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4
REPORTS
or
C A S E S
ARGUED Aim ADJUDGED
IN THB
%in%'8 Cotttts at Weftminftttt
By OEORGE WILSON, Esq.
SBRJEANT AT LAW.
SSSSaSQSSBBSBB
IN THREB VOLUMES.
VOL. n.
COHTAINING
CASES m the Court of COMMON PLEAS, &e.
in Hilary Term in the 26th Year of the Reign of RiNi
GEORGE the Secomp* and ending in Troutt Tmu m
the 9th Year x>f the Rcigq of flis prefent Majefty KING
GEORGE the TatRP^
THE THIRD EDiTlONt
With General and ImmoTfd TABLES of the PRINCIPAL
MATTERS, and of the KAMES of the CASES, (bme
Account of the Lords the Judees, Seijeantt at Law, and noft
embcnt Coimfd attending the Mr dunng^ the Period of thefe
flcDortSy with other Alterationt ai^d Additiom.
PRINTED BT A. STRAHAN,
tAF-niHTBR TO TBC XIHO*! MOST EXCKX.X.KirT KAJEITT*
foa ftAMo a.aaooKB AVD i^aioia* j.BUTTsawoarvj
W'CLAaKI AMP tOlTj AND a»rHB»Y«
UPR4PY OF THE
JUL 23 1901
I
I
HILARY TERM,
26 Geo. IL 1753#
Stevens, of the Demlle of Wife, verfus Tyrell. C. B,
IN an ejeAmcfnt of .copyhold lands this cafe was refervcd at Amftomfbr
the affizes for the opinion of the court, which ftatcs, Th^t • f««» ««-
J. JenningSf bqng feifed in fee according to the cuftom of the ^nnA^^t
manor of the copyhold landsi In queilton, died, and the fame copyhold
dcfcended to. his heir at law France^ the wife of U^illiam Gearj^ lanitwith-
fttbje£l to 7. Jennings's widow Henriettas edate,) that Frances ^^^ ^f h«
the wife of J^/mai Grary 'was admitted, and being folely exa- huibundU
mined, furrendered the premifcs to the ufc of herfelf for life, *>*<*•
remainder to Henry Wife in fee 5 ^nd that Jf^ililam Geary her
hufband then living did not join with her, that henry Wife was
admitted to remainder in fee, that Wiliiam Geary died in V7?9,
and Henrietta the widow is alfo deadi and that there i^ a'cul^Jin
in this manor that a feme covert feifed in fee of copylaftd lands
may difpofe of her eftate^ without her hufband's joining. A
Terdidl was taken for the plaintiff, who claims under the fole
fimrender of Francis the feme covert, which is void if the cuftom
be not a good one.
After (breral ai^uments, the whole couirt were clearly of opi-
nion that this was a bad cuftom \ and WilUs Lord C. ]., in giv-
ing the judgment of the court faid, that Juftice BurAitt (who
was now lately dead} was of die fame opinion. •
It is not ftated whedter the feme eovert by the cuftom was to
be folely and fccretly examined, thoagh in fa^ (he was <b \ nor
Is it ftated that tlie hulband by die euftom was to confcnt though
he did not join, a^A thctdoft it anft be talen for |praiiked he
did not confenc
Itf-f^ieport of the teftmi was cited 2 Dwo. dkr. 430. fl. lO.
where it is faid that it is a good cuftom in a eopyhold manors
that a fbme covert, mntb $r tuithont the i^nfeni tli her hulband,
may devife her amhold knds to her haibaiidt or whom (he
Xouil. B pkefesi
Z Hilary Term, 26 Geo. IL 1755. -
pkafei; but this is not rightly abridged, and (hews what littfe
credit ought to be given to abridgments. The cafe abridged is
anonymous in Moor 123.//. 268. and the cudom there fouini
on a fpecial verdi£l is, that a feme covert luitA tie affent of her
hufband may deviie her copyhold lands to her hufband or any
Dyer 363. b. Other, which the court thought was not an unreafonable cuf-
Davt» 30. torn ; but that is not the prefent cafe, which muft be taken\o be
5^- ^ without the affcnt of the hulband.
tttoo-Si. It wasfaid, that if a feme covert levies a fine it (hall bind
143- Jjcr and her hcirjs if the hufbind does not enter and avoid the
eftate of the conufee. beeaufe (he was examined, and had power
over the land, 1 o R{p. 43* a. But the reafon given in Hob. 225.
IS, that (lie is eilopped to fay (he Was covert ; and a fine levied
by a feme covert of freehold lands was compared to a farrendcr.
by her in fee Qf copvhold lands entailed, whereof no fine can
be levied, and whicn would bar the iffbe; and this at (iiit
itemed to have fome weight with the court \ but at length they
refolved that this cuftom cannot be fuppofed to have had any
reafonable commencement, that it is contrary to law and the
%policy of the nation^ and tends to make wives independent of
their hu(bands -, that no tolerable reafon was given at the bar
for this cuftom. And the verdift was fct a(ide, and judgment
given for defendant, the heir at law ,of Frances the wife of
Jf^Uliam Geary^
Watfon Demandant et Lockley Tenant. C. B,
Rec«vei7 'T'HE writ of fcifin upon a common recovery was teftcdyi-
thi'^Vum" ^^'^^^ ^'^ y^**'^ ^"''^ ' ^ Georgiiy returnable ires Trin. . The
of the writ rctur^n made by the (hcriff was thus, *< Virtute iftius hrew mbf
oficifia. « direSi duodecimo die J unit anno infrofcripto habere feci infra^
<< nominato Willielmp Jvatfon plenartamjeiftnam de acris infrafiriptis'
*' cum pertinentiis prout interius mihi pr^ecipitur Johannes Loch
<< flif&v, (9* iViUiehntts Ogiome miles t vicecomes MiddlefexiaJ*
Now the words a*wo hifrofcripio refer to the teftc of the writ,*
which was in the 13th year of K. Geo. i.» but the 12th of June
was in the fird year of his prefect Miijefty ; io the court, upon
reading the writ and the return, ordeied the year to be amended
as a mifprifion of the derk without any rul^ to (hew caufe.
[ 3 1
fiASTER TERM,
£6 Geo^ It 1753*
89
Roberts ^erfus Plef foiii C B.
THE plaintiflT, who i$ a niarricd woman, entered into a bond A Jotfgmaiit
33 fccurity for the defendant for lOoA; and by 5*ray of ^^^
tounter*fecurity^ the defendant executed s) bond and warrant of vert it «oi4»
attorney to comcfs judgment to her. She having been obliged »nato«Jw
to pay 50/. for the defendant, has entered up the jitdgmcnt ^^^
upon the warrant of attorney, and taken out execution there-
upon, tt was DOW moved to let the judgment afldei and to have
the money paid into the hands of the (heriff reftored to the de«
fendant.
Per curiam — A judgment at the fuit of a feme covert Is void,
and fo is her bond ; and the mbney (he paid fot the defendant
was her hu(band*s, and he may fue tor it ; fo the judgment muft
be fet afide, and the money in the ttitxiiP^ hands reftorcd.
Whereupon the parties compromifed the matter, and a rule
lA^as entered into by confent that no a^ion (hoald be brought oa
either fide.
6cott verfus Dixon ^ aU C. 6.
A CnON of aflault and falfc imprifonmen
^^ pleads Not guilty a$ to all the trcfpafs
ifonment. The defendant Afl«olt tn4
in the declaration i»prifon-
rtcept the aflault, imprifonment, and detaining the plaintiff in ^J;,j .^^*
prifox) ; and as to that he pleads, that Dinah Scott fued out *of ti6ei an^*
this court a writ of capias ad rifpondendurH, dircfted to the (heriff • «»?'•« «1
of Cnmberianii to take Jonathan Scott (the now plaintiff) to anfwer J^^^p^^
Dinah Scott in a plea of trcfpafs, and alfo of a plea of trcfpafs tiff lepUet
ilpon the cafe lipon prdmifes, fis^r., which writ was delivered to ^^ defend*
. the (heriff, who made » warrant thereupon to two of the defend- J^^fr^'j^t
ants yamcs and Jflliiam Scott^ and (he other defendant Dixon arreft and
(who is the keeper of the county gaol) aflifted, which is the «|'«^»'<«
fame affjult and imprifonment complained of. aoTiwyt"''
jbd^meo^^ becaufe the defendant hu ackoowledged the trefpafs } this is DaQgfejt, and the plaintiff ought
Co hare voaiiJt anew a^gontau
B2 The
4 EastbrTerk, a5<Sd^.IL 1753.
The plaintiff rqdies, and admits the piwefii iflbcd to die Iberiff
of Cumbirtand^ and that be sode a mnraot dwf«U|lon dtreded to
two of the defendants, who arrefted the plaintiff tbeicbyt and
delivered him to the other defendant IKmn the gaoler» who rc«
leafed him from the arreft, and permitted him to go at larM oat
of his cuftody, and d^t afterwarda the defendanta took him
again; wheVefore^ as the defendants hive atkilowtedfad dio
faid afiault and imprifonment^ he pnjs indgment' aad hia
damages ; defendant demuss (eoeraliyi and plaintiff jobs in
demurrer.
It was obje£^ed for the defdndafits, that the replication was
bad, becaufe it does not confef8^an4 avoid» nor traverfe the ma-
terial faAs in the defendant's plea, which is a complete joftifica*
tion of the afiault and imprifonment in the declaration, whicb
fa&s are all admitted, and none of them denied or avoided | and
if there were two aflaults and imprifonment^ the plaintiff ought
to have inade a new aflignmem ; as in trefpafa where the defend-
ant juftifies under a licence for the putting in of his cattle into
the plaintiff's clofe, the plaintiff may come and reply, that it ia
very true I did licence you at the time yott fay, but vou put in
your cattle at another time without my leave, which muft be
anfwered by a juftiGcation, or Mot fuilty : fo in the cafe of a
way«
For the plaintiff it was fiiid, that the replication was well
Qiiough, and the defendant might have denied that he permitted
the plaintiff to go at large after the afreft, and a new affignment
is not neceffary s but if it -is, it ought to have been fliewn for
fpecial caufe of demurrer.
In reply for the defendant it was faid, if he had taken iiTue
upon tlie latter part of the replication, it would have been a
departure.
Curia — ^The defendant's plea is a complete anfwer to, and juf-
tification of, the trefpafs, affault, and imprifonment laid in die
declaration, which the plaintiff has admitted to be true : now if
there was any afTaulc and imprifonment befides that which is
juAified, the plaintiff ought to have fet it forth by Dvay of new
affignment; but inftead of doing fo, he' has oply faid that the
defendant Dixon the gaoler difcharged him from the arreft, and
the defendants afterwards took him \ wherefore inafinodi as the
faid' defendant has acknowledged the faid trefpafs^, he prays judg«
ment and his damages. Now it is mod plain the trefpafs acknow*
Qi«.Car. ledgedis the trefpafs in the^ declaration, .which has been fullir
a»^ jufti^d by the plea; and therefore it is abfurd for the plaintiff
to pray judgment of die trefpafs acknowledged, feeing the defend-
ant has confefled, and avoided it* And they inclined to give
judgment
Eastsk Term, 25(?^. II. 1753. 5
jadgment far the defeadanti becaufe they chottgtit the replicVtlon
was mmght for want of a novel afligniqpit. &rd adJTurnatur*
SeijeanC PmAp fon die defendaatt Serjeant TTytrnt for Ae .
plaintiff.
Adams ver/iis Freeman. B. R«
A SSAUiiT and impriiboment. Defendant juftifiea nnder a inprifoo*
^^ afias tflbed oat of a bafe court in an adion of debt, and menci dc*
fliews that a plaint was lemd, tsT taliter proceffumfuit thztz ^1^'^^
ct^uu tfliied» fffc. Plaintiff defttnrs § and it was objeded, that a c»pias ^^
the plea was naught, becaufe it does not appear that any fummons ^^ '" ' ^
iffued before the ci^^inl^' 8ed per Mam curiam^ foiiter pneeffim ^'^e^^'
/mtAat a c^ias iffued U well en6ugh, and we will fuppofe every any fum-
thing f^hr below. Judgment £ot die defendant. ^** *°^.
Kvellenoogli.
Ante, Mumf ud Wiifeo.
Cooke & al. vtr/us Petttt. C B.
D'
k EBT upon a bond brought by the plaiotifis as churchwardens DeVt upon a
of the pariih of -rf. The defendant craves ctfr of the bond, «>««» ^ *»••
and iets oat the condition, which is, that if he keeps the paritb [^[|^f,
^arrnkls, and maintain a certain baftard child, then the obligation from keep-
to be Tcid, otherwilc to remain in force ; and then pleads mn '°|^ * ^^
damniJSeatus. The plaintifis reply, that the defendant did not Ko!f dam?'
provide for and maintain the child from fuch a day till fuch a ficatui. Re-
day^ and 'that tiie pariih iiave been obliged to pay 5 /. to main- p|'?'^!^>
tain the child during that time; and this they are ready to verify ; \l\l^\\, to
wherefore they pray judgment. Rejoinder, that the defendant keep the
provided for the child during that timej and iffue thereupon, ^„^[f/'j|[™e
wUch was found for the plaintifi« And in arreft of judgmcht to^fuchft'"^
k was objeAed for the defendant, that it does not appear upon time. Re.
the record that the child was born in the pariOi of -rf., and there- jj^^^^^f **
ibre the parifli is not chargeable, and could not be damnified ; aintaine4
and cited 2 Sound. 8o. Richards isf al. t. Hodgts^ where it ap- 'n for that
pears on the record in that cafe, that the baftard child was born ^"^VerdTa
%n the parifh : and it was fald, that orders of baftardy are frc- f^, piaintifF.
qoently quaihed in B. ii., when they do not ftate that the child Objeded, ic
waaborninthepariOi. t^rZ"^
child wu
To this it was anfwered, diftt it appears upon the record that the ^^q <" ^^
plaintiffs are churchwardens of the parifli of ^., and the court ^^/J"^
will intend that it was proved at the trial that the baftard child
viv^ bom in the parifli of A. And of that opinion was Juftice
Gtmdrj^ (only an cour^) and gave judgment for the plaintiffs.
B i Then
I
r
8 TRiviTrTiLAUyt6^zjG».lL ly^j.
Oa the orber fide it wa| infifted. that the cMcutor is not en-
titled to cofts upon the rule, it being merely perfonal) and if
there htd been a ver di£l for the defendant he could have haf
no coftdi and there c^n go no attachment againft an executor
for non-payment of coiU in this cafe, nor wtU any a&ion lie for
cods in this caie on either fide i and of that opinioa was the
court*
^■ t ' V
MICHAELMAS TERM,
2yGe0.lL 1753.
Long vetfiu Jackfi>n. C B.
Depirtttn. T^ E BT upon a bond : the defendant craves ofer, and lets out
^^""h^*?^ JL/ the condition. Thai whereas -rf. JJ. had put himfcir appren-
jollied by the ^i<^^ ^0 the plaintiff: Now thc condition of this obligation is fuch«
defentfanc to that if the faid J. B. (hall not run away or depait from his faid -
femf'^^bii ^^^^ during the time of his apprenticelhip^ then this obligation
to, ' to be Void, otherwife to fLmaio in full xorce^ and avers that
A. B. did not run away or depart from the plaintiff during the
term of his apprenticeihip. The plaintiff replieS} that A. B. put
himfelf apprentice with the plaintifl^ to ferve him as fuch from
fuch a day for the term of feven years, and alBgna for a breadi
that A^ B departed from his fervice before the end o£ Ae fai4
term of feven years* The defendant rejoins, that the agreement
between the plaintiff, defendant, and A* B*% was, that A* B%
fliould ferve the plaintiff only for the term of five years, and con««
eludes with an averment. The plaintiff demurs, and alfigns for
eaufe, that the matter in the dcfcqdiaat*s rej<Mcdef is a departure
•irom his pka.
XTpon the argument it was ^eAed for the ^aiadff, ift. That
here is a departure \ and. idfy^ That the rejoinder oi|g|it to have
eoHclttded to the country.
Co. (itt. for the defendant it was fiud, as to the firft oUeAioiit That
VH- •• although it be tne ia debt upon a bond where toe defendant
5 pleads
Michaelmas Teem, tj Geo. It. 175 j.
pleabdf OMiditioM performed, iIm plaintiff replies and affigns a
breach, and the defendant refoina new matter in ixtufe^ thai this
is a departure ; yet it is as tmc that die defilpdant may introduce
new matter in ef^lanatmt mrfirHjication of his bar* and it will be
no departure : and this is the preCsntcaC^ i for It does not appear
1»7 the condition iet oat, or upon the defendant's plea, for how
long the term was to be | and this rejoinder is onlj an ixfiUau^
tiw trjirif/ki^wi of the bar^ and i^ot new matter 01 vuttfe.
As t9 the fiecond obje£Uon, it was anfwered for the defendantt
that the plaintiff in his replication difdofes new matter, that the
term was for fcven years \ he might have replied to the coontry
that A. S. departed during the term, and then that would have
come before die jury* whether the term was for feven years ;
but not having done fe, but introduced new matter which did
not appear before, the defendant has fully anfwered that new
inatter, and concluded cigbdy with an averaient } and cited
r#rtf V. SaiM, I Fin. lai. 2 i>v. $• S. C as dire£Uy in the
point to this objeftion % the defendant had no occafion to di&
clofe in his plea that the term was for five yearsi as no mention
wais made diereof in the condidon of die bond The court over-*
ruled both the objeAions, and gave judgment for the defendant.
Serjeant 4t^ for the pbimiff, Serjeant F^ for thp defendant*
Julian v^»s Shobrooke. C B.
ACnON ttpon a Ul of exchai^ brought by the payee againft a
die aoc^tor, who only accepted it in a ccmditional manner ; ^^^^ *^^
fwx. upon aceount of the Aip Tktis when in cafli for the faid TmSn*
wiePa casf^i end die pUndff avers ia his declaradon that at ebMistU
the day when Jthe UU braime payable the defendant was in ca(h f^jJJ^^
for the (aid Ihip's cargo. Upon mn qffim^ there was a verdiA upUM
for the slasndff I and now Seijeant JIgar in. arreft of judgment
objcAed that die defendant was not liable by this conditional
acceptance. M fir t urmm ' T he objeAton was over-ruled ;
and they laid diere is a difference hdween this fort of acceptance
when the bill is drawrf upon die perfon, and where it is drawn
upon modes and it is ntow fettled that a parol acceptance of a
bUl of exchange is iufficieftt to diarge the acceptor. % Sira,
io4fr
to
MicHAEiMAs Term, 2yGc0.ll. iys3*
Nil debet CO
• bood It bad
•a a geneial
Anonymous. C. B.
T^EBT upon a bond, nil debet^ and a general demurrer : it was
"*-^ infiftcd by Serjeant Draper for the defendant, Aat nil debet
to a bond wa« good upon a general demurrer, and was only a
jeofail and matter of form ; that after a verdift it would make
a final end between the parties, let the verdi& be which way it
will. Sedper curiam — It is nought upon a general demurrer^
though perhaps it mi^ht be helped after a TerdiQ, Judgment
for the plaintiff.
AoMvaid
lielpcdaftor
overdid.
3eli verjiit Simpfbn. C B.
TNEBT upon an award, whereby it was awarded that Simpfin
'^ ibould pay Bell 22/., and that they fhould give mutual re-
leafes of all adions and demands until the date of the faid recited
bond of arbitration. In arreft of judgment after a TerdiA it was
obje£led by Serjeant Pook for the defendant, that it does not
appear in the declaration, or in any part of thb record, that there
ever was any bond of arbitration^ 10 that it is impoffible to fay
till what time this award makes an end of matters in diflerence
between the parties, and for any thing that appears this might
be a parol fubmiflion. Cum-* The defendant has pleaded no
award ; the plaintiff has replied, and a(Bgned a breach for non*
payment of the mon^y ; this might have perhaps been a i^ood
obje£lion at the trial, but after a verdifl we will fuppofe that the
arbitration bond was (hewn at the trial, and was agreeable to
the releafe -, fo there rouft be judgment for the platntiff'« Scr«
jcant W^ilks for the plaintiff,
\
I " )
HILARY TERM,
ajGeo. II. 1754-
Everall verfus Mafon, a Prifoner. C. B.
DEBT apon a judgment : the defendant appeared by attor- ifa ^mm
Tiejr and pleaded nul tUl record^ and iflbe thereupon quod ^v^r% m
habetur tale recordums the plaintifF figned judgment for non- J^^^^jll^
payment of the ifTue \ and now it was moved to fet it afide, for pay for cb«
'that a prifoner is*not obliged to pay for the iflue^book; but by ifluciodM*
all the fecondaries then in court it wa^ reported that the prac- ]JJI^*f, w
tice is, where a prifoner appears by an attorney he (hall pay ucomey,
for the iOue, or judgment may be GgneU ; other wife it is where
be appears in perfqn. Curia —li this had been an ifiue to the
country we would have fet aGde the judgment upon paying the
cofts of the motion, and for the iflue \ for we will not let final
judgment go where the merits have npt been tried, and where •
the plaintiff cannot fufer any ihconvenience by any affe^ed
delay, and here he has the defendant's body in prifon ; but as '
this isr debt upon a judgment, there is no doubt but there is fuch
a judgment-, fo there is dpthing of merits to be tried, and
^he judgment mud ilapd.
* •
Simmons^ Vicar of Kendall, verfus Langhorne. C B.
DEBT upon a bond : the defendant craves ^ thereof, and Dak on
fets out the condi^ioi) : Wb^C^^ the inhabitanu of Siffide ^^^^'^
kave threatened to fue Simmons for nominating IVilliam Lang" ^^^,
Iwne to be curate of Silfide chapel lin the parifli of Kendall : Now peaces by
the condition of this obligation is fuch, that if the above-bounden '«^^on«i'
William Langhorne 0^7i\\ favciiarmlcfe and indemnified the faid ?o"'cor»cy,
Thomas Simmons from all damages, eicpenceSy aqd fums of money, orfromfuiia
Virhich the faid Thomas Simmons ox his executors (hail be obliged ^^ '**J^
to pay by reafon of the laid Thomas Simmons*s making fuch no- nm 4jmai-
mination, or (hall fave him harmltfs and indemnified from all ficitus $
fuits, £^^. by leafon thereof, or, i^c. then this obligation to be '^Itw^tod '
aflignt for breach diaf he wM obliged (b pay inch a &!» bj its|ibn of f^ch abaiiuttaoa, boc does aoe
iMy h»vf he wu ohlifcd 5 tQ4 wtU cimi^,
Toidii
IS HiLART TiRM, 27(?^0.II. 1754^
void, otherwifcy Isfc. and pleads non iammfieatus : tfatf plaintiff
rqpliesy and affigns for breach that he was obliged to pay and
did pay fo much money by reafon of fuch nomination of Thomas
Langhorne to the faid curacy of Zeyiit : the defendant demurs
generally, an4 the plaintiff joins in demurrer.
It was obje£led by Serjeant Poole for the defendant, that the
replication is not iffuable 1 that the breach.afligned is ill, becaufe
the plaintiff only fayl he has been obliged to paj, and did pay
fo much money by reafon of fuch nomination ot Langhomi to
the curacy, but does notiay how he was obliged to pay it^ whether
by futt, or how, and the condition is to fave him harmlefs
from fuitsi ai^d cited Cro. Car, 363. Bro. tit. Coniiikn^ pl^ 36.
a Bulf. I If. Reeve v. Harris, a Vent. 261* Lutw. 470.
I Bronxnfs Ent. 194. Tomfoffs Ent. 145* Winch. Ent. 271. 375,
a Saund. 8i* I Saund. II4,
On the other fide it was anfwered by Serjeant Draper^ that
fince all the cafes cited the Jlat. 4^5 Ann. for amendment of
the law was made, and if the breach be ill affigned, it is only in
form not in ftshftance^ and this is upon a generaJ demurrer; bat
he infifted the breach was well afligned and iffuable i for where
. the condition is in the disjunctive, as it is here, if aii v one breach
be afligned, that is fufficient ; and here it is afligned in the very
words of the condition. That the plaintiff was obnged to pay and
did pay fo much money by reafon of fuch nomination of JLang^
home to die curacy i and there is no occafion to fay bow he was
oblieed to pay it, whether by fuit in Chancery, (which was the
truw,) or bow otherwife.
CirfMh—The obje£lion ought not to prevail, for this is only
matter of firm i but if it was matter olfuhjlance^ the breach k
. well enough afligned and ifiUable, and it might be tried by the
country whether the plaintiff has been damaged by reafon of
tlie nomination to the curacy. Judgment for the plaindff /«r
t9t. cur.
In Hilmrj vacation Mn Jvftice Gundrj died upon the weftem
circuit, and Lord Chief Juftice Lee died at Lwdm about tht
(amethne»
[ 13 1
EASTER TERMi
ay Geo. II. 1754*
THIS term began upon the firft day of May : upon thefe- ^
cond of Majf Sir Dudley Ryder^ knt. the Attorney-Gene-
nl, and the honoorable Henry Batbwrft efq. were called to the
degree of feijeants at law, and the fame day kept their feaft in
UncoUs Inn hall ; the former was appointed Lord Chief Juftice
•f the King's Bench, and the latter a Juftice of the Common
PleaSf and took their places in the refpeAive courts on Monday^
MQy6^ 1754.
Roc, of the Demifc of Jeffereys & aL verjits Hen.
Hicks Mil, & al. C B.
inioa
17 JECTMENT : vcrdift for the plaintiff fubjefl to the op . . ^ funwNier
*-- of the court upon this cafe : Jofeph Jeffereys being feifc '" to one who it
fee of the copyhold lands in oueftion, (which he held of the ma"^*". S?"'*^^.*'
of Hignuell, whereof the defendant Sir H. Hicks U lord,) by hw £;;ji,*2t
will, dated in Offober 1746, devifed the fame in fee to Eixaiet^ foreadmit-
y^enysp and furrcndered die fame to the ufe of his will j that 2°J» *•
Upon the 19th of March 17525 JEUzabetb Jeffereys was tried and f<^^^
convi^ed for the murder of the teftltor, and was afterwards ^^ i^t bat
hanged ; that the teftator died feifed, and EU%. Jeffereys was J^^,^
never admitted tenant, nor ever did any z6L to ihew {he theftt'tea*
was the lord's tenant \ that Sir H. Hicks never entered, but the
homage prefented the attainder of jS/iz. Jeffereys^ and the pre-
mifes in queftion have been granted to the defendants, as being
forfeited to the lord by the attainder. The leflbrs of the plaintiff
elaim one as heir at law to the devifor, and the other as heir of
Mlix. Jeffereys^ and the defendants as lord of the manor and
porchafors under him. Three queftions were made upon this >
cafe, i^. Whether the lands wcurc forfeited to the lord i idly,
Whether the furrender to the ufe of £li:i. Jeffereys did not pre*
rent the def^ent to the teftator's heir at law f and, ^dly^ Whether
the attainder did not hinder the defcent to her heir ?
But upon the argument, the three queftions were reduced to
one, to wit, Whether Mifs Jeffereys bv the will and furrender
liad fuch eftare or intereft in the. premiers as fhc could forfeit to
the
ftc lord of the manor ? for if flic had not, cither the heir of tiii .
dcvifor^ or the heir of Mifs Jfff^rejs^ will have title.
It was argued by Serjeant Wilkf for the plaintiff, that th^
heir at law of the devifor had title, and that nothing was ever in
Mifs JefffreySf and that by the furrender alone without admiC*
fion (he never was tenant to the lord either in law or in deed ;
and that before admiffion a purchafbr of copyhqid landi cannot
bring an eje£iment for themj a& an heir who is by defcent may
do ', and the reafon is» becaufe the admifiion of the anceftor is^
in law, confidcred as the admiffion of the heir to many purpofes;
but the admiffion of the furrendcror !$ not the admiffion of the
furrenderee, and the furrenderce cannot do any legal a£t before
admiffion ; there never was any privity between Mifs Jcffereys
and the lord, (he never had any ellatc in the lands, and it i»
abfurd to iViy flie forfeited what flic never had; the eftate de-
fcended to the devifor's heir^ who, in fuppofition of law, was
the tenant to the lord immediately upon the death of the devifor<
Cro. EL 349. Tclv. I4'|, 145. % Bulft. Foord v. Hojkins*
Thefe cafes prove that the furrenderce has neither jus in re not
pd rem before his admittance.
For the defendants it was admitted by Serjeant PrxW, that if^
Mifs Jeffereys had nothing in her, neithet jus in re nor ad rem^
flic certainly could forfeit nothing. But he infifted that upon
the death of her uncle the devifor, and before her attainder^ (he
had a capacity to take under the will and furrender, .and had ^
right to be admitted tenant^ although (he would have forfeited
upon being«convi£l;ed ; for a perfon may have a capacity to take,
though not to hold, i Injl. 2. a. b, and a perfon incapable td
take for himfelf (hall be capable and prefumed to take for the
benefit of the crown, fo may Mifs Jeffereys be prefumed to take
for the benefit of the lord.
But it is objeflcd (he was never admitted, and (he could not t>e
tenant without it. In anfwer to this, (he certainly had a right
from the indant the devifor died, and after admittance could
recover the profits and rent from the time of his death ; and to
fay the heir (hall have the profits until the devifce (hall be ad<*
mitted is very (Irange. Mifs Jeffereys certainly had jus ad rein^
for upon the will and furrender the lord was bound to admit her
upon that title. ^
Suppofe a furrender be made to the ufe of J. S., ind the lord
receives the furrender, but refufes to hold a court to adnnrit J. 5.,
and inftead. thereof enters and takes the pfofits, the furrendered
J. S. (hall upon this title maintain an ejeclment argainft the lord
without any admittance, for the lord (hall not take advantage of
his own wrong ; this could not be if there was no title iri a
furrenderce before admittance (this was faid afguendo^ and f
he<ird no cafe cited to fupport it ; iJeo quare)*
Easter Tekm^ 47 ^^'^^^ '754-
. upon the death of the devifor before the attainder, the heir
at law could not have maintained an ejeflment, unlefs Mifs
Jeffertyi ii| |he Lords' Court had firft scfufed to accept, and be
admitted tqinmt. .
Bemefordy. Pachngtoftf I Leon. i. he cited as a cafe in point;
where die grandfather of tbe> pl%ifftiff dicd^fcifed in fee of a
copyhold, .Having > widow who ^aa admitted to her free^bench
of the whole by the cuftom, and a fun A.f who in his mother's
life was convi£led of felony ; and this was held to be a forfeiture,
though A. was never admitted, and though the lord could not
feife during the widow's life. '
Cuna'^Tht fingle queftton is. Whether if a man furrenderr
a copyhold to one who is attainted and hanged before admit**
taoce, the lands ihall be forfeited to the lord ?
Mifs Jeffereys never entered, never was admitted, nor ever did
any a£l to (hew (he was tenant; and a furrender and admittance
make but one conveyance, *fo how coidd the right, heir lofe the
eftate?
It is faid for the defendant, it Is otherwife in the cafe of the
heir who is in by defcent, and that he can bring an ejeftment
before admittance. This is very true ; but a furrenderee cannot.
It 18 faid that a furrenderee may recover the meihe proSts
from the time of the furrender. That is true, after he is once
admitted ; and fo may a feo0cc from the- date of the feoffment
after livery and feifin, and a bargainee after iiirolment. The
rcafon is, becaufe they are conHdered as one conveyance*
A will and furrender to the ufe thereof would not be fufficicnt
to maintain an eje£tment againft the heir Stt law.
If the lord was to accept a furrender, and the furrenderee en-
ter thereupon, and afterward the lord was to difleife him before
admittance, an a£Hon lies againft the lord, becaufe he (hall not
take advantage of his own wrong.
As to the cafe i Leon. r. the anfwer to it is, that the heir at
law was in of his reverfion, which differs totally from this cafe.
The eftate, upon the death of the devifor, defcended to his
heir, who is the plaintiflrs leiTor in the firflt demife ; and he muft -
be confidexed in law as tenant to the lord until fomebody elfe be
admitted. ^
' In the cafe of a devife of a copyhold, nothing vefts in the de«
i^Uec or Iwreaderee, nor in the lord ; and until adasittatic^ the
eftate
k 9 vitfc
admittance is as ntctttxtj-to a {untndcf^ u inrakMtt to a bar-
gain and fale^ or lvi€rf to a koSmtoL
Vht^f The whole mM Intfined lo gilt jikhmiM fcr <rif
plaintiffupontWs firft argttttwi^ bttt^Mft IM^ AttHopiaioi.
Mjoumatur. VUepffii '^ ^
X
mf^mmmm
TRINITY TBRM,
27 & a8 Geo. II. 1754,
loaWft
cottitthedt*
daratioA
maft alledie
that the
foods were
fold And de*
Urered with*
m the jttf if-
didioo, at
fPtU Sf that
the defend-
ant ^omlfed
widuA it.
R€c, of IhcDcxnifc of Jcffcrcyi, & aL verfus Hicb
&al. CB*
THIS cafe was argued a fecond time this terra, when the
court was ftill of opinion for the plaintiff. That Mifs %/l
firejs had no legal intcreft in the eftate, fo could have no legal
remedy to recover it \ and having ao legal jus ia n nor ad fern.
could not forfeit any thing.
Waldock veffus Coopcn C B.
TX^RIT of falfe jjidgment brought by WaUtci againft Coettr
' ^ upon a judgment ia the bormi^ court of Jy/fAun.
Center being plaintiff below, dedues that JTa/dtei was iadebi^
to him at ytflejimj fop diveis good* ibid and deU?ered by him to
Wa/Jetk (not faying that they were fold aild deliverad iAir/, or
witbfa the juTtfdiaion); and being fe indebted, he the ftid
JVaUoci promifed within the jurifdiAioa to poy. Upon mw» ^
/itm^t, there wa» a verdia and judgment for the plaintiff below.
And iMw it -was objeaed, detf the declaratioii does not «lledkre
tfcat th«tpod«'vere>/4rM</ dOhertd niOm ae/trffikam, bat
onlf
t 1» ]
HILARY TERM,
iS^Gco. II. 1755.
Pendock, of the Devife of Mackender, W(^x
Mackender. C B.
One con- fT^HIS is an cjeftmcnt for lands in Kent. The fubftance of
fH^tAwtnf A tl^e cafe rcfcrvcd at the affixes for the opinion of the court
«od whipi^ is (hortly this : That J. M. being feifed of the lands in queftion,
cuinot be a by his will executed in Septembn- 175O1 devifed the lands to the
ASlt'it defendant; that there were three witnefies to the will, viz.
the crime Thomas Turner^ Jof, Jeffery^ and another ; that Jof. Jeffery^
•nd'not the one of the witneflcs, before th^ time of atteftation thereof, was
wUcbm^ indicted, tried, and conviOed for ftealing a (heep, and was found
a maa lah- guiltf to the value of ten pence, and had judgment of whipping*
nous.
The plaintiiF claims as heir at law to the teftator; and there-
fpre the fingle queftion is, Whether one convi£led and whipped
fbr petit larceny be a competent witnefs within the ftatute oi
frauds and pc^rjuties.
After three ari;uments at the bar, the whole court were cleatly
<lf opinion that Jofepb Jeffery was not a competent witnefSf and
laid it.dow^ as a rule» that it is the aime that creates the infamy^
and takes away a man'ft coippetency, and not the punifhment for
S Mod. 75. it i and it is abfurd and ridiculqui to fay it is the puniihment that
creates the infamy.
The pillory has always been looked upon as infamous, and to
take away a man's competency as a witnt-fs ; but to put one cafe
(amongft many that might be put) to (hew this is a very abfi:^rd
notion, is fufficient: if a man was ' conviAed upon the^a/.
4 W* tsf M. againit deer^ftealing, there is a penalty of 30/. to
be levied by diftrefs, and if he has no diftrefs, he is to be put in
the pillory j fo that if the pillory be infamous, the perfon con«
vi£led (according to this notion) will be fo, if he has not 3oA»
but if he has 30/. he will Qot be infamous.
13 * la
Hilary Tbrm, 2$ C^^. It. 1755, tg
In the prefent cafe both the crime and puniQiment are infa- s Inft. nS,
mous J and he that deals a penny has as wicked a mind as he ' ^ ^^3*
that fteals a laiger fam, if not a more wicked mind, for he has aBvir. 15^
the leis temptation* Petit larceny is felony, i Havik. 95. f. 35. Co.Utt.
And no cafe has been cited where a perion conviAed thereof '5^- >•
was ever admitted to be a witnefs. Judgment for the plaintiff
per Mam curiam.
. Armftrbng^ of the Devife of Neve, ver/us Wolfej.
C. B.
p JECTMENT, tried at Ncrwirb before Parker^ Ch. Baron,
^ who referved this fliort cafe for the opinion of the coort*
jI» B. being in pofleflion of the lands in queftion, levied a fine
fur conufans de droit come ^ceo^ &c. with proclamations to the co-
nufee and his heirs, in the 6th year of the prefent Kingi without
any confideration exprefled, and without declaring any ufe
thereof} nor was it proved that the conu(ee was ever in po&
fcfflon.
So that the fingle qneftion is. Whether the fine (hall enure to A fiaelcvkd
the ufe of the conufor or the conufce ? And after two argu- ^^^J|J^"'
tftentsy the court Was unanimous, and gave judgment for the tbooroiet
plaintifi^ vtho claimed as heir of the conufor. aeciired^
ihaU eoture
Curia — ^In the cafe of a fine come ceo^ &c. where no ufes are ufeinwhom-
declared, whether the conufor be in pofiefflon, or the fine be of iberericwti.
a reverfion, it (hall entire to the old ufes, and the conufor (hall
be fin of the old ufe ( and although it pafles nothing, yet after
fire years and non-claim it will operate as a bar.
And in the cafe of a recovery fufiered, the fame fliall ennre
to the u(e of him who fuffers it, (who is commonly the vouchee,)
if no ufes be declared ; but he gains a. new eftate to him and his
heirs general ; and although before the recovery he was feifed
ex ^rtt tuntemiy yet afterwards the eftate will defcend to his
heirs ex parte paiema^ as was determined in Martin v. Stracban,
ante. Sed vide that cafe, % Stra. 1 1 79.
In the cafe at bar, the ancient ufe was in the conufor at the
thne of levying the fine-, and it feems to have been long fettled
before this ca(e, that a fine without any conGderatioir, or ufes
diereof declared, (hall enure to the ancient ufe in whomfoever it
was at the time of levying the fine \ and as it was here in tb«
conuibr at that time, the judgment nauft befiur the plaintiff.
«€> Hilary Term, 28 Geo. II. 1755.
Anonymous. C. B.
Adedir^ ^HIS was ah a£lion for a furgeon'd demand; and in every
rorgnn^for count in the declaration it was laid to be for curing the de-
toriog the fendant of the foul dtfeafe. The court exprefled great difplea-
*^^**"£ ^^^^ ^^^ ^**^^ language was ufcd in a declaration when there
re^rcdfdr ^^^ "^ occafioii for it, and intimated their defire that whenever
'Icudal. the like fcandal \s inferted in a declaration^ that fomebbdy woul4
move to ftrike the words out, and to refer* it for fcandal and
impertinence, and that they (hould dired the prothonotary to
tax exemplary cods \ that the rule for referring fcandali fsfc^
Qiight to be the fame at law as in equity ; and they remembercA
359/. cods taxed in Chancery for fcandal.
Baldwin verfus Tudge. C. B.
T. T\£BT for an amerciament in a court*baron againft a freehold
Df« kJ tenant of the manor. Upon nil debet ^ it appeared in evi-
TbeS- ^Icnce at the trial at Worcejter^ before Mr. Jufticc Clive^ by an
i by entry u^on the court-roUsi that the defendant was amerced, and
^^2^^ that the fame was affecred by two affeerors, whofe names wei«
aor, or debt ^^^ down there ; but it was obje£led that it did not appear in
will not lie proof that the two aflTeerora were freeholders of the manor } and
for It. ^^^ point was referved for the opinion of the cpurt.
After argument at the bar by Serjeant Prime for the plaintiff)^
and Serjeant Willes for the defendant, the whole court were clear
of opinion that an amercement of a freehold tenant in a court-i
baron mud be affeered by his peers, that is to fay, by free te-
nants of the manor ; and founded their judgment upon Magna
Cbarta^ c. 14. and F. N. B. 8vo. Moderata mifiricordia^foL 185.
whereby it appears that the aflPeerment ihall be per probos fsf /e^
gales homines de vicinetof which means per pares de vicinetc ; and.
none can be peers of a freehold tenant Dut a frciehold tenant of
the fame manor in this particular cafe. Fitzherbert was a very
g^eat lawyer, and the cle^^eft writer in the law % and where he
lays, that by the ftatute dijMagna Charta every amerciament ia
a court-baron ought to be affeered by two tenants of the manor^^
he muft mean freehold tenants, for they are properly the tenants
of the manor ; for the court-baron at common law is the free-
holders'^ court, of which they are the fuitors and judges ; and
whep all the freehold tenants are gone except one, the court<«
baron is gone too.
And
Hilary Term, 2S Geo. II. 1755. ai
And tberefore, as it did not appear that the amereiament fet
upon the defendant was affeered hj his peers, they held that this
action did not lie, and gave judgment for the defendant.
NsUi PrM fsf legates homines de vicineto^ muft be taken and -
conftnied lecundttmfubjeBam materiam ; thej may mean the free-
holders of a^manor^ or of a countji (s^c.
EASTER TERM,
28 Geo. II. i755f
Ford verfus Parr & al. C. B.
TRESPASS, tried at nifi prms before Mr. Juftice' Fojler^ Altiiftoi
who omitted to certify in court at the trial that the uppnot
trefpafs was wilful and malicious upon the Jot* 8 far 9 JP". 3. ^S for^Si
^ lo. in order to entitle the plaintiff to full cofts } and after* oucorcooit.
wards upon application he certified out of court. The queflidn
now waS} Whether the judge had power to certify out of the
court of nj/iprius? Per curiam^^The certificate is void, and
contrary to* the ftatutci which cnaAs that it (hall be made in
open court at the trial.
Law qui tarn verfus Crowther. C. B. .
'T^HE defendant moved to plead nil debet to the whole ; and^ ^^^- 4 *
^ ad/jf a recovery as to the fecond count : but per curiam'^ l^^tu^*
Thejlat. 4 {^ 5 Anne^ for pleading double, does not extend to to qui um
qui tarn a^iions \ and this has been often refufed here as well as a^mm.
vxB.R.
C3
TRINITY TERM,
a8 & 2g Geo. II, i75j^.
Doe, on the Demlfe of Milbourne & Ux# ver;fi/j
The Purchaiera under the Aflignees of a Com-
milfion of Bankrupt awarded againfl: ' George
Simpfon. C B.
A^M^L T^ ejeament of lands in Northumberland the folbwing cafe
to t oove^* ^ ^^ made at the afiizes for the opinion of the court :
out to ftnid
iieiledtoiite George Simj^on being feifed in fee of the lands in queftion, in
confideration of a marriage to be had between him and Ann Storey^
by indenture between him the faid George Sim^n of the one
part, and the faid Ann Stcrej and WtUiam Storey of the other part,
givcsj grants, enfeoffs, aliens, and confirms to Ann Storey and
Wiliiam Storey and their affigns, the lands in quedion, then in
the pofieffion of George Shnfi/hn, habendum to the ufe'of the (aid
Ann ^torey^ ibr life, remainder to the heirs of 'her body begotten
by the faid George Simp/on^ who covenants that the lands ihati
remaid to the faid ufes clear of all charges : the marriage took
cfk€t ; George Simp/on afterwards became bankrupt, and the af*
fignees feifed the land and fold it to the defendants, as taking
this deed to be void in law \ or if it was not void, diat George
Storey was feifed in tail by it. .
After argument at the bar by Serjeant Pode for the plaintiff^
(wha claims under this deed,) and Serjeant Prfi9i^ for the de-
fendants, it was refolved by die whole court that this deed can-
not operate as a bargain and fale, becaufe no pecuniary confi-
deration was paid, nor as a releafe, becaufe there was no leafe
for a year, nor were the grantees in pofTeflion $ nor as a feoff««
ment,* becaufe there wns no livery and feifin ; and therefore tho
fingle queftion was. Whether it ihall not operate as a covenant
to ftand feifed ?
And although it was dbje£led that there wants a confideration
>of blood between the covenantor and William Storey^ and that it
feemed to be thjc intent of the parties that the deed (hould operate
as a common law conveyance, yet it was refolved by the whole
courts that it flull operate as a covenant to ftand feifed, whereby
an
fak
TlUNiTY Term, 28 & 29 Geo. IL 1755. 23
in cftate in fpecial tail is clearly in die faid AtmZt^rtji Md
Gitrfgi SimffoHj (who is now dead,) had only an eftate for life
by implication with a reverfion in fee ; and they faid that judges
had been afiuti to conftrue deeds to take efle£t according to 3ie
intent and meaning of the parties, ut res magis vakat quampereatm
2 Inft. 672. IM. Sbfp. Touch. 87. I Lutw. 782. I M$d. 175,
I Vem* 137. a Liv. 213. 3 Lev. 370. Carth. 2 Stra. 934*
Judgment for the plaintiff. '
Bi4dulph, Efq. verfus Ather. C. B.
^ROVER for a Hoop, upon Not Guilty, was tried before Mr* T«oaUMv.
* Judice JTUmot at the laft aflizcs for the county of Suji:e. "*"^
Upon a motion for a new trial th6 judge certified that the plain-/ jS ^I^y^ y *^
tiff's title to the floop was, that he is lord of the manor of tiefpaA 400
Lancing in the county of Saffexj and being fo, b. entitled by pre- l««"fi««^
fcrfption to all wreck of the fea thrown upon that manor, and clufife^* '
that the floop for which this a£lion is brought was wrecked upon dcnetigtiaft
that manor. uCi|«ibr9»
yean lift
pftftt»baf«
And to prove his prefcriptive right, the plaintiff by court-rolls wreckof tht
and parol evidence proved that the lords of the manor of Lancing '^
had taken aitd enjoyed wreck thrown upon that manor from tho
23d day oi April. ,i66^<, until the time of bringing this adion^
without any interruption*
For the defendant, (who is bailiff or fervant to the Duke of
Norfolk^ and feized this floop as wreck on behalf of his Grace,) it
was infifted that the Dnkc of Norfolk was entiricd to all wreck
thrown upon any lands lying within the rape, or barony, or honour
of Brambre in the county of Sujfex ; and it was proved that the
manor of Lancing lies within the hundred of Srightford^ which
lies within the rape, or barony, or honour of Bramhn.
It was alfo proved for the defendant by records, that at a
court of eyre held at Chichefler in Sufex, in the 7th year of King
Edw. I. Adam de Bavent claimed free chafe in his manor of
Rocking, and .wrecks of the fea in his manor of Hay, which liber-
ties he and his anceftors had enjoyed time immemorially ; and it
was found by the jury that he and his anceftors had and ought
to have free chafe in his manor of Rocking^ and that he and his
anceftors never had wrecks of the fea^ nor odght to hsive in his
manor of Hay, eb quid domini barones de Brambre femper ibidem^
b^ a/ibi per totam baroniam pradiffam ed libertate uR fuerunt W
' earn habere debent, and therefore as to the wreck of the fea he was
amerced for his falfc claim.
.C4 "^
^4 Trinity Term, 28 & 29 Geo. II. 1755.
tt was alfo proved for tHe defendant by record, that at the
fame court Nigel de Brock and Hugo de Bufey claimed wreck oJF the
fea in their manors oC Lancing and Kingfton near Shorcham^ and
that they and their anceftors had time immemorially afed the
faid libertiest and it was found by the jury quod pradijEii Kigellus
€t Hugo nunquam utebantur pradiSIis UbeHatibus^ nee Hureccum illud
habere debentfed Dominus JViUielmus de Breufe illud nvreccum habere
debet ft acciderit per co Her am maris in rape de Brambre^ ideo eon/i^
deratum eft quodpr^diBi Nigellus isf Hugo de catertf non babeant pr£^^
diHum wreccum, fed quia illud clamabant Jint in mi/ericordia pro
falfo clamore.
s
It was lilcewlfe proved for the defendant by record, that in the
7th year of Edw. 3. John Odrich and fevcral others were attached
to * anfwer John de Mowbray quare cum ipfe dominus honoris de
Brambre exijtatj . idemq ; Johannes de Mowbray habeat Isf ipfe if
anteceffores fm domini honoris pradiBi a tempore quo non extat memoria
bucufji habere confueverunt infra honorem pradiB, wreccum maris is^
quicquid ad httjufmodi wreccUm pertinet^ prafati Johannes Odrich
(and many other perfons) took and carried away divers quantities
of goods caft by the fe<i upon the land at Honcy Jf^ortByng^ Lancing,
Pende^ Shcreham^ and Kynefton^ within the honour of Brambre,
and which ought to belong to the faid John de Mowbray as wreck ;
and upon Not Guilty pleaded, the jury found, that feveral of.
the defendantsin the pleadings mcntioi^d were guilty of taking
and carrying away the faid wreck to the plaintiff's damage of
100/., and judgment is entered againft them for the fiiid looA
Then Mr. Juftice Wilmot further reports, that it was infiftcd.
for the defendant ^t the trial that thefe three records proved that
the ufage fet up by the pUindiF muft have commenced within
the time of memory, fince the reign of iJ/VAflrJ tire Firft, and
* that therefore the plaintiff's prcfcriptive right claimed by him was
defeated, and that he (the judge) ought to have diredcd the jury
to find for the defendant.
But upon the trial, (fi»ys the judge,) I was of opinion, and
did deliver it as my opinion to the jury, that the records produced
were not concluGve, but were matter of evidence to be left to
their confideration : and unlefs the faid records are conclufive, I
think the verdi£l was agreeable to the evidence, which was for
the- plaintiff, damages 50/.
Upon this motion for a new trial, the court ordered this caufe
to be fet down in the paper to be argued folemnly : and now
it was infifted by Serjeant Prime {ox the defendant, that thcfc
records of judgn&ents or determinaiions in eyre, and judgment
in
Trinity Term, 28 & 29 Geo. II. 1755. 2^
in trefpafs being in proper courts, haTing competent juririii£lion
of the matter in queftton, are conclufive evidence for the defend-
ant, and that the judge was midaken in his opinion and diredion
to die jury, and ought not to have left the matter to the jurj in
the manner he did, but (hould have direded them to find a vek^
did for the defendant ; and for this purpofe he cited Cartb. za;.
I So/i. 290. a Stra. 960, 961.; and faid, that the records given
in evrdence in the prcfent cafe feemcd to him ftronger tmin a
fentence in the fpiritual court in the cafe of a marriage, which is
always* holden to be conclufive. If a vicar's endowment be
within the legal time of memory, the parfon cannot prefcribe
aeainft it, though he has ancient ufage of his fide in proof.
moor 761. pL 1055. 2 RoL Ahr. 269. p. 17.
On the other fide for the plaintiff it was infiiled by Serjeant
WiUes^ and rcfolved by the whole court, that neither thefe two
allowances in eyre, nor the judgment in trefpafs, were conclu-
five ; and fome of the judges doubted whether they were any
evidence at all } but all agree that ufage for the plaintiff for
92 years laft pad was much (Ironger proof of the plaintiff's rights
and the whole was fit to be left to the jury ; and they all faid '
the jury and the judge had both done right.
They admitted that a fentence in the ecclefiaftical court, in a
matter whereof they have the fole cognifance, is conclufive evi«
dence, and parol evidence (hall not be received againft it ; but
that is, becaufe that court hath the fole cognifance thereof;
and that an endowment of a vicar deilroys the prefcriptive right
to tithes in the pacfon ; but that the prcfent records were no mote
conclufive than an inquifition pojl mortem^ or a verdid (in many
cafes) touching the fame matter, which is often res inter alios oBa^
as in the a£rion of trefpafs by Mowbray^ it might perhaps be
brought by the perfon then in poffeffion againft perfons who
were mere wrong-doers, for any thing that appears} and in
pleading an allowance in eyre, the true way, per Holt C. J.^
is to alledge an immemorial ufage, and then alfo to produce the
allowance in B. R. or in eyre, x Salk* 1 84.
Rule to (hew caufc why a new trial (hould not be granted was
difcharged, and judgment given for the plamtiff.
26 Trinity Term, 28 & 29 Geo. IL 1755.
Farmer, of the Demife of Ear], verfiis Rogers. CL B«
tf ^^r^^r I ^ *J€^*»ent the foUojMring cafe was made for the opinion of the
yws,*i»ay' court; viz^A. B., \fj deed indented, mortgaged the lands in
be by writing queftioo to C. D. foT {ooyears, with a pro vifo that the term (ball
dteBd^°'f*ai ^^*^^ *^ ^ ^^^^ ^P**" payment of 500/. and intcreft upon a
ingyorftamp Certain day *, fome time after the day limited for payment thereof
duty paid. jt. B. paid to C. B. all principal and mtereft due to him upon
this nnortgage; A. B. is dead, and Earl^ the leiTor of^tbe plain<-
tifiv as his hetr at law, has brought this ejectment "againft the
defendant, who has got the faid mortgage-deed in his hands,
and is in poflcflion of the premifes : at the trial the defendant'
produced this deed, upon the back whereof there is this indorfe«
ment in writing, without any feal or ftamp to it ; ^I'z. ^ Re-
•* ceived this — day of March 1 738, (being after the day limited
*< by the proviib,) of A. B. fo much money for all principal
** money and intereft till this day ; and I do relea/e the /aid A. B«
** and difibarge the 'within mortgaged premifes from the term of ^oo
«« jj^/irV*'figned'by C. D. the mortgagee. That the defendant
at the trial did not prove that he had any intered in the term,
but infifted that it was ftill fubflfting, and that pofleffion was
fuf&cient ag^inft the plaintiff, who mu(t recorer upon the ftrength
of his own cafe*
This cafe was argued twice ; the firft time in Michaelmas term
bft by Serjeant Wynne for the pLiintifF, and Serjeant Draper for
the defendant; the fccond time by Serjeant Prime for the
plaintiff, and Serjeant iVil/es for the defendant, in E^/ier term
laft.
It was argued for the plaintiff that the tern^ is not fubfilling»
but is furrendered by the memorandum on the back of th^
mortgage-deed. That a furrendcr of a term at common lav^
migbt have been by parol without a deed. Perk, furrender,
fee. 583, 584. and that whether the term was created by deed or
not, Peri, fee, 607^ 608. Cro. Eliz. 488. That the word y«/r-
remderh not neceflary to make a furrender, but any other words
tantamount will be fufhcient ; as if leffee for life fay to the leffdr,
that he grants that he ihall enter into the land, and that he is
willing that he (hall have the land. 2 RoL Jbr. 497. H. pL !•
498. pL a. Thefe authorities fliew that at common law a term
for years, whether created by deed or not, might have been fur-
rendered by parol without deed, and that words which are not
fo ftrong as the words releafe and difcharge^ in the prefent cafe,
(hall amount to a furrender.
%dlyi It was contended for the plaintiff, that the ftatute of frauds
and perjuries had not fo much altered the common law, but that
leafes
Trinity Term^ 28 & 49 Geo. 11. 1755. 27
lealiBS for long tenns of years mzj be ftill made without deed,
hj writing, and the fame may oe Surrendered by a note in
writing, without a deed y and a feal is not neceflary to this in-
dorfement or memorandum in writing, which in conGderation of
law is a parol furrender reduced into writine, and was proper
evidence at the trial to prove a furrender of die term.
For the defendant it was admitted, that at common law terms
which were created by parol might be furrendered by parol, but
denied that a term created by deed could be furrendered by pa-
rol, and that the term was ftiil fubfifttng, and might be aiBgned
and kept on foot to. pvoteA the inhericanee, and that as the pay- ,
ment was after the day, and the legal eftate is ftill in the mort-
gagee, there ought to be judgment for the defendant.
After time taken to' confider until this term, judgment was
given for the plaintiff by the whole court.
And it was r8£>lved by the court, that before the ftatute of
fiauds a leafis for years, either by deed or parol, might have
been furrendered without deed; by parol ; that the words relio/i
and difcbarge the Urm of ^oo years^ are much ftronger than words
which in many cafes have amottnte<i to a furrender, ut res magu
valiat fuam pareaS*
2. It appears by the ftatute of frauds and perjuries, that a 01% 235,
leafe for any term of years may be created by writing without '3^'
deed, and' that the fame may be furrendered by deed or note in
vmtifig. Vtdifec. 3. of that ftatute. And the court held that ~
tbete was no occafion for any ftamp-duty upon this note or in
dsrfementi it not bein^ a deed.
