea, to the other five 
next coutits. He pleads, as to the six issues relating to 
Sands*8 Piece, the general issue. To the 13th count, 
he pleads tenancy of another close, under the plaintiff; 
Tftnd Justifies under a licence, and avers that it wajs us^d 
fer gates, S^c. Another plea was a righ t of common, ^c.4rc. 

The plaintiff, in his replication to the 2d plea to the 
'1st count, traverses the .right of common: and in bis re- 
plication to the like pleas as to the other five counts, 
traverses the Rabbet-walks, being parcel of the Middle 
fields. In his replication to the last mentioned plea, he 
traverses the right of common. .•.11 these issues were 
found for the defendant. To the plea to the 5th count, 
the replication traverses " that the cattle were the defen- 
** dant*s own cattle ; and that they were levani ri couckant 
" upon the premises, and commonable cattle/' 'Vo \h\» 
there is a special demurrer for cause, [viz. " that th^ re- 
*• plication is multifarious, and tlmt several matters, 
" specifying them, are put in ^ssue ; whereas only one 
•*' single matter ought to be eo ;") and joinder in demurrer. 
To the plea to the 13th oouYit, the replication traverses 
the licence ; (after protesting " that the tree was not Msed 
* for gates, ^c. as is alledged by the defendant's pl^') 
And to this replication also," the defendant demurs 
specially ; and shews for cause, ** that it concludes to 
** the countify, tvhereas it ought to conclude with an 
•* averment." 

Serjeant Poole^ for the defendant, complained of the ^•* Dcniurffr. 
hardship the plaintiff put upon the defendant in the 5th 
count, Dy inforcing the defendant to prove the cattle to 
be his (ra;/i cattle, erne? commonable cattle; and levant and 
couchant upon the land : which hardship had obliged him 

Hp argued, that som^ one fact only ought to be put in 
,itf$ue; not several. 

■ He ^ited Co. Lit. 120". a.- (letters q. r.) It must be one 
^ivfs^i^ certain material point. And so also 8 Rep. 67. b. 
ijQvgat^s^cz^e (the last resolution,) lays down the rule ac- 
5fl^rdipgly, '*.that an issue ought to be full and singlb." P ^ifi. 1 
,[r{t iK^w here are three bistiuct facts put in issue,, by this ■ 
.^{ej^if^tiq^.: , any, one of which was sufficient. '4 

FdJ II the cattle were not his own, or were not. kvcpit, ^ 

319 . ^ Easter Term, 36 deo, J. 

1 757. ^"^ couchant^ thej were not commonaffk cattle. The p^«ifi- 
ROBinsow tiffm^glitaswdf have put twenty facli.ia issue.. 

y^ This therefore is, at le^st, a fault ioyiiw- and we haw 

RAt£T. d^n>tirred speciallj/^ and ^ewn this for cause; *' that the 

•• replieation is multiftrious, and thsit sfveral matters are 

^' put in issue (specifying them ;) whereas dn/y ofte siMQf^c 

** matter oughe to be so.** 

3A Defnurrer. As to the licence — ^The replication (protecting that tbct 

tree was not used fof gates, &c.) traverses tlie Itceoe^ 

To this replication, 'we have demurred, out o^' mcessUy : 

for though we reaUy have a licence, j^et the person woo 

gave it to us (the plaintifTs steward) has denied it; aa(). 

we apprehended, would do sa again, on oath. Tbeiefor^ 

We have demurred specially, and shewn for cause " that 

" the replication concludes to the country, whereas it 

•* ought to conclude with an averment" 

[5 NewAbr. Now they ought to have traversed the licence speciallyt 

210, «i I . and to have concluded with an averment* Crogates case, 

pi. s«i, 2S3.] 3d resolution, (fo. 67. a. h.) shews that this licence ought 

to have been specially traversed, and concluded with ao 

averment And Rmt. 660. b. bis. 661, 630, 66 !• Md 

1 Brozcn. 353. and Thompson's Entr. 365. and many otner 

precedents, are so. 

Indeed where the whole of the plea is traversed, the 
conclusion ma^ be to the country. But this is not a traverse 
of the whote. So that this is a departure (by Mr. Robin* 
son) from the comnoon form of pleading. 
Mr. Yates contra for the plaintiff, 
lif Demurrer. One part of the duplicity [viz, the cattle not being t'O0{« 
monahle) is not pointed out by the special demurrefi 

However, this traverse is not double: though I agree 
that it mtmerally contains several matters; all whiph 
TOGETHER make up the defendants plea, and make aire* 
EjiTinE defence. And it is within the reason of Crog«le*i 
case, 8 Co. 07- 

Whereas dupKciti/ is, where distinct matters, not being 
part of one entire defence, are put in issue. For there artj 
cases where bcteral matters nunf be put in one trayerse : 
as, for instance, a custom consisting of ^erera/j^oi^. 
r 3jg T Now all these parts here traversed, make one entire dt^ 
-^ fenc^: for the cattle must be commonable, levtmt and 
eouchqjit, and his own : or else, it is pQ sufiicieut defence. . 
To prbve which, he cited 1 Ro. Jbr. 398. letter G. pf. a, 3. 
Letters H.and I, throughout. 1 Saund.%^7. , The paseof 
Siennelt v. Hogg, and 2 Show. 32S. The case of jUantutot^ 

V. TreviUan, in poinC - — 

^ Demurrer. As to the licence, the cause of demurrer aliewQ ih 
** that he ought to bate maintained his declaration ; and 
'* that he ought to have concluded with a trsrerae and 

Easier Term^ 90 Geo. 9. ^ ^99 

But pfi^eDts aw both ways. 2 Browns jE/rfr. 283. cou- IJSJ. 
cliidesi as the present does. And whoever has seen tha &0fiiMS0!f 
whole of this record will not think that ekber of the parties y^ 

has concluded too kasiUy. He cited the case of Clarke v. i^alby 
Glau, Tr. 28, 29 G. 2. B. R. to prove that where th# 
WHOLE co7itof/5 of the plea are denied, the conclusion 
must be to the country, but where; only a f articular Jaci 
is denied, the conclusion must be with an averinent. He [Doiif,41tl 
also cited 2 Lutw. 1309, 1401. The case of Hustler v* 
Segcant Poo/e, in reply— 

1st As to the two matters making but one entire de- l«t Demurrer- 
fence— yet, being variety offact$^ they ought not boih to 
be put m issue. Crogale*s case, 8 Co. 67. 

And the common method is> to traverse ** that the said 
'* cattle were levatit and couckant**' 

As to the case of Mameton v. Trevilian, I agree tUat 
the cattle ou^ht to be levant arid couehant. My demurrec 
here is in point of form ; and is special. 

2,dly. I do not know but the party may go to issue^.^^ Demurrer, 
in some cases ; but I say this is not the common form. 

The case of Hustler v. Raines, 2 Lutw. 139^, 1401. 
proves nothing against me. 

Lord Mansfield held both these demurrers to be 

The suBSTAKTiAL rules of pleading are founded ia 
strong seuse, and the souftdest arid closest logic; and so ap- 
pear» when well understood and explained ; though^ by 
being misunderstood and misapplied, they are often made 
use of as instruments of chicane, [a] -^ 

Aa to the present case — It is true, you must take issue [ 320 J 
upon a stifle poim t: but it is not necessary that this single J»t Demurm. 
point should consist onlu of a single f3,ct : h«re, the point is, ^^'^^^ "• 
the cattle being intitledto conmon ;'this is the single point 
of thedefence.But mfact, they must be both his own cattle, 
and ALSO kvant and couehant; which ane two difftrpU 
fnen^'a/ circumstances, of their being entitled to com- 
mon : and both of them absolutely requisite. 

So, as to the licence — ^The licence is the point iq ques- 2d Demurrer, 
tioa. And this point in question, '' whether the licence 
" was^iven, or hot,'* is put in issue: the p?Ao/e turns. ' ' 
upoXi tais particular proposition. Indeed it may be a ^H" 
ferent case, where the whole of the plea is not denied ; 
bpt ofUy some parts of it. jBpt that, is not thk case«t 
Mr. Yates lias mad^ ri^it au|^ reasonable and inteU*, 

321 Easter Term, 30 Geo. 2. 

1757. I'g'We distinctions : and he has cited an express auttio- 

****"'*** "*Mt. Just Den 190N concurred. 

^* l«!t. As to Crogflfe's case—The replication "dem- 

iX^m^T "juriim&propmah^'; tali causa," will .lo, in all cases 

rTvto MS wbere matter of title and other things of that, kind are 

it it clearlj not included in the " ubsq. tali causa ; and it you admit 

Dotjfood ifit,j^ you may then plead de injurta iua propria absque 

iTr'Uf^Zrf " REsloDOcaiiMr traversing that residue. But the 

Tco T? . 1 rule in Crogate's case does not aflect this case. For here 

the question is one single proposition, vtz. the measure oi 

the common : and the measure of the common is the le- 

▼ancy and couchancy jointly with the property. 

Skinner. 137. is a more sensible report of the case of 
MollitoH and Trevilian, than 3 Show. 328. And there the and couchancy, rogrfAer triVA the property, were 
esteemed to be the measure of the common ; and not the 
levancv and couchancy on^. 

So that nothing more is here traversed, than the mea- 
sure of the common. The case is in point. 
Besides, I think it is within Crogate s case. 
As to the /icence— It is right, and avoids the pro- 
lixity of pleading. The old way indeed was otherwise : 
but it is altered, of late. c^ ■ 

And he cited a case (of an alternate way of traversmg 

a corrupt agi-eement,) which was m M.b G.I.B.M. ten v. 

Jlston-yihke it was holden"that the plaintiff has aUberty 

r on. T " either to reply that the bond was given upon another 

L 321 J „ account," and to traverse the corrupt agreement with 

an absque hoc; or to deny the corrupt.agiBemenUir«c%, 

and conclude to the cowatry. And the case of Maynham 

V, Mattkewt, 2 Strange, 871. goes upon the very same 

foundation ; and mention? tlie same alternative, [a) 

Mr. Just. Post EB. I am of the same opimon. . 

Mr Norton, who was also of counsel for the defendajat, 

desired the court not to give judgment yet; but to giw 

them an opportunity to move for leave to withdraw their 

demurrers, and amend: which the court agreed to. ,A«> 

in a few days afterwards, Mr. Norton moved for leave to 

uithdraw the two demurrers, and .plead to jswie ; (upoov 

(a) The distinction was disallowed. Per Can oo Mr*. 
Walkers ai^uroent in .sttpport of a speciai demurrer « 
jfoundcd on it, without hearing any counsel on the other 
aide : FeJr«ary 8trt,177l.Hi/. H G. 3.B. B«and in both 
casestheplaiatiffmay conclude his replication to the co>m- 
tiy, as be did in the case .adjudged aa above-meationed. 

fiaster Term, 30 Geo. 2. 9^2 

^yment of costs ;) and a rule was tbereupoD granted, to 17^7 


And now Mr. Fa/es shewed cause, for the plaintiff, *^^«^"^soy 
against the defendant's being at liberty to witharaw the p^/gy 
two demurrers, and plead to issue. And he cited 6 
Mod. 102. The cascLof Cw* v. Bi/son^6 Moil. The case of 
Staple V. Ilaydon, 1 Ld, Raym. G(5S. The case of Fox v. 
Wilbraham, and 2 Strange^ 1002. The Bank o/" England v. 
Mortice, [a) 

Serjeant Poole and Mr, Norton contra, for the defend- 
ant — 

The merits have not been tried upon these demurrers. 
We move this at common law; ilot under any statute. 
And the court are not bound down by any certain rules. 
And they cited 2 Sayni. 402. Rex v. Ellames, (2 Strange^ 
976.) Duclte$s of Marfborous^h v. Widmore, Hit, 4 G. 2. 
B. R. The case of Cope v. Matshall, Tr. 28 G. 2. B. R^ 

The case of Giddins v. Giddins. [Tr. 29, 30 G. 2. B. R. 
was even after the court had given their opinion.* * It was after 

And here is a declaration of twenty counts^ raani- a demorrer 
festly intended to catch the defendant, and to save costs. "^ aiieiinieiii 

If our motion is granted, the contingent damages as- ^J^^ ^^ 
jessed, will be out of the case, and will be as none at given noo|M- 
alt. nion; aad the 

LoKD Mansfield — It is admitted to have been done, «•«'« wat made 
mjier a BEMURHKit and argumefkt: but this is tf^^^'- ouricfenci*^* 
a trial; and wiAowf ««y favourable circumstances. rigvi 

Now as no case bf such an amendment after a trtal '■ *"' '•' 
is cited, I take it for granted that none exists. 

These are frivolous demurrers; and the only view of [] 322 3 
this motion is io get rid of the costs. But the plaintjff 
would have had his costs, if the defendant had done 
rightatfii;st, and joined issue upon these facts; if they 
had been found against him. 

So that here is i^ither precedent, nor reason for allow- 
ing this motion. 
Mr. Just. Den isoN concurred. 

Where the demurrer is first argued, before any trial of 
the issues, the court will give leave to amend: as in the 
case of Giddins v. Giddins. But. this is an attempt to 
amend an issue at law, after a verdict has beei^ found 
on the issues upon fact^, and contingent dam^iges found 
upon the demurrers : of which, ther« never uas an in^ 
sUmce, And we do not know where it would end ; nor 

{a) The distinction prevailed formerly, 2 Anders. 6, 
as it did in the case in Strange, wbioh is reported also 
10 Fitz. IdOf and in MS. notes agreeable to Strange. 

VquI. X 

S2S Ea»tar T^n^ 90 G«5. 9. 

1757. ^ol well knowlio\r the caiise couW »e^ agJiib^fcarrietJ 
HOBi^i^sdN 4own to trial. . 1 * 

V. 'If ^ttt IiAd at firtt gone down to iwnfl; and had 

»AXr]»T. Wen found tfgtfi/i^ the defendant ; it would have airried 

' The cdurt cannot help seeing that this i« ti/w)»'RB- 
coitnt here are verdicts and contingim( damages f^mid. 
Thferefore we cannot help this : I wish wecould : because 
the merits be with the defendants'*^ ' 
Thfe cases of amendment cited are where the wt^iSe 
- is supposed to bein^APER: or eJse the court couLd 
KOT nave done it. We have no authority W do this, 
Ai^TB^ it is plainly t(p^/i RKCORD. 
Mr. Just, Foster concurted. 

Per Cur^ unanimously JuftGMBKt for the 
PlaJntiff uponthaiiEMmiaERs. 

[ 323 ] ^ - / 

Tueiday, ntE ROBERTS versus PeAKC: 

(Lord Commissioner W I jsViOT absent, in Chancery.) 

Note of hud rpHIS was a special case reserved at nisi prius at 
^Hl^a proiFiflo, X Guildhall, on a trial there before the late^ Ld. Cb. J. 
n not ft negp- p„ j„ 
titMe BOtc° -^y^^^* 

It was an action upon a promissory n&te, brought by 
the indorsee, against one cfefcndant otily i . thotigh the 
note imported, npon the ^ace of it, to hftve btecn mSie by 
ttvo persons : and the declaration v^s fipcm the note, 
* v.»ntes«6. as if it had been an AftsoLUTB one, payable on the* 
©M note MT- ^^"^^ ^^ person named in it't whef«» it appeamd opon 
able when de- the face of it, to hare beenr given upon two sev^al coK- 
foDdant should BiTiONS. For the note, when grven iti evidtoet!, c«ine 
come to age j out to be thus, " We (naming: the defendant PiUkeAVn 
5hSi thS as *' ^^^^^ person) promise to pay to A. B. {a) 11^. lis. 
to be. ^ '* (value received) oh the death of George HindAamt T a<H 
** video he haves either of us sufficwft to pttf the s^id 
" sum, OR ffweskalibeorniRWisBobktdpe^d*' * 
Signed by PfeAKBiurf^. 

And yet it wa:s laid in the declaration, nwrdy a»a pro- 
missory note absolutely and in all events •payable x>ft^lhe 
death of G.ff. v- 

- Mr. r. Clarke ofLincvhfs Inn-^-ft^ipter. . • - 

(o} It mufit have been payable to A. B. Of ^^^, 
dmigb not so atated, otherwise this action by ,^ io-* 
donee cottldnoi have been mainlaioed* 

£astfff Ter^a, SO Gm. t. 324 

Tde twoqutitiem. ufKm this cast tim^ ^7 ST* 

Isi. Whether Mu bea nBooTiABLBtuilc. sobbkts 

jftiL Wbetber lAis tt>Ui» given lAOTiUeiiQ^ «ifp|mWf the' ^ 
;H|i6ibi«ilJ9ii; mibioh ik upom mk A«M>bVT£ note payable ^^kb. 
tto the death of G. if. «w*ii. 

.Firat poii:il*-^Tbere can be bo doubt but that ^tbe 
»iH^-givea in erk^oce had ae/ bad the pfoviao added ie 
.it; but bad merely. been made payable on the dtaih'ot 
ijWQrge BtmAtmi it bad been a «goo4 negotiable pro- 
mwofytn«te« within the ataitute ofJ^4r ^Jjm.t. & 

(§10 ^" ^ 

For tiM 0afKii«e»£ir of the iZeaiik of C H. is m< aMdh L ^^^ J 
an uncertain coDtingeacy, aa that the event may poaai* 
bly or probably never happen r and <o the note might 
perhape ftaMr beopme payable: bat it is an ectnt cee* 
VAIN Slid ^BcaasAAY; and no o/A^nme, nor in any 
other respect uncertain, \than merely as to the particular' ' 
TIME mken it will happen. So that it ia no more than 
the ordinary caseof a promissory jiote payable at a fu^ 
TURK day. 

And to prove this doctrine, and that this is a nego« 
liable note, be cited 2 Strauge, litl7. the caaeof CooAc v. 
Coidum^ full in point; being ^' to pay, inc. within six 
*' weeksfLfter-ihedefendant'iBfather^s death.'* 1 Siraifge^ 
&4. :the case of Aitdrews v. Franklin^ still stronger; 
being " to pay, 4fc. within two months after such a Mp 
« dijoUUpaidoffr 

' Tlienas. to Xk^pmi^o or condition, it is made iAw- 
kUefy payalile^on GeorgeHuiihaw'M death, en event which 
mil etrktinijf kapoqi: therefore the proviso id repugnant 
to the body <^ tne note. And be endeavoured to shew 
a reaemUance between t^is easev and that in ^ Salk. 463. 
the case of Wtlh v. Trtipuam^; and the case in 21 £. 4. ' 
fl6. and Brooke, Obligation as/lS. C. abridged.) ' 

Seeeod ^iafe-^TI^ note . produced in evidence will 
aappcni thededAmtion. , 

- 1st Objection is *' that the note is QiAy laid, aa the 
^* defeawat'a savcm/note:?' wtaeieas it imports upon 
tbeface«f iij to-be made by 4«wpaiaons jointly. 

Anewtr^ Perhaps one only sailed it : or if the other 
did alao.aign it, it was, neverthelesa, equally tbe n^te of 
fehs daisiidaiit H ia laid,. and must be pleaded according 
to its A^ operation. 1 S/mnge, 76. tbe cfse of Aiifef 
▼• Midtmjf IS moat'atocilljr inpoint. 

2d Okyectioo, *' that this is laid as am absomtb note, 
^' wiUumt mauiiuuiiy tbe two conditiona," (of being 
Wnk/is) *' IV be ahall be able i' or '' if Hemhtm abaU 
^ leave either qf them sufflcieht to pay it." 

Anaw:er*^ui| ^y» tj^i^t tbia note pcodoced in evi* 




323-326 Eafiter Term, 30 Geo. 2. 

1757. dexkce, which cootains these two conditions^ will suffi* 
ROBEBTS ciently support the decUratioo- 

y.^ In attempting to support thid assa'tion, he mentioned 

PSAKS ^ Mod. ^-28^ the case of Babertsv. Harnage, 2 Salk. 659- 
S.C. 4 JE. 4. 29, and I Strange, 7Cf. the case of Butler v. 
^ MaHsscy, before mentioned. 

|[ 325 2 ^^' rfortony for the defendhnt, was about to speak : 

Lord Man8Fie1.d stopped him, and said, I fan^ 
you will hardly argue this? (meaning that it was suffi- 
ciently clear on Mr. Norton^s side of the question.) 

Mr. Norton— This was an action brought by the in- 
dorsee ; and is under very particular drcumstances. 
I I agree that a note in the name of two, and importing 
' to be made by two persons, may be actually signed by 
one only and will be good : also that a note may be de- 
clared upon, according to its fcga/ operation. 

As to the rest— Jf the court was clear, he said he 
would not trouble them. 

Lord Mansfiei:i)— -I am very clear. 
This note was payable upon a contingency ; but it is not 
an ABsoLUTEUOte. What would it signify, to hare put 
in .all these contingencies, if the party was absoluieiy 
and <i^ ALT. ereiffr bound to pay it upon the death of 
George jfiTe/isAfl® ;niost manifestly, it was not intended 
that he should be bound to pay it iiJ)on George Henshaw*$ 
die2Lth^ VLi a/l events. 
[5Dum.484.] Therefore this is not s. mgoiiable note v^iox '^ note 
^ >, Y^'^yMQ upon an uncertain contingency ^"\% not 9^ negotiable 

note. '■ ^ ~ 

Mr.Just.DENisoN concurred. ^^-^"^ ^-^ 
A note payable eventually upon an unoertain-c contin- 
gency can never be a negotiable note. And^Hf it had been 
• so, yet there ought to have been an averment ** that 
*' Oeorge Henshaw did leave one of them, sufficient to 
•' pay it;" or " that the defendant was otiiirt^ise able to 
" pay it." 

And indeed this shews plainly that it is not a negai 
tiable note within the meaning of the act of parliament ; 
which means and intends an absolute note payable at all 
eventi. ^ 

And I think too, that it is ^variance in the declaration^ 
from the note itself, for want of setting out these con- 
ditions: it ought to have been set out, as it really was. 
f 3S6 J But indeed one of these points depends upon the 
other: and I think this note is on^ ei;e;i/ii4Ei% and coia- 
UtiAnally payable, and by no means absobttety ^xA wit^all 
events. ' -■ • \ *■ 

Mr. Just Foster concurred^ both as to the wtiancti 

Easter Term^ 30 Geo. 2. 327 

and also that it wag not a negoHMe note as being p«iy- 1757. 
able eventually^ and not absolutely. ^ Dcwir 

Per Cur, Judoment for the e^ dimis. 

DsvENDANT as upona DOnsult. busies! 


D&NN, ex dimiss, BuiiGf:S| Vid. wrjua Paavis eta.* purvis. 

[See CroXar. 
rilfllS was a special case, upon an qectment tried at *^o-l 
-■- Maidstone assizes, [n August last. Plaintiff ihall 

Richard Burgei, being seised in fee simple of divers "^^*'^%*^u- 
gnvelkifid me^^suages, lands, tenements and hereditaments ^^|g*^|,^ ^ 
in the several parisrhes of L, M., B. M. and H. made his demandf mora 
will in writing, on 15th JFei. 1735: and thereby devised than hehua 
his said messuages, lands,^ ^c. to his wife /itfiaie^Afor V'*'®*®**?* 
her life; with remainder to his brother TAomas Burges^^}'^ ^' 
in tail male; with remainder* to William Burge$ (sop of j 
his late brother JoA/i Burges) in tail male ; with remain- \ 
der to his own right heirs for ever. And the said Richard 
Burges died without issue, and without revoking or alter- 
ing his said Will." . 