['^8 ]
MICHAELMAS TERM,
2g Geo. 11. 1755.
Fryer verfus Johnfon. C. B.
Cvftomto QPECIAL a£Uon upon the cafe againft the parfon of the
^^^myT" ^ parifli, fetting out that there has been a cuftom in the pa^
Z^tonU "'^t ^^^ o^^ ®f ™"^f that every parifliioner has a right ta
had. bury his dead relations in the church-yard as near to their an-
ceftors as poQible, and that the defendant refufed to permit the
plaimiff to bury a relation as near as poflible to his anceftor.
After a Terdid, this was held clearly to be a bad cuftom by the
whole court upon the firft argument/
Loyd, Efq. verfus Winton. C. B.
gJRs. t\ EPLEVIN for taking an ox and detaining him againft gages,
h^'fT u7 * ^^* ^^^ defendant avows that he is feifed ot the manor
tmiTis m>t of ji*f and fets out a cuftom, that upon the death of a tenant he
within the is entitled to a heriot by cuftomj and fo feized the ox, which
^^•''.^•'* was the property of the plaintiff's late father, who was his tc-
«Vpea to nant, and lately died. The plaintiff replies that the ox was his
tiouhie cofta. own, and not his father's, and traverfes that the ox was his fa-
thcr's property. Upon this iffue the plaintiff was nonfuited at
the trial, and the prothonotary taxed the avowant double cofts»
upon thp flat. 1 1 Geo, 2. c. 19. And now Seqeant Poole moved
that the prothonotary was miftaken, and ought to review his
taxation, and allow only Cngle cofts, i^fifting that the ftatute
did not extend to this cafe, which was not a diftxefsfor a heriat^
fervice^ hut afeizurefor a herioucujiom^ for the words of the fta-
tute are, Diftreffes for lent, quit-rents, reliefs, heriots, and other
fervices. And of that opinion was the court, and ordered the
prothonotary to review his taxation ; although it was inGfted by
Serjeant Wilfon for the avowant, that this cafe .was within the
equity and meaning of the ftatute, though not within the very
, words.
[ ^9 ]
E A S T £ R T E R xVf ,
2g Geo. II. 1756.
Goodright, of the Demife of Prifcilla Larmer^
Widow, ver/iis Vfilliam Searle and Sarah his
Wife. C.B.
EJECTMENT for laYids in the county of Southampton : upon An
Not guilty, iffue was joined, which is entered of 5>/m/y 5ory<ievife
tenn, in thd 27th and aSth years of his prcfent Majcfty, Roll. 735. JJ [Sough *
and was tried at Winchefter at the then next aflizes, when a fpe- not) a eoa«
cial vcrdift was found by the jury, who on their oath fay, that «'ng«« *«-
long before the within-written time when the within-mentioned u '^^fe"
trefpafs and ejectment are fuppofed to have been committed, one rabie to tho
Georgi Paynter iii his lifetime was feifed of and in certain free- ^«'f of the
hold mefluages, lands, tervements, and hereditaments, with the dev^fee^lrbo
appurtenances, in Odiham and Northnvarnborough in the parifh of dies before
Odibam in the county aforefaid, parcel of the premifes in the de- **** contin- •
daration within-written mentioned, in his demefne as of fee; ^J, '^~
and that the faid George Paynter in his lifetime, and long before S. P. wat
the faid within-written time .when, iifc. was likcwife feifed of and f^^^^^^
in the reverfion of certain copyhold mefluages, lands, tenements, coodatie,of
and hereditaments, with the appurtenances, fituate, lying, and the demifc
being in Hatl-place in the county aforefaid, parcel of the manor ^[ w<!S^ia
of HalUplace in the fame county, and refidue of the premifes c.B. TrWu
in the declaration within- written mentioned, expeftant on the i3*«»40.».
death of Catherine Paynter j mother of the faid George Paynter^ in ^*IJI|i*t*^p,
his demefne as of fee and rights at the will of the lord of the pieby.
faid manor, according to the cuftcm of the fame manor; and specialnr-*
being fo refpeftivcly feifed thereof, he the faid George Paynter^ in dia.
the lifetime of the faid Catherine^ and before the within-written
time when, (sfc. to wit, on the 26th day of September in the year
cf our Lord 1750, at Odiham aforefaid, made his lad will and
teftament in writing, and thereby gave and devifed (among other
things) the fame freehold and copyhold premifes (the faid copy-
hold premifes being firft duly furrendered to the ufe of his will) -
in thefe words following, to wit ; And as to, for, and concerning
all and fingular other my cuftomary or copyhold mefluages, landsj
t^ocmentS| and heieditaments, with their appurtenances, fituate^
JO Easter Term^ 29 Geo. IL 1756.
lying, and being in the tithing of Tately within the manors of
Cmdall aforefaid and Hall-place In the faid county of Southamptm^
the fame being alfo furrendered to the ufe of my will ; and alfo
as to, for, and concerning all and (ingular my freehold mefluages^
Jands, tenements, and hereditaments, (ituate, lying,' and being io
Odiham and North Wamborough in the pariili of Odtham in the
/aid county of Southampton^ now in the tenure or occupation of
John Collins and John Raggett^ their undertenants and affigns^
*< I give and devife the fame copyhold and freehold hereditaments
^^ and premifes unto my faid fon George Pajnter^ his heirs and
<c afligns for ever } but if he my faid fon George Paynter (hall
<* happen to die before he (hall attain his faid age of 2X years^
^ leaving no ifTue living at the time of his death, then I give and
^ devife the faid premifes unto my faid mother Catherine Pdynter,
^< and to her heirs ^rid afligns for ever," as by the.laft wilt afore-
faid to the jurors aforefaid ihewn in evidence fnlly appears : And
die juror&atorefaid on their faid oath further fay, that afterwards,
to wit, on the faid 27th day of Septemier in tlief fame ye^r 1750,
nt Odiham aforefaid, the faid George Paynter the teftator, without
altering or revoking his faid will, died feifed of itrch eftates in
the premifes in whKh, i^e* leaving ifloe the faid George Paynter
tfae^evifee, his only fon and heir, and that the faid CatbeHne
Paynter widow, mother of the fsnd George Payntet the teftator,
furvived the faid Georgjt PajHfer the teftator ; and afterwards, Xa
wit, on the 5th day of January in the year' of our Lord X7$4, at
. . tM/jSan^ aforefaid died; and the jurors aforefaid on thehr faid
dath farther fay, that tiie faid George Paynter ^ fon and heir of the
faid GeorgjB Paynter the teftator, was the grandfira and next heif
<^ the laid Catherihe^ i6 wit, the fon and heir of the faid George
Paynt& the teftator, which faid George Payntet the teftator was
the only fon and heif of the faid Catherine: and that the faid
George Paynter^ (on and heir of the faid George Paynter the tefta-
. tot, and grandTpn and next heir of the faid Catherine^ afterv^rds,
to wit, on the 6th day of January in the faid year of our Lord
1754, at Odiham aforefaid, died before he had attained iFiis faid
age of 21 years, tp wit, at his age of 19 years, and without ever
The idfor having had any ^iflue of his £>dy lawfully begotten : and the
orthepiiin- jurors aforcfaid on their faid oath' further fay, that Prijcilla Lar'^
ht dcfcent. ^^ widow, in the declaration named to be the lefibr of the plain-
tiff, is, and at the fame time when, life* was coufin and next heir
on the part of the father George Paynter^ fon of the fiiid George
Paynter the teftator, that is tor fay, the daughter and heir of
George Paynter the brother of William Paynter^ which Wtlliam
Paynter was the father of the faid George Paynter the teftator, the
father of George Paynter the devifee in the will abovementioned,
to the faid jury fliewn in evidence, who died under age as afore*
faid, and without leaving any iflue of his body lawfully begotten
living at the time of his death aforefaid : and thejurors aforefaid
on their faid oath further fay, that the faid Sarahs the wife of
tb«
Easter Term, 29 Geo. 11. 17 s^. 3 1
the faid WiUiam Starie in the declararion witfain-written men-
tioned, 18, and at the faid time when, (5*^. was the frfter and next
heir of the iaid Catherine PaynUry and the Coufin and next heir Thedeftnd.
of the fetid George^ the grandfon of her the faid Catherine^ on the f°^ir*^'"
part of her the faid Catherine^ that is to fay, the fiftcr and next ^^ ***"•
heir of the faid Catherine Puynterj which Catherine Paynter was
the mother of the faid George.Poynter the teftator, the father of
the faid George Paynter the deviCec in the will above mentioned :
and the jurors aforefaid on their faid oath further fay, that before
the witfaia-written time when, C5V. to wit, on the 8th day of
J^ril in the 27th year of the reign of his prefent Majefty, the
faid PrifciUa Larmer entered into the tenements aforefaid, with
die appurtenances^ in the declaration aforefaid mentioned, and
was tliCKof feifed as rhe law requires-! and being fo thereof
feifed,'{he the (aid PrifcUla Larmer afterwards upon the faid 8th
day of April in the. faid 27th year of his Majeily's reign, at Oi&-
ham aforefaid, demiied the tenements aforefaid^ whh the appur-
tenances, to the faid Peter Goodright^ to hold the fame to the faid
JPeter Gaodright and his affigns from the 25th day of March then
laft pad unto the full end and term of feren years from thence
next ettfuiiig and fully to- be complete and ended ; by virtue of
which faid demife the fame Peter Goodright into the tenements
aforefaid, with the appurtenances, entered, and was thereof pof-
fefled uatil the faid William Searleznd Sarqh his wife afterwards»
to wit, on the faid 8th day of April in the 27th year aforefaid,
into the tenements aforefaid, with the appurtenances, which the
faid PrifciUa Larmer to the faid Peter Goodright in. form afore-
faid demifed for the term aforefaid, which is not yet elapfed, in
and upon the pofleffion of the faid P^rr entered, and eje£led him
the faid Peter out of his farm aforefaid, (his term aforefaid there-
in not being ended,) as the faid Peter within thereof complains
^againft them : but whether upon the whole matter aforefaid by
the jtirors aforefaid in form aforefaid founds the faid William ■
Searle and Sarah his wife are in law guilty of the trefpafs and
* cje£lment aforefaid in the tenements aforefaid, with the appur-
tenances, in the declaration aforefaid mentioned, the jurors afore-
faid are entirely ignorant, and therefore pray the confideration of
the jttftices of our lord the King of the Bench; and if vpon the
whole matter afc^refaid by the jurors aforefaid in form aforefaid
found, it (hall appear to the fame juftices of the Bench that the
faid William Searle and Sarah his wife are in law guilty of the
trefpafs and ejedment aforefaid in the tenements aforefaid, witli
the, appurtenances, in the declaration aforefaid mentioned, then
the jurors aforefaid fay on their oath aforefaid, that the faid
WiUiam Searle and Sarah his 'wife are thereof guilty in manner
and form as the faid Peter Goodright within againft the faid WiU /
/jam Searle and Sarah his wife thereof complains, and they aiTefs .
the damages of the faid Peter Goodright oh the occafion aforefaid,
befides his cofls and charges by him about his fuit in this behalf
expended
32 Easter Term, 29 Geo. IL 1756;
expended to one (hilling, and for thofe cofts and charges to '40/-
But if upon the whole matter aforefaid by the jurors aforefaid in
form aforefaid found, it ihall appear to the fame juftices of the
Bench that the faid William Sear/e and Sarab hi$ wife are not
guilty in law of the trefpafs and ejedment aforefaid in the t^e-
nients aforefaid, with the appurtenances, in the declaration afore-
faid above mentioned, then the fame jurors fay on their oath
aforefaid, that the faid William Searle and Sarah his wife are not
thereof guilty in manner and form sTs the faid William Shrk and
Sarah his wife within for themfelves by pleading have alledged :
and becaufe the juftices here are willing to advife themfelves of.
and upon the premifes before th^y give their judgment thereon, a
day is given to the parties aforefaid here until in eight days of
Saint Hilary of hearing their judgment thereon, for that the
fame juftices here are thereof not yet advifed, ^c.
This fpecial verdift was twice folemtily argued at the bar;
1^, by Poole Serjeant for the plaintiflF, andf&wi/ Serjeant for the
defendant, in Trinity term in the 28th year of his prefent Majefty $
the 2d time by Davy Serjeant for the plaintiflF, and Wynftf Serjeant
for the defendant, in Hilary term following : the (hort ftate of
the verdid iSf
That George Paynter bemg feifed in fee of the freehold lands,
and in reverfion in fee of the copyhold lands in queftion expedant
on the death of Catherine Paynter his mother, on the 26th of Sep^
tender 1750 by his will devifed the freehold and copyhold to his
fon George Pajnter^ his heirs and aOigns for ever ; but if he hap-
pen to die beu>re he attain the age of 2; years, leaving no iflue,
then he devifes the premifes to his (the teilator's) mother Cathe^
rine Paynter in fce.
That the teftator died in September 1750, leaving iflue George
his only fon and heir ; that Catherine Paynter widow, and mother
of the teftator, furvive^ the teftator, and afterwards died ^iiiiii*
' That George^ the fon and heir of the teftator, waa alfo grandfon
and next heir to Catherine^ and died January 6, 1 754, before he
attained the age of 21, and wi^out iSue.
That Prifcilla Larmer the plaintiff's lefibr, was coufin and
heir to George Paynter the devifee on the part of his father.
And that Sarah the wife of William Searle the defendant was
fitter and next heir of Catherine Paytitn^ and coufin and next heir
61 George the devifee, grandfon of the faid Catherine^ on the part
of the faid Catherine.
la
EastsrT^rm, ag Gco.il 1756^ 35
In arguing thiif cafe, it was admitted and allowed chat tfats was
a ^ood executory devife to Catherine Payntirg but for the plain*
tiff* it was infift'ed, that the demife to George the fon in fee, who
^as heir to the tellatorj was void^ becaufe it was only giving
him what the lair gave him ) and therefore it was the iamfe
thing as if he had not been named in the will, and the execu*
tory devife could never have taken place fo long as he had heirs ;
and many cafes of executory devifes lay it down, that until the
contingency happens, the eftate (hail defcend to the beirt Smith
V. Clark^ Soli. 241. S.C. Lutw.'J^J. Comyns 72.
Taking k that George Pointer the devifee was in by defcent of
■ a fee, and that Catberine Pajnter had an intcreft or poflibility'
that was tranfmiffible, according to the cafe of Goodtitle of the ir-
tni/e if GameilY. Wood in this courtt Trin* 13 (5* 14 Geo. 2.
upon the death of Catherine Paynter that intereft, whatever it
was, dcfcended to George her grandfon, and merged in his
greater eftate which he had by itefcent from his father. If thii ^^^^
be fo, then the leflbr of the plaintifF, who is heir to George on ^'*
the part of his father the teftator, is entitled to recover.
On the other fide it was inCfted that an executory devife, ad
this moft certainly is, is a defcendible intereft, and that Catberifte
and her heirs were in of fuch contingent executoty and de^
fcendJble intereft, which could never defcend to George her
pandfon, becaufe while he was living, under age, and without
]ffue, no man could polSbly knpw whether he would die undet
age and witliout ifiue. -
That Catherine and her heirs were the firft4)urchafcr, and
whoever claims as heir by defcent muft fliew himfelf of the blood
of the firft purchafer ; but Prifcilla Larmer is not of the blood
of Catherine. Finch 117. HaU^s Hijl. Com. Xjw, cap. De^
fcenii,229*
It is obJe£ied for the plaintiff that George the grandfon took an
abfohite lee-fimple ; but he certainty only took a conditional ot
determinable fee, otherwife the executory devife could net bt
good, which it is admitted on all hands it certainly is*
"I
It is bbjeaed, that in the cafe of Smith v. Clarke, that the heir
)there did not take by devife though it was on a con4ition. Td
this it may be anfwcred, that there was no devife over, fo nobody
to uke advantage of the condition.
It is objc£leH, that the intereft or contingency of Cathetifte
upon her death dcfcended to George her grandfon, and fo merged
in bis fee. To this it is anfwcred, that her intereft was like a
Vol. II. D contingent
34 Easte* Term^ 29 Geo. II. 1756.
contingent remainder of a pure fee» wluch could not merge \%
one that was conditional.
In reply it was faid for the plaintiff, that Catherine took a de«
fcendibk tntereft like ar contingent remainder in fee, which upon
her death, until the contingency happened, defcended to George
her grahdfon, and merged in his fee, which was not a bafe fee.
Upon-the firft argument the court broke the cafe.
. JTilUs C. J.— It may be proper to fay fomething bv way of
breaking the cafe ; but I would not be underftood to oe bound
by any opinion I may now givQ, as it is to be argued again.
It was candid In my brother Poole to admit that this is a good
executory devife. It certainly is fo ; and they arc now fettled
known, eftates tranfmifiible, and like to (though they arc not)
contingent remainders.
But brother Poole for the plaintiiF inGfts, that although the
eftate is devifed to George the grandfon and his heirs upon condi-
tion» yet that it (hall dcfcend to him as if no condition had been
jnentioned. But I take it to be certain that it did not defcend at
■the time of the death of the tedator, but is devifed to him upon
condition that he and his heirs fliall have it in cafe he lives to 2ls
or leaves iflue ; but if he does not, then the teftator*s mother and
her heirs (hall take ; it does not fay <' liviftg the mother:*' and as
to what is faid that here is a merger,' there never (hall be a
merger to hurt another. Docs the plaintiff claim under the firft
dcvifc ? That is gone ; for George the devifce died under age and
without iflue. If plaintiflF claims under the executory devife,
fhe mud take as heir to Catherine, if at all ; and that (he cannot
do, becaufe Prijcilla Larmer is not of her blood.
' dive J. — I would be underftood not to be bound by my pre-
sent opinion. The lefl^or of the plaintiff claims by defcent ; and
whoever does fo, as hath been rightly infilled upon, muft be of
the blood of the firft purchafer. The teftator having carved out
his whole eftate in this manner, has thereby broke the defcent«
If C/i/^/r/if# 'had furvived her grandfon fhe would have been a
purchafer, for fhe would have taken it by devife from her fon,
and there would have then been no doubt at all but it would have
gone to the defendant her fitter ; and I think it is the fame thing
notwithftanding (he died before her grandfon ; and there can be
410 mexgcr where the intent of the parties appears that the eftate
Ihould not merge. Lewis Bowles*% cafe, 1 1 iJ^. 8o.
Feet
Easter Term, 2g Geo. 11. 1756. SS
Fees are every day in abeyance, as a remainder after an eftate
for life to the right heirs of /« S. I do not fay a freehold can be
in abeyance. The eftate tp Catherine feems to me to be the
greater eftate, and could not merge in that given to her grandfon,
Binch J.— The teftator has not faid any thing about the'time
of the death of Catherine; and as he has not, we cannot. Here
is an abfolute executorf devife in fee to Catherine^ which muft
take cSc€c in her or her heir on the death of her grandfon under
age and without iflue \ and I am of opinion with my Lord Chief
Juftice, and my brother Clive.
Bathurfi J,— I fhall be glad to have this matter arned again;
becaufe I think the fon took by defcent and not by the will.
Suppofe the devife had been to Catherine after the death of
George the teftator's fon under age and without iflue, he would
then certainly have* taken by defcent until the contingency had
happened. Suppofin? then the fon in by defcent, I am inclined
to think his grandmother's intereft or eftate fliall defcend to him^
and he (hall be in of a better eftate ; viz. a pure fee, which Ihall
defcend to his heirs ex parte paterna.
This cafe was argued a fccond time in Hilarj term 29 Geo. a.)
but little or nothing new was faid upon it.
In Eajter term ap Geo. 2. the court were all agreed, and the
Chief Juftice was ready to deliver their opinion, but deferred it,
the parties being trying to make an end by way of accommoda*
tion. They were all of ojpinion for the. defendant^ ut audivim
Dz
[ 36 1 /
MICHAELMAS TERM,
2,0 Geo. II. 1756.
A foot-race
it a game
within the
flat. Q Ann.
•isaiatl gam-
in);. But it
moft appear
that a min
^vas playing
fttfuch
game,orelie
a wjger>.
tbove lol.y
laid apon hit
fide, 11 not
a betting
within the
ftatnttf
Lynall vetfus Longbothom. C. B.
Middlejix. cfHOMAS Longbothom^ late of the parlfii of Saint
-* Andrew Holbourn in the county of Middkfex^
flioemakeiTi was fummoncd to anfwcr Thomas Lynall of a ple\
that he render to the faid Tl^omas Lynall the fum of 47/. of law-
ful money of Great Britain^ which he owes to the faid Thomas
LfnaUt and unjuftly detains from him, {jfr- ; and whereupon the
faid Tbwnas lynall^ hj William Pryor John/on his attorney, fays,
fot that the faid Thomas Longbothom after che firft day of May in
the vcar of our Lord 1711, to wit, on the i ith day of Novetnber
in the year of our Lord 1754, at Weftminjkr in the county
aforcfaid, received to the ufe of the faid Thomas Lynall the fum
qI £^*]L^ T>cing fo much money loft at one time by the faid Tha^
mas Lynall to the faid Thomas Longbothom within the fpace of
three months next before the commencement of this fuit, by
betting on the fide of one John Clarh, at a certain game called
a foot-race, and which money fo loft before the commencement
of this fuit was paid to the faid Thomas Longbothom the winner
thereof, whereby and by force ~bf the ftatute lately made for the
better preventing excefTive and deceitful gaming, an a£lion hath
accrued to the faid Thomas Lynall to demand and have of the
faid Thomas Longbothom^ according to the form of the faid fta-
tute, the faid fum of 47/. fo loft as aforefaid ; yet the faid Tho^
mas Longbothom^ although often requefted, hath not? paid to the -
faid Thomas Lynall the (aid 47/. or any part thereof, but to pay
the fame to him hath "hitherto refufed, and doth yet refufe,
whereupon the faid Thomas Lyuall faith that he is injured, and
h.ith damage to the value of 50/. -, and therefore he brings this
fuit, l^c. ' '
The defendant pleaded nil debet per patriam^ which ifluc came
on to be tried before Lord Chief Juftice miles at the laft fitting
in Eafter term r75 j.
The faiflfs proved at the trial on the behalf of the plaintiff, and
upon which he relied to fupport his declaration, were. That on
the
Michaelmas Term, ^oCeo. II. 1756. 37
the 2d dzj of November 1754* the plainti(F laid a wager with tht
defendant of 477.10 29/. that Jo^n Clarke in the declaration
mentioned could mi ^ on that day, run four miles in 2i minutes
and an half: that the- plaintiff then depofited the 47/. in the
hands of one Thomas Cannon^ as the (takeholder of that wager^
and at the fame time the defendant depofited 29/. Jn the fame
hands, which fums were to be paid to the winner of the wager ;
that the faid Ciarke did, on that day, run the four miles within
21 minutes and an half, and that thereupon the faid Thomas
Camion, on the fame day, paid the 47 A fo depofited by the *
{plaintiff, to the defendant Longbothom.
On the part of the defendant it was infifted by his counfel at
the trial, that the plaintiff had not proved his declaration, that
this running by John plarhe was not a foot*race, as defcribed in
the declaration ; that it was not a game within the Jlat. 9 Ann.
c. 14., upon which the plaintiff had founded his a3ion ; and
that this wager was not a betting on the fide or hand of any
perfon playing at axiy game or games within that ftatute, and
therefore the plaintiff was not entitled to a verdiA upon this
declaration.
Upon thefe obje^ions there was a verdid for the plaintiff, fub-
jcdi to the opinion of this court, upon thefe three points j viz.
ift. Whether the running by Clarle alone was properly a foot-
face, as laid in the declaration ?
2//, Whether fuch running be a game within the ftatutc
9 Ann. c. 14.?
ji/, Whether the wager was or was not a betting on the fide
or hand of any perfon playing at any game or games within the
faid ftatute?
This cafe was argued in lad Eafter term by Serjeant Poole for
the plaintiff, and Serjeant Hewitt for the defendant, and in this
term bv Serjeant JVitles for the plaintiff, and Serjeant. Prime for
the defendant.
For the plaintiff it was faid, that John Clark/s running againft Serjeant
time was a foot-race, and it is well known that a fingle horfe ^^^
has frequently run alone for the king's plate, which is ftill called
, a horfe-race, though he runs alone.
ai/y, That a foot-race is a game within the Jlat. 9 Am. c. 14.,
though it is not mentioned therein, for the words, other game or
^amesy {hall relate to games or plays in former ftatutes againft
gaming \ and foot-races arc mentioned in tht Jlat, 16 Car. 2. c. 7.
' D 3 , between
^ Michaelmas Term, 30 Gifo» II. 1756.
between GoodburnznA MarUy^ 2 Stra. 1 159. horfc-raccs were
held to be withia the ftatute 9 jfnn. though not mentioned
therein.
2dljf If this was a foot-race, and a foot-race be within the
^at. 9 Jtnn. there is no doubt but the defendant betted on the
fide of Clarke, who ran againft time.
Serjeant For the defendant' It was admitted that a foot-race is wtthui
*^"* the Jlat. 9 Ann. and has been fo determined j and it wa§ faid by
the defendant's counfel, and agreed by the court, that siUhough
here were three queftions made by the cafe for the confidcration
of the court, yet in truth they were ail reducible to, and con-
tained in this fingle queftion ; viz. Whether the wager was a
betting on the fide of any perfon playing at a game called a foot-
race ? And they infifted that it was not, for it does not appear
by the cafe but ihzi Clarke might be running merely for his own
diverfion, or that he himfelf was at all concerned in the wager,
or knew any thing of it ; neither is it laid in the declaration, or
Hated in the cafe, that Clarke was playing at a game called a
foot-race ; fo that if there had been no cafe dated, the judgment
muft have been arrefted upon this declaration ; for to bnng it
within the ftatute, it muft be a betting on the fide of a perfon or
perfons playing^ and fo it ought to have been laid.
Upon the firft argument the court broke the cafe.
Willes"C. J— Neither of my brothers arc diftanced, fo a fe-
cond heat may be run, and therefore I give no opinion. As at
prefent advifed, I am inclined to think that this is not a foot-
race as laid in the declaration, for Clarke might rUn for his di-
verfion or exercife, and it does not appear he contended for anjr
bet with any body, or againft time ; and Clarke can never be
faid to be playing uniefs it had be^n laid in the declaration, or
ftated in the cafe, that he was playing ; and we can intend no-
thing, fori think this is a penal law: there is no doubt but
horfe-races are within the Jlat. 9 Ann. according to Stra, 1 259,
who is a faithful reporter ; and foot-races muft alfo be fo too»
for they arc mentioned in Jlat. 16 Car. 2. to which the Jlat. 9 Ann^
muft relate*
Clive J. and Bird J. to the like effeft.
Ba(bur/l J,— Courts of juftice have done very right in putting
a liberal conftrudion upon thefe ftatutes againft gaming, and if
it were poflible, I Ihould be for bringing this c^fe within the
Jlat, 9 Ann. One perfon running alone againft time may be
properly called a foot-race, as well as one horfe ftarting alone
to be an horfe-race^ which has often been the cafe i but as it
, does
Michaelmas T£RM, 3oG^^tIL 1756. 39
does not appear that Clarke was lunning for^njr wager, or knew
any thing of this bet, or was at all concerned in it,' and might
for ought appears be running for exercife or his diverfion; I
fear it is not within the ftatute : it is like principal and accefiary,
if there be no principal there can be no accefiary ; fo if there be
no ycxfon ^ying at a game, there can be no betting within the
ftatute.
' . Second argument. Serjeant WilUs for the plaintiff.
The fingle queftion is. Whether Clarke w^pJayiftF at a game
called a foot-race ? for if he was, this wager is within the fta«
tute, it being abore ten pounds ; and a foot*nice being now
admitted to be a game within the adl, the plaintiff muft have
judgment.
It was objeAed, that it does not appear that Clarke was running
againft time, or was contending with any perfon, but might be
running for bis own diverfion or exercife, fo that he catmot be
faid to be playing at a game called a foot-race.
la anfwer to this it is dated in the cafe, that the plaintiff hid
the wager with the defendant that John Clarke could not on that
day run four miles in a i minutes and an half ; this fhews clearly
that he contended againft time ; and this running alone is un-
doubtedly a race, if the gentlemen of the turf may be allowed
proper judges of what is properly a race, who always have held,
that if one fingle horfe walks round the courfe alone, and no
other contends or runs with hiifa, he wins the race } if therefore
this be a race, no doubt but the betting thereon is within the
ftatute. And although Clarke might be running s^gainil time for
his own diverfioQ, yet I contend that this betting upon his fide
is within the 'ftatute ; as if two pcrfons were playing a game at
piquet, for no money, only for their own diverfion, and a wager
of above loA was to be laid on the fide of one of themy fuch
wager would be wuhiu the ftatute.
Serjeant Prime for the defendant.
I admit a foot*race is a game within the Jlaf. 9 Arm* and hae
been fo determined, but infift that Clarke was not playing at any
fuch game, from any thing that is (aid either in the dcdaiatipn
or cafe ftated.
On the 2d of Nwember 1754, plaintiff laid a wager of 47 '• ^
29/. that Clarke could not run four miles in ai ^^inutes and an.
half; docs it follow from 'thence that ClaAe might not be a
porter, or a running footman, fcnt upon fbmc meffage, and fet
forward either before .or after the bet was laid ? or miglit not the
plaintiff and defendant Ice him fctting forwwrd upon full fpced.
Ihe^coort.
Ml- Icaewifig wbiUMr' h« was goings a^nd the plainkiflF bj^ tbt
wager with the 4<Bfendant that Clarie did net run the firft^ fbur
milea in 21 minutes sind an half? this night be t^e cafe fei aiij
thiog th«t appears} if fo| far0ly^Kr9 is not a betttog upon i
g«qie : it dors not appear that Clarie was ad all concerned or in*
ltfifei9:^c| i^ the. Qvcpt^ fo How could there bo a betting tipoft ki«
fide ; or, for anjf thing th^it appears, he might be interefted ta
lofe the wager, as many jocHies have been. The court will in-
tend nothix^ thsit is lyH ftate^ in the cafe, fo that if it is not dear
that Clarie was playing at a gakne, there could be no betting oa
bis fide.
jndgmentor . )P///«/ C- J*"-«-Wc ave all of opinion that judgment mud h^ for
.u ^^ defe^dap*.
It is agreed on all hands that a foot-race is a game within the
jiWii 9 ^fhi and therefore the fingle queftion is» Whether it
aippears th^t ChrievfA9 playing at a gajse c^Ued a foet-raoc? fov
if he w^j this was a betting within the ftatute } but it is ncithcv
laid in the declaration, nor ftated in the cafe>that he was playing
at a game called a foot-race, and we can intend nothing that does
noi appear : there muft be a betting oa the fide of a perft>n^ stay-
ing ; and if no cafe had been ftated, the judgment mud have
^en arrefted npen this 4eck]?a^ttoo» becaufe it is not laid that
Clarie vfzsplajip^ I thiidc this is a penal law, and not Okerelyr
remedial. As it does not appear that Clarie was playing at anjp
game, tit^e could be no betting on his fide wi^in the ftatute, fo
Aepoflfo, mud be delivered to the defendant, and he muft havo
the eofttf of a nonfuit^
Rex ver/us Chafe. B. R.
One la. TlJDICTMENT upon the>rr. 5 Sliz. -for excrcifing the trade
Tmo"/" i. of a j>'«^«, the defendant not having ferved an apprenttce-
the trade of ih»p of fcvcn ycars 5 the jury found a fpccial vcrdiflt, the fub-
l^^^\ ftancc whereof was, that the defendant was partner in the trade
P«rtr^*but ^^^ * perfon who had fenrcd a regular apprcnticefliip to the
does not trade, that the defendant advanced and pai4 a certain fum of
S^tiSal w"^y ^® ^"""^^^ * partner, and was to ttand to the profit and
exercife '^"^ therein, but was not to intermeddle, and in.truth did not in-
thereof, it termeddle in the manual or working part of the trade. Upon the
JhiJi?"*" ^''?"!"8 of ^^^8 fpcc"^ ^crdia the whole court were clear of
5 Eli./ opmion, that the defendant was not within the ftatute, which
l^y%^.t courage manufaaurers in trade, which was then in its infiincyt
licfihip. . »« ^n« kingdom, and until trade became more flourifliinff it mieli
perhaps be good policy to ftick clofe to the letter of the ftattitt ;
.but about the end of tha* queen's reign, wbea t^ade was much
improved^
Michaelmas TfitM, 3oG^. II. 1755. 41
ftoiprovnl^ die judges begmr to ^ve ar more librnJ' conftruAios
off aodi^ in ai grest meafuvei to explaia away tbe ftri^ letter of
the (tatute^ which /nw is certainly in reftraint of the common
law, and of the freedom and liberty of the fubje£l in general,
who ought to be aikKmed to get their living in any boneft induf-
fttoua tvade ; and tkoy alfi> (aid^ that aithougb the words of the
ftatmte ate,, tbat a man fludl not oiercife a trade «nle£i he has
ferted as an afypretMice im $Mdtnnar afenfoidj yet it has been over
and over deedmineck >n W^tminfie^hidt^ that if a man ha» worked
at a tiade feven ^eava ae a joarneyoaan, with one nafter or feve*
rat, cither in this kingdom or abmd, or as a mafter for himfelf
feven year^- be may aftctwards eaereife the trade, and is not
witliin the ftatnte ; £0 may a woman follow the tiade of berliuf.
band afte^ his death, if flie has bom married to, and lived witb
Un^ fevf n yearsi akkough, it iqay he, flic never intermeddled in
it in his lifetime ; and fe it ia (dney fakl) in many foch like cafes.
Lord Mansfield cited 4 Leon, 9., and faid, that although that cafe
is not law, yet it fhews the judges towards the end of Queen -
Jilijuibtti^^ icign were willing to go* as" nwr as* they conht to ex*
plain away the penalty of this ftatute.
Judgment for the defendant pertotam curiam.
Waterman verfus Yea, in Replevin. G B.
Lyde, Efq. Sheriff of Somerfetftiire, ver/us Lawrence
and two others.
^^^ April 1755, ^^^ diftrained the cattle oi Waterman damage- Ifpluntiff
^ feafant, who immediately replevied them and gave the ufual j" «pJ«»in
bond to profecute, fo the cattle were delivered to him. for^nt"rfl
pfea in bai^
Upon the 7th oiMay 1755, Waterman levied his plaint againft ^"J^^^f
Yea in the flicriff 'a court, and removed it by re. fa. A., and de- SJJti« oS*
clared here in replevin in trinity term 1755, for taking his cattle j the bond,
to wbieb Tea put in an a¥0wi7 for damage^eafant, and Water* ^^"^"*
«MNs not putting inany plea inbar, diem wtt» judgment by defatdt ^u of ia.
<br the avowant that die plhintHF be amevoed, and that the avoww quiry for hit
antlhould have a return, babefid* Tea dM not execute a writ of ***"*««••
inquiry of damages, as he might have done by the^j/. 17 Car. 2.
cop. 7.^, \m. rather chofe ID caufe three adfions upon the replevin ^Sedqusrc^
lM>nd to be bsougiit againik die plaintiff and his bondfmen, in '^^^-
•rder to- lorae him to pay the avowant his damages and ccrfts ; l!^ntfi m
^Thereupon Serjeant Hayward now moved on the behalf of Wa^ rfrftrefTes (^
/^#^/i and his fureties, that proceedings might ftay in all the ^^^
three actions, becaufe the avowant might have recovered his da- ^7. ' *^'*
mages and' cods by evocuting a writ of inquiry, which he had
4mittted to do. . i!My^ If the ecimfhoold not think fit to ftay the
proceedings
Michaelmas Term, ^oGeo. II. 1756.
procetdings for this reafoDy that they might be ftayed upon paj^
ment of the fingle penalty of the repleyin bond (which was ten
pounds) into court.
Serjeant Privti for the avowant— This application is without
precedent : the avowant in this cafe has two methods of proceed*
ing in his ele£lion ; wz« either to execute a writ of inquiry^ or to
fue upon the replevin bond, the pbintiff not having profecuted
his fuit with tStGt. And of this opinion w^ Birch and Bathurft
Jufticesy (only in court,) and faid, they could not interpofe \
whereupon Prime for the avowant ofiered to refer the damages
and coils in the original ajiion, and the cods in the anions oa
^ the replevin bond to be fettled by the protbonotary, which the
court thought was very fair and reafonable *, and if the pkintiff
would not comply therewith, the avowant to be at liberty to pro^
ceed as he thought fit on the replevin bond.
HILARY TERM,
30C?<re?. n. 1757.
Gardner verfus Jeffop, an Attorney. In C. B.
ASTumpBe JN Trinity term in the 2Rth year of the rtign of his prcfent
fol/^de. * M^Jcfty* the plaintiffexhibited his bill againft the defendant,
fivcrcd. in an a^ion upon the cafe, and declared for 5 /. upon an iniebp*
tatus affum^tt, and alfo for other 5 /. upon a fitanhdm vakiant,
which the defendant refufed to pay; to the damage of Ae phin-
tiflFof 10/., and thereupon he prayed relief, fs^c.
NMaffiimp. And the faid Thomas in his proper perfon comes and defends
^^^j\^L *^^ ^^^"8 *°^ ^"i^'y ^'^^n^ ^^'^ and as to the promife and un-
Sd. and jf dertakmg m the faid declaration laft mentioned, and alfb as to
to that fum. the promife and undertaking in the faid declaration firft above
liabte to be mentioned, except as to the fum of one pound three (hiUings and
Cued for it cigtt pence, parcel of the faid fum of five pounds therein fpeci-
in thecoott. ficd } fays, that he did not promife and undertake in manner and
MiSic&«. ^^™ ^ *« ^^^ Jifi^^ Iwth above thereof complained againft
him^
Hilary Term, 30 Geo. II. 1757. 43
Mm ; and of this he puts himfelf upon the country, and the fatd
Jofiah doth the like 5 and as to the faid promife and undertaking
in the faid declaration firit above mentioned) as to the faid
I /. 3x. 8</., parcel of the faid 5/. therein contained, the fafd
Thomas ix^%^ that the faid Jofiah ought not to have his faid adlion
in this court againft him, by reafon of the non-performance of
the faid promife and undertaking in the faid declaration firfl:
above mentioned as to the faid i /• 3 /• Zd.^ becaufe he fays^
that he the faid Thomas at the tim^ of the exhibiting the faid bill
of the faid Jofiah^ and long before, lived and reGded, and (liU
doth live and refide within the covLUij of Middle/ex : that is to fay,
at Enfield in the county of Middiefex : and the faid Thomas fur-
ther fays, that he the faid Thomas always from the time of the
promife and undertaking of the faid Thomas in the faid declaratioa
firft above mentioned, and fuppofed to have been made, as to the
faid.fum of I /• 3 J. 8 d., parcel of the faid 5 /• therein contained,
hitherto hath been, and (till is liable to be fummoned to the
countY^ourt of Midd/f/ex^ within the true intent and meaning
of the ftatute made in the 23d year of the reigii of his prefent
Majefty, for preventing delays and ezpences in the proceedings
in the county-court oiMiddUfix^ and for the more eafy and fpeedj
recovery of fmall debts in the faid county-court \ and this he U t
ready to verify : wherefore he prays judgment if the (aid Jo/iab
ought to have his faid a£tion in this court againft him by reafon
of the non-performance of the faid promife and undertaking in
the faid declaration firft abovl mentioned, as to the faid i/. 3 /• 8dl,
parcel of the faid 5/. therein fpecified. W. Hajnoard*
And the faid Jofiah^ as to the plea of the faid Thomas above ReprKition
pleaded in bas as to the faid i /• 3/. 8 J., parcel of the faid 5 /. t^at ^^ de*
in the faid firft promife and undertaking in the faid declaration i^t^Tat^.
mentioned, fays, that he, by any thing in that plea ailedged, ney \% not
ought n6t to be barred from naving his aforefaid a£lion therecjf ^^^'^ ^ ^
maintained againft the faid Thomas^ becaufe he fays, that in and [oTbT^vi
by the faid a^ of parliament mentioned in the faid plea of the faid connty.
Thomas^ it is provided, that no perfon or perfons fhaii be liable ^^^^
to be fummoned to the faid county-court at the fuit of any plain-
tiff or plaintiffs, other than fuch perfon or perfons as was or were
liable to be fummoned to the county-court of Middiefex before
that a£l was made, and that that a£l iliould not extend to give
the county-court any jurifdidion to hold plea of, or to hear and
determine any a£lion, caufe, or fuit, other than fuch aAioi^
caufe, or fuit^ as the county-court of Middiefex might.have held
plea of, by plaint, before the making of the faid a£t, as by the
faid a£t amongft other things more fully appears. And the faid
Joftah further faith, that the faid Thomas before and at the time
of the making of the faid a£l was, and ever fince hath been one
of the attornies of the court of our lord the now King of the
Bench here \ and thcre£ore the faid Tlwnas neither at the time
of
44
venMirrct*
CMMinv-
aocc .
Joinder in
4cmuiiar.
HiLAi^Y Term, ^oGeo. II. 1757.
of tlie making of the faid ad, nor at the time of the exhibiting
of the faid bill of the faid Jofiab^-vf^s a perfon liable to be fum-
moned to the faid county-<ouTtof MiddU/eiC: and this he is ready
to verify : wherefore he prays judgment and his damages in this
behalf to be adjudged to him, ^c. W. Davy*
And the faid Thofiiatj a» to the faid plea of the faid Jo/iab
above in reply pleaded to the faid plea of the faid Thomas f above
pleaded in bar to the faid prontHe and undertaking in the faid
declaration (irft above mentioned, as to the faid i /. 3 /. 8 </.»
parcel of the faid 5 /* therein contained, fays, that the replication
aforefaid, and the matters therein contained, are not fumctent in
hw for the faid Jyiah to have and maintain his faid a£tion in
this cottrt againft him ) to which faid plea in manner and form
aforefaid above in reply pleaded, he the faid Thomas need not,
nor is he in anywife bound by the law of the land to anfwer ;
and this he is ready to verify, wherefore he prays judgment, and
that the faid yo/iah may be barred from having his faid adion in
thts court agahift him } and for caufes of this demurrer in law
the faid Thomas, according to the form of the ftatute in fuch
cafe lately made and provided, ftews to the court here thefe
caufes following ; to wit, that the £iid replication is no anfwet
to the faid plea of the hid Thomas^ and is in itfelf incertain, re-
pugnant, foreign, and argumentative.
And thereupon th« faid Jo/iah Gardner prays time to join 11%
demurrer with the faid Thomas J^JJhp here, until Thurfdaj next
. after the morrow- of All Souls, and he has it, ts'r. The fame day
18 given to the fame Thontas Jeffop, &c. \ at which day here come
as well the faid Jofiah Gardner by his aforefaid attorney, as the
feid Thomas Jejbp in his proper perfoh ; and the faid Jofiah
Gardner prays further time to join in demurrer with the faid
Thomas Jejjop here until Friday next after the oflave of St, Hilary^
and he has it, isfc. (After feveral of the like continuances en-
tered, the plaintiff in Trinity term 30 Geo. 2. joins in demurrer,
and after continuances until this prefent Hilary term 30 G«. 2.
. by curia advifare vult,) This cafe was at laft naw argued hf
Serjeant Hayward for the defendant, and Serjeant Davy for the
plaintiff; and after fome time taken to confider, the court gave
judgment for the plaintiff. *
And f/. It was refolved by the court, that an attorney may be
fued here for any fum under forty fhillings, though it be ever fo
fmall. ^
idly, That an attorney cannot waive his privilege, becaufe he
is not allowed // in rcfpeft of himfelf, but for the fake of thig
court and the fuitors here ; and if he could waive his privilege^
hbw doth the plaintiff know that he will waive it?
3%
Hilary Term, 30 Geo. IL, 1 757. 45
2dly, That the replication is weircnough, although it doth not
alledgc that the plaintiff ought not to be barred from having his ac-
tion IN THIS COURT,
So the court over-ruled the demurrer, and Taid the plaintiff
might have what judgment was proper: ^i^re^ Whether it muft
be judgment in chief; or quod defendcns refpondeat oujler ? for the
court did not mention what judgment.
' Jenkim, on the Demifc of James Harris and Ann
his Wife, verfus Prichard and others. C. B.
T JPON the iffue not guilty in eje£lment the following cafe UTio-wr
^ was referved for the judgment of the courts which Itates, *^*'°*» »•
heir by dtf*
That this aSion is brought for recovering the poffefTion of mTk-"bim.
lands and tenements in the parifli of Michaehhurcb Ejltiey ii> the fci/ hr^c to
, count J oi Hereford I that it appeared in evidence at the ^rial, '^«= ?<:"'>"
that Omvid Smith was feifed in fee of the preroifes, and being fo fe!Lf.nd'iIi
feifed, by indentures of leafe and releafe, dated the 29th and P'^remon of
30th days oi Augujl 1716, made between the faid David Smith *^«»"^«"t-
of the one part, and Rowland Prichard and Charles Price of the >u*aaual
other part, in confideration of 1 80 /. paid to the faid David Smith enrry is not
by Sarah Madey fpinfter, and in connderatlon of a marriage then "**^'''^*/y f<*
intended to be had between the faid David Smith and Sarah ^^^i^^^
Madey^ and for fecuring a maintenance for her in cafe (lie (hould without pro-
furvive the faid Davidy and for fettling and afluring thepremifes '
to the ufcs thereafter mentionedi and for, other good confidera-
tions, the faid David Smith did grant and convey the premifes
in queftion to the faid Rowland Prichard and Charles Price, and
their heirs, to hold to them and their heirs to the ufes follow-
ing, (that is to fay,) to, the ufe of the faid David Smithy his
heirs and afligns, until the faid intended marriage (hoUld take
effect; and from and after the folcranization thereof ^ to the ufe
and behoof of the faid David Smith and the faid Sarah his in-
tended wife, for and during their natural lives, and the life, of
the furvivor of them ; and from and after the dcccafc of the fur-
vivor of them, tp the ufe and behoof of the heirs of the body of
the faid Sarah lawfully to be begotten by the faid David, and
for want of fuch iflue, to the ufe and behoof of the faid Davidy
his heirs and ailigns tor ever.
That the marriage was afterwards folemnized, and there was
ifllie thereof one daughter named Elizabeth, and no other iflue.
That in the year 1734 the faid Sarah died, and in February
1736 the faid Dofvid intermarried with one Sarah Griffiths, and
by<h«r had iflue Anne^ one of the leflbrs of* the plaintiff, (now
an iftfant,) and no other iffue ; and the faid Anne married the
other leffor of the plaintiff before the demife laid in the declara*
tion.
6 That
46 Hilary Term, ^oGeo. II. 1757.
That in ^pril 1738 the faid Elizabeth, the daughter of the
faid Davidf by the faid Sarah his firft wife, intermarried with
John Waters^ and upon that marriage the faid David delivered
up the pofTeffion of the premifes to the (aid John Waters, but did
Bjot execute any conveyance thereof to him.
That in January 1738 the faid Dw/V died, leaving ifluc only
Elizabeth by the firft veiiter, and the faid Anne by the fecond
venter, and about 1 2 months afterwards the faid Elizabeth died,
leaving iflue only one fon, (bom after the death of David the
grandfather,) who died' foon after the death of the faid Elizabeth ,
bis mother, an infant, and without iflue ; and the faid John
Waters held the premifes till his death, which happened ip or
about the year 1743, and the faid John Waters and Elizabeth \\\9
wife ndver did any a£l to deftroy the faid eftate-tail veiled in her.
That the faid Da^nd had no brother, but left a fifter (named
Jane^ who married Job Gilbert, and) who was heir at law to
Elizabeth the daughter of the faid David by the firft venter, and
to her fon, and upon the death of the faid John Waters the faid
Job Gilbert and Jane entered upon the premifes, and being in
poflVflion in Trinity term, in the 2 2d year of the reign of his
prefcnt Majcfty, levied a fine tliereof without proclamations,
and no a£lual entry was made by the lefibrs of the plaintiff to
avoid fuch fine.
The defendants claim under the faid Job Gilbert and Jane his
wife : in November 1754 the kfTors entered and made the leafe
to the plaintiff, and the defendants oufted them, as ^mentioned
in the declaration ; and upon the trial a verdiA was found for
the plaintiff, fubje£l to the opinion of the court, whether the
plaintiff ought to recover the premifes, or any part thereof.
And if the opinion of the court (hall be that the plaintiff ought
to recover the whole premifes, then the verdi£l.is to ftand, with
liberty for the plaintiff to take out execution thereon ; and if the
court (hall be of opinion that the plaintiff ought only to recover
part of the premifes, then the verdi£l is to be entered for the
plaintiff for fuch part only, and as to the refidue for the defend-
ants : but if the opinion of the court (hall be, that the plaintiff
ought not to recover any part of the premifes, then the verdi£t
obtained by the plaintiff is to be void, and inftead thereof a
judgment of nonfuit is to be entered up for the defendants.
The eftate-tail being fpcnt, the leffors of the plaintiff claim
the reverfion in fee of the whole premifes in right of jtnne, as
heir to David Smith, or, at leaft, a moiety of the premifes, as
the reverfion thereof, upon the death' of David Smith, defcendcd
in moieties to his two daughters Ame and Elizabeth.
Upon
HiLAViY Tevlm^ ^oG^o.ll. 1757* ' 47
Upon the afguoient of this cafe two points were made ; ifi^
Whether the leflbrs of the plaintiflF had any title at all ? And
2dfy^ If they had any title, whether an a&ual entry was not ne^
ceflary to have been made in order to avoid the fine mtheut
proclamations? »
As to the firft point, it was obje£ted for the defendant, and
adjudged bvthe court, (abfente Birch J.) that whoever claims as
heir in fee oy defcent muft make himfelf heir to him that was
laft feifed of the aAual freehold and inheritance ; that is to fay, co. Lit
who was laft adiually in pofieffion of the lands in fee-fimple ; xi. b.
and the reverfion or remamder in fee (be it w&ich it will) which
was in David Smtbznd his heirs on the failure of ifTue in tail,
is not fttch a fcifin whereof there can be a poffe^^/ratrisy &c. ;
and therefore jinfte^ not being heir to the pcrfon laft aflually
poflefled of the fee, the court were very clear that the leilbrs had
no title to any part of the premifes.
As to the fecond point, the court adjudged that an aQual en- Piowa. 265.
try is not neceflary to be made in order to avoid a fine at common
law, as this is, it being without proclamations. Judgment for
the defendants.
Burflem verfus Fern. C. B.
IMPRISONMENT. The defendant juftifics under the flie- Faifeim.
* rifles warrant direfled to the gaoler, and to one Samuel Jordan P"fonnwit
and the defendant JofiabFern, upon a capias to take the defend- fiih o"**J2^
ant to anfwer Jof. Jones in a plea of trefpafs upon the cafe upon fteriff't
promife. The plaintiflF replies, and traverfes that the flieriff ^?^\^ ■
made fuch warrant dire£ted to the gaoler, Samvel Jordan and fpSndcraum
Jofiab Fern. The defendant takes liTue upon the traverfe \ and aftor it !•
upon the trial before Mn Juftice Dennifon at the affizes in the ^^*^'/^"
Midland circuit, it appeared in evidence, that the attorney for ^ ^'m with
Jof. Jones fent to the under-flicriflF for a warrant upon the capias t blank, Uii*
ad refpondendum fued out againft Burflem; that the undcr-ftieriff **^'
fent to Joneses attorney a warrant thereupon, dire£ied to the
gaoler and Samuel Jordan^ with a blank fpace for another bai-
lii*s name; that Jones*% attorney, without the privity or know*
ledge of the (heriff or under-flierifF, put in the name of the de-
fendant Fern after the warrant was fealed and fent to him, at
the inftance and peril of the plaintiflF y<7/f^/, as a fpecial bailiflF,
who thereupon arrefted Burjlem^ and carried him to gaol for
want of bail. It alfo appeared in many other counties this me-
thod of fending blank warrants by under-(herifis to attornies who
fend for the fame is often pra£lifed, efpecially in the northern
coanties, as Mn Juftice Dennifon himfelf faid ; and thereupon he
was about to fum up £he evidence, and direft the jury to find a
verdi^
45 HfJLARY Term, 3oC^- II- ^757*
verdict for the defciKhint ; but at the preffing inftance of Ser-
jeant WilUs the point was faved, and a cafe ftated, as above, for
the. opinion of the courti whether the ifllie was proved for the
defendant.
It was inGded bj Serjeant Hewitt for the defendant, that the
ifllie was well proved for him> (and of that Opfaiton was the.
judge at the trial) \ that although the eafe ftates timt the name
of Fern was put into the warrant after it was feat to the attorney^
without. the privity or knowledge of the (heriff or ifnder«i{herifi^
yet it doth not (late that the attorney Jiad not autht>rit7 from
the iherifF for that purpofe } and the general iifage of detiverinf^
out blank warrants to attornies authorizes this ptadice. The
fame kind of pfadlice prevails in other cafes: the filacers give
out blank writs, and the plaintiff's attorney conftantly fills them
up after they are figned and fealed ; marriage*licences are given
' out to furrogates, blanks and filled up by them after they are
fealed i and foy in many other inftances. ^Iht Jftat^ 6 Geo. i.
r. 21./ 53.9 which recitest that whereas under-AerifiB dcUver
out blank warrants and oilier warrants^ Istc. to attornies for ar-
reding perfons without having any writ, isfc*^ doth not condemn
the pra£fc(ce of delivering out blank warrants, but feems to allow
the fame, and only condemns the delivering out of blanks, or
^ any warrants by the Iheriff before he hath received the Mrrits. In
a Wejlmorland cafe in B. R. upon ^ motion by way of complaint
agaiiift an attorney for filling up a warrant after it was fent to
him, exaQly like the prcfent cafe, the court did not cenfure the
' attorney, but faid it was the conft'ant ufage. (This was mex^
tioned by Mr. J. Dennifcn at the trial.)
On the other fide, it was faid by Serjeant Witles for the plain-
tiff, that if this praftice be permitted to go on, it will be of bad
confequence ; for then, inftcad of (heriff's officers, who give
fccurity to do their duty, plaintiff's attornies may put into war*
rants men of infamous charadlers, who may be guilty of great
oppreffions ; and formerly the perfons who executed procelk
were duly fworn and admitted for that purpofe, to prevent op*
prcffion.
Per eurlam [ahfente Birth J.)-*We have no dotibt but thia
pra^tce ought to be condemned ; and although^ we do not pu<->
nifh attornies for it by granting attachments againft them upon
complaints, yet we conftantly difcharge the party arretted by
fuch warrant out of cuftody. Such warrant is always bdd to
be illegal ; and if Burjkm bad killed Tern in refitting him, it
would not have been murder, becaufe Fern had no legal warrant
to arrcft him. And a parcel of failors, who were tried before
Mr. Juftice Bathurjl for killing a bailiff who had fuch a warrant
as the prefcht for arrefting one of them, were acquitted of murder.
As to the/o/. 6 Ge9. I. <r. a I./ 53. we think it rather condemns
blank
HiLAkt TSKM^ ^o Geo. Ih 1757. 49
blank warrants than otherwife ; but if it does nof, it leaves them
as before the ftaiute was made^ and we think fuch warrants were
always bad. As to iilacers they are o£Bcers for that purpofe,
and they may authorife attornies to fill up their writs. As to
futrogates we do not kpow what they do, but we are all very
clear that the defendant has not proved his iflue^ and there mull
be judgment for the plaintiff.
Villers vcr/ids Hanley. C. B.
J\EBT upon a bond for 52/. 16/. a^inft the heir of the a term foe
*^ obligor. The defendant confcffcs the bond and debt, and ^^^2"
pleads that he has nothing by defcent but a fmall cottage in Tarn" pleaded tobe
nvortbf except a reverfion after a term of 500 years, commencing by «ieed, [
the 1 6th olO^^er 1 7461. now to come and unexpired; and this
he is ready to verify. To this plea there is a general demurrer,
which was argued by Serjeant If^ilUs for the plaintiff, and Ser-
jeant Hewitt for the defendant.