And the said Thomas Burges and William Burgei are 
since dead without issue. i 

OnSth September 1746, the said Thomas J5wrg«made 
his will: whereby he devised all his real estate *in the 
several parishes aforesaid, to his wife Ann Barges^ for 
her life. ' 

On ]6xhyMarch 1755, the said Elizabeth, widow of . 
Richafd BurgtSy die.!. 

InJSa«^er term Bi> 6. 2. thoWid Ann Burges, the de- 
visee of: the smA^h^mas B. brought her action of eject- . 
ment,f6r a MOIETY of the above gavelkind lands and 
premisi^, :vv^'v a suim'Ositiox •' that her testator !ZV;o- 
" mas, (as tlie Btother of the said Richard,) and William B. 
*• ^asttenephe\^ of the said Richard^) pcert the only, 
" heir soi^h^^^h^d' Richard^ dil the time of his decease, 
** according to tht custom of gavelkind ; and, as such, 
'* e;//f//ec{ to the real estate of the snid Richard tit moi£- 

On trial of this ejectment, it appeared, in the courser 397 T 
of the evidence, " that the §aid Richard Burges, at the 
** time of his decease, left a 7i<Vre (named M^t^) theo/#fy 
** child hf William Burges ouq other brotlier of the 
•* testator, who, by the custom of gavelkind, was enti- 

^ifA In ejectment for an undivided third part, ift he lessor 
proves a title to a fourth part he shall recover the fourth 
p^X^-Af^Ut y. Skinmr, I Sid. -22^, was cited as a case ia 
point, and it is so as to the execution> 3 Wils. 49, 


JEasfer Term, SbGiotf. 



[ S29 

*' tUdaicd-har TOoBtHE^ ti^lM ihe sBiA ThMhi0 {the 
" brother) and William (the ftefibte* of the teitator j^ ^ 
•* th^ premises in qu^stioit.^ ' - 

Whereupon, by consent 6t p^ies, it wa» ordered bjr 
the court that a verdict should be gWeu fi>r the phdnttir, 
as to one thir4 part of the premises in the plaintiff's <to0 
clai-ation specified ; subject nevertheless to the 6^nrolk 
or the court c^ £if^*< JSnicA, upon a case to be stataA 
upon this pohU-^viz. 

** Whether the plaintiff, on her dechrfitim tob '« 
'^ MoxGTY 6i the lands, tenements and hereditamsnta 
/* therein mentioned, can kbgotbr tmt thibj^ part of 
•* such premises." 

Which order of nisi prius was afterwards regularly 
inadeia rule of this court 

And it came on now, in the special paper, to be aigued. 

Mr. JOiosi^/er, being counsel fqr the plaintiff»,argu^— 

That the lessor of the plaintiff must recover accoho^ 
jthQ to his title* 

And this is so^ whether the ejectment be brought for 
ai^ undivided^ or a several and. dii^ided part ; for the 
whole, or tor part of a thing ; for an entirety, or for a 

In PlonJ.. '120, 4524. &. BraeAridge's case-^^tbe reporter 
blames^ hiipself for not havinff objjected to the venlict Bill 
3 Bulstr, 184. The case of Cotpper v. Frankline, and 
many, otl^er casea explode Ptomdtn*ts notion ** that the 
** verdict was liable to objection upon that account** 

Here, the declaration is for dn^ undivided part, and 
the verdict for another undivided part. Which, is not 
an immaterial variance from the declaration, sufficient 
to prevent the plaintiff's having judgment 

For there is no necessity that the verdict should agrea 
precisely with the declamtion. All that is necessary is* 
that the thing for which the verdict is given, should be 
comprized in, and be part of the thing demanded. by the de- 
1 And it could be upon no other foundation, that the caae 
was determined, which is mentioned invito. j^.Tit 
TrialifonTQ^*pl*^^: where an ejectment was brought 
ojfa messuage ; and it appeared in evidence^ and wa* 
so found by the verdict, " that only a small part of the 
*' messuage was built by incroacnment on the lessoi^a 
" land ; wo/ the residue; and yet the plaintiff had Judg« 
•• ment.** ' • ' • 

Here, the declaration is for a moiety: to which it was 

then suppoiied that &a l^^sorof th6 plaintiff h«d a right, 

as devisee of orieoffa)o brothers of* the te^tAtor. Indeed 

it came out upon- evidence, tHW the testator 'really left 

' ttl^e brothcft attd co-heks : sv^t Hat Hhe fesfeor of I6e pltoi* 

£«sto Teim, 90 Geo. 9. 


ItfThad i» fiKt ft title to n (bird part only. And the ver- 17^57. 
4ibct^«fiewrdipely,fDra (AtVc/. denn 

But the moietf includcs the qne third. So that what exdiiniss. 
it TOmv^^i^d by" the verdict, being cuntaintd m^ and being burges 
l^ ikmwbmt is demanded in the declaration, this case v. 
ranisi be rated by the gromud J have already mentioned, puttvis. 
*Vo4btt*tbe'le9eorsbaii4tecovcr .^ccoKDiNG TO his titled* 

• poi^t X^ pr9ve this, is the cose in 1 Siderf. ^29, 

of AhletU lessee ofGleuham, v. Skinner ; where the rfec/fl- ^ 

fvtf4Mi^ai,oCa>/aiir/Af«r^x>raiiCtb part ; and the lessor's 
tliMil<l40}wa».oiiAy to ouerthird ij/* one-fourth of a fifth 
pert: <(^biohjiya8 0Nj,y a TwiftD p^^t of what tcasde- 
itUMded:)yet it was resolved "that the verdict should 
** be taken «eco''</iflg tik l\^e title." 

Mr. Burrdly for the defendant, premised that this was 
^ hard^ase: and therei'oie deserved favour, and justi- 
fied thedefe^danfft iusisting on all legal objections. Then 
be urged tbat Ibe plaintiff must shew a clear title to 
make $mck a lease as is confessed by the defendant : and, 
m be kmnm ik oivmi tiik. he oogbt to set it forth as it U. 

Inibecaaeof jBerring^>/i ex dimiss. Dormer v. Park^ 
hmt; 10 G. 2. JB. Jl. and in Dam. Proc. May 173S. ff. 
11 G.2. The court held that the plaintiff could not re- 
ooter; because the demise was laid before the time of ^ 

actual entry: and the tease was bolden void in its crea- 
tkxu . . • • 

.. Asdtftb^l^ase ift.UidA(fii da/iii, it will not support f*^J'-, J Jf- 
an entry irpw the day. ^ SMSS. 383*] 

' Two tenants in commoa cannot d^lare upon ,a joint 
ietask SO" hCrotJnci 166. The case oi Mantle y.JVol'^ 

Comberb. 190. in tbe C9i^ of Moore v. Pardon^ one r qoq 1 
iimkmiumfKi^ two dea)ises,5va6 indeed hofden well enough, L -* 

«3 erfarbuMght. 

i 3 JjffVi 334y 333. The case of Goodwin v. Blachman^ a /^ ^ J 
-siasan fijeptn^ijt of the tenth part of a messuage describ-^^^yl^ /ia^^^-^ 
ed as being iu faro parishes ; whereas the whole lay in ^y/ 
;a«0Of tban&only : it was holden tbat the evidence did / ^ 
Mt aiointaiil the dedamtion ; which was precisely, o^ '^ 
the (eotb.part ofar^ entire tlUog* 

-..fiHarireif 330. In the case of Wheeler v. Touhon, the 
- court iadtined that a demise de Iterboftio et pannagio, did 
BOtmaintain a dectaiatipn ior the lam. 

And he supposed there might be a difference between 
trespassand^ectmeat: and concluded with praying a 
rule for a nonsuit 
Mt^Mmmkr io reply^^ere. the plaintiff's title was 

• flitf Jcnown tl> her: for she auppoted only two brothers ; 
and it cornea out that there was a third* 

. And the question it whether she can recover under 
this title. 

330 Easter Term, 30i G^a 9. 

y^,j The plajntifF here %\ a&ds in the place of .a copfurceiieT r 

' '* and therefore she noay brine her action for 1m part, by 

ex aimiss. Thecase pf:.^i/f/iv. Skinner, io 1 5;d. S-iiQ. is in point: 
B0RGES ^ j^ jg ^j^^ ferycase, as lo the recovery being /cm than.tb^ 

^' demand. , ,, • 

PURVIS, Therefore he prayed that the plaintiff might b^.at li- 
berty to enter up judgment on this verdicts 
LoiiD Mansfield — 
[Cro. Car. This is an exceeding plain case. The rule is undpubi- 

109, 110. edly right, *• that the plaintiff must recover ae^ar4ilmg 
Tclv. 228.] « iothetitU.^^ Here she has demauded half ; and s^ 
appears en^Y/ecf^o a thikim and so much she ought ta 

Mr. Knowlers principles, and his authorities, are both 
rjght: and the case of JbicU v. Skiftn€r,wh'\ch he cites> 
from 1 Siderf. 229. is in point. 

And so if you demand forty acres, you may certainly 
recover twenty : every day's experience proves-this.^ 
r 330 1 And so it is, in an assise: part may be recovered, 
^ -* on a demand for the xshole. And no possible objection 

can be made to this. For if aiork is laid, there is no rea« 
son, why she should not recover less: though the reverte 
indeed i^ill not hold; viz. That if he demands less, be 
shall nevertheless be entitled to recoz^er moi-e. 

Mr. Just. Denison concurred — and said, he thought 
the case of Goodwin v. Blackmau, cited by Mr. BurteU 
out of 3 Let;. 334, 335. was a strange case. And th« 
cas^ therein cited, (p, 355.) 44 Assise 27, of an assise of a 
• n i«pot at rnill, and a recovery of only part of it is a strong case *, 
•Bcfafbythe against it. And that principal case reported in 3.X^<^.. 
reporter, who 334, )§ contrary to all experience. And Lwwz tlipp 
qwTa* to ^^^^^ several good cases, on behalf pf the plaintiff; whic|» 
the autho- the court did not deny. .... 

ritjr ofthe Mr. Just. Foster concurred, and said the cas??, in 

principBlcafe, 5/J^^>e was in point (1 iS/rfe;/. 229.) ;* . 

oldc^*ii^" Pe; CV. unanimously 

©rder^in- Let the;;05/ttf he delivered to the plaintiff,, 

validate ihc in order to enter up aunuMENr for the .. 

Courl'sdctcr- ILAINXIFF. . , . 

minatioa. -^ 

sok/ttv^^* Whiskard, assignee, &c. terms Wildeh. 

fnS'iond A ^^^URRER to a declaralionon a baiUbmd. 

needs not aet . t #» i i » 

forth that Mr. If Af^«i&<?r, for the defendant, objected that €he de-' 

there T?a» aa claration ought to have particularly set forth ** ttiat the 
affidavit of ® ^ ^ , ^ 

debt, or that the sum sworn to was indorsed on the writ." 


Easter Term, 30 Geo. 2. 331 

" debt V7^9 sworn, to by the phintiff : and that the sum I757. 
" suHjrn lo bediie, and for which the defendant was hoi- ^hiskard 
** den to bail, was marked on the writ." IFor he alledged ^^ 

that without shewing this, here was ho sufficient ^ii^d'er, 
authorittf tc; ah rest the defendant: and consequently 
the bail-bond is not^i^od^ since the act of 12 G. 1. c 2i> ; 
hoi'void', Alid he cited 1 Strange 399. the qase of Milk 
▼• Bond: where the original process wa^ returnable at 
a day out of term: and it was therefore holden aroid 

Now here it is not shewn, " that the debt was to the 
/• araourit oflOl.;" nor is the sura due sworn to, or the 
writ smirked : all which are essenliall^ requisite, by the 
said act of 12 G. 1. c. 29. sections 1 * % 

Serjeant Pook.for the plaintiff, argued i contra, that f 331 "1 
the declaration is good, in its present form. 

It is an action brought by an assignee of a bail-bond; 
which hcpro/)?rfy sets forth ; antl then shews the bond to 
be forfeited : which is the whole that is necessary for the 
plaintiff to shew. 

And if the sheriff^ has holden the defendant to bail, 
when he ought not, or impvoperiy; the remedy of the 
defendant for that, is agaimt the sheriff: but the ionJ 
itself is good, and not void ; (however voidable it might 
possibly be by plea.) , 

And he said he would mention a very late case, in [ ^- ^- * W»I«« 
proof of his position: which case was, by name, Nonfoii ^^ '^ J^"**' 
V, Hor%ky, determined last week, in C. B. It was an action ' ^ 
on a bail-bond; taken for more than the sum morn to ; and 
this statute of 12 G. 1. was pleaded : but thecourj; held 
the statute to be onli/ din dory ; and over-ruled the plea. 

Afor ia it uscjal to insert this in the declaration*. 

Mr. Just Denison— It is often done, and often not: 
I have often seen declarations of BoxusoiiTs; some« 
one way ; some, the other. 

Mr. Whitakcr^ in reply. My objection is, " that there 
•• \%^ not a sufficient authority set forth, for the sheriff to 
" A KR EST the defendant.** A nd there is no need to plead 
th\si for it is a ^coid bond. 

3 jLep.74. The case of Graham v. Crawshaw, proves the 
bond taken upon an impossible condition, to be contrary 
to the statute of H. 0\ (23 //. 6. c. 10.) and to be void 
by it. 

And so, this bond also appears, upon the face of the 
declaration, to be a t'oid bond, as being contrary to the 

And 12 G. 1. makes this circumstance essential to con- 
stitute a l^dl process; and must have reference to the 
statute of the 23d of Henrif Ht^. 

And this is not like the case of Nordon v. Horsley in 


£Mter T^nii, 90 Geo. 9. 

[ 382 3 

17 ST. ^ ^' wkeie the bai]4)oiKl trts o^y ttken fbr« grm^er 

^^ Heie, the arrest ww tot^f ; and c o t c qiicndy, the (wit- 

bond was toid too. 

LoRi> MAwsFiBLD-^Tbis has not becD thought neces- 
sary to be set forth, till this time, ever tmce the makiiig 
of the act of 126. 1. Nor does it, upon reading the act, 
appear to be an cssekti a& requisite to the v^Haiiy of the 
bail-bond| uor m the nature of a oonditiem freeedent to it : 
but on the contrary , the statute of 12 G. !• appears to be 
onhf DiAECTORY to iho sheriff. So that though the 
sheriif wioy be himsdf an$Hcemblt for such an omission, 
yet the 6on«i wkot voib. 

And I think, it \»propefh/ Kkened to the case of taking 
ba»l for a ktrger sum. '^ 

In both these cases, the sheri^, (or perhaps the plaintiff,) 
may be an^verable or punishable : but the Sond is not 


Mr. Just* Den isoN concurred4.-be seemed to tronder 
that this point bad never yet been determined. 

He Ihooght the plaintiff was not^ in point of law, obliged 
to set this out, in order to entitle him to his action r 
though it certainly has been often done, pro mqjori eautela. 

This original action appears to have been an ecetiam for 
50/.; and a good precept is set-out (a) Therefore the de* 
fendant a^os Habk to be arrested. And it is set out ** that 
•• he was arrested^ This act of 12 6. 1. does not make 
the pffooeeding» wid, in case the defendant be arrested 
fVJiAowf aflldiimt SknAmarkh^ the sum sworn to, upon the 
baokof thewrit: it only pROifiBtrs the sheriiFand piamtiff 
from -doing it. And they may indeed be liable to an action 
mpen the Qose fcr it; (though perhaps not to an action of 
tresnass :) but it fioes not make the baiUond toii». 

Therefore I think there is enough set out, in the decla- 
ration, to maintain this action of debt upon the bond. 

Mr. Just. FosT£R concurred. The act of 12 6* 1. is 
cnfy directory : it does not make the process void^ Aiid 
as this objection has never been taken before^ ft'om |he 
time when the act of parliament was made; I think it 
oughrt to be discouraged now, (after upwards of tmrty 

' • wn I . I \ t u u pMt i i y n i Kni iia 

[a)V\de Sir T. Jones 7Q.; and Qu. whetW the bond 
might not be avoided by plea' of duress? In Sirmge&iZ. 
}i was adjudged thsft the plaintifT^^ in debt on .a baiCboml, 
need iiot shew an irfest. In 5fr. ^444. an4 .fiirie^c. 
was adjudged that the defi?n3arit cannot plead therewas 
no arrest; but in thpse cases tWc Wai a, fcgal. authority 



Easter Term, 30 Geo. 9. 393 

And if the ftct wwBa, •• thflt there wag no tffidaHrit,^ 1757. 
the defttidant might haire been relieved in a much Hoier ^tamKAun 
itielJhod; by spplyitv}^ to Mie towt, or to a Judge U> be ^^ 
discharged upon ecmmen baiL wiLBBa. 

Fer Cur. unanimously, 
JtTDOMENT was given for the Pt ArKTipp. 

HsNRT Earl of Caeltsle rcr*i« Armstrong et aK. Ved^^ 

18th lUy ' 
(Lord Commmitmer Wiljcot ab$eni.) *^^^ 

^HIS was a trial at bar on the civil side of the court. riM psyiUe 

rp. .. , to the W of 

1 bree questions were here to be tried. the bmnmy df 

let Whether, upon the death or alieDation of the ^»"»'«^' 

tenants of the barony o£ GUMandiM Cttmberlamd, ^.tea- 

mtiabh arbitrart fine at the will of the hrd. be pay- 

aUe to the lord, or not. ^ 

ad. Whether the tenants have liberty to let foe three 

yearn, or mortgage, mtltout hcence of the lo«i, and wUlmit 

poying any fine at all. 
'2d. Whether they had liberty to ^whange, Sfc without 


But the defendant's counsel said they did not mtfioA to 

ansiat on the second question, so that the first and third 

only cematued in dispute. 

About six in the afternoon thia trial ended in a ¥ m- 
,; . nicr Cor the flaimtipf, ufion all the thiw 
. issues. ^ » 

: . RfiX Tp^rfus Will T E and W A « d. Fridaj, sotft 

^^ . May, 1757. 

fpHE defendanfs Jiad been convicted of a vuiaaircx ?♦ 

make acid 

~.. ^. Hyiu*. fu,,ut. I UK luaicimeni run tnua, viz. tiiat " ft »P«™«i wu- 
the PARISH of r»»cA€«Ao«^*c.ji«r the king's common PJS^ 

E-.. 2,%^?^"^*-"**^^''^ defendants erected twentybuild- SeW^S? 

to^ fdr^alcing Sdisonie, stinking and oflfensiw Hqtiore; wkom. 
^r, 2?f* tb6> land tfaei-6 niaae fires of sea-coal and other ?i?!*-_^ 
Z, J&88;2','V<=^'*"'^"*H*'*Mn<JMceoffi«wme,c^iiiiw 
•r SJ 5^ ''"•?«'. K rd«. 4«. great' «»nti.sifi 

'*• 'Wheiebyaodby reason of wliich Qai8O0ie,.ofi«aBh« and 

334 Easter Term, 30 Geo. 2.. 

.1757. " atinkingt'Ac* ^heair wa$ impregnated with noisome and 

BEX* " ^^«w»«« Hmk$ andsifielh'f to the conimon nuisance of 

^^ " atl tbe. king's liege 6ul>}ecta inhabitifig, 4*c. and travel- 

WHix&and" 'i^gaod pa«8ing/Ae5aad king's common higli way; and 

WARD. " against the peace, &c.'* 

r oqj * "1 Sir Richard IJoyd ^for the defendant$-;-(on Monday 

*• A lotU .November 175Q,) would Imiyc moved a mixed motion; 

viz» both for a new trial and also in arrest (if judgment ; or, 

lit least, in arrest of judgment Jirtt^ and for a new trial 

'. Hffierwards. But^ 

The court held,- that neitlier of these methods 
could consist with the gehsral iculb q/* the courts or 
with a particular rule, made in this case, to give them 
leave to moveriYArrof these motions on this day, (hough 
the four days given upon the postea were expired. "Where- 
upon Sir Richard was obliged to begin with the motion 
for a new trial. And he said that this indictment was laid 
for making a liquor, from whence the nir was impreg- 
nated with noxious, hurtful^ unwholesome, and stinking 
qualities: and the £/ig/M^ word " noxro(/4" answers to the 
Latin " nocivus'' But it appeared, he said, upon the evi" 
denccp that the fumes, however offensive and disagreeable 
to many persons, were by no means in reality noxioui^ 
hurtful or unwholesome ; but the contrary. 
Rule to shew cause: with this addition,— " that the 
** defendants should have three days time to move 
" in arrest of judgment; after the court shall have 
** given their opinion upon the present motion for 
** a new trial, as upon a verdict against evidence. 
On Tuesday the 2dd of the same month, Mr. Just. 
Dekisok reported tbe evidence; which was of great 
length, he said, there being about sevepty-five witnesses 
* on each side : however, he collected the substance of it 
together in his report It appeared to be very strong 
on thcpart of* the prosecution : and he declared himself 
satis/ied with the verdict. And it appeared upon his 
report, that the smell was not only intolerably offensive, 
but also noxious and hurtful, and made many persons sick, 
«nd gave them head-^chs, 

Mr. Just. FosTEii said that ** noisome'' and ** noxioui,'* 
were synonymous terms; and that th^re was uo other 
Latin word for " noxious** but " nocivus.** 
.' The r«/e was therefore discharged, as to setting aside 
the verdict. 
On the Saturday following, Sir Richard Lloyd, Mr. 
Norton, Mr, Serjeant f/ezri/^ and Mr. Nores, moved in 
irrw^ of judgment; (which was not yet signed.) They 
objected to the indictment; it being laid generally, at the 
TARiSH of Twickenham; and only said ** near the com- 
" moo highway;*' but not said to be in the town or riY- 

Easter Tenn, 30 Geo. 2. 335 

hgt: it maybe upon a heath or coq^ibod, for aught that 1757, 
appears to the contrary. Though it appears l^ % Ro. ^^^* 
Abr. 139. Title Nuisance letter JP. pi. 9. Ranheit^t case, ^^ 
that making candles even iri a vill, which caused a noi- ^h,xe and 
some scent to the Inhabitants, has been holden to be no ^j^^]^.. 