For the plaintiff it was objc£led, ly?. That the plea is ill in Aienrfioo
fubftance, b^caufe it is not alledged therein that the leafc for 500 Jor'sooyewt
years is by deed, nor that the leiTee by virtue thereof entered ; is immediate
and if the Icafe for 500 years be without deed, it is void by the ^^ *« «^
ftatutc of frauds and perjuries •• And of this opinion was the j,^° ^^ ^
court (C/rW and Baihurjl Juflices only prefent), and upon this fcenc.
point gave judgment for the plaintiff. * Bat qnane
• at CO this,
^dlj^ It was objected that a reverfion after a term for years is Farmer of
not pleadable in this manner; but the defendant in this cafe thedemifeof
ought to have admitted affttsj and cited Smith and ^ngel^ R^'eTw!!
'zLd.Raj. 783. and Salh. 354. S. C, where Holf^ opinion is, TriiL^'r**
that the heir could not plead a term in delay of piefent execu- ^^G.%,
tion, but ought to confcfs affets, (notwithftanding there are fomc ^on^***""
precedents otherwife, that he may,) for the reverfion is affets, lil Eat.
and the common law had 00 regard to a term for years; and iSo.
there is no mifchief in this ; for though in confequencc a levari ^]^^ ' ^^'■•
^^^7 tPf yet a leffee may maintain himfelf againft an eje^ment vide x Ro.
by virtue of his leafe ; and of this opinion was the court now in Rep* 57?
the prefent cafe ; but they declared they gave judgment for thd
plaintiff upon the firft point.
But quare how the judgment is entered^ whether general or
fj^cial ?
Vqu IL
50 HijLART Term, je deo. II. 1757,
Shipman verfids Stevens. C. R
v^JTth A SSAULT'and battery, whereby the phimiff loft ber leg.
defendant *it The dcfciulanu bci tig fcnred With a capias ad t^p^ndendum^
aninfanttiie did not enttr his appearance at theptoper day after the retam
pliintiff thereof, therefore the plaintiff's attorney made an affidavit of the
ply to hinT* fcrvice, entered an appearance for the defendant according to
to name hii the ftatute ir> perfen, kft the deckrafion in the office, gave no-
«^**J» ticc to the defendant thereof, and to pJead ; whereupon the de- '
fauit"thcic- fendant employed Mr. TValA an attorney c^ B..R. to take tbe
o/,thf flam- declaration out of the oi9Sce and pkad the general iffi&e, who did
'^f^^^' *^ *" ^^^ tkzmt of one Palmer an atrocney of C B. Thereupon
cottit*to ' *^ plaiotiflTa aCtomey made up and delivered the iiTue, gave no-
oblige de- tice o( trial, fe t down the caufe, fubpoenaed witneiTes, and gave
fcndantibto l^iefs to his eottnfel ; but when the caufc war juft corafng on to
lie tried, the plaintiff's attorney difeowered that the defendant
was an infant of about 17 years old, fo that he ought to hav£
appeared and pleaded by guardian ; and therefore if the plaintiff
had proceeded to trial and judgment upon this record,, it would
baare been error.
Wherefore it was now moved on behalf of the pfemtiff, that
the defendant or his attorney might (hevr caufe why the ap|>ear^
ance in the filacer's book fhould not be ftniek out, and the de-
fendant be obliged to appear and plead by bis guardian, and why
the record (hould not be amended conformably thereto, and why
the plaintiff fliould not have his eofts occafioced by the defend-
ant's attorney, who muft be fuppofed to know his client waa ah
infant, smd K> bad led the plaintiff^ attorney on to proceed tKm
txt erroneoiifly } uponf an affidavit of thefe b£t% and that MV.
Waido was a truftee for the defendant in a fettlement, and muft
know he was not of age whea be pleaded.
On fitewing caufe for the defctrdant, it appeared by affidavit
that Mr. Waldo acquainted the plaintiff's attorney that the de-
fondant was an infant, but this wns after the pics, pleaded, and
J2e not believing it, proceeded fo far ZH above fald.
Per curiam — In this cafe the plaintiff's attorttey ought fa have
applied to the defendant to name a guardian, and if he did not
do fe in fix days,^ ifcen plaintiff ought \o have applied to the
court to oblige him fo to do j and it was the plaintiff's attorney's
own fault to proceed erroneoufly, although no notice had been
given to him that the defendant was not of full age ; and if the
plaintiff had proceeded to judgment, and error had been brought,
and afterwards the plaintiff had moved here to have made the
i^ record
wMitA riglir» tfite coun irouM not hit< ddnt k ) siid tfiAtflm
tft 19 eollt Ibttd U iiKM ttttoa that tli« ^huniiflF fliottM puj etias
liW b«{|lg tMSfmitMl tt have the ttedhl ifiide fi^ht> thftli that iht
ikfettdftlit ftmli ptkf coftt to the plaintiffi ho%^T«f, tts Mtt
iMTt liot bebki pMyed by the defendaiit> let iht defeildalit pteM
by guardian in fix daysi iind Ut the itdotd bi Made agfttlbly
thereunto without cofts of cither Ode. Serjeants PnW, WUles^
and Aiij tot the pl&intiff» fftmi/ Iblr the de^ndant M/tnte
Cspm. J^. Willes.
EA8TER TERM,
30 Oeo. 11. 1757.
aHH
Cope vtrfui Marfhall & aL B. R»
TUB t^cetd is of Hthf^ fetiA in the 27th year of his |np§y
fiShl Matjeftyi Ht?//. 14 j. The deelaration eontaihs nine;
cMflfs, but a6 the queftioti debated arofe fingly on the 8th
^ount) it ^ill be otily neoeflkfy to trrite ihttt down^ which i»
thtts, tris.
«
And alfo tlfof they <he (Ad Chdrhs Mar/Mt, W.B. J.M. Dedan^
J.Ht.T.JT. y.a.jr.T.J.p-. tr.i. andir.jRr. ontheiith ^"2115?,
Icy ts/tjum in the yeet 6f oar Lord 17531 ^^^ ^* AUtfh other npcooqT
Jtyiafid tkiteabettteeh that d>y end ^ day of eifhibitiM thb i»«inowtta
Klf, with Ibice Md artftf broke and entefed the dofe and fireo ^^^
flWteti t»r ^ find J4hii C¥p€cAUA iuMf^t JMg€ WarnH^ OthON
Urtfe Qf^# JTi^ih^i lif the petifh of ^if^<^> othetwifd Rmlgtlfi
^AMvrtSt itUgilj %f6tt&iii in the fald couiity of 6u^d^ Md
iMdi d6#h ifid eOflfumed l^ith ttor ftet iii WaUung the grift of
me (aid ^M* C^ theve gtotiring, of the y^Iu^ erf twefiiy pourid^
MMIdM Ira Of th^ faid y9kn Q^ ihtte^ to wilt fife'«etee 0^ hM
Ibil did ttEM tp iild fttbvett "vHlh (h^els^ fj^adei, eOrVOi, piek**
MdS| afld ftMfioeb/ «Ad did d% tip^ fill aip^ MA deftfoy dtt eri
##tiey iiiiitoi»«i f 6 wlt> iMd eooey burroi^a theii tM thete Anidi
nd ui« uf fof tilt h«flK>tffkkg«M bttteA^
coniea
jr* Easter Term, 30 G^(?. II. 1757.
coflies then found in the fame clofe and free warrea« to wit,
1000 conies of the value of fifty pounds, did take and carry
away, and converted and difpofed thereof .to their own ufe, and
eer injuries to the faid J^hn Cope did, againft the peace of our
1 the prefent king, and to the damage of the faid John Copt
of 100/. and therefore he brings fuit, &r.
Not guilty ^ And the faid Charki (and other defendants) plead firll the ge-
iJia^^^'^fti* "*'*^ ^^^ ^^^ guilty ^o '^^ whole, and thereupon iffue is
ficnion'by jo^n'^^J ^nd by leave of the court here for this purpofe to them
t)ie defend, granted, according to the form of the ftatute in fuch cafe lately
aot at bav. made and provided, for further plea, as to breaking and entering
^^Mmmoo ^^ ^l^'^ ^^ ^^c ^^1^ declaration mentioned, called Sugar's Lodge
•nd that the Warreftf otherwife Cope*j Warreny and treading down and conr^
fttrthamd ^"™"8 ^^^ P^^^^ Hitxt lately growing with their feet in walkings
wkbo^ct ^"^ ^^^ turning up and fubverting with (hovels, fpades, corves,
tothenv oickaxes, and mattocks, the faid foil there, and digging up, fill-
ieiMdMt!** mg up, dcftroyihg, and fpoiling the faid coney burtows there
and^m. made and kept up for the harbouring and breeding of qsnies,
foreheabat- above fuppofcd to bc done, fay, that the faid John Cope ought
^the ou. QQ( ^ Yi^^t or maintain his faid adion thereof againft them, be-
caufe they fay that the faid Charles^ at the faid fcveral times
when, ^c. and long before, was and ftill is feifed in his demefne
as qf fee of and in divers, to wit, twenty acres of land, with the
appurtenances, lyiqg and being' in the parifh aforefaid, and that
the faid Charles^ and all thofe whofe eftate he hath, and at the
faid fcveral times when, &c. had of and in his faid land, with
the appurtenances, from time whereof the memory of man is not
to the contrary, have had, and have ufed and been accudgmed
to have, and of right ought to have had, and the faid Charles
iUU of right ought to have common of pafture in a^d upoq the
faid clofe called Sugars Lodge Warren^ otherwife Cop^s, Warren^
in which, \^c*. for all his and their commonable cattle levant and
couchant on the faid land now of the faid Charles^ with the ap->
purtenances, every year at all times of the year, at his and their
wiUs and pleafufes, as to the faid land now of the fard C&//r/^/,
with the appurtenances, belonging and appertaining ^ and jthe
faid Charles, William Emery^ J. ilf ., (and the other defendants,)'
further fay, that the faid coney burrows, in the faid decl'aratioa
mentioned, before the faid fcveral times when, l^c, had been
wrongfully arid injurioufly made, and at the faid times when,
Isfc, were wrongfully and injurioufly kept up and continued for
the harbouring and breeding of c:onies in the laft-meotioned clofe,
called Sugar's Lodge Warren^ otherwife Coper's Warren^ in which,
istc. and the conies, to wit, 100,000 conies harboured and brc5l
in thofe coney burrows at the iaid times when, ^r. eat up and
fed on the grafs in that clofe growing, by means 6f which the
faid common at the faid times when, &f. was farcharged, to the
great nufance of the faid Charki in the enjoyment of his faid
common of pafture, fo that the faid Charles^^ at the bjA times
when.
Easter Term, 30 Geo. II. 1757. 55
wfaeoj &r. could not have and enjoy his laft-mentioned com*
xDon of paftore in the faid clofc called Sugar^s Lodge Warren^
otherwife Cop/s Warren^ in which, C5*r. in fo beneficial a man*
ner as of right he ought to have had and enjoyed the fame ; ^
therefore the faid Charles in bis own right, and the faid W. E.^
J. Jtf.f (and other defendants,) as his fcrvants, and by his com-
mand, in order to abate the faid nufancei and to«prcVent the
continuance of the increafe of, conies there, at the faid feveral
times when, C5V. entered the faid clofe called Sugar*s Ledge War*
retij otherwife Cepe*s Warren^ in which, &r. and with {hovel%
fpades, corves, pick-axes, and mattocks, dug up, filled up, de*
ftroyed, and fpoiled the (aid coney burrows fo there wrongfully
and injurioufly made, kept up^ and continued for the harbouring
and breeding of conies, and thereby did abate the faid nufance,
as it was lawful for them to do , and in fo doing they the faid
Charles (and others) did neceflarily and unavoidably tread down
and con fume with their feet in walking a little of the grafs there
then growing, and did neceffuily turn up and fubvert with the
faid (hovels, fpades, corves, pick-axes, and mattocks the faid
foil there, doing as little damage as on that occafion they pofEbly
could, which are the fame breaking and entering the faid dole
in the faid declaration mentioned, called Sugar^s Lodge Warren^
otherwife Copers Warren^ and treading down and confuming the
faid grafs there lately growing with their feet, in walking an4
turning up and fubverting with (hovels, ipades, corves, pick* -
axes, and mattocks the Tnd foil there, and digging up, filling
up, deftroying, and fpoiling the faid laft -mentioned coney burr
rows there made and kept* for the harbouring and breeding of
conies there, whtrreof the faid John Cope hath above thereof
complained againft them ; and this they are ready to verify \
wherefore they pray judgment if the faid John Cope ought
to have or maimain his faid action in that refpe^ againft
them, t5*f .
To this plea the plaintifFhas demurred generally, and the de-
fendants have joined in demurrer.
There was a verdicl for the plaintiff upon the general iflue,
and afterwards this demurrer was feveral times argued before
Lord Chief juftice Ryder isf fociis fuh^ and it was argued in this
term before Lord Chief Juftice Mansfield ^ fociis fuis by Mr,
Moreton for the plaintiff, and Mr. AJion for the defendants*
In fupport of the demurrer and to (hew the plea was bad, fe-
veral cafes were cited ; firft, Coney's cafe, Godb,, laa. 4 Leon, 7.
S. C. where the plaintiff declared in trefpafs for digging the
plaintiff's clofe, and killing 18 conies there; the defendant
pleaded as to all the trefpafs but killing of two conies Not guilty^
and as to kdling the two conies juftifies as having a right of
common, and that he found them eating the grafs, aii^d that bie
Ej killed
jf4 e:a»te»Tehm, 3a^i<?flt 5757.
]^A9^ them. Judgment for the pUiptif. Ta thi| U isas MfveKd
& th^ litomfel % the 4efep4ant> t^^t the Qak((^ cite4 i? nPt ap*
^tqajble to the pvefcnt cafe, for the pita uqv uadtr ocAfideration
(loe$ pot yx&Kj th^ kUUhg of coniest
Th^ fecon4 cafe cUe4 fox the plaintiff was SflU^ v- L^mdot^
Qrf. JSIisi* 876. and Qt(MVi U4* S« C- which was( trefpafa for
}fmx^g eonie^ | the juftifica^ion i^ the fame as the (;afe m Crocii-
^d the (3me judgment, fo the coixnfel for the def<?ndant fuh^
giitted the lame anCwer, that this cafe is not appUcable to the
pi^fc^tf
The third cafe cited for th^ plaintlfF was HaJJefdtn v. Grjffif^
Cn9. 7ac. 1915. Te/v. 104. S. C. whick was trefpafs ^re cbu»
dwfiegit^ and took, killed, and carried away qonies : the de-
fendant juflifiesi, for that he is (eifed in fee of a ipeflyage su^d
land^ and had. conunon by prefcriptioo appertaining thereto in
th^ place where, bV. and that he was ready to ufe his common;
^nd man^ conies being there damage Jeafant and fpotlinig the
' , fipraf^i he entered to chafe them out lealt they fhovta increafe :
^le ptaiqtiff demurred, and after argument the court adjudged
that tb^ ptea was not good, for the commoner has nothipg to dp
ix^th the land but to put In his cattle^ and may not meddle with
9ny thing of the lord s there \ anid if the lord Aircharge the com-
toion, the commoner IhaD have an affife or ai\ aftion on the cafe \
and he may not kilj the conies, for fo long as thev are on the
land of the lord they a^ his property ; and when the defendant
ifhews that his intent was to enter to chafe the conies, that entry
was tortious \ and fo there was judgment for the plaintifF. The
counfel fqr the defen'dant now admitted this calb was good hw,
hat faid it was Qot.Uke the cafe at bar.
Tlic fourth cafe cited for the pjaintiff was Sir Jeronu Horfey
V, Hagherton : the queftion was. Whether a commoner may call
49Wi^ a^d fill up cqne]( burrows which were made in the cqro-
mon wade where he was to have common ? and this being pleaded
in juftification, and a demurrer thereupon, it was refolved and
SLctiudseA withQtit arg^ument, that the commoner had not any
QtAer intcKefl than ^o take the common by the feeding there of
ijdfiiq^^ei and m^y not deftroy the cornea nor copeyjuirrows ;
^h^i^e^^bje without arguBiicnt it was adjudged that the plea was
not goad- ^.. anfwer'to this cafe it was obfcrved by the counfel
. for the now defehdantSi that the cafb cited was determined with-
^t ^U9)ii;n,^j( and is fo rpentioned by the reporter twi/ce;
^ij^ *5T\at it dlo.es not. appear what the patur^ of the juftification
^fW V %94 it QX^^ ^ ^ ju.fti&cation merely hy the defendant, a#
htflHio^ % ^'^^ ^f common, without ftating or . alledgmg any
Tuwbvj^i *.n4 iC ft* t^JP ?afe was admitted to be law j and that
XV% W%a tJt^^9Jlt4l^ of dvo juftification is moft probablcj' or othei^
.W& il ^<^ttl4 hiv^ h^e;)^ {vixthes ftateds aud, the defendant's
couufel
fiA«TEk Term, s^Gto. IL 1757. 55
cottafid agreed, tint the lord 1x117 ^^f^Iiy ^^^ coney bunowt
OD the warren, and may encourage die increafe of oonies, £9
that he do not furcharge the common ; but when iiat is done^
the coney burrows (it was infifted) were a nufance i And they
faid thac in the prefetit plea the furcharge is infifted upon, and
that the ere£lion of the coney burrows was the cauie of fuch
furcharge, which is admitted by the demurrer ( and therefore
the fxckni cafe is very different.
The fifth and laft cafe cited for the plaintiff was, 2 JS^. r i6.
Carril v. Pact and Baker^ i Bronpnl. 227. S. C. ttelpafs quan
cUufum isf Uberam luarrennam fregit isf intraviif and for digging
the ground, t^c. The defendants plead Not guilty, except at
to entering tlie warren, chafing the conies, and digging the land|
and as to chafing che conies and digging the land they juftifv, a$
having a right of common i that the plaintiff's father ftored tht
place with conies ; that the plaintiff made new h/oie$t by reafba
whereof defendant's iheep often fell into them, and £» wevt
hurt ; by reafon whereof defendant with ferrets chafed the 00*
bies, and digged down the burrows* and filled up the holes far
the better prefervation of the common : demurrer to ^e plea^
and judgment for the plaintiff. To this cafe it was anfwered by
the defendant's counfel, that the judgment was given upon the
infufficicncy of the plea, and, as it feems, principally upon this
reafon, becaufe the defendant hath noc denied but admitted the
free warren $ for Crooie J. fays, << If the plaintiff hath a free
'* warren, the defendant cannot Juftify the killing the conies."
{Haugbtott].) — Coney burrows are incident to a warren | and
ftr Doddendgc J.<— If.the defendants liad pleaded Not guUty to
the trefpafs in the warren, this had been then well pleaded, aUd
the plaintiff mud then have made it appear to the court that be
had a free warren \ but by this plea they have confeffed that he
had a free warren \ fo the court was clear of opinion that the
jttftification was not good, and judgment was entered for the
plaintiff. According to the repo'rt of this^afe by BrownL as of
Yrin. 1 1 Jac. 1. the fuit was held (o be difcontinued by reafon
of a defe£l in the pleading, and fo no judgment given in this
cafe on the merits. The pleading ftood thus : declaration \fk
trefpafs for breafkiog the plaintiff's free warren, diggitrg his land,
and chafing his conies, and taking them. Defendants to all
except entering the wancn, chafing the eonies, and digging the
laod, ple^d Not guilty; then as to digging and chafing the
conies they juftify, and fay nothing as to the entering the was-
ree, neither by confeffion nor traverfe, and ib all was difconts-
nued ; and cites 4 Rep. Hitrkkeftdetf^ eafe ; Aie arofe from an
obje&ion taken by Mr. Juftke Hattgkmh O^ which fome mea-
. tion is made in the repoft of this cafe htt Bmlfirodis but however
t^ may be, fuppofing the judgosient to hs given on the merita
for the plaintiff as reported by Mul/ndtf tbiC deteinbiaation
£4 (the .
56 EASTEk Term, 30 Geo. IT. i757«
, f the defendant's counfeljnfiftcd) cannot zffeSt the cafe now at
bar, for here the defendants have purfued the advice of Mr.
Jufticc Doddrndge, and have juftified entering into the clofe,
but (by the general iffuc to tho whole) have denied the enteiihg
into the freewarr^n^ fo that the prefent juflification does not
admit the clofe to be a free warren, and therefore the reafon
given for the infufficiency of the plea doth not hold in the pre-
fent cafe I that coney barrows are incident to a warren doth not
ihew this jufttfication' to be bad, which does tlot admit the place
in which, isfc. to be a warren. Biit it was admitted by the
eoanfel for the defendants, that this cafe was rather an authority
for, than againft them ; for in the arguhient thereof by Sir Ua-
bert Hitcbam in fuppo/t of the juflification, he agreed that kill-
ing t>f conies was nof juftifiable } that in Simon de Harcourf^
cafe, 13 H. Z. fo. 15. which was trefpafs for digging a trench
upon the common, which the commoners juftified to prevent
the common being annually overflown, in which cafe the court
Were divided in opinion two againft two : the Chief Juftice went
upon this diflFercnce, where the commoner meddles with the foil
'de novoj and where he only reforms a misfeafancej in the cafe
of Simon de Harcourt the comi^oner meddled with the foil de
mvo ; but if the tertenant dp inclofe, the commoner may pull
Idowd, becaufe this is only done to reform a misfeafance* If
the lord do make a pond upon the common, if the commoner,
fiotwithftanding this hath common fufficient, this is good j but
If all the common be taken up in the pond, they may lawfully
let out the water, and fo enjoy their common, and this they
• may well jultify 5 and cites the fame cafe. Then he infifts that
the tertenant ought not to take advantage of his own wrong, and
that it is lawful for every man to remove what is iiurtful or a
damage to him. After this argument the court determined the
cafe of Carril v. Pack and. Baker^ upon the reafon that it was
charged in the declaration that the defendants had broke the
. 'plaintiff's free warren, and done the trefpafs complained of there;
and this was adnjitted by the juflification ; and therefore the
court were of opinion that the juftification was bad, becaufe
coney burrows are incident to a warren j from hence (the now
defendant's counfel fubmittcd) may be. very fairly drawn this
almofl. neceffary confequenqe, viz. That if in that cafe the de-
fendants had pleaded Not guilty to the trefpafs in the tvarreuj
*the juftification had been good ; for Mr. Juftice Dodderidge ex-
. prefsly fays, if the defendants had pleaded Not guilty to the
trefpafs' in the warren, this had been then weil pleaded^ and the
plaintiff mud then have made it appear to the court that he had
. a free warren, but by this plea they have confeffed he had a free
-warren : in t*he cafe at bar the free warren is denied by the
general iflue, and therefore the defendant's counfel now fub-
mitted to the court that this cUfc cited by the plaintiff is a ftrong
authority for the defendapts.
V - They
Easteibl Te'blm^ ^o Geo. 11. 1757. 57
Thcjr who argued for the defendants did not deny the author!*
ties cited for the plaintiff, nor difpute the principles upon which
thofe cafes are founded, but contended that the plea in the cafe
St bar may be good confidently with thofe principles ; and to
diftinguifh this from all the cafes cited for the plaintiff as to the
intereft of the commoner, it was firft admitted by the defendant's Intneft of
counfel, that his intereft confiils in the feeding on the herbage, ^ ""*"
and that he has no other intereft in the foil , that the lord or j^^^ ^
owner of the foil may feed the herbage with his cattle, and is not the laic4. '
rcftrained to any fpecies of cattle, but may depafliure it with beads
of warren ; that the commoner has no right to didrain, chafe, or Coannooer
kill the beads of the lord. Thefe arc the general rules which canBotchafc
they (for the defendants) faid they did not difpute, but fubmitted S^^^jJ^^jJ^,
to the court that thefe rules admitted of fome ezcepti6ns or re-
ftridlionsy and that although the lord may put what fpecies of
cattle he pleafes upon the common, or may ufe the foil in what
manner he pleafes as his own foil, yet that mud be underdood
fui modoi that he ufes the foil or feeds the herbage with cattle in Lord't afeof
fuch manner ?s may be confident with the rights of the comr ^"^^"^
moners ; and here, this rule of law ought to be obferved,^ utere
tuo ut aiieno non ladas; and therefore it w<is contended, and in-
fided by the defendant's counfel, that if the lord or owner of the Heoo^t
foil puts fuch a number of cattle upon the common fo as to fur- "^ ^ ^*
charge it, tliat is to fay, if by means of fuch number of cattle ^*
turned on by the4ord, the commoner has ndt a fufficient common
of padure for the cattle he has a right to feed on the common,
or by means of any erections on the common, the c6mmoner is nor ^ke
didurbed, hindered, or redrained in the enjoyment of his right, ««^oii#.
fo that he cannot enjoy his common in fo ample and beneficial a
manner as he has a right to do from the nature of his grant, cuf-
torn, or prefcription ; thefe are injuries done to the commoner, Tbe&iie
and which the law calls nufances, and for which the commoner nufaacet,
has a right to a redrefs by law ; and there are a variety of cafes ^^^^
in the books to prove this. Then they dated the plea, the fa£ts hire redxtlW
wherein difclofed are admitted by the demurrer, fo that it appears
that an injury has been done to the commpners by the making
and continuing of the coney burrows, which is the caufe of the *'
furcharge upon the common : if this be an injury, the commoner
has a right to redrefs ; but how and in what manner // the quef- But In what
iion^ Whether by abating the caufe of the nufance, or by an a&ion 2?*""^|«^
againd: the lord ? It was infided for the plaintiff, that the remedy *^
is by aAton only, and that the defendant has no right, to abate May aVate
it, and by taking this method or courfe of redrefs is ^ trefpaffer; «*» nttf^ce.
and this is the (ubdance of what has been contended for on, the
part of the plaintiff; but what is now infided upon on the be-
half of the defendant isj
That the abatement of the caufe of the nufance, as in the
prefent cafe, is a legal method of redrefs s. that it is agreeable to
the
j[8 Easter Term, 30 Geo. II. 1757*
the reafon and policy of the law, and that by purfuing this courfe
the defendants are not trerpdirers> but tbat^heir plea contains a
legal jufti&cation i that this is a legal courfe of redrefs, andagrec-
able to the reafon and policy of the law, appears from hence :
^^f""*"* Nufances arc confidered either as public or private nufancesi
frivite* public nufances are fuch as afFc£fc the public, ail the king's fub-
je&s, as the flopping up an highway ; private nufances are fucb
as only affeA certain particular perfons*
PvUic. Public nufances may be abated by any of the king*s fubje£ls»
but no a£liou will lie by a private perfon tor a public nufance, l^e-
caufc this would tend to create an infinite number of fuits^
one man being as well entitled to bring fuch aAion as an*
other.
Mfite. • Private nufances may bo abated by the pcrfons injured by thera^
or the party injured may bring hisa£liou to recover damages for
CMMnar^lf the injury Ke mftainsi and this is the general rule of law with
Mto«i. refpca to nufances; and how the cafc at bar comes to differ
from that general rule of law, the defendant's counfel were at a
loTs (as they faid} to underdand ; that the party in this cafe of a
private nufance may bring an adion to recover damages, but can-
' not abate it -, for if there is any reafon to differ this from ail other
eafes of private nufance, the rule to prevail according to the ge*
neral reafon and policy of the law ought to be the very reverie^
viz. That thefe kind of nufances may be abated, but that no ac-
tion would lie; for if a£tions are to be brought by every perfon
injured by this kind of nufance, it mud tend to create a multi-
plicity of fuits, for every commoner has the fame right of a£^ioa
, as another ; and in the cafe before tlie court may produce thou-
fands of fuits.
/teimgtiie Befides, abating the nufance in this cafe is the mod reafonabic,
Btt&nce in proper, and moft adequate courfe of redrefs : by an a£lion on the
inoft waibo- ^^'^ againfl the lord, the tomrooner can only recover damages,
ibl«r but fuch action will not reform the nufance ^ that notwiihdand-
ing fuch a£tion the nufance continues, and by the continuance
of a private nufance pending an a£tion, a perfon might in fomc
cafes fuffcr irreparable injury \ therefore the abating the nufance
is the mod reafonable and proper courfe of redrefs> and beft
adapted to the nature of the injury.
But that this courfe, of redrefs fliould not be lawful in this par-
ticular cafe of a private nufanoe, and yet allowable in all others>
(as was contended for on the fide of the plaintiff*,) is ueither agree-
able to common fenfe and reafon, nor to the reafon and policy of
the law; and therefore the defendant's counfel- now took into
conGderatioo the reafon upon which this diftki£tIoO| this e;acep-
tion
Ea8Te» TbrMi 30 Geo. 11. 1757. S9
tioo to Ihc g«mnl nile 9f law, is contended for on the otiioc
^de; sind it 19 only thist v/s. That the coonnoner hat na intereft
in the fpili is not to meddle with the foil of the lord ; all be h9«
tQ do, is to take the grafs with the mouths of his cattle. In an*
fwer to which the defendant's counfel infiftedy that the common^
ei^S having no intereft in the foil, is no rcafon why he may n^
^teiT into the common and di^the foil to abate a nufance ^ for if
I have a clofe lying contigudus to another clofe through which> %
watercourfe runs, and my^neighbour makes a dani acrofs the
watcrcoorfe l^ which my clofe is oveciowed, forely i may enter
into mT neighbour's cloie and dig up the dam in order to abat«
the nuuncei and tbot^ although I have not» nor claim to hav<i^
9(ny kind of inte|:eft in the foil. This is every day's praGkice is
|auifiqations fqr abating of nufances, and is fo well known and .
eftablUhed that there is no need to cite authorities to prove it»
% /i^.,405, 6. That the party injured may enter into the land of
the wrong-doer to abate the nufance, whether it be in his owft
pofleifion or in th/^ pofleffion of bis alienee ; and to the like puf^
pofe are many cafes put in the ycar*bQok| 9 Ed. 4. 35* If %
watercourle to my miU be diverted by making a ditch in another
pnan's foil> I may enter and fill np the ditch ^ this cannot be di(>
pnledi and therefore it may be fairly conclwiedi that in the pitt-
teot cafe the commoner may lawfully ad>ate the nuCince. A vigbl
qi common is certainly an intereft in the prodnce of the fioij^
diottgh not in the foil itfelf, and is fnch an intereft as gjlves ihfC
party a remedy to . recover (if deprived of it) by an afiize \ it is
(och an intereft as enables the coinnH>ner to diftrain the cattle of
• ftrangers depafturiiig the grafs a& daknage.feafant i it is fueh an
iat^eft as enables the pnrty to abate a nufance er^ed to'his pre-
judice in tibe enjoyment of his common, as appears fifom the cs^ft
QiMafins. Cifavy 2Mod>6^* which was trefpafs for pulling
down of hedges; the defendant pleads. that he had a right of
common in the place where, ^c« and that the hedgea were mad(S
npon bis common, fo that he could not in ta parti enjoy his come
mon in tarn amph modo^ &c. and fo juftifies the pulling them
down \ and upon a motion in arreft of judgment aifter a verdi<!k
for the defendant, the court were of opinion that the defendant
might abate the hedges, for thereby be did not meddle with tlie
foil| but only pulkd c}own the erefliou. The fame point laid
down i5/f«7. 10. i. Bro^ tit. Common^p^g. ilnjl, 88. Thefc
cafes were ftcongly infiiled upon as in point for the now defend-
ants* The erc^ion of the hedge to inclofe part of the comowm '
by the lord or owner of the foil is not in itfelf an unlawful aSb:
the lord a6 general owner of the foil m^y lawfully inclofe and
hnld in feVeralty» leaving fiifficient pafture in the refidnc of the
common for the cattle of perfpns having a right of common, and
that of common right by the common law^ and not as f requsntly
nnderftood, by virtue of the ftajtnte of Mnimt which (it vr«s
iaid) is cini^ declaratory of Ui^ common km ; tb« injury and
nulancs
4o Easter Term, ^oQeo.lI. 1757*
siufance thereof becomes fuch by inclofing fo much of the com*
inon as to deprive the commoner of the enjoyment of his right of
common } fo the ere£ling of coney burrows is not of itfelf un-
'lawful in the lord as owner of the foil, but as they are the means
and occafion of a'furcharge on the common, fo as to prejudice
the commoner in the enjoyment of his right of common. The
injury is the fame in both cafes, and therefore the redrefs ought
to be the fame*
The counfel for th^ defendants concluded, that there is not one
cafe of authority, or any principle of law that will fupport the
do£lrine contended for by the plaintiff; but on the contrary, the
firft principles of law and common fenfe tell us, that it is lawful
for every man to remove what is hurtful to himfelf ; that every
nufance of every* kind, whether private or public, may be removed
by the perfon injured by it 5 that the coney- burrows in the prc-
fent cafe are a nufance to every commoner, as being the caufe
of -a furchaige, which is an injury to the right of the common-
ers; that though the furcharge is the immediate injury, yet the
coney burroughs being the caufe of its being lo, are removable
as a nufance ; as the ereAing of a dam acrofs a watercourfe is
not the nufance, but the caufe of it. The erection of the coney-
burrows is furely ad nocumentum of the commoners as being the
caufe of the furcharge, and as a nufance, by every rule and prin-
ciple of law may be abated and removed.
Upon, a former argument of the cafe at bar, Dennifon ], took
an objefiion to the pica, that the defendant did not thereby al-
ledge, that by the iiicreafe of conies he was deprived of a fuffi-
ciency of common; and cited i Zk/w. iqi. Haffardv* Canirelh
In anfwer to that obje65:ion, it was now faid by the dcfcndant*s
counftl, that the defendant by his plea alledges, that the common
Vras furcharged by the conies ; that the word furcharge is a tech-
nical term, and, in law, underftood to mean (when applied to the
lord) that he has not left a fufficiency of common to the tenants,
who have common right ; and the plea avers, that the defendant
could not have and enjoy his common of paflure in fo ample and
beneficial a manner as of right he ought to have had and enjoyed
if ; and thai beneficial manner, that, of right, the commoner
ought to enjoy his common, with refpeft to the owner of the
foil, is only fufficiency 'of common ; and when it is allcdged that
he cannot have and enjoy fuch common is he ought, of right,
to have, it is the very fame as to aver that he could not enjoy a
fufficiency of common.* With refpeft to the cafe in i Luiw. lor*
which was an atSiion upon the cafe by a commoner againft the.
lord and owner of the foil of a wafte, for putting into the wafte
divers cattle, and. for erecting coney burrows and feeding the
grafs with conies, whereby the plaintiff could not enjoy his com-
' mon in tarn amplo ^ }fen(jiciali modo ^ forma as before, it was
objcQed
Easter T^RMj 3o(?tf^. 11. 1757. 61
fibjoAvd for the defendant, that the plaintiffhad not charged the
defendant with any furcharge of the comipon, but only that there- -
by he the pUintiff could not enjoy his common, is^c* In anfwer
to this, the counfel in the cafe at bar faid» that the prefedt cafe is
very different from that in Lutw., for the plaintiffhere ischarjged
with an aQual furcharge in terms, and it is alledged that thereby
the defendant could not enjoy his common of pafture in fuch
manner as by right he ought to have done. But notwitbftanding
this good argument for the defendants, judgment was given for
the plaintiff upon Ac merits. The objedion . to the plea wal
^iven up.
Filewood ver/us Popplewell and Tiirner. C. B.
Cooke. rjILAR T term, in the 30th year of the reign of King Scire faciM
^^ George the Second. Elfcwherc as it appears of Eafieif' •«»*«'* ^*'l .
term laft pad upon the 308th and 309th Rolls it is thus con- g^,J!||"trbe
taioed: MiJdUJext to wit, ThQ (heriff. has been commanded, fued9utin
that whereas on the 25th day of OBobety in the year of our Lord ■ "J*? IV
1755, ^'Aonw/ Popplewell^ of Carnaby-JIreet in the parifli of Saint ^^ j,^
Jatnesy Wejlminfter^ hoGer, came in his own perfon before Henrj court by «a
Batburfi efq. then and ft ill one of the juftices of our lord the !*«»>«•• coc-
now king, of the bench here, at his chambers fituate in Serjeants'^ ^"'*
Inn inf Chancery-lane^ and acknowledged himfelf to owe to James
FiJewoodthc fum of 12/., which faid fum of 12/. he the faid
T* P. for himfelf and his heirs did will and grant to be made of
his lands and chattels, and to be levied to the ufe of the faid
y. F. And on the 12th day of November^ in the year aforefaid;
jRicbard Turner^ of King-Jlreet^ Saint Margarefs^ Wejimtnjler^
' yxclualler, came in his own perfon before the faid Henry Bathurjl^
then and (till one of the faid lord the king's juftices of the bench
here, at his chambers fituate in Serjeants-Inn in Chancery4ane
aforefaid, and acknowledged himfelf to owe to the faid James
i^i/!nc«oi/ the fum of 12/., which faid fum of 12/. he the faid
R. T* for himfelf and his heirs did win and grant to be made
of his lands and chattels, and to be levied to the ufe of the faid
y. F. under the condition following, that is to fay, that one Join
Smith (hould appear in the king's faid court of the bench here in
his proper perfon, or by his fufficient attorney to a certain original
writ in a plea of trefpafs upon tbe cafe to the faid J. F. his da-'
mage of 16/., to be brought by the faid J. F. againft the faid
J. S. before the end of two terms then next following, and to be
profecuted in the (aid court here, to anfwer the (aid James File^
kiieod in the plea aforefaid ^ and if it (hould happen that judgment
fliould be given in the faid court here for the (aid J, F. againft
the faid J, S, in the aforefaid plea, that then the faid J. S,
(hould (atisfjr the faid James^ Fj/ewoo^ the damages which Chould
be
be adjudged to him In the edurt aforefaid ih the ftid pleft> or
fender^ hU body to the king'6 {^rifon of the P/aB M that oeeafiM.
vrhich Vaid recognisanee taken and acknowledged befott the tM
juftiee in foroi aforefaid, he the faid jufttee aftetwardi» oti the
28th day of Noifmber^ in the t^th year of the feign of the fiM
lord the now king»^ delivered itito the (Hi eourt here to be te-
cofded) and the fame wi§ ir ecorded in the fatd eourt accordit)gl)r»
aa by the record thereof In the fald couft here temaining mort
fully appears^ which faid tecognitance ftill remains in AeOdA
court here in ftill force, no way fatisfled, fet afidci caiieell«4»
or mado void : and although the faid J. F. before the end ef tbfe
.faid two terms did fue and profecute a certaia original writ in z,
' plea of trefpafs on die cafe to the faid 7- F- his damage of i6/.»
out of the court of the faid lord the king of his Chancery at
tf^ejmin/ler^ zgzind the faid J. S., by the n*me ot J. S., late
of the paridi of Saint James ^ Weftminfter^ in the county of MitU
dletix, tidualler, returnable before the king's jiiftices here, t6
which the faid J. S, by hts attorney appeared in the faid court
here by his fufhcient attorney } and although afterwards, to wit^
in Mkhdiimas term, in the :19th year of the feign of the fahl
lord the now king, judgment in the faid plea of trefpafs on thtf
cafe WAS given in the faid court here for the faid % F. againft
the faid J. 8. in the aforefaid plea, and the fuid % F. then and
there, by the conflderaitoO and judgment pf the laid Court berei
itcovercd againft the faid y. S. in the faid pUn 1$ /.to/. wMth
were then and there in the fsiid court here adjudged to the iMd
% F. In the faid court for his damages, which he the faid Ji p9
Md fuftained on oecaiion of the not performing of cerhiin pm^
mifes and undertakings then lately made by the faid 7. 9. to the
•« Atfor faid ^4 iP. at tr. aforefaid, in the faid county Of A/.% whereof
u^tand ihe faid y. S. was con?iaed, as by the record and pfo<?e«ll«g§
^^raShurttit thereof temaining in the faid court here in full forte, not it*
Sa that be- verftd, annulled, paid off; or (Ittisfied, more fuHy ^nd at fatfge
^f laid 00c uppcurs^ yet the faid J. 6. hath not paid the faid <l3tmage» f6
cd|'*7^^' recovered againR him in form aforefaid, or any {>art theteof^
wocdB ir« hot rendered his body to the faid prifon of the jp/nf on fbat
««»*») oeeafion^ as the faid lotd the king hat;h retelved information koOt
ti!^ uto ^i I'ftid y* ^•f ^^^ becsafe the lord the king was willing ^M
fimotin ihofe things which were right done and acknowledged in the {mi
^Wth^ court here ftiould be oatried into due etecution, he commanded
wick he flioold give notice to the faid T. P. and R. T. thkt they
ttighc be here from the day of Ed/hr in three weeks, to fheai^ n
t^t l^ad or knew of any thing to fay for themfelves^ to wit^ the
fald T* P., why the fald f 2 /. by hjm in form aforefaid ackn«»r*
Isdged ftkould not be made of his hnda and chattels, and the fidd
k. T. why the faid il A by him in form aforeftid aekfiowled^^t
Aould not be mtide of hi^ kmdi and chattels, and levkd to t!M
lift of (he feid y. F. aiceotding ^ the iotm, and dStBt dt Ute
^ aforefaid
Easter Term, 3o^^.n* 1757. 63
aferefaid Tccogiiizance, if, Isfc* And now here at this day, to
wir, from the d^j of Sn/fer in three weeks, the faid y. P. comcth
by IFMam Prytr J^fin his attorney, and oflfereth himreif on
the fourth day againft the faid T. P. and R. T. in the plea afore-
fiiid \ and they being folemnly called do not come, neither doth
either of them come; and the (heriflF, to wit, WHGam Bechfird
tS\. and Ive Wbitebreod cfq. now (heriff of Af. aforcfatd, r^
tameth, that the faid 7. P. and R. T. ha?e not, nor hath either
of them any thing in his bailiwick where or by which he can
Hve them or eicber of them notice, nor are the faid T. P. and
jR« 7., nor is either of them found in the f»me ; therefore, as be- Sceoni felie
ibfc the fiieriffis commanded, that by good, k^c. be (hould give ^^^
notice to the faid T. P. and R. T. that they be here on the mor- .
row of tie Afcmjun of$ur Lord^ to (hew in form aforefaid, &r.
if, tfc. At which day the faid J. F. comcth here by his attorney
afortfaid, and oflereth himfelf on the fonrth day againft the faid
T. P. and it. T, in the plea aforefaid ; and they being folemnly
caUcd by WiUiam Kinjlej their attorney come ; and thereupon
the (aid J. F. prays execution againft the faid T. P. and R. T.^
to wit, agafflft the faid T.P. of the f^d riA by him in form
aforefiiid acknowledged, and againft riie faid R. T. of the faid 12/.
fay him in form aforefaid acknowledged, according to the form and
cffe£l of the recognizance aforefaid to be adjudged to him, (^r.
And the faid T. P. and R. 7., by the faid William Kin/ley their
attorney, come and pray leave to imparl here until on the morrow
of the Ho/y Trinkp and they have it, (SV. ; the fame day is given
lothe faid J, F. here, is^c: at which day come here as well the
faid y. F. as the faid T. P. and R. T. by their attomies aforr«
faid ; and the faid T. P. fays, that the faid y. F. ought not to
have execution againft him of the fa'ul 12 i. in form aforeiaid
acknowledged by virtue of the faid recognizance, becaufe he
fays,' that the hid John Smith in the faid judgment mentioned Pleatfcictlic
before the ifluing ottbe faid firft writ di fcire facias^ and befoie i|^*l*'!^
the return of any writ of capias ad fatisfaciendum againft him, died, ^i^ie4
that is to fay, at JV. aforefaid ; and this he is ready to verify : before ny
wherefore he prays judgment if the faid y. F. ought to have exe- "'J^"'
cution againft him for the aforefaid 12/. by him aforefaid ac- ^^ftite,
kaowledged, by virtue of the faid recognizance : and the faid
R. 71 fays, that the faid y. F. ought not to have executiofi
againft him of the aforefaid 12/. by him in form aforefaid ac-
kodwledged by virtue of the faid recognizance, becaofie he fays^
Ibat the faid jfohn Smith in the faid judgment mentioned^ before
the tfftitng of the faid firft writ di Jan f ados ^ and before the n»*
turn of any writ of capias ad fatisfaeundMtm againft him, died, that *
ifr to fay, at W. aforefaid \ and this he is ready to verify { whtTCt-
fere he ptays judgment if the faid y. F* ought to have execodoft'
agamd him for tl^ aforefaid lai.hj him afoiefiiidackoowledj|;ci
b]p'vi(tue of the faid recognizance. JF» Hajward.
And
64 Easter Term, ^o Geo. IL 175/.
Repiicadon And the faid J. F. thetcupon prayeth leave to reply to the fakl
(hews a c*. pleas of the faid T. P. and R. T. by them above pleaded here
5^2i*gS^ until on the morrow of yf// Sw/r, and he hath it, bfc. ; the fame
deitodant day 18 given to the faid T. P. and jR, T. here, is^c; at which
v*°i3r*- '" ^^y ^^^^ ^^^^ ^* ^^^^ ^**^ ^^'^ ^' ^' *• ^'^^ ^*^ ^' ^* *^^ ''^* '^
*"**• by their attornics aforefaid ; and the faid J. F. fays, that he by
any thing by the faid T. above in pleading alledged, ought not
to be barred from havii\g execution againft him of the faid 12/.
by virtue of the faid recognizance, becaufe he fays, that after the
recovery of the aforefaid judgment againft the faid J. S,\ at the
fuit of the faid J. P., and long before the fuing forth the faid writ
cf/cire/actas firft above mentioned, to wit, on the 23d day of
January, in the a9th year of the reign of our faid lord the now
king, he the faid J. F. fued and profecuted out of the court of
our lord the now king of the bench here at Weftminfter in the
county of Middle/ex, of and upon the faid judgment, his majef-
ty's writ of capias ad fatisfaciendum^ direded 'to the tbc;n (herifFof.
JIf., by which faid writ our faid lord the now king commanded
the then faid (herifF, that the faid {herifF (hould take the faid
y. Smith, if he fhould be found in his bailiwick, and fafely keep
him, fo that he might have his body before his majefty's juftices
of die bench here in eight days of the Purification of the Blejfei
Maryi to fatisfy the faid J, F. his damages aforefaid in forna
aforefaid recovered ; at which day William Bechford ,ti({, and Ive
Whitehread efq. then flieriff of Middle/ex aforefaid, returned here
upon the faid writ, that the faid John Smith was not found in his
bailiwick, as by the faid writ, and the faid return thereof duly af*
filed in this court here on the fileof writs of capias ad fatisfaciendum
of the term of St. Hilary, in the 29th yeiir aforefaid, may more
fully and at large appear : and the faid J. F. further fays* that
the faid J. S^ at the faid return of the faid writ of capias ad/aiijr
faciendum, and long afterwards, was living and in full life, to wit»
at Wefiminfier aforefaid ; and this he is ready to verify : where-
fore he prays judgment, and that execution of the. faid 12 A
againft the faid Thomas by virtue of the faid recognizance may-
be awarded to him, (5V. And the faid J* F. fays, that he by any
thing by the faid R. above in pleading alledged, ought not to be
barred from having execution againft him of the faid 12/. by
virtue of the faid recognizance (and fo replies exadily in the
fame manner to the plea of the defendant £.)• -D* PooU*
De<8ttRcr. And the faid T. P, as to the faid plea of the faid J, F. above
in reply pleaded to the faid plea of the faid Thomas P. by hini
above pleaded fays, that that plea in manner and form aforefaid
above pleaded, and the matter therein contained, are not fufficient
in law for the faid J. F» to maintain his having execution againft
him the faid r. P. of the aforefaid 12/. by virtue of the faid re-
cognizancci to which faid plea in manner and form aforefaid
abovt
Easter Term, ^oGeo. Ti. 17 $7* 6j
siboye in reply pleaded, he the faid 7*. P. need not, nor ia' he
bound in anywire by the hue of the land to anfwer ; and this he
is ready to verify ; wherefore for want of a fufEcient replication
in this behalf) the faid T. P. as before prays judgment, and that
the faid J, F. may be barred from having his execution ?gainfl:-
hipi for the aforefaid 12/. by him aforefaid acknowledged, by
virtue .of the recognizance aforefaid ; and the faid fT. P. for
caufes of demurrer in law in this behalf, according to the form
of the ftatute in fuch cafe lately made and provided, ihews to the
court here thefe caufes following, to wit, that the faid replica-
tion is no anfwer to the matter ih the faid plea of the faid T. P.
above pleaded, and that the fame is double, uncertain, and in«
fufficiept in law, and tends to put in iflue matter altogether that
is not ifluable, and the faid R. Turner (the other bail) put in
die like demurrer to the replication to his plea.
And therenpoo the faid J, F. prays leave to join in demurrer joibd^r b
to the above demurrers of the faid T. P. and R. T. hercj^ntil oonontr.
in eight days of St. Hilary^ and he hath it, tfr. The fame day
is given to the faid T. P. and R. T. here, tsV. at which day
come here as well the faid J. F. as the faid T. P. and R. T. hj,
dieir attornies aforefaid; and the faid y. fays, that the faid plea
of the faid J. above in reply pleaded to the faid plea of the faid
7*. P. by him above pleaded in bar, and the matter therein con«
tained, are fufficient in law for the faid James to maintain hia
having execution againft the faid T. P. for the aforefaid 12 i.
by him in form aforefaid acknowledged by virtue of the faid re-
cognizance, which faid plea'fo pleaded in reply, and the matter
therein contained, he the faid James is ready to verify and prove,
as the court here (hall dtrcGt ; and becaufe the faid Thomas hath
not anfwered the faid replication, nor hath hitherto in anywife
denied the fame, he the faid James as before prays judgment
and his execution againft the faid T. P. for the faid 12 /. by hint
in form aforefaid acknowledged by virtue of the faid recogni-
;^ance, isfc. and the faid James alfo puts in the like joinder iu >
demurrer to the demurrer of the other bail R, Turner : and be-
caufe the juftices here will advife themfelves of and upon the
ptemifes before they give their judgment thereon, a day is given
to the faid parties here until from the day of Eajlery in fifteen
days, to hear their judgment, for that the faid juftices here are
not yet advifed thereof, Isfc. ^
Filewood verfus Popplewell and Turner. C. B.
^CIRE fadas upon a recognizance againft bail, fetting forth Scire /aciu
^ the fame, and that Filewood recovered judgment againft Smith «Pon > '«-
the principal defendant, which ftili remains in full force prout tgaSift*Ta!u
paUiperrecordumg yet 5miV£ hath not paid the damages recovered
by the plaintiff agMnft him| nor rendered his body to the prifon
Vol. II. F . of ^
DefrndaoU
plead that
the principal
died before
tbe liToing
the firft fci.
la. aod before
the retom of
any ca. ia.
Pla'ntlff re-
plies and (eta
out a ca* (a.
and retoniy
and that tbe
prioeipal^fai
then liring'
and long af-
terward*
66 EASTEit Term, 30 Geo. II. 1757.
of the Fkity therefore the (heriflF was commanded to give notice
to the now defendant^ PoppUwell and Turner^ the faid SmitFs
hail, that they be here on fuch a day to (hew caufe why the plain-
tiff fliould not have execution againft them accordbg to their faid
recognizance.
PoppIfweU znd Turner flezd fcvcrally that the plaintiff ought
not to have execution againft them, becaufc they fay that %A«
Smifh in the faid judgment mentioned, before the iffuing of the
faid firft writ of fcirefaci/rj, and before the return of any cafias
qdfatisfaciindum againft him, died *, and this he is ready to TC^
rify, £5^f.
The plaintiflF rcpUe$ that he jought not to be barred from having
execution againft the defendants, becaufe he fays, that after the
recovery of the faid judgment againft John Stmth^ and before
the fuing forth the faid b^fcire facias y viz. the 23d of January,
in the 29th year of the prefent king, he fued out a capias ad
fatisfaciendum^ (and fcts it out,) whereupon the (heriff returned a
tton eft inventus^ aa appears by the writ on the file ; and plaintiff
further fays, that at the time of "the return of the faid ca*fa. and
long afterward, the faid John Smith was living, to wit, at W*
in uicicounty of M. ; and this he is ready to verify: wherefore
be prays judgment and execution to be awarded againft the faid
bail.
Demurrer. To this replication the defendants have demurred, and the plain-
tiff hath joined in demurrer.
This cafe was argued this prefent term by Serjeant Hayward
for defendant and Serjeant Poole for the plaintiff.
It was objefied that .the replication is bad, becaufe it is an
affirmative upon an affirmative, and that it concludes with an
^ averment without denying or traverfing the death of John Smithy
as alledged in the defendant's pleaj and to prevent prolixity in
pleadings the defendant ought to have denied the death of Smth,
and to have concluded to the country, or with a traverfe.
It was anfwered for the plaintiff and refolved by the court,
{abfente Noel J.) that the replication is very right, in concluding
with an averment ; and it would undoubtedly have been bad, if,
after fetting forth a ca. fa. it had concluded to the country by
denying the death of Snuth^ or had traverfed his death) for If
the plamtiff had replied in that manner, the defendant would
have been deprived of the right he had to rejoin that there was
no fuch writ of ca.fa. which he might and had a right fo to
A rule la rejoin if he had thought fit ; and it is an eftablilhed rule in plead-
whra Mw "^8» ^^^^ where either party introduces new matter, the other
ma^ it !a- fidc (hall have an opportunity of anfwering to that new matter i
croduccd. and
Easter Term, JO CVe?. II. ly^j. 67
and here the plaintiff by fetting forth the ca.fa, in his replication
has introduced that as new matter ; and if he had concluded to
the country, or wich a traverfc of the death of Smithy the de-
fendants would have been deprived of an opportunity of anfwer*
iug to the ca.fa. and in that cafe the replication would have
.been bad ; and Carth, 40. was allowed to be in point ; fo judg-
ment was given for the plaintiff upon the firft argument.
N. B. In the argument of the above cafe it was agreed both
by the bench and the ferjeants at the bar, that if the principal
defendant dies after the return of the capias ad fatisfaciendum^
although his death be before the fuing forth the $rft fcin facias^
the bail are fixed with the debt and cofts in point of law, and
the Jcire fadas^s are only an indulgence of the court \ and fo it
was lately ruled in this jcourt.
Young verfus Moore. C. B.
|N order to hold the defendant to fpecial bail the plaintiff makes DefaidM t
affidavit that the defendant is juftly indebted to him in the fum ""•^^J^^
of 47 L for fo much money won of him by the plaintiff at divers "**pUy dif"
plays or games called bragg^ and tofs up, which fum of money charged on
the defendant hath fevcral times promifed to pay to the plsuntiff. «»^n«*
CMmnon tp-
The defendant being arretted and in cudody of the (heriff, it
was moved by Serjeant Wynne that he might be difcharged upon
entering a common appearance, this appearing to be above the
fum of 10 1 money won at play, at one time, as is fwom by the
defendant. Upon {hewing caufe by Serjeants Martin and Davf
for the plaintiff, it was infifted that the defendant's affidavit
ought not to be received in this cafe, and that as the plaintiff
had fworn that the defendant was jt{/ffy indebted to him in 47 L
the court would prefume that the money was won at feveral
txmes> and lels than 10/. at each time, and therefore a lawful
debt* 2d/yf That although the Jlat. 9 ^nn. c. 14. has made all
writings and fecurities for money won at play void, yet they in-
fifted that it had not made parol contrads for money won at
play void; and cited 2 Strange 1249. To this it was anfwered
and refolved by the court, (the Lord Chief Juftice and Noel],
being abfent,) That the defendant's affidavit in this cafe ought
not totally to be rejeAed^ for it doth not deny the plaintiff's
affidavit, but only fwears that the money was all won at one
tlmcy and the plaintiff does not fwear it was won at feveral
times ; and as the ftatutehath tnade all fecurities for money won
at plaj voidy a fortiori all parol contra£ts of this fort are void ;
and if the money had been paid to the plaintiff, tlie defendant,
or any other perfon, might have recovered treble the fum and
F a cofts.
68 Eastejl Term, 3€>C^P' I|. I7S7*
coftsj fo that this cannot poffibly b»e a debt : befideSi haul h a
iSalk. loo. quattcr in the difcretion of the court} the cafe in a Stra. 1249*
^Stn.1079. wa6 for money lent, which is different from the prefent ^afe«
Defendant was difcharged upon a comnl^n appearance.