But here, no offence in precis^ laid. It charges 
" that by reason of the noisome, odensive and stinking 
•* smoke, the air was impregnated with noisome, oifen-* 
*' sjve stinks and smells:" which areyague, uncertain 
terins. As to " noisome^* V. Minsltew, and Skifiner^s 

Trenunns PL Cor. 195. Rex v. Brookes (for keeping a 
elasshpuse) uses the words ** unwholesome and dangerous.** 
Ibid. 198. Rex v. Cole, (for a nuisance in keeping a soap* 
boiler's furnace,) " unwholesome , turpibus, periculonssimis^ 
V contagious and infectious*' Here, it is only said to be 
** noisome and offensive,'* It ought to have been laid/^re- 
ciseli/ and particularly. * ^ Hawk. P.C. 186, 18 , 186\*Tiiif relates 
*' Uurtfur* is also a vague term: it ought to have been ^^^l ^^ indict- 
laid to be iniatubrious. STiHd^' 

As to the vague term, " near** there was a case of fUggbter. 
IVilkes V. Broaflbent^ Pasch. 1745. B. R. where a custom rg^ q^ j ^jj^ 
•* to lay rubbish near the eye of a coal-pit'* was held bad: gs. Straoge. 
though that was a civil suit, and the custom found by a 1994.] 
verdict. Much more, upon an indictment. And this a 
lawful trs^e; and can become a nuisance only by accident, 
viz. by being so to a town or high-road. . It can be indict* 
able only for being exercised in the heart of a town. For, 
according to 2 Show. 327. Rex v. Pierce, •* such trade* 
'' ought not to be in the ori/ic/pa/ parts of the city; but 
*' in the out-skirts." And the court will not here presume 
that this was in the town. Besides hurtfulneu is the giiT 
of this indictment Pn/m. 198, 199- 

Serjeant Daw, Mr. Morton, Mr. Jstnn, Mr. De Grey, 
Mr. Stow, and Mr. Thurlaw, contra, for the prosecution, 
answered, that " noisome^* conveys indeed a complex 
idea; but still includes " hurtfulness." It stands in the 
place of the Latin word '' noeivus** aod certainly imports 
aouxsance, 2 Ro. Abr. 139- letter F. pi. 2. Ranketfs case of 
a tallow-cbaodler is as it has been cited: but l Hawk* 
P. C. Pi. 199. c. 75.| 10. wonders at and disputes that 

** Neat'^ is sufficiently certain ; and was as particular 
as/the.Mffeffie of the thing would admit: for it was not 
SMUfUy near to all the houses. And after a verdict, it 
#naU be intended to be so near as to be a nuisance. 
. A«to, the case of Wilkes v^ Broadbent^2L prescription 
must b^ cejrtaui ; besides, that was laid too Extensive and 
•rbitrajy^ But bere, its being laid " at the ptf m* of 

336 EaBter Term, 30 Geo. g. 

1757, ^ ZbMBMJbm" issaScient And i« Act, it » awiy 

v^ Tbtv cited Jacot HatTi case, 1 ^odL 76: who bad 

WHITS and ^^^^^ ^ rope-dancer's stsge at Ckmng-cnm* Pet 
WA«0« A^f Ch. J. ** It becomes a nuisance to theponsA/* That 
was the foot be put it upon» And tbis indiotmeni of xduiib 
is laid e&tensmly «no^i to t>e a eammam nuisance; 
thoiigo not a pubiic one: nor did it, in ftot. affect^ctikr 
penons thai^ tiiose living and pssnnf noarit. . 1 . 

Tbeir objections come too 1ate» afitec ^verdict : for: itds 
a mere matter of evidence, *^ wh^iber it wts noxioul, or 
" not/* And it is plain that the defendants imdetvihtd 
the word ^ noxious^* in the sense of '* uniiviiokaomeL;*' 
because they defended 4)bemseJves upon lA«rl lbot,^aad 
examined many witnesses about the uawliolesomenesaof 
tbe stench, la Cro, Car. 510. Tok4^k'9 case, (there «itfld 
in lAie'Case of Jfor/«y v. Pragneily) ereotii^ a liaiiow-iitr- 
nscecfoss the street of Dmmuttk house in the Strmud was 
adjudged a nuisance, and to be removed. Nay, an o^« 
5ire stench is of itself a miisance; even though it should 
not be strictly hurtful. An indictment merely for a 
9tench would have been^ood ; evien mthout any epitbets. 
It depends upon rtKdmng the pmpartjf ^f oth» fgrsons tii* 
commoditms and uncomfort^Ale to <bem : and this point is 
to be tf ied by a jury, ** whether Ihe thing be really mek a 
'« prejudice 6r incominodiousiiess to the neighbourhood, 
*' as amounts to a nuisance/* Andi^re tte jury have 
. found it so. 

And as to the piace^-^ti also is matter of evideoce. 
*nie ^aurt can not take fiOtice,xr €0icio^ ^ the boundaries 
of tiie parish of IMeheiAam* It is the aoneowm cfpeopte 
that this poifft must depend upon. AxiA^^ near' is the 
strongest word that we could use> agrsaiUy to ibe ctncnm^ 
stance&of this case. And ibe jury, who have eiBamiiied 
it, h«ve found for U8» 

^ir Biehard Lhgd in reply a cocr ted «hai tbe epithet 
** qfisnnve^** akme, would not be sufficient. And an to 
the word ** near!' he observed that the jury liad not fowd 
ftov near it wss. And the laying it gofneralfy ** inA^ 
** part^** at lame, does not shew that it is a fiubl itfdiet** 
able: for it mi^tbeata vastdistancafreaftangrboiMgor 
place of resort ; f 

Lord Mans7ibl]> thougbt there was mi^fSlimgitAm 
objections : which, be said, are tedaciUe ^ tbne heads ; 

let. That thete is fio suftcient ehiige of H^hmU 

Jiilness; \ » .< \'\ 

Mly. That it is not jmeiseiy rfiaiged^ ^ «s artoaT tbe 
I, hurtisdone; *• •'■ i*^ 

1 :»i4. '.' • 

Easter Term, SO Geo. S. 3S7-S3S 

•Sdly. That it ariy laid gemunlfyr '* »< tAe 9AMim of 1757. 

Fir6^--^The jury havefammi ^Hhat ii ii to theeommM y 
^ mcMioe of the king's sol^ecas dveUiog;, &c. and Im^aW wHir s aid 
•« ling, &C-" , . , , WA.R». 

And the wwd ** moxioui' not only means ** kurifml and 
•* qfaumtio the mmA ;'* but it is also the tiansUUion of 
the V9hf xsCHMiCAL term '' nocivus;' and has been 
always used for it, erer since the act for the proceedings 
being in Efi^sh, 

But it is HOT neetmety that the smell should be tm-f 
whottBomti it is enough, if it renders i\ietnjoymentoi\\w 
and pfx^pcrty unconrfoHmbk» ^ 

Secondly— The perwus incommoded are suffidenll^ 
descrifaedc and tbe oflbnoe is charged to be to the common 
naisenoe of persons inhabiting and travelltug mttr^ Sfc. 
And imkiss they had been so ifear as to be fault by it, the 
indictment could not bare beeu proved. Whereas- in the 
case of ffilkes and BromibenU it was quiUewHxHaim how 
meat the rubbish might be laid. 

Thirdly — ^It is mffieientfy laid^ and in tbe accustomed 
ttaoner. The veryertitoMeof the nuisance depends upon 
the nnmfaer of bouses and concourse of people : and this 
is a mojUet t)ffact^ to be judged of by the jury* And in 
tbe very cases in Tremame \9b* of a glassbouse, and %9Q* 
of a 8oap4ioiler*s inrnaee,^they are laid in pHriihet^ ^* ofud ^ 

^ jRi/veA' &a" Therefore there is no fiMUidation for tbe 

Mr. Just. DeMisoifi^There iJ» a mificient /egul ceHntinty i«r. 
is thia indictment ; so that the defendanto had an opportu* 
nter of making a proper defence«t ibe trial. 
'^ Upon a foi»er trials the indictment then before tbe^^ly- 
«oaft charged ithc air to be corrupted* Tkk present in*- 
'dtotiiMiit ia ketter expressed. The word '' rmxious' in^ 
eludes the complex idea, both of insalnkirily and offen*- 
aiveipess. And 4hera ^wns no need to spi^nfy partieular 
Instaaeas orAe efcoHof it. There is nothing in this 
ol^ecaion. And it i»^so vutteiently cfaaiged^ io whom 
' tbenuisaitfoe is dolie* 

t As to4» laj^ing it ina fartA-^ is iilEBviae softetent Mj. 
. I0 the case of ibe King v. Bhwer^ HiL «7 G.t. &JL 
Tbe court declared they would take the viU and tbe parish 
to lie^piNexaenBive : and they held that there were only 
two caaer where it was necessary to iky a vtU ; wbicb 
were upon the statute of additions (where you are tied up C ggg *1 
to. tbeTiUJand in am>eai< of death, upon the'statute of ^ ^ 

G-hueeHrr^tn^* ft. the tieiscription of being ** tsopb tdtmm 
^« tfittm ti^ftiiTC^ i8<b6eMim<m meAod. And ttia laid 
' ^ tfrnummt nocttmentum : and the jury IxBcvefnmd it, as 
ft in )aid« XlM^i^t thMk it is tnlQ;al form. 

339 Easter Term; SO Geo. 2. 

1757. ^^' Just Foster— The only Question is '* whether 

REX '' ^^^ fact laid implies a. nu'ie^nce," I think it doei. Other* 

V wise, the mere laying it to be ** ad cffmmune nocumenfyniy* 

WHITE and would not perhaps help it This is- certainly a common 

WARD, nuisance. And "near the highway and dwelling-houses,'*^ 

iBt. * is properly alledged, in order to shew it to be so. F. 

[« Lulw. 15, 1 Strange 6SG^ 6S7. TUx v, Pappimau, H. 12 G. 1. B. R. 

J^] in point, accord. It never was objected that laying a 

;^*j^ g^ robbery " 1 w or near" a* highway, is bad: no; it is 

c. la. ^ 10.' matter of evidence. 

5dly. ' (Note — INlV. Justice W7//nof was absent, in the court of 


So that the court were unanimous in denying the 
Yet N. B. That (according to the usual course in like 
cases) no rule at all was here taken in the rule*l)ook : 
only, the counsel for the defendants took nothing by 
their motion in arrest of judgment. 
On Thursday 5th May 1757, on a motion for the judg- 
ment (or rather sentence) of the court upon the defendants,, 
for the offence whereof they stood convicted,— it appear- 
ing that the nuisance was ahsoiuiely remotbd; (the 
works being demolished^ and the materials, utensils and 
instruments, all sold and parted with ;) they were, «pou 
entering (each for himself only, and for such as acted for 
or under him) intoarii&"not te renew them," only 
fined 6s. 8<^. each. But on a dispute afterwards arising, 
how the rule should be drawn up, it was on Friday 20M 
May settled by the court to be thus — ** By consent of 
" counsel on both sides, it is ordered that, upon the 
** defendant Ward!s undertaking that neither he nor any 
** other person by his consent or direction or for his use or 
" benefit, shall for the future make or cause to be made 
" in the works lately carried on by the defendant White 
" at Twickenham, mentioned in the indictment in this 
** cause, any acid spirit of sulphur, or preparations of 
*• vitriol, or oil of aquafortis ; a fine of 6* Sd. be set upon 
** the said defendant Ifard, for the nuisance of which he 
" has been convicted." And 

The defendant White entered into a like rule, mtdatis 

[ 339 3 
flit Maj 

Perfon lifted rpHE defendant being brought into court in obsdieoot 

Ifirrt*^*^ to a writ of habeas corjmBppiieA for by his betil; 

[^"post. ^^^ '^ ^^^°S ^eed that he was in custody^ o£the keeper 

/t*09 J of the Savoy, as unimpressed mani. the couosd on behalf 

1 757. ^ Bond versus Is a a c. 

Easter Tenn, 30 Geo.. 2# 340 

of the bail, insisted upon their right to subkender 17^7 
Aim. noH 

The COURT (namely Lord Manifield, Mr. Just Denison, * ^ 

9Lni Mr. Just FoUer) had do doubt of their right: but ,..* 
•uly hesitated, as to the disposition of him^ after he had 
been surrendered. Lord Mansfield mentioned the 
clause in the pressing act (K 29 G. 2. c. 4, § 14. p, 175.) 
of not taking him out of the service. Mr. Just Dehisoh 
cited two cases; viz, 1 Strange 641. The case of the bail 
oi BoisemA Sellers, xn this court; where the defendants 
were returned to be charged with two civil suits and 
.several Exchequer informations for frauds in the customs ; 
and when the court was satisfied of the reality of the 
debts and priority of the actions here, the defendants were 
surrendered, and committed to the marshal. And a case y ^ 

in Tr. 22, 23 G. 2. Rex v. Chitty, B. R. where the ^t- J /t/^^^pCTX^ ^ V^ 
fendant was returned to be charged with a contempt in 
the Eic/teguer: he was surrendered by his bail here; and 
committed to the marshal ; who was immediately served 
with a new habeas corpus, to remove him to the Fleet. 

This man is a soldier now ; and by this act cannot be 
taAeAOtf/ofthe king's service, but upon some criminal 
matter: (T. the act, as above.) So that it seems that he 
may be remanded to the Savoy, in the present case. 

Mr. Just. FosTER^ — In the cases cited by my brother 
IknisoH, the proceedings were grounded on 25 £.3. c. 19. 
(which enacts " that the king's debtors shall not be pro- 
'* tected from the proceedings of their other creditors 
** against them;") and it was a matter of rigA^ This is 
an irndtdgence to the bail, to permit them to bring in the 
defendant and surrender him. But we cannot take him 
out of the king's service ; this not being a criminal matter : . . 

(K ut supra, 29 G. 2. c. 4. § 14.) so that we may, after we 
have entered an exoneretur upon the bail-piece, remand 
him to the legal custody at the Savoy. 

Lord Mansfield — We md^y first commit him fo the , 
marshal; and then remand him, immediately, to the 

Suppose him to be a soldier at large, ((iot in custody ;) r ^.jq 1 
and that his bail were to bring him in, and surrender him; 
he must be committed to the custody of the marshal 
upon such surrender ; but imtantir set at large : and so we 
may do here. And accordingly. 

Per cur. He was, upon being surrendered by his bail, 
first committed to the custody of the marshal : but the 
marshal was ordered to deliver him instantir to the keeper 
of tlie iSamy ; and he did so, immediatelv, in court. And 
an fMmereiier was ordered to be entered upon the bail- 
piece.. #^.|ioir,4(;j^ 
Vox,. L ^ y 

341 Easter Term, 30 Geo. 9. 


Caf&on rer<«j Aech£H» 

have time 

UPON a question concerning the tbbms upOD whieb 
. the baU should hdive time to sti^rraider the prin^mt, 

dSTafl^r"' *ft«^* writ of error brought™ 

irrit of error Mr. Just. DfiNisoN and Mr. Just Foster, the only 
irooghtbjF two judges in court, held that it was the allowance of 
**""" the writ of error, that was a supersedeas to the proceedings 

below; and that the notice of its being allowed was 
only to bring the party in possession of the judgmeijt 
below, into contempt^ in case he should persist in pro* 
ceeding tliereupon suhsequentlif to such notice. And there- 
fore, as in the present case, the defendant*s writ of error 
was ALLOWED BEFORE the time was expired withia 
which the bail had indulgence to surrender the principal, 
THOUGH NOTICE of such allowaucc was not given to the 
plaintiflTs attorney till after the expiration of that time ; 
the COURT gave the bail the same terms as are usual whe^ 
they apply within the time indulged to them (by the 
present course of the court) for surrendering the prin- 
cipal. And accordingly, the rule to shew cause why 
the proceedings " upon the writs of scire /tfcias issued 
' " against the bail should not be stayed, until the writ of 

'* error shall be determined ; the bail undertaking to pay 
•' the plaintiff the damages recovered by the said judg- 
*• ment, on surrender the defendartt into the custody of 
•* the marshal of the Marsbalsea of this court within tour 
•* days next after the determination of the said writ of 
" error, in case the same shall be determined in favour of 

♦ For the <« the defendant in error," was made * absolute. 
clearer under- - • 

9imd\ngof the dffkretU terwu granted to the Inuli under difkrent eireumsUmeeif nt 
Myer ▼. Artkurt I Strmige i\^. Hunter y^Sitmfwti 4r «r> 9 Strange 761. EivfireU ▼• 
Geiy, I Stramge SiS. Hirhardton y.Jetfyt ^ Strange 1370. Cole T. Buckland^ S Strengm 
872 : (parltcukrljr Ibe first tnd fourlh of these cases ; iivhich shew ike distinction,} 




J * JPelly the Younger versus Gov brjuok aiid Compakt 


The iails and npinv? came before the court, upon a case reserved on a 

^h^uk*''^^ ^^***'^ ^^ Gff/MW/, before Lord MamfiM: where a 

tbmbtit^and ^'^""dict was found for the plaintiff, subject to the oplnioR 

lodged in a ^^ the court. It was an action of covenant upon ^policy of 

warehouse, if insurauce^ 

•ccidcntalU Case. The plaintiff being part-owner of tbe ship 

before ic O/w/ow, an East^Indin ship, then lying in the Thmius,ntkd. 

sVip returns f>ound on a voyage to China and back again to London^ 

firom the insured it at ancf from London, to any ports vad places- 

vojage,shaIl be 

made good bj the underwriters. <See 4 Doro* S07, 3 ten* 491*) 

Easter Term, 50 Geo. 12. '. 342 

beyond the Cape of Good 77o/?f, and back to London : \757, 
free from average under ten per cent, upon the body, -bkx.i^y 
tackle, apparel, ordnance, munition, artillery, boaty.qjifjl - 

other '7Vi/;?t7'«r^ of and in the said ship : beginning th^ hoyal 
aavcticum apod the said ship, ^c. from and immediately EXCfiiN'GE* 
following the date of the pulicjr ; and so to continue and assurancb 
Endure mitil the said ship, with all her ordnance, ^a/^We, company 
apparel; !)X. shnH be arrived as above, and hath there 
moDred at anchor twenty-four hours in good safety. And 
it shall be lawftil for the said Aip, in this voyage, to pro- 
cecd and sail to and touch and itay at any ports or places 
whatsoever, without prejudice to this assurance. The 
perils mentioned in the polidy, are the common perils; 
viz. of the seas, men of war, tire, enemies, pirates, &c. &c. 
and all other perils, losses and misfortunes, &c.. The pre- 
mium was seven guineas per cent, with the usual abate- 
ment of two per cent, in case of a loss. 

The ship sailed, &c. ; arrived in the River Canton in 
China ; where she was to stay, to clean and refits and for 
other purposes. Upon her arrival there, the sails, yafds, 
tackle, caoies, rigging, apparel, and ot\itt farnitare were, 
by the captain's order, taken out of her, and put into a 
warehouse or storehouse called a bank-saul, built for 
That PURPOSE ON A SAND-BANK, or smoll island, lying 
in the sard river, near one of the banks, called Bank-Saul 
island^ about two hundred or two hundred and twenty 
yards in length, and forty or fifty yards in breadth ; in 
order io be there repaired^ kept dryland pRESERVfiB till 
the ship should be heeled and cleaned, and refitted. Some- 
time after this, a fire accidentally broke out in the 
bank-saul belonging to ^Swedish ship; and communis 
c«te4 itself ioanoU^r bank-saul, and from thence to the 
bd«fe-«aul belonging' to the Onslim\ and consumed the same, 
with all the sails^ yafds, tackle, cablet, ^ggiffgt apparel, and 
other furniture belonging 10 the Otislow, which were 
therein. j- ^ 

.It was stated, that it was the universal and tcdl known L ^** J 
USAGE, ahd has been so for a great number of years, for 
all European ships which go a China voyage, except Dutch 
ships, (who for some year» past are denied this privilege 
by the Chinese, and look upon such denial as a great loss J 
•• when they arrive juear this Bank-Saul Island, in the 
•' River Canton, to unrig the ship, and to take out her 
•* MiVs, yards, /acHe, cables, rigging, apparel, and other 
**.J{kmiture; and to put them onshore, in a bank-saul 
'^ "built for that purpose on the said island (in the manner 
•' ^tfcaj^t had been done on the present occasion by the 
*\ c^fein of the Onslow,) in order to be there repaired, 
**' 'kept dry, and preserved until the ship should be heeled, 
" cleaned, and refitted^**' And the case further states 
that it appears that the so doing is prudent, and for tbe 

Y 2 

343 Easter Tenn, 30 Geo. 2. 

1757* common and general benefit of the owners of the ship, the 
PEL L Y iMurerSy and insured, and a ll persotn concerned in the safety 

Y^ of the ship. 

ROYAL T'he ship arrived from her said voyage, in the Thanus^ 
EXCHANGE ^^ September 1753; (having b^n Unrigged, and put inlbe 
^3s^i^^^c£ best condition the nature of the place and circumstances 
COMPANY* ®^ afl'airs would permit) 

Question. Whether the inenrert are liahk to answer for 
this loss, [so happening upon Mm banhsamQ within the 
intent and me^nmg of this policy. 

Mr.. Williams^ for the plaintiff;— »afker premisiii^ that 
this question arises upon the construction of a poKcy .of 
insurance ; that these policies of insarance afe of ancient 
date; are beneficial, as they tend to divide the risQue; 
and have been every where encouraged, in traoing 
countries; madetliese three divisions of his argument. 

1st. He undertook to prove that the plaint iiTs demands 
are founded on strictjiisfice. 

idly. That they are agreeable to both the words and 
meaning of the policy ; und supported by legal deter- 

3dty. He said he would mention the opinion of /oretgo 
lawyers^ upon the subject. ; 

ObjDctiov Indeed it has been objected ** that tJiis is no/ a loss at 

•* SEA ;'^ but "a loss at Ai/id-'* 
Answen to it. First, The policy is general: it is not confined to losftes 
at sea. 

Co I c> -] Secondly— Tl) is is no/ a loss at land: it ia what happened 
J upon a sand bank in the river . 

Th^n he proceeded to his three heads or divisions of bis 
Firil hend of i^t, ^g ^o the justice of the plaintiff's case — 
•rgument. q^^^ insurers have professedly and explicitly insured 

the ship and all her rigging, furniture, &c. fsom fire, &c» 
y>om her going out TO her iiETUaN: and they mii6t be 
taken to be apprised of the usage ; and to tiave calculated 
their premium accordingly. And what has here been 
done is stated to have been done " for the benefit of the 
" insurers, and of the ship, and of alt persons concern^ in 
*^ the sajhti/ of it ;" and nlso *' to have been prudent** 

If the body of the ship had been burnt in thia^ interim ; 
and these sails and furniture, had been saced bt beiko 
in this warehouse ; the insurers would then have had the 
benefit oUbis salvage, Themfiofle th^y ought, jn.tbe can^ 
trary evenly to be ansxerablc for them, when tAe^ WPre by 
these means burnt, and the ship not burnt It was the 
captain's duty, to perform the voyage in the usual and 
proper course. And this was so far from bei<ig a neglect 
or misbehaviour in the captairi, that he is slated " to have 
^* acted pftuDENO^LY, and for the be^^epit of the iniurers^ 
*\andofall concerned*** 

. Eaater Term, SO Geo. 2. 344 

4d!y. This is within the nvrds of the policy— it is an 1757. 
iMUmiice from " London to any ports or place beyond pelly 
** the Cape of Good Hope and back ; and du&ikg the y, 

•• VOYAGE r and^e is expressly in^uKnJ against. royal 

' Atid it isalsO'Withiri the meaning apd i/i/eis^ of the poll- bxchangb 
cy; RorrthisbBs has happened within tlie usual course assueancs 
^thevoyagey and of ^his speci<?8 of trade. And there- company: 
tote thetnsui'ers are liable. And this is the true ^isti^c- Second head 
tioriv 'To prove ^vhich, he cited 2 Salk. 445. Bond \. of vgantau 
Gonsales: ** deviation or not, must be taken according 
'* ife the necessity and usa^y Clayton v. Simmons, 1.1 tn 
March 1741; at GuiUthaU. Per Lee, Ch. J. " U the 
^* mttHter put9 into a port not usual^ or stays an unusual 
** tttne, it is a deviation and discharges the insurer : noi^ if 
** h^^doesasVBtiX'L" Tkrney v. Etherington, March 
1749^ per Lee, €fa. J. at GuUdhall-^ihe goods were unload- 
ed and put itito nstore*ship at Gibraitar; and there lost. 
The question was, whether this was a loss at land ; or a 
hi^in the voytge. He held 'V that policies ought te be 
•* construed largely, and for the benefit of the insured; 
** and according to the course of trade and the methods 
'* USUAL at the place :** and as that was the known course L S^^ 3 
of trade at Gibraltar , he held " the insurers to be respon- 
^ sible/' And in Boj^frterm following (R 1744. 17 (J. 2.) 
there was a motion for a new trial : which was refustxi. 
Now that was not within the vords of the policy : and yet 
holden to be within the meaning of it. 

Wbere an^tnsiirence is for one entire voyage, the con* 
tiact can tfot be suspetided, and revived again : if it be sus- 
pended at tf//, it indei^f mined. And yet they will hardly 
argue, that this contract yfustibsolateiy determined by this 
act that is stated. 

' *8d1y.- As to the opinions of foreign -writers they hold Third head of 
— ** that where the assurance is general, the insurer is argument. 
** liable no all loss happening in the uwat course of 
" t*i^ voyage." 

' And to this purpose, he cited, Loccenius,De Jure Mariti' 
nto^L.^. c. 5. sect. 10. De Jversione PericulL Whose dis- 
tinetldns turn upon the master's pursuiiig the usual course 
of the voyage, Jkf <irc<ir/ti5, Dc Jure Mercator. L. 2. c. 15. 
No. 148. Roccus^ De Assecuradonihus, No. 138. The insu- 
f er' is liable for all losses durante itinere. 

So that the principles of justice and equity, the strict* 
neSB of law, and the opinions of foreign writers, all con- 
cur iff favour of the plaintiff. 

Sir Hichard Lloyd^ for the defendants (the insurers,) 
agreed CcfMr. WiUiumis general principles ; and that the 
insurers were liable for all losses during the course of the 
voyage* But be denied Mr. William/ 9 conclusions ; and 
insisted' that this policy was certainly confined to losses 

345 Easter Term* 30 Geo. 2- 

1757. oi^f^: whereas ibis loss was a kss o^ saomK* -Thm in a 
PEiii^T P^iicy ^P^° ^^ l^y ^f ^ ^^ ' ^^ therefore is manifeBt- 
y^ ly €Oo6ned to losses at sett ODly« . Besntes, these goods 
'BOYAL ^"^^ averredj by the very declaratum itself » ** to hate been 
£xcHAKa£ ** carried * on-share.^' And its being an insuvanoe "«rf 
jkSSUHJiMCs" *"****^^" does not interfere nrith this poKitioft;^ A« 
couPAN Y *^ ^'^ suppositioa " that tlie Mp bad been burnt^'andtthe 
♦ Some of tbe '^ ^''^* ^^' ^^^ >" i^ i^ ^^ argument at alt : ft>r if tbeV 
bleaches ve had kot 6€eit &Mt« the insurers could not eertatoly have 
•o smigned. loeenjiable to pay for them. As tp the prudence of tlie 
captain — it might be prudent with regard to the ownen: 
but this care of tjtem is not to sfiect the insurer^. He 
is indeed to act his best, for both^ but dweno.itUuitm ; and 
Bot to serve^the one^ at the rhque of the other. As to the 
words of the policy--he denied it to Xnewithuk them ; refer- 
ring himself to the words themselvea. 

The cases cited do not affect the present case : and 
^foreign writers have said na more than Engtisk ones. 
For, no doubt, the insurance must be understood to be in 
the ximal course of trade^ and durantt itinere. But the 
question is," what is the tVrr insured?" 
P 4 z' n T\n% is a common policy of insurancci in the old -and 
L ^^^ J ordinary form: and it must be uaderstood^ as these po- 
licies were understood, before the East'^Jndia Company 
had a being. And the iateut of it must be collected from 
the instrument itself, 

Now this is an insurance of the ship with its tackle 
and furniture, 4^. /rom poH to port. And policies roust 
^ -be construed upon the uords of them, or from mcessaty 
consequences. If any thing beyond the natural import of 
the words was intended, it ought to have been specked: 
if not specified, it cannot be supposed. 

The court alone are to Judge of the extent of the con* 
tract. And these contracts have bfeen construed Urictly. 
jH deviation from the particular voyage insured, shall dis« 
charge the insurer; unless a necessity interveueft^iwhich 
does, and ought to alter the case. But even that must be 
nithiu the compass of the voy^;^ described; for if it happens 
AFTEH a deviotiou, the insurer is disohaxged,even though 
the ship should have returned iiito the right poad a^in, 
before the accident happened. . No w this jpresent accident 
did »p^ happen wjxutv the> voyage insstredt tor it faap- 

JB^ut Mr. JVilliams says" this happened intlieeiMm>9^ 
" traded My answer is, 'Uliet we hate.aathin^toiilo 
", with the. couise of traded' We haveoo^Mng to^^do 
with any thing but the course of NUkViOAVioMt^^hioh i» 
quite a different thing. The sails, tackle, ^c. t^eie i^sMVed 
1 vthesiip {. and if the.captain takes them.ont of the ship 
and pu^ t}^a^0iiif Qn%er« j£^ tfie jfi«tti'ers.aieiifliaQi«P*r- 

Easter Term, SO Geo. 3. 'SiS 

^Mq. And ito h^mg for the ben^ of the ship, Ifc. ntkeg YTSf- 
DO difference. It did not arise from necessity : much less p^^^^^ 
from a nece38ity arising in the voyage* This act of mere ^^ 
prudepce or convenience cannot affect the tnitinaw* And sKyrxis 
their knuving this to be the course of the voyage, ^'^'^jtoHi^Ntu: 
not prove that they meant to insure any thing at /aiiA, ^j 
They cQnmt, by their charter^ do it; for that ^^^^^^^^^^^^^ 
^hem from insiuring at laud : and therefore tbOT cettainly ' ^ .* 

netjir iaiended it As to the case of Tiermey r.r Etiermgffm^ 
F. 17 G. 2. . It w^as not a cqumqu policy. It was thereby 
agreed ** that they might unload, B^c. and re$hip into an 
'* Engiklt ship.*' Bat no English ship being there, they 
unloaded upon ai/ore*ship. And this vras a peiti ut s«a; 
for the ship vras lost at sea: so that it strictly and proper- 
ly was wirHiM thevtn/agt. And as to its being tba mode 
of re-shipping, in case no other ship was there ; here is no 
Buch agreement in the present case, as was there inserted 
in the policy : so that it was within the very termi of the 
policy, in that case. He cited the case of Fiitgerald v. 
Pole^ in P. Z3 G. 2. in B. R. aod afterwards in Dom' Proc. 
in May 1752; which was an insurance of a privatserfor 
four months : and there the whole cruke was by this court r 345 J 
imderstood to be instured; and the insurers were holden ^ 

hefe, to he bound« though the ship itself was safe ; and ac- . 
cordingly thev gave judgment for the plaintiff. But the 
House of Lords held them.discbarged; as theship was safe; 
and affirmed the judgment of the Exchequer Chamber, 
^ho bad reversed that of B. R, And there ie no inconve- 
nience in my doctrine: because whatever is by the parties 
particularly $neant to be insured, Iteyond the general mean* 
ing at*, the words, may be specially inserted in the policy; 
and then all will be clear i and nothing left to uncertain 

Mr. Williams inieplv— 

Thx^^iehAY^pensaiuring the course of the voyage. Aod 
this insurance is not meneiy upon the ship; but upon the 
rigging, sails, tackle and/amiture likewise; which in their 
nature are capable of being carried on shore, and usually 
are so, upon these occasions, as is expressly stated. 

And this is a loss happening in port. It is the proper, 
and the only port, where the English can clean and refit 
their sbips. And being upon a sand-bank in the river, is 
a loss^at sea, not at land. If the^Jgoods cannot be remov- 
ed from on board onesliip to another, the reasonof that 
antist be,* that the intuner has bad only that particular s/iip 
;incoqt^eaQplation,^on' CE^AicA he insured; and perhaps the 
care' and^ caution of- the $naster of it too, as zve/Zas the 
goodness of the ship. 

This taking out and depositing the rigging, saijs^aiid 
iurniturei moa a memary acti aad i» done by all the na- 

347 Easter Term, 30 Geo. 2^. 

1757,* ^*<^^s in JEurone, except the Dutch; who^re sUted to catt" 

FEtL Y ^^^^^ ^t^ ^^ ^ disadvantage tbat they are »iiOt permilted to 

Y^ do it. And it is stated to be for the benefit of the ship, 

-ROYAL ^^d of the insurers, and all conqerned. And this bei&g 

£XC^AN(?E ^^^ usual course of the voyage, it was unnecessary topar- 

A^strkAKCB ^i^^l^iz^ ^f ^P^cify this in the policy: it must oeces- 

c^m-^aKY. *«^J^»ly have been in the. con temptation of the iosxirers. 

. .. ' And as to the company's being obligM by their charter 

not to insure on land— the merchants insuring witli tljem 

are not obliged to know this: nor do the company in ^ei :- 

practise it. Besides, if they do rt, notwithstanding their 

charter, they are not the less bound to answer what they 

have undertaken. And indeed the charter only means Co 

preclude them from insuring homes and buildings at land^' 

(which is quite another thing;) not ship$ at land. 

As to the case of Fitzgerald v. Po/e, there was no loss 

of the thing insured : whereas here is a loss of the re;y 

thing insured. 

r g^y -J Lord Mansfield said it was very necessary, that the 

*• -^ determinations upon policies of insurance should be 

fixed and certain : and therefore they would consir 

der this matter, and look into the cases ; and then 

(within the term) give their opinion. 


Lord ^ANSFiKLp now delivered the opinion of the 

He stated the case minutely, and then the question; 
which was" whether this was a loss for which the in- 
** surers are rwpo/wiWe, within i\it Anient and meanivgoi 
•• the above-mentioned policy of insurance." 

3y the express word of the policy, the defendaads hate 
insured \ht tachl^t apparel ^xk^ oi\xer furniture of the ship 
Onslow^ from ^re, during the whale timevof j^er voyage; 
vntil her return in safety to London Ktihout, any re*' 
,. K strii^ion. 

Her taclcle, apparel, and furniture were inevitably 
burnt ii^ China, during the voyage, before her return to 

The event then which has happened ia a loss widmt 
the genera/ words of the policy: and it ia > incumbeiit 
upon the defendants, to shew, from the manner in which 
this niisfortune happened, or from other circumstant^es^ 
** that it ought to be co;istrued a peril whkh tfacy.did n($ 
" undertake to bear." 

From the nature, obj^t, and utility of this kind df 
contract^ consequences have been drawi) ; and a systenqof 
construction established, upon Uie ancient and inaccu- 
rate form pf words in which the ipstrnment j» con4 

The mercantile law, in this respect, is the same all 

Eftster Term, 30 Geo. 9. 34S 

over the world. For, from the some premises, the soiitid 1757 
coBclusioDB of reason aud justice must uniyersally be tlie pi, /^ 

Hence, among mamrother, the following rules have ^' . 
been settled. *^^^^ 

Utheeiutnce is MfiVrf or the voyage altered by th& fault JJ^urahcI 
of the owtter or roaster of the ship, the insurer ceases com pa 
tobeiiabie: because he is understood to engage that the ^^'^^^^^^ 
thmg stiali be done, safe from fortuitous dangers ; pro- 
9trf«ddoe means are used by the trader to attain that end. 

But the master is not iiijaidt^ if what he did was done t ^^^ 1 
in the mtUd ranrBe^ or necestarily exjustA caum. 

The insurer, in estimating the price at which he is wil- 
ling to indemnify the trader against all risques, mtist 
have under his consideration the nature of the voyage to 
be performed, and the uaual course and manner of doing 
it Every thing done in the usual course must have been 
foreuen and in contemplation, at the time be engaged. He 
took the risque upon a supposition that what was usual 
or necessary, would be done. 

It is absurd to suppose, when the end is insured, that 
the usual meam of attaining it are meant to be excluded. 

Therefore when goods are insured, " till landed ;" with- jj ^*«»^ 
out exprea words, the insurance extends to the boat^ 
the ntual method of landing goods out 6f a ship, upon 
the shore. 

If it is nwal tostay so long at a port, or to go out of the 
way, the insurer is considered as understanding that mage. 
Bond V. Gonsales, %Salk* 445. was so ruled by Ld. Ch. J. 

Ifgoods are insured on board one ship, to a port ; and . 
from thenee, on board another ship, the first that can be 
got; .^e iiMurance extends through all the intermediate 
steps ofremcfving.frora ohe ship to the other, as usual. 
* For the means must be taken to be insured, as well a^ ^ ^' 

All this has* been determined in the case oi Tiernty 
V. Etherington at Gmldhall,bih March 1743. That was an 
insuianee on goo4ls in u Dutch ship, from Malaga to 
GtArdfar,a(nd at and flrom whence to England and Holland, 
both or either r on goods as here under agreed ; beginning 
theadventure from the loading, and to continue tilfthe 
ship and goods be arrived at England or Holland; ahd 
there safely landed. 

The agreetnent W^, •* That upon the arrival of thd 
" ship, at Gibhtltar^ the ^oods might be unloaded and 
'* reshipped hi one or more British ship or ships, for 
** Enf^and and Holland ; and to return one per cent, if 
" dischaiged in England.^* 

It appeared on evidence, that when the ship came to 

349 ' Hilaiy Term, 80 G«o. S. 

1757. Oibrahary tbe goods were unloMed ^Qd put itirto4 st^n*- 

FSLi«T skip {which it was proved w&s alwavB considered «9o 

y, warehouse ;] and that there wae then noBrUhh n\Ap^S^t9^. 

ROTAL "^^^^ days after the goods were put into tbe ifo>« iltp, 

yyrgilF-ftF they were lost in a storm. 

ASWQJLKMCB ^^^ ^^^ defendant it was insisted that tbe imutaDce 
c<mF4.N\% "^^oniy upon the DiclcAand British ships: and that ft 
r 349 1 ^^^ •"* exiemi to the siaresMp ; wbich is considered m • A 
^ -^ tDarehtmse at lattdy and so tiot a peril at sea* 

For the plaintiff, it was insisted, that this was a k>ss 
in theroyage : for the poUrr is» for all losses at Gibtaliar, 
as well as to and from. If there had been a Britisk ship 
there, and the goods had been put into a tighter^ ia order to 
goto tbe £rtYt5Aship, and lost in the way ; that would hare 
been a loss within the policy. We have liberty to un- 
load and reabip, and therefore have a liberty to use all the 
meam in order to do that. 

Lee, Ch. J. said— It is certain, that, in constructro 
of policies, the stricttimjusj or apex juris n not to be laid 
hold on : but they are to be construed largely, for the 
benefit of trade, and for the insured. Now it seems to be 
a strict construction, to tonfine ttiis insurance only to' the 
uirioadingand reshipping, and the accidents attending 
that act The construction should be according to the 
covrse of trade m this place. And this appears to be the 
ti5ifa/me^Ao(2 of unloading and reshipping in that place: 
viz. " That when there is no British ship there, then the 
^ goods are kept in store ships.*' 

He added, that where there is an insurance on goods on 
board such a ship; f^af insurance extends to the carry* 
ing tbe goods to shore in a boat. So if an insumnce be 
of goods to such acftjr; and the goods are brought in 
aidety to such a port, though distant from the city ; that 
is a compliance with the policy, if that be the ussmI |4ace 
to which the ahipe come. 

Therefore as here is a liberty given of unloading and 
i^hipping, it must be taken to be an insuring the goods 
under tuck methods as are proper ibr the unloading and re- 
shipping. Here is no neglect on the part of the mer- 
chant, (the insured :) for the goods werer)rottght tntot^drt 
the l$th and were lost the ftSd Notiember. 

This manner of unloading ttnd feiAiipptng is to be con- 
sidered as the neceuary means of l^tti^ning that which l^ 
intended by the policy ; and seems to be the same aatfft 
had happened in the act of reshipping from one sliip 
tofhe other. And us this isthehtoron tourse of trade^ U 
Mem$ extraordinetry^f it was n»iintended. 

This is fiof to be considered as n su^ensibn of the 
policy, during the unloading and fesliimiipgfrom Oneabip 
toanothen for, as the >)ltcy #^td tateod to a loss 

EuiKM Tem, ao Xrea. 9. 350-351 

hi^eBtOg m tfie . uiJo^ding and reshipping from one 5771. 
Bhip to another, so ai^y meem tK>attain tbat etideome with* pci,!,^ 
intbe loeanUig^f the policji^ ^^ 

And accordingly, a verdict was given for the plaiiitiiF. m^YAii 
In the Easier term following, a new trial waa moved BitciwL»aB 
for ; but it viras refused, by Loid Ch. J. Lee, Mr. J. Ckapple, AMiMtAWCfc 
and Mr. J. Henison; Mr. J« tVrigki indeed being of a ^^^p^^ip^ 
different opinion ; namely, ^* that it was a removal at 
" the peril of the iMwed. 

So in the present <»se» the same reaaoniog will hold. 
And in general* what is Ksi/ntfy done l^ such a ship, with 
#uch a cargo, and in such a vovage, is understood to be 
^ffinred to by everjf policy ; and to make a part ofii,$B 
much as it was expressed. 

1 Tbeifsagebeingybresefn, is more strongly allowed to be 

done, than what is left to the master's discretion npon tfj»- 

Jhreseen events : yet if the master, exjusid causa^ goes out of 

the way, (as to refit, or to avoid enemies, pirates, &c«) the 

Insurance eoiUinues, 

Upon these principles, it is difficult to frame a ques- 
tion which can arise out of this case, as stated* 

The only objection is, ** tbat they were b«mt in a 
" bwk-s^ui and noi jk thesUp ; upon load and not ai sea^ 
*' or upon water; and being appertinent the ship, losses 
** anddanger^oiWe could not be included." 

The answer is obvious* ( Ist) The word$ make 00 such 
distinction* (2dly) . The inieat makes no such dietinc* 

MMg accidents, might h^pen at land even to the $hip. 
' . Appose a hurricane to drive it a mile on shore. Or 
an e^thq^iakemay have a like eftecl. ! Suppose the ship 
to be burnt in a dry dock. . Or suppose accidents to hap- 
pen, to th/e^ tackle upon land, taken from the ship, while 
apcid^tally and OGcaaionally Refitting; as on account of a 
hole in its Dottom,or other mischance. 
. Tbest are possible cases* But what might arise from 
an <iccid0ii<a/.occasion of refuting the ship, is not near so 
ilUropg a3.a(pcrXaia fytaswry consequence of the ordimry 
vyyag^ wbicf^.tbe parties could not but have in their 
d^ect and immediate contemplation. 

Here the defendants kntw that the ship mu9t be heeled, 
cleaned and refitted^ in the river of Canton. They knew [ 35! 3 
^^t tbei tackle, i^c. would then be put in the bank'-sau}. 
TMeyknew it was for the «a^e/y of the ship, and prudent 
tbi^t tbe^ <iu2<U be put thercL 

Had it been an accidental tiecessiUf of raiittii^, the sies- 

tet might have encased taking them out of the ship 

,^€f^jt^iiMma* But describing the voyage is an express 

iitfproui^XQ tb&usual nanner of majui^ it„as muchaa^f 

every circumstance was mentioned. 

352 Easter Term, 30 Geo. t. 

1757. ^^* ^^^ chance varied by , the fault of the tnaster ? It 
^£ij;.Y '* impoBsible to impute SLi^jauli iti h'im. 

y^ Is thfa like a deviation fsiH : It is e^justi causa ; whfch 

RdjAju always excuses. 

u^iUNOB ^^^ y^^ '^^'' Richaiid Lloyd^ being' pressed "in this 

AfiauaA.JNC£ ^J'g^n^^nt* ^81* obliged to insist, •• that It resembled a 

r^jUpAiav " deviation: which determines the insurance, and dis- 

Answer. This supposes the parties to insure from 
s. London and back again, knowing that the policy would 
be determined in the river of Canton : which would be 
absurd. Brides it ought to make a difference intheprae- 
ipium i yet the underwriters have all kept the praemium 
ppon other Ckifia voyages. i 

One objection was formed by comparing this case to 
that of changing the ship or bottom, on ho^rd of which, 
goods are insured : which the insured have no right to 
00. » 

Answer. There the identical ship is essential: for 
that is the thing insured. But that case is not like the 

^ . Another objection waa» " Th^t policies ought to be 
*' construed Urktltfy and not to be extended to cazes omit- 
** ^erf;" (which latter position is true; awd most be 

Answer — But that is not the present ca$0: for this is 

not a casus omissus^ but clearly within 1t)e view and bona 

fide intent of the policy. 

. The case of ffV;^era/d V. Pofe is no WAy slppUbaWe to 

the present The question.there was, ** \Vbether it was 

•« a partial or a tbtal loss, within the meaning of the 

" policy." In that case, ttierC: was ilotbing fixe4 by 

usage, or by known and esstablished construction; (as 

there i^ in this case :] so tijat no inferehee ; cap .bcf dhtvi^ 

from that case, concluding tb this. ' 

, Here the defendants knew that the tackle and ftirbi- 

ture would be put in this bank sau I, as the tisiia/, cerf am 

consequence of the voyage at sea; which tfA^y^ made it 

necessary to heel, clean and refit the ship in the river 

r j^ ^ of .Canton. Had the insurers been asked, they tAijst, fbr 

"^ their own sakes, have insisted they should be ptit thfere 

- < a$the best and safest method. They would liavef bail 

^' ' ^reason to complain, if, from their ttot bfeing put thtefe, 

'a misfortune had happened : in t/rat case the was^r 

l^^uld have been to blame, and by his i^iilt would'^^Ve 

varied the usual chance. 

They have taken a price for i^tatiding itf th4 plaintiflTs 
place, as to any losses be might i$ustain in perftxrming the 
several parts of the voyage ; of which ttUs was' known and 
intended to be one. . 