' Fit^tpatriclf vcr/us Pickering. C, B.
(ex. ^ HIS was an a6iion upon the cafe for the ufe and occupa^on
J°' -'' of the plaintiff's houfc, for above the fum of forty fliilltngs^i
Mid(flefex.
Yerdiaf
left chat
401. thede- ^^ upon feveral other counts } ypon mn affum^t, the plaintiff
leodanthas at thc trial| by reafon of the abfencc of a witncfs, failed ia
geflTcSt te' P^^^*^8 ^^^ **f^ *^^ occupationi but got a vcrdift for twenty-
refided in eight fl^illings upon another count j and now it was moved on
Middldar. the behalf of the defendant for leaye to enter upon the roll, by
way of fuggeftion, that the defendanjt was refident in the county
of AdiddlefeXf in order to have the benefit of the late ftatute
touching the jurifdi£lion of the county court ; and i Sira. 46.
flBaroei 2 Stra. 974. 11 20. were cited, and an alEdavit of defendant's
^^1* reiiancy in MkUlefex was read.
For the plaintiff it was faid, that this is a very hard cafci and
therefore it is in the difcretion of the court whether they will
give leave to enter the fuggeftion prayed on the defendant's be-*
half; and if they do, the plaintiff will be in a worfe cafe than if
be had fufiered a nonfuit, for then he might have brought an-
other aflioui when he could have had his witnefs to prove the
ufe and occupation. And in the cafe of mutual debts and a
fet-offi the plaintiff fliali have judgment, although upon the trial
be recf^vers lefs than 40 /•
Per curiam — ^We are bound by the a£l of parliament to give
the defendant leave to enter the fuggeftion prayed, and the plain-
tiff may traverfe it if he pleafes ; and it is not iii our difcretion
whether we will grant this or not ; and the cafe of a iiet-off
di^rs widely from this cale, for there it is wholly in the defend-
ant's power and knowledge whether he will infift upon and prove
Ante* Trin. his fct-off at the trial or not ; and the cafe of P/Z/v. Carpenter
b!r.'^°'*' *'^ ^' ^^ ^^ rightly determined. But here by the verdid we
muft take it that th^e was ho more money originally due to the
plaintiff than twenty-eight (hillings ; and therefore the >a&»
muft be delivered to the defendant, with leave to enter the /og-
geftion prayed.
Seijeant Martyn for the defendant, Serjeant Davy for the
plaintiff*
Eastbr Tkrm^ 30 Geo. IL 1757, 69
Norden verfus Horflcy. C B.
TPHIS is an a£iion of debt for 24/. 18/* upon a Palace-court A bul-boad
* bail-bond. The defendant pleads the ftatutc t2 Geo. i. ^^
e. 29. for preventing frivolous and vexatious arrefts, whereby double tbs
(amongft other things) it is enafted. That in all cafes, in order <»nifwwi»
to hold the defendant to fpecial bail, the plaintiff fliall make affi- 2^ff*j,
davit of his caufe of a£iion, and that the fum fpecified in fuch good. *
affidavit (hall be indorfed on the back of the writ or procefs, for
which fum fo indorfed the (heriff or other officer to whom fuch
writ or procefs (hall be diredied (hall take bail, and for no more /
that the caufe of action or fum fwom to be due to the plaintiff
in this cafe is 1 2 /. and no more \ and that the Palace-court offi-
cer to whom the procefs was dir^ded to<5k the bail-bond in this
cafe for 24/. 18 x. which is more than double the fum fwom to
bj the plaintiflfs affidavit. To this plea the plaintiff demurred^
and the defendant joined in demurrer.
tt was now obje^ed by the counfel for the defendant that tfa<l
baul-bond was void, being taken for more than double the fum
fwom to be due to the plaintiff, and contrary to the ftatute.
But it was anfwered by the plaintiff's counfel, and refolved by
ffae court, that the bond in the prefent cafe is a very good bond,
for it doth not appear but the defendant gave and executed it
freelv and voluntarily, and that it is neither unreafonable by"
the (tatute of 23 H. 6. r. 10. nor made void by the ftatute of
,12 Geo. I. now pleaded; and it has always been the pradlictf
to take bail-bonds for more than the fum fwom to, viz. iff
double the fum ; and if the bond in this cafe were void, it wQuld
be void in every cafe where it was t^ken in double the fum*
Indeed it might have another confldqration with refped to the
flieriff or officer, how far fuch officer would be puni(hable hf
a£Uon or otherwife, if he fhould refufe to fet a defendant at
large, unlefs he would give very unreafonable fecurity for his Cooke'i
appearance and putting in bail above. But in the prefent cafe Cafes of
the bond is not unreafonable, being taken only for 18 (hillings ^^^
more than double the fum fworn to, and which feemsto be only ^t«
si mere miftake, and not with any defign to opprefs die defend-
ant. Judgment for the plaintiff.
Tfl
I 70 •]
TRIN I T Y TERM,
30 & ^iGeo. II. 175;.
' Buxton verfus Mingay# C. B.
Game. ^TpRESPASS quare clauf urn f regit ; the plaintiff declares that
Qneftionott J^ ^^^ defendant being an inferior tradefman, to wit, an
5 w.*i M. apothecary, fuch a day committed the trefpafs by hunting in the
cia.fecio. piaiatiiTs clofe; upon the general iflue Not guilty, this caufe
n^tM^nfo! ^^® ^"^*^ ^^ Thetford, March 13, 1752, before Mr. Juftice Den^
rior trader- nifon^ when a verdi£t was found for the plaintiff, and i /. da-
'B'B- mages and 40 s, cofts, fubje£): to the opinion of this court, upon
a cafe made, which ftate3, that it was proved at the trial, that
the defendant at the time of the trefpafs was a furgeon and an
apothecary, and not qualified to hunt or kill game within the
intent of the ftatutes ; that on the 27th of December 1751 he
was hunting with divers others not qualified, in company with
a pcrfoh who was properly qualified to k^ll game, ami committed
a trefpafs in the plaintiff's clofe.
The queftion for tjie confideration of the court is. Whether upon
the fads above dated the defendant (hall be deemed an inferior
tradefman within the inteilt and meaning of the ftatute 4^5
W. tsf M. c, 23. fee. 10. ? which runs thus: " And whereas
*■< great mifchiefs do enfue by inferior tradefmen, apprentices^
** and other diffolute perfons neglefting their trades and cm-
^< ployments> who follow huntigg, fi(hing, and other game, to
** the ruin of themfelves and damage of their neighbours ; for
^ «« remedy whereof be it cnaQed by the authority aforefaid,
*< that if any fuch perfon as aforefaid fliall prefume to hunt,
« hawk, filh, or fowl, (unlefs in company with the mafter of
<^ fuch apprentice dulv qualified by law,} fuch perfon or perfons
<< (hall be fubjeft to the penalties of this a£t, and fliali or may
« be fucd and profecuted for their wilful trefpafs in fuch their
*< coming oh any perfon*s land, and if found guilty thereof, the
<« plaintiff fliall not only recover his damages thereby fuftained,
*^ but his full cofts of fuit \ any former law to the contrary
*^ notwithftanding." So that^ if the defendant be a perfon within
the
Trinity Term, 30 & 31 Geo. II. 1757. 71
the meai^iog of this claufe of the ftatute, the plaintiff (hall
hare his full coils* otherwife no more cofts than damages.
This cafe was three or four times argued at the bar ; and in this
term by Hnuiit Serjeant for the plaiodff, and Poole^ one of the
King's SeijcantSi for the defendant. It was faid for the plaintiff^
' chat there is no fuch dt(lin£lion as fuperiority or inferiority be-
tween trades or tradefmen, either in legal or common apprehen-
fion; and that therefore the legiflature could never mean to con-*
£der one trade as fuperior to anothert or to make any di(lin£iioa
in trades ; but that by the words inferior tradefmeni they meant
c?ery perfon in trade not qualified by law ; and that this was a
reafonable conftrudion {5* fecundum fuhjeBam materiam, that,
fiatnte being made for prefervation of dkt game.
For the defendant it was inGfted, that to entitle one to go a iStra.1116.
hnntmg there is no qualification neteflary, and therefore a quali- Conrna.
fication is not the criterion to determine or try who is, or is not, ^^ *
an inferior tradefman within the true meaning of this ftatute ;
but that evety cafe of this kind ought to be left to a jury, who
mighty with certainty fufficient, determine under the particular
circumftances of the cafe, what perfon is, or is not an inferior
tradefman, otherwife the lord mayor, or richeft tradefman in
London^ could not lawfully go a^hunting without a qualification
in lands, which could never be the meaning of the legiflature.
The court being equally divided in opinion, delivered the fame
ferlatim the lad day of this term, the puifne judge beginning firft.
Noel'i, for the defendant — I think it would.be hatd for me
to fay that every tradefman in this kingdom, (though never fo
rich in money,) who hath not a qualification in lands, (hall pay
full cofts in a cafe like this \ nor can I prevail upon myfelf to
fay that the defendant, becaufe he is merely ftated to be an
apothecary, is therefore an 'inferior tradefman, or a diflblute
perfon.
It was argued for the plaintiff, that amongft tradefmen, ^x
fuchf there can be no line drawn widi refpe£i to who are fupe-
rior, and who are inferior, but that they are all upon an equal
footing as tradefmen, and that therefore the legiflature by the
words inferior tradefmen, meant fuch as were not qualified}
bat I think if this conftrudion was to prevail, it would bring
every gentleman, (though of the beft families in England^) ai
well as rich tradefmen who have not a qualification, within the
meaning of thU claufe.
It was aTgu«d for the defendant at the bat, that a qualificatioa
was not necefiarj to authorize a perfon to go a^hnnting; I fliaU
F 4 fey
fty nothing to that point 5 but however that may bfc, I think a
perfon going out with a gentleman qualified to kill game, cannot
be convi^ed for killing game as an unqualified perfon. . '
It h faid for the plaintiff, thai if the qualification be not thfe true
diftinftion, no line can be drawn between fuperior and Inferior:
but I anfwer, there is a known diftindion univerfally agreed to be
Between ttadefmen .with refpedl to fuperior and inferior, as maf-
ter, and journeymen, and apprentice ; and this is a natural fub-
dtdinaltion, which anfwers the aft of parliament in every refpeft,
for journeymen and apprentices are plainly inferior, and within
the mifchifef intended to be remedied : I do agree that the ftatute
fays, ** unlefs in company with a mafler qualijiedi^ and that every
apprentice being out a-hutiting not in company with a mafter
qualified is within the (tatute.
1 think the jury at the trial ought to determine, under the par-
ticular circumftances of every cafe of this kind, whether the de-
fendant be or be not an inferior tradefman, or diflblute perfon ;
and it is too much for me to fay that this defendant, who is an
apothecary and furgeon, is an inferior tradefman, or a difToIute
perfon. In my own private opinion a furgeon is the fitted perfon
in the world to be in the field with gentlemen a-hunting, for I
remember the mafler of a pack of hounds had his neck diflocated
by a fall from his horfe when out a-hunting, and if a furgeon
I^ad not been near him when the accident happened, who pulled
his neck right, the gentleman would mod certainly have lod his
life.
It generally happens that near every great town in England
{bme gentleman keeps a pack of dogs, and it is well known that
he never goes out without being accompanied by many tradefmen
as well as others not qualified ; .if therefore judgment in this
cafe was to be for the plaintiff to have his full cods, it would lay
a foundation for an infinite number of fuits.
Upon the w^iole, I am of opinion the defendant cannot be
j^aid to be an inferior tradefman, nor a dlll'ulute perfoo., and that
the plaintiff ought to have no more colls than damages.
Bathurfl J. for the plaintiff— I think this a quedion of law
and not of fa£l, and that the judges and not the jury are to de->
tcrmine who are inferior tradefmen, or diffolute perfons, within
this law. In order to find out the true condru&ion of this fta-
Ntutc, we mud take the intent of the makers into confideration,
which was plainly to fecure the game from being dedroyed by
perfons negle£ling their lawful employments, as appears by the
preamble. Theje may be an inferior apd fuperior between maf-
ter
Thinitt Term, 30 & 31 Geo. II. 1757. 73
ter and jottrneyman, and appTcntice, bnt I can never be of opi-
nion that the legillatare intended to permit erery matter of every
little mechanic trade to negle^l his trade and go a-hunting. The
chufe under confideration (it muft be admitted) is a little ob»
fcmtc, but I am of opinion that every tradefman is inferior who
is not qualified^ and that is the only line we can poflibly draw
between inferibr and fuperior. And I am inclined to think At
parliament purpofely penned the z€t in this obfcure manner not
to difoblige their conftitnents, many of whom are tradefmen. . fa
Bmnei and Talbois^ Comyns 26, it was obje&ed, that a clothier
was not an inferior tradefmen j fidnon allocatur j (fays the book,) .
for the ftatiite feems to prohibit all trades.
Upon the whole, I am of opinion that all qualified tradefmea
are not inferior tradefmen, and that all unqualified tmddinen
are inferior.
CUve J. for the plaintiff— I entirely agree in opinion with mf
brother Bathurfi* (Nota; he delivered bis opinion to the fame
efffea.)
WtlUi L. C. J. for the defendant— I think myfelf unfortunate
whenever I differ in opinion with any of my brethren % however,
I have the pleafure to refled, that in the 20 years I have fat here,
this is but ^e third time 1 have differed with any of my aflb*
ciates. .
The fingle queftion here is> Who is that tradefman (hall pav
fall cofts in a twelvepenny trefpafsi in hunting in company witn
a gentleman qualified i
I do not think it neceffary to draw any line at all in this cafe,
but it ought to be conridere4 upon its own circumftances ) and I
am clear of opinion the legiflature could never intend that a fur-
geon is an inferior tradefman within this claufe. I think the
cafe confifts both of matter of law and matter of hOt \ and if I had
been to try this caufe, I (hould have told the jury my opinion,
upon hearing the evidence and the circamftances of the defends
ant, and have aiked them, Whether upon their oaths they could
fay that this defendant was ah inferior tradefman, a diffolute per«
ion, or n^gle6>ed,his trade? And in this manner I (hould have
fpoke to them, and then left them to fay what was their verdiA
upon the whole evidence and circumftances of the perfon and
cafe of the defendant. For my own part, I cannot upon my oath
fay that this defendant, merely as an apothecary and furgeon, is an
inferior tradefman, or a diffolute perfon, and agree entirely with
my brother Noel^ that the plaintiff ought to have no more cofts
than damages ; therefore as the court is equally divided there cao
be no rule, but let Afipo/lea remain in court.
74 Trinity Term, 30 & 31 Geo. 11. 1757.
French, an Attorney, verfus Watfon. C. B,
Whether t3ie /^AS£, fix fevcral counts upon affuik^tts as to the fecond,
J^^fj"* ^ fourthf fifth, and fixth counts, me defendant pleads non af^
mvj% tudy /^'"^fi^ generally, and ifiiie thereon is joined ; and as to the firft
to (ay it not andthird counts, .mrhich are each for 20/., he pleads, that as to
ifibable. ^y except 6 /. in one, and 4A 10 /. in the other, mn ajfum^ti and
that he owes the plaintiff no more than 10 guineas, and fays, he
is ready and has always been ready to pay the fame ^ and brings it into
court if the plaintiflF will accept thereof \ and prays judgment if
the plaintiff ought to have his adion for more than 10 guineas.
General demurrer } defendant joins in demurrer, zadprayspltdn*
tiff may. be barred from having his aBion*
' It was obje£led for the plaintiff that this plea is bad, for here
is no tender pleaded ^ and whether the defendant has been always
ready to pay, is not iffuable, and every plea ought to contain iffu«^
able matter ; and of that opinion was the court abfente Cap, JufHc^
And they faid the joinder in demurrer was alfo bad (but gave no
reafintwhy it was fo}. Judgment for the plaintiff.
Simpfon verfui Neale, Efq. C. B*
Pleadinf. /^AS E on fevcral promifes in affumpftt; the defendant pleads a
The plea of ^ recovery in B.R* for the fame demands} plaintiff replies
wMrd^muft' ' ""' ''^^ record without a ferjeant's hand. Rule to fliew caufe why;
b«f« a fer- the replication (hould not be fet afide for want of a ferjeant'fr
jeaot*shaiui. hand to it. On (hewing caufe it was infifted by Prime and Ddvj
Serjeants for the plaintiff, that the rule ought to be difcharged ;
and cited Reports and Cafes of PraBice in folio, publifiied in 1742, .
^.41. Upton v. Pullyn^ where amongft other pleas it is reported
by Sir George Cooke, that the plea of nul tiel record needs not a
ferjeant's hand. ^ In anfwer to which it was anfwered by the
ferjeant for the defendant, that all pleas whatever, except the
general iffue, ought to be figned by a ferjeant ; and that it appears.
. by the year-books for ages fucceflively, that this pka of nul tiel
record was always ples^ed by a* ferjeant at the bar *, and cited
19 H. 6. 79* b. 80. tf. and many other cafes, from the year-»
books ( and faid, that the cafe cited out of Coolers book is not
agreeable to the* rule pronounced by the court in Upton and ,P»/-
lyn : but the catalogue of pleas inferred by Sir George Cooke there.
feems to be intended to draw praAifers into the Common Pleas.
(Sec the affidavit. and rule in Mr. Fo/ey% the fecond prothono*
tary*6 office.) Bpt what was chiefly infifted upon was, that
as the plea of a recovery in B. R* in this cafe was pleaded and
figne4
Trinity Term, 30 & ^iGeo. II. 1757. 7^
figned by a ferjeant, the fame ought to be replied to, or anfwered
by a ferjeant propter dignitatem, for that no attarnej or apprentice
can anfwer a feijeanti or plead any plea in the court of Common
Pleas ( and of that opinion was the court, viz. Clive, Batfrnrfi^
and Noel^ Juftices ; ahfente Ch. Juft. who was in the court of'
Chancery this day, June 15, 1757. And the rule was made ab-
ibiute for fetting afide the replication of nul tiel record for want
of a feijeant's hand.
Roe, on the Demife of Wilkinfon, vcffus Tranmer
&'aL
EjeFlment for lands in Tortlhirc. C. B.
TjPON the trial of this caufe it appeared in evidence, thatWlMc deeS
^ Thomas Kirhj, being feifed in fee of the lands in queftion, w con?ef-
made and executed certain deeds of leafe and releafe. The Icafe, JJ^ ^ *
dated' November 9, 1733, made between the faid Thomas Kirby opcnteata
of the one part, and Chriftopher Kirby his brother of the other ^vcmatt*
part, whereby it is witnefled that the faid Thomas Kirby^ in con- ^^^^^^
fideration of 5 /., did grant, bargain, and fell to the faid C. Kirby^
his executors, adminillrators, and afligns, the lands in queftion %
to have and to hold the fame unto the faid C. Kirby ^ las executors^
admini/lraiors, and q//tgnSf from the day before the date thereof
for the term of one year under a pepper-corn rent, to the intent
that by virtue of thefe prefents, and by force of the ftatute for
transferring ufes into poiTeflion, he the faid Chriftopher may he. in
the a£iual pofleflion of all the premifes, and be enabled to take
and accept of a grant and releafe of the reverfion and inheritance
thereof to them and their heirs, to^ for, and upon fuch ufes, in-
tents, and puipofesy as in and by the faid grant and releafe (hall be
direded or declared. In witnefs, i^c. executed by Thomas Kirby.
The releafe, dated November 10, 1733, made hctvr^tn Thomas
Kirby of the one part, and C. Kirby his brother of the other part,
witnefleth, that for the natural love he beareth towards his faid
brother, and for and in confide^tion of 100 A to the faid Thomas
Kirby, paid by the faid C. Kirby, he the faid Thomas Kirby hath
granted, releafed, and confirmed, and by thefe prefents doth
grant, releafe, and confirm unto the faid C. Kirby, in his a£tual
poflefliQn thereof now being, by virtue of a bargain and fale for
one whole year to him thereof made by the faid Thomas Kirby,
by indenture dated the day next before the day of the date Here-
of, and by force of the ftatute made for transferring of ufes into
pofleffion, afier the death of the /aid Thomza Kirby, all that one
dofe, t^c. (the premifes without any words of limitation to the
releafee): to have and to hold the (aid preoiifes unto the faid C
Kirby
76 Trinity Tirm, 30 & 31 Gee. II. 1757,
Kirly and the hdrs of his body lawful]/ begotten, Ad after their
deeeafe to J^hn Wilkinfon^ elded fon of my well*belove4 uncle
John fyyUfifon of Norti Dalton in the county of Tark^ gentleqi»|i»
to him and his heirs and aflignsi and to the only proper ufe i.n<|
behoof of him the faid John Wilkinfon the younger, his etecntor^
adminiftrators, or ai&gn? for ever, he the izxAJohn Wilkinfon the
younger paying or. caufing to be paid to the child or children %A
my well-beloved brother Stephen Kirby the fum of 200 /. / and ibr
want 4;>f fuch child or children, then to the child or children of
my well-beloved lifter Jane Kirby: and for want of fuch ifluef
dicn to the younger children of my well-beloved uncle John WiU
kin/on of North Dalton aforefaid \ and for want of fuch younger
children, then the faid eftate above mentioned to be free from
the payment of the above-named fum of 200 /. Then the releafor
^' ^ covenants that he is)lawfully feifed in fee, and that he hath good
* ^ "^ right and full power to convey the premifcs to the faid C. Kirby^
and alfo that it may and (hall be lawful to and for the faid C.
Kirby i or the faid John Wilkinfon the younger, from and after the
death of him the faid Thomas Kirhy^ peaceably and quietly to
have, hold, ufe, occupy, poiiefs, and enjoy the faid mefliiage^
lands, and premifes, with the appurtenances, not only without
the lawful let, fuit, iifc. of him the faid Thomas^ but all others
claiming under him, Vc. free from all incumbrances. Then it
is covenanted by all the parties, that all fines and recoveries^ and
. deeds of the premifes, levied, fufiered, or executed by the parties
or any of them, or by any other perfons, (hall be and enure to
the ufe of the faid C Kirby and his heirs of his body lawfully be-
gotten ; and for want of fuch ifluc, then to the ufe of the faid
John Wilkinfon /junior, his heirs and aflfigos for ever, according
to the true intent of thefe prefents* In witnefs, i^c. executed
by Thomas Kirby. *
It further appeared in evidence, that C Kirby on the loth of
November 1 733, paid to the hiAThomas Kirby 20A in money, and
gave him his note for 80/., payable to the faid Thomas Kirby, who
figned a receipt on the backiide of the faid deed of releafe in thefe
words i viz. Received the day and year within written of the
within-named C. Kirby the fum of one hundred pounds, being the
full confideration-money within mentioned to be paid to me. I
. fay, received by me, Thomas Kirby. Witnefs M. J. 5. T.
It further appeared in evidence, that C. Kirby died without ifTue
in 1740, and that John Wilkinfon the IcfTor of the plaintiff is the
fame John Wilkinfon named in the deed of releafe ; but it did not
appear that the faid John Wilkinfon had notice of the faid deeds
of leafe and releafe until a (hort time before this ejedment was
brought*
This
Trinity Term, 30 &-31 Geo. IIw 1757, 77
This being the cafe for the confidcration of the toun, the ge-
neral queftion is, Whether the leflbr of the plaintiff has a title to
recover upon the leafe and releafe ?
It has been argued at ^e bar three times, the firfl time hj
Serjeant WlIUs for the leffor of the plaintiff, and Serjeant Poole
for the defendant, and the fecond and third times (becaufe of i.
new judge) by Serjeant Hewitt for the plaintiff, and Sir Saoiuel
Prime, die King's firft Serjeant, for the defendant.
It was admitted by the ferjeants who argued for the plaintiff,
that the leafe and releafe being made to xonvey to C. Kiriy
an eftate in fee-taii^ to commence infuturoi viz. after the death
of the rekafor, cannot operate as a common law conveyance,
or as a leafe and releafe ; but they infilled that the releafe fliouid
take effe£l as a deed of covenant to (land feifed to ufes, ut res
magis valeat quam pereat ; and cited a variety of cafes to prove it
had every requifite lieceffary to conftitute fuch a deed of cove-
nant to ftand feifed to ufes \ that is to fay, i. H^re is a fufficient
and proper confidcration *, 2v A deed \ 3. The covenantor was
feifed in fee ; 4. Here are apt words, for the word grant of
itfelf is fufficient in fuch a deed ; and 5. Here is a manifeft and
plain intent.
On the other fide it was infifled for the defendant; i. That
it plainly appears to be the intent of the parties that this con-
veyance fliould be by a leafe and releafe, and therefore (liall not
operate as a covenant to ftand feifed to ufes. 60. Lit. 49. a.
And as tbe Teleafe is admitted on all hands to be void for the
reafon above, nothing paffes thereby to IVilkinfon the leffor of
the plaintiff, a. It was obje£led for the defendant that Wilkin^
fin is i\ot a party to the deed. 3. That there was not a proper
confideration of blood to raife an ufe to him. 4* That no eftate
at all paffed by this deed to Chriftopher Kirby, out of which the
eftate in fiHuro could arife or come to Wtlkinfon the plaintiff's
leflbr.
After time taken to confider, the court were all of opinion
that xhp reteafe was void as a common law conveyance, it b^ing
to convey a freehold to commence infuturoy but that it (houid
have the effe£l and operation of a covenant to ftand feifed to
ufes ; and in Hilary term, 3 1 Geo. 2. Lord Chief Juftice Wilier
gave the judgment of the whole court for the plamtiff.
WUlet C. J.— It is admitted and agreed on all hands that this The judg.
deed is void as a releafe, becaufe it is a grant of a freehold to m«fttof th«
commence infutiiro ; and therefore the only queftion is. Whether ^JJ^JJ |*^,
it (hall take efie£l as a covenant to ftand feifed to ufes ? and we Ury term
are all of opinion that it fliali (my brother Bathurft, not being 3' ^a*
here« authorised me to fay lie is of the fame opinion). '7S •
Many
yS Trinity Term, 30 & 31 Geo. II. 1757.
Many cafes have been cited on both fides, fome of which are
very inconfiftent with one another, and to mention them alt
would rather tend to puzzle and confound, than to iUuftrate the
matter in queftion ; and therefore I (hall only take notice of
thofe things we think moil material, and of fome. few cafes
neared in point for our judgment.
It appears from the cafes upon this head, in general, that the
judges have been q/iuti to carry the intent of the parties into exe-
cution, and to give the mod liberal and benign conftru£tion to
deeds ut res magis valeat quam pereat. I rely much upon &bep»
pard's Touchftone of common affuraticesi 82, 83. (which is a mofi:
excellent book,} where he fays, when the intent is apparent to
pafs the land one way or another, there it may be good, either
way.
By the word intent is not meant the intent of the parties to
pafs the land by tiis or ttat particular kind of deed^ or by an7
particular mode or form of conveyance, but an intent that the land
ihall pafs at all events one way or other..
Lord Hobartf (who was a very great man,) iri his Reports^
fo. 277. fays, " I exceedingly commend the judges that are cu-
<« rious and aknoft fubtil, aftuti^ to invent reafon and means to
<< make a£is according to the juft intent of the parties, and to
^* avoid wrong and injury, which by rigid rules might be wrought
*^ out of the 2,& 'i* and my Lord Hale in the cafe of Croffing and
Scudamore^ I Venti 141. cites and approves of this paflage ia
Hobartm \
Although formerly, according to fome of the old cafes, the
mode or form of a conveyance was held material, yet in later
times, where the intent appears that the land (hall pafs, it has
been ruled otherwife, and certainly it is more confiderable to
make the intent good in palling the eftate, if by any legal means
it may be done, than by confidering the manner of palling it, to
difappoint the intent and principal thing, which was to pafs the
land. Ofmamnd Shea/e, sji. Upon this ground we go*
We are all of opinion that in this cafe there ts every thing ne«
ceffary to make a good and efFeftual covenant to (land feifed to
ufes. Fir/fj Here is a deed. Secondly ^ Here are apt words, the
word grant alone would have been fufficient, but there are other,
words befi^Ies which are material ; viz, A covenant that the
grantor has power to grant, and a covenant that all fines, rcco-
' verics, {5V. of thefe lands fliall enure to the ufes in the deed.
Third/yy The covenantor was feifed in fee. Fonrthty^ Here ap-
pears a mod: plain intent that Wilkinfon the leiTor of the plainttflT
(hould have the lands in cafe C. Kirby died without ifliie. And
Trinity Term, 30 & 31 Geo. II. 1757. 79
laftlfy Here is a proper con&deration to raxfe an ufe to the leflbr
of the plaintiff^ for the covenantor in the deed names him to be
the eldeft fon of his well-beloved uncle ; thefe are all the cir-
cumftances necefTary to make a good deed of covenant to i^nd
feifed to ufes.
In fupport of their opinion the Chief Juftice only cited and
obferred upon thefe cafes \ viz. Croffing and Scudamore^ i Mod*
175. zLev. g. 1 Vent. 137. Walker znA Hall^ 2 Lev. 213.
CMltman and Senboufe^ Tho. Jones y 105. CartL 38, 39, Baker
T. HU. 2ir.isr M. B. R. Ofman and Sbeafe^ 3 Lev. 307.
•
The Chief Juftice laftly cited two of the ftrongcft cafes men-
tioned for the defendants, as Hore and Dix^ i Sid. 25. Samm
and Jonesy 2 Vent. 318. and faid he did not (for his own part)
underftand them \ and that if he had fat in judgment in thofe
CafeSy he fliould have been of a different opinion in both ; how-
cvcri he faid the prefent cafe differed from thefe two cafes.
Laftly^ he faid the whole court were clear of opinion that a man
feifed might covenant to ftand feifed to the ufe of another per-
fon after the covenantor's death, Pojiea delivered to the plaintiff. I
Campbell Clerk verfus Aldrich Clerk. C. B.
THIS is .a rule to fliew caufe why tl prohibition f)x?X\ notiffuc ProhiWtioa
to the con fiftory court of the hxttio^ oi London^ grounded totfoitia
upon a fuggcftioa that the defendant hath libelled the plaintiff in Jj^J^
the fpiritual court for marrying without banns or licenfei and marryioc
feveral inftances arc fet forth, *< as appears by the regifter book j" -'-•^ -
alfo that the plaintiff has baptized fcveral children, and performed
other minifterial offices in the parifli of St. Jdsn^ without any
Ucenfe from the bi(hop.
Againll the prohibition it was faid, there was no plea put in
below, fo the libel is confeffed to be true ; and thereupon it was
infifted that the matters therein contained were of fpiritual juriC-
di£lion, and fo the rule ought to be difcharged. .
For the prohibition it was faid that the fpiritual court were
taking conufance of a matter proper at law } for now fince the late
marriage-aa it is felony to marry without banns or liccnfe, and
there muft firft be a trial at common law before a clerk in fuch
cafe can be deprived or degraded \ and fo is Hob. 290.
. The whole court were of opinion that the rule fliould be made
abfolutc as. to the marrying without banns or licenfe, that the
plaintiff may declare, and this matter upon the late marriage-a£t .
may be more folemnly debated ; and as to the other minifterial
ads in the libel the rule was difcharged.. Serjeant Prime for the
plaintiff, Serjeant Pook and Serjeant Hewitt for the defendant.
licenfir.
[ 8a 3
MICHAELMAS TERM,
^i Geo. II. 1757.
Roe, of the Demifc of Kirby, vtr/us Holmes. C B.
EJECTMENT, of two mcfluagcs in Torhjbire: at the trial
in 1756 this cafe was made for the opinion of the court.
William Hardifty being feifed in fee according to the cuftom of
the forefl: of Knare/bcrough^ of the copyhold lands in queftion ia
Memwith cum Darley^ furrendered the fame to the ufe of his wilV
which he made in thefe wordsy v/z. ** Whereas I have furren-
<* dercd, or intend to funrender, all my copyhold lands and tcne-t
<' ments to the ufe of my lad will, I do hereby give and devife
<' the fame to my daughter Jane^ ^er heirs and aligns for eVer^
ynut words « but in cafe my /aid daughter dies before Jbe iOtmn' the age ^
*te*^^&ute ** ^ ' years ^ and have no ijfue^ then my loillis^ that my nephew John
for 11^ ** Hardifty ^fl// i&flv^ my /aid copyhold lands and tenements:^
Whereas my cftate in Birftwith is furrendered to me and my
wife, our heirs and afllgns for ever, my willjs, that flic furrender
. the fiime after her deceafe to my faid daughter jane and her
heirs within fix months after my deceafe. And whereas I be-
lieve my nephew John Hardifiy is heir at law to my daughter in
cafe (he dier wiUiout ifiue, my will therefore is, that he furrender
the lad premifes to my nephews the fons of my brother Cro/by in
fee, or elfe to have no benefit of this my laft will and teftament^
and I will that my faid nephews, fons of my brother Cro/by, have
xtij l^nds in Memwith ivith Holme and Darley, their heirs and
affigns, (hare and (hare alike.
Upon the 31ft of January 1750, the te(btor died feifed in
£ee, leaving Jane his only child^ who died afterwards on the ad
oi March 1752, without iflue, and under twenty-one years of age.
John hardijly^ the nephew of teftafor, furvived Jane, and died
the 2 5 h of June 1753, without UTue, was never admitted tenant,
nor ever made any diifc^fal of the lands in queftion.
John Hardijiy, the father- of JdiJ/i Hardijly the teftator's ne-
phew, is heir at law to Jane^ and brother and heir at law to
13 jyUliam
Michaelmas Term, 31 Geo. II. 1757. 81
WilHam the feCtator, and furrendered the lands in queftion to
tlie ufc of the leflbr of the plaintiff 15 Auguft 17549 and alfQ
granted the fame according to the cuftom of the foreftj in fee.
The defendant's title is only pofleOion.
This cafe was argued twice at the bar, and the fingle queftion
10 the cafe was. Whether John HarMfty the nephew, by the will,
took an eftate in fee, or for life i If he took a fee, then the leflbr
of the plaintiff has no title ; but if he took only a life-eftate,
tlien the plaintiff^s leffor has a good title under John Hardifij^
the brother and heir of the teftator*
T^ whole court were clear of opinion for the plamtiff, that
die nephew only took an eftate for life \ that the teftator, by his
derife to ^«^f» plainly underftood the force of words of limita«
tboj and if he had intended to give his nephew more than an
eftate for life, he knew how to have done it ; that there were
no exprefs words in the will that gave tlie nephew a fee, nor any
oaoifcft intention tp do fo, or to difipherit die heir at law.
Judgment for the plaintifft
7 ."j r ,.-, ,■ ■ ,1. , II III 11^
TRINITY TERM,
31 Geo. II. 1758,
Knight, Efq. verfus Lillo. C. B.
TRESPASS for breaking and entering the clofe of the plain- TitQMi.
tiff called StoftHHiU, and for treading down the graft there, Jodgioent
^ndfor eating other graft witi cattle. tifftwwfe"
tbewliole
The defendant pjeadcd three pleas : Fir/f, Not guilty to the ^^'^
whole declaration ; 7diy, A juftification in bar, that the plaintiff ^^jj^"
ought not to have his action againft him for entering the faid covered bf
clofe and treading down the grafs there, bccaufc he fays, that ^^^^f^Z
the clofe lies in the hundred of Par/law in the county of Salcp^ ^^12
^d that long before the time when, Wc. John Walcott efq. was
Voj.. II, Q and
8« TRJ^^ITY Term, jr Geo. IL 1758.
and fttHis fei(fed in fee of the (^id hundi>e^, with its apptvte?'
nances^ v^x\A that the faid Joi&» Waicoft^ and all thofe whofo
Pxefcriptiop c(latc he ncijir hath, and at the fatd time when, fer<?. had of and
indpriWkge^" the^faid hundred,- with its appurtenances, time out of mind
of eatcring have been accuQomed to have and ufe, and ftiU of right ought
Ac dofe to to have and ufc the benefit, liberty, and privilege of entering
m^!^ iritQ the faid clofe for the purpofei of feeking, taking, a«d killing ^
there at ap- game there within the fatd clofe in which, ^r. and of feekingy
P""*"*?^ ^ taking, an(t kiHing game there as belonging and appertaining to •
• hundred, ^j^ faid" hundred;' wherefore the faid defendant as fervant of
tho bid join Wakott, an* by his command, at the faid feveral
times when, bfc. entered into the faid clofe in whidi, (9V* fev
the purpof<ps of (ecking, taking, and killing game there, and
tl>en and there (ho( at and killed game there fount) for the f^id
ycbn JV'alccttr as it was lawful for him to do, and in fo doing
unavoidably and De(;eflarily trod down, fpotled, and eonfomed a
iittle of the grafs there, which is the fame trefpafs, Wr.; and thi^^-
ht is ready to verify : the third plea is a like juftificatibn, only
it does itoi fay, « As belonging and appertaining to the faid
«* hundred;**' the plaintiff joins .iffoe upon the Not Guilty, and
traverfes the two prefcriptions feverally, whereupon ifluea are
like wife joined. At the trial there was a verdiA for the plaintiff*
upon the general iflTue, and a verdidi for the defendant upon the
other two iffues upon the prefcriptions.
It was now moved by Serjeant PooU that the plaintiff ought to
have judgment upon the whole record as to all the iffues joined^
aliedging that both the prefcriptions w«re bad i|i point of law.
But thecourt faid there was no occafion to debate whether
the prefcriptions were good or Qot, for that the plaintiff at all
events muft have judgment upon the general iffue, becaufc there
is a trefpafs laid in the declaration ; viz. tbt fating grafs nvitb tie
defendants cattle^ of which he is found guilty > and which is not
covered or anfwered by the judifications* And unlefs the plain-
tiff would waive that part of the fimling of the jury as to the
general ifluc and eating the grafs, the court refulcd to hear stny
argument touching the prefcriptions. So tbo coynfcl being de-
iirous to have the validity of 4hc prefcriptions determined, took
time to know whether the plaintiff would waive his verdift upon
tlie Not guilty ; ^nd if he vrould no^, then judgment was for
. the plaintiff.
. Bl^yer v^rfu$ Baldwin. C. B.
Aiirwcii. XX^ITHnj a year after final judgment giveii in this caufe^ ^
^€«nnot VV furi facias was fued out in lifter term 1757* and retom-
mXr*o1i'* able on the morrow of the Afcenfion df our Lord in that term^
which was and was continued upon the roll down till this term by vicecomn
neverrRtnrn- 009
•^ or fikd.
TwifiTT Tj^rm, 31 ^e^. II. 1758. S|
mmmff$bmtHi and the defendant being this term taken upon a
oglfv adjaiisfaciiaium iflued upon the judgment^ it waa moved
bf Serjeant lw# that this is irregular^ there neither beine any
fiufac^u to revive the judgment, it being above a year oloi no^
any exeisi^tioa returned b^ the fiierlff to warrant the entry of the
continuances on the roll.
Per curiam — ^Tfae defendant muft be difeharged put of cuftody,
and the plaintiff muft pay the cofts of this application, for it is
^giilav t» continoe an execution on the roll which was neve? *
Ktwmed or filed. Serjeants Prime and D0Vf for the phintiff.
MICHAELMAS TERM,
^2 Geo.lt. lysS.
Cutfield verfids Coney dnd others. C. B*
FTER the plaintiff in replevin had declared, he died before Ndatiffk
_^ the defendant made any avowry, fo that the fuit was JS^'*^!**^
abated by the a£l of God, after the declaration and before any ciarauonuA
Avowry : whereupon it was moved on the behalf of the defend- before woip*
ants, (who were overfcers of the poor, and had diftrained as Si^TS
being fo,) that they might have a writ 4^ retorm hakendo. This bclAcd. ;
being a nice queftion, the court ordered the caufe to be put ^^
the paper, and this point to be more folemnly debated.
After hearing counfel on both fides, the court took time tQ
confider, and in this term gave judgment that there ought not
to be any return of the goods % they faid that many cafes had
been cited on both fid^s, but that they founded their determina-
tion upon Lord Chief Baron Gilbiri*! Law of Dtfireffn and Rf
fkvitts^ fo. 231, 232. and that it would be abfurd to grant a
return, habend. where there is no avowry. By the declaration
the defendant is charged with an unjuft caption and detention^
^d he muft purge himfelf thereof by an avowry before he can[
84 Michaelmas Term, 3^ ^^^-^I* 1758.
l^e entitled to have a return, for a return is adjudged by t|ie court
on the jufticc of the original caption, and therefore the defend-
ant muft firft (hew the juftice of this caption before he can have
a return ; and they faid the party may diftrain agaim Serjeant
Hewitt for the plaintifF, Serjeant Prime for the defendant.
Graves verfiis Wife. C. B,
prta'icc. ^HIS was a motion to fet aGde an interlocutory judgment for
?'dailaoii irregularity : the irregularity complained of was, that notice
sii^uii'fet pf a declaration was given to the defendant, << that it was left in
f .rth the «< the office of Mr. Prothonotary JoneSi in an aSHon/or wpri an4
•aiio.'*^^ " '^'^'^ ^'^ ^ /A^///7i«/i^yjr the defendqnt^'* without fpecifying
technically the nature of the a£tion*,'for the words ought toBa?e
been in an a^ion of trefpafs upon the cafe^ and not being fo, the
judgment was kt aCde (the Chief Jufticc abfent).
N.B. This fcems a very hard cafe j for the words, f< in an
<* a£tion for work anc^ labour," are more intelligible to the lay
gents, than the words trefpafs on the cafe. However, the court
faid they muft abide by their rules ; and the rule in this cafe v^
that th nature of the oElion muft be fpeciGed in the notice. See
the rule anno i Geo, 2. Serjeant Jiewiit for the plaintiSft Scr«
jcant Davy for the defendant.
t 85 ]
HILARY TERMi
^2 Geo. IL 1759,
Coke i)ef^ Sayen to B^ R.
TIIS waft an a6lion againft the defendant for crimbal con** Kot guHty, ^
verfadon with the plaintiff's wife. The defendant pleaded »f ^^\ ..
two pleas, NotguUty, and Not guilty within fu years: iffue^g'J^fS
to the country was joined upon the firft plea, and a demurrer was »aaaaioo foe
to the latter. There was a verdi^ for ao /. upon the iffue tried J^«»- «^»
by the country i sind now the demurrer to the ple^ of the ftatute ti^^^^. '
of limitations was argued, and that plea Was held. good, Fer rertocte' '
Utam curiam — ^There mud be judgment od the demurrer for the ^^fjj^*
dpfendapt, and the plaintiff muft hare no damages, nor muft piaindsroa
cofts be paud OQ eithicr fide upon account of the trial. . the urnei
• • judgmeac
for defendant ea deomifer;
Vaoderplank vit^s Banks. G. B.
npHE, defendant pleaded a Tatianee between the writ and the Vinincc.
f> declaration, without craring or fetting forth oyer of the
'writ; the plaintiff demurred, and it was held that the defendant
fhould annver over, agreeable to the cafe of Bragg r. Digiy^
z Salt. 658. which is in point.
G3
[ S6 ] .
*
EASTER tBAKI,
^2 Geo. 11; 1*759.
Frefton verfids Chriftmas. C B.
"^^'"^ TT^EBT upon a bond ; defendant pleads accord and fadsfac*
M^hO^ kJ tion,- ^ik. That ht ttYcAfeA V6 the pUintiff til his eifaikf
whsre^be of redeaibtidii of ciertain teii^iki'e^t% in fati^AiElton oif lit bonis
%f^^. whertin me defendant w^ botirid fo the plaintiff: die plaintiff
detnnrred^ and the defehdaiftt jdihdl in demttfflir«
« *^^ It wto «i%ttred fct Serjeant pMk lot ** jAAnifi; that tMs plek
'^^ ^' • wvifaad In two mjieas v rjl$ That it is *A ace6t4 wtehMt *hf
Ittfil fatisfteHM I thdt an equity ^ ttietirpAM iliras «imtd«Ktt
of no Value at hc^'t and fo 16 Ziir.y^r. 33 1« ikrhei'ib k inlaid tto#^
that if the mbrfigagotr doth ivot )pay the Money A tllo dA)r iti tli6
condition^ the land which is put in pledge is tsfken from him for
ever, and fo is dead to him upon-coifdition ; fo thatj at lawj an
equity of redemption is of no value.
2dfyt That this is an a£tion of debt upon a deed| and being
fo^ the accbrd and finisfwCtion ought to b& b^ daed^ and iMr
being beaded h) be fay deed) the ple^ for. thi^ teafon Idfo h bad \
for Wherever a ecitaiii debt is titated by deed^ it cannot be dif^
char^ but by ftaher of as high a hature^ and notby an accord
or matter in pais. 6 Rep. 43. Bloh^s rafe> aiid 'Qto. .Jic. ^5^.
And though perhaps where there appears to be a condition for
payment of money, an accord may be pleaded in fatisfafiion of
the money or condition, yet it cannot be pleaded in fatisfadion
of the deed or obligation ; and for any thing that appears on thU
record, this is a bond without any condition at all.
Serjeant Hewitt infifted in anfwer to the firft obje£lion, that
wherever an advantage accrued to the plaintiff, if he'ir^^ved and
accepted of that, advantage in fatisfa£lion, \t might be well
pleaded, that a pot of wine had been deemed a good fatisfa£lion
of all anions. ' i RoL Mr, 12.8. p. 9. That an equity of re-
demption was a beneficial thing, and it was not material wbmt
the value of it was.
£a8Ter Tjsrm^ 32 Geo. Ih lysg. §|
III znfvm to the ieeond obJeAion, that ihe fklea is bad beCAife
pleaded in fatiafaflion of a bond, he faid he thought it was the
fame thing whether it was pleaded in faiisfa£li(^ c^tlie bond* dlr
of the mone]^ or debt owing upon the bond ; and that it would
imvt been a good jdta it it hiid beaa pleaded in ftftilfa^itdn of
the maocj^ feems to ht adtnilted by the cafes eked on the ofehet
fide.
Thkr whole court were elearlj of epuiion with the {da^ntiff' ia
iMh petals i \/ff That a releafe of an equity of redbmf>iioa wa$
sothtiig St ail ih the eye4f the Isw '9 and zJfy^ TbUt ^ie beMg
•a debt upon an Obligation without ftnj condition^ ia«itfa£Uon
inuft be {^leaded to by deed }. and that 6 R^* 43. And Cr^ Jac^
254. are dircftly in jpoint. _ .
Judgment for the plaimiiT.
j^oiies vcrfus Heme. C, b. .
ACTION of flander for thefe words; via. " You (meaning slander.
j^ (c the pliUntiff) are a rogue^ and! (oteamngtbedsfendant) *< You area
'^^ will prove you a rogiiej for yoa forged n>y name." No fpecial J^I*^jJ *
dtaii^e was laid in the declaration; there was a verdid for th^ yoa arogne^
ifilaintiff upon l^et guilty ; and it was now moved by Serjeant ^o' 1^
Mmn in srreft of judgment, that thefe words are not adionable.; |^^'^*«°'Je
to prove which he cited 3 Lfon, 231. pL 313. where the word^, aaionaMe.
'< Thou haft forged 'my hand/' were held not adionable. But
^er idtmm ^ufiam ^Th€ laying a man is a foifcr, Of has forged
one's hand,- is aclioaable} add they over-ruled this oafe in
tLt9n» WUUs C. J. alib faidi that if it was now res inttgra^
(hould hold thr«t calling a man a rogue, or a woman awhore,
in public company, were a£lionable«
Judgment ibr the plaintltfl
White t>^i5/Zrj Willis, CB.
.ff^RBiPAti for takkig the plaintiff's cattle ; the defendant Whedier*
-/ pleaded in bar thai he diftrained for rent, and that the plain- J^"^ ^
tiff levied a plaint in replevin before the ilieriff of the county, pietaes in
and that the proccfs thereon is ftill depending in the county ^*?^^»
.4»tirt ; the plMmiff detnurred, and the defendaat joined ia de- ''^ *
jnuit^.
Seijeant PMi for die plaintiff infifted the plea was bad for two
•feaibns; Pirft, Becanfe a fuit depending in an inferior oourt
•d^QftOt be pleiided ia bajr to an a^on here, j; Iktfon 4a. h.
G4 , 7 if.
5^ Easter Term, ^2 Geo. ll. 1759.
7 H* 4. 8. a. T H 4. 44* a. b. Bfinif^ham*^ cafe. 43 Ed^ j«
22. 27. 4 ff. 6. 15. a. K and TriVi. C Geo. 2. Duifield rt
Warden^ Fiizgib. 3. 19-
%dly^ If tliis matter could well be pleaded, it ought to have
been pleaded in abatement^ and not in bar s for by pleading in
bar the defendant admits the canfe of a£lion and tlie writ to be
good, but fays fomething n;iore to deflroy the plaintiff's caufe of
a£lion ; ahaiemint is to fome matter which (hews the a£iioa is
. ill conceived, but does not go to deftroy the aftion abfolutely $
and the repleinn does not bar ttefpafs^ but the court in this cafe
nay give a general judgment that the plaintiff ought to have da-
tnages.^ Q.'Mod, 63, 64. i Mad. 214. i Lev. 312. 2 RoL
Rep. 64. Doii. PJaciiandi lo. tit. Pleas in abatement in mattirs
rf record in fdintn
Hemtt Serjeant, § contra^ for the defendant as to both the ob-
jections faid, that a replevin differed much from all other ajlions
in inferior courts, and mi^ht be pleaded in bar to trefpafs here %
and cited HoR. Placitandi 65. 68. 22 Hen. 6. 15.
The court were of opinion that they could give a prhper judg-
ment for the plaintiff, although the defendant's plea concluded
improperly } and were about to give a general judgment for the
plaintiff; but the defendant defired he might withdraw his plea
and plead de now,^ which was granted upon pajrment of cofts to
the plaintiff.
Nota i Willes C. J. faid, there !s more law and learning in
DoEtrina Placitandi than in any book he knew ; that it contained
the fubftance of all the pleadings in the Tear-bwiks and CeUs
Reports. •
An execu-
rory devlfe
^as nnrcr
made good
bat for the
like of rh'e
inten'JoA of
tue tgltaiyr.
Driver, of the Demife of Richard Standring^ verfuM
Mary Standring, Widow, and John Hoole. C. B.
"PJECTMENT of a meffuage and lands va Epv)orth in the
•^-^ county of Lincoln^ was tried in Lincoln^ March 6^ 175^»
before Baron Legge : verdi<f^ for the plaintiff, fubje£i to thp
opinion of the court upon this cafe.
John Standring being fcifed, in fee of the premifes in queftion^
by his will of the 17th of June 1753 devifed to his. brother
Richard in fee other lands than thefe now in queftion, and alfo
other lands to his niece Eliz. Read^ and then follows the daufe
upon which the prefent queftion depends, in thefe words: ^^Mem^
" I give and devife all tke rejl oj my lands ^ tenements^ and heredita^
" mentis
Easter Term, 32 Geo. II. 1759* *9
^< mmis^ (including tbofe now in queftion,) unto the child or
cc childrtn ^ which Mary my natfe is now pregnant^ and ^ the heirs
•* cf fuch chiU or children for ever^ to he held and enjoyed by them^
*< if^ more them one^ as tenants in conimon and not as Jointenants s
^< frwided otways nevertbelefsf and my will and mind further is,
■* that if all fuch child or children foalt not he horn altve^ or fhall
•* happen to die without lawful ijfue and under the age of 21 years,
*• then in either of the faid cafes I give and devife the houfe wherein
*' Idwelly and my nearer clof'e in the HavertKwaites, with the ap^
*^ purtenances, to my brother Ricliard Standring and his heirs for
** ever s und alfo in either of the faid cafes I give and devife my further
'< ckfe in the Haverth wattes to Mary my wife during the term of
•« her natural life, and from and after her deceafe to my faid brother
*< Ricbard and his heirs for ever:" and then the teflator gii'cs
his perfonal cftate to his wife and his brother Richard.
The will was duly executed and attefled, and was proved at
tbe trial ; it was alfo proved, and is further ftated in the cafe,
that at the time the teflator made his will. he was very fick and
ill, and that his wife was pregnant, and on the 5th of September
1753 was delivered of a fon, and that this fon died in the life-
time of the teftator without iflue and under age ; that afterwards
in the life of teftator he had another cbUd by his fame wife
born alive, which alfo died foon after its birth in teftator's life-
tame, and that the teftator himfelf afterwards, on the i7tb of
September x 7569 died feifed in fee o^ the premifes without revddng
or altering his will, leaving his wife with child of a daughter,
'who was foon after born, and is now living.
The fingle qucftion is, Whether Richard Standring, the tefta-
tor's brother, has any title under this will . to the houfe, isfc.
irherein the teftator dwdt at the time of making his will ?
This cafe was argued twice at the bar ; the firft time in Jif i- *
chaelmas term laft, and again in this term.
The ferjcants of counfel with the leflbr of the plaintiff con-
tended, that this was a good executory devife to teftator's bro-
ther Richard, it being to take place within a reafonable time (
that is ro fay, if the child then in ventre fa mere fhould die with-
out iflue, or under the age of one-and-twenty years.
On the other fide, for the heir at law it was argued, that willt .
are to be conftrued accordin;; to the intention of teftators, if
that can poflibly be found out, that it is impoflible to conceive
that when a man is providing for a child m ventre fa mere, he
could ever intend that if that child died, any after-born child ,
fliould
jd Faster TEiLii, ^2 Geo At t^jfg.
fliould be difinherited. It was airo arguH, thstt the cMttri^Mdey
which haj^ned after the makin| the Will, in the feibt0r*8 fa-:
xnilff' amounted to a revocation of the will ■, Kut tht eouft wenf
clear of opinion ehat fuch alterations in familtefi( cftnnbt ref oke St
will of lands by the laws of Bnfiani^ h6weter it m«y b« <»llcr^
wife by the civil law.
Upon both the argtiments the whole ceiuit detUre^i ^Mftlf
by any conftrufllon whatever they could be wtnranted i^ giving
jiidgmciit for the defendants in favour of the beif^ they WdUld d(»
k i at length, af^er time taken to confider, they alt fi^rally de-
clared in court that they would ttot oonftrue this to be diA tt^^*
tory devife ; they faid thkt executory devifes are cotitrafy to tfaKS
ftri£k rules of law, and were at firft inirented in futtherdHoe df
juftice, and to carry into ezeoutioti the tnatiifeft ifttenti^tt iA
teftatore ; and that to conftrue this to be an executory devife,
would be to defeat the teftator's defign» which tn\xk cettakily
be, to provide for any after-botn childj and^ boc to difinherk an
heir of his own bod]f •
Befides, it was fiiid by Mr. Juftice Bitthutft^ artd a|rte«d by tB«
whole court, that unlefs fame words were kdded to th^ pnwfi
as to the child or children dyiftg "fvkhottt ifluei it eould nbt bti
eokiftrued to be an exeeucnry devifei, as not betftg certainly to
take place within a teafdnable ti^f»e t fet (as he faid) there i^ t
great deal of diffirtence between dyirtg without tflWe. stud dyiAg
iVero. 760. widrout iflue Hving 4$t the fitme ofthi death or deaths ot fudh tfaild
75**759' or diildrcnj the firft Cafe may not happen in many generations^
the latter cafe will be known within the compafs of a life ; and
they agreed they wt>nld not in th4s hard Cafe fupp>y the Wlint of
the wtirds " IMt^ at the tim tfthe death of fuch cbUd&t etUdnn^
which Would deftroy the intent of the teftator.
However, sdthough this was the ^claratidit, attd f^emed to be
the opinion of the wl^e court) yet they did not grve judgment
one way or other, but dcfired the leflbr of the plaintiff would
confider of it, and if he had any humanity cr gotidni^rs in him,
they i*rcit; fure he would givt the poor infant heir no Aifthef
troubie. With refpe£k to the cafes cited en both fides, they arc
fo little to the ^urpofe that it >»roilld be im(>eftinent to pnt -them
down ; and this ca& is fo parttoular and fingUlaV) that k muft
be dcicrmined merely upon its own ckcumftainccs. Jldjoumatur.
£ASt£R TfiR^t, 32 Gco^ IT. 1759. ^t
tVuham vcf^ Hill and others. C. B.
^HIS was an tiEdon upon the Jlat. i G^. r. c. 5. / 6. for Cofti.