Easter Term, 30 Geo. 2. 3J3 

i 1 be^refore we (*)l of us who • hea^d the argument), are 1757. 
very clearly of opdnion, that in every light and iri every ^^lly 
Y^e^w pf tUi case, in rieaeoa and justice, and within the . ^ 
words, intent and meaning of the policy, and within the royal 
view (tud c;on|t^rap]atiQn of tfce parties tothj? co'^tract, jj^^^'j^j^j^qj. 
the insurers 4be liable lo answer for this loss, assuiiancr 
yrWeforci ' com'i^avy.* 

Per Cur. Let the postba be delivered to th^ ^Mr.' Jhitt* 
-^, fhAiVT;isv. WilmoiwM 

notpreient i 
Mof engafcd 

Anderson fTerituGEORftE. .atoMofSfe 

.,. lonbcom*' 

UPON a rule for the plaintiff to shew cause " Why »i«<Hi«* 
" a oerdii:/ obtained bv him for 161. should not be set Vwdict ob. 
•• aside, and a new trial ordered, upon payment ofcoiU^ Jf""?* ^^ ^. 
. The case appealed to be, that tl^e plaintiff had sold JuS^^^Sh^t 
goods to the defendant : who paidfor themby apromissory^ofttoaeitlier 
note of one ^op/ey, which the defendant indorsed. The lide^ 
plaintiff demanded the money o( Hoplej/ : but indulged 
nim with further day of payment, several times, till 
HyJey broke. 

The only dispute between the parties was, '• Which oi 
** tbexu ought to bear the loss of this note/* For the plain- 
tiff was paid ; if the loss ought to &I1 upon him, through his ^ 
neglect or indulgence in giving further credit to Stopl^* 

There were two counts in the declaration : one, for 
goods sold; the other, against the defendant as indorser of 
the promissory no/^. ,, . . , 

When the cause came on tp be tried,thoqgh both parties 
came to try the real tjfierits of the question between them, 
viz. '* which should bear the loss of the note occasioned by 
*• Hopley^s failure ;** and the pra1nLifll*s agents had the note 
in court; yet finding upon their own evidence, " that the 
*' plaintiff had given repeatedly further credij to fiTopfcy/' 
they resorted to a t&jck, and rested their cafe upon 
proving the sale and delivery of the goorfs, which never 
.was disputed. Th^e defendant could not produce the 
note : it was in the plaiotiff^s custody. Kelying upon its 
being the only gfoi^ndof the plaintiff's case, the dqfen-r o^j -1 
dapt had ifot. given him i^oxic?.^* to produce it. ^ The ^ » ^ 
f;ountstilUi]g;.it^ coul^ not be given in evidence: and the 
defenda/it had pot entitled liimself to prove the contents, 
for want'of nptice to produce it Lord Ma^field told 
them, at the. trial, it was an improper artifice ; that no ver- 
dict could stand, which was so obtained. But tb&plainljiff 
ftfmedto produce thq note; and had a verdict of course^ 

»It was npw contended, for the plaintiff, that the verdict 
was regular, and theplaiotiff lu no /quH: (oi^ jvithout 

354-356 Easter Terto, 30 Geo. 2. 

1757. iiotice, he was not obliged to product the note. Therefore 
ANDEiisoy the verdict ought not to be set aside. 

y^ The COURT thought the plaintiff had taken an un- 

OEQAGC. f"^^^ tldvantage^ ^onirAr^ to justice qfhd^<¥id conscience. 
That the rules of practice most Ue ge^f ^di/:' but he who 
abused them in a particular case, should not shelter a 
trick, by regularity. The plaintiff did not want notice to 
produce a note he Aadm courts and which he bad laid in 
the declaration as bis ground of action. Besides, be took 
a verdict 'for the price of the goods ; though he had receiv- 
ed satisfaction^ the |evidence ^of which was in his own 
custody and suppressed. 

They not only set aside the verdict; but set it aside 
vriTHOVT payment of costs : and declared, " the next time 
** thataparty should obtain a verdict in like manner, by 
*' ao unfair^ unconscionable advantage, without trying the 
** real question, they would set aside the verdict^ aud 
" make him pay the costs."^ 

A new trial being ordered, this cause was tried at 
Guildhalli the sittings after this term : and t!ie 
defendant had a verdict upon the merits, to the sa- 
tisfaction of every body ; the case being clear be- 
yond a doubt. 

C354 *l 
•* Rex versus Inhabitants of Bentlet. 

See this case abridged, in the table ; and at large, in 
the quarto edition of my Settlemekt-cases, Na 
135^ pa. 4^5. 

The End oi Easter Term 1757,30 Geo, 2. 

i ... * \y I 

TRINITY TERM, [3573593 

S0& 31 GEO. 11. B. R. 1757. 

Rex rcrwislnhabitants of Great ToRniNdtox. ' ^^^V^\\^^ 

See this case abridged ia the table : and ai large^ in 
the quarto edition of my SfitTiKMBirx-CASEs, 
No. 13(5. p. 4^8. 

ntbe next case, IZ^x vers. lnhahitavt$€fKctfnskam: p -ij^q 1 
which is the same point, and determined on the like U . •^ ^ J 
concession ofthe adverse counsel. 

' Rex rer*i/5 Inhabitants of Keynsh AM, TVieida? i4lK. 

See the last ciwc— S. P. Jwae, 1767. 

This CASE is also abridged in the table; and, maybe 
seen at large in the abovementioned book. No. 137. p.439. 

Weller versus Goyton and Walker. Wednetdaj, 

15th Jane, 

ACTION against tzco, upon a joiNT-promise: jWg- ^^^J- 
ment against Walkew, by default ; istue joined by ^T ' 

Goyton : and the plaintiff neglected to bring it on to trial : m^tV. 

and the common rule was obtained, for judgment a$ in onebj&fkoUi 
last of a NONSUIT. rule for Jodg- 

This was a question on 14 G. 2. c. 17. S !• concerning rocnt far the 
the court's giving judgment as in cases of nonsuit: and ^JJ^pfi^JJ^o. 
it arose upon a doubt of tlic master s» ** whether he could gQit s jet thit 
" tax costs as in case of a nonsuit : as there was a judg- defendant 
** mcnt by default Jir tAep/<«/rffjf, against the other d^jwinot have 
«fendant:» "^ r^ M ^ ^'Jia^aST; 

Mr. Lawson moved for the direction of the court to^^, 
the master, that he should tax the defendant Goyton his r 359 1 
cosXi^pursuant to the rule. p. C. Sayer*t 

LoMD Mansfield (though no counsel appeared on Law of Coftn 

behalf of the plaintiff) had a doubt, " whether there i"- See abe 
A 3 Dura. €S8»J 

360 Trinity Tewi, SO and SI Geo. S. 

1767. ^' cooLD htj^igmmi as in cMseof a nomuii^ in a case 
..WftLLsa. " where the plaintiff was NOT iioA/eta a nonsuit" This 
V. act of 14 Cr. S.c. 17. exacts, " that alljadgtnents given 
aoYTOjs " by virtue of it, shall be of tbc like foitieftad effect, as 
and ^ ■' judgment upM aoAftfi/ : andofnoolber -^($.3.) And 
WALKER, provides " that the defendant of defendants sbail, upon 
** suchiudgment, be awarded bus, her, or their •costs, in 
*' any action or smt where, ht, 9he wr tAcjr wooi»o vtok 
■' NOKsuiT be eniitiei tc tie same ; and. in. no other 
" action or suit what9oever." (§ 3.) So that tha potat 
seems to be *^ whether the plaintiff could^ in this case, 
** have been nonsuited at the trial.*' For if be could 
not, then the ease of a nonsuit </oe« »or here exist x^ and 
consequently the court cannot give judgment and costs, 
ABtn case of h nonsuit, when the case of a nonsuit does 
. notataH e&ist. Now here was a jfi^ment obtained dy 
the plaintiff ^gatns/ ofte of the defendants, already i bow 
then can the plaintiff be out of court 4ii ^0 him ? but i 
he is nomuited in this action, he will be out of court, as 
against AoM defendants.^ 
' ' Mr. Just Desc isoN seemed to think, also, that the plain** 

tiff would not have been liable to a wmsmt at the trial. 
. And to that purpose, he recollected and mentioned the 
case of Greeves v. Roll and Neexll; which is wroi^ in 
i^ai laree ^ Salkeld, title Nonsuit, pL 3 . pa. 456.* 
in catesin NoifHiNo was taken by the motion. 

B. R. temp. W. S. p. 651. (called ^2th lfod.)aii<i w 1 U Raym. 715. (Mb better 

Hall etUx' verms Woobcock. 

, . ' . Trifi. 175Q. 29, 30 G. 2. Rot'lo. 921, 

{LordCommisslonerWiis^orabsfnt^in Chancery,] 

wc^ci?m. Th^R'^OR to reverse a common recovery. ^ The error 
raon recov'erj assigned was—" that the vouchee, before the render- 
there mtitibe*' ing of thejudgmeht, died without inue.** Upon the 
a sciA» fiMia* • scire faciases previously issued against the demandant in 
t?" teMAi *'^® ^^^^ ^^ entry, aiid against the terre-tenants, Ife. who 
r^^fyrk \ ^^^^ returned to have ' been mummoiMd, i^e. andthere- 
L "^, J upon errora assigned sXifcai, the demandant, ccwnes in 
i and pleads *' that there isiio error r" and one of the terre- 

tenanu suffered judgment by default. But Woodcock, 
wboswas also one of the /eiTe-/eiri7nf«, prays dyer of the 
scire facias; and pleads'' KON-TfiNUttB, and that ^enry 
V . *♦ i^a^rayand bis wife are the terre-tenants :^ nnA prmy^ 
\ junoMBMT OK TiiE SCIRE VACiASv To tfais pka there 

is a deaaumer, by the plaintiffs in error ; and a joinder in 
deiaunii^^ \)fg fV0Q4<:fKk the t^rre-tenant. 

Tmi^T^m^ iO ami ^l 0». s. 3dl 

Ser^nt Pmkf^v Ulie deiMrrar,^* ibr Ida phintifllk 1757. 
in the scire facia99 and in error. hal l & t7^« 

Thetcireyirntff whicb itiMd agmnat the ierre^ienMti y/^ 
m mot ^gmntmtuHt nor it daiii^Jmtiii^ ; but oaly discre* w<k>PCqck. 
lionary in ibe coort, mkI oii|jr to lae if tbe tene-tenant 
hm II rdime^ errmn : but the ter»-tenant caanQt plead 
*' nmtiemuti' wd ** thai umttinrfmrsmi was tenant of the 
^* fiMMd, mt the time of Ifae itaitiog of the tcire facias*^ 
Thmtoiker may as weH pletd (io like maiuier) to aDother 
m9€jkeimi to be iasued agalott Aim, ** tbar a t ii t kd person 
** is tenant of the freehold;" and so on. And the terre- 
tenant's ift/ib will not beaUbcted by rAiijudsfment and re- 
covery: for an ejeOmini must be broi^ht, The terre* 
tenant cannot plead -in obuUment of the writ of error; 
bntait^tn bar of it. I Leo. 73» IdO, 146. Winn v. Lloyd 
n 80. I Sidaf. ti3. S. C. 1 Kt^ 54, 351, ^c. S. G. Siir T. 
jfieyitt. 15» 55. S. C Dytr^ 391. ff« is also a strong intima- 
tion *^ that the terre-tenant can only plead in bar of the 
^ wfitof error.'* The case of fFiW/i v. Lloifd is in point. 
And the present case must be taken to be a plea put in 
mefely for deia^i{nA that wm«) 

Mr. Luke Robituon eonira for the defendant Woodcock^ 
nfhose plea was demurred to. It appears uvoh the whole 
record^ that the pfaiintiils in arror have notitlt : and if so, 
there is an end of the matter. 

As to tkiapkM of the Urrg^Hmu^^ ** of non-tenure ; and 
** that Angary aiKi his wift^ are the terre-tenants'*-^the 
fact is mAnilltfi/ by tlie demurrer: and the plaintiffs in 
error ought to have taken out a new 9cire facias against 
3aigug and his wife, Tho scire facias against the terre- 
tenant is of n#€r99/Vy» and not rZ/icre/ioiiary. For the tenant ""* \^ "' 
to the pracipe is merely nominal : but it is the terre-tenant 
who is the true tenant of the freehold. And the terre- 
tenant moff plead many other pleas besides a release ; he 
may plead *^that tlie plaintiii has conveyed the land to 
nnoiher;*' or be may t»lead '' uon tenure^'' That " aic«>t? 
*' /o€i(i« against the terre-t<mant u strUUf necessavif^' is [ 36l 1 
proved by 3 Mod^Mi^* * Khig^tun v« Ilvrben. 3 Mod. ^Thtucate was 
1^74. jiwQS^ says, '• Uiai there f should be a scire facia% w«iaiU<Hini- 
•• boii against ti«j heir awd against the terre-tenants." ?!^ ' J!^ 
(Now here is ttme a^aiiMt the heir, at all.) Dper 3-21. a. i/,'o aufho. 
b. provaa expressly » '' that there ought to be a scire facias riiy. 
^ Io 4he terfnrtettunta before the court proceeds to an exn ^ The coait 
•• aminatiM of the eriois." 6 Mod. Wy. Stokes v. Oliver. '*»«'* ^ •» 
A vmt of eiior waa«broughttoreverse a comoioo recovery ; clJnry^in^ 
mnd tb«re ma$ a sesre }^hcia« against the terre-tenants, poiot oftamg 
O Mod. IM. Adams v. !Urre4$Matiis of Savage^ was a scire aut that it 
faesm by ttan ateinislrator* to warn insdiitie terre-tenants ^J^^^'^'^^ 
^f Saveige^iisoiMamng thwnO and>.ll», wasa plea inSfS^^J^ 

^, ^ r msdremmMelkshi^OipwUibcM^ 

Vj^l. I. Z 

962 Trmity Teftn,^ SOaiwitST Qeo. -^i 

SUJUtSi u2K*^'a^A was not suntmofied.".t \- H ]r , » , ,^- . 

vy But 5Mppo«Vgf the plea to h^ ba^vy^ttJiier^M a^itl^^r 

i«oni}c0c»^ *c2r bw terre-tenant 6e/kf^ %he courts' .^^idi he.,9ai4/;he 

+ Thiicaac httd^Aer objcictioiis too; But, , ., '\\\.^ \] .. 

•taods also ad- J V -I ijcfun MAissFjtc^D Said •he.flitd b^€if ;»,ff3^jrve 

jounicd. .... , them; tifl he should *^a^,wi)efi^per tfa^ ^9)«a i? 

the scire facMh wotibi boiii. . u/V nd ;be a^ked j jur. 

- i{oto750n\vhet^er behind fuiy afi^^nt/jiito prQYf^ 

" that the terre-tenant €$>Q}d;pl§ad, .a vtli:* Mi>(^ 

(Which Mr. Robimon could not produce.) -~ 
Serj. Poo/d in reply— Thrf present question is upon this 
plea of the terre-tenant. I deny that a scire facias against 
terre-tenants is ex dehito Justilia. However, we hare 
issued a scire facias ?ig^\Qsi one o{ the terre-tenants; who 
has suffered iudgment by default Dyer 321. a. cites the 
case of Lrygne v. Colyn '8t «/*, 7 H, 8; Error t6 peteni^ 
H V. Dyer, 65. judgment in assize. ♦ The casein' in b Mod^ . 20§. ai^4% 
J3«» 375. 3[oa. 134. are not tppHcftHle to th^'preseivticaae.': thSt in 
Ail s; P. but 6' Mod, 134. was in order tobrtiig alt theto*terre*tentofci 
iwt$. C. hi, to m^ke contribution. ' ' ' ' -^ * - . l>.:. :^t. . 

' jf/'they have a rchast to plead;.l«t them shew; it: if not^ 
it i^ plainly a plea only for «te%. '■> " * v- , ♦. - - , 
+ If.XJatibew, ' ^^^^^ MAiis^iELD— ^By thfe'f estahiisbtd method t9i pfCh- 
111, U«,' ' cecding'there'"m«stbea»e/tvjQici^Ggaiiistttie(ciTB^ 
accord;. otherwise, indeed, iti an irregularity; butffo mord .r't " 

' "^f^he terre-fenint has' ort^^-«)nA>)rtA4 iA^iiMtff«r»r ^AU 
ihii Ma can do, is' only %hat AiH^ 'Miicms^^vria may do^; 
Vit' produ<^ a reltbt^c' iiffh^(n^^ bMt heiba9iiolliiiigiado, 
. ' • '^ • ^h intere$l!' , T^ereftff^lMfe Km^tJte' be 9imqpeml\ oaUetf 
in'thlsfcdse. '' - '"'^^ ^vvy.'.Via TMTiv. "v'-r^ »>r..: -' 
' 'As'te ttie other objdctlonsjit'is ^bt > proper jtormedttte 
^it!h't!ienrt/pf. ' ^ ■'' *^\».A:\ UiUi^i^^r /v- >->-. •.• b.^h 
r 362 ]' TMr. ioi^t. Deifj^ojl xi&a(itrfr^ rJ^k\%ixbt^\^n(Hire 
$ Which was facias on the t death of a party: it"ir>tirfjiAa«itarei>/fcrifln 
^?5*{«'" ^agaiftst the'tcrre-tettant; 4#h6firir<)r|wirty^j(<>^Ac rc*r^, 
A lofl'i -and 1)36 ndchttif^ to'do '«vUh*th6»nHltef/ihiipo^/lb/'i«^«rf^.. 
-^ lii'CatfhewWX, \X^,mi^:E^^ Btmlmilm'sm^ti. 

tHd^tstire fnciasei i\p?Ax\i{}'^i^^^^^4ittfa\mt;;\x^jmA^bv 
L6r90hV jVticL- lUftiio t^feo^tnioretlonairyv'Awd, »t^»fl to 
*^;l)6'iincti juris; but yet lid^baveitMiittheomiMfeilind 
V- n^tLz\'dorfrschft/ie coiirti «liUli'«henalb(rf \OOt ito fcfojfe- 
^^'pm^9coiti:' AmP the teiTO^tnmnl/.c4M^oiv^|>/4«||&^ 
release of efroft ; to defend bis own possessionem lf)rj(tji)e 

ilAt^ ttbei/thji«e.;-tetrefMlMb 
^ v.Rtyro. pleid^ §' thi'ee'^i^^nr fteag; whtth.S^enenrejtrtfid 
I5»5&^«C* as frivolous. And so is this i and ought to be rejected. 

Ttiiu»f>T«rto;'90r and 3H Gno;; }i. 368 

AMHt J8 {i^eiMtOM to^tiltfr iDtbibe errors ol^ted Jio VJ^. 
ill the record : for Mr. Robinton is only/icouasel/iyr W^d^ hals& & vxi 

'^^^MrfJudt. Po6^£a w&i^ clearly oftbeAame-opiauMi^ -. . ^Bqou^aciB^ 
Here H^oodcock cornes in,:Ma says; *^ be iias na </)i^^l .,. , i^f ^ 
^' ifiihe laAd." Therefore becertainty /catmotbe beard, r ,• -•* 

i^^^fijctidQ Cbtbejtf^me;i/;aiid'tosbeiv /iw^tD be erro- '-i.^* ^ 

9l&>ui : tkis has 'vko part of the ititention oflbhe notice 
l^ttrirt tiim by the sci^faciau . His plea is insufficienl : 
tUerbibre lie ought to ansvirer over. 

Per Cur. Rgifond* duster-. 

Far, {Spinster,! rifritf/DENfr, 

|?RROR to reterse a judgment iq ejectment. . /' If one defend. 
"•■-^ Mr. Serj, Martin for the plaintiff in error, . . tntin eject. 

Tbis was an ejectment, wheieia Deun was plaintjfF, i^^dfe after 
snd Elizabeth Far and B^ccuh Savil Fur were defeii J;. '"SlJf '"^ \ 
ants: and issue had been joined between the. pl^»"tiff JJ^^i^J^j^jj- 
utid both these del'endant$. And day was given to.ihe iau«tl>esu^- 
parties, ^c. At which day comes as well the plaintiff as gcsted oo tie 
the said Etizab^h Far,- but the other det'^ndmi^ Hefiec^afi ^5"- 
Smfil Kir, dolh mtcQtnfi. Afid the sheriif dpth Aiot r?-S j^n^^ * 
turn hmwrit • .• 

' Then the dtfti/i o/*R£ai)C€^H Savil Far is syoQBST- 
'£ii upon the roliriii the u^ual U'ay« And u new venire is 
^irarti^ dd^ try. the issAi^ against the surviving defendant 
BU»: F^er.'^nd. ii iafuHb^ awarded, " that all furthpf f sfjj 1 
•• proceedings against Keheccah Savil Jar shall cea^^'^ 
THeifritafetsfoT^itfae <nBctor4rof^ ih^iMstea Atiheasi^ixes'; 
aud the recovery against Elizahelh Far. Apcl.,th^' jti3g» 
TO«it is' '^' ^tbat ihfi plairttyiS f QfiOiV^^ |iU t^np ag?tins^ ,:the 
^^-f^&^fhubifii^Fan\:ryi r .. jo/^ v. ; .: ././ .i- ■ . «/ :,^;7/ •/ 
•'>^'hTror^asdigfiewl*r^^Tha4 .ttier§, fs, no ^jcoi?a of j|^f)f -• it 

Jtfiorde^^lo^giyd ttehoj.'feppoituni^ of objectmgtoi ;tlie 
^S^iLuilneeS'}^ and.*^ thaftiiidgiiKent i» give^i tor jtbe plaintiff 
^«* betoi^, f^ereaan itrongihtti^ have been,g^yeaf(M; tl>e 
Oft'd^feirti«U'N ThMrfa-^ffrtwoTf issued, to certify the 
i^fconl oJf ^niii pritoiArWljiffh was certilKr4 ^cor^ingly. 
^:Ai&d'^ j^4wifo ^^iiwrff^^fr pleatled, by .t^^.d^ftjnd- 
x»< i^ldg^Wf tt Voft^s^ror w/eA JbtQMKhA* he saj4, ^W the^ 1^ 
probation of the^ccaJtit MJ^<^«^j3« op poosent t&,..w^yQ.a 
3ttldli«h'>tl^re«iai:arfdst «j*i4^!W^i>t.'i ; ^^ f^\Mifffofs 
/fao4ii»0n^Ot^./aT«'/*..toi(fc^ ,.. ,^ « . 

964 Trinity Term, 30 an* 51 Geo. 0. 

rAiL ^•' ^- ^^^^^^^ V. Mortagk. 

y,^ •' And then be proceeded to woike bis el|jettk)tiBs vis. 
tyEUV4 ^^^' Tlie nm prius rati n^^rcmeovtB^ iifilselt 

'2#ly. The* nisi^priur retord ;i^flfteB*iiiatemrtf from the 

3dl3^ TliJs may be taken advantage of, a-fteh rer- 
dftt. ' '■ ' ' ; 

4thly. The omission of *^ y wrf* ^H^feMs mil cttpiat per 
" ftrere," as to Rebeccah Savil Far, makes tbajudgmeiit 

5thly. The judgment ought not to have beeBfor more 
than a MOIETY of the iandgdemanded. 