* demoU&ing houfca, btrns, tTr. of the plaintiflr at SieMelJ, '^^^^^
m a cent in hiindred in the county of tltrk, brought again ft the coft< in an
inhabitants of the httndred, in which the plaintiff had a verdi£k apionoocbe
for damages according to this ftatute. i*G?fc.
lodinhoc
The words of the ftatute are, '< The inhabitants of Ac hundred ud aj.
<< (hall yield damages to th^ perfons damnified by fuch dcnaolition^
*' isfc. to be levied on the inhabitants^ and paid to fuch plaintiff
y* by fuch wayeas are provided by ^y'E/iz. cap. 13. for reim*
*< burfing any money recovered by any party robbed.'' No
mention being made of cofts in the ftatute, it now became a
^ueftion. Whether the plaintiff flKmM have cofts taxed de inert*
menu by the protbonotary i
This being a new cafe was debated twice at the bar, and many
cafes cited on both fides, not neceiiary to be put down here.
After time taken to confider, the court this term gave their
tUianimous opinion that the plaintiff was entitled to full cofts.
Lord Chief Juftice U^ilUi—Hht plaintiff is entitled to cofts }
\fiy By the ftatute of G/0tfr£/?^r, 6 Ed. 1. ir. i«/ 2. whereby it
13 provided that the demandant may reoover againft the tenant
the cofts of his writ purchafed, together with his damages, << and
'< this a£k ihall hold place in all cafes where the party is to reco*
^< ver damages $*' in all cafes are very general words, and in my
opinion extiend to aU anions at common kw, and to aU aflions
i^p6n any former or later ftatutes where damages are to be re«
cfovered ; and although the cofts of the writ purchafed are only
Mentioned, yet the demandant or plaintiff fliail have hb whole
tofts of all the procefs in thecaufe. 2 Inji. 288.
^dly^ The word damages In xKis flat, i G^. i. mean^ cofts of
fuit as well as damages found by the jury \ and this conftrudioa
agrees with all the entries, for when the damna, tnifg^ ts^ctf/lapa
are all added together^ the entries all conclude thus, ** ^/«
** gaidem damna in totofe attingunf* to fo much.
3^/^, The intefnt of the ftatute was to rciYnbutfe the party in-
jured, and to give hihi an adequate fatisfadion fo^ the damages
hehkdfnftained; btft uftlrfs Wt t«rere to JidJHdge to him his cofts
^itiit, he would iidit be ttlitibiMed, as tlie ftatute intended he-
AduUbe.
9 Afhlji
gi JEasteh Term, 31 Ge6i it 1 755.
4th/yf This Jat, t Geo. i. as to this matter, is planned froni
the JIat. 27 jB//z. r. 13. oi hue and crjj and fays, that damaged
in the pre fen c cafe ihali be levied by fuch ways as are proYided
by this ilatute of Eliz. for reimburfing any party robbed : and
although IK) cods aie mentioned in the ftatute of Eitz. yet coftt
have been always allowed in adlions upon that ftatute. 2 Sound.
379. in point. Alfo another cafe in B. R. armo 21 Geo* 2. s
copy of which record was now (hewn in court*
«
As to ftatutes which give double or treble damages, they arc
conCdered in a difierent light from the prefent, which only gives
fingle damages.
Piifold^s cafe, 10 Co. Rep, 1 16. feems to me an extralotdinary
cafe $ however, I do not over-rule it, but think this cafe very
different from it :/in the prefent cafe the plaintiiF might have had
an a6liOn againft the particular perfons who ^£lually pulled down
his houfes and barns, and have recovered his damages and cofts
againft them^ if they might have been known and found; and
certainly the ftatute intended to give the party injured the fame
remedy againft the hundred, as he might have had againft the
trefpafiers themfelves, if they could have been found and come
at) and therefore this is very different from Pitfi!d*% cafe.
CliveJ.^ think the rule in Pi//oId*s cafe, 10 kep. is good
* law, which fays, " 'that in all cafes where a man either before,
«* or by the ftatute 6f Ghueejlery 6 Ed. i . (hould not recover
« damages, if after the faid ftatute another ftatute in a new cafe
*« gives damages either fingle, doubfe, or treble, dfa there the
*< plaintiff' fliall not recover cofts :" this I hold to be good law.
But whnt IS the prefent cafe ? Thtjlat, 1 Geo. i. which we arc
now confidering, does not create damages in a cafe where there
was none before, for the party, plaintiff in the prefent cafe, wae
entitled to damages againft the particular perfons who pulled
down his houfes, at common law ; therefore I fay damages ia
this cafe are not newly created, but the obje£l: againft whom they
are to be recovered is only changed ; and therefore I am of the
fame opinion that the plaintiff mnft have his cofts*
Baihurjl J. — ^I am of the fame opinion. It was obje£lcd for
the defendants that all the cafes and precedents for cofts in hue
and cry have if^ScAfubJilentio; but that is hardly poiEble : it will
never appear on the face of this record that this matter basi beei^
debated, and fo may as well b^ faid hereafter that it pafled fub
Tileniio. The ftatute of hue and cry did not, in my opinion^ create
lllamages, but only gave the party robbed a ditfereat remedy frona
what
Easter Term, 31 Geo. IT. 1759. 93
wbat he had before } for the party robbed before thofe ftatutes
might have had an a|£|ion againft . the hundred for not keeping *
Vfaici and warJ^
Thej?0/. ^7 JE/iz. r. 13. fays^ the inhabitants of the country
(hall be anfwerable for the robberies dope and the damages ; this
word damages in this ftatutc means cods, and the prefent (latute
under confideratton being planned upon it, I am clear of opinion
that the plaintiff muft iiaTe his ^ofts. I think Pilfold^ c;^fe is
yery good I^w, and am defirous it ihould not be fliaken*
Noel J.^l zn^ of the fiime opinion. This flat, i Geo. 1. is
only auxiliary to the party, and not newlj creating damages where
there were none before, fiefides, thc^ai. 8 Gfo. 2. r. i6« of hue
fm^rryexprefsly recognizes that (he pk|intiff (hail have coils by
the ftatutes of bue and cry*
The prothonotary was ordered to tax the plaintiiF his colU*
The dedaration in thi^ cafe wa3 of Hilary term 1 75 8. .
Crutchficld verfiis Seyward. C. B.
pLAINTIFF had bail in the original aAion, declared in a Pnaiw.
* different county from the writ, fo waived his bail j verdi£k PiaintW.
for plaintiff* for 98/. f)efendant has brought error, and threatens ^n'jato**
to go away to Ireland, fo plaintiff^ has brought an acf^ion on the waive his
judgment and held him to bail for 129/. debt and cods; de« bail in the
fendant has put in bail and juftified $ it is now moved by Serjeant a!m!^JSr
Hewitt^ that the recognizance of bail may be difchargcd,^ which aothavciia
was oppofcd by Serjeant Davy, ^ho infilled as there was no bail »" *V?****
in the original a£liOn, fo this cafe is not within the rule of praSice ^j, ^^^^
that a man ihall not be twice held to bail for the fame debt. But
per curlam^^ This is like the cafe of a prifoner who is fuperfedeable
for want of proceeding, and afterwards is held to bail for the fame
debt, which he fhall not be, for a plaintiff* fliall not take advan-
tage of bis own a£^ or laches^ The recognizance was difcharged*.
[ 94 ]
TRINITY TERM,
3a&33Gtfo. II. 1759.
Promire
within the
ftatote of
Vide U.
Ra^m.
1087ft
Fifh verfas Hutchiafon. C. P.
IN an a£lion upon the cafe upon an ajfum^t the plaintiff ^«
claresy that whereas one Vtckars was indebted to him in %*
certain fum of money» and he had commenced an a£tion for the
fame; the defendant in confideration that the plaintiff would
ftay his a£tion againft Vickari promifed to pay plaintiff the money
owing to him by Vickars : to this there is a dem\|irrer and join*
der in demurrer.
For the defendant it was inCftedf that. this being a pnunifc ii\
pay the debt of another perfon* was void by the (latute of fraud*
and perjuries.
It was anfwered for the plaintiff^ that this was an original
contrail between the plaintiff and defendant^ fo not within the
ftatute ; and the cafe of Rtad v. Kajb in B. R. in trinity term^
24 ^ 25 Geo. 2. was cited as in point.
But per iotam rwrww— This cafe at bar is very clearly withix^
the ftatute, for here is a. debt of another perfon ftill funding,
and a promife to pay it : and it is not like the cafe of fiead ▼•
Najbi for that was an aftion of aOault and battery bro\;(ght \xf
the plaintiff's teftator againft one Jobnfon: the caufe was at iffue*»
the record of ntfi prius tntcrcd and Juft coming on to he triedj^
when the defendant Na/b being-prefent in court, in confideratioa
that plaintiff's teftator would not proceed to try his caqfcy but
would withdraw his record, promifed to pay him ^o A and coft*
to be taxed in that fuit ; fo in that cafe there was no debt of
another,. it being an adion of battery, and it could not be knowa
before trial whether the plaintiff would recover any damages or
not -, but in the prefent cafe here is a debt of another ftill fubfift-
iugi ai|d a promife to pay it.
Judgment for tb^ defendant.
Teinitt T«a*i| $t & 33 Gta. lit 1759, 95
The Mayor of E;cetcr v^ifus Trimlet C B.
Juigmmt tftU ewrt deHvered bf Will€$ C. J^,
^{i{S U an a&ioti upon the cafe upon zxioffumffit^ brovgbt Aflbspit
* to recover a certain fum of money owing by the defendant **!if^'*'*^
to the plaintiff for petit cufioms ; the declaration contains two ^ ""*
counts } the firft fcts out a prefcriptive right to petit cudoms,
lind that defendant was liable to pay the fame, and being fo li^ible . ^
ffqmiied payment thereof. The (ecpnd is a general indehiiatut
^kfnjifit for a certain fum due to plaintiff for petit cuftdms, and
^t the defendant being io indebted promifed piiym^nt«
Tq this declaration the defendant has.demurred generally! and
^e plaintiff has joined in demurrer*
For the defendant it has been objeded, that the plaintiff hath
not (hewn any title to have petit cuftoms ; that they could not be
granted, fo plaintiff could not properly prefcrioe for them ; •
^dljj That there is no confideration whereon to ground an ajfump*
jh^ and this is a demand againft common right } and many cafes
^fivc beep cited» all which I (hall lay out of the cafe.
We are all nf opinion that petit cuftoms may well be granted,
9nd plaintiff entitled by prefcription, and have no doubt at alt
but that the firft count is good, and would have been foj even
Vpon a fpecial demurrer*. We give no poGtive opinion as to the
(e^ofld count \ but we incline to think, that this is alfo well
enough, upon a general demurrer; and if the defendant had
pleaded ntn affuntfjit^ the plaintiflT at the trial would have been
pbliged to ihew his right to petit cuftoms* This cafe is like the
cafe of an indehtotus affum^t for money had and received for the
plaintiflTs ufe, which has often been brought in order to try a
fight to an officiSf in which the plaintiff, upon non ajfumpjit
pjjeaded* muft, at the trial, {hew his right to tl^e office. We
lie an of opinion tp over-rulp the demurrer.
Judgment for the plaintiff.
JVetfif ; There was a flmilar determination in the eafe of 7%#
Ttuvm tfTarmouih v. , A R. in Tri^ term 3 G«. 3.
1763, and the cafe of The City cf Exeter and Trimlet^ held to be
good hWi . Fide 3 Lev. 37. May^r und Com* ef London v. Hunt.
96
Trinity Term, 32 & ^^Ggo. 11. 1759.
Palmer verfus Stone and another. C. B.
Peciaration *T^ HIS IS an aftion of trcfpafs, in which the plaintiff declares,
m^trefpafs 1 that on thc 15th of June 1758, at Barking in £fex^ tha dc-
^ '""' fendants with force and arms took and impounded the plaintiff's
mare, and detained her in the pound from that day till the com-
mencement of this aftion*
(Muodtag
plaintiff's
mare.
The defend*
an:s* plea.
Damage*
ieafant to
the king in
his foreft pf
W^liham.
The defendants plead in bar, that the plaintiff ought not" to
have his a£lion againft them, becaufe they fay that before th<
time the trcfpafs is fuppofed to have been done, his prefent Ma«
jefty was, and ftili is feifcd in fee of the foreft of Waltham in
right of his crown \ and bejng fo feifed, becaufe the mare was in
the king's fpreft eating up, treading down, depafturing, fpotling,
and confuming the grafs growing in the foreft, and doing damage
there to the king, the defendants (as his fervants) feifed an4
took the mare fo doing damage, and impounded her at Barking
9$ fuch diftrefs ; and this they are ready to verify, fcff .
The plaintiff replies, that he ought tiot to be barred from
having his adlon againil the defendants, becaufe he fays, that
jinn Francia widow, long before, and at the time this trefpafs
was done, was, and flill is, feifed in fee of an ancient meffuage and
feventy acres of land in Dagenham near the foreft of Waltham^
and that ftie and all thofe whofe eftate fhe now hath, and had (at
the time of the trefpafs) in the meffuage and lands, have imme*
moTially had, and have been ufed and accuftomed to have, and
of right ought tqhave for themfeFves, their farmers and tenants^
or one geld- of the mcffuage and lands, common of pafture in the foreft of
'7ca f 'f'^^ltham for one gelding, or for one marc in the place and ftead
ctery 80s. of onc gelding, for and in refpe£l of every eighty (hillingd annual
rent, cvcty rent of the meffuage and lands, every year, at all times of ^e
limea of*t'he 1^^^^ cxccpt in thc fcncc-month, as belonging and appertaininff
year, except to the mcffuagc and lands : xhzi Ann Francia being fo feifed of
in the fence- this farm, upon the 7th of &^/f/n^fr 1757, demifedthefame to
th« A F. *^^ plaintiff, to hold from the 29th of that month for the term of
deroifed to onc year, and from the end of that year from year to year, as
the plaintiff; tenant at will ; by virtue of which Icafe the plaintiff entered upon
Md^iTw^ ^he farm, and at the time of the trefpafs was, and ever fincc hath
feflcJ. been, and now is poffeffcd therebf. And thc plaintiff furdier
And that at ftyg {^ reply, that at the time when thc trefpafs was done, the
the ue?pafs, yearly rent of the farm exceeded fixty pounds, and that upoQ the
the lent of 1 5th of June 1 75 8 (and out of the fence-month) he put (he |narc
the farm ex-
ceeded 60 1, per annum, and that (out of the fenfe- month] plaintiff* pot his mare into the foreft to oft
hib common, when dcfcndinis uf ch. \x own wrong toolc and impounded I^cr.
Flaintiff'i
replication.
That A. F.
i« feifed of
fneffuage
and land
near the
foreft, and
has a right
of common
in the fo»eft
for on? mare
\m
Trinity Term, 32 & 33 Geo. II. iTsi^ 97
into the foreft of Waltham to depafture there^ and to uCIs his
common, and that ihc was eating the grafs there with other of
hi$ cattle until the defendants, of their own wrong, took
and impoanded her; and this the plaintifT is ready to verify;
wherefore £nce the defendants have acknowledged that trefpafs,
. he prays judgment and his damages.
The defendants rejoin that the mare, at the time when they Defeaaaot»*
took and impounded her, was fick, ill of, and labouring under !!|°j°'^r*
a certain catching infectious dillemper called the (nange, and narewj
certain other catching and infeflious diftempers ; and being fo mangy, ^n^
ficfc, ill, and dillempered, was wrongfully and unlawfully in the '*°'"' ^"
forqil eating up, treading down, depafturing, fpoiling, and con- theKforcde*
fuming the grafsj and doing damage there, and therefore the fendanu
defendants feized the mare fo doing danfiage the^e as a diftrefs **^^^"'
for that damage, and impounded l^r as fuch diftrefs, as they beciufe nie'
have before alleJged in their plea ; and this they infift was law- »« wiong-
ful for them to do ; and- fay they are ready to verify it ; where- ^'^"/JJJ^'J,
fore they pray the judgment of the court. ?n OwfoidJ.
The platntiiF furrejoins, that notwithftanding any thing al- Sumjoindor
Icdgcd by the defendants in their rejoinder, he ought not to be •^«*»«pJ«n-
birred of his adion, becaufe he fays that the mare was lawfully
depafturing in die forcft in the manner which the plaintiff has •
before alledged •, tmthotit thtSy that the mare was wrongfully and Triverfc
unlawfully in the foreft of JV'aliham^ eating up, treading down, *^''r l>o«
and coniummg tnc grafs, and doing the damage there, m man- ^,, wrong-
ncr and form as the defendants in their rejoinder have aliedged ; fully and un-
hand this he is ready to verify : wherefore (as before) he prays ^JJ^^r'^V*
judgment and his damages. . *c. '
The defendants by their rebutter take iflue on the travcrfe, Rebotter
that the marc was wrongfully ^n^ unlawfully in the foreft, eat- ^Jj^
ing up, treading down, dcpiifluring, fpoiling, and confuming ,«&.
the grafs th«!re growing, in manner and form jis the defendants
have in their rejoinder aliedged ; and conclude to the country.
i
The plaintiff does not loin iffue to the country, knowing ^ery .
well that if fuch an iffuc nad gone to a jury, and they had found
a verdift one way or other, it would have been a miftrial, as it
refers a matter of law to the lay gents ; and therefore (to pre- Dennmr.
vent delay, which muft othcrwife have happened) the plaintiff J«n<^er m
demurred, and the defendants have joined in demurrer. denwrwr.
This is a ftate of the pleadings fo far as they concern the pre- Coan&lfor
fent iffue in law before the court ; and although it muft be ad- pU»«i*
mitted that the plaintiff's furreJQtnder is bad, as it traverfes a
matter of law, yet if it can be fliewn that the defendants* rejoinder
is likewife bad, then the plaintiff muft have judgment, uulefs it
Vol. 11. H can
9$ Trinity Term, 32 & 33 Geo. II. 1759.
can be dicwn on the other fide that the Jeclaratton or the replica*
tton are bad \ for it is an eft^Iiflied rule, that whoerer makes
the firft fault in pleading (hall have judgment againft him.
This rule being prereifcd, the principal point firft infifted upon
for the plaintiflFis, that the rejoinder of the defendants is a i&^
parture from thpir plea, and therefore bad \ and if it be neceflkry,
ihall further Ihc w that it is bad upon the merits in*point of law.
A^cNrtuxe, A departure in pleading is, when a man quits or departs from
what Jt it* one defence which he has firft made, and has recourfe to an-
other \ it is when his fecond plea contains matter not purfuant to
hb firft plea, and which does not fupport and fortify it. Ca.
Lit. 304. a* .
One good reafon why a departure in pleading is never allowed
is, becaufe records would by fuch manner of pleading be fpun
out into endlefs prolixity ; for if it were to be allowed, then he
who has departed from and relinquifhed his firft plea or defence,
might refort to a fecond, third,' fourth, or fortieth defence;
pleading in this manner would become infinite: he who has a
bad catile would never be brouglit to an ififue, nor could hfi who
has a good one ever obtain juftice, the end of his fuit. Other
reafons might be given why a departure in pleading is^ never al-
lowed, but this alone is fufficient.
Having fliewn what is a departure^ and why it is bad in plead-
ing, it fhall now be my endeavour to fliew that the defendants
have in their rejoinder departed from their firft defence made by
their plea.
The defendants in their plea juftify the taking and impounding
the mare, doing damagi^ to the iingy the oivner of the foil of
Waltham foreft, which is % private trefpafs : but they h»ve de-
parted from thai defence and refortcd to another ; that is, they
fay in their rejoinder that the mare was fick and ill of a catching
' infe£lious dkiifmp4l0 called the mafige^ and of other infedious
diftempers, ami M^Nff lb fick, ill, and diftempered, was wrongs
fully and unhnv^aKy in the foreft eating up the grafs and doing
damage } this is not a private trefpafs, but is an ofllence of a
public nature, is a common aufance, and punifhable as fuch, as
apijcars by iht^at, 32 /if. U, f. 13. /• n. whereby it is enaded,
«* Tfcat no perfon or perfoni after Michaelmas then next (hall
,^ . « have or put to pafture any horfe, gelding, or mare infeA with
. << fcab or mange, in, to, or upon any forcfts, chaces, moors^
« marlbes^ heaths^ commons, wafte grounds, or commoti fields^
<< upon pain to forfeit for every horfe, gelding, or mare,y& infe<ft,
<' paftunng in an^ of the (aid grounds, ten fliillings^ which
<< ofience ihaH be inquiiable and prefentable before the fteward
4 . • •• on
Trinity Term, 3a 8c 33 Gfo. II. 1759, ^9
*' 00 every lecti at other CQmflM>ii aimoyaiipef 1>ei and the for-
*^ fehure therefore to be to the lord of the £ama ]cet whcr^ the
» faid offences (haU bit prefeoted.^
Again ^ the defendants by their plea iiftfklj and poiitively
sffirm the mare was diftratncd and impounded, becaufe (be was
doing damage to fbe king^ by eating up, treading down, and coni»
fuming the grafs growing upon his freehold } but in their re^.
joinder they do not affirm any fiich thiqg, they only fay the mare
was mangy, and iMgfi^ wss doing damage fiere g aainage !-^
To whom .'-rNot to the king, or his freehold^ they ha?e not
faid fo — but woi^ld hare the court conclude fay way of argument
or inference that this was a private trefpafe on the king's freehold,
and not a public nufance or common annoyance ; this being an
argumentative rejoinder as well as different from the plea is
hady for that n^atters of fa^ ought to be certainly and pofitively \
aUedged in pleadingS| and are not tQ be made out tp the court
hy irgumpnt or inference.
A iepartwre in pleading is fo yeyy well i^nderftood, that it
would be impertinent to cite cafes ; if the court fliould be of
opinion thajt this is a def^rturCi it will not be neceflary for me
p fay any thing more at prefent, or to (hew that the rejoinder
18 alio had in other pointy of \xm \ but if the court (hou{d incline
to think this i9 not 9 departure, after they hare heard niy brother^
then 1 (hall beg leave to be at liberty further to fiiew that the plea
is in other rcfpc&s ill pleaded and 'bad in point of bv*
Cottofel for the defendants-rrNotwithftanding tyhat has been
infifted upon op the othey Tide, I (hall (hew that the rijmder is
not a depart i^re front the pl<:at bi^t difclofes new matter in for-
tiCcatron thereof; that the mare ^as infe£^ed with the mange^
and confecjqemly the plaiiiti^ though he had a right of common^
was a trefpaflcr ab initio^ from the time he put her into the foreft.
A )right of common for cattle, is no more thgn ^profit apprendrg
in aliemfolOf a liberty for a man to %z\c the gr^fs by the mouths
of his beaCtsy Qot by beafts th^^ are not $;ommonaMe| not bf
mangy and in&£ied beads, not by the mouths of pigs not rungy
Jit utcTf tuo uf aliem nw Iftdas^ every man muft fo ufe his owx^ -
u not to injure anot)Kr. Will the other (id.e venture to fay that
if ^ man, wl^o has a right of comn^oo upon my foil for horfeSy
mares, or geldings, puts into it mad, wi)d hbrQ:8, which bite,
ftrike, and deftroy every creature they come near \ ^at thcf<;- -
are conimonabie cattle, and that I .cannot take ai^d drive ^m to
a poand overt as dj^nage-feai^nt ?
It iras determined in tfar Kinpfs Bench, diat pigs put upon ^
/common without being mng may be diftl^incd iamagt-feafant^ i
foiieri Jim may diftraoi a mangy mare i the cafe was Kencbin
B ? an4
tpQ Trinity Term, 31 & 33 Geo.. It 1759.
md Knight^ whicH was determiiicd in Miehadmat term in the
tveotyHhird ycjir of hi84>refcnt majefty, a note whereof I took
with my own han^ : it was an aAion of tfefpafa* for taking and
impounding the plainti'ff''s pigs; the defendant jaftified for da^
mdgt'feafant^ as in the cafe now at bar ; the plaintiff replied, and
prefcribed for a right of common eia£Uy like the prcfcript:ion
in the prefcnt cafe ; the defendant rejoined by alled^ing the pigs
ought to be rung before they were turned on to the common,
which they were not, and fo were trcfpaffers ; to this rejoinder
the plaintiff demurr<;d, and the defendant joined in demurrer;
this was held to be. a good rejoinder, and not a departure, and
judgment was given for the defendant ; and the plaintiif's pigs
not bting rung, the court held he w<is a trefpafTer ; and Mr.
Jufttce Detimfon faid, and the reft of the court agreed, that no
ipan need to ailedge more in his plea at iirfl than what amounts
frima facie to a fufficient anfwer to the declaration.
Lord Chief Juftice-^-I have heard enough to convince me
there are fauhs in the pleadings on both fuies \ each fide (hall
Mtiend without payment of colts.
Counfel for plaintiff-rMy lord, I do not defire to amend any
tittle of the' pleadings on my fide, for <with deference to the
court) the i]ueftion is not. Whether there are faults in the plead-
ipps on both fides ? but who made thefirdfaujt^ for it is an
e{labli(hed rule in pleading, tliat whoever makes the firft fault
(hall have judgment againft him ; and this is fo univerfally true,
that a fingle cafe to the coptrary cannot be fliewn ; befides,
e^et/ one knows that nothing is more common (among good
pleaders) than to give a frivolous anfwer to a bad plea (which
defervcs no better). Befidts, this 1 ih>ill (licw the cijurt, that
the cafe of Kcftchin and Knight j cited by my brother, has been
mif-ftated by him, by miilake, (I am fure,) without any dcfign
to millead.
Lord Chief Jullice to the plaintifRs counfel— If you infill
upon replying, to be furc we will hear you ^ fa go on
Couufel for the plaintiff— Your lordfliip being fo good to
hear me in reply, it fliall be my endeavour to give an anfwer
to what my brother has infiiled upon as law, and to the cafe he
]|as cited,
.1 fliail be|;in with this cafe, which,' if I am not very much
miftaken, he has not dated rightly. He has infifted dial the,
rejoinder in the cafe at bar is not a departure^ but difclofes new
matter purfuant to the \>lea ; aVid, to prove this^ has cited a note
of Kencbin and Knigbt^ which he took with his own band. My.
brother indeed is a very good note-taker» hut in this particular cafe
he
Trinity Term, 32 & 33 Giso. IL 1759. . fot
he has not been fo accurate as he generally is, unlcfs I have
i&uch milUken it. '
* The c^fe of Kenchin and Knigtt, according to my own note* *Tbe record
of it, was argued twice in the King's Bench ; the laft argument' ^^JS^^'^jf
was in Michaelmas term, in the 23d year of his prefent majefty, ilTeotered rf
by. two of the (then) mod learned gentlemen at the bar^ Mr. Hilary term.
Ford for the plaintiff; and Mr. Henley (the prefent Lord Keeper. J*^** *'
of the Great Seal) for the defendant; and upon that argument, R'oU*t79.
the court gave judgment without taking further time : it was an
aflion oftrefpafs quare clauf urn f regit ^ for feveral trefpafles, but
the only trefpafs then in queftion was for the defendant's putting
in his fwine into the plaintiff's clofe. The defendant pleaded a
cuftom, that all the ten^iius and occupiers of certain ancient meC-
fuages in the tithing; of Woodmancottxw Hampfbire hard a right of
common in the place where the trefpafs was fuppofed to be done,
as belonging to the fame, for all their cattle and fwine levant and
couchant on thofe meiTuages, ami under that cuftom the defendant
juftified the putting his fwine intd the plaintiff's clofe* The
plaintiff replied, and admitted the cuftom in the very words it
was alledged in the plea, fo far as the defendant had pleaded it ;
but then the phaintiff went on farther, and alledged that there
was another cuilom beficics, and that was, <^ That the tenants
*< anrd occupiers iii Woodmnncoit have been ufed and accuftomed
** time out of mtnd to ring, and of right ought to ring their
^ {w'lnefo put upon the common, to prevent their rooting up the
*^ foil \ and thnt the defendant put his fwine into the common
•* without ringing them, and therefore the plaintiff alledged he
** was a trcfpalTcT-" To this replication the defendant Knight
demurred gener^^lly, and the phintifF joined in demurrer. This
is a true {late of the record of Kenchin and Knight^ b far as it
relates to the trefpafs by the fwine, which was the only matter ia
debate. , * -
The principal objeMion in the caTc was made to the replica-
tion. Mr. Henley infifted it was bad, becaufe the plaintiff had
therein fet out a different cuflom from that which was alledged
by the defendat\t in his plcn, without traverfing that fir/I ntfiom
pleaded^ which, he faid, tended to make pleadings endlefs ; and
cited many cafes for his purpofe, not now neceifary to mention.
But the court notwithftanding gave judgment for the plaintiff.
Ld. C. J. Lee faid, « That (generally fpeakirig it is true) when
** a particular cuftom is pleaded, another cuftom repugnant to
<< it cannot be replied without traverfing the cuftom (inGfted
** upon) in the plea ; for if it were otherwife, pleadings would
« run out to an infinite length} but 'that is not tlie cafe, (faid
^ he,) for the plaintiff in his replication admits the cuftom in the
•< plea fo far as it goes, and then fays there is another thing to
^ be done, (vrhich is very confiftent w^th the cuftom alledged
I H 3 *• in '
loz ^TRiNiTYf ERM, 32 & 33 Geo^ it 1759^
** in the pleaj) and thai is, you muft ring your fwine, and yod
<* haVe not done.fo, therefore you are si ttcfpaflfer. This is not
<< di^^rent froih, but only a qualification of the fcuftom in the
<< plea,, and reduces the merits of the caufe to one fingle point,
*< the true end of good pleading/'
The other three judges, tf^right^ Dennifoh^ Jiui Fojkr^ gavil
their bpinions to the fame effect. Mr. Juftice i^^/r (indeed) at
firft doubted^ but at length be faid he confidered the cuftom iii
the repiicsLtion as another cuftom confident wieh thiAt in the plea^
and agreed 'with the reft of the couYf, that judgment (houM be.
given for the plaintiff, and 7^ it was*
Thb is the trtie (lilte ti the ca& o^ Kenckh and Knight^ and i^
|iot at all like the cafe at bar. My brother cited it to prove that
it was lawful to diftrain twine damage^jiafant upon a common
(that were commonable catUe by the cuftom of the place) doing
damage, ijf they Wre nbt rungi and that the rejoinder was not a
departure ; and taking hift ftate bf the cafe to be right, would
induce the court to think it extremely like the prefect caie^ for
(fays my brother) though I admit yoU nave a right of common fof
your mare, yet if Oie is mangy (he is not comnionable, and you
/ ixt abefpader againftthe owner of the foil, juft as the owner of
the fwine in the cafe cited was, becaufe he put them upon the
tommon without ringing them; and therefore the mare haa
been legally diftrained, becaufe (he was doing damage by being
inaagy*
^Wlth great defetence to the court, if the cale cited ukrtis really
as my brother has fta^ed it, yet* it differs much from the cafe at
bar \ for the cafe cited depended entirely on the particular cuftom
iDf the place in which, ^c, and on the circumftance of ringing
the fwine, which were not commonable Unlefs they were rung }
but thecafe at bar depends upoh the general \Wr of the kingdom
with refpeCt to ct)mmoti of patlurr, and is to'bching cattle com-
. tnonable of common right ^ a fwine unrung roots up-tbe ground)
and fo doe8 real damage to the owner of the foil \ a mamgy mate
does no hurt to the ownet of the foil*
It is very ftrnnge that my brother and I (hould AxUcx totally ia
the ftate of this cafe of Kenchin and Kmght% for there is n6t %
fingle tittle of it we agree to. My brother fays it was an adion
for taking and impounding the plaintiff's fwine ; I fay it was tref-
pafs quart claufum fregit^ and that they were the defendant's
fwine : he fays, the defendant £>i/j^^/ juftifiod taking the fwine ol
the plaintiff damage^feafaiti : 1 fay, there was not a word about
damagt-fetfant^ but that the defendant juftified putting in hie
fwine into the plaintiff's dofe under /a cuftom of right of com«
tem for his fwine. My brother fays, the court giave judgment
for
Trinity Term, 32 & 33 Geo. II. 1759. 103
for the defeiidatit, (which indeed muft have been fo, if his ftate
of the cafe be right,) but I fay« judgment was given for the
pbintiff'; and to prove the truth of what I fay, I have a copy of
the record of Kencbin and Kmght : this cafe was cited to uieWt
that under certain circumftances commonable cattle minr be dtf«
trained damage-ft^fant on a common where they have a right to
be put, whidi it by no means proves, becaafe there is not one
word of a diftrefs damage-feafant in the record of Kmcbin and
Xnight, nor was there one word faid in it about a departure.
. I have now done with my brother's cafe, and if it' was as he
ftates it, vet, with great deference to the court, and my brodier's
pardon, it is not appofite to the queftion now before the couit,
which is. Whether the plaintiff, who confefledly has a right of
conimon for his mare in Waltham foreft all the ye^r, except in
the fence-month, can be a trefpafier in point of law for putting
his mare at a proper feafon upon the fonreii,' merely by ner bc«
coming mangy afterward ? for unlefs this, in point of law, be a
private trefpafs again it the' owner of the foil, the mare could not
be legally xliftrained damage^feafant ; and therefore whether the
rejoinder be a departure or not, yet it is bad upon the merits ia.
point of law.
The plaintiflF's right of common for a mare is not denied, and
tlicrcfore muft be confidcred as admitted. It is not alkdged in any
part of this record at bar, that the mare was mangy at the time
Ae was put upoi^ the foreft; nor does it appear that, after flie
became mangy, the pUintifF had any notice thereof before (he
was diftrained and impounded, and the court will not prefume
any man guilty of an offence which is neither alledged nor proved
againft him : the mare might be found when (he was firft put
into the foreft, and might catch the diftcmper tbert of other
cattle, for any thing that appears to the contrary.
In further fupport of what I before faid,' that a diftrefs for
Jamage-feafant as fet forth in the plea, and fuch a diftrefs as is in
the rrjoiuder (if any fuch can be legally made) are very difierent s
a diftrefs for damage-feafant is by the common law or cuftom of
the whole realm, as appears in Fleta^ lib, a. r^. 47. fee. 25.
fo, 10 1, where it is faid, if 'he who takes and impounds catde
has an adion brought againft him, he may 'fay by way of plea or
defence that he took the beafts juftly, '* ^ia invenit ilia in damp*
f* mcofu9 l^ fecundum legem isf^ confuetudines regm impareavit ilia
•^ donee dampnum fuum pterit emandatum ;** fo that diftrefs datiAge*
feafani is confined Gngly to a private trefpafs, and cannot be
made for any other caufe or offence whatever; and the law is
very ftrift with refpe^ft to this kind of diftrefs, for however rea-
fonable' it may be, that the owner of the land may defend bis
property by taking or impounding the cattle or thing doing tho
H4 trefpafs,^
104 Trinity Tjbrm, 32 & 33 Geo. II. 175$,
trcfpafsi until fatisfadlion in dnmages be made, yet if the cattle
are but gone one inch from (off) his land when he feizes them,
he becomes a wrong-doer ; they mud be infra dominium Juum
when he takes them \ and this kind of diilrefs can be only for a
trefpafs upon private property or pofTeflion. But what is the
diftrefs pleaded in the rejoinder ? it is not for a private trefpafs,
but for a public n^ifance \ it is not for a fingle particular trefpafs
done to the owner of the foil alone, but for a common annoyance
to all the commoners upon Waitham forcft, and if (in, any part
of the kingdom) a diftrefs for this kind of nufance pr annoyance
can be lawful, it can only be fo under fome particular cuftom
of the place, and not by the common law, or general cuftom of
the realm ; and therefore if any fuch cuftom or law of the foreft
exifts, it ought to have been pleaded, other wife the court can
take no notice of it : the foreft law is not the general law of the
Manwood. land, and the king's courts here are not bound to take notice of it^
unlefs it be pleaded.
. The offence in the rejoinder is declared by t\iQ JIat. 32 H. 8*
(as mentioned before) to be a common annoyance, and is prcfent-
able and fineable in the leet, thai is the proper remedy, and with
great deference there is no other. No a£l^on of trefpafs in this
f afc will lie for the lord or any one commoner ; for if one may
have an a£tIon, a thoufand commoners may, and this would be
inconvenient, and create an infinite number of fuits. I rely upon
this, that where an a£tion of trefpafs vi ^ armis will not lie, a
d'Axek for dafnage-fea/ant canno( be made. Whether a com-
moner may not have an a£lion of trefpafs upon the caje^ is another
^onfideration \ it is fuflicient for my purpofe if he cannot have
trefpafs vi ^ armrsy for if he cannot, neither can he diftrain for
damoge-feafaut,
I have now done, aiid fubmit it with great deference to the
court, that the defendant's rejoinder is a departure^ as it CQntains
matter very diflerent from that infilled upon in the plea in bar,
and that it does not fupport or fortify the fame ; or if the court
fiiall be of opinion that it is not a departure, I apprehend it is bad
upon the merits in point of law, for that it is no wJiere alledged
in this record that the mare was mai»gy at the time when (he was
' put into the foreft, or that the plaintiff ever h^d notice that (he
was mangy before (he was diftrained \ and for any thing that
appears to the contrary, ftie was very found and well when firft^
put into the foreft, and might there catch the diftemper from the
cattle of the defendants. thcmfelves \ and for thefe reafons I pray
judgment for the plaintiflF.
Ld. C. J. to plaintiff's counfel— Will you be content to take
40/. cofta, aQd let the defendants amend their pleadings ?
Plaintiff's
Trinity Term, 32 & 33 Geo. II. 1759. 105
PUintifF's counfel-^I have no authority to confent, andhum*
biy pray your lordfliip's judgment ; or if the court thinks the de-
fendants ought to have leave to amend their pleadings, I am
willing to confent they (hall amend theni, upon paying the plain-
tiff his coils> to be taxed by the prothonotary.
C, J.— If you will not confent to take 40/. cofts, the caufc
muft (land over for further confideration.
Then the clerk to plairttifT's attorney being in courts flood up,
and faid, that rather thdn his mailer could confent to take 40/.
cofts, or the caufe be further delayed, he (hould de (ire the cofts
might attend the final event of the caufe, and defired the plain-
tiff's counfel to confent that the defendants might amend their
pleadings, and the cods abide the end of the fuit. ^
Afterwards the defendants (by confent that the cods already
incurred ihbuld attend the event of the caufe) withdrew all their
pleadings, being convinced at length, that they were all bad from
beginning to end ; and pleaded a cuflom of the fored for feizing
and impounding mangy cattle being thereon \ and alledged that
the plaintiff's mare was mangy when (he was put into the forcft,
and judified'the impounding her under the cudom ; the plain-
tiff replied, that the mare was found and well, and not labouring
under any catching or infedious diftemper whatfoever j and tra-
verfed without this, that the mare at the time when, (5V. was fick
and ill of,' and labouring under a catching and infe£lious didem-
per called the mange, as the defendants have alledged in their
plea; and thereupon iffue was joined, and tried at the aflizes for^
^fexf when a verdi£l was found for the plaintiff, and he had ..
judgment for his damages, and ai/ his cods at lad.
Whil worth qui tain, &c. ver^s The Hundred of
Grimflioe. C. B.
Cooke.
Norjhii^, 'Tp HE men inhabiting the hundred of Grim/boe In the Dedantioa
to wit. -*- faid county were attached to anfwer as well to ouf "" ^^ •"^
lord the now king as to Jobn Whitioortb^ in a plea of trcfpafs and**'^*
contempt, againd the form of the ftatute of ^^^ and cry in (uch"
cafe made and provided, and fo forth -, and whereupon the faid
Johfij who fues as ^ell for our faid lord the king as for himfelf,
by John Mayer his attorney complains, that two certain malefac-
tors, to the faid John Whitworth unknown, on the 13th day of
February in the year of our Lord I759» in 'the king's highway, to
vit^ at the parilb oiHockwold witb Jrihon in the faid hundred of
Grimjboi
Ifi6 TRJ^'ITY Teum, 32 & 33 Geo. II. 1759.
Grim/boe in tbe^ faid county of Norfolk^ with force and arms af-
faulted him the faid John JVhitwortb^ and felonioufly took and
carried away from the faid John WbitwortA the monies of the
faid John fFiiitvorit to the value of 82/. 12s* oi.» andalfo three
canvas purfes of the value of one {hilling, and one iilver watch
of the value of five pounds, of the proper goods and eflPefts of
the laid %£» Wbihvorth then and there found, againft the peace
of our {aid lord the king \ and the faid J$bn Whitnaortb imme-^
diately after the faid felony and robbery was committed, to wit,
on the fame day and year at the village of MetbwoU in the bun*
died albrefaid; near to the place where the. faid robbeiry waa
ODoamitted, made hm and crj of the faid robbery, and gave notice
thereof to the inhabitants 01 Metbnvold aforefaid!» and alio with
as much convenient fpeed as might be after the (aid robbery was
committed^ to wit, on the fame day and year, at Fekvfell within
the hMndred aforefaid, and near to the place where the faid rob-
bery was committed, gave notice thereof .to Ambrofe WUteman^
then a conftable of F^tHveU aforefaid \ and in the faid notice (b
given to the faid conftable dcfcribed, as far as the nature and cir*
comftances of the cafe did admit, the faid felons and the time
and place of the faid robbery, and alfo within the fpace of twenty
days next after the faid robbery was committed, to witi on the
a4tb day of February in the year aforefaid, caufed public notice
thereof to be given in the London Gatatte^ and therein defcribed,
as far as the nature and circumftances of the cafe did admit, the
faid felons, and the time and place of the faid robbery, together
with the ^id money, goods, and tStOts whereof the faid John
IFUtworib was fo robbed^as aforefaid \ and afterwards and be*
" fore the day of the ifluing of the original writ of him the faid
Jobtt WblSworthy to. wit, on the .25th day of May in the year
aforefaid, he the faid Jobn JTbitworth went before JvUliam Jfard^
deputy to Gtorge Greene^ filazer of the faid county of Notfdh^
and entered into a bond to John Stallon and ^Jobn Froft^ then
high conftables of the hundred tAGrimlboe aforefaid, in the penal
fum of 106 /., with two fufficient furettes, to wit, John Booth and
WilJiam fFi/dman, approved by the faid Wliliam Ivard^ with con-
dition for fecurin^; to the faid high condablels the due payment of
their colls after the fame (hould be taxed by the proper officer,
in cafe that he the iaid JJ^n Whitworth ' ihouX^^ happen to be
ndnfttited, or fliould difcontinue his adion in this behalf, or in
cafe that judgmei^t (hould be thereon given againft him t>n dc->
murrer, or that a verdifk (hould be given againft lum thereon,
according to the direction of the ftatute in fuch cafe lately made
and provided : and the faid John Whitwortb after the faid felony
and robbery was committed, aiul withiu twenty days next before
the day of the ifluing of the faid original writ of him the (aid
John Whiiworthy to wit, upon the 16th day of May in the
la»e year, was examined upon bis corporal oath before Jndrw
Tuyior
TkiNitV tERM, 34 h 33 Bfo. Ih 1750. 10;
T^fbrdq. then one of the juftices of odr lord the Idbg, aUEgned
to keep the peace of our faid lord the king in and for the faid
county, inhabiting near unto the (aid hundred of Grim/toe^ ac«
cording to the form of the ftatute in fuch cafe made and provide
ed : and: the faid J^ Wbiinoorti upon his oath then faid, that
that he did not know either of the faid perfdns who consroitted
the faid robbery^ and 40 days and upwards have paiTed fince the
faid robbery Was committed) and the faid public notice thereof
giren in the faid London Gottiie, and before the iOiiing of the faid
original writ^ vet the faM men inhabiting within the faid hundred
of Gritij/boe, nave not hitherto made amends to the faid Jahft
Whitvfortb for the faid robbery, nor have taken the bodies ot the
faid frions, nor the body of either of them, nor have they hithei^*
to anfwcred for the bodies of them, or the body of either of themi
but have permitted the faifl felons to ^fcape, in contempt of ouf
faid lord the king, and to the great damage of him the faid Jobn
Wbihvorib^ and againft the form of the (latute in fuch cafe made
and provided : and alfo that afterwards, to wit, on the day and'
year firft abovefaid, two other malefa£lors, to the faid John
Wbitwortb Unknown, in theking^s highway at (he faid pariih of
HoclwoU mtbWilUn withiii the. faid hundred of Grimfboi in the
faid county of Ncrfoik^ with force and arms aflaulted him the
hid Jobn fFbittuertbf and felonioufly took and carried away from . ,
the (aid J$bn Wbittoortb other monies of the faid Jobn Wbifwortb
to the, value of 82 A 12/. 94/.. and alfo other thiee canvas purfea
of the value of one (hilling, and one other fi^vef watch of the' .
value of five pounds, of the proper goods and effects of the faid
*jfohn Wbitwottb then and ther^ found, ag^iinft the peace of out
laid lord the king ; and the faid Jobn Wbitwortb immediately
after the felony and robbery laft mentioned was committed, to
wit, on the fame day and year, at the village df Mctbwold in the
hutidred aforefaid, near to the place where the faid laft-men- ^
tiooed robbery was committed, made hue. and cry of the faid
robbery, and gave notice thereof to the inhabitants of Metbwoli
aforefaid, and alfo with as much convenient fpeed as might hfi
after the faid laft-mentioned robbery was committed, to wit, on
the fame day and year, at the town of Brandon in the county pf
Sifffoiif near to the faid hundred of Gnm/boe^ and near to the
place where the faid laiV mentioned robbery was committed,
gave notice thereof to Jobn Newton^ then a conftable of Brandon
aforefaid | and to the Uid notice fo given to the faid conftable
defcribed, as far as the nature and circamftances .oF the cafe did
admit, the laid laft-mentioned felons, and the time and pbce of
the faid laft-mentioned robbery, and alfo within the fpace of
twenty days next after the faid laft-mentioiied robbery was com-
mittedy to wit> on the a4th day of Fohruarj in the year aforefaid,
caufed public notice thereof to be given in the London GazetUg
and therein defcribed, as far as the natuae and drcumftances of
Ac Qo£c did adfltiiti the iaid laftnoentioned felons, and the timet
and
io8 . Trinity Term^ 32 & 33 Geo. II. ly^p.
and place of the faid laft-mentioned robbery, together with the
faid lad- mentioned money, goods, and effects whereof he the
faid John Whitworth was fo robbed, as is laft abovementioned j
and afterwards and before the day of the ifiuing of the original
writ of him the faid John Whitworthy to wit, on the twenty-fifth
day of May in the year aforefaid, he the faid John Whitwortb
went before William fVardy deputy to George Greene then filazer
of the faid county of Norfolk^ and entered into another bond to
John Stallon and John Frofty then h^gh coi>ftables of the hundred
of GrimJIjoe aforeUid, in the penal fum of loo/., with two fuffi«
cient fureties, to wit, John Booth and William Wlldman, approved
by the faid W'illiam Ward^ with condition for fecuring to the faid
high conftables the due payment of their cods, after the fame
fliould be taxed by the proper officer, in cafe that he the {ziAJohn
IVhitwortb (hould happen to be nonfuited, or (hould difcontinue
his a£tion in tliis behalf, or in cafe that judgment (hould be given
againft him on demurrer, or that a verdi£t (hould be given
againft him thereon, according to the dire£lion of the (latute in
fuch cafes lately made and provided : and the faid John Whit-
worthy after the faid lad-mentioned felony and robbery was com-
mitted, and within twenty days next before the day of the ifiuing
of the faid original writ of him the faid John JVhitworthy to Wit,
upon the i6th day of May in the fame year, was examined upon
his corporal oath before Andrew Taylor efq. then one of the
jiidiccs of our faid lord the king, afligned to keep the peace of
our faid lord the king in and for the faid county of Norfill^ in-
habiting near unto the faid hundred of Grimjhoey according to the
form of the datute in fuch cafes made and provided } and the
faid John Whitworth upon his faid oath then faid, that he did not
know cither of the faid pcrfons who committed the faid robbery
lad mentioned, and forty days and upwards have pafled (iiice the
faid lad-meiitioned rohbery was committed, and the faid j)ublic
notice thereof given in the faid London Gazette^ and before the
iifuing of .the faid original writ, yet the faid merri inhabiting with-
' in the faid hundred of Grimfjoe have not hitherto made amends
to the faid John Whitworth for the fi^id lad-mentioned robbery,
nor have taken the bodies of the faid lad-mcnlioned felons, nor
the body of either of them, but have permitted the faid felons to
efcape, in contempt of ouf faid lord the king, and to the great
damage of him the faid John Whitworth^ and againd the form of
the datute in fuch cafes made and provided, whereby the faid
John faith that he is injured, and hath damage to the value
of one hundred and fifty pounds *, and thereupon he btings
fuit.
piea Not And the faid men inhabiting the hundred of Griwjboe afore-
fuiity. fajtj^ by Robert Moxcn thenr attorncfy, come and defend the forcci
and injury when, Isfc. and all contempt, and whatfoever, i^c. and
fay, that they arc iti nowife guilty of the premifes above laid ta
their
Trinity Term, 32 & 33 G^^.il. 1759. 109
tbeir charge, againft the fbnn of the faid ftatates, as the aforefaid .
John Wbitworth^ who as well| ^c. above complains againft
them ; and of this they put themfclves upon the country , and the
faid John likewife.
At the trial of this caufe the following cafe was made for the
opinion of the court of Common Pleas.
HILARY TERM,
33 G^(?.IL 1760.
Whitworth qui tam, &c. verfus The Hundred of
Grimfhoe in Norfolk. C, B.
IN an action upon the ft^tutes of hue and cr%^ wherein the naeaadcry.
plaintiff obtained a vetdi£l for 85/. \6s»ga. damages an4
40/. cods at Norfolk fumroer a(Czes 17599 on the iflue tried
before Mr. Juftice Denuifon^ fubjedi to the opinion of the court
upon the following cafe.
Upon evidence it appeared that on the 13th of February 1759, Ctfe for the
about half an hour after four o'clock in the afternoon, the plain- opiaioa of
tiff fet out on horfeback from Brandon in Suffolk for JVeft Wyncb ^ '^'^'
near Lynn in Norfolk^ and after having paflcd through Weeting^
(a village about a mile from Brandon^) and gone about two miles
beyond Weeting^ .he was flopped on the highway in the evening
while it was light, about five o'clock, by two men on foot in
failors' habits, unknown to plaintiff, who had large clubs in their
bands, one of which men caught hold of plaintiff's horfe's bridle,
and demanded his money \ and on plaintiff's (Iriking him with
the great end of his whip, he fell down with his arms entangled
in the bridle, and the horfe fell down, upon which the other
man (being the tailed) then knocked plaintiff off his horfe with
^ club^ and gave him feveral blows oh the head, which dunned
him for fome time, and then the faid two men robbed him of
%^L izs, 9^.. in money, confiding of 36/. pieces, mojdores^
half moidoltSj i^/«pieceS| guineas, and half guincaSi in three
' canvas
no HlLAHY Tbum, 33 Grfl. ir, 176a
canvas bagf or purfes, and fome loofe money amounting to
2t' 6J. in filTer, and fome halfpence) and alfo of fome other
money as hereafter mentioned, and sdfo of the faid three canvaa
bags or purfes, and a 41ver watch, the maker's name C/ay^ Lv^
JoTtf but the number forgotten* and the point of the hour-hand
' ^as broke off, to which was affixed a black ribband and a watch
key ; that one of the faid three bags or purfes was a double bag
or purfe, and that part of the faid money was at one end of
}t, and diat the other end was quite worn through, 4ind had a-
hole in it} that one of the faid men was tall and Iqily, had a '
brown woollen cap or bonnet on, and a blue jacket, was of a
frcttx complexion, had particular large red eye-brows, and full
ruddy cheeks, by either of which plaintiff thinks he could have
known him from any other perfon; that the other was a middle
fized man, of a dark complexion, had on a itarrow cut brimed
>hat bound round with black ferret, and a blue jacket; that they
turned his horfc loofe, and went off towards Hockwold nvith 1VU*
ton : that he followed his hoffe to Metknoold Lodge^ bein^ alxmt
a mite from .the place where the robbflj was committed', and
which is in the pafifli of Mitbwold^ and about a mile from the
• town of Mrthfvod in the road from W^ingto Wefi Wwch ^
but being much'bruifed and weak thrbogh lofs of blood, hp wa9
half an liour in getting there ; and that at the faid lodge be g-^e
notice to ^hwias Hepwofth^ (who lived there, and who from the
defcription given by the plaintiff faid he had fcen the robbers tha|
day in the way to Bravdon^) and to (jj^veral other perfons then
afferobled there, of the faid robbery, and defired fome of the
faid perfons to purfiie the robbers, but chat npbody cared to gi>
as the night was comjiig on ; that thereupon the faid Thambs Hi^
worth helped him to his horfe, and advifed him to go to Meibr^
wold, (being then the nearell village or town,) which is aboul
a mile further on towards Wefi Wjnchf and get people to go after
^e robbers, but that the plaintiff knowing Mr. Ojborn De^on^Jen.
of Wertitfgf whom be knew to btr an adive man. turned back and
went to W^eeiirrg with O/horfj D^ton^jun. his fon, and fome
pther perjfops who were at Methwold Lo^e^ but tfoat OJhsrm
Dtnion^fen. not being at home, he ^here call^ at two alehcHifes^
and told feveral people of the robbery, as fet forth, in the Ga^
That it appeared in evidence tjiere were two eonftables in Wttf^
frrg living near the road fide where plaintiff paffed, but A>t he did
uot give any notice of the robbery to either of them, nor leave any
notice thereof in writing at c ither of their houfes, but the plaintiflT
did not know lior had been informed that there were fuch con-»
ftables till after he arrived at Lynn the day afterwards ) that from
Wetting he went immediately back to Brandon^ the next parifli to
and about a mile from Wetting, and arrived there lAueh. difofdered
Wifh hit W0^adi9 Ms gf bl9P4, and Utij^t^ at ^ qAe fteri/m ^
Hilary Term, $iGeo. II. 176b, n 1
betveeo 6 and 7 o'ciock that night, ami inmediaitely toU one
John Hookbam of the robbery, ai^ ordered him to go and parioe
the robbers, and take what method he could to apprehend them, at
hb ezpence ; that thereupon Hookbam^ with a foldier who was f ur«
nifhed with a horfe by plaintiiF for that purpofe, and who is^ now
on duty in the armv, went to Weeting^ Wtkon^ HeckwoH and
SebfOiUf and fearchod about thofe towns for the robbers, bnt
could not find them ; that when Hookbam was zt^ebwel/^ which
if fire miles from Brandon^ and not before, he inquired for and .
told.one Ambrofe Wbitemany the conftaUe of that parifli, of the
robbery in the manner defcribed in the Gazette^ and alfothat im-«
mediately after plaintiflF's arrival at Bramdon, he fent one 7obf$
Bnwn^ the hoftler of the faid ino> for Jcbn Newtoa^ one of the
confta&lea of Brwtdonf to inform htm of the robbery; that the
Dud Brown went to the fsid conftable's houfe and called at the
window, and aflced for the faid Jobn Nnvton s that a perfon,
whom by the voice he took to be a woman from within the faid *
houie, a(ked what he wanted with him, to which the faid Bfwtm
anfweted, « I want to tell him that John the drover, (who waa
^* known to Nifuton^ has been robbed, and wants him ;'' and
dierenpoa the faid perfon within replied that the faid Newton
was not at home ; that the (aid Brown returned and toM plains
tiff that Niwton the conftable was not at home ; that pUintiff
did not inquire for any other conftable of Brandon^ though there
was another conftable of that town, (one Seeker,) but who had
nerer a£ted in his office, and the plaintiff was iK>t informed of
him |ill the neat morning; that the plaintiff being that morning
abobt feven o'clock, it die furgeon's who dreffed his wounds^
Newion the conftaUe came to him and told him that he had
beard that the plaintiff had been robbed, and had fent for him
(Newion) the night before, and was forry he was not at home ;
mat thereupon plaintiff gave Newton an account of the robbery
as in the Gazette : that that morning^ in order to make out the
exa£l ftt« he was robbed of, he not being able to write or read,
fent for one Mr. Jobn Brew/ler to reckon up his money, ^from /
his written account^ or marks,) and on fuch reckoning he round
that he bad been robbed of 82 /,. 12 /. gd. ; but that two days
afterwards, and before the tfotice in the Cazotte, upon further
retolleAion, plaintiff difcovered that he had been robbed of
a/. i6/« in one parcel and 1 /. 10/. in another parcel, over and
above the laid 82 /. iaA9^.> which fums were likewife con*
tained in the laid three canvas bags. That it appeared further,
both from the examination of the plaintiff and the evidence of
the two eonftaMes of Weeting^ that if notice on the night of the
robbery had been given to them thereof, in order to make im«»
mediate purfuit after the Vobbers, and it had been known the
robbery had intended to pafa ihe river, (as the jobbers who were
on foot made their way toward ffockwo/d with Wlbon, which
vil|^ is ib boutided bv a rivet that it could not eafily be got
over
X 12 Hilary Term, 3^ Geo. II. iy6o.
over but by a ferry,) there was gscat probability that the rob-
bers might have been taken that night«
^ That the plaintiff on the 24th of the fame February publiflied
an account of the robbery in the London Gazette^ in the woids
and figures following : '< Notice is hereby given purfuant to an
*f a£l of parliament niade in the 8th year of the reign of his
'< ptefent Majefty King George the Second^ intitled. An ad
<< for the amendment of the law relating to adlions on the fta-
« tute of hue and crj^ That John lyhiiworth of the parifii of
« Wejl Wynch in the county of Norfolk^ drover^ on Tuefday tlic
" 13th day of this inftant, February 1759, about five of the
<< clock in the afternoon of the fame day^ on the king's highway
*^ lead^g from Weeting to Metbwoldin the faid county^ between
/< the 82d and 83d mile ftones in the high road leading from
*< London to Lynn in the hundred of Grimjboe in the pariQi of
<< Hockwold with Wilton^ or Feltwell^ (but the faid John rather
<< thinks it in the pari(h of Feltwell^ being fo lately ipformed,)
** in the faid county of Norfolk^ was aflaulced, wounded, (lopped,
<< and robbed by two men on foot unknown to the faid John
<< Whitworth^ in failors' dredes, one whereof was a tall Tufty
. " man of a frefii complexion, had a brown woollen cap or bon-
<< net on, and a blue jacket % and the other a middle-fized man
** of a dark complexion, virearing a fmall brimed hat and a blue
" jacket, who took from the faid John Whitviorth 82/. 1 2/. prf.
•* in money, moft part whereof was in guineas, the reft in Pot-
*' tugal pieces, fome filver, and fome halfpence, and three can-
" vas bags or purfes, in which was contained all the faid money
«* except fome filver and halfpence, which were loofc in his
<< pocket, and alfo a filver watch, the maker's name C/^y, Lon*
•« don^ to the beft of the faid John Whitworih\ remembrance,
<< number forgot, but the point of the hour-nand was broken
<<< off, with a black ribband and the watch key, and then they
<< made off towards Hsckwold with Wilton aforefaid towards
«* London% and by the defcription the faid John IVhitwortb re-
<^ ceived afterward by inquiring believes they went for Xoff^A."
The plaintiff was examined, gave bond, and commexiced his
a£kion within the time limited by law, and neitbgr of the felons
. have fince been apprehended* ,
The queftions referved for the confideration of the court art,
xjly Whether there was fufiicient notice giyen of this robbery
to enable plaintiff to maintain hi» aAion f
2 J, Whether the perfons who committed the totbery, and
the money and things of which the plaintiff waa robbed,
were (uihciently defcribed in the Gauttt f
■ This
Hilary Term, 33 Geo. IL 1760. 1 13
This cafe was argued In this term by Hewitt the Kinfs Sei^
jeant for die plaintiff, and Serjeant F^^er for the defendants.
t. It was infifted for the plaintiff, that confidering themifer^
able fitttation he was in, after the . robbery, he, with as much
coarenient fpeed as might be^ gave notice of che robbery, botk
to the inhabitants of a village near the place where the robbery
wu committed, and alfo to a conltable of the hundred of Grim*
Jboii according to the ftatates of 27 £/»• r. 13. / it« and of
the 8 Ge9. 2. r. i6« / i» And to fliew what notice was fnffi*
ctent for pbtntiff to ground his adton upon, were dted 4 Idon^
18, 19. //. 63. Jffjr 155, 156. M^ch fo, p. 28. aAU. 4;«
I %hvm* 94. And to (hev what is a good notice within tbo
fat. 8 Gi9. a. r. 1 6. cited a &tra. iiyoi lHj^ It was argued
for the plaintiff, that the felons, the dme, pluce, and the goods
and eSe£b, were fuflkiently defcribed in the GaxetU.
For the deiendant it was infilled, that the whole fum whereof
' the defendant was robbed was not mentioned in the Gazette $
and 2dif9 that a very material defcription of one of the robbers
wbofe eye-brows were fwom to be red (on the trial) was not
taken notice of ui the Gazette^' ytKicYi was much infifted upon
by Serjeant Fofter as moft material for the defendant \ and of
that opinion was the court, and gave judgment for the de-
fendant.
Sandford verfus Rogers, ETq. C B.
THIS was an a£^ion upon the cafe upon promtfes. The de- Noi tki ic
fiendant pleaded a recovery in jB. R. in bar; the plaintiff ^'^'^
replied nul tie/ record ist hoc paratus efi vertficare^ ice* i the defend- ^ of rco-^
ant demurred, and (hewed for fpecial caufe that the averment Tcrylni.R.
in the replication was ill. dudw^ddi
tn aver*
iPsf/r for the defendant infifted, that when the plaintiff had nent, and
replied nul tiel record there was a complete iffue joined, and that ^*
it ought to have concluded with giving a day to the defendant to
produce the record, and not with an averment, and this being
ifacwn for caufe of demurrer, the replication is bad ; and to prove
this, cited f Barms 240.- and CooWs PraUice in C. B. $6. as
dirc£lly in point ; and fatd, that unneceffary prolixity in plead-
ings was to be difcountenanced { thai this was the fame thing
in €tk& as if a defendant was to plead the general iffue, and con-
clude with an averment inftead of going to the country*
Hewitt tat Ac plaintiff-Tbe law of pleading is to be deter-
mined by precedents, and therefore I have looked into the booka
of entries wl^ muft govern, or the rules ^ pleading will be at
VoL.IL . I . iea^
|X4 , HitAny TjiftM^3^G^*H. 17604
ibft. Iir M^s Emrih^fil. 7« 1 8a* 39 j. 404^473^ 498. tke plea
or xcplkatkm of mil hei record it concluded with an aTtrment 1
fo is a Latvia 945. and the precedents are uniformly fo, where
die record pkiftied ia^of afiother eotirt ; but whete it is of a re*
odrd of the fame coart» I do own there are fome pc«cedeQC»
liliere the coadiifion is to the record, and not with an averment.
\ Lti^ttofm* 550. Crimer v. Jftckett^ Cartievf 5 1 7. S. C. ; and
MkCaHti. 517. Dyer 127, 228. 3 Lev. 243. 2 Salk. 566*
Mo$r V, thi^ Ball of Garrett. Hence it appears that the preeedenta
are id fikvour of tne cdnclttfion with an averment when the. record
.|rieaded is of another co«rt. Noia ; The cafe in Cooie*% book
ibes not fay whether the reo3rd pleaded wa^of this or another
codrti and in anfWer to 1 Barnes 240. he cit^d Comyiu ^23'
NwtbBrf ▼• Strudwick, > . *
Poole in* r^ply-^Many precedents have been cited w^ich art
certalplv fo as my brother Hewitt ha$ faid \ but furely there are
i^ infiiiiti^ tiumber of pr^cedetits in the books which at this time
^Wtnxld be heidV^ry i)I| as in trover a variety of fpeeial pleas may
be found which now wdold be very bad> and held to amount to
Ihe gentral iffu^ : what I relv upon is^ that there was a com*
|)Iete iffiic withoii^ any rejbhiden ^
The court {dlfente C. J.) were of opinion that the repltcatioa
was very vrelli efpecially as this was a record of another court ;
and fecmed to think that either way was well enough.
Judgment for the plaintif.
Tiadall vcrfus Moore. C. B.
Wff^i.. ^}|IS was an adion of flander upon fcverat fets of word$
^ fpoke by the defendant of the plaintiff i verdi^ for the
l>h{ntiflFii|tei tKe firft and fifth fets of words, damages 40/.
ftSbo.77.f. '^^ fitft fet were thefe, That rogue Jo. Tindall (meaning the
Skia. 183. platatiiF) that fit the boufe on fire (meaning die fuouner-hottis
that was bumt^ in the occupation of one Mr^ Cotton) \ and ifaoy
Mf witf ^h/e-nft^iargeof bintj I will carry him to New Prifiti%^^
The fifUi iet of w:onte were thcfe : Jo* Tindall (meai^g the
. plaintiff )^i&i^^a»^^ (meaning the fame houfe).
It Was now moved in ori^ft of judgment that the latter fet of
words were not adionafaie, for that every count in a dedaratioa
ifl'a fubftantive count, and the t»/7itf»^<? (meaning the fame houfe)
ihan'not rehfie to the fvinner-honTe mcniioBfed id. the fell kl ^f
words;
Per
HfLA^jTETLU^$$QfO.Ih 1760. |I^
Per curiam — Although the latter fet of words be not of theoH
felves a^Uonable^ yet they flial) have relation to the former fet $
and we mnft take them to have been fpoken mJkuuJly^ as the
jury hare foand for the plaintiff.
Judgment for plaintiff. Davy for the defendan^t l^arts for
the plaintiff.
WaUs plaintiff, Birkett deforcient. C. B.
^HIS fine was fet afide and vacated after it had pafledal) the p^nofor
^ offices and was completed, becaufe the conufor- died before ^^' ^^^
the return of the writ of covenant, as appt^red to the court upon of th^t
affidavits. Ftr curiam — ^The crown has a right to the pojifine at of covenant.
the return of the writ of corenant, giijd not before, and the ^^•^ siiift.4Xi..
fine is for licenfe to accord, and is the kin^sfilveri die prcfine ^,\^(6,
is not the hin^tjilver^ (b that as the king's filver became diie and The poftfios*
was paid <^r the ddah of the con^ibr, the fine is void; and Ji'^^]^^
therefore though it has p^^ed throi|i{>h i\\ the o$ces we will fist thl^^elf'
' it afide, an4 not' put the parties to the trouble an4 expence of g ^
^k %A error. Vid4 Barnefs Supplem* 3 a* Barber v, HsffOff
Holdfaft ver/us Morris^ C B^
'T'QIS was an a£tion of trefpa& brought agafnft the tenant la la an aai:»^
^ poffefliop for the n^efne profits (after a judgment againft the ^^^ ^
iSifual ejeftor) ; for it was lately rcfolvcd by 4II the judges, that ^Tu^
this a^on lies for the mipfne pro6ts from the time the tenant ia Rc<»very in
poflcflion has notice of the Icffor's title, though the tcnapt lets ei«^n«nt»
jpdgi^cni eo by default, and his name does not appear in the ^'^^pw*
lecord pf the judgment ngainft the ^afual eje&or. money bi?
COQJt.
Now it was moved' by Serjeant Hevnit for ^e defendant for
leav^ to pay a fum of money into court, who ^compared thb aAion
to 90 a&iou on die cafe for jthe ufe and occupation, in whidi
a^ion money may he paid mto court. &ed per Mam curiam'^
This is ^efpais for a t^iaus occupation, but the a^^ion on this ^
.cafe is upon a contraif either expreffed or implied, and denied
tlie motion -, smd it wa^s (aid the lifct ujtotion^ hiid been latdy dcr
f?
I "6 ]
E AST E R TERM,
^^ Geo. IL 1 760/
Bayley veffus The Univerfity of Oxford. C. B.
Aicfeovery. rT^HE qucftion in this cafe was, Whether a common reeoverj
^•^J** ?^ A fulRrcd of an advowfin in grofs^ and one acre of land on
l?^ft tJjr * ''^^ ®f ^"^ y*^ ^'JS^w w l^pofi% was good in pqint of law ?
MttmoT Upon featclung for precedents! fixteen were found where reco-
'^^^f * veries of advowfons m grofs, and a little land had been fuffered
tnfw^rl upon wriu of entry /vr Sffeifin in h pofi^ and no cafe was to be
Mfio in le found where fnch a recovers was ever held bad ; and Dormer's
fiftfUgood. ^jifg ig in point* And the court rcfufed to hear any argunaent
againft this recovery ; and fatd, that if this- was res ifUegra^ it
might not be right, (perhapS)) yet fiod fieri non debuit ^aHum
valit. And the court gave judgment for the ptaintiflF} vtz^ that
the recovery was good» without argument.
Cooper verfus Sherbrooke, Elq. in Replevin. C. B.
Hmrttit 111 'T^HIS was a judgment' of nonfutt for want of a declaration,
Mflevla, '*' and a writ de retorm babend^ was awarded the 1 2th of Ju}j
sccuted a '759* ^° ^^ ^^ °^ OEtoher following the plaintiff* fued out a
writ of in- WHt of fecoud deliverance, and afterward the avowant executed
^airy after t a writ of inquiry of damages } and now it was moved by Htvntt
eood^iU^ and Davf Serjeants for the plaintiff", that the writ of inqimj was
v«rattce,aad fuperfedtti by the fuing out the writ of fecond deliverance ; but
|ood« upon {hewing caufe, it was anfwered by Whiiaher and l^ates
Serjeants for the avowant, that although a writ dt retortiQ babendo
was awarded, (which is the common courfe in the cafe of a
judgment of nonfuit in replennn^) yet by the fiat. 17 Car. a.
c. 7. the avowant had his eleftion to fue out a writ of inquiry
of damages to recover againft plaintiff the ai^rearages* of rent,
and that although a writ of fecond deliverance is a fiiparjedeas to
the writ dt retamo habendo^ yet it is not a fiiperfideas to the writ
of inquiry/ agreeable to the note in Pabn* 403. and of that opi-
nion was the whole court, and difcharged the rale to ihcw caufe
why the writ of inquiry and the inquifition taken thereon Ifaould
not be fuperfedcd.
And
Eastsr Tekm, 33 Geo. U. 1760. 117
And Bathurjl]. Taid, dnt bjr the Jot. 17 Car. %. thelegjflatai^
intendedT that the proceeding upon that ftatute bj writ ofinfttiry^ -
ferifadasy and tlept^ (hould be final for the avowant to recover
his damages, and that the plaintiff was to keep hit cattle, sot-
with (landing the courfe of awardinjr a writ de retomo bibtndo^
which is a right judgment \ for the (latute hath not altered the
judgment at common law, but onlv gives a further remedy to
die avowant. Fide Cartb. 253. JJjLt t. LaJi^ t Sa/L 95.
Latch 72. and F. N.B. ij6, margine. ^y^tre^ Whether the
writ of fecond deliverance in this c^Te is not taken awaj by ^
ilacBte?
Lowfield verfus Jackfbn. C« B.
^HE plaintiff declared in covenant of laft term: the defend- Pinafae.
-* ant obtained a judge's order for three weeks time to plead, ^^^}^
and on the firft of March laft obtained another order for one pi,^ ^
week's farther time upoii pleading iffuably and taking ihort no- ably by m
ticc of trial for the then next affixes if neceffary. The defenit T^^^
ant pleaded a recovery in another courts whereupon the plaintiff ^^^
figacd judgment ; and now it was moved to fet aCde the judg« *
tnent by Serjeant Davj^ who infifted that the defendant laA
complied with the terms of the judge's order, and that this wat"
an ifluable plea, iut per curiam — Although this be an iffuable
plea within the letter of the judge's order, (yet it is not fuch with-
in the true intent and meaning of it, which was to fpeed. the
plaintiff in the trial of his caufe by the country,) and although
we will fet afide the judgment, and the plaintiff (hall reply nul
tid record^ yet if it be not produced within the proper time there
ihall be judgment for the plaintiff, and the defendant (hall be
bound to take (liort notice of executing a writ of inquiry within
the prefent term. Hewitt Serjeant for the plaintiff, Wednefdaj
30th Aprils being the 8th day in term.
Atkinfon verfus Taytor. C B.
f T was moved to fet a(ide a a^ias ad rej^dendum^ becaufe there Pndice.
-* was not' fifteen days between the iejle and return thereof) to 2!T7<Sjf
this it was anfwered« that it is error, (if any thing,) and not an bcfwM^ulbt
irregularity j to prove which was cited i Barnes 295. Williami tifte and w-
V. Faulkner. , Bat, per euriam^ this cafe wa$ over-ruled, and the iSTJd ilT*
capias fet afide, but without Cofts* rpQadendum.
13
ii8 EAstER Term, 33 Cfed. II. 1760*
Reppington, Executof, yerfus The Guifdlatii hiA
Qovernors of Tarn worth School.
t)edantioa |N tfuan nt^idit of a donative vicarag^, the defendant craved
tei^S^ V^ °f *^ original writ, which ht fet forth in his plea, and
inehied. fiifcwed a Variance between the writ and the coudt } and now it
1^ moved for leave to amend the declaration, which itraa granted
on payment of co(ts« and the defendant i$ to plead it mn»k
' Hevntt for plaintiff, PwU for defendant. .
feobins, Widow, verfus Criitchlcy and his Wife and
another in Dower.
Declaration
Ih dower.
Entered among fhe pleoi of land ffibis ierm. Roll 44,
Biajfordjbtrey j^^^ Robins widow, who was the wife of JAh
to wit, -^ Robins efq. deceafed, by Thomas Taughan her
attorney, demandeth againft Broole Crutchhj^ Catharine his wifb,
and Jane Robins fpiiifter, the third part t>f thirty mefluagesyfiftf
bams, fifty (tables, thirty orchards, thirty gardens, three hundied
acres of land, two hundred acres of rtieadow^ and three hundred
acres of padure, and common of palture with the appurtenances
in Bil/lonj Wolverhampton^ and Willett^halt in the faid county of
Stafford ; and alfo the third part (Sf nine coal-mines in BilfitM^
Wolverhampton^ and Wlilen-hall zforefTLtd, as her dower of the
endowment of the faid John Robins heretofore her huA>and, by
Vftit of our lord the king of dower whereof (he hath nothing, b^c.
hea. And the faiJ Brooie, Catharine Kis wife, and Jane, hy Robert
Pardoe their attorney, come and f^y, that the faid jInn ought not
to have her dower in this behalf, as having been the wife of the
ift, Ne on- faid John Robins deceaf.'d 5 becaufe they fay, that the faid Jnn
joji Kcou. jjgypr ^ag accoupleJ to tlie faid John Robins deceafed, in lawful
matrimony 5 and this the faid Brooke^ Catharine, and Jane arc
ready to verify ; wherefore they pray judgment if the faid Ansi
ought to have her dower of the tenements, common of {Uftate,
and mines afon:f<ii(f ; and the faid Brooke^ Catharim htS wife^
and Jane^ for further pica in bar, by leave of the court here for
this parpofe firft had and obtained, according to th6 form of the
ftatute \n fuch cafe lately made and provided, fay, that }ht fiid
Id, Piea,ne Ann ought not to have her dower of the tenements, comoion ef
JJ? W^' pan:ure, and mines aforefaid, with the appurtenances, of the
^ ' endowmerit of the .faid John Robins deceafed, becaufe they fay
that the faid John Robins deceafed, neither on the day OQ which
he
£ast£& Teum, 33 G€o. !L tyCo. 1 19
he is above fuppofed to have efpou&d the faid jtmtf nor at any
time afterwardsy was feifed of the tenements, common of pat«
turei and mines aforefaidi with the' appurtenances, whereof, (fc»
^ fuch eftate whereby he could therqof endow the faid Amtf and
«f this thej put themfeives upon the country.
Add the faid Jrm faith, thnt as to the Ciid plea pf xhc faid Jj^**
Bndte, Catharine his wife, and Jane^ by them firft above pleaded J^^ *
in bar, fte the faid Ann^ by reafon of any thing in that plea tfaccowtof
above aliedged, ought not to be barred from having hqr dower A^ dw^tby
«forefaid, as not having been the wife of the (aid John Robins^ aatwMtlM*
becaufcffiie faith that heretofore, to wit, on the twelfth day itf wileMilit
fiktuary in the year of our Lord 1754, in the court Chriftiao Jl]"?*?
held at Liicbfieidin the county of Staffhrd^ before the worfhtpful yJi^
Rkbard Smalbrooke^ doflor of laws, official principal of the righl
Tcverr:nd fnther in God Frederick by divine permiflion lord biOiop
ofLkciJUdznd Coventry^ one Sir fFiiliam Wolfetej^ bart. did im-
plead the faid Ann in a caufe of divgrce by reafon df adultery^
and did then and there in the (aid court Chriftian exhilut a
libd againft the faid Ann^ thereby charging and alledging that
Che*l^id A*m was the wife of him the laid Sir Willam Jfylfrliy,
and thereby alfo charging and alledging that fhe the faid Ann
had committed adnkery with the laid^&f Roiini after fhe was
the wife of him the faid Sir WMiam WQiJiley; and the faid fiir
WllSam Wfilfelej did by his &id libel, amongft other thin^^s,
pray that the faid Ann might be divorced from him as his wife
from bed and board and mutual cohabitation^ by reafon cl*
sdaltery virtth him tlic faid Toi/i RMnsi to which faid libel .
fte the faid Ann did plead m har» that (he was fhe lawful
wife of him the faid John Robins^ and not the wife of the faid
Sir WHltam Wolfelej^ and that (he was lawfully married to hini
the faid John RobinSy according to the rites and ceremonies of
the church of 'England^ on fhe f6th day of Juni 1752, iii
the parilh^huTch of Qaftle in the county of Stafford^ and by
her (aid plea in bar did pray, amongft other things, that fhe
ttight be decreed and prdiiounced to be the lawful wife of
him the faid John Robins^ and to have been lawfully married to
him on the faid i($ch day of June 1752^ and fuch proceedings
were had upon the faid libel and plea in bar ; that afterwards and
before any definitive fentence was pronounced in the faid court
Chriftian of the faid bifhop of Uutjle/dznd CTvintry^ to wit, ott
the 24th day of June in the year of our Lord 1 754, the faid caufe
was removed into the Arches court of Canterbury before Sir
George i^ee^ knt. do£lor of laws, official principal of tne faid court
of Arches, by proper and legal procefs which iflued out of the
faid court of Arches for that purpofe, upon the appeal, and at the
jnftance of her the faid Ann, but before any definitive fentence or
judgment was gi\;en or pronounced in the faid caufe by the faid
court of Arches, to wit, on the 31ft day of December in the year
I4 of
I20 Eastbh Teum, 33 G^. 1L 1760^
of our Lord 1754, he the faid John RoUns died, to wit, at Si^crd
in the county aforefaid ^ and afterwaids, to wit, on die firfTday
of December in the year of our Lord 1757^ the faid caufe came
on to be heard, and the queftion put in ifltie by the faid plea,
"Whether (he the faid Ann had been the lawful wife and was then
the widow of him the faid John RMm f came on to be determined
by the faid court of Arches ; and the faid Sir George Lee^ judge
of the faid court, did on the firft day of December in the year of
our Lord 17 57, upon full evidence and hearing of advocates and
proftors on both Gdes, by his interlocutory decree, having the
form of a definitive fentence, pronounce, decree, and declare,
that (he the faid Ann bad been the wife, and then was the widow
.of him the {aid Jehn RMas^ and was lawfully married to him 00
the 1 6th day of Juw 1 752, to wit, at the pariQi-church of Cajk
in the T^id county of Ztafford^ which faid fentence is in full fonre
and eSed, not reverf^d, vacated, or otherwife annulled, as by the
faid proceedings and fentence remaining in the faid court of
Arches at DoBqts Comnionj in the city o{ London may more fully
and at large appear ; and the f^M Ann doth aver, that the faid
court of Arches had full jurifdi£tion of the faid caufe, and that
the faid fentence was fairly and juiUy obtained upon fuU evidence,
and upon h^arins of advocates and pro£lors on both fides ; and
the faid Ann dotn aver, that Ann Robins^ mentioned in the iaid
libel fo exhibited by the fiiid Sir William JVolfeley againft the faid
Ann as aforefaid, and the faid Ann^ the now demandant in this
adion, are one and the fame perfon, and not difierent perfonst
and that the faid John JS-obins^ mentioned in the faid libel, and
alfo named in the -faid fentetice of the faid court of Arches, and
the faid John Rohins^ the hufband of the faid Ann in the faid de-
claration mentioned, is one and the fame perfon, and not difier-
ent perfons \ and this the faid Ann is ready to verify ; and there-
fore prays judgment fot her dower aforefaid, and if the faid fen-
^ tence can be gainfayed \ and whether the faid Brooke^ Catharine
. his wife, and Jane are not eftopped by the faid fentence to fay
that (he the faid Ann was never accoupled to the faid John tbh
bins in lawful matrimony; and as to the faid plea of the. faid
. Brooke^ Catharine h\s wife, and Jane^ by them fecondly ^bove
pleaciCil in bar, whereof they have put themfelves upon the coon-
try, ihc the faid Ann doth fo likewife.
Demantr. And the faid Brooke f Catharine his wife, and Jane^ as to the
f;itd plea of the faid Ann above in reply pleaded to the (aid plea of
the f lid Brooke^ Catharine his wife, and Jane^ by them firft above
pleaded in bar, fay, that the faid plea in manner and form as the
fame is above pleaded by way of reply, and the matters therein
contained, are not fu(Bcient in law for the faid Ann to have her
dovvcr of the tenements, common of pafture, at)d mines aforefaid
in this bchiif, as having been the wife of the faid John Robins de-
ccafed } to which plea>in manner and form aforefaid above pleaded,
by
Easteh Teum, $^Geo. IL 1760. lai
hf way of rq>iy they the faid Broohf CMtbarim his wlfe> and Jane
need not, nor are they obliged by die law of the land to anfwer
thereto ; and this they are ready to verify; wherefore, for want of
a fvfficient replication in this behalf, the faid Brooke^ Caibarint his
wife, and Jane^ as before, pray judgment if the faid Ann ought to
have her dower of the tenements, common of pafture, and miiief
aforefaid.
And the faid Ann^^i^ct that (he hath above, by replpng to the Joioder Im
plea of the faid Brooke, Catharine his wife, and Jane^ firft above ^^^^''^
pleaded, alledged fufficient matter in law to have her dower afore*
faid, as having been the wife of the faid Join Robins^ which faid
, matter (he is ready to verify, and which faid replication and the
matter therein contained, the faid Brooke, Catharine his wife,
and Jane have not denied, nor in any wife anfwered thereto, but
the verification thereof to admit do wholly refufe, prays judg-
ment for her dower aforefaid to be adjudged to her, (9V. And Cvrlt mItT-
becattfe the juftices here will advife amongft themfelves of and ^^1^1^
upon the premifcs, whereon the faid parties have put themfelves x^,
upon the judgment of the court, before they give their judgmcQt
thereon, day is given unto the faid parties here until the morrow
of the Afcenfion of our Lord, to hear their judgment of and
concerning the faid premifes, for that the faid juftices here are
not yet advifed thereof, {9V. And as to the trying of the faid
. Jflue above joined between the faid parties to be tried by the
country, the (heriflT is commanded to caufe to come here on the AmuA of a
fame day twelve, tie. by whom, fie. and who neither, £5V. to veniw fifciii
recognize, Wr. becaufe as wcU, fSc. At which day here come (fli^to the
as well the faid Ann Robins by her attorney aforefaid as the faid cottntry.
Brooke, Catharine his wife, and Jane, by their faid attorney, and vicecoiqei
the (heriff did nothing upon the faid writ, nor did he fend back «^«ri fi<
the fame: and becaufe the juftices here will further advife ^^.
amongll themfelves of and concerning the premifes whereon the concilium
faid pardes havd put themfelves upon the judgment of the kourt on the de-
before tbev give their judgment thereon, further day is therefore «"'««•
given to the parties aforefaid here yntil on the oAave oi thc^Holy
Trinity, to hear their judgment o^ and concerning the premifes,
for that the faid juftices here are not yet advifed thereof, isfc.
And as to trying the ifliie aforefaid above joined between'the Alias w. fa.
parties aforefaid to be tried by the ceuntTT, the IherifF, as before, w««i«*.
is commanded that he caufe to come nere on the fame day
twelve, tfr. to recognize in form aforefaid i at which day here
come as well, the faid Ann by her attorney aforefaid, as the faid
Brooke,Catharinehis wife, and Jane, bv their £ud attorney, and the
iheriff did nothing upon thelait-mentioned writ, nor did he fend
back the fame ; whereupon the premifes aforefaid whereon the JiMigment
Dirties aforefaid have put themfelves on the judgment of the court ^!^^^
here having been feen, and by the juftices here fullv underftood, uw d"'* ^
and mature deliberation being thereupon hadj for tnat it appears m,
to
122
no Tefpe^k
being had to
tke irTue to
the country.
fcAstER Team, 33<?^e?. 11. 1760.
to the juftices here that the faid plea of the faid Ann Robvit
abore in reply pleaded to the plea of the faid Brooke^ Catharine
his wife, and Jane^ hj thenr firft above pleaded in bar, and the
matters therein contained, are not fufficient in law for the faid
Ann to have her dower of the tenements, eomnon oF paftnre^
aiM mines aforefaid ; therefore, no refpe£b being had to die iffue
aforefaid above joined between the parties aforefaid to be tried
by the country, it is confidered that the aforefaid Ann RMnt
take nothing by her wric aforefaid, but be in mercy for her falfe
claim therecrf ; and that the aforefaid Brooie, Catharine his wife^
and Jane do recover againft the faid Ann twenty-two pounds tw#
ihilltfigs and three pence, *for then' cofts and chai^ges by thcni
abont their defence in this behalf fuftained, to the faid Brooke^
Catharine his wife, and Jane^ by the court of our faid lord the .
king now here with their aflfent, according to the form of the
ftatute in fuch cafe made and provided, adjudged, and that the
faid Brooke^ Catharine his wife, and Jane h^ve thereof execution.
Dowtfr.
Marriage
mail be
trkJ by the
biihop^s €«•
lificaie.
Robins, Widow, verfus Crutchley and his Wife «kI
another. C. B.
DOWER of lands in the county of Stafford i the defendants
plead two pleas ; ift, Nejmque accouple in Ujal matrttnonie
t^ hocy &,c.\ 2dly, Ne unque fdjie (sf de hoc pon. fe ftfper patriam :
the plaintiSF replies to the fird plea thatfiie ought not to be barred
of dower, bccaufe (he fays that on the \% Feb, 1754 Sir William
Wolfeley exhibited a libel in the fpiritual court of Litchfield and
Coventry againd her as being his wife, charging therein that (he
had committed adultery with John Robins^ and prayed a divorce
from her a menfd tsf thoro, to which libel (he pleaded that (he was
the wife of John Robins and not of Sir ffilliam Wolfeley,^ and was
lawfully married to Rollins the 1 6th of June 1752, and prayed
thatlhe might be decreed to be the wife of Robins; and before
any definitive fentence in the court of Litchfield and Coventry^
viz. the 24th of y^w/f 1754, the caufe was removed into-the
court of Arches upon the appeal of the faid Ann ; but before any
definitive fentence in the court of Arches, viz>. the 3 ill of De^
cember 1754, the faid John Robifis died ; and afterwards, on the
1 ft of Decitfiber 1 757f the caufe was heard in the court of Arches^
and upon full evidence, and hearing advocates and prodors oa
both fides, the court agreed that the faid<^ff» had been the wife,
and then was the widow of tire faid John Robins, and waa law-
fully married to him on the 16th of Jane 1752, which fentence
is in full force; and the faid Ann avers, that the faid court of
Arches had full jurifdiftion of the caufe, and Aat the fentence
was fairly and juftly obtained upon full evidence, fe^r. ,• and (he
furthcx avers, that Ani2 Robins in the libel mentioned, and Ann
the BOW demandant, arc, one ^nd the fame perfon, and that
Join
EASf BR Term, 33 Geo. 11. t*^6o. tij
yoin RoUns mentioned in the libel and fentence aforefiiidj and
Jjm RMffs, the hulband of the faid ^110 in the declaration
aiehtioned j is one and the fame perfon $ and this (be is veadf
to rerify i and therefore prays judgment for her dower, and if
the faid fentence can be gatnfayed, and whether the defendants
are not eftopped by the fenttnee to laythat (he was never^ac-
Goupled to the (aid Jcbn SMns in lawful matrimony ; and as
to the fecond plea oi m unque fa/U^ ihe the piaintin joins ifluc
to die country.
The de£endsu)ts demur to the replication of plaintiff to the
plea of m u$$qu€ uce99fih^ and the plaintiff joins in demurrer.
l!1iis cafe upon the 'demurrer was argued in this prefent ternt
by Serjeant Hewitt for the demandant and Serjeant Nares (ot
the tenants.
It was infilled for the demandant th^t the fentence pronounced
in the court of Arches (touching the marriage of the demandant
with y^bn RoUns) having a competent juriinidlion of that mat-
ter, was an abfolute bar to, and concluded all perfons whatfoever
to fay they were not lawfully married* until the fame fliould be
reverfedy and notwithftanding that RMni was not partv to the
fuit in the fpiritual court i and to prove that this was the law^
cited 4 Rfp. 29. Buntinf^t cafe; which was thus > ^. Bunting
and Jignes Adingjbalt cantraQed matrimony p<r verba defirkfentt^
and afterwards, i December 15559 Agnes took to hufband Tbo*
nuu TweJe, and afterwards, gtb July 1^56, John Bunting li*
belled againft Agnes upon the faid contract (without naming her
huiband Tkmas Twede) for a divorce, topon a pre- contract be<*
tween the faid J. Bunting and Agnes^ whereupon Jecretum fuit
q^ioJ pradiBa Agnes Jubiret mutrimcnium <um pntfato J. Bunting
et infitper prenuncwtum decretum et declearatum fuit diBum nmtrimo^
kiutfifore nulhm^ &c. And further it was decreed that the faid
yobn and Agnes ihould intermany, which they did, and had '^
iffue the plaintiff (the faid Tkoimu TweJe then living). And
it was adjudged that although Twede^ then being, de foBo^ the
hufband of die (kid Agnes^ was not party to the faid fuit, nor
lo the fentence in the fpiritual court which diffolved the mar*
liige between him and the (aid Agnes^ hut the faid Agnes onlyf
yet the fentence a^ainft the wife only being but declaratory, was
good, and Ihould bind the hufband defaSos and forafmuch as
nie conufance of die right of maniage belongs to the fpiritual
court, and they have eiven fentence m this cafe, the judges of
the common law ought f although it he. againft the reaion of
our law) to give faith and credit to their proceedings and ficn*-
tences as confonant to the law of holy church, for cuiUbet infuu
urtiferito efi eredtndum s and fo it w^ adjudged that the pUw-
vS Bunting was legitimate*
124 Easter Term^ 33 G^^.IL 1760,
In affize the tenant pleaded baftardy in th^ plaintiff^ and be
ellopped him by reafon that he was at another time eertified
Mutter by the bifliop in a replevin betweed a ftranger and the
bailiff of the plaintiff, who acknowledged the taking in right of
the plaintiff, m which the bailiff had aid of the now plaintiff,
and there was certified Mtdien jadgment^ fgc. and a good
eftoppel, as was adjudged there. Bro* Efioppd^ ft. 78. And
many other cafes were cited to prove that fentences in the fpt-
ritttal court were binding. 2 Sa/i. 437. 3 Mod. 164. i &iff. 290.
Catih. 225. a &tra. 960, 96X. 6 Mod. 155. 2 Lev. 15. atd
Hatfield and Hatfield^ cited in 2 Stra. 961.
Serjeant Nares for the defendants admitted that a fentence in
the fpiritual court in a caufe of marriage was concluGve evidence,
generally fpeaking ; but infilled that matter of evidence cannot
be pleaded but only matter of fa£t ; that the law, in this parti-
, cular cafe, knows of no other trial of the legality of a marriage
befides tlie bifliop's certificate, and there is no precedent of fnch
a replication as this, which attempts to draw the trial ad aliud
examen. It has tseen urged that the defendants are concluded or
eftopped by this fentence 1 but this is no record, the whole of it
may be by collufion, is ftlU liable to be reverfed by a third per-
fon anv ways interefted, who was no party to the caufe even
after tne conclufion of the caufe. Vide Ougbton. Ordo Judic. 28.
///• 14. quod tertius potejl intervenire pro inUreffe fuos ctecrees in
ecclefiailical courts are not (even there) confidered as conclufive,
as appears by the lame book, foL 30<$. /• 3 i^ 4* In caufa mO'
trimoniali non objlat exceptio rei adjudtcatit, vel quod fententia tnmfii
in remjudicatam s quiafententia lata^ in caufa matrimamali^ conira
tnatrimomum nunquam tranfit in rem judicatam.^ Et quaties eedefia
decipitur pronunciando fententtam conira matrimanium^ ex mvis fro^
batiombus [etiam atiquando ex eifdem) potofi revocari prior fintenim s
fo that Sir JVilliam Wolfeley may ftill controvert die marriage,
and the fpiritual court may hereafter reverfe their fentence for
any thing ihe court here knows. And vide BraSon 304*
In breaking the cafe upon this firft argument WtUes C. J. faid.
That at firft he thought this a very plain cafe for the defendants^
but that now he found there were different opinions aboat \t%
however, if 10,000 great men's opinions were againft the known
law of the land, he (hould pay no regard to them ; that he
(hould never be for fetting up the fpiritual courts above the tern*
poral courts, that no determination in the high courts touching
lands ihall bind ftrangers, much lefs ought a fentence in die
fpiritual court (to which Mr. RMns was party) to bind his
heirs } that this fentence was nothing like an eftoppel \ evidence
it may be, but nothing elfe ; if upon an iffue joined, tnarried or
not married^ the bifliop had certified to us that they were mar-
ried, there could be no doubt but tliC biIhop*s certificate mad;
prevaiL ' '
Oive
£ast£r Term, 33 Geo. IL 1760. 125
Clhui J.**There can be no other trial in this cafe but the bi(hop*s
certificate, and no method of pleadiiig whatever can ouft the
biihop of his certificate. Robins was no party to the fuit» and why
his heirs (hould be concluded by the fentence, I cannot conceive i
it is mere matter of eridence, which I never thought could be
pleaded. This is a replication of evidence, and therefore I think
it is bad.
Batburfi J.— The cafes cited by brother Hewkt for the de-
mandant prove nothing more than that the courts of law receive
a fentence as conclufive evidence ; but the biihop hath an es-
clufive right, and nothing but his certificate can try this matter ;
whether the biihop can certify contrary to a fentenoe we cannot
fay, for we are not competent judges df that matter : the cafe
in BraBon makes me think we muft fend to the btihop^ and
vrhether he is bound by the fentence he knows heft.
N9€l J. of the fame opmion ; but as counfel were retained to
take notes for a fecond argument, and deoundant defired it
might be debated again, the court deferred giving judgment^
. and ordered an ulUrtus coneUum. Po/l^ 127.
Roe, on the Demife of Newman, vcrfus Newman.
C. B.
N eje^lment : upon a cafe dated for*the opinion of the court, CopyhoM
it appeared that the place in queftion was part of the wafte »«* ^
1
ground of the manor of Ttddington in the county of MiddlefeXi Ji^^ ^me
and that the cuftom of the manor is, that copyhold lands fliall outormiiitfy
defcend to the youngeft fon, or youngcft brother, and that the f?*^^.
lord of tlie manor in the year 172a granted the place in queftion tin^rfme"
to an anceftor of the leflbr of the plaintiff, (who claims as heir
in B&raugb Eftg/i/b,) to hold according to the cuftom, bTc; but
the cafe. does not ftate this material fad, viz. that it has time
cut of mind teen demifabU hv copy of court->rolL Upon arguing this
cafe the court were all clear of opinion, that what was' ftated
was only evidenced and if it had been ftated that it was demifed
by the lord ad voluntatem domini fecundum confuitudinem manerii
tempore E. 3. and that it had been granted by copy of court<-roll
ever fince, it would not have been fuffident, for it muft be ftated,
or found, or pleaded to be demifable by copy of court-roll time
cut of mind, or it will not be adjudged copynold \ therefore, is
the court cannot fav that this is copyhold^ the plaintiff has no
iitlCj and there muft be
Judgment for the defendant*
i »«6 3
TRINITY TERM,
33&34^» n* 1760.
Hulland verfas Malken and Briftow. C B.
^ebeoo T^EBT upon a bond ; defendants ctaved pfft of the condi*
*ood t» itt- XJf tion, vhich was^ that if they (houid indemnify plaintiff, is^f.
^^Sf 3* to a baftard child, then the obligation tp be void, q^erwife, ^c.
Somcharget And then plead that the child is an infant in the arms of its
AUA^*'^ mother, and- that defendants, while the diild and modier was with
ina that them, (which was four days,) tool; care of it and provided fof h
the mother every thing, but that the mptber batb ^aken away the chiU i^n^
^k the defendants, and that the child hath no^ fince been delivered to
Kf^i'rtbo, them by plaintiff; a toe, &c. The plaintiff replies, that it is true
that it has ' that the child was carried away by the mother, who for hmc time
^^ Uf ? provided for it ; but for replication (ays, that it afterwards became
toSs^v^A* <^^^g^blc to the parifl), and that plaintiff has been obliged to
Mtf plaintiff pay fuch charges to the parifb, whereby he is damnified; ft.
MMta ^^* ^^ Defendant's rejoinder infifts, that the child was an in*
p^, fant under feycn years of age, and in the keeping of the mother,
and that it w^s not in their power to take it from her ^d keep ct»
fo as to indemnify plaintiff. To this the plaintiff demurred, and
(hewed for caufe that the rejoinder is argumentative, neither con*
fefles and avoids, or traverfes or denies, and is alfo 9 (Itfartura
£rom the plea.
The ca(e was this: jfnrf /*flri^r havinff charged tbeplabtiflP
with being the father of a baftard child, be was obliged la give
bond to indemnifjT the pariili ; but in order to get rid of the
child, and to be clear of the parifli, he paid ^he defendants 14^,
in conGderation whereof they entered mto (he faid bond to idr
demnify the plaintiff agaiaft all damages, cl^arges, C5V. w)ucb hfi
might be liable and put to on apcount of the faid chijd.
' Upon arguing this cafe, the whole court yere clearly of opir
nion that tlie plea was bad. They faid, this was a general bond
to incj|mnify the pUintiff, as to th^ chUd^ agaiuft aU Ac world j
and
TnHnTT Tbrm^ 33 & ^Geo. II. 1760* 127
and thcjr caa pkad nothing but one of thefe two things, either
that plaintiff hath not been damnified, or (in excufe) if he has
been damnified^ he himfelf was the occafion thereof, neither of
which they hive done ; for the mother's taking awajr the child is
po excufe at all. Moreover, thej faid» the replication had ihewn
Bow plaintiff was damnified ^ and the rejoinder in effcfl had ad<*
mitted it, bedaufe it had not denied it : and thejr faid,. we need
not in this cafe fay whether the father or the mother hath a right
to have the child while under feven years of age, becaufe the de«
feadants have bound thcmfelves to keep the plaintiff harmkfs
againft all the world : they have confeffed in their plea that they ^
lad the child in their keeping, and why did they let the mother
csrty it away ? it was the deraidant's own faulty and cannot ex<<
Cttfe them to the plaintiff. Judgment for plaintiff.
Nf B» The Chief Juftice faid, he would gite no opinion whe<
ther the father has any power over the child, who is nuUiusjUius.
GrOiui fays, truly the mother is the only certain parent ; and ao
order of joftices to remove the mother always removes the child.
Bifcoe, ETq. V(^r/uj Keaaedy and his Wife. C B,
I K debt upon a bond entered into bv the wife iurhfala^ the Debt upon «
' hofl>ao4 is gone abroad and outlawed^ and the wife, although bond by the
ibe appears publicly, is waived $ and now it was moved to fet afide ^ (beud
the outlawry againft the wife, and to reftore her the goods taken her huihaad
upon die capias utiagatum which are fwora to be her feparate patUwed»*
goods. But pit eufiam^We muft take the goods to be the hut !^{^!j^
band's in point. of lawj and if (he has any equitable right to takeoin
them, (be muft go to a court of equity. As (he appears publicly, ewci^tUm.
(he has been wrongfully outlawed, therefore let the rule be abfo-
hut for fetting afide the outlawry againft the wife, and be dif-
charged as to the reftorisg the goods. Davy for plaintiff, Hewitt
for dcfendaat. ^
Robins veffus CrutcMey and others* C. B.
Ante, 135.
^HIS oadfe wus >g^B argued this terni by Serjeant Stanniford Biihop*t
^ for the demao4aat, ai^Se^eant Poole for the tenants -, what ^^^
vai urged for the deimmdant' was, in fubftance, very imuch the \x^l^t
Chm with 5rhat was faid upon the former argument \ for the yiage ia
tsacms it VO^M aow faid* that ne unqius accouple^ inc. was the ge- *'''**'-
•enU ifliii^ io wbsph oo new matter can be replied ; and this was
fAatiepoikf relied 9pon by Poole^ that there muft be fuch a repli-
Maom «s will join m iffiie^ and the awarding the writ to the
Mkof n jwUQg the iffue. iUfsl tiel noord is a general iffue, al-
'4 though
hiVt
128 . Trinity Term, 33 &.34(^. II. 1760. '
though it concludes widi ah avennent (like this), if it could be
tried by the country it muft have concluded to the country. But
I do admit that in cafe where the hifhop has already certified,
fuch certificate may he replied i for to award a fccond writ to the
biOibp, would be to try the matter twice. ?. and M. his wife
brought a writ of account agaioft H^., who pleaded that M. was
a nun profefied in the order of minors in London^ and prayed
judgment, isfc. Plaintiffs replied, that at another time they the
faid J. and M. brought a writ of entry againft one B.^ who al-
kdged that Af, was profefied, whereupon a writ iflTued to the
biihop of Londofif who certified that fhe was not a nun profefliKi,
and (hewed an exemplification of this record, and prajed judg«
ment if the defendant Ihould not be eftopped to fay tnat M. U
profefied. The defendant faid, they were ftrangers to that re«
cord s but the court faid, we cannot fend to the bifiiop to certify
to us that which already hath been done, and appears to us upon
record, which is conclafive againft all. And the court gave
judgment for the plaintiflF, that the defendant (hould account.
Fitz. Ahr. tit. EJloppely pi. ^8a. This (hews that the bithop's
certificate is the only trial. W. C and M* his wife brought
dower ; the tenant pleaded that the wife having married A.^ and
while he was living married B.^ .of whofe endowment (he now
demands, and that A. is ftill living ; but the court would not
allow this manner of pleading, which was an .attempt to ouft the
bifhop of his certificate, and to draw it to the country, fo the
' tenant was obliged to plead ne unqnes accoupU^ &c. and a writ was
awarded to the biihop. Bro. Dower, 54. Many more cafes
were cited on both fides, which upon giving judgment were laid
quite out of the cafe.
Ld. C. J. JTUUi — I am of opinion that there can be no repli-
cation to. a general ifiue to ouft a perfon of his legal trial. Here
the biihop has the only right of trial by his certificate to this court,
and if this replication be allowed, the bifliop will be oufted ; a
fentence in the fpiritual court is not a record, and if it comes in
' queftion here, muft be tried by the country ; neither is it final in
the parties, for (as Oughton fays rightly) they may at any tioe
arpply to have it rcverfed ; but the bilhop's certificate is oonchi-
Cve and final to all intents.
Clive J.— There never was a precedent of fuch a replication ai
this. I think tie unques accwpU in hjni matrifmnie is a general
iflue, and (uch a replication as this cannot be allowed j for it endea-
vours to draw the trial to the country, which the law doth not
permit. I admit that fentences b^ .proper courts having compe-
tent jtttifdi£lion are condufive evidence to every body, but it is
well known you cannof plead evidence. This is like mAtidft^
cord, which is a general iflue although it concludes vrith an aver-
inent -, to which you can reply nothing but bahetvr talt retwdum.
> I think
Trinitt Tbum, 33 & ^Geo. II. 176a 139
t thudc the fcotenoe b nothing but evidence, which may be prcv
per Co be laid before the biihop i and that the tenant mnft have
judgnent.
Batbur/l J.— I am of opinion with mj lord and my brother,
that judgment muft be for the tenant in this cafe ; but I think
that ^though this plea hath been faid to be a general iflae, yist
there may be fome cafes where a fpecial replication to it maft
be allowed : in an affize the tenant pleaded baftardy in die pkut*-
tiff> who b? replication eftopped him becaufe he was before cer**
tified legitimate by the- bifiiop in a replevin between a ftranger
and the bailiff of the plaintiffi who acknowledged the ukins in
right of the plainttff» in which the bailiff had aid of the tnen
plaintiff,, and there he was certified Mulier g judgment that this
was a good efioppel. Brp. Mflofpely 78. Sed nota *, that replic»« • By the «»
tion did not draw the matter to be tried by any other thaa Uie P^>^>
bifliop, but only infifted, that the fad had already be<o legally
tried and determined that the plainriff was legitimate } ib in the
prefent cafe the demandant might have replied that the bifhop
had formerly, certified to this court that (he was married^ to
Rehinsj (if flie Could (hew any record of fuch a certificate,)
which would be an eftoppel to all nunkind to fay (he was not
married to RoUm* But a fentence in the fpiritnal court is VfOt
final, even in that court 1 and (hall this court be bound bj a fen*
tence which the fpiritual court themiclves are not bound by ?
Noel J.-^l ani of the fame opinion for the tenant : this is a
new device to alter the legiil trial in this cafe, and heither fide
have been able to Ihew any precedent like the prefent replication.
Judgment for the tenants.
Noia; There are three ca(t*s of trial at law by the bi(hop*8
certificate, and which cannot be tried by the country, viz. Mar-
riage, baftardy, and profcifion of fome order of religious.
Roe, on the Demife of Parry, ver/its Hodgfon.
C. B.
1 N ejefbnent : upon a cafe (laied for the opinion of the court the whrther «
^ principal queftion was. Whether a leafe for 2 1 years made by leaic for »x n
the teftamentary guardians of an infant Mr. ^ncer to Parry was [^^^
abfolutely void, or only voidable ? it appeared upon the (late of i^tary *
this cafe that Mr. Spencer himfelf has <ione no one a£t firice he $a»rdimof
came of age, either towards eftablt(hing the leafe, (fuppofing it "^"^^^
voidable,) or to avoiJ it; upon the firft argument the court voidlbkr^
agreed in one point y viz. that a teftamentary guardian bv fta-
tute till an infant was 21 years of age, and a guardian in (ocage
till ati infant was I41 were the famei Jind therefore wh^t*
V0L.U. K ever
mer i&tereft the laUer had in lands tilt the iDfaxtt H^as 149 die
faardian by ftatute has the fame until he. is 21 • Tin JMk af
Beai^ott againft Berty^ i Wms. Rep. 703, 4. But as to tKe
main queftion. whether the leafe wa^ Void or only ¥oidaUe» they
all (except Noil J.) doubted much, and gave no opinion ; the
Chief Joftiee feemed inclined to think the leafe was rotd, from
^at he faid« Ciive J. faiS, he was far from faying it was
either void or voidable ; Baiburft J. gave no opinion, but from
what he faid ht feemed to thiiik that, whether the leafe was
Toid or not at firft, it certainly became void or at an end when
Mr. Spihcet came of la^re, fo could not be now a fuMiftiog leafe
' tt> give leflbr of plaintiff title. NoeiJ. was of opinion that the
leafe was a good leafe, and only avoidable by the infant when be
eartie of age, and that he might then affirm it if be thought fit,
but faid that be Oiould be very willing and ready to depart from
this opinion, if he flibald find he had come into it too readily.
U&erius nfuiliwru
Knipe verfus Palmer. C. B.
Coroimt
a'!Si*b**^c A d'^ON of covenant broughtby the plaintiff as commUiei of
comiDittct one John Wright a lunatic, upon covenants in a leafe made
of a iunitic, by the plaintiff as eommitUt in his own name, and alEgns feverai
Mth^'com- '>'^^che8; the defendant pleads nil habuit in tenemeniisi the
aiittee will' plaintiff replies the commiilion of lunacy and proceedings tbcrc-
not lie, for a upon, demurrer and joinder. '
committee **
cannot mal^c ^
fach lu(e it Serjeant Poole for the defendant infifted, that even the kfng
J*w. himfelf, by his prerogative, cannot take the profits of a lunatic's
effcate to his own ufe, as wa:: refolved in France/s cafe. Moor 4.
Where it was found by office that William Frances was a limattc,
wherefore the king fetzed his lands and his body \ and the cuf-
tody of bis pcrfon and his lands was committed to one Holmes
for fo long a time as he fliould be a lunatic, to take the profits
to his own ufc, rendering rent, t*V. And in trefpafs Holmes
' prayed the aid of the king et non allocatur^ becaufe the patent is
void, for thekinc; cannot gr^int the lands of a lunatic to smother
to take the profits to his own ufe, becaufe the king himfelf is not
entitled to them, otherwife than to fupport the perfen of the lu-
natic, his iffue, wife, and famSy» and to give t(^ furplufage to
the lunatic when he recovers his memory \ but otherwife it is of
an idiot, for the king there fhaU have tlte profits to his own ufe,
making allowance to the idiot for his keeping. From hence it
is clear a committ<e of a lunatic cannot make a leafe of the
lunatic's eftatc ; and fo is I Vern 262* Fojler v. MtrthanU
, And in BL^vit\ cafe, Ley 47. it was refolved by Lord Hohart
;^nd Baron Tnnfield^ that the committees of a lunatic cannot grant
niiy {^poyhold eftatc;, for that they thcmf^Wes by law have r>o
eftate
Trinitt Tehmj 33 & ^Gda. II. 1760? »3^
•ftau in the nmndr of the lunatic, nor aie lord$ thereof for the.
time being, but that the lunatic by his ftevrard may grant copy-^
hold eftates. And in Hult. t6. Drurjy. Fincby the opinion of
the court was, that the committee of a Itinatic was but as a baiKff,
aod hath no inteteft, but for the profit and benefit .of the lunatic^
aad is as his fervant; and^it is contrary to the nature of th^
committee's autliority to have an adion in )ua own aame^ fos
the intereft and eftate, and all power of fuits, is iFcmainiag itt
the lunatic. And it was ruled that a lunatic (hall have a quart
impeJk in his own naAie, vide BruerH^t cafe, 4 R^-p fee alfo
Can V. DttVifin^ N§y 27. to the like purpofe ; from tbefe authorir
ties the Serjeiknt, in the outfet, concluded^ that the leafe wa<
Yoid» as the piaintidT had nothing in the land, fo that the plea
of nU^uit in tenemefttis was a good plea.
Serjeant Hewitt for the plaintiff argued that the king by the
ftatute oi'Pr^rog. Rfgif, 17 EJ. 2. caf. lo. has a right to take
care of the lunacic^s lands* and confequently muft have an autbo*
rity, or intereft, or both, fo that fomething may be nade of
them for tlie benefit of the lunatic, by leafing the fame to
tenants \ otherwife the lands may lie uncoltivatedy for hi Ibmo
couotriesy by tbe-cuftom, no man will farm lands ibr lefs dian
diree years» and tberey if the lunatic ,or the committee cannot
let for three years, it would be a detriment to the lunadc. He
faid the cafe in i Vtm. 262. is only a diBum there 1 but it proves
that a committee may make .a leafe by order of the court of
Chancery, that is to fay, the king himfclf may do it by the
mouth of bis Chancellor. The defendant has taken and ac-
cepted a leafe from the plaintifF, and has* held the land two
years : it is urtjud in him to fay'^to the plnintiflF, << I own I have
" held the land, but you had ao power to demife.** Juftice is
therefore with us, fo the court will go as far as they can to give
it us. He infilled that the committee had power to let, but that
it was at his own peril if he does it. without au order of the
court of Chancery, or under lees.
Lord Chief Juftice J^i//r/.— The courfe of the court of Chan-
cery is^ to refer it to a Mafter to confider and report whether it
will be for the benefit of the lunatic to make ^ leafe ? if it be,
the Court will order that the committee (ball make a leafe.
Serjeant ffewitt proceeded to make a fecondx point, and
infifted that as this is an aAion of covenant founded in con*
vnStf the a£lion well lies whether .the plaintiff bad any thing
in tfa^ land Or not, and &at it may be good as a comraA, al-
though the leafe be bad 1 and cited Owen 136. 3 Buffi. 1541
158.