And first— *the death of Rebeccah Savil Rtr^ oiiepf 
the defendams, ougiit to^ bavebeen suggeeted vpon ihef 
msiftius record. It t« not sufficient that this be mention- 
ed in thejurflto-part of it Barnes's Notes, Tr. 7 ^' S G, 2. 
C jB.-/b.8* fValdo V. Htirrison: where Xhejuruia in the 
record of nisi prius was amended. Which was done 
ijpon th6 foundation that the jurata'psLVt ofi the record 
is not an award of the cotirt; but onlif to annex the pro- 
ceedings. Indeed Rebeccah Savil Far is» in i/m/ part, 
' said td be dead: but it is only in a farenihesis^ And by 
way of recital. However, that is not the tj^cz for a 
su£z^stion of the death qfparties* AiTd it ought to be a 
Juti hnd positive assertion i for there are to be proceed- ^ 
r 364? 1 If ^"y special matter' bad been suggested, about 
awarding the re/itre out of the common course, a copy 
must have? been given. 1 Strange, ^hn BtVcas v. Citjt/ if 
London. ^ *..-('*■ 

'Th\6 recital did not at^hariietfie judge to try the cause 

between o>z6 of tte purtifee- only. ITiere ought to be a 

jiew r«i/r€ awarded ; or it ought to have been awarded 

aptainst ^oth defendants. . For here is no proper Suggestion 

' of the death of one of the defendants^ 

Thh jurat a is rrowg. 2 Hawkins P. C. 290. 

The death must be suggested. B, 9JV. 3. c 11,.§ 7. 
But a recital is no suggestion/ And this is not a discon- 
' tinuance; but a mis-^jW, j^whiclris.not Irelped by the 
stati of jeofai's.) 

Secondly— This nisi prius record raraes materially from 

the pk^iiJfdU :. for it is not between thvisofnepAtties. And 

small variance* are fatal. iLd. Raym. 32p. Doieyteen v. 

Chancellor, Palmer, 37S* YoWftg v. ErrgiefM^ C^. ElU. 

'• 310. Lofig y.'Mitchelt, Finei^ Jbri&ntent^ 553, Pf.8. 

'- CftttleUn-or. .: ^ . * y. 

. 9ti. Ju$t. FbsTER*— brother, Vii^Eft ii uror an niiMo- 

W(V- Cite the cases tlmt fHiser jdoiei .• MaTyoa may .tlo« 

*Serj,itf(irr>^ proceeded— , . ; ^^ ^^ f. - > 

Triuity Term, so and 31 Gt0. Q. »G^ 

FourtWy^Tlie jiidgmeot is mperfeit^ without these '^ * 
words ** quod querrtis nil cofiatrSfcy v ' ncjfx. 

Lord MAMi>#i£LJDr^Wi>okl you hav.e U, •• t^at he P^^^ 
** shall take nothing by Uie judgment, again^ f 
*' dead persoo?" However, it i$ in the entry of 
thejudgmeat^ ''that further proceedings shall stSQr 

. ^ ^^fist this d^d person*** 

Seij. Murthi'^ 

Fifthly — The Judgment ought o«/y to have been for. a 
fHoiei^ H>f the premises. My ajgunent arisen on 1 1 G. 2. * • See c. X9« 
And heremjgA^ havebeeo t2WO Mpana/r secords. Bojtk^xe 
made defenclants by -the rule. Itis said in 1 Fcntr. 355., 
if every one do Aot appear, the plaintiiF caooot proceed 
against the rest. And thougli ejectments be the crea* 
' tures of the court, yet the records must preserve as re* 
gular a form as other records must : and »o it is, even 
upon commoQ recoveries. 

Lord ]VlANSFi£LD-N.4^f it be wrongs to^ward the re- r qg . t 
covery of the terin against the tenant; in posses- l- J 

aion, how would you liave Jiad it awiarded ? for it 
might have ^beea very inconvenient to award it in 
moietie$.£izn^'it~Perhaps tbe proper method may ba,to ap- 
ply to the court wbese the judgment i8,''that th^ execution 
** should be t^en out, of such part only as was ,the|M)s* 
*' session of the Ihwg defendant." 

Serj, Hemte09U9im^ i 

Firdt,-^Tbe »»tf5 mcond is perfectly right. J^ven 
before the statute of S, 9 tV. 3. c* 1 1, the death of the 
pafty might be' sqggested^upoa the roU* And here 
it is doiiQ, upoatlie veiiy next appeaiance day after the 
death. . . . , 

My brot^ier Manh$ says, * It is only done by way of 
*' recital upon the nisi prius roll.** But it is not necessary 
to enter it upon the nisiprius roll at all ; unless to direct 
the judge, bttween whom be is to try the issuer, and that 
he hhtjunsdictitmXffiJty it. 

Secondly, Here is mi material variance: whereas his 
cases are cases of material variances* Indeed here ia no 
variance iir alL 

Thirdly-^flere is oothing to take adtantage off . 

Fo«Hthly*«-Tbe judgment is perfect enough. 

Fifthly '^Thejiadfgmeti^ must he/* to \ recover ^e («n».** 
Indeed the plaintHf musttalie care td take oat exnution 
for no moro than he has a right to, by the recovery^ And 
many of bis objections {eMen ifib^ had angr thing i» 
tbem») are^irr^dby ibe statute.^ 

Serj. Martin^ in reply, to.the swie effect* as be^ir^ 

XiO'rd Mansfield thought there was no difficulty in 

aW T^nfty ^fehii^ 'Maud 34 Geo. ^ .' 

l^^Jf ' tlitf ()J5e,d«8rii •^:Tfi#»fi retftcfbU «ndceM w4f «. ' * Vor\ 


jeJk'^' the Hvjng defendant only.' *^n-*o H ... , ,,,, ,, 

j V ■, Vi«cKVlV6^a^gfe^ftenJ%«idtliei#«d^\iurf tb^.pro- 
^^fl.M J, tj<^fh^^:sfltt!# oife«'of ' tbe/^ defawknta to be (fel4;-|in4;j 
y ^'/ l^seVe i&^afl'^iit^d^for'rtie? prt)CTejAings to if/ty 99 to ^/tifn 
' ; ; r . "cleffiridai^! ;>nd to gof oi^ againstthe vther ow nyj aad. tl^ ' 
[ 35^ 3 jai^' iifin^ftrded ^s agaittst the Irving one^tbd Wberiii;iWiy, 
dead. Both were alive vrhin the iagpue wtejoiiied.»a puid • 
it U jfrt^rZy aw&rded tipon the iastte roll r and. ll€k»o^F- 
Ifedeed. Arid the tfisi print roHis only foi' the dire^ion 
of tke judge, to try It: and it is not ti^versable oo this 
roll. And the two last points are as plain. 

'^t^ejudgmefiiis right enough : and the execution rayst 
• be taken out according to the right and justice of what is 

fea/Zy recovered. 

Mh Just. Dbnison held it not necessary toenter and 
transcribe the very words of the suggestion,froni"tbe plea- 
roil, tipon the /mi prius roll: and all the continuances ; 
but ow/y eriongh to shew and notify to- the judge, what 
issues he was to try, andb&tween whom. It is as pro- 
fti\y put in here, in the jurdta^ aa any Yfhere else : and 
It could not be traversed on the nisi prius rolU And here 
'is iio variance; but only an omiMion of what was tmifc- 
cesitry to be put in. And there Auraa no* need of the 
" qutrensnil capiat per breve :** there ia wficieni mkhout 

it ' •' • 

And as to thi 6th exceptionr-they might be joiut^ 
tenants; and then it is strictly right. Bui if not, the 
plaitttHF reeovets M^ terfn ; and «he miiit take car^ not to 
take bat txecution for mbt^ than hcJ had right to recover. 
Mr. Just Foster was very clear in concurring. 

Per Cur. unanimously 

JuDQMENT affirmed. 

mS^SiVr"' " ' ' . ;BAW,quitaip,;perff4^C(^u^ ,, , ; .; Ifi 

lul IfcT "^'Jf^it'fiker^ shewed cause jigafijiSt . q iui^hing h^ Htil 
iJ formation, qui tarn, for ^xer<:i8i'ing' thfe traSi^ 6f i* 

that the de- ^^raUoh^ ,)tirl>ay be a village. ' Ifof stippdm ,, 
^dantdidnot he J>ad cited 2rK£bfe, 3si /?erV./J^wr4 /{l&i^:^a^ 
liiriradrar wliitircase is also ' reported in rilifoS. 66, S.C: . 
the tliuc of making th« act. 

T/^^frt; aittdni Pit*. SWr&ft nBulihffVgh aws^^ArRjalb 1747, 
reports of «fae maaca^eJivftncbi^vtm cfted % Mr, C%4^ ball ^ 
only<>ut WfVJfjrAfc,) ]« Mm^fyflikAtr ^U^ged ttat,,tbpar ^ v. ' 
are inconsistent with each other,;. ,. , ;■: ,({ cobu8# 

Mi. Ctapton 4Mirl§^Vh&mit fi»8 ioteBdad tmra/y ! ^r r 35*^ -j 
life beneiit^ of corpansHmni and it baft* always been # Raimfonl 
takeft, >«that St Aoe^ mt 'extend to any W/^^,. or wy ihoaght 
•* filiate /(stsJthan* « ctty> jnavbeti^awQ^ or cc^omtion*" oiherwiM, ia 
Aiid-it ^VKniM beeMtgemniyitfcwveHifint to the inbabitagta ^ ^^ ^^' 
oNn dilMnt; retired TiUai^es^ if 4t did. 

-^KOt^d^Mi^irwtGtD-^Thc^iieatiqn 19 9§c4 now. upon the 
'*' Wkknce; bat upon the laving the offence. Har.e^ 
ytftii any attthority, that it may not be laid at a 
parish ? * 

Mr. Ctdfftm^Hone hut that in Kebk ; [viz. i KtbASS.) 

LoRto MANBp>EtD«^Ti)€ nothing in the act^ that 
restrains it to be laid in a city* market-town^ or coipQ- 
ration; AttA this layitig it in* a paruA will not afieci ike 


Mr. Jast Dknisoik expressed him&cU in terms exactly' 
to^the same effects 

Mr. Just PosTBft^Mtffl[y trades are carried ou in til^, 
Uiges: mbsttrf'tbe-ofe/il-itradean Y&rkAhirt^ is carried our 
iathetwAffjvt. . i 

Mf. C/dPfton offened.another ^meotioo ; vis. that it w&^ ^^ Objecttoa. 
notaverred ^'tbabhe did nM then exetcisethe trade^*' 
(ti«m\^ly,at*th)atimeo£ikiaking^4ictO But 

The court (without amy hesitation) over- ruled 
tbiS' dbjectiOD. ' Sd thatv (both olyectionfi be'u^g over- 
rnfedj- ; - •...;.{.•. 

* '' Thc Roci&'^tosbew; C2|uae why the infofmat!/(ii^ 
*^ should not bd qaashed/'. was i>i6cuAa^^B. ' 

tl. Norton and Mr. Wynne moved for a prohibition to ProbibitLon t( 

the consistory cJourt of York, to fetay 'their proceed- thespMliaif!' 

against Tarrant f the present parish-clerk of St. Osith ^^rii^^f 


r/i^^^ ' •• rt.Ml -a. . 

The o^ce. of paf Ifili-cl^ck /is^ of a t em^otr At* nature V 

a^^ t)f<e^;wi..sireor TEHpoiiAr. cognizifnce.'. There lare 

^0 cm^ ih Sir../. Strange s TL^poviMi 'to 'tliis jAirpo^; 

5.Jt;5»>^^^;9«,.^^^^^^ and ^ 5^f^a;^; lljrti; 

•fiHi^^W^ ^' ?\ ^^^ there is aa exiJresscas^' in 

i^.8^^.^^; that the^odiceof |)arishM^let^ is taj/VM.\i^ \, l;',;'/"'^ 

' ? .'MJJ^I' IB 

.•o : ,„ i»> • „ 
h .)'H j> 't 

TARiiAKT privation. ^fi^ i. *{i ' ..» if .17 • '*:»)», 

IIAX AT« tb^ wbple l^^mhi for dr^iQHwi«|f»/dati«g(>iUvstid iK^viae»^^ 

appointea Jarmni in Jiib iyvw;^^a)Mt wb0m«l£rari'^ 
HMied, in 'tb©/C0»disrt;oTy ocwt t#fr Y^hv «tawe tlwiav 
' w€0 aiu^milon; aiid<«b(y ^i#f^/f^ro<Naedjtog to realykte" 

H^lAy* And all ilM^As «pgg^fiiod< U|ion wliUiUft/it 
riile was granted, to sbewcmofr^ »,AM^m>y9:MTiiMiams 
was to have abewB cauise ; bi«l^. bejtt^ fMuifiad iiak. it 
wes too strong asfainit bifn> i^ wa>^ «otir<Ml^ the 
court. Whereupon, 

Tlie RULE for the i^ROiiiiBiTiov 
[• The office vas mad«>Aeioj.«fr».^ : 
ofpansh^lerkis t«mporftl, am) therefore fhe V^Yit tb If SSi <i^ 4<^eilDMMe iiil)i« 
M^desiastical rourl. l%ii ^ ttotfanig ibat tvliat iiai Wiea oafonlefteeiiiiBaA keiwe. 
Sec alsoCowp. 3^0«] •.. y 

Monday, 90th Rex versus In HABITANTS or Uy*CVJ*VE«, 

June 1757. ', ' J . ; , 

S^e til i« C4SC 4ibridgtd, m the tabsce ; and aoT ^bn^ 
in the Quarto £dition of my SBitM^Mjetvr^ 

"^ • oA«B«^ £fOi Ida. p^ 4ad. 

Monday, «Olli ^^ verSHS l^HA^i'f ANlt'b^ M'riWiCM. 

June, 1767. / . ' . i 

C 373 J Sfee 'this CA8£ abridged, W th^ TAntE ; and at farge^ in 
the quarto eailion of'rifiy'S^tf LtMENT-CASts^ 
I No. 139. pa. 433. ;y , ' ;/ ' ' l'/^ 

Toeiday, 2Ut .HnitllliS ««r#HS Hcht>ba<Jh; ' ^ '' 

June, 1757. . ^ . • ' . 

«kn!rJkIS^ fyiinS w^s a caoee in the civil paper; and came heftj^ 

Wiher^ipt *• the coiift, npon a cast te^rVed ftr Ihti ^pin^AV'Of 

oAnooey, and IMe court, in an action' upo\i a gennatiiiS^bitcittts *ssw»ip- 

moFa»in|rto 5,^, in U'hich the plaintiff deddrM tj^)6nt«rb bbtn^s; t\ie 

M*f^i^*^ II fi^'st ^T ^^hic^l Was for money fent dnt Hdvii^td Cf ttte 

Sq^t A P**''^^*^' *^^ ^'^^ defertdanfs r^ijueil; thfe;flecoTid' 't^- r<W 

co'int for money laid out and expended by the plaintiff, at thfe ^*/Wl* 

money lent danfs reauest : and thfe qlie^tion/upon' the ca^'stawd, 

and advanced^ ^^8 ^^vietiier the evide^ice snppdrf&dUe'dedlt&tifhn:^ \ 

The caise stated-^l^t. That a.nbtife of the d^tigHnik^ 

t^'aft^wtocdd in cTld^nce t>y ' tflife ^la<rtjSff ift t?be fdHd** 

iftg: W^rdS : '-♦ 3d Ikcentb'er 1751'. ■ ThBll i^t?t1xfed off Aft^ 

-«* ff/i^M ?h« «ii*n Of igl. 6u the heti^lf of my 'gmihl^^ t 

'^WWbhl prowl»e to bte ^aW/TMWe jf<?/-, etocfettitoid? 

*' WiltteBSiiiiy imoibSiMmma,*^' IMi evMMcb #w 1757. 
produced in snppoit of the firoteount. '*>'>' " ^ Al^ltt^ - 

coaingf 10 ttevplaittlii|iby tli^ 

Hiiptf,. uniair tto tffeftiiteit' «rould nigs ^a 'ivbeicftii 

W4i»Miipowille;dflltedliifc^0«yotevtfa^^ tntlByMfiJ • 

'^ 'MfV AoTM^AI llMMmert'nqiiM:<tf thega»dMiir, thr ' 

^ fwprkauMi uraniing'tiidiKjf gratijr, ibr the woik a« «lM • 

*' fWMdteiisefti tiim kr to certify tbat it 'iaLf/^'in^atrnlmr ^ 

"'you pay to Mt. Da0id$ont on the aeeount of^ Master 

'' iWJbr, for liM w^rkmenT* um, the' tarn of Idl. As 

'* witniefiB my hand 8. Hamtbach:' Amd 'tfnrecHpt ivm 

given Jby the fiaid IktttJc/jiH, the gardener, to tbe plaintifi; ' 

on the plainttif's paying hiai ibis 161. Verdict Gor thfi •.. 

plaintiff*«<ase saved upon this queation^ viz*. " wMb^r . 

'' itieMUbMe waaaa^iiBii* tosopiK^itbe ti^^ 

Mr. ujs^oa for tbe plaintiff-^t be first count is for money 
lent and advanced by tbe plaintiff, at tiie defendant's re* 
quest And here is a note uader the defendant's hand 
produced; acknowiedgtng tlie receipt of it, and promising 
to be accouwt^tk for it ; which is tantamoiiat l)0 a pro* 
nrisf^lo TsAx it And ito being added^ '' oatAs bdudfof 
" my.gnmlmaft''^ Hakes no difference:' >for theve is no . .. 

remedy against tbe itfant. Tb^MforB it ia^ an miginal, not L ^ ' ^ J 
a collateral undertaking. In 2 Ld. Raynu 1085. Bf$cm^ 
V. DamaHf it is i^^reed " tiiat where no action will lie 
*'- againBt the party himyelf, ^inupertaHen for, it . it an art« 
*' gi;io/ promise." In the case of Reid v. Nash, AL ' 

24 G. 2, B. jf{. and I>. 175^, 24 il^ 2aO, 2. it was . . 

settled accordingly. AjpjJ^hefe is fw rtmtiUf aguinst the 
in/flMf, upon this note. v 

2d Question. Whether the Other evidence above stated 
was sufficient to maintain tbe second oount. . 

Now the plaintiff QOuUI iiQt4av« matstained an action 
against the infant, for this money, no mi>re than for the 
iormet. IBiep^aintiff jeefui^ ]i9» .advance it«.4iU ^tbeidt^ 
^Bndaota?so|a}tl|ii9>/' it' is m^.refued tiytt yon shaU^pay, 
^' .0^ the >^^w^ pf Mas^tei^ Hillier, iq Mt. David^an^ tm. -> ' ' . 
■*' 4jiie .ifoickmea'stiW^f I XfeA'* . , And .this is iwi originol 
aiadertBlMng-'that^tb^^ef^ndant will pay. the «Mey:*' wa« advanced pa ib^ aecottoi;*a«id.Qii«iiitii>fr tfae , ^ 

defeodasit^- .,. / ...t 

• 3VIf4iAS»|Mc<«r«6oT.'tlie defendant*-^, *;•. » ., . » . • 

The. question is, how far a general in<icl>it4itUe^f$$immp$ii'[Bnli. l?ir.] ' 
'w^iUAie upon these ft«:tB, and ^bis ^videnoe horongbt to 
aupppQ^ nbanu ^Ihis .^a gesteinl MetiMue maof^v. 
vii'indAikitm^mseitmpsk doessnet.lie,;hat 'wiien an m^wi 
of «eM£ will tiai 1 IM*eld,M. lifard'siQase^iis expresslyio* 
It J[4iL.^0)rni. 1034, ^iOU, Smth. v.. jf^r^it' if^ddMiftHf: 
** iismmfmt doe$ ant iiq for monqr w«m at play/' I ^r. 

37a TiiiiityTditt9 90iftdr5ll5ed^3ir 

HAftBiit. r** no^^'' ^o more will it, upoD a calbaini^idtSi^Mu&\, 

y^ ,. And therefore the present it icnrtf fhpef>'€iMaU^ if niie wi- 
uvHVBAttBr^^**^ ^outd mpport' iti ^im eoniBittiieteoiuMesbilufe 
Bioney kai. it cannot be *inoii0 thnti . tfvjdenbe of ^^mftf^-^ 
^ Mtend^TOnuBe. And why Will -not aue^littft^ lie a^pi&pro 
fAenr^oir.^ I thitiliitm<^ jtoMltkaaf^itid^aaiacllg^ivrkiviki^s 
; the cases^of Buekmyf v. DornM, in'l&'ZNitJUjrm. lom^q 
and Atfo^v. AXosA, where Nosh pibmisedb to<pay ^Mb^nf ttaiT^ 
plain tiff would withdraw his meofti : '^id| vta^ infiiiei^^ 
an original promise.) / " ' . ^» i ^ *- ' t .-K * 

' Secondly, on the 3d count«*4he ikita^ etiiy > impirtfft 1 1 
eetfijicaie*^ that the money is proper to^be paid;"-^^ - 
general indebitatus assumpsit wittiie npon tJiiK.' GMeii^ 
no evidence of money lent. 
Mr. jtstott^ in rcply-^ 

1st A note of hand acknowledging the receipt, and pro^ 

mising to be accountable, is certainly evidence of money 

• Itnt. And it is every day's experience, that notes of band 

r 375 1 ^^^ gir^en in evidence upon general indeb{ttlius assutnpnie. 

'- -^ And inserting *' on behalf of my grandson" it makes 

iio so^t of difievence. ^ Strange, 955. TkeifHts v« £iilop>^ 

the addition of ** caah ier to the. York Buildinga^Cotapafiy ,^ 

was holden to make no difference. And there is no pji* 

'* '•■ vity between Mn Harris and the. in&iEitt nor will any 

actic^lie ftgaiast him. 

. This is «o^ a promise in aid^ or a eo4M^i^f SiQ^ertakipg; , 
but a sok, mbsoUttt orsainal promise^ /T'herefcire 4ie- piay-* 
ed l(bi$ lluepmea might be dislWered to tjberplaiiitiff. ... 

.Tl:^^qMestjoii 1 ta whether tlierie^twi^^wf^jic^ <if^«<,^q^ 
contracted 1;^ the d^fettd^nt^^ps^fihlai^lt^ipilaipt^f^-^ 

The d^cWmtion- coogists ot*;fff(^.<x)u|iU>*^fof;,tWM,dift- 
ferent debte* And^therecMMA^ bcficjeiK^r .^49HPM ^ba^ : 
the first note is, of the. fof imw 4w*^ ^^Al^^^ to^^h^t^di-rr 
fa^e J9 a TnaB8i9i|«-faDU9e be)9ngi;)g^tQ ;)f^.iQi|int< .i^ich 
mansioB^use.haBagardeniUtJkHlgMgl^Qit^ U'^ghtnof 
beiiec0f|«tfy{ie negacd toj(ibeiirfAWl(jl5i^Wtiw-af4pircuni- 
8taiiceB)t0 silpport this ,gfir^ft!i^ l?!vfemb^iBbfc )>e^p'<'«- 
ii<it:g»rdeii i) wd no ac$ip» Af?i« lifh9g#»at*^ WJ&nt but 
forjMeessark9.< Itdo^s^npt fippew;ai>ajj^jtl«i*ilfej«^ could 
beaQy4«ilied5r:^agaio9ttb4^ipfie^7->x < - ao m-^ 
;.Xom^» brtngian imMif^tus(tm^n^fJf/l>r^^,4l^l^^^ 

diBqh>ra(tji9ii(.K-:.'..5 '.t»\* ' In^-.r -"dw^.:' Uishtnhh o:;* 

This i\i;m4^ to be:,a; c<Mer^l .w4p?J^kj»a .j^iM^u^ . 
afg¥#M3Wnft<|u|<^gu)air .^ ^^IJa^iJll un^alpqgB, oe- 
Pfin^k m&rely, HPWV th<e wwt oC isiup\f:ien^:4^njm tbe 
terms'' ^fil»nVh Wl4S(«>tfijfew/^^>!(rt*^;««¥^fe(.t^ 
bfr tiD-^(»ril» «*qRit:;*W-K-yA^j :H fi^t\j <fif^ o»*«*^ 
undertaking. And the jury have found these notes to b« 

Tiiiuty Term, go apd Jl Geo, ^. 376 

/otfli ralher tha^ of ^oAfa < • ■ « • 'ha»»»' 

Mr. Just DsMMOK c€«eun«d«*'-« -> . ' *•> ^^^ 

jSureiT,rthi8 ootiktis mfew^ of mon^ icst* ^"^ ^ imoiTBAeii)' 

tWlftGD tbe platiktfjl and i dtlbird^t> ilita is certainly .anrn And that 

oiipNui/,,aiMlQftak|iig^: mid tbe gnondy ^leaa' paid'^at-tiie'diue wu #«• 

' UftqMi$k. AndtbcMisik>tmTity!bet^eett'1Ji5^enBinedopM 

some moiMref like tinS( . ^ Here i^ eothtn^ tike a (toUiElte* {% q^ j yf\\g^ 

ralMyweslior psoonse: kiftanf«ru^ifia2andei-takfiig.: ' •'^•905/ 
Mr« Just. Foster likewise coQcurred.'- • 10 . Bull. 981.] 

: Ttie Mw/. was 110^ iioMe^ and therefore it cauUnaihert, [^ 376 J 

co/id/era/ undertaktngi 'It was an or^inat ondertakiogof . •. 

tbe defendant^tci fiay the money* 

Per Cur* Let the post%a be delivered to 

tbePLAINTITF. - * • : , • 

' Hammond rer«wsBaEW£R. [ ^ 

THIS was a case for the opinion of the cotirt, frora the-^hc town of 
: Swwwf assizes, befcpe Mr* Baron i^mj^Me; BaUelexciud- 

^ The case states that an act of parliament wajf'made in •^®'*K°^ *^® 
«{ G. i. {c. 5*0 for repairing and wldening"thfe roitd from ie'So!*^!*^ ' 
Flimwtll Vent in the parish of TicehursT in'the ^Unty of e. 54. ' 
StOiaex, to the to#fi aivd port of Uastwg in the snid coun* [See s Dun. 
tyt'taddlt stafeg'inany othef m«tte!« nbtwoirlhttotihg? *^*-l 
as the single <}uesti6fl was ^ Whether thid it&fitv nfBaHel 
•* was meant to be included or excluded** " ' 

4'be question Arose upon that part of this tunlpik^act 
which^^Ve" directions for repairing the road f6 -and fihht 
t\h icHirtt' of BatiHr v^iich towh wtd scat^d^to b& lately 

^•- ' * 'lir^^ dfecribed^ a^i' leadiog f^otti/ to a^rfrAjlO'ttiSHi' 

^' 's^ifefrahdsCfehtoWttst but -^hwi it «emldf«^4tie ' 

^ ' Itor^ri (rf Bflp/iirf U crtfty says •• tV)' ai»4 ntb M- it,"' 

^' btorfttttVtlifewonl ^ tifRoc/cK" 'AfadthlT'dnly* 

^*i"-»-<5iike9<i6w \»Ai^*<''wfaethtet the ac« inteftde*^t^*i*i>^ 

'' CLU9E or EXCi,VDB Mietb#tt«f^Ail««(Mb)dfl?*^ ' 

^Mr; I^lfiM^^'^W^' 4br the pl^iVitiff (ef wtidnf- tfate^^ll 

UH^b^A^^ttlKa :] ! at^ My; tfif^eyi fbf ilie eom^lssiJshel'^r^ 

(the defendant having acted by their authority ^'^iMho^ 

•'^ ««aPlit ddbieT*tv^'^ele«T *a*^4ie^«ct' ^paHStflMHtV 

^^r^t^^nd^^^able thatk^uld te e3bt«ti«ed. ' v- 
^'^fM^dMD ^iiW^r£Li> ebsei^lrediUii«'4«>4ni0>beMicr' 

377 Triaity Term, 30 aad 31 Geo. 2. 

UAMNOMD great towns; (which th^e coa^saK>i^^, ](iad 4^^f) 

^. which might obstn^ot tii^ n€^es8^ mt^rf jpurae ai^Q^st 

JBR^wjsQ* th^ iohsbit^QU ; or^n biivder aj;ifiuujbitaojt Ir^^epd- 

ilig Jm# ioirm tmUr yfMkoui i^yi^ tk^^^\ • T^^ti^fe 

Posr^A to he delivered tG.llii'l^^A^Nfej'^^^^^ 

2«d June, . xi£^ w;m5 >1a,n.ning. ^ ' •» < ' ^. 

Alb I. ] ... I .!•,'; 

CeMioM n^^o ^ , ^ ,^^, -^i^a^shi^g^n b>^ifjJF 


'"•I* li^^lk •^O wherej^ the. aurF€y^ 'of tl^e ^highways beyond 

tSrnpikrtct ^f^n^d Shord and Uie D«?u€»» *c. is authorised an4 im- 

99 Geo. 3. ' pow^red to ditrgruvd, S^c^. or other materialsy .&c. in, upon 

c67.(a) or out of and from all aod every the lands, fields or 

grounds in the occupation of John Mofiuifig in the parish 

of AH Cannings, in the cpunty of fVilts. 

[\9 Vin. 502.} The subgtance of the. order w^s ^ fdllowsr-Tt b^gios 

with reciting ,th.e act of 29iG/s,c.67f impoweringj^he 

^urveypc or surveyors of the bi|:hway3 or roads thl^rein 

.fipaclued^ pr ady other persou pr persons appo^iteil l^y 

h'\u^ or Xh^m^ (having first an order from tbe quarter* 

(sessions; $ix days nctia^ in writ i/igfOt lite, application Tor 

.«Mch ord^r, being first, give^ndy. tA^^^i/rvr^r or surveyors, 

',J^0 tie .pwfifjBH oa ow;sri^3p;Oficap/cr or occ^pietf of flie 

If ads and grounds then. intpod^cT or ptir()bsed to \)e cut, 

4igg^arg8^tJicgFed.for m^t^f^gjs {o,r repairing and atufend- 

iligtl^ highways or rpa<}^'9^,lpft at .his or ,thei|[ "pT^ces pf 

alioderj) tocu^,' dig, gatb^r^l.t^kp and carry ay7^/,.ahy 

fuTze^ heatl^ gr^veJ^. §and, qr/Q,ther ^late^ri^^^ i??;^?r ^^'^ 

' sufficient for repairing pf the $af4 nighwjiys ' oj road?, (i/' 

such materials canyot ]be had pi; foijpd m^ or^^yppn any 

, wast^ pr. ^qmmon gr.ouias, jin aijy llj^rish^ ^P^^» ^r place 

/ftiJiQUu««.to or lying near the. ^afne highways ci[ fp^^) in. 

,iypop pr out of» apd. fronf- h^i^ hnds, fields ^i^ gr^unas^ or 
f.^herofthem (not beings yard) giirdeiu prcAard^; park, 
.pa4dovkt woftd, coppice,t nijrsery, .p.r'^ncloscd ,^rpund 

J -: 

plaot^ with any walk or walks of trees, e>i aveowe to any 1 7^7. 
hotise; ) paying' sodt ratea, for ^acb maleriate, oK for the i ext 
daVnage done to thef dw^EHs'Ais/fc tfccvpi^s of ttogfowwi ;^. 
wkkete a»y and £r6m Whence -tte-flanie steU te <Hit, digt. maji^iiinc. 
ged,gath3Bred^ t?ken ^ttd carriifd away, or otier Whwrti the 
same shall be catried,.(fl^fife*"WitrETO« or fiFira^mroM, 
or OTHBR person or pers^mB by them appMnted, or to be 
appointed by ^i^irtue of the said former act9, or the said 
recited ael, for that purpose, shall think rvgsonabk. 

Then the said order of seswons recites, that apfrfix^ation r gyg T 
had beea made tolhatcoartyijr^Aewirreyiwof the said high- L ' J 
ways or roads^ for an order to cut', di^, gather, take« and 
carry away furae, heath,9to«e8, gravel, sand, or other ma- . ' 

terials proper and sulfttrifent ferrepairing of the said fc»|fh- 
way s or roads^ in, upon or out of and from all and ev e r y 
the landd^ fields uni groti ndsr nuw m the occupaH&ifof John 
MflH/itug of the parish of AJlCanfting9, in the sttid eotfiity 
of Wiln, yeoiQan, (not being a yardv gftrden, orehard, 
patk, paddock, woodj coppice, nursery, or inclosed 
ground pGanted with any walk or walks pf trees, or 

avenue to any house.) . 

Then the order goes on thus— 

And the said surveyor having made and given /w/'jl. , 
proof to this court " that six days i^olice in tsritihg, of his 
•• intended application to this court for such order, hath 
'** been given by htnl to tfie'sdid JoHir Manikikc^ or kft 
" at his place of abode ;" and iht said Jon n Man ni n^; hi 
consenuerice ttiereoF, having v0tred'to this comrt btf His 
counsel^ reasohd against siHch order being rhade; and en- 
.deavoured to support tlie^ same by pwofg, (wltiah reasons 
aud proofs this €0»itrt AMUDGBir to be rtry insnjitient :) 
and tbe'said sur\neyor also'hUving inade and ^i^eafnll 
proof to this court, ^* th^l: rftop'ER and- ^WPPtcirifT 
" mWerfflfefor repairifi^ of the said highways or roads 
** cannot be had or founcf in or ujicn any waste or eom- 
** mon grounds in any ptJrisb, town or pface adjoining to 
** or lyitig near the saiiie highways or roads.'^ : . 

This cOURTdolh 'therefore, in pursuance and- by 

virtue bf the said recitijA'act of fmrUanient, tinftnimo«tfly 

order that the said su iVfeydr of the $aid highways or -mads, 

^ or ANY otter petson ci^ ;p6rs6n«f*by him appoiitted knd 

' employed, may, ahd'he' ind theyis and artj {by virtue' of 

thfisaid act of parliament and by virtue hereof) authorized 

"and impowered to cut, dig, gather, take and carry^away 

any furze,. heatfi, stones, gravely sand, or other materials 

j5>>>)?Vii.aina sufficierif for rdpaiiKng of the aaid'highwnys or 

roads, in ujpona^ or out of and fiflom Att (tfidi^Ek-i Hie 

l^ifasy'^elds, or grounde in M occwafM^ofl^ saii Jtihn 

. Manning, in the said parish of Alt Cahhihhi''{Ml'^e^ltig'SLiQo, Lit ?04.J 

^^^* §aWto^ or«hand| party. .|«j(!W<^cl^:wo6tf/'^ 

379 ' TrnHtyTerin, 90aild»4C>«K2. 

i^hi. trtiftfeti^, ' ot hrplosed' gt-outid, - i^diMadi i^^M^tay^ ^«1flt*\if^ 

' ^ ti * '^i'ki 6f tre^s; or afvente * W any 'boa8(^)r jpA^ ' iiA^ 

V; . t^t^'fot sudh materials'^ DR'for ttodanilij^e doM^tcTillfe 

' fmtit whence ^fac sume^ s>«ff<be cilt^rdiggedr gatbeired; 

herein before in 'jiait t^t^ tmrler' ^r&feCT ahii >R<r^ 

r 379 1 * ^'^- J^or^tmV objections' to this ot^et Mipon makibg^lbe 
-* brrgJharittOtioti, were o«ly tnh : - - , • > ^ a 

; 'ftt, i^hat iherfe ougfit to^ ha^ b^n Mike to the d^ttti\ 
ilk well is to the occupier of the land tvberekt tbt glUvM 
wasto be dtig^t although heoi!7hed, tbattbeetricttt^rcfi 
of the act had not the topalaHve^ but only the ditjuHehve ; 
tiz. ** upon notice, &5c. to the owner or owners, occupi^ 
** or occupiers of the land, &c" Yet, he said, thatjO»tid^ 
' required, that the owker should hate notice, a$ wi^Ubb 
the occupier; when his property \h to be so maitnalf^ 
affected: find he nrgaed this to be tht intention cft^ acr. 
A^d it is frequent, in such cases, to understand mgdtite 
coujunctions, as copulative. 

2dly. The satisfaction is directed by th^ act tO'be made 
both to owner and occupier: whereas £hey have hciire 
awarded' none at all to the oirtaerof th6 laud* who is the 
person principally injured. Upon this motion a rule 
was made to shew cause. After which, nine additional 
*' ' \' ,' ' objections were given in, in writing. • . . . ,- 

Mr. Jkton shewed cause wi)y the order of sessions 
should not be quashed. '' »: 

1st Objection (giveti 4tt,'hi writkigl'-Js, thattbefitfm€ . 
of the surveyor who applied for the ofttor to noti«ied-\ 
tioned. "'..■'>.:•» 

' Atiswer— That is no^ *f tt^Mrjr. '- ., • .\: vtm- •. 

2d Objection. That tfie tessioiis haeirC'Wett aii9X70««b 
** that sik days notice in Writing wa^ gi^eh WM^^trnk, 
" of the intended application :" the W6l*ds^ aw only, 
"the surveyor hating maAe' and* ^rt^ti Ml -proof -to^his 

court," that strch notfee^tvai^^ltehy •i 

Afaswei'— That it does ^ppthr •; but if notj yH-it is^ not 



;3d Objectron. That thiEi nct/^^f'Mch^iiolto^' bjferog 

giV^ti; is uot sufficiently 9r^fdrtA'^#lieill^^^lt<satd^•(iMlt 

^* such Tlotice was given td Jrei^iWftSr,«hft WJ 4$t''hisvptafe 

'*^^ (if abode.*" /- ^'^ -^ J ^'J-^i^^h^iie 

^V Answer— That t&al^ suiBc)6ttl: ' ' *>• ■ "^^'^ n.; t m .e;i7 

r pr "^ ^thj'Objfection: (wbieh i«^r W!ft<^^ l*N>Wi»ifirt|t1'i it 

^ '^Wiriotrfet Torth that alx^ dm- ribtiife^^ln ^tini'irf'lfcia 

intended application was gmii't^ thd^^dWlk^i^'<tf^^ 

, Answer. Notice to the occ v n sa is enough. ^ ^ity^n 

TTm%fT^m^m^i^<Sil^ef^r^^ . 380-J3W 

V^iVtma-^HBOlAGQ iluty-be^giTei? ^^er tp. the tenanfc,Qrto 17^7. 
^lowoer of ttie good^u rArMoeL^. lKalt€r v« Ruif^b^ll^ ^^x 
^IffK^oidan by tke t;ouit» > ipa^ 3PM Aod here tlie. t> woer y ^ 
m^- peii^afiai no^^^ entitled: fof the act aays, " that th$ MAK^IJ^«^ 
^*f)'4^)ltge8;;ic[.«i^^4pek" fijesHles (he owner ip^ ^ 
f a^ <iisfauc&;fra(D tiie iaod. ^ :Aud here ^lUenaut t^femr^ 
eii^4i loade^wheil defence he thought propj^r. 

5th Objection. That the sessions have vol expressly 
.ik&Ju#<}^n ":J^at ,tHroper* and.^fficient. mater4ala.for. 
•• repairing the highways -were kox to be found wow/ 
;'^i;ra^t9;PFIV<co^unQn groiiiud U^ any place i/e^fr the said 
f^ bijcbf^ayi^' for it is^only^ said, ^ the surveyor iaviuf; 
f* '9111^ and given full proof to the court, tUai« &c/* . 
. A Ad&wer-^Ttie orcier is agreeable to the act of parlia- 
laent ( and it specifies ** that fuU proof was made and 
^* giyentothe^courtjof thisfect/' 

R OtbUj^eGtion. That it is^not set forth " that no proper [Allowed 
^^'nwterktfs at all, for repairing the highways, are to be P*^*- ^^1 
** found i^i any such waste or common ground:*' But 
only (In loose and general words) '* that proper and 
** SUFFICIENT materials for .such pur])ose are not to 
^ he ibund.. there.*' Notwithstariding which^ it. is 
'Wdeiodt /' 4hat the surveyor shall cut and carry away 
^^:rAjt»h^ sorts of materials necessary for the repair of the 
'' -whole road:: 
: [ Answer — That it is exactly agreeable to the act 

7th Objection. Nou constat ihzX afty .maieriah proper [^n^^^ poit, 
4!pf such {purpose arb to an rovMi^ in an^part of these ssi.] 

%f^ Ai^if eir'^That must depend upon trial. The lands are 
.te(be^' cut, digged^ and gathered/or materials." 

8th Objection. It is not set forth Aasr/nr these g^rgunds 
lie from the highway; no^ to zshat 4iUance»\\uaste grounds 
JiMfthnen fiHiod barren of proper matemls; nor that 

f^e<f^)ttnd9 ^w^neuf^ tl^f|n[ anyo^n^c where such mate^ 
, ri«ls wwfjjf b!e»f4»mid, > ^ . , 

*?' rl Anstreryf*-!^ Qr4fC is wordei agreeable to, the act,; and 

these particularities need not, be iuserted in it. 
5^'8tb^Q*»ectjl^ i,TM tbe|K>««« here fegnwnittefd to [AllowedpotU 

the surveyor are uncertain in every branch thereof. For SS3. 
:fmbf ^toir Aif f d(5;i%A n-^piec^ of land which ^fiords the 
liniateriftls^i^fKia^iUq^le. b^.thi act. But here all ,^he 
-•fitej^odsan^tli^iiOCWB^^ 1^ Manwig, (being,if|ft, be 

alledged, a farm of 540/. per annum) are to be4ug^a(.tlie 

discretion of the surv^/Q^«^Ti4p4^theyrar^'?)spJ^ja ji^der 
r b p^Ih/tuaUn^wnbiBwc^^'ai: Ifasit one ti\p,]^ apsQUtely 
^9tb(mrtmu4f^ rXh^imtimfi, isv pr^^xed. ,at» JW^ujpt, ,WQb [ 3^ * J ' 
>l|foiM»<ii#^^HbQ)i9m9i^cipaf% > ,, . ,, , c ;,, „.,v, 

Answer-rThis also is sufficient ; being ' agreeapK^ifio 

382 TrittityTemi, 30 m^ SI Geo. 2. 

1737. l^^l* Objection: (vebich was Mr. Norionfs second) 

itBX th^tsatUfaction for such materials is» bgr thisorder, award* 

y^ ed to the owner oa occupier, bul uai to both ; Mnt ia 

mankisg;^^^^'*^'"')^ defined to taAidk of them : whereas ttieaotof 

'parliaraeiit is express, ^* paying to the owaers ami^* 

** oocupieia." 

Answer^ t issufficient: the act is disjunctive, ia direct* 
ing the notice; and must here be taken dUftmelhiif wad 

11th Objection. That the ratbo^smcA ^atufualmn is 
estimated in the order, only as for the value of the mafa^ 
rials which shall be cut or carried oiitof tbeae gMHinds ; 
oa for the damage done therein/ ; but noi as for ncvH, aa it 
ought, in justice, to be: nor is it certainly defined, for 
WHICH of the two, the compensation is to be OMdew 
Answer— It is in the words of the act. 
Mr. Norton and Mr. ThurioWt in reply, supported the 
eleven objections ; and urged that these summary aotlio** 
rities given to justices, to the detriment of the libeity or 
property of the subject, ought to be sruicrhY fur^ml: 
and they cited many cases, of what they apfMrebended to 
be similar instances, or at least proceeding upon the same 
principljes. Whereas, in the present case, the justiceo 
have not (as they aliedged) given tbemselves^risflltcfiaii, 
by any ADJUDICATION of the necessary fkcu : but have 
onIi/ recited the evidence of them. 

Lord MANSFiEt.D'^said this order was very ill penned; 

and the justices ought undoubtedly to pursue their autbo* 

«f Th 2d "^y* ^^^ however, he did not agree to all the objections} 

. and 6Ui of ^^ particularly to*the • 2d, and t 5tb. which are founded . 

tbuiie given in upon a supposed necessity that tliere must be express 

ifritiDi;. adjudications; where the recitals and allegations are 

sufficient, and where conclusions are actually drawn. 

^ (S. P. Id. As to the 4th objection— he did not think that the act 

poit^sa '^ could mean that it should ahitai/% be necessary to give 

" . ^^^-ij^ii^^ iQ ^^g owner; which might be impossible^ 

But as to the 6th and 7th Objections*— it is neces* 
saty to shew that there were no proper materials to be 
fotmd in or upon the wastes or common grounds mar the 
£ 382 3 '"g'^w^y* Which is not doue here. And they are not 
warranted to dig in tlie private soil, for all the species ol 
materials; because soit£ rftkeiespeeiesBm not to be found 
in or upon the said wastes or common grounds. Tbey 
ought to sPLCi FY what can mot be found in or upon (k - 
wastes or common grounds; and what may be found inthe 
private soil. And they can not dig, to xRTfor it, in the 
private soil : tbey should previously know that it is to be 
found there; or at least have a reasonable prospect of 
finding it there, 
Dtb. And they cannot make this general order*' to c^^ 

Trinity Term, 30 and 31 Geo. 2. 383 

« «iw AtF, the eskUe;*" and leave tliis to the discrdion lJ57m 
efihf surT*'jfOr : tbey ought to^ upon the particular part ; jj g^^ 
to determtiie thfe themsehesy and not leave it to their 8ur- v, 

veyor. Tiiifi objection is fatal. MANNKNOf 

10th. So also is that of the satisfaction : forthesATfs- 
FA0T!o« ought to b$ awarded to the ovvner, or to the 
occupier, or to both; accordikg to the oAMAcrs 
sustained by the one, or by the other ; or by both. 
- Perhaps some other objections might hold : but how- 
ever, here is e/fough, that I have already mentioned. 

MnJust. Dbnison— »Iti9 a very imperfect order^and 
liable to many objections. 

As to the 2d, ,3d, otii, ()th, nnd 7th, objections— an ex- [4 Burr. 
pressnnA direct a djudication may not be necessary: but '^OW] 
many oF these foundations or their authority ought, some 
how or other ^ to appear ^tpon the face of tlie order. Par- 
ticularly, it ought to appear that notice was given of the 
intentioa to dig in some particular place; for perliaps very 
good cause may be easy to be shewn against it. But 
• 9tb« It can never be right to dig over all fAe tttaie; 

6tb. Nor to dig in the private soil iox^uch materials as 
«Kry be found in the waste» 

As to tlift 4th~iioTiCB is nor universally necessary ,.„ p -. 
to bo- given to the owner.- this may in some cases beL^- *j;*7;. -. 
impracticable* "^ 

But -as to the IQth, satisfaction ought to be made io 
tbeomtter^ (if he be damaged,) undoubtedly* 

Mr. Just. FosT£R concurred. 

The persoathat diew this order, haslcept to the words, r ^g^ n 
but 9oe (0 the 81* I K IT of the act. L ^ 

And as to the Dth objection iii particular, undoubtedly, 
the justices have exceeded their power in ordering the 
mreeyor to dig over the wholg eiloie. Jhis can never be 
reasonable, nor within their jurisdiction. 