Jf^^Oei C. J.«-Bnt, biother ! that was a eotenant which was
collateral to the hmd i and all the covenants m the cafe at bar
K2 ar^ .
ihre fach as run along with the land, aiid fo thofe cafes are nof
to the point in quediocl.
tTewitt then infilled, that although this vas tiOt a hafe^ yet it
6ught to opdrate as a licencit to defendant to enjoy, and that the
defendant haying enjoyed under this licence, the covenants may
operate therfcupbn ; and cited 2 SalL 5 88. 2 Ktb. 8i Hch. 53*
iL Fent. 99. i Salk. 199. And chat this is a bad plea iii co?cdabt,
Setjeaftt Pooh in reply— My brother has made two points 1
1^1 He fays this is a good leafe. 2^1 If it is not, yet this
bcillg an adion of covenant, it (hall be confidered as a licence
to enjoy, and that nil hdbuif in tenemenlh is a bad pleA t^ an
aflion of covenant. As to the fir ft he fays, that the authority
in Fern. 262. is only a dilfum s but I infifted that a committee
is only a mere bailifT, and that whatever is committed to him by
the crown is only at the will and pleafure of the crown, fo that
a trommittee cannot poflibly be more than a bare tenant at
will of the crown ; and it is well known that a tonant at will
tranhot make a leafe, and this \ very much rely upon ; it is faid
by my brother that the crown mail be confidered as having a
power to leafe by the Jiat. de prarog, regis. ' I think the crown
has no fuch power -, but that is not the prefent cafe 1 the quef-
tion now is, whether the committee, during the pleafure of the
crown, has power to make a leafe ; I have proved he has not*
But it is objected that this is a bad plea ; I fay it is both good
law and fenfe, for if it is not in the power of me committee to
make the leafe, it is a fraud upon the leflee, who is liable to be
t7il h»b«tr, t>u(led. This leafe is by deed-poll, fo that mi hohnt^ &e. is the
Jeaie'by* propcr plcs } if it had been by indenture, the defendant might
deed-poll, have pleaded //dff i/ifm^r* As to the fecond point, and to the
Non d«ni£t cafes cited to fupport it, I anfwer that this adion is founded
i^dcacu^c. ^po" covctlants that run along with the land^ and if the leafe
be void, the covenants , depending upon the eftaite are gone ;
what is meant by a licence to enjoy I do not well underftand,
when it appears the aflioii is upon covenants in a leafe ; and
that nil habuit^ &c. is a {^ood plea in covenant Upon a leafe.
3 Lev. 193. AyUn v. fFiJiams.
Chief Juftice WiUet—l think the leafe is void, for the com^
tnittee has no legal power to make a leafe ; if this had been a
leafe made by order of the court of Chancery, they would have
made the de/endant paycoft»{ but yet if this had been a leafe
_^ made by their order, I think it would not have been good at law.
I think a covenant in the leafe to do a collateral jthing in a leafe
might bind, though the plaintiff had no power to make a leafe.
. A committee is certainly no more than a bailiff, but whether he
could not well covenant that the defendant might hold the land for
two years, and whether the defendant could not have an a£Hon of
covenant agaiaft him if he was oufted^ is worth oonfidering*
Clive
Trinity Tei^m, 33 & s^Gco. II. 1760. t^3
CBw J.««|, The |eafe is oertainlf Toid at Imnr. Jfosr 4* is la .
ppbf. 2. NiJbakuU, 8cc. i^ a good plea ia' covenant: as tq .
covenants which run or do not ^un widi the land, fee Sfitn/fr'^
cafe, 5 Rip. 16, 17, i8y ; but all the covenants in this cs^e ruA
with the Und, and the deed btitijj; void, all the covenants fall to
the ground. I have no doi^bt at all but this is a voi4 leafe.
Though this 19 a d^ed-poU, yet there is a covenant on defend*,
ant's part, fo they 4re the y^ords qf the defeiidantf ^ ;
Batbur/l J.— >I aip of opinion the cqmnv^tee has po power to
'n)ake % )eafe« The word dlmjfit is ^ covenant in I4W9 and here
feems to t^ f ovenancs on both fides. Defendant mjght bring -
covef}ant ag;)inft plaintiff* on the word dimjfit^ fo the fepood poiQ^.
npt determined. UUtrfu^ foncUhuf^ as to fecoqd point.
Memorandum : King Georgg the fecond died fuddenly at bis
palace at Kunfuigton on Saturday the 2cth day of OEhhtr 17^9
about fcven o'clock in the morning, j^e fell do^n in bis owii
chamber when nq perfon was prefent with him, and was he^^r^
to fall by rlie page in waiting without. Ut audsvL
HI.I,AR V TERM,
1 0^0. HI. 1761.
fe^
Stackpole ver/kf Earie, Efq/ ۥ B,
IN an a^lton uppn the cafe upon ajkn^ iba plaintiff dedaved, . AffiimpSr m
that whrreas the defendant befiore and at the time of making Jjf J^'J^
tb^ promife aCorementioned, and afterwards^ was furveyorof the u'^nvvnm
baggage of thp pott tif London^ and w» greatly defirq^s of felling p«tfch«rer or<
and difpofing of his fald place, and being fo defirous to fell and ^^^*f^.
difpofeii>£ mt fame«.oo the tft of January 1758» at Weftmiyier tcyorof tbf
in the county of MiidUfex^ in confideratibn that the plaintifi^ at ^(*f* °^
the defendant's requeft^ would ufe his endeavours to procure* and ^J|J^ *^
would procure a proper perfon to purchafe the faid place of the Maoa coa*
defendanti he undertook and promned to pay the plaintiff 2/. for* ^ ^ ^
ma piacc \ ana uic piiiuinir avers, mac conRaing in xnc laia
ciefeiulatit'is pmmtfe and undertaking, afterwards on the fame day
ahd year, at WeJImitifter aforcfuid| hci atthe defendant's requefl,
nfed his endeavours to procurei and by meaiis thereof on the ift
of March 1 758, at Wefimtnfter^ procured one John Gufifton^ being
a proper perfon to purcltafe of the defendant the faid place for
S2oo/., and that the faid Gunftm did give to the defendant I200&
for the* pnrcbafe qf the faid place, whereby the de(endant became
liible to pay to the plaintiff 24/. for the purchafe of the faid
pface. There are other general coonts.on ajfutnpftt for work and
laibour done, l^c. but all that ever the plaintiff did for defendant
was the procuring a parchafer for the place. Upon non t^umffit^
the cafe referved tor the eimion of tlie court was as above ftated
in the declaration*
< Upon debating this cafe at the bar, it was urged by the cocm*
cil for the plaintiff, that he was neither a buyer nor fellet of the
piaee or office, and that what he hsd done was at the defendant's
requefty and was neither mahtm Infe^ nor mahtm froh$hity$nf and
therefore he ought to be fatisiied for his labour and trouble ; but
the whole court were of opinion that it was malum prohiUknn,
and vithb ihfi iiatut^ 9i 5^6 £4^ 6. fnp. id. fee. a* And
though the plaintiff himfelf was neither buyer or feller^ yet this
appears to be a promife to pay him money, to the intent that a
perfon fliould have, an oiEce bckniging. to the cuftoms, which is
withiuvthe very word»-of the (laiute ;- but Mr. Juftice' Ciive faid,
he thought the felling of offices was matum infe at common law^
and that if the (latute had never been mnde^ he thought the pro-
curing a perfon to buy the office of the defendant was n^^a good
confideration in law to raife an affumpfit^ (which was not ilcnitd
by any of the judges^) becanfie it was iUcgal % as if a gaoler per*
mits a prifoner to go at large upon his proipifing to fatisfy the
debt for which he is Imprifoned } he efcapes by the confent of
the gaoler, and doe^ not pay the debt accordine to his promife,
the gaoler brings affmnffUy but Iball not recover becauie the con-
fideration was illegal \ for it is a mod certain principle that every
odnfidcratioa to ground an Mgmi^it upon liiuft be lawful. Vidi
^tmihu and Beunttt^ i &alk. 22. Co. Lit. 234. a. Sir jirthuf
.bgranf% cafe, 16 Finer 116. pi. 3. S$iuth v. CoUfiillj i RaU'
4>n 1 16. I Roll, ifif /313. Djer ift. pi. 13..
Judgment for the defeodavt
I
Hilary Tsrm, i Qco.IlL 1761. • 135
Roe, on the Demife of Parry, veffus Hodgfon. C B. a^., la^
CEE tbis cafe before in Trin. 33 (^ 34 Gio. 2. The court were
^ now all dearly of opioionj that a guardian of an infant can*
not make a kafe of the inCant's lands, and that the Icafe in this
cafe was abfolutelf Void.
Judgment for the defendant
TRINITY TERM,
t Geo. IIL 1761.
Anonymous. C B«
^ A trader, before he cbmmits any a& of bankmptcy, draws Baakrapc
-"• a promiflory note for aoo/., payable to B. or order} then i^J^^^^*
A. commits an a^ of bankruptcy, and afterwards £• indorfes the ^Jet of
i)ote over to C, who is the petitioning creditor ; and it was held btakniptcf
fer Mam curiam^ that [le may weU be fo, for the aoo/. wu a ^^!^
debt due from the bankrupt befoie he committed die aft of bank* ^SSm!^
ruptcy to fon^ebody, vm. t^ B^ Jum l^ l^6u
•f4
138 HiLAttY TsitM, 2 (7^0. III. iy6i.
plea or hot, but only upon a demurrer ; upon which the Chief
Juftice ordered the matter to be debated at another day, as to
this point, whether it was in the difcretion of the court to reje£k
this plea ; whereupon it was (poken to a fecond time, when the
. court were all clearly of opinion that they had it not in their
power to fejed: the plea ; and the Chief juftice iaid, that fach
difcretion was contrary to the genius of the common law of Sng*
/arrjf and would be more fit for an Eaftem monarchy than for
this land of liberty ; ftuUi negabimu^. See. jufKHamg ^nd there is
no difference between a plea puts darrein continuance and any
other defence, but this, viz. that the faA. which warranti diis
plea firft exifted or happened fince the laft, and before the next
, continuance ; it is a defence which the party couH not poifibly
make when he firfi pleaded, and which he is Dound to make after
the laft continuance^ And before the qext. It nanft ,be ?cri6td
by affidavit, for if it was not to be fo, great delays would enfue
^ by pleas of this kind. The cafe in Telv. was relied upon by Ser^
jeant Ndres, that it was in the difcretion of the court to reject this
pica, but the books in general are to die contrary % and the doubt
in Telv. was, whether he had a power to receive this plea at tb^
afCzfs; and the judges determined that the plea ought to be re-
ceived} but fee the Ume cafe in Cro. jfac. a5i. which fays, the
pica may be received at the difcretion of the jufticesi if they per«
ccive any verity therein ; and the cafe in i Stra, 49a. proven that
the plea muft be received, if it be verified by an cj^vit^ for in
' that cafe the plea was fnvolous and untrue^ fo was rqefted.
CJive J. faid, he thought the plea in the prefent cafe was a bad
plea, but was of opinion that it could not be determined but
upon a /demurrer. jSathttr/l J. faid, the court muft receive this
plea as it is verified by affidavit, and that there was no cafe to be
found wherever this fort of plea was rejeAed, becaufe npt good
in point of law. N^l J. of the fame opinion.
Sq the plea w^iSTec^ivedj, and the mle di&barged.
[ »39 1
EASTER TERM,
ado. IIL 176a.
Pari3 veTfus Salkeld. C B. Ante, 137*
THE defendant pleaded fair darrein gontinudnet^ tizi that on Pica pnfs le
fuch a dav be became a bankrupt, and that the caufe of ^^ ^n-
aQkm accrued before fuch time as he became a bankrupt, and d^^^^
concluded with an averment in bar $ the plaintiff demurred \ and became «
now it was objcfled by Serjeant -R&rf/ that the plea was bad, be- J^^^
caufe it is not ailedged by the defendant that he had conformed bma aiMg»
himfelf to the (latutes of bankrupt, nor obtained his certificate, chat he haih '
^Jtv^ It is not faid that this plea is vigorejlatuth to which it was ^^*??!j',
aniwered by Serjeant Henvitt that the plea was general, and ex- ^'*'*
a£lly as the fiat. 5 Geo. 2. direds, the words whereof are, That
Ml cafe any bankrupt be impleaded for dny debt due before fuch
time as he became bankrupt, he (hall be discharged upon common
bailp and may plead in general that the caufe of a&ion aocrtfed
before fuch time as he became a bankrupt, and may give the fta^^
tnte and the fpecial matter in evidence; fo that he infilled^ the
defendant had no occaGon to alledge that he had conformed and
obtained his cchificate, which certificate (he faid) was matter
of evidence ^ and as this plea concludes in bar, the plaintiff mfght
hafe replied that the defendant hath not conformed, is^c. nor ob-
tamed his' certificate. Indeed he admitted, that if the ftatute had
not chalked out this general manner of pleading, he fhould have
diought it neceffary Tor the defendant to have ailedged that he
had conformed, C9*r. To the fecond objedioh, that the plea is
not fsAd to be vigorejlatuti^ it w:is anfwcred, that was mere mat-
ter of form, and is not ihewn for caufe of demurrer.
Fratt C. J. inclined to think that the plea was bad, and faid,
Aat whenever a party comes to excufe or entitle himfelf, hc^
ought to alledge every circumftantd that entitles him to. that
thing % and fhis^ he faid, was a general rule in pleading : fo here
he thought it neceiTary to have been ailedged by the defendant
that a cotemiffion'ifliied agaioft b!m, that he furrendered and
conformed himfelf j the words of the ftatutt are, fuch bankrupt
fliali
140 Easter T«itM, a Gr«. III. 176a*
fhall be difcharged on cooimon bail, £sfr./ the word fucbrnuHt
mean a bankrupt who has oonformed himfelf. He faid it waa
clear law that a bankrupt cannot be difcharged abfolutely before
he obtains his certificate. He faid, he thought it ought to be
pleaded vtgorejlatutij orherwife the court muft confidcr the plea
as at common (aw, and then every thing ought to \ft alledged y
but thi^ plea only &ys that the defendant has'fubltiitted to be ex-
amined, Isfc. arid is ready to confprm,^ iffc. not that he has con-
formed.
Bathurjl J. faid, he thought the court muft take qotice whe-r
ther the plea be within the ilatute, although it be not faid vtgsre
Jlatuii^ &c, but feemed to be clear in opinion thaj the pica was
bad, becaufe it did not aver that the defendant had conformed,
f^r. and (tut the pbintlfFotight to have judi^menti but the cafe
was adjourned for further con fi deration. Vide iLd, Raym, 1546,
Comvns 205. I Wms[ 24i>. fleriderfQn and IVinUr^ Hil^
11 Geo. i. ^. R, V. Xomlin^ MltL 5 Geo, 2. B. R.
I Stra, 49Z.
Afterwarcts nt another day in this term the Chief Juftice faid,
I ve are clear of opinion that the plea is bad, becaufe the defendant
hath not averred that he has conformed, tsc according to the fe-
veral ftatute8 concerning bankrupts. Judgmea| for the plaiatiQ^,
Clive and Ncel JulUccs abfentibtis^
HenchetC verfus Kimpfort. C. B,
landlord en J C, J. Pr^//. T^ HE defendant had judgment of nonfuit againft
i^ii^srent ^^^ plaintiff, and upon tl Jieri facias took the
before a dc plaintifT^ corn in execution, which >ras unthreihedi the landlord
^danccaa immc^diately gave the (herift^s bailiff notice that there was 30/.
Mccudoafo" ^^^ ^^ ^"*^ ^^^^ ^^^ plcvintifffor one year's rent, and ^(tct tbis^
coAsooa 'the bailiff proceeded to tlircrfh the corn, and fold th^ famp for
***'**^'^ 1 1 /. and upwards ; aqd nov^ the iheriflF and defendant upon
fliewing caufe why they ihould not pay the landlord one year's
rent, infift$d that a defendant's execution was r>p( vrithin the
^at. 8 Ann^y which was made in favour of laiullprds, bu^t that the
' ftatutc only ej^tciids to eJ^ecutions at the i}x\t oi ^\^\x^xiS^\Je4 non
allocatur^ for the words of the (latute are, ^' Np gopds tipbo any
<< lenemeiits leafed (hall be taken by any execvition, uulefs the
•* p^rty at whofe fuit th^ execution 1^ f|ied out fliali^ before the
^< remqval pf fuch goods» pay to t^p landlord o( the pnemifea all
V n^oney due for rent for the prpmifes,. provided the arrears do
" not amount to more than on^ year's ren( } and in ca(c the
^ arrears ihall exceed one y.ear's rent, then the,' party at whofe
•' fuit, ^^. paying the (ajd Ian41ord one year*8 rient, may proceed
, »? to c^^ccute his judgment J apd^tljc Ifcciri^ is re^uirfd to tevy
>« mi pay to the plaint^ zs well the money paid for rent as the
** execution money.'* And tlie ftatute ihall have a liberal eon^
ibtttlion i and the words, •• Party at wbofe fuit the execatioif-
<< is filed out/' Cfr. (hall be conftrued to mean either plaintiff
ot defendant, whofe judgment and eiecurion it is. It 'is further
infifteJ, that in all eytnts the fheriff Ihall not be anfwerable to
the landlord fo)r more than li /• which the corn was fold for.
This 18 a matter of importance Which (hetiflF's officers ought to
underftand. Before thb ftatute, execfutions took place of all
debts that were notj^ecj/lc iiins^ eren of rerts due to landlords :
it was thought hard that landlords fliouM not have fomething
like nfpecific IteH's fo the parliament ha?t given them this remedy
fo*" one year's ipcnt, but for no more, becaufe wi/b;i/;iir/ it non
iirrmtentibuf Jura fubvetnuni. Neither a plaintiff or defendant
has any right to go upon the premifes ; the law gives this entry
to the (heriff only by virtue of the execution, bat after he fifkB
notice of rent being due to the landlord, he cannot remove the
goods before he has fatlsfied the landlord one year's rent ; the
landlord (hall have the like benefit of diftrefs for one year's rent
as if thete had been no execution at all ; unlefs the rent be paid
the (heriff Atift quit, and if he does not quit, a f\>ecial a£iiot>
on the cafe lies againft him after notice of the rent due ; but
there is a (horter way by motion to the court, as in the preient
cafe, that the landlord may have reftitution to the amount of the
goods the (heriff has fold } the bailiff in thta cafe became a
wrong- doer immediately after he had notice of rent being due
to the landlord. Par curiam — Let the prothonotary take an
account of tlie good^ taken in execution, and what they were
fold for, and let the (heriff be allowed fuch cods as incurred
before notice given him of the rent due to the landlord, and
after all juft allowances, let the reft of the money be paid by the
(beriff to the landlord. Brother Hewitt for the landlord, brother
Ifaref for the (heriff.
Marriott verjits Lifter. C. B*
/" ASE upon eight f;.'veral counts in tfffum^ti upon the general AfliMipfit
^^ iffue there was a general verdid' and damages given for the 'J^ ^-
j>Iaintiff upon all the county. And now it was moved in arreft i^^'ie^
of judgment that one of the counts was bad, and therefore as i« a third
Indre damages were taken upon this count as well as the reft, J^*^"'^
judgment ought to be arrefted : the count obje£led to runs thus «nrj?dgl '
— «« Whereas James Lifter (fuch a day and year, at fuch a place) nirni «.
" was indebted to Tb$ma4 Marriott in ao/. for the like fum be- ^^*^
•« fore that time lent and advanced by the faid Thomas to James
** Dalrymfhy at the fpecial inftance and requeft of the faid James
■• Lifter: and being fo indebted, he the faid James Lifter In con-
^ fideration thereof afterward, to wit, at fucn a time and place,
" promifcd
14a Easter Tbrm^ a Gto^ IIL 1762;
*< promifed to pay to the plaimiff the faid 20 /• when reqiirftcd."
Fer curiam'-^-'Tlkc Mvord i^nt ii a technical ternit aiid no man can
l^ indebted to another for monej lent, unlefii the money be ac-
tually lent to that perfon him{elf ^ but this count alledgesy that
the defendant is indebted to the plaintiff for money lent to a
ftranger, Jame/ JDalrympU^ Now James Da/rymfle is certainly
indebted to the plaintiff, becaufe the money was lent to Jat/us
DalrympUf and the law raiies the promifc which is not necfcfiary
to be proved ; therefore if James Dalrjmple is indebted to the
pIaintifi;for this Aim lent tp him^ the defendant cahnot be. alfo
indebted to him for it, becaufe there cannot be a double debt
upon a fingle loan. This b a ipecial undertaking or promile to
pay a fum of money lent by the plaintiff to a ftranger, which the
law does not raife, and therefore fuch fpecial promife is traverf-
2thlc» and muft be proved; but' upon an indehUaius affum^t for
money lent to a defendant, the law raiies the promife, which is
not traverfable, and need not be proved. In ihort, it is abfurd to
affirm A. is indebted to B. for money lent to C, for the fame
money cannot be lent to two perfons Severally \ and fo is i &iA.
Butcher againft Andrev^s. And the judgment was arrefted.
i&fcri// Serjeant for the defendant, Davj and Borland ScrjfixxXt
for the plaintiff*
TRINITY TERM,
iGeo. III. 1 762*
How verfus Denin, B. R. June 18, in error
from C. B,.
Wifitof 'nr^HtS was an a£lion upon the cafe on feveral promifes by
pledget can* X bill againft an attorney of the Common Pleas. Judgment
^!!llfta^e of ^** given there by nil dUit^ and upon error brought the common
iA ci'ruu^ ° errors were affigiied ; and alfo that there were no pledges to pro*
fccute appearing upon the record.
It was Infided for the plaintiff in error, that the want ofpledges
is matter of fubftance, and in this cafe, being a judgment by
defaulc, was not aided by any ftarute } and many cafes were
cited to Ibcw it was fubflance, and not mere matter of form,
* as
Trinity Tbum, a (?^o*ni. lyGi. . 143
ts Dytr 288. Cro. Car. 91 • Hutton 92. Het/^ 59. R9L
Jtgp. 205.' 12 JIffrf. 198. \6.Viner 396. /. ,13. But per cu-
riam (without hearing counfel for the defendant 10 error)— By
the^^. {^4 £5* 5 jinfi» for the amendment of the law, this is *
become mere matter of form, apd cannot be taken advantage of
in error now, whatever it might have been before that ilacutc 1
tod if the defendant had thought fit to have taken advantage d
this defect of form, he ought to have demurred and ihewed it
lor caufe in C. J?. and then the plaintiff there might h^ve moved
to amend \ but not having done fo, we wHI not reverfe the
judgment for this mere de^<^ of form ; And the judgment was
affirmed,
Brudnell verfus Roberts. C. B.
/^OVEIf ANT brought by the plaintiff upon a leafe for years, Cownmtw
^ as heir in reverfion in fee to his father, and breach afligned J^^f.
for want of repairs ; defendant pleads that the father when he figged Ibr'
made the leafe to him Was only tenant for life, and that the father waot of rc-
btfing dead the leafe is determined, abfyut bee that after the ^^^ *
making of the iaid indenture of leafe the reverfion belon^ied to yevt^ pica
James Brudnell^ (the father and his heirs,) as the plaiutif' hath that idli>r
allcdged in his. dedaratioiii. DeoHirter and jonnder* ^tXlVrV.
aniS craverfcl
It was argued by Serjeant Henvitt for the plaintiff, that this <hac the re .
E lea was bad, becaufe wherever a leflee accepts a leafe for years i^hlmand
y indenture, he (hall be eftopped to fay that the Icffor nU bahmi hit hein,
in tenemeHtis^ and- the plaintiff need not xt^\y thaLeJieppei^ but V^
stay demur, becaufe the declaration is on the indenture, and the
ffteppel appears upon the face of the record \ ottierwife if he had
Atc\zxtA qtnd cum demififfet^ &c. l SalL l-JT. Kemp v. GoodaU)
'and this is clearly law, for fo is Co. Lit. 47. Cro. Jac. Jia*
Cro, Eti%. 363. And ndt only the ItiTor himfclf, hut the f>rantee
of the reverfion, and all parties claiming under them, will have
* the benefit of the efloppeli which (he fai«<) ran along withlhc
lands ; and that the plaintiff claiming as heir under the leffor,
his anceftor (Innds in his place, ^dly^ It was urged for the
plaintiff that the travetfe was dcfe£live and uncefrtain ^ but I
heard nothing faid to (hew that it was uncertain.
On the fide of the defendant it was argued by Serjeant Nares^
That this was an aAion of covenant brou)«ht by the plaintiff upon
an indenture of leafe for years made by the father ^ the plaintiff
to (he defendant, and breach afligned for want of repairs^ upon a
tevenant in tha leafe } the defendant pleadklhat the plaintiff's
father the kffor was only tenant for lifo« that he is dead, and the
leafie is determined, and traverfes as above ; thar the leafe being
pQW at an end| then is an ^nd of all the coTenants therein, and
of
J44 Trinity Teiim, 2 Geo. ItL 1762.
t)f this adion ; a leafc for years b]r tenant for life is (o abfolutctf
determined, that no acceptance of rent by the fucceflbr to the
. land can make it gpod. Co. Lit. 341.^. ^^irf/ Serjeant ad**
mitted tliat during the life of tenant for life, (of the lettbr,) and
the continuance of the leafe^ the defendant would have been
ellopped to fay he had not the rererfion in him, but he being
dead, and the leafe thereby at an end, the leflee is, as it were,
iinmuzzled, and is not eftopped to plead the truth, which he has
done. by this plea, in confeffing the leafe and avoiding it: and
of that opinion was the whole court ; they alfo held that the
ttaverfe was well tuken ; and judgment was given for the de-
fendant/^ totam curiam.. See Co. Lit. 47. ^.Jl non qOe le teafi
foit ptr fait indent.^ &c. very appoGte to the point of eftoppel.
Noteg CUve J. fatd, the defendant might either (raverfe that the
' father was not feifedof the reverGon in fee, or that it did not
defcend to the plain tiflP) quodfuit concejfum.
Handafyde verfus Morgan in Debt on a'l
Bond. > Error.
Same verfus Same upon a Note of Hand. 3
time re. A FTER verdift plaintiff in error put in bail in due time; a
fediaHTa' ^"^^ ^*^' ^^'^^ ^^^^ ^^^ fcrvcd upon the maid-ferVant of Mr.
error, be- Cox the attorney for plaintiff in error upon a Tuefday^ On &-
caufe no real furday following tWs noticc came to the knowledge of Mr. Coiif
XIZut^L, *"^ "^^ before, as appeafed by the affidavit of himfelf and tw
fo court ' of his clerks. Upon this I moved for two da^s ^o perfe£l the
thought it bail ; but the court abfolutely refufed to give any time, unlefs I
ichTy! ^'^ would (hew them there was fome real error in (he record;
which, as I was not able to do, they took it for granted that die
writ of error was brought nverely for delay, and the i\ile to (hew
caufe why the plaintiff (hoald not have two days to perfe£^ his
bail was difchtrgcd.
Davy for defendant \n error.
Crowder verfus Rookc. C. B.
Tr'ti h%A ^HlS caufc Wis H iffiie, and the record of mfiprius^ hakas
diy VaWi corpTra^ mdjurata^ were all made uj> for trial at a cermin
^rius th« Sittings ; but the caufe not coming on to be tried at that day, the
jurara h not phintiff's attorney ought to have altered the record of nifi priuSf
IS^veffe? '"'^'^ zndjurata^ for a future day of fitting, but negkdtd fo to
je novo ' do, or to re»feal the fame, although he was apprized thereof,
«wa»iea ihe fo thc caufc was tried at a fiiture day, and it appeared upon the
iL?am noa ^^.^^ «*' ^^^^ ^^^f *c. that the caufc was tried after thc day of
judice. »i/fj>r/i//. mentioned thereia; and there was a verdiA for the
plaintiffi
TRiNitY Ter jf, zpto. III, iyBt. ' • t0
plaimif ; tnd Dov the plaiotiff mor^d to «in«nd the Lahuffeh^
ffra Tind the /urata, and the defeodiint moved to ftt yfidetfat
Verdi£l. A rule* was iiiade to (htW caufe iit^hy the amcndmet4
fliQuid not be made ; and upon ihewing caufe' the whole cpurt
were dearly of opinion that the trial was coram nan ju£ce^ and-
difcharged the rule for an amendment ; but were of opinion that.
they ought fx 0^/# to otder a veniti de fMvo to be awarded}
which was ordered accordingly.
■^
MICHAELMAS TERM/
^ Geo. III. i'^6it
ss
A'
Chapman i)tr/us pickerfgilL C. S.
CTION upon the cafe for falfely and tpalicioufly faing 0}it Cife flfr
a comrnlflion of bankrupt againd the ptaiqti^, who d|»- ^*^^^h *"<<
dared upon thr^e counts; iatbcfirft, having fta^ed his homfty, "-"^'""fj ,
healledges that the defendant did falfiely and tnalicioufly exhibit commimon
a petition to4he Iiord Chancellor that the plaintiff was indebted of«>«nkr»pt*
to him in 2oo /. attd had C<Jn»m5ttcd ?n afll of bankruptcy, that ^JJ^^^,
the commiiQon thereupon iflUed^ and the defendant wa3 deciared wards fuper^
a bankrupt, and that afterwards the commiflion was fup^rf$;ded» '****'*' '" •
ind the plaiqtiff avers that he never gQmpiittad any aft of bankr Snlthw,
tuptcy : the fecond ^ognt !# much the fanie» with the like avcr^ though the '
racnt; the third count is wuqh the fame^hm withput fuqh aver* chancellor
ment. To this the defendant pleaded the general iffuc, and J've »odi.'*
there was a general verdi£t and damages fo|> the plaintiiFt taken, ^images i^
upon all the three counts: whereupon it was moved that the ^*^««*
judgment migjjt be arretted for two reufqns i firft, becavfe thii
sfliou will not Hei ih^rf being in this cafe a particular remf df
given by the (latntes of bankrupt^ $ ^^ and | Ge9. 24 which
xn^iXt that befori; any cpipmiffion fiiaU i0ue> the f^etitigning \
creditor ihall (among other things) give bpnd tQ the l«ord Chah*-
feljor in the {HBnalty of aco/. to be conditioned for proving hie
^cbt, and the party a bailikrupjt before the «oipmiflioncrs,-au4
Vpon a trijdat law, (sT^. and if it ihall appe^ur that the cgmmijiiifta
was takcp Ml inttdttltAtljf » QnaU^uflyA tbt Chmsfi^Ufir oHif
Vol. IL L order
I4tf MXCRABLMAS TsRMi ^Geo. II!. I762«
«irder {atUfa£lion to the party grieved^ or may aflign the bond to
die faid party, who may fue the fame io his own name. The
fecond point on which the judgment was moved to be arreded
waSt becaufe it is not averred in the third count, that the plaintiff
was not indebted to the defeiTciant in 20o A» or that h^ never com-
mitted anya^* of bankruptcy.
♦ - • • * *
This cafe was argued twice at the bar, in two former terms,
by Serjeant Hiwitt and Serjeant Bur/and for the defendant, and
by Serjeant Wbitaker and Serjeant Naref for the plaintiff; and
in this term the Lord Chief Judice gave the opinion of the whole
tenrti that judgment mull be for the plaihtiff.
I^rd Chief Judice — ^Upon the arguing of this cafe» the firft
obje&ion was, that this adion will not lie, there being a remedy
given 4>y ftatute, that a proceeding otc a commilTion of bank*'
mptcy was a proceeding in nature of a civil fuit ; and that no
•Aioh of this fort was ever brought : but we are all of opinion
that this adion is maintainable.
The general grounds of this action are, that the commiiBon
was fidfely and malicioujlj fued out ; that the plaintiff has been
greatly damaged thereby, fcandalized upon record, and put to
great charges io obtaining ^fu^rftdtas to the commiffion. Here
iAfalfebood and malice, in the defendant, and great wrong and
damage done to the plaintiff thereby. Now wherever there is
an injury done to a man's property by Tifalfe and malicious profe-
cution, it is moft reafonable he (hould have an a6Hon to repair
himfelf. See 5 Mod. 407, 8. 10 Mod. 218. 12 Mod. 2 lo. I
take thefe to be two leading cafes, and. it is dangerous to alter
the lai^. See alfo 12 Mod. 273. 7 Rep. Buiwer's cafe, u
2 jL«ii. — — . I Ro/l. Akr. 10 1. I Vea. 86. i Sid. 464. But
it is faid, this aAion was never brought \ and fb it was faid in
Mby and White. I wifli never to hear this objedtion again.
This aftion is for a tort: torts are infinitely various, not limited
or confi'ned, for there is nothing in nature but may be an inltru-
ment of mifchief^ and this of fuing out a commiffion of bank->
voLftcj fal/elj and maUciwflj^ is of the moft injurious confequence
^ Av trading country.
It is further faid, the Jot. 5 Geo. 2. has given a remedy, and
thetvfore this a£lion will not lie ; but we are all of opinion, that
in this cafe the plaintiff would have been entitled to this remedy
• by a£t!on al common law, if this aft had never' been made, and
that the ftatute being in the affirmative, hath not taken away the
remedy at law. a Kaym. 163. And this is an univerfal rule,
diat an affirmative ftatute is hardly ever repealed by a fubfequcnt
affirmative ftatute, for if it is poffible to reconcile two ftacates,
they ihall both ftand together. If they cannot be reooncUcd^ the
*" ' laft
Michaelmas Term, 3^?^. III. 1762; 147
lall (hall be a repeH oJF the firft : but tbe moft decifiTe anfwer
iS| that this ftatute-remedy is a moft inadequate and uncertaitt
remedy ; for though there be the moft outrageous malice and
perjury, and the party injured fuffer to the amount of ten or
twenty thoufand pounds, yet the Chancellor has >no power to
give him more than the penalty of itoo A BefideSy the method
of applying to the Chancellor is more tedious, expenGve, and in«
convenient than this cojnfimon law remeidy ; and this cafe, in its
nature, is more properly the province of a'jury than of any judge
whatcrcr. '
It is further objeded, that in the third count there is no aver^
ment that the plaintiflF was not indebted to the defendant, or erer
committed an ad of bankruptcy ; but no cafe waa cited to (hew
fach averment to be neceflary* The ground and fubftance of the
declaration isfalfehood and malice * there are no inftances of fuch
averments in amjpiracf^ that the party was innocent, or did not
do the fa& on which he was indiAed } but the precedents are the
other way. In an adtion for words ; as^ for faying a man it a
thief, the plaintiflF has no occafion to aver he is not a thief; and
this cafe is analogous \ for after the plaintiff has alledged that
the commiffion was falfe and malicious ^ it would be tautology to
make fuch averment that he waa not indebted, (5V. ; and this
declaration would have been good on a demurrer ; more dearly
it is lb» after a verdid. • . .
Judgment for die plaind^«
Marriot verfus Lifted C. B.
^RIS was an indebitatus affism^t againft defendant for money
* lent and advanced by the plaintiff to a third perfon at the •/^«*
defendant's rcqueft ; and after a verdift for the plaintiflF, the ^"Jia »•
judfTinent was arrefted in Eafter term laft. Vide this cafe before, fuibd.
•C^rr, 2 Geo. 3. Now the plaintiflF (having brought a writ of
error) produced an original writ, wherein it appeared that this
count was for money paid and advanced to a third perfon at the
rcqueft of the defendant ; and it was moved by Serjeant Nares
that the count might be amended by the writ, by ftriking out
the word lent^ and infcrting the vroxApaid inftead thereof j who
alledged, that it was the conftant practice in the King's Bench,
when a declaration happened to be faulty^ to file a bill which was
right, and to aifiend thereby, and that the court there never in-
quired whether the bill was filed before or after the declaration ;
and cited 2 Stra. 1 151. Wilder v. Handy ^ which was trefpafs for
killing a dog. After a verdiA for the plaintiflF, it was moved in
arrcft of judament, that the declaration ran by recital, •« Whcre-
" as,*' life, but a bill being filed right, (the time of filing, the
court r^fttfed to inquire into,) ordered it to be amended \ and
hz in
148 MicHASi^MAS TsuM, 3 Geo. UL 1762.
in MicL 23 Geo. a. Smith v* Ledbury^ it was laid in trovet that
the defendant was poirefle4 df a horfe inftead of the plaintiff: it
■«wa8 moved to amend, but Lee C. J. faid, there niuft be a bill
filed right to amend by : afterwards a bill made right was iiiedy
and the court amended the declaration by it^ though the po0ct
Son was the very glfi of the adion. But per C. J. Pratt ct Ut»
^curtam^^We mud prefiime the plaintiff proved money leftti fof
your verdiA is for money lent to a third perfon, and no precedent
can b^ the WB. wherever fuch an amendment as this prayed was
ever made : the amendment now prayed is at the common law i
the ftatutes of amendment lead us to fee what power we had at
law; to amend i we had no power to amend after the firflt tcrm^
when the record was made up and the roll carried in ; but finc^
the ftatutesi courts have gone a great 'way further. Sec j Lev.
347. But there is no flatute goes fo far as to empower us to
• make an amendment^ which would alter the trial, or the iflue;
the ifliio at the trial was, Whether tiie plaintiff lent a third per*
fon money at the defendant's vequeit i 'tind you would bow make
the ifftie to be, Whether the plaintiff paid a third perfon money
iit defendant's requeft ? This would be to alter and change the
record in a mod fubftantial point. We are bduhd by the record
and the verdi£^, and^mull take it to be true, that every part of the
declaration was proved at the trial. The plaintiff haffmiftakeo bis
action ; and if we were to allow this amendment, great iiKon*
venience would enfue ; for then we fhould. lay down a r^lc, that
•whenever the plaintiff had obtained a vcrdift in a cafe where He
. had no legal caufe of adtton, he might afterwards fue out an
original writ, whefei» he hjid good and legal caufe of a£kion, and
»nend his recoKl thereby,, and recQver upon an iffue which had
never been tried ; for it has never been tried in this caufe whe-
ther plaintiff /tfi^ money to a third pcrfonr at ihc inftance of the
defendant, but only whether he tent money to a third perfon at
the defendant's requeft : and for thefe reafona the amendment
was refufed, notwithitanding the praftico of the King's Bench
was very much infifted upon by the plaintiff. Brother N^u for
the plaintiff, brother HewiU for the defendant.^
Wills verftis Maccarmick. , C. B*
Debt upon TTvEBT upon an award, whereby it was awarded that Uw de-
S d^t! fcndant fliould pay to the jsjaintiff frjo/. 1 6/. 94/. &c. The
Ptftitiity in~<^c^<i^nt pleads that he doth not owe t^ the plaintiff the faid
the aibitra- 1 50/. 1 6/. 94/., and thereupon they were at iffue, which was tried
SJ^e^to bi ^^^^^ ^^^' Jufticc Noel on the weltcrn. circuit, and a verdia was
giveaiqcvi- found for the plaintiff.' And now it was moved for a new trial
dace. by Serjeant Damy^ becaulc the judge refufed to permit the de-
fendant to give in cvMtatt partioii^y in the arbitrators^ui nukisg
• the award. Davy inliited,.that Iq this cafe the ddh&dant COoUi
plead
MlCBASLHtAS TBAM, 3 G». IJL lj^2. I49
plead nothing but nil debet ^ and might thereupon give in eridence
any matter that deftroys the adlion ; that partiality and corrup-
tion in the arbitrators made tht award toid, and being fo, the
adion was deftroyed. But per turiam^^Tht plea of mJ Jeiet,
prima fatie admits the award, and there never was an inftfance
where this kind of evidence was permitted to be given }, it would
be to fuffetr evid<rnce that affects third ptfrfons, the arbitrarorr
tKemfclvet : an award is a judgtpent by judges chvfen by the par^ :
tics themfelves, and a jury in a fpecial verdi£l cannot find an^ ;
matter or fadl dehors the award : by pafity of reafor^, nothing
^<^i&^/ the awanl (as partiaftty is) can be given to them in evi-
dence. If this evidence was permitted, the plaintiff would -br
wholly unprepared at the triali foy all that he hu to do, is to;
prove the fubmiffion and the award; the ct>miption or partiaiity-
of the arbitrators may be wholly unknown to theplain^tiff; it con-
cerns the arbitratots themfelves. In a trial at law, this matter of
partiality and corruption can never be got at i there is no precedent' ^
at law of any tuHt to fet afide an a Ward, and wc muft go by pre.
cedent ; there is no cafe wherever this matter hath been pleaded :
the^at. W^ 3. fliews that an award at law muft ftand, for that
ftatute fayS) th^t wkh refped to awards made according to that'
ftatute they (hall ftand, unlefs controverted and fet afide in two,
terms. The remedy in this cafe is iri equity, or at law by a£lion
againft the arbitrators, if they have been corrupt. New trial
rcfuf^pd, and judgment for plaintiff, Serjeant Stanniford and
Ht^itt for plaintiff, Davy and Burtand for de^dant.
HH.ARY TERM,
3C^o. III. 1763.
J knight, one of the baibns m the court of Exchequer, having
lately been appointed by the king one of die juifticct «f Ui coutt
of the Bctidiy took his pUce ther< tfiit day.
i^a
%SCi HitARYTERM, 3C«>, IIL 1763.
Anonymous.
Vf^^^ Y\ EB*!* <>Q 3 l'<)<id vi^^ condition for the payment of a certain
nttt* before fum of money on a. certain day ; defendant pl<:ads payment
the day ' before the day; plaintiff replies, that the. defendant did not pay
(leaned ia iU. before the day, et dehoe ponitfefuptr patriam i defendant demursi
and plaintiff joins lii demurrer.
Nam Serjeant for the defendant admitted that the plea at firft
vas bad, but infifted the plaintiff had made it good by replying
and tendering iffue upon it, or that if the iffue was immatcfiali
there ought to be a repleader.
H<fuf// Serjeant ^»/rtf— This'is a cafe where defendant has ndt
jofaied iffue to the country, but has put bimfelf upon the judg-
ment of the court $ and though the replication be bad, yet when-
ever the cafe is upon a demurrer, the court looks for the firft
fault, which is in the plea here ;- and therefore judgment ought
to be for the plaintiff; and of that opinion was the court, and
gave judgment for plaintiff.
EAS TER TERM,
2, Geo. III. 1763.
Repington, Efq. Executor, &c. vcffus The Gover-
nors of Tamwortti School, and Collins, Clerk.
C. B.
*> J?, b^ing feifed of the advowfon of a donative, the clfnrel»i
•^•/ in his lifetime, becomes void \ then A. B, dies, (the church
being ftUl void}) having firft made his will and the pl,ai;ntiff.bis
executor, who has brought this quart impedit^ fuppofing hinifelf
entitled to this turn, as an executor is, in the cafe of a prefentative
benefice : after two arguments in the C J?., the whole court was
dearly of opinion that the right of donation defcended to the heir
' ' of
Easter Term, 3 Geo. IIL ijdj, ' t^i
of if. R^ and that his executor had no title, which he w6ttld
have badj if it had been a prefentative benefice.
^ tt was faid by the court, in giving this judgment, that before
the council of LaUrnn all benefices were like what donatives are
noWi that no lapfe could have incurrcrd in antient times, and
that biOiops had no right of inftitutioii before the time ot Ric. a. '
Ante concilium Laierancnfe (favs BraRom) nullum currebat timpui
contra pr^fentantcs, Seld. Hijf. Tithes^ cap^ 12. 79.380. And
the Chief Juftice faid, the author of the Codex^ never read thisi
chapter of S^/^/f, or he'has impofed upon the public; he faid
there is no cafe in the books to exclude the heir of a donative
from his turn in this cafe,, that a patron of a donative can ncvec
be put out of poflTcflion by an ufurpatlon. After a verdi£k fof
the plaintiflF executor; lie. jud^^ment was arreftcd, and the title
to the turn adjudged to be in the heir at law per totam curiam*
The King verfus John Wilkes, Efq. Member of
Parliament for Aylefbury. C. B*
r\N Saturday^ April '^o^ 17^3» "i the morning, the defendant A
^^ Wilies was arrcfted by two of the king's meflengcrs, by vir- ^fvWk-
tue of a warrant from the fccretary of ftatc 5 the •TENOR of ^^'^^
which warrant is in the words following: «< Georgie Montagu without bail,
'• Dunk Earl of Halifax, Vifcmnt Sunburv and Baron Halifax, ^i||J^^^^*
" one of the lords of his majcHys moft bon^urhU privr council, lieute^ wi"t\ng Tfe^
^* nafii 'general of pu majefiifs forces^ and principal fccretary ^Jlate s dlciom libd.
** Tbefe are in bis majejtfs name to authorize and require you [taking * '*'**• T^
" a cwflable to your ajijiance) to makeJlriB and diligent fearcb for put'biy'ht ..
" the authors^. printers^ and puhlifhers of fl fe£tious and treafonahle auihor 14
" /^r, intitled. The North Briton, Number XLV. Sator- ^^^^^^
** DAY, April 23, 1763, printed for G. Kearfley i» Ludgate* tbewwd
" ftreet, London, andthem^orany of them, having founds toappre* rv»»o«T.
" heni and feize, together with theis" papers j and to bring in fafe '^^^^
•* cuflody before me to be examined concerning the premifes, and fur* . '
*' tier dealt with according to law : and, in the due execution thereof,
«* all mayors, fheriffsf juflices of the peace, conflables, and all other
" his majefiy^s officers civil and military, and loving fubjeBs whom
'< it mag concern, are to be aiding and afjijling to you as there Jhall
« be occafion ; and for fo doing this JbaJl be your warrant. Given
•• at St. James'/ tbe tnventyfsxth day of April in the third year of
'* hit snajeftfs reign.
<< Dunk Halifax.
«• To Nathan Carrington, John Money, James W^atfin, and
«« Robert Blacimore, four of his majcfty's meflcngers in
•^ ordinary," • .
L4 The
J^ Easter TfeRi*, 5 Oeo. Ill, 1763.
• Tflt fafha mornings a copy of the above warrant having befa
obtained from the meflengers, whp then had Mr, Wifkrs in their
cwn cuftody, and an affidavit being, made of the truth of fuch
Mpy, ahd'thht Mr, Jf^Ukes wsls tbeH in cuftody of two of the
itbove 0ieflertgeT& at his houfc in Great George^JIrtet ia Weflmin-'
Jter^ the famtr were produced in the court of Common Pleas the
fame 30th day of April at twelve o'clock at noon, or a few mi-
liutes before or after that hour; whereupon, at the fame time,
ft was moved by my (earned brother Giytifty that a writ of &i^^'i^
t^rpus might be allowed to ifTue infiafffiy^ returnable JorthvoiiL
The L6rd Chief Juftice Pratt wa« pleafed to fay that thh was a
mod extraordinary warrant ; and the court o^dcied an habeas
W>)>w^tobe iflued inftantly, returnable forthwith, Itl>cing now
Ibbut one o'clQck^ the rule of court for the ifluing the hahciis
i&rpui could not poQibly be drawn up and enteredi nor could ths
writ be madeouty iigned, and paiTed under the feal of the court
before four or five o'clock in the afternoon : and although it was
certainly known by the officers under the crown, particularly by
f Who bad l/lx.Vrebb*^ then fplicitor to the treafjury, that this writ had
jn^ \^IT' ^^^" ordered to iflue by the court between twelve and one
Bryaiihs o'clock, while Mr. Wilkes was in the cuftody of the meflengers
lii« before ^i {jig houfc. in Great GeBrge^Jlreett yet, before the coming of
the writ to the meflengers, (the fame afternoon about five
p'clocky) Mr* Wdhcs was haflily (I had aimed faid in contempt
pf tjie kipg's high ^purt) committed to the T^owir of Lcnion^
Mr, WUltes'*^ follcitor, and one of his counfcl, foon after they
heard of fuch commitment, went to the Toioer in order to con-
fult and advife wi^h him, but were denied admittance to him;
Major Raftsford informing them that he had received orders
vti^^^ ^*" ^^^^ ^^^ t f*^^^^^^^y ^f ^^^c "^^ fo admit any perfon whatfocVer
^'^ to fpcak with> or fee Mr. Wilkes ; and further informed them,
that he had juft before refuftd the Right Honourable Earl Tempk
fuch adn^ittance, ut audivi.
On Suuday May the firft, the fame gentlemen went again to
the Tiw^r, between the hours of twelve and orie, on the fame
occaGon, but were again denied admjltancc t6 (ce or fpeak with
Mr. Wilkes \ and foon afterwards, fevcral noblemcA and gentle^
men of the firft diftinftion were refufed admittance to fee of
(peak to Mr. Wilkes, and particularly his owi\ brother was rc^
f ufed) yt audivi. *
After fuch d^uial, Mr Wilkes's folicitor demanded cf Ma/or
Ransford a copy of , the warrant of commitment of Mr. Wilkes to
the Towerf^hich was readily granted by the major, the TENOR
whereof is in ^he words following : " Charles ^<!ir/ ^£gremont,
«• and George l3unk Earl of Halifax, lords of tis tnajeflfs mofl
•* honourable privy council^ and principal fecretaries of flati : Tbefr
«< are in his uifljeffs name to a^ihrtT^ and reysire you to receive
€€
Easter Term, 3 Geo. III. 1763. ijj-
(' into jntr etffioiy the body of John Wilkes efq. benwiikfinf j$u^
^^ fir king THE AUTHOR AND PUBLISHER OF A MOST INFAMOUS
•* AND SEDITIOUS. LIBEL, INTITLED, THE NoRTH BriTON,
*< Number XLV. tending to. inflame thb minds and
*' alienate the • affections of the PEOPLE FROM HU
'* MAJESTY, AND TO EXCITE' THEM TO TRAITOROUS INSUR-
•* RECTIONS AGAINST THE GOVEFNMENT, AND TO KEEP HIM
SAFE AMD CLOSE, «///// luf Jball he delivered by due courfe of "
** lavf ; and for fo doing this fball he your warrant . Given at
** St. James'/ the ^oti day j/* April 1 763, in the third year af bis
«* majeflys reign. '. Egremont, Dunk Halifax,
*• To the Right Honourable Jclin Lord Berkley j/^Stratton, c&n^
^.S flahle of his majejly^s Tower £/* London, or to the lieutenatU
" afthefaidToittXf or bis deputy!*
Mr. Webb^ folicitor to the treafqry, 'being prcfent in Major
Jiansfor^^ room when tlie copy of the faid warrant o£ commit-
ment was granted, Mr. Wilkes's counfel and foHcitor applied to
Mr. Webb for admittance to Mr. VTilles^ whereupon (it is true)
Mr. TVebh defired the major to allow fucfi admittance, and faid he
would be anfwerable and indemnify the major ; but the major^
with the true fpirit of an excellent officer, anfwered, << be would
** not, or be could not difohey orders i^* Mr. Webb replied, and faid
he imagined, or he believed there mud have been fome miftake
in the orders, and that if either of the fccrttaries of ftatc Were
in town he would apply aind endeavour to obtain the defired
admittance, and that if he could fucce^d therein he would fend
or bring an order for that purpofe in the afternoon of the fame
$unday% May the firft ; whereupon Mr, Wilkes's counfel and
folicitor 4e parted from the Tower for fome hours* and between
the hours of eight and nine in the evening of the f^me day re-
turned again to the Tower, and applied for admittance to Mr.
Wilkes i but the major not having received any orders or mcf-
fuage from either of tjie fecretaries of ftatc, or from Mr, Webb,
^fttfed admittance, a^ he had-done before, uiaudivi.
On Monday the 2d day of May, at the fitting of the court of
Common Pleas in the morninjj,. the meflengcrs returned the
writ of habeas corpus which had ifiued and been delivered to them
'on the 30th of y/pril in the afternoon after Mr. Wilkes was out ^
of their cuftody, and committed to the Tower as above } the
TENOR of which return, indorfed on the fame writ, runs thus ;
t«?. « In obedience to the within command, we humbly cef tify
«< to his, majedvU juilices of the court of Common Fleas at
f* Weftmihjler, tnat at the time of the coming of this writ to lis
** the within-named John Wilkes was not, nor at any time fince
«' hath been m our cuftody. Or in the cudody of either of us (
<< figned by two of the meflcngers to whom th^ writ was di«
f* rcftcd.''
ITpon
J^4
lnthecaf«of
Sir WiUiaai
Mornif who
had a habeas
corpQs for
his wife, the
ftturn was
like the pre-
fant
TheUkeia
Kol flics* t
cafe for his
wife B. R.
•hour MI.
ch^eimas
term 1765.
Easter Term, 3 Ceo. III. 176^^
Upon reading tht writ and the retuni thereof, it was moTcd
by the king's ferjeant that the fame might be affiled of record.
To which Serjeant Glynn for Mr. JFilifs objeded, andinfifted
that the return was too general in this particular cafe, (although
it might be a good return in another cafe not circomftanced like
the prefenty) for that it clearly appeared to the court by fuffictent
rridence» viz, the affidavit and warrant of arreft and feizure of
Mr. Wi/teSf upon which the writ was founded and granted Jaft^
Saturday at noon, that Mr. Wilkes was then in the cultody of the*
mefiengers, and therefore they ought to have return<rd and cer-
tified to the court in what manner ^ when and by what authority he
was taken out of their cttflody, and what was become of his body.
Some of the king*s ferjeants replied, that all the precedents
of returns of writs of habeas corpus in the crown-ofGce> where
the party therein named was not in the cuftody of the mefleiu
gers (to whom the writ was direfled) at the time of the coming
of the writ, were like the return in the prcfent cafe -, which
aflertlon, at firft, feems^l to have weight with the Lord Chief
Jufiice and two others of the Judges^ who thereupon thought the
return well enough ; but Mr. Juftice Gould was pleafed to fay he
much doubted whether the precedents in the crown-office of
returns to Writs' of habeas corpus yfrttt like the prefent return^ as
had been aflerted by the king's ferjeant ; and faid, if the prece*
dents were not fo, he ihould be of opinion that this was ^n in-
fufficient return, becaufe he thought, from what appears in evi-
dence in the cafe, the court h,)s a right to know what is become
of the king's fubjefl Mr. Wilkes^ fincc he was in the meflengcrs
cudody lalt Saturday at noon; whereupon [hafitante curia) the
writ and return were not permitted to be affiled of record upon
this motion ; ^nd precedents were ordered to be looked into> and
the matter of the return was ordered to be debated at another
day i but I never heard that it was. ' ,
Afterwards, the fame Monday^ May 2, a motion was made to
the court, grounded upon a copy of the aforefaid warrant of
co(nmitment of Mr. Wilkes to the Tower^ and an affidavit of the
truth thereof, for another habeas corpus to be dire£ied to the con*
(table, &r. of the Tower o! London, which was grantedj re-
turnable without delay.
Tuefdayt Ma% 3. At the fitting of the court (which was
crowded to fuch a degree as I never faw it before) in the morti«
ing Mr. Wilkes was brought to the bar, and fat among the fer*
jcants, (next to the reporter, on his left hand,) when the lieute*
naht of the Tower ' returned upon this fecond writ of habeat
corpus the warrant of cfommitment of Mr. Wilkes to the Tower
by the two fecretaries of ftate, (before fet forth,) which bein^
read| Serjeant Glynn moved the court that Mr. Wilkir'nA^ibc
difchargcd
Easteh Term, ^Gco. IIL X763J 155
rftfcharged out of cuftody without bail ; and grounded kis mo-i
tion on three points, two whereof were qbjedions to the legality
of the warrant of eommitment (the reader will obferve that the
general tvarrant of arrefi and feizun was not now before the
court, and therefore the legality of that could not now be de-
bated) ; the third point waS| that Mr* Wilkes was a member of
parliament, and therefore was privileged, from being arrefted
for any crime except treafiny felony^ and breach of the peace: and
diat fuppofing him the author of the prefent fuppofed libel, ,
(which he abfolutely denies*) it is only a mifdemeanor, and none
.of the three abovementioned crimes or mifdemeanors.
The firft obje£lion taken to the warrant of commitment Vras,
that it doth not appear to the court that tfix. Wilkes was charged
by any evidence or information upon oath before the fecretaries
of ft ate, that he was the author or publiflier of the Xorth BritM,
Number XLV. ; that, for any thing that appeared to the court to See x Jum
die contrary, the fecretaries of Rate committed Mr. Wtlies to the '1- Buihci't
Timer f upon their own mere imagination or fufpicion that he ^10)1. c< «.
waa the author and publflier of this fuppofed libel. Bacons ritit
Commie.