Per Cur. unanimously. 

Rule for quashing the oaoxa 


Cogax a^siis EnDfiM and Another. Thurfdaj,994 

Juae» 1757, 
f^ amotion (nuule the 18th instant,) tose^ aside a ^ yerdict 
^^ verdict as being given in by the/oremaiitCONTKAav y°°£|y ^^7 
to tbe opinion and intention of kiout of the jury. It ap- folSmin^raiy 
peared that tbe defendant justified «inderaright of a lie amended* 
Way, over tbe plaintiii'*s ground, to two closes of the de- V^^ ^BL 
fendant, tij^v Broadmoor^ ^ud Three-acret ; upon which, **F'*^^*J 
two d^ennt issues were joined ; vh. one» upon the right 
of a way to Broadmoor; the other, upon the right of a 
VoL,L Aa 

384 . Trinity Tem^ .3a ai»^ 3^ (^eo. f. 

VJSuf^ way to the Three-acres. And the f<wman gaice i^ ^Irer 

cooak' ^^^.3ipt»5i8 a '^erwy'fl/ verdict for 4ie ddTendant, iip6n botk 

y- > i&sufev ^qtei^A^pf tbeJQiyTna4e«^iii^f^''tbat,H^^^ 

€BD]^"r " tlie MBANti^a AND iNTENTldKOf thfeWHOEEiliry/tO 

^ ^^ " rtndttiefotmer issue for the'defehdaot'; and tncxAT- 
'/, -7 ** TBB^forthe plaintiff: and that this tnUtake was 
\ V ' . ^f discovered by tbem, mt hi;(^itr dfitrt^atds ; hut not tijl ' 
*]'/ • '^ thejuttgt wa$ gpne to bis lodgings." And Vipon tlie 
.!.* : , .judge's jepovt it appeal^ that/tbough there was in- 
deed fevidence on both sides, yet the wcmt of the e^ideuce 
-was («is it appeared tobim) on the side, of tb^plainitff* 
as to this latter issue. 
tJ. B. The foreman bad decHned inakmg any affida- 
vit; because, he said, be should make himself ap- ' 
pear a fool, to the court of King's B<nch. 
This matter was much litigated by the counsel on both 
aidC:S. And the counsel for the jpIaintifT mentioned the 
case of Baker v. Milrs, in C. A in M. 4 G. 2, S. P. 
where eleven of the jurymen swore" tliat the forenia!> 
'* had mistaken (b^ir verdict;" and it was (hereupon 
•V. Vlaer'i set aside*. 

Abr. Title The COURT Were all clear that this wasa imiVa^, 

Trialp p. 483. arising from the jury's i>eing unacquainted with business 

^ ^* of this nature; and from the associate's omission in not 

asfiiing the jury particularly " how they found each retptc- 

** tive issue," ajid in not making the jaiy fully tmaer- 

stand their own finding ; and that it was agp^eable to right 

r 384 1 ^^ justice, that the mistake skonid be rectifico. And 

they had no doubt about tike fad of this mistake; from 

the affidavit of the|eight jurymen, cof^rmed (as they held 

it in effect to bej by the foreman's declining to make any 

aJPKdavit at all: especially, as tbejudge^s notes shewed ' 

the weight of the mdeiic^ to haye be^for the plaintijBT, 

as to this latter issue. 

And LofiD MANSFiELnandMr. Just.D^N'isoK thought 
that, as it was a mere slip, there might tie si/me method -^ 
oiiizcTivYiHQ ifie verdict according to the truth of the' . 
! case ; from the judge's notes, if they were sufficiently 

particular ; without sending the issue to be tried over 
' . again, at a great exoence. 

^.,^^ », And the case of j^eiffcombev. Greeny in 2 SlMngel 107, 
■^was mentioned; where the po5/ea. ir^i amended J^^ Jtlip,' 
judge's notes. And Lord Man^e/dmd that, at lea^t twy] ' 
couid.set^ide the verdict wUhmt costs. Bat difficuW * 
ties pccurring, how the costs would be, in such cas^V 
as Qfl/^ i89|^e was still Jound for^ and was in trt(th <^d/ 
for the'd^endant. Therefpre ..^ ' ♦ J 

Andnow Lord Mavsficld, sseeing^ Mi'. JH^noii^ik 
coitrtt who was concerned for tb^e plainti^, and ki& (oa 

TrW^ity T^im, 3(Cf afld 3 f Geo. d. 385 

his liebalfj Ksovsd t&slAr aisxiic the verdlict, took occasion^ . 17S71 ' 
toiueution this case; and said tfiey had thought; cogah * 
and he 5ad tilted i^jtfch» brWfhei*/ Wilmoi toq^aboiif ! ^/^ 
it: but, however, ht was not nofw; going to gjve a«y opi- gaii^y/.' 
aipa; but only tO' purpose what seeiAed to him the iniost ^ «^ 
p]ff«pje i»te#A<k? of coraui^e? at it. . ^wj^^^. 

The case otNemtombe r» Orwr#, itself, isnot applicable mcaii wem * 
to tbi^ cate. Ibit there ia another case, of Mtf^o y. Archer^ now in the 
inl Simn^ehi^y 61^/ where the question was •«* whe- <^*>^ «^*"^f» 
** 4ber a ^rmer who bought and sold potatoes coiildbe a . 
"'bankrupt:" and the special verdict did not set forth 
th^iptantitits be had bought and sold; though they were ' 
proved at the trial. The court did not there award a re- 
nire facias de nov0;'hui amended the Special verdict, in 
that respect. Wluich case is more applicable to the 
present case, than that which was cited : for here they 
ordered the special vettlict to^ be amended ; though tlh* 
plain tiR''s motion was only '* that ^ venire facias de novo 
** might be awarded-!* 

But another case has be^ mentioned to me, which \a 
applicable to the ^map/e of this case; though not like 
thiB particular fact. It is that of Vajfrellv. Bridge^ Tr. , ., 'j 

S2 G. ^ B. R. Trespass' for cutting down an oak-tree— 
the defbndant pleaded severalpleas ; one of which was, 
*' not guilty/' At the trial, a genefai verdict, wad takeii . 
down, and so entered. And the cou rt rectified the verdicf^ 
by expunging the finding on all but the "not guilty;" 
it appearing that nothing was in question {at the trml)T ggj T . 
** but whether the place where the tree stood, was parcel ^ • 

'* of the manor, or not." In the case of Newcanih v. Grten^ 
several cases * werecitbd on the same subject: thougli * Voneare 
the case Useffi^ not the present case. m«niioned by 

If the court sets the matter right they should proceed ^^"fy®* g^ 
» the who/e truth of thp case. The judge .who^cro. Car. sst. 
tried the cause agrees to thefactclisclosed'in the affidai^it EUiit v,skypp* 
of tTie eigtii jury-men : wherea« yoor'^m affidavit. On ^**/^- *3. 

whieh the* rule was made, was an affidavit of only/owr of ^^'' *^*«®» , 
^L -^ • • J J nd a Case of 

tliem. ipgj ^^ Hoiv 

Therefore what I woiJld* propose ia that you should JeF, in Loni ' 
make your motion* and liai^a rule to shew cause, why, R^yroond'i 
opon reading the affidavits of these eight jury«*men, the ^^ '*""" 
vwdict firhould not be at^ukd^d and sfir bight, aecdrd- *'*^' 
injg it) the truth of the finding. 

^ot^— Such a motion was afterwards made i and a 

*** rufc to 3hew cause*' granted. But it never came 

•before the court any more : it plainly , appeatinSf 

that the court, upon deliberation umong tbemsdvctt, ' 

had corned Eo an opinion " that in tbia shape^he ver^ltct* 

• •*• migfUhe set right" ; ' '• ' * 

S85 Trinity Termi ' dCPand S I'Gfeb/ ?.' 

1757. REXwr^t/rGoDiiAtttt Witi,uiM:$. • 


Ti/J R. jVcrre5 shewed cause (on WeSnesday,9ih J!ib. [M,} 
WILLI \M.«. against quashing a cfr/iorart to remove, from tRe 

Tuciday»«8th fluarter-sessions of the city of London, an infOfmatioa 
June 1757. upon 1 Ja. 1. c. 22. ^titled ••^ thediit^ of tanners, cur- 
Information ** riers, shoemakers and of other** cutting of leather.** 
to the lord Note. The information runs,, throughout,** that the in- 

mayor^ and " formers give the lord mayoa of London totin- 

certioran to u derstand, *c." But ^^iertkran t!^ directed tothe 

file SCSHOItS' rt ^1 *A «> r ' k 

quashiMf sessions ot the City of Xo?iao». 

[j^ee 4 Uurn* Three objections, he said, had been (upon the original 

in.] motion) taken to this cer^/offlH; " 

Obj. 1st. The ce/tior^TJ does «of /fV, at all. 
2d. ll is not Kcll directed, [V, ifffra^ 4r 1 Joe. 1. 
c. 22. § 50.) . . - 

3cl. It Joeswof lie, m^r ore cdnviction. lSalk.lih. 
Dr. Sand's case. 1 Siderf. ^(i. 
r 386 ] Answers— ^. 

As to the 1st objection — 1 Ld, Raym, 469. Dr* Groen" 

ve/t's case proves that a certiorari Will lie : for this courts 

by common law^ may, issue it. t Salk. 148. Cit)» v. 

Smith, A certiorari lies to all inferior juri^dictrons. 

X Fentr.QS. Smitlis caseis to thelikeefl'ect. Style 361 If 

+ A miserably 356. iti point S Mod, 331. t Jrthur v. Commissioners of 

mfcd'^^ Mo"' ^'^^^''^ *'* Yorh/dre. 1 Hawk. P. C. 21&. | 79, 80. h very 

ilern Casesln Strong in favour of certioraris^ where the inferior jtiri*- 

jLaw and diction exceeds its authority. 

2dly. It \s directed to the justices at sessions, generalfy. 
^ And It is right: for this is an act cf sessions, 2 Hawk, P. 
C. 290. § 43. proves this method to be right 

3dly. As to 1 Salk. l^, 5. Dr. Samffs case, F- la 
W, 3. The reason given for the opinion is answered by 
the very next case {pi. 0.) Ivt the same book. The case iu . 
1 Siderf. 290. (There are two catses there, itr the same 
page, pi 19. & ph 20. Tr. 18 C. 2, whichiboth seem ap- 
piicabie to this subject), stands upop fts. own bottom. 
And perhaps the method mentioned in l Salk. 1^5. pLiSy 
%yas not then found out However, ii^twitlwtatiding 
what is there said, yet it will He to every qisatteT^'sessions : 
and this was at the quarter-sessions. * ^; =■ ' 

Mr. Norton contra, for the rule (to cj[uhsh-tHe certforart) 

agreed to put it upon 1 J. I.e. 22. |^ 50. tvhitili claftise 

gives jurisdiction to the lord mzyor't^'Ldrtdoni^r the 

f t;ime bei^g, within the city, AKt>' within thte)i irmestdtitpdis 

And this information is here given to the ioRb .m A+i>R^ 
\ Present (it is true) in court of the afotesaiiS**cbiirt ^df ses- 
V ^jops; aMcl'jLlie luformerspfay'the juygn^t'^o/- jfiJ^Loko 

Trinity Term, 30 and 31 Geo, 2. 387 

mator; thoiirfi- it 19 indeed added " so present in the 1757, 
'* said court. ^^ Therefore this is not a proceeding at ses* rrx* 
siQitf :^ta ^proce^diD^. b^ore the lord mayor par^ant ^' 

tOtl)^?Ct.'. ; . WILLIAMS. 

Xote^-f-The caption is as ai a court of sessions : but the 
. Uifori»aUon is given to th^/ord mayor; and they 
fipnclucie mtlipra^ing judgment of the lord MAvoa^ 
. ,. ,4Q present Ju that court (of sessions.) 

. LoRX) M^iiaF.iELD— The cer//orr/ri has manifesti}- is- 
Stied^ c^ sufjtposii^g it to be a proceeding befoke the jus- 
tices dt the sessions: and t/iep return it as such, 
N^ B. The .return is by " Stephen 'Theodore Janssen, esq. f 387 ] 
" m/iyar of the city of Lo/tcfo/iy and also pm 0/ the 
" justices within written.** 

• The court thought, the previous question to 
that of the regularity or direction of the certiorari, de- 
pended «I>on the propriety and validity of the iufomiatlon ; 
viz. " whether the mayor alone had the jurisdiction, 
•• under this net ;" or *• the mayor in sessions." 
. Mr. Nu/*/o/j— the jurisdiction is in the mayor a love :, 
fpr lie hjw it even for the space of three miles out of the city ; 
where the sessions have no jurisdiction at alL It is true 
that he has here fxrcu^r^ this jurisdiction ix sessions. 

Lord Mansfield and Mr. Just, Demson were satis- . 
fied that the;)/'opr/e(y of the dirkctjon of the certi^rari^ 
depends upon the propriety of the conxicliou ; ^nA they 
seemed to think that the proper method of bringing this 
question before the court, would be for Mr. 'Hares to 
move "to qvAsntheiaformatinfi>* , 

Mr, If ares desired to take a day ,or two's time, to con* 

aider of this, and to be better prepared for it. Whcre- 

. upon it was, at present* . , ADiouRNEi>. 

fiSi^px^ Monday 23(1 3iiiy* the prej?ent rule was en-- 

.hrged; anciako Sir, Niires (by appfbbation of the court, 

nm oi tde adyerse party,) took a rule, agreeable to the 

above hjnt,' "; to shew c>.usawby the inform AtkON 

fiUould not be quashed.** 

And now Mr. Niw/a/iand Mr. Jf^lliams being rfeady'to 
shew cause, fio rege ; — • 

Mx, Gaula and 31r^Nflrp«>Tor the defendant, proposed 
theirobjections,toth0 tVi/bri^iCf^/o/i, thus ; ri;r. 
., Jst* .That ttje jurisdiction is not in the lord Kir' a^yor ; 

j;'» i4|y*. The reined^ IS Nox/iy fvay o/*ikformation; 
.t>utoagkt. to n^by wHic//yi^*/. 

First — they said that the qu^tion turned upon I 

. J4c. 4. f. ?«. § 20, 32, 33, 46, 50. They insisted •* that 

*' t^e lord mayor had no authority, by this act, to appoint 

/' tjrierfj, where the leather is made and tnanafkctuied 

** into wares,^^ And consequently that as ttiis lesCtfaer 

3«8 Trinity Term, 30 undSVCw. 9, 

1757 app^j^fed, lo have been in^nufad^ared into V&rc^,* wV. ioto 
KBx' saddles, the lord mayor \\^d no jurisdkiion to proceed in 
y tbis^m?ttmary way ;^ 

trkuiAMS Secondly— the proceeding ougbt to have been htf ncuy 
' ofindiciintnt ; and nqt by way of Hifofmation, wbiph h 
110 common law pr6ce^inf. They added 
Tbird^" ; ' . ' 

That M is uncertaia before whom the ixObrniation i* . 
taken. \ ' 

jf/'itbe understood as taken before th<^ lord' mayor^ 
ht has no jurisdiction^ fpr the reasons abpvemehtiohed : 
but if xt be understood as taken before the seasions, it 
ought (as has been said) to haiv^ been by hdictment. 
Whereas it is a rule, that idformatipns ought to be at 
least as certain as indictments. $o is 2 Haiikn P.- C. 

jw.esi.cse. §4. 

Mr. Norian^ Mr. Williamfi nnd Mr. Lucns^ for the pro* 

spcution— answered, that this is an information brought 

by the warden of the Sadlers Company, nnder this act of 

parliaiment, of 1 J. 1. c. $9. And 

iniwertothe It is not at all uncertain: but ihfortnation exhi- 

9d objM^tion. )^\i^^ to the m^j^or 018 1. V ; and prays the JtfrfgmeR* of the 

A f til ^^»^r^^^^¥* 

i^^b'^ct'o ^^"^ the act gives him jurisdiction, astreU where the 
g o je 109. j^jj^fjgj. jg manufactured, as where not And this is a 

!)rpceedinjB;Uke the informations in the Exchequer, ia rtm^ 
or a coudemnation. 
«dol52ci^^^ Itisiw/ before the sesiioH$. So that this objection of 
^ " its not being by way of indictment is out of the case. 

Moreover, they urged that the court would kot ^uash 
such an information, uppn motion ; es))i^cfally, where a 
PRIVATE ?t]tsoN is e>ititlcd to the pef(a((ji/\.?it\d none of 
it belooga tothe crown. 

LordMANSFusLp-^As to the cot^rl^s n ot quaslmtg on 
MOTION, but putting the party to rfmur— tliat reasoning 
d^oe^hoM^vAerc tkei objection is to theljuatsnigTiON of 
the court that has undertaken to prpceed. 
Now here the question is upon the.jurisdicthnf, 
f 389 1 '^'^'^ is agreed, by Mr. IViltiams and Mr. Norio»,to be 
■^ aproceeding before the lordmayot 3p£!> though 
Xi( sessions, ligt the 60th.6ection (whicb grvea him the 
jurisdiction,) does no^ give it to hirii >iatsoif AttY ; Iwt 
in<A^/rrmsof the common commission oi,oytt andter^ 
mifier : and th.e5am^ power is given t6 /«wi,as to the dther 
mayors, bailiffs, heaa-officers of borou^>s, stewards of 
leets» ftc< Now this nxudt be ^x^rcisedcrccprdin^iotbeewirse 
crfthe^i?i»«gii taw; i.e.iy tNDiCTMjjNt. '',/ 

But it i« oljjected." thai the semoa* cannot have jttris^ 
'• diction %p/<d the Umts of ttie cky :*' whereaa tUi& i* 
giveu to HbA omyOr in nn; place witiua' three miie9 of it« 

TrinltjrTerm, 90 and 31 Geo, 2. ^9q 

^e answer to this i8» *Vd)at thJBJuiisdicttOQ of the i^r^y 
*• sedans is thf^ore^ by this act, tztundid to three miles j^g„ ' 
** beyond the cify/' ' ^ 

*|*b^ paraUel dp^ not hold, wUh regard to informations ^vii,i,j\m8_ 
intern^ in the Exchequer: (tO which it has. been com* .^ 

pared.) For that proceeeiinfif in the Exchequer depends 
upon the count of the court o f Exchequer : and \i is fieces- , 

fiary there. For it is jiot jtbere known, wAo will claim; 
nor does it affect the party : and the person' who o\Vns 
the goods may not perhaps be in court, or may b€( un- 
known, or. may nothav^ other opportunity to come in 
and claim. This is an ailcient course there ; as ancietit 
as the cowtf of Exchequer itself, and by c(?//?7»ort law. 

But here is no sort of incongruity, in the present case. 
In the ^oQd% being foff tiled bjf the parttft being convicted of 
the otTcnce upon an indictment. And liere is iio colour , 
for the notion of sl summarif Jurisdiction in the mayot^, 
under the authority of this act of parliament, Therefore 
the information ought to be quashed, for trant ofjurisdic^ 
iioH in the mayor, to receive and proceed upon it - 

Mr, Just« Dknisok concurred. And he agreed' with. 
Loan JVLa^jisfjeld that there was no ueed to put thei]i ,, *.^ ;' 
to </tf/?ii/r, m acase where there is defect of jurisdiction : 
and citcda caseof JRejry. JTes&y, on his own motion/ in « 
pegury; where the sessions had no jurisdiction ; .and . 
iberefore tive (.»ourt quashed the Indictment. 

And as to the juAsdiction^he concurred With Lord 
Uau^eM ; and (at large) gave the same reasons, dmwn 
from the 60th secftion , of this act: which, he said, mani- .. ••. V' 
jestly considered the limyor, mercly as the head of his 
♦xxrporation, and did not .intend to give him a summary f 590 ' T 
jurisdiction, PBitsoNiit^Y. • Coijsequently, they must 
proceed in the ordinary way, that is*, by indicimtnt. 

And this very act of parliapf>pnt, gives^ the sessiom the 
^ji'tiittflal jurisdiction as far as within three miles cofnpass 
f4 ihe .citjji : for if it gives tli4 end, it must be construed 
to give the wrffn5 too. 

And iti,s^(3ii: like the proceedings /« rem, in the Exche- [4 Dam. 112] 
^tipjr. . porthc justices here nuiy give the forfeiture,, 
jjyjdojjbtf dly^ vpon an indictment^ (after conviction.) 
\ /ri^iJ? iiifijirma/im thereibre ought to be quashed; as it 
aprpears that the lord mayor, pebsonallt, had uofuth 
jumdictiofUy r , 

,.j/Mr^Juat. Foster concurred. He held that the 50tJi 
is£clfi9i?i,4idwo^givett}e jurisdiction to the mayor person- 
«Ai%%yV^nd in & ^umm^ry way ; but as the u c a n of a coiiri', : 
and he said that the whole cjause (taken together) IJ^I^^i^^i^ 
8lVI.|*'s* tb^r Tl^^'^foreVthe to be^iijUne 

.<>r4ii\ar^ .^PjUj^e, riz. h^ .iodicfment. And if they tiaye 
prfiqiii4fidiSik'^i^^ they ougbt' tp be.,s^pp- 

g^t Trinity X^jn^ 30 and ai Qeo. I . 

1757 P^ * ?"^ ^^^ infonnatipn may be qyifdied upon motion : 

^ a EX * *^^ ^^ there is woJtfrii(/tc/70n, th^ ftfi a sok doa %oi hold for 

• putting the defendant /o' DB^rixu;; but?^e 'm:!^ in'st/cA 


information tnade absolute: and tli6 fbrmet^ 
uuLB (prayed for quashing the certiorari) x>ts^' 

CHAKGBD- ' ' • ; 1 

Wttlnesday BRtcHT, Executof of Hakka.h Crisp, Widow, vtnui 

fi9th June, EykoK. 

1757. . *. . , 

{Mr. Justice M^xLTdOT was ahsenf : sittitfg in Chancery^di 
one of the Lords Commissioners of the Great. Sent) , 

New trial ^■'^ttK plairitifTs counsel moved for a new trial, trpbii 
-fiT»o^«d where -* payment of costs; and obtained a rule " to shew- 
drawD^ ^^ " ^^"^ ^'*y *^^ wrd/c^ should not be set aside, upon 
wrong *ton- *' payment of costs." 

tiusUiii, on . JLo'rd Mansfielp said that he did not choose, in atiy 
J«Jt» adroit* cause tried before him, to conclude the matter hy a short 
fWcf*'"^^'* report, "that he was satisfied, or dissatisfied/with the 
t^^'e*. 440 1" verdict." He would state the case particularly to the 
court; and reserve declaring his opiniouof the verdic^ 
r <?Q1 -i(>vhich'he had not yet infinnted, either at the trial trr 
^ "^^^ J since,) till he had heard ti.e counsel on both sides^ 

This* wits aa action upon the case, brought by the 
ptaiutifV as executor of Ifannah Crisp widow, decehsed, 
against the defendant, upon a promissory note in the fol- 
lowing words (all of the defendant's pwn writing,) whicU 
was proved and read. : " 1 aofciiowl^^dge to ha^e borrowed 
" of Mrs. Hannah