The fecond objedion taken to the warrant of commitment ■^*»^l-
waSi that it Was. too general, and doth not fet forth fufficieiit,
fttbftantial matter, whercupqn the court can judge whether the
North Briton, Number XLV. (fiappofing Mr. Wilkes the author
and publiflier thelreof) is a moft infamous and fedttious libel, '
tending to inflame the minds and alienate the affeAions of the
people from his majefty, and to excite them to traitorous infur-*^
redions againft the government ; that the warrant not having
fet forth the North Briton, Number XLV. or fuch paru thereof
as the fecretaries of (late deemed infamous, feditious, '^c. the
court cannot judge Whether any fuch paper ever exifted, it pot
being before them, or if it does exift, whether it be an infamous
libel or not.
In the third place, fuppofing the warrant of commitment to
be good, yet that Mr. Wilkes, being a memker of parliament, (which
was admitted by the king's counfel,) is privileged from arrefts
in all cafes except treafon, felony, and ACHJ AL breach of the
peace, therefore ought to be difcharged without bail ; that libela
may, and often do tend to the breach of the peace was admitted,
and therefore the court of King's Bench frequently grants in-
formations againft the authors, printers, and publifliers thereof;
but this is never done but upon affidavits laid before that court,
aifcertainingtbe faid authors* printers, or publifliers ; for furely
that matter which only tends to a breaeh of the peace cannot
with any propriety be laid to be an a£tual breach of the. peace;
and it was faid, that it is univerfally a^eed a libel is not an
a£taal breach of tihe peace, therefore u was infifted for Mr.
Wilkis,
156 Eastjsr TerM|-3 Gto.llL 1763; '
WiHerj that upon this point alone (although the othert (hdttid
be over ruled) he ought to be difcharged from his imprifoament
iu the Tower^ without bail*
Mr. Serjeant Hewitt for the crown, in anfwer to the firft ob-
jcdlion, (aid, that it was not neceffary to fet forth the evidence, or
information upon which the warrant of commitment was madcy
in the warrant; but as to the fecond objecliony he admitted
that it m'uft appear upon the face of fuch warrant for what par-^.
ticular /pedes of a crime or mifdemeanor the party was com-
mittedy according to the cafe of the Ktngv. Roe and Kendall^
I Sfltt. 345. ^ Mod. 78. ;.and that in the prefcnt cafe, if the
. commitment had been for writing and publifiiing a libel gMe>^
rallyj without fpecifying the nature ami tendencv thereof^ it
would have been fV// but here it isXaidtobe *^ for being the
*< author and publi(herofa moft infamous and feditious libel,
*' tending to inflame the minds, and alienate the affeflions of
<< the people from his majedy, and to excite them to traitoroui
*< infurre^ions againft the government.'^ Thi& he thought wal
a fufiicient fpecification of the nature of the libel, and of the-
mifdemeanor fuppofed to be committed by Mr. Wilkes againft
the government; but hefaid he wouM not be under(^ood td af-
firm that the paper called the North Briton^ NumhrXLV.
(which wa^ not before the court) was a libel $ that he had fottnd
no cafe upon a libel like this, and therefore could not fay %tfiai
was a fufficient and precife certainty in a warrant of commitment
for a libel; but he thought it not neceflary to fet forth the whole,
or any part thereof, in the warrant*
As to the third dbj&£tion of privilege, Serjeant Hevfiti ad«
mitted that Mr. Wilhes was a, member of parliament, and could
not legally be arretted but for treafoiiy fehny^ or breach of^ihe
peace: he cited Hob. 215. Hiclt% cafe, to (lie w that « libel t^ndfi
to the breach of the peace \ but whether the pre/umed libel in
the prefeht cafe Nvas a breach of the peace or not, he would not
take upon himfelf to fayf nor would he fay that the arreftillg
Mr. Wilkes in the prefent cafe was not a breach of privilege ^fthe
Houfe ofComntotiSt
' Serjeants Whiifiher^ NafeSf and Davy^ for the King, fpoke to
the like effect *, but none of them affirmed that the writing or
pubiifhing a libel was an a£kual breach of the piace, (a« I itn«
derftood,) or that the arreft of Mr. Wilies, in ihe prefent cafie,
* was not a breach of privilege of parliament, and (t think) th^
all declined faying any thing more 3bout the privile^ of parUa*
ment than what Serjeant Hewitt had faid befolt. When ibt
king's ferjeants had condudcdi Mr« Witiee made tlie following
fpecch to the court : "^
Easter Term, ^GcqAU. 1763. 157
. ^ My Lord! Jam baf^ to appear iefors your Unfflrip 4W thh
5* iourtt where liberty u Jo Jure of finding proteiiion andfupport^ and
<< mihere the law (the principle and end of ivhicb is the prefervation
*^ rf liberty) is Jo perftElly underjlood. Liberty! my Lord! hatb
.*« ieenjhe goverfiing principle- of every gclion of my Rfe; and^ aSwUed
<* ky itt I always havt endeavoured toferve my gracious fovereigU
<* and his family t knowing his govirnmcnt to be founded ipon iti but
*< OS it has been his misfortune to have employed minifiers tuho have
" endeavoured to ca/l the odium^ and contempt arifingfrom their own -
" terrible and corrupt meafures on the f acred perfon rf their fovereign
<* and benefaBor^fo mine has been the daring iq/k to refcui the royal
•< perfi^nfrom Unplaced imputations^ and fix them on the minifiers,
** who alone ought io bear the blame and the punifhment due to their ' '
" unconfiitutional proceedings. For the proof of my zeal and affeQiou
•* io my fovereign I hax*e been i\nprifwed^ fent to thf Tower, und
*< treated with a rigour yet unpraQifed even on SCOTTISH
*^ REBELS ; but however thofif ^ay firive to defiroy me^ whatever
** ptrficutioH they are now meditating againfi me, yet to th world I -
**Jiall proclaim^ that offers of the mofi advantageous and lucrative
*^ kind havi been made tojeduu me to their party ^ and no means left
'* untried to %vin me to their connexion : now, as their attempts to
** corrupt me have failed^ they aim at intimidating me by perfecution:
^ but as it has pleafed God to give me virtue to ref^fi their bribes^ fi
** / doubt not but he Vfill give mefpirit to fur mount their threats in
^ a manner becoming an knglifliman who would fuff'er thefever^
>< trials rather than officiate with men who are enemies to the liberty
•* tfthis country : their bribes 1 rejeffed,* their menaces Idefy^ and /
** think this is the mifi fortisnate event of my life, when I appear b<^
^^Jorfyour lord/hip and this courts nuherc innocence is/urf ffprotfc*
•* fiottf and liberty can never w^nt friends and guardians,**
Then the cpurt took time to confider, and appointed Friday
following to give their opinion, and ordered Mr. if^ilies to to'
Tcaiandcd to the To^verf and to be brought up again to the bar
on Friday the 6th of May; and upon that day, Mr. Jf^illies being "
9gain at the bar, the Lord Chief Jullice delivered the opinion cS
t£n whole COM.
XiQrd Chief Judice Prdtt^ after dating the* warrant of conamit-
ment, (aid, there are two obje£liond taken to the legality of this
warrant, and a third matter infifted on for the defendant^ is pri*
: vilcg^ of parliament.
The fird objeAion if* that it doef not appear to the qourt that
Mr* TVtlhts wa« charged by any evidence before the fecretartes of
ftatei that be waa the author or publiOier of the North Briton^
Mttmbfr XLV. . In anfwer to thi^, we are all of opinion, that it i»
not ncceflary to ftate in the warrant tlvit Mr. Wilkes was charged
by ai^ evidence b^foije th^ fecrctarics of jflaUy .^nd that thi^ ob*
♦. . ^ , * " * jeclion
15^ l^AiTBHTi^iA^ $Gto.lIL 1^0$.
je^lion has no werght. Whether a jufttce of peace can, fir offtcht
-withoat any evidence or information, iflue a warrant for appre-
hending for a crime, is a different queftion : if a crime be dont
in his fight) he may commit the cri/ninal upon the fpot ; biit where
he is not prefent, he ought not to commit upon difcretion. Sup-*
pofe a magiftrate hnth i^otice, or a particular knowledge that %
perfon, has been guilty of an ofience, yet I do not think it is a
fufficrent ground for him to commit the criminal ; but in that
cafe he is rather a witnefs than a magiftrate, and ought to make
oath of the {z€t before fome other magiftrate, who fliould
thereupon a£t the official part, by granting a warrant to appre-
hend the offender, it being more fit that the accuftr (hould ap*
* , pear as a witnefs than a£t as a magiftrate. But that is not the
queftion upon this warrant ; the queftion here is, Whether it is
an eifential part of the warrant that the information, evidence*^
oir grounds of the charge before the fecretaries of ftate, ihould
be fet forth in the warrant ? And we think it is not. Thmar
RudyariTs cafe, 2 Vent. 22. cannot be applied to this cafe, for in
the cafe of a convidion it is otherwife. It was faid that a charge
by witnefs was the ground of a warranty but we think it not
requifite to fet out more than the offence, and the particular
fpecies of it,' It may be objeded, if this be good every rhan*s
liberty will be in the power of a juftice of peace. But Hak^
Cote^ and Hawkins take no notice that a charge is neceflary to be
iet out in the warrant. In the cafe of the feven bijbeps their
counfel did not take this objection, which no doubt but they would
have done if they had thought there had been anj weight in it*
I do not rely upon the deterifiination of 'the judges who then
prefided in the King's Bench, I have been attended with many
precedents of warrants returned into the King's Bench ; they
are almoft univerfally like this ; and in Sir William Wjndbanfs
cafe, 1 Stra. 2, 3. this very point before us is deterifiined. And
HatukiftSf in his 2 PL Coron. \2o. fedl. 17. fays, <« It is f af e to
•• fet forth that the party is charged upon oath ; but this u nU
** neeeffarji iox it hath been rcfolvcd that a commitment for
*' treafon, or for fufpicion of it, without fetting forth any par-
*< ticular accufation, or ground of fufpicion, is good^'' and
cites Sir Williatn fTjndtam^s cafe, 2V//i. 2Geo» DaJt* cap* 12S»
Ocmp.233. *.
The fecond objedion is, that the libel ought to be fet forrfi
in the warrant in hac verba ^ or at leaft fo much thereof as the
fecretaries of ftate deemed infamous, feditious, {9*^/ that the
court may judge whether any fnch paper ever exifted, or if it
does exift, whether it be an mfamous and feditious libel or wA.
But M'e are all of a contrary opinion : a warrant of commitmcat
for felony muft contain the fpecies of felony briefly, ** as for
•« felony for the death of J. S., or for burglary in bieaking rhe
15 i«houfc
Easter Term, 3 Geo. III. 1763* 159
« liouCe of J. S. &c. ; and the reafon is, becaufe ic majr ajipeat
*< to the judges upon the return of an Meai cprptis^ whether it
^ be felony or not." The xnaf^iftrate forms his judgment upon
the writingt whether it be an infamous and feditious libel or not, .
at his pcrilj and perhaps the paper itfclf may not contain the
whole of the libel ; inuenJ^es may be neccfljiry to make the whole
out : there is no other word in the law but libel whereby to ex-
prefs the true idea of an infamous writing \ we underftand the
nature of a libel as well as zfpeciis of felony^ ; it is faid the libel
ought to be ftated, becaufe the court cannot judge whether it is
a libel or not without it ; but that is a matter for the JuJgf and
Jury to determine at the triaL If the paper was here, I Ihould
be afraid to read it* We qiight perhaps be able to determine
thia it nuas a Hbel^ but we could not judge that it was not a libel^
becaufe of imundoeij &c. It may be laid, that without feeing;
the libel we are not able to fix the quanUtm of the bail } but in
anfwer to this, the nature of the offence is known by us ; it is
faid to be an infamous and feditious libel, (fo i it is fuch a mifde-^
meanor as we Ihould require good bail for, (moderation to be
ebierved,) and fuch *as the party may be able to procure.
The third ms^tter infifted upon for Mr. Willej is, that he is a
member of parliament, (which has beea admitted by the* king's
ferjeantSi) and entitled to privilege to be free from arrefts in all
cafes except treafon^ felony^ and aBual breach of the peace^ and
therefore ought to be discharged from imprifonment without
bail i and we are all of opinion that he is Entitled to that privi*
lege, and muft be difcharged without bail. In the cafe of the
froenhijbops the court took notice of the piivilcge of parliament,
and thought the bifhops would have been entitled to it if they
had not judged them to have been guilty oC a breach of the peaces
for three of them, Wright^ Holloway^znA AUybone^ deemed a fedi-
tious libel. to be an actual breach of the |>ejce, and therefore
they were oufted of their privilege moftimjuitly. If Mr. Wilkes
had been defcribed as a member of parliament in the return, we
muft l^ave taken notice of the law of privilege of parliament,
otherwife the members would be without remedy where they are
wrongfully arreded againft the law of parliament} we are
bound to take notice of their privileges, as being part of the law
of the land. 4 Injl. 25* fays, the privilege of parliament holds
unlefa it be in three cafes, Wz. treafon^ felony^ and the peace ; thefe
are the words of Coke. In the trial of the feven bifliops the
wordpeacet in this cafe of privilege, is explained to mean where
furety of the peace %9 required. Privilege of parliament hold^
in informations for the king, unlefs in the cafes before excepted ;
the cafe of an information againft Lord Tankerville for bribery,
4^/i»4f, was within the privilege of parliament. ,See the re-
folution of the Lords and Commons, anno 1675. We are all of
opinion that a libel is not a breach of the peace : it tends to
fit breach of the peace, and that is the utmoft. 1 Lev, 139.
.But
i65 E^STEH TfiRM, 3G^&1II. i;6j.
But that which otily tencis to tho breach of the peaqe cannot h€
a breach of it. Suppofc a libel be a breach' of the peace^ yet t
think it cannot exclude privilegei becaufe I cannot find that a
libeller is bound to find furety q/ thepedce^ in any book whatever^
nor ever was, in any cafe, except one, titz. the cafe of the
fiven bl/bopSf where three judges faid, thzt farety of the peac0
was reouired in the cafe of a lUfei: Judge Fowiil^ the only honeft
matt or the four judges, diflented, and I am bold to be of his
opinion, and to fay that cafe is not law ; but it (hews the mifer •
able condition of the (late at that time. Upon the whole, it is
abfurd to require furety of the pe^^e or bail in the cafe of a
libeller, and therefore Mr.* JFi/ies muft be difcharged front his
imptifonment :* whereupon there was a loud huzza in Wefimlnfin^
talL He was difcharged Accordingly.
Leeman verfus Allen and others. C. B.
Iftprifdn- . qpRESPASS, aflault, and imprifonment, to the plaintiff *$
?*"bMr* damage of 300/. The defendant pleaded the general, iffue %
/o'ol.^d"' upon the trial th^ jury gave a verdift for the plaintiff, and 300/.
inaget not damages ; ill the paper-book of the iflue, delivered' to the de-*
Mrfw^triai f^^d^nt with notice of trial, the damages (by miftake) were laid
refufei. only ?oo/., but the record of niffrius was right and agreeable
Vcniiaaot to the roll, which was 300/. damages; after a defence made
fetaade for at thc trials it ^a$ now jnovcd by Serjeant Nara for the defend*
WtJiL'n the *nt8^o fctaCde the verdift upon two mattery; 1/, becaufe therg
iflttede)i?er- U a Variance between the iffucrbook delivered » and, zd^ becaufe
cd and the tbc damage^ are cxceffive,
Rcordofnifi . .
It appeared in evidence at the trial, that the plaintiff kept th^
Rummer tavern in Chancerj^lane ; that the defendants are pcrfon^
called reforming conftables, and under pretence of a warrant
from one Kinaftony a juftice of peace, entered the plaintiff > houfi|
^Ith (laves, there feized and carried her into the yard, and faidt
•* nonif VMt have ^ot her^ t^vd will carry the biub to tavf prifon^
The defendants would not fay what crime (he was guilty of, or
^hargled with, jillitij the' conftable, had a warrant, but^he did no|
(hew it ; that the next morning the plaintiff went to Mr.Kinafion^^
houfe, but he was not at home ; then Die went to Juftic^ Cqx*99
%nd again to Mr: Kinq/lon*s, but none of defendants appeared
%o profecute her. John SlaJe, the waiter at the tavern, proved^'
that a man and a woman came to plaintiff's houfe (whp lopke^
like fe/low-fcrvants) between nine and ten o'clock one evening
in Eafier week, a few nainute$ before thi» impriCbnment w?#
done i that they appeared to be honeft, fobcr perfous, and cams
torefreOi themfelves; that he faw the • defendants armipd wi^
bludgeons, take and feize the plaintiff his miftrcfs j that ^/W
laid hglA pf her, wd fcid, «• /&« (famn\wf&' g Hf^i m
' - ' «* hove
|»rtot iifcer •
feASTER TerH, 3 Geo. \i\. 176JV 1$X
*• haifi got yoUf and we are detertmtied foujball go to New- Pnfon ;*'
other witnefies gave evidence to the like tScfX \ that thefe de-^
fendants called themfelves reformers; about twenty witnciles
proved the Rummer tavern to be a houfe of good repute, and no- '
body proved the contrary; it was alfo proved that one of th^
defendants (Iruck the plaintiff. That the defendants liever pro*
fecuted the plaintid*! nor did they appear againfl her when flie
went tcftrc the jartice next day. For the dcfcndafats, one Jt^iU
iiam Gardiner, who was accidentally prefcnt in court at the trial,
fwore he was at tKe Rummer when this affair happenedj and
that be heard no oaths, iior the word Mcb^ &c. it appeared
that the warrant was granted and figned by Juftice Kinaflon^ to
enter this hoiifc, upon an allegatioii that the plaintiff kept a lewd
and diforderly houfe; that, they had two warrants, one for Lon^
don and another for MlddUfex, becaufe this houfe (laiids partly
in and out of the city, which thoy kept five weeks before they
executed them ; that they frequently ii^atched the houfe, and
when they imagined any lewd perfons went into the' houfe they
took that opportunity to execute the warrant ; this is the ixi^
fiance of the evidence, whereupon the jury found for the plain*
tiff, and 300/. damages*
Qh\et JuJUce-^xft, As the defendants made a defence at the
trial, the court will not fet atide the verdidl for the variance be-
tween the iffue*book delivered ih paper, and the record of mji
priuf^ which was not mentioned or. objeded to at the trial ;.an<l
if the record of njjl prius had been tfcrroug, the court wcfuld have
mended it by the roll, after a verdiA and a dcftnce made.
2i/»- As to the exceflivenefs of dan;iage8, courts (hould be very
cautious how they overthrow verdidis that have been giveh by .
twelve men upon their oaths ; however, if damages be unrea-
fohable smid outrageous indeed, aitf aoco/. or 3000/. was to be
given in a iittle battery, which all mankind might fee to be un*
reafonable zt firft bltiOi ; certainly a court would fet -afide fuch
a verdidi, and try whether a fecond jury would not be mor6
reafonable. The tule in the cafe of AJb znA AJb, Comb. 357.
laid down by Lord Hdlt, is a good one : *' That the jury are to
'^ try caufes Mrkh the afliftancc of the judges, and dught to givt
** their reafons, ^hcn required, that if they gO upon any mit
" take tHeJ ntay be fet li^ht \'[ and for their not doing fo, and
for exccffivenefs of damages, a new trial was granted. And thh
rale b univerfal, and extends to all forts of a£iions. But it may
be faid. What rule has the court to govern themfekes by as to ^
matters of tort f I anfwer, the court muft be able to ny tfab ^ '
damages are beyond all meafure Unteafonable, though they cari-
not fay ei^aCkly what damages otight to be given. I do na think m
the damages exceflive in the prefent cafe ; hete are a number of
perfona like a new fort of grand jorv» who meet once o^ twke
Voi.,U. M ' i»
ill a week, atid takc^upon thcmfelves to prcfcnt, corred, rtfomi
and commence profecotions } a warrant is granted by Kinafton^
a reforming juftice, on the information of one Trifiramj who Is
Bed for axi abominable crime } there was no account given at
the trial of the matter of his information to Kinafton^ who fvX
not appear, though he yjz^ fuhpasnaed : the warrant is pocketed
five weeks ; the defendants watch and wait till they can dodge a
lewd wonlan into the out- rooms of this houfe, where they had
hot been five minutes^ before the defendants entered with
bludgeons, and feized upon the perfon of the plaimHF, and
would have carried her to prifon that night, if her neighbours
)iad not then interpofed and undertaken that (he ihould appear
t>efore Juflice Kinafton next morning, which (he did, but the
defendants never purfued the warrant one ftep farther. I think
the King's Bench would grant an information againft tbefc per-
fons for fetting thcmfelves up as a kind of grand jury; an in-
former is a mod odious charafker \ and I am glad of an oppor-
tunity of declaring my diflikc towards thefe reformers. The
whole court refufed to fet afide the verdid ; and the plaintiff
had judgment.
Roe, on the Demife of Afhtdn, verfus Hutton and
others. C. B,
Copyhold 1^ JlECTMENT of copyhold lands, tried at Lincoln ; verdift for
toThelJfc'^f ^^ plaintiff, fubjed: to the opinion of the court, upon the
iTwiif, \%L. following cafe :
▼ifedtolix
Sfl<^°to ST "^^^^ ^^'^^ *^^ Chapter of Peterborough being feifed of the ma-
«dmitted,the V^ of D. by leafe, dated tlie 2ift of May 1759, demifed the
lord refufes fame {to one Ch. AJiroppe^ who died 21 ft May 1 760, and) to the
him'theiord ^^^^*' ^^ ^^ plaintilF for 21 years; afterwards, one Martin
cannot feise being tenant of the copyhold lands in queftion, furrendered to
quoufq. &c. the ufe of his will ; and thereby devifed the fame to Join Hutton
and five other perfons in truft, kffc. and died. John Hutttn
went to the lord's court, and defired to be admitted tenant^
upon paying his proportionable part of the fine, but the lord
refufed to admit him, unlefs he would pay the whole fine for
himfelf and all the other five truflees, which be refiifed; an-
other of the cruftees appeared in court, but refufed to bead •
mitted upon any terms at all ; the other four never appeared in
court, and kni word by thefe tw6, that they diiTented, and
would not be admitted ; whereupon three proclamations were
made for all the fix truftees to come and be admitted, or the
whole land would be feifed into the lord's hands 'as Corfetied,
and afterwards the lord entered for the forfeiture fuppofed \ this
is the title of the Icflbr of the plaintiff.
Easter Term, $ Geo. III. 1763. 163
The whole conrt held, that the lord ought to have admitted Tho. Raym.
Jk Huttat, who offered himfelf, and then the lord might have ^'' 4^*
proceeded to recover his fine for all the fix tniftees^ if it was
either due by law or the cuftom of the manor^ and he has been too Latch 14.
hadjr in entering for a fuppofed forfeiture before admittance, a J<»hi>fon*t
kizuxe quou/que is until fomebodjr comes to be admitted ; one 3*^^ -oS,
comes and offers to be admitted i fo it is dear the lord had no ^09. '
right to feizc. Sryics 141.
Judgment for the defendants, i'^'/; *'^'
Palmer verfus Johnfon. C B.
npR^PASS fpr cutting down the plaintifi'^s trees ztBranion laictftlbr
* common in the county of Huntingdon i upon not guilty, theoj^nioo
there was a verdia for the plaintiff", fubjcd to the opinion of the ""^^^"^
courti upon a cafe referved, the (hort ilate whereof is as f(^- proved at the
lows: At the trial the'plaintiff', in order to prove he was in pof trial ought
feffion of the place in which, fafr. produced in evidence a paper |^j^.U*Jhe*
writing, purporting to be an admiflion of the plaintiff' to the evidence of
place in queftion as being copyhold, in truft for J. S. by the ^*^ ^'^f*
lord of the manor of B, It was dated that the trees were cut
down on Branton common by the defendant, and that the plain-
tiff himfelf was not a commoner, but was a truftee for J^S.
who has a right of common*
Serjeant Fcfier for the plaintiffl
The queftion is. Whether the plaintiff^ being a truftee for
^. 5. who is a commoner, can maintain trefpafs againft the de-
fendant for cutting down trees there; and unlefs the plaintiff* in
this cafe has trefpafs, none elfe has. Cro. Eliz* 349. Coie*f
Copyb. 70. It was obje&ed at the trial. How could the plaintiff^
call the trees bis trees ? In anfwer to this, Bro. tit. Tenant p$r
Copy. p. 2. ; tenant at will of a copyhold brought trefpafs for
cutting trees, and he had damages and judgment, although there
t)e another f rank> tenant \ quod nota, fays Bro. and cites 2 ^. 4. i a*
and tz Mod. 279' is trefpafs by a copyholder agalnft the lord.
Suppofe this had been a feoffment to ufes at the common law,
the a£lion of trefpafs mud have been brought by the feoffiees. ^
Hit. i^ H. T'fo. 2. pL 4* ceftuy que ufe cannot diftrain in his
own name. Gilb. Ten. 1 80. the datute of ufes does not extend
to copyholds, fo the plaintiff" is to be confidered as a feoffee to
ufes at common law.
Serjeant JFhitahr for the defendant.
Upon the trial of this caufe there was neither proof of title or
poffeffion in the plaintiff^, of the place in quedion, nor does the
cafe ftate any hSi of title or pofleffion in the plaintiiT, it only
M 2 dates
i64 Easter Term, 3 Geo, IIL- 1763.
ftates that a paper wricing, importing to be an ddmiflion of tbe
xRoi. AVr. plainttflFin truft, Wr. was proved ; wit this docs not prove that
S53«S.pl.i« ijjg cftatc is copyhold ; it is only prcfumptivc evidence that it is
copyhold \ the fa£l that the place in wliich, to'r. was copyhold^
ougnt to have been dated ; fo that neither of the fa£ts tliat the
plaintiff had title or poffeffion arc dated, and therefore the phin-
tiff cannot have this action. And of that opinion was the court,
and fet afide the verdift, but without cods#
, Anfon verfus Jefferfon. C. B.
Aeittomey HTHIS was a plaint In replevin levied in the county coOrt o^
S^of" Norfoii^ which was removed by the plaintiff into the C. Bm.
the entry to ^7 ^ recordare facias hquelam^ returnable on the morrow of the
bave ca(t*an Purification ot the Blcflcd Mary. The plaintiff fued out a poni
dffendMt* ^° compel the defendant to enter his appearance-, but inftead of
it jsfdl' appearing, he (by attorney) caft an ijfoin^ which is entered with
the clerk of the effhitn in the following words, trfa. ** On the
\* morrow of the Purificatioii of the BlefTcd Mary^ Noffoik^
** eJT^n for John Jefftrfin at the fuit of Anfin by Hemtell and
*< Lodge;'* and, the defendant's attgrney, Mr. Lodge, entered a
rule, that unlefs the plaintiff diould adjourn the efii^f a non
prof, would be figned. The plaintiff did not adjourn the effUn,
fo a nonprof. was figned. Upon (hewing caufe why the effhin
and the non prof diould not be fet afide, it appeared upon amda*
vit that Henzell and Lodge were agents or attomies for the de-
fendant, and had entered, or caft the effoim and therefore it was
infifted that the defendant was in court by his attorney; and it
would be abfurd to fay a man can effoin when he really appc^urs
by attorney, oi that he has a legal excufe for not appearing
when it is plain he has a£ted in the caufe by his attorney. It
was alfo faid that no ejjoin lies in perfonal anions, Sjmonds ▼.
Mayor ofTotnefs, Sr. Geo. Cooke's cafes ofpra^ce^ 8, In the cafe
of Barclay v. Earle, B. R. 2 Sira. 1 194. The defendant being
fued by original, and nrreded on a fpecial capias, caft an effhin^
and for want of the plaintiffs adjourning it, figned a fion firyi
The court declared there was no colour for the ejfoins and
though the plaintiff had proceeded to judgment after he was e»on
profed for not adjourning the effoin, yet the court would not fet
afide the judgment, notwithftanding it was alledged that the
plaintiff was out of court, as the nonprof. had never been fet afide.
Pratt, Lord Chief Judice— I cannot fay that effiins may not bcs
allowed in perfonal aaions, becaufc Coke in a Jnfl. on the Stat.
<f Marlhridge, fo. I ay, I2(S. 137. fays that effolns are allowed xn.
perfonal aftions } but this is a very obfolete pradiice, and a great
abufe of the law, as it is an unneceffary delay of juftice ; and if
the praftice is to be revired, it will be neceffary to make a new
Older of court.
Batiur/i
Saiiurfl J. T-Jiy the ftatute of /^>r/, 21 £i/. 2. /cfl. r2. an An aitprp«y
eflbin iieth not where the party bath an attorney in his fult ; "*y *^|?'*"»
and by ^A 4. an (^//i lieth not where the party ws^s fccp in, i,,"* Vourrhe
court. An efoin lies for an attorney though he is an officer of cannot,
the court ; but if he be feen in court he cannot /^//r, as was the
cafe of Mr. George Wheeler^ who was fecondary 10 prothonotary
John Barrett efq. and an attorney, and attended the holding
the tjfoin upon the eJfoin-dTiy of the fame term, wherein he cf-
ibined. Lord Chief Jujlice^^li was faid, the pone was a fum*
xnonsy and therefore die defendant might well ejfoins but it 13
not fO| it is only a prefixing of the day for the defendants to
appear at Weftminfter ; here is an attorney appears to have en-
lered the ejfoiriy and therefore it is void, and muft be fet afide,
gnd all proceedings thejreonf
f - ^ I - r
TRINITY TERM,
. 3 Geo. IIL 1763.
^!-n
Freeman, on the Demife of Vernon alias Bund,
verfus Weft. C. B.
EJECTMENT of a toft and certain lands in CharlUn in the a Infe l^
pariOi of Croptborne in the county of Worcefier^ tried at the Wvet to bt-
laft fummer affizcs before Mr. Baron Smytbe, when a verdi£t was fc^J^^
found for the plaintiffi fubjefi to ;he opinion of the court upon im^mml,
thi5.cafe» {viz.) It appeared in evidence that the dean and chap- •»* fc^fio
ter of fForcefler were fcifed in right of their church of one of ^'2^]t
the manors of Chariton in the faid pari(h of Cropthorne, and good, lod
being fo fcifed, by indenture bearing date the a6th day of Nor ^»no«b«
vember 1750, between the dean and chapter of the one part, and ~ J^^^J
the plaintiff's leflbr of the other part, the dean and chapter for bold w com-
a valuable confideration granted the faid manor of Charlton (of o^nce ia
which the premifes in queftion are part) to the plaintiff's leffoTy *^'*"^'
to hold to nim and his hximfrom the day of the date thereof, for
the Uvea of t^ee perfons who are (UU livLng, under tbe )earl;|f
»^ J icntt
futttlO.
i65 Trinity Term, ^Geo. III. 1763,
X rents therein referred } and in the leafe power is given by the
denn and chapter to William Bund^ as their attomey* to take
pofleflion of the premifes, and to deliver feifin thereof to the
plaintifPs leffbr, according to the tenor, tStfkf and true mcani
ing of the faid leafe ; in purfuance of which power, feifin was
delivered of the premifes by the faid William Bund to the plain-
tiflF's leflbr on the 28th day of May 1 75 1.
It was objcfted on behalf of the defendant, that this is a Icafc
of a freehold \ and being made to commence infuturo^ is there-
fore void.
The queftion for the opinion of the court is, Whether this
leafe, as it is made to commence from the daiy of the date
thereof, and feifin being afterwards delivered on the t;8th day
of May following) is good or not ?
This cafe was twice argued fit the bar, in Eaftfr term lad by
Serjeant Nares for the defendant, and Serjeant Hewitt for the
plaintiff} and in this prefent term, by Serjeant Afpinal for the
defendant, and Serjeant Burland for the plaintiff. After time
taken to confider, the Lord Chief Juftice delivered the opinion
of the whole courtj and gave judgment for the plaintiff.
Lord Chief Juftice Prj/^— We muft not overthrow cftabliflicd
principles of law. That a freehold cannot be conveyed to pafs
infuturof is a certain principle, and was grounded on the feudal
law ; for if z freehold could pafs tQ commence in future^ there
would be an abeyance and want of a tenant againft whom to bring
a pracipe, and the law will not fuffer the land to be in abeyance a
fingle dav, if pol&ble to prevent it, for if it might be withoat a
tenant of the freehold for one day, why riot for a year, or 50
years; indeed, at this day, there is not fuch abfolute neceffity
tliat there fliould be an aftual tenant of the freehold, as for-
merly when real a£lions were the only way of trying titles to
land, and which real writs can only be brought againft the
• tenant of the freehold^ becaufc at this time, and for 200 years
paft, the fiaitious adlion of ejeBment againft the tenant in'pof-
leiGon is, and has been the univerfal pra£iice of trying titles to
lands and tenements ; and therefore if ever there was a cafe
where the ajlutia of judges (to overlook niceties in the law, and
to get over difficulties of firft principles which ftood in their
way) was commendable, this is that cafe. The old principle
of law, that a freehold cannot pafs to commence in futurOfhti
' no good reafon or ground to ftand upon^ at this day ; but with-
out faying any thing againft that old law, we may in this parti-
cular cafe, with the authority of our forefathers^ determine this
to be a good leafe.
The
Trinity T£11M^ ^Geo. III. lyffj. 167
The obje£lion to it is not much to be favoured ^ it is to over*
turn a deed made upon good confideration ; it would make void
a great number of cbnrch leafes, which are penned in the fame
wafi and occafion much inconvenience ; ut res tnagis vakat quam
pereat is a good ground for us to (land upon ; and therefore we
are of opinion with the cafe in Moor 637. 759. that iiit freehold
remained in the dean and chapter after the date and making of the
leafe, and MntMfeifin was delivered by the attorney to the plain?
tiff's lefTori according to the tenor, eSe£(| and true meaning oF
the faid leafe, and then^ and not before^ the freehold pafled out of
the dean and chapter to the plaintifF's leflbr. The livfry <f fc'fin
is the only powerful operative tranfadlion ; for if, in this cafe^
nothing bad been faid of livery, either iW, or dehors the deed,
nothing would have pafled by the leafe till the day of judgment.
Coords have determined, that if livery be made by the leflbr bimr
felf, after the date in the deed, it (hall controul the exprefs day
in die deed, and make fuch a leafe as this, {habendum a die daitts^
good ; What diflerence therefore can there be between this, an4 "*
when it is done by the leflbr's attorney, according to the tenor^
effe£i, and true meaning of the leafe, fix months after the date,
as is dated ? No difference at all. ITidt Palm* 30. Dean and
Chapter of Worcefln^% c^fo there cited, was a leafe * for life to
commence a die datiis^ and a letter of attorney to make liVery
the next day, which was made accordingly, and adjudged a
good leafe. " By the warrant of attorney to deliver fei^n in tho
prefentcafe, the -intention of the parties was, that the deed
fliould be fubftantiated by the livery, and in the mean time the
freehold was in the grantor i fo that v/ithout frying any thing
againft the old law, that a freehold cannot pafs to commence in
futurpi we give judgment for the plaintiff, sind order xhitpoftea
to be delivered to him.
Cafes cited by Serjeant Nares upon the firft ar|<ument« i Ld^
Rajm. <4. 3 Lev. 438. Salk, 413. I i{p/. Rep. 229. Hob.
314. 2 Sulf. 304, 5. &c. 2 Rep. 55.
Cafes cited by Serjeant Hewitt. Co. Litt. 52. b. 48. b. as to
feoffment and feifin. Moor 636. Rol. Rep. 402. Bj Judge
Hathwft. Palm. 30. Cro. Jac 153.
Cafes cited by Serjeant -B/s^rAw J .• Pirl.fec.iZ'j. iRoLAbr.
J;i8. in point. Cro. Jac. 153. 563. Hoh. 314. margin. 3 Rep^
55. By Serjeant Afpimd^ 30 Ed. 3. 31.^ &c.
N. B.. The court did they would priefume that the power given
to the attorney was to taw livery at any day fubfequent to the .
feafp } which tney faid was the true meaning of the deed.
M4 N.B.
i68 Trinity ThRM, 3 6?(f^.nL 1763.
N. B, Mr. Juftxcc Wilmot^ at a trial of an cjc araciit formerly
upon tUis fame leafc, was of opinion, thatyr^m the date^ zwAfrm
the day of the daie^ was the very fame, and both included the day.
^ Vide Ld. Raym, Kello and May^ contra Li- Cote,
N. B. Mr. Baron ^mythe at the trial was of the fame opioion
with the Common Pleas, and that the leafe was good for the
fame reafons nearly.
French qui taoiy &c. ^erfus Adams. C. B.
A roan may 'THIS was an a£lion of debt upon the Jlat. 5 EJiz, e/rp. 4./ 31.
*"'"^r^ againft the defendant for exerctiing the trade of zcarpenitrj
at^he has ** rontrarjf to the ftatute, he not having fcrved an apjyrentiecfiiip
%vorkfdator to that trade } iSue Was joined upon nil debet, and tried .before
invcd to L^yj Qi^^^f Juftice Pratt at Wtjiminfter. It appeared in evidence
• iit the trial, that the defendant had worked or ferved as a fcrvant
for, feven years in the trade of a ^Ana/^r, and for fome time after-
wards exercifed that trade as a mafteV ; that afterwards he ezer-
cifed th^ trade of a carpettter for the fpace of iiihe years, aad it
was jproved that he well underftood that trade, ' * ' ^
It was objected by Serjeant Nares for the plaintiff at the trial,
tl)at the defendant being originally firft bred up to the trade of 4
^/rzz/Vr, he could not liow follow two trades, both carpenter' and
glazier; and whether he could or not, was the queftion referved
for the pon&deratipn of the court.
Curin^^PiW the judges of England at a meeting lately re(olye<{,
That if any man as a mafter had exercifed ^ndfollc^ed any tA^
as a mafter without interruption or impediment for the term of
feven years, he was not Jiable to t>e fued or profeciited upon the
ftatutc of the gth of Eiiz. Alfo if a man hath followed two dt
more different trades for the terra of feven years, or more, b?
(hall not be liable to be fued or profecutcd upon this ftatute*
There I8.no law againft one man's following feveral trades at
this day ; there was an ancient flatute made the 37 Ed, 3. cap, 6:
that artificers or handicraftfmen (hould ufe but one myftery,
and that none (hould ufe any myftery but that which He had
before that time chqfen and ufed ; but this reflraint of trade and
tr-affic was immediately found prejudicial to the commonwealth,
and therefore, at the next parliament, it was enaAed, that all
people (hould be as free as they were at any time before the faid
ordinance. 1 1 Rep. 54. a. And Cole fays^ it is to be d)ferved,
• that ads of parliament that are made againft the freedom of
trade, merchandizing, handicrafts, and myfteries, never Hv£
Ipng. 4 InJ. 3 1 . Without the leaft dosbt in* the courts 2 man
• "' V -' may
Trinitv Term, 3 Geo. Illr 1763- 169
may foDowtventy trades if he has worked at or followed each
trade feven years ^ jifr. Hmyifin cfRed^Lyoti'Square ferved aq
apprenriceftiip to the trade of a carpenter^ but for twenty-fix
years he has been a watcb-makeri and though he never ferved as
an apprentice to the tradr of a wafch-i^^tkcirs fs the bed maker
of time-pieces in the world, and the parliament has given him
5000/. towafds finding out the longitude bytfce help of his
watches or time-meafurers ; and (Hall this man be hindered from
making watches, and cxercifing the tra4c of a carpenter alfo if
be pleafes ? Per Mam curiam — ^There muft be judgment for the
defendant, and the poflea muft be delivered to him. Serjeant
Nares for the plaintiff^ Serjeants Burland and Glynn for the de«*
fcndant, *
)Portj Efq. verjuji Turton & al., Affignces pf Spar-
row, a Bankrupt. C. B.
^ROVER for a certain quantity of coals ; upon Not guilty^
^ there was a verdif^ for the plaintiflT, fubje£l to the opinion
of the court, upon the following cafe made at the ailizes :
J. 5., in cpnfideration of |6oo/.» gnnts, bargains* and fells Ocewho
to Sparrow^ his executors, adminiftrators, andaffigns* a certain b(i>sacoJt-
mihc of coals, referving a rent and a certain quantity of coals to "'^^2^*
te delivered to the faid J. S. every year, vith power of re-entry the coalf, ft
in cafe of non-payment : there is no liipitation of time or term, "^ • "•J«'
bat it is a fale and purchafe of the whole mine fo Ion/; as any l^tat^^
coals are to be gotten therein j Spgrrow worked the mine and inakrupt
lold the coals, and then committed an a£l of bankruptcy ; after-
wards,' 13 O^. 1761, he affigned al} the coals he had got to the
plaintiff i the defendants, as aflignees of Sparrovf, under a com*
miflion of bankruptcy claimed and took away the coals, atod
Whether the buying the coal-mine, working it, and felling the
coals, can make him liable to be a bankrupt within any of the
ftatutes concerning bapkrupts ? was the queftion.
«
Serjeant Davy for the defendants — Sparrow is a buyer, and
not a farmer : 1 adroit the buyer of an e^ate is not a trader, but
the buyer of part of the profits of an eftate, if he fells the fame
again and endeavours to get his living thereby, is a trader ; as
fuppofe a man upon the exchange buys the produce of a planta-r
tion, all the canes which (hall grow upon it next year, and fells
the famfe ; or a timber-merchant buys wood growing, an4 fells
\u Or the like as to hops, com, bV.
Chief
ijb Trinity Term, 3 Geo. IIL lydj.
Chief JuAice— When he buys the timber, the conii btc,
ftanding, what does he buyj fomething real or peribnal ?
Davy-^Whtn one bays as much coal as he can get in a cer*
tain field, it is a perfonal thing in the buyer.
GduU J.— Would not an ejedment lie for tliis ?
Chief Juftice^-^Moft certain, an eje£lment would lie.
JOavj'^Sparrow did nQt buy the mine, only the profits of it.
Chief Juftice-^It is a chattel intereft in the land, and woold
go to executors.
Davy^December 19, 1707, Lord Ccw/^ determined that a
buyer of coals in the mine is not a trader within the ftatutes of
bankrupt, but if he fells them together with others that he bought
at market, then he becomes a trader within the ftatutes of b>nk«
rupt.
July 1757, Newton and Newton, A buyer or farmer of alam-
works cannot be a bankrupt ; held per Lord Mansfield*
Chief Juftice-* How many witnelTe^ are rcquifite to a^will of
this intereft: in .the coal-mine ? Three, certainly \ it being an
tntereft in land. Before the ftatute of Geo. i. c. 24. it was a
doubt whether a farmer could be a bankrupt ; now by that fta«
tute it is clear that he cannot. I think we can haye no doubt in
this cafe ; and that we have no oceafion to hear my brother Nans
on the other fide, unlefs it is defired to be argued a fecond time;
I nerer was fo clear in any cafe in all my life, as that Spamvf
was not a trader liable to bankruptcy.
This intereft in the coal*mine is a chattel, it is quite an uiioer*
tain intereft, becaufe nobody can tell how Jong coals can be got}
« it is like an eftate by elegit, ksi Jiatutt-jlaple, which laftsas lotig as
the debt is not wholly iatisfied \ fo this intereft will laft as long as
Vncertain ^^^'^ ^^^ ^"T ^^^ ^^ ^ ^^^* ^ ^^ ^^ ^ temporary intei^ in
mtercftn go the land, yet ftill it is a chattel intereft, and will go to executors;
toexecutofi. for it is a ccftain rule, that uncertain interefts always go to exe>
cutors, they can gq no other way, if undifpofed of 1^ wiD.
Gould J. liaYing fome Uttle dfHibt^ the plaintiff's couniel were
ordered to go op,
Serjeant
Trinity T^RM, 3 C^^- HI* 1763. 171
Serjeant Nares for the plaintiff-
1^, This is a bargain and fale of all the mine, defcribed to
be fiaked, and marked out with boundaries, with a claufe of
re-entry in the feller, in cafe of non-payment, &r. Mines are
things of inheritance, and cannot poflibly be deemed merr
chandize, fo that a trader or dealer in mines can never be deemed
liable to bankruptcy. 2 Wms. 2.40, 1,2. Eje&ment lies of
m'ma^ 2 Stra. 1 142. a fine may be levied of mines, ///• De con*
vaitione in the Regifl^ 165. b. ^bep» Touchftone^ 10. Brown^i *
Fines f 15. *
Chief Juftice— A fine may be levied of water-works« and a
recovery may be fuffer^d of every thing whereof a fine may be.
Nares — 2dly, He who is liable to be a bankrupt, muft be
" a perfon ufing the trade of merchandize by way of bargaining,
" exchange, bartering, chevifance in grofs or by retail, or feek«
" ing'his living by buying and felling." Scc^a/. 13 Eliz, c. 7.
I Jac. 1. r. 15. 2r Jac. i. r. 19. It furely is not merchandize
to buy a coal-mine;, no niore than it is to buy any other eftate, or
chattel intereft in land whatever.
Lord Chief Juftice — ^The fingle queftton is, Whether Sparrow
can be deemed to be a trader within the true meaning of any of
the fiatutes made concerning bankrupts ? I am very clearly of
opinion he cannot. The fbtute of 21 Jac. i. cap. 19. is the
ruling ftatute whereby this matter muft be determined : the per*
fon who (hall be deemed a bankrupt is thus defcribed, viz,
iftf He muft be a perfon ufing trade of merchandize, bfc. Or,
2d/ji, One feeking his living by buying and felling. By buying^
and felling what ? Surely^ not by buying an intereft in land, and
felling the profits thereof. This can never come within the idea
of uGng the trade of merchandize, or getting a living by buying
and felling in the fenfe of the Icgiflature. From the idea we
have of merchandize, the line may be drawn between the land-
owner and the merchant i one would wonder there could ever
have been any doubt about a farmer; for if every buyer and
feller was liable to be a bankrupt, many of the firft perfons in
the kingdom might be liable to be fo. Whatever the owner of
land in fee may do, furely he who rents it may do the fame : if
the former may be a buyer and feller, and not be liable to be a
bankrupt^ Why may not the farmer be fo alfo i His tilling the
land, hufbandry, and ftock on his farm, are known to every
body ; yet he feeks his living by buying and felling. So an inn^
keeper, a viHuaUer, and an ale-ioufe'keeper, get their living by buy-
ing and felling ; bu,t their way of buying and felling is not withii^
the meaning of any pf the ftatutes of bankrupt. The buying and
felling
iji Trinity Term, 3 Geo. IIL 1763.
felling which is within thofe (^atutes is to be confined to perfons
who live by a credit gained on an uncertain capital dock.
The cafe at bar is this : One buys, another fells fo many feet
of co;i1s, to the buyer, his executors and adminiftrators, for a
grofs fum; the buyer works the mine and fells the coals; and
now it is {aid he ufes merchandize, becaufe he is a coal-mafter ;
but I think there is no difference between a leafe for years and
this cafe of the coaUmine; ; Sparrow clearly had a chattel tn«
tereft in the land, like an elifgiif as was faid. Though a ming be
an inheritance, yet it may be fevered froai the inheritance by
the grant now made; but it is certainly an intereft in tlie land;
if it is not fo, how is it to be confidercd or received ? There is
no doubt but an ejectment will lie of it, that a fine may be levied
of it, and that a will of it requires three witnefTes \. things an-
nexed to the land while (landing and inherent in it, as trees,
lead, coals, (ifc. while they are fo, are real edate and inherit-
able, but as foon as fevered they are perfonal ellate ; while a
iToaUmhie is undug it is part of the inheritance ; a gravel'fit
granted^ would be a chattel intereft in the land until it was
worked out, and if the grantee were interrupted in working it,
he could have nothing but trefpafs. If Sparrow was neither the
farmer, nor owner of this coal-minej Who was he ? He muft be
one or the other \ and neither the owner or farmer of an in-
tereft in land by buying ai»d felling the fame, or profits thereof,
are liable to bankruptcy. The cafe of the alum-works b much
flronger than this. The cafe of a brickmakir is very diflFerent;
. the earth is manufactured and turned into quite another thing ;
but coals carried to market are the fame as they were found in
V the earth. Upon the whole, it is impollible to make this man a
;radcr within the meaning of the fl^tutes concerning bankrupts.
Clhe^^l am of the fame opinion. If the owner of a colliery
fells coals, he cannot be a bankrupt ; p^r Lord Sommers* '
Bnihurfl-^1 am of the fame opinion.
Gould — I am of the fame opinion as at prefcnt advtfed, but
am not againft having the matter argued a fecond time, if the
parties deflre it.
But it never was argued again that I have heard of; fo that
the plaintiff muft have entered his judgment upon the ver-
did, which was for him.
<
TrinitV T£*m, 3 Cea. III. t*j€^. iji^
Hawkins, Efq. verfus Wallis, Efq. G B,
TRESPASS for nailing trees up againft the plaintiff's wall; Trefptr*
\ Not guilty pleaded; vcTdift for the plaintiff, fubjea to the ^/;[;[
optaion of the court upon this (bort eaie« eafemenc
maft plead
The fafts of the trial were, that the plaintiff was poffeffed of a " ^«*^"**y*
certiin greenhoufe, the back wall whereof adjoined to the de-
, fendant's clofe, and that the defendant nailed the trees growing
in his dofe to the wall of the plaintiff's greenhoufe, idxich was
the abfolute property of the plaintiff, and that the defendant had
ufed fo to nail his trees to the fame wall for 30 years laft pad,
without interruption ; it was infifted that this long ufage was z
poffeilion of the back part of the wall in the defendant, though
the property of the wall was in the plaintiff. But prr curiam'^
It was refolved that this was no poffeflion in the deifendant, but
an taftment only, and cannot be given in evidence upon the ge«
neral iffue ; for whoever claims an tafement muft plead it fpe*
cially; and judgment was given for the plaintiff* GouU].^^ «
Sappofe the wall falls 'down, it being the plaintiff's property and
fence next to defendant's clofe, iht plaintiff muft rebuild it, or
the defendant might have an adion againft him.
Anonytnous. C. B.
r\£BT on a bond with condition to pay a certain fum of money Debt on a
^ mi 9r hifore fuch a day i the defendant craves ^jer of the kondtP>T
kond, and &ts forth the condition, and plrads payment of the Sfo^ fuchl
noney before the day, to wit, that he paid it on fuch a day ; day, psf.
the plaintiff demurs, and defendant joins in demurrer. 15*"i!*^
the ttjf ui*
licetf Aich A
Burland £or the plaintiff obje£led, that the deCpndant ought day, u good,
act to have put in iffue the particular day whereon he paid the
money, but ought to have pleaded that he paid the money on or
before the day. But per ci/rMin— The defendant has pleaded
that he paid the money tefore the day, according to the conditbn, Cm. jac.
whidi is in the disjunctive, to pay on or trfire the day ; and the 434*
demurrer admits the plea to be true, and confeffes the money
was paid before the day, fo the defendant muft have judgment ;
but the plaintiff moved for leave to withdraw his demurrer^ and
to reply^ upon payment of cofts ; which was granted*
174 Trinity Term, 3 Geo. III. 176^*
Wolferftan verfus The Bi(hop of Lincoln and
Whitehead, Clerk, C. B.
Quare im- (^UARE impeSt to permit the plaintiff to prefent to the north
?«*»'• «=%^ mcdicty of the church of GreiU Sbeepy in the coupty of
Leicejler \ the plaintiff's title fct forth in the declaration is, that
Elizabeth Vincent^ widow, was feifed in fee of the advowfon of
the north mediety of the faid church in grofs, and being fo
The record feifed, prefented William Vincent her clerk to the fame, it being
MiSwciinM^ vacant, who was thereupon admitted, inftitutcd, and Induced
term in the thereto ; and the faid Elizabeth being fo feifed, and the faid nortli
fiseond year Qiediety being full of the faid WtlHam Vincent^ (he (Slizabtth) on
iLudJ**" the firft day of Ma^, inthc year of our Lord 1722, died feifed
" '* of fuch her eftate in the adyowfon, upon whofe death the faime
defcended to the faid William Vincent her fon and heir, whereby
the faid IPilUamvr^s feifed thereof in grofs in fee; and be being
ib feifed, and being fo incumbent of the faid north mediety,
afterwards, on the i ft day oi OHober 1^40, made his will in
writing, and thereby devifed the faid advowfon unto Elizabeib
Vincent znd Hannah Vincent^ fpinfters, his daughters, and their
heirs, equally to be divided between them ; and afterwards^ on
the I ft day of March 1740, died feifed of fuch his. eftate in the
faid advowfon, and incumbent of the north mediety of the faid
church, upon whofe death the faid Elizabeth and Hannah Vin^
centy fpinfters, by virtue of ihe faid devife, became and were
feifed of the faid advowfon in grofs in fee ; and the faid north
mediety of the (aid church became vacant by the death of the
faid William i and the faid Elizabeth and Hannah Vincent ^ fpin-
fters, being fo feifed, and the faid north mediety of the faid
church being vacant by the death of the faid William, it belonged
to the faid Elizabeth and Hannah Vincent, fpinfters, to prelent a
fit perfon to the faid north mediety of the faid church fo vacant,
and one Hannah Vincent, widow, ufurping upon the faid Eliza*
beth and Hannah Vincent, fpinfters, prefented* to the faid north
mediety of the faid church fo vacant Silvefter Vincent her clerk,
who upon the prefentation of the faid Hannah Vincent, widow^
was admitted, inftituted, and indufled thereunto ; and the faid
Elizabeth and Hannah Vincent, fpinfters, being fo feifed of the
faid advowfon, tp wit, the faid Elizabeth of one undivided vasAt^
thereof, and the faid Hannah Vincent, fpinfter, of the other un-
divided moiety thereof, (he the faid Elizabeth Vincent, fpinfter,
afterwardsj to wit, on the 2ad day oi January, i^^rj, at Gfw/
Sheepy, by an indenture then and there made between Thomas
Grejley, Gent* of the firft part, the faid Elizabeth Vincent, fpin*
ftcr, of the fecond part. Sir Nigell Grejlej hart, and Francis
Vincent cfq. of the third part, and Silvefier Vincent, clerk, of
the fourth part, (the fecond part of which indenture fealed with
15 the
Trinity Term, 3 Geo. III. 1763. 175
tlie feal of the (zidEiis^M Vincent^ fpinfter, the laid piatdtiflT now
briogs into court,) in confideration of a marriage then intended
heiween the fame Elhabttb and the faid Thomas GrrJUy^ (he did
grant to the fatd Sir Nigell and Francis her nadi?ided moiety of
the £ud advowfon of the north mediety of the faid church ( to
hold to them and their heirs, to the nfe of the faid Elixnbetb in .
fee, until the faid intended maniage» and from and after the
faid maniagCi to the ufe of the faid Eiinaheib for her life, and
from and after, the determination of that eftate, to the nfe of
the faid Sir Nigell and Francis and their heirs during the life of
the faid E&ubeib^ and from and after the deceafe of the faid
Elkahtb to the nfe of the faid Silvefter Finccnt, his execotorSp
&r. for the term of 200 years ; and from and after the deter«>
mtnation of the faid term to the ufe of the faid Tbomas Gnjley
for his life, and from and after the deceafe of the funrivor of
the (aid Eitzabetb and Tbomas Grs/ley to the ufe of the faid Sir
Nigitl znd Francis and their heirs for erer ; which faid marriage
afterwards on the firft day of Marcb, in the yearlaft mentioned,
at Great Sbtepj was had, whereby and by Tirtue of the faid deed,
and by force of the ftatute for transferring ufes into pofieflion^
the faid Tbomas Grefley and Elizaboth his wife became and were
feified of the faid moiety of the faid advowfon in right of the
faid Elizabetb as of freehold, for the term of her life, the rt"
mainder belonging to .the faid Sir Nigell and Francis and dieir
heirs during tbe life of the faid EliKabetbj t;he further remainder
thereof belonging to the faid Sihefter Vincent^ his executors, C5Vv
for the term aferefaid, the further remainder thereof belonging
to the faid Tbomas for his life, and the ultimate remainder
thereof belonging to the faid Sir Nigell and Francis and their
heirs ; and the faid Thomas and Elizabeth being fo feifed of the
faid unditided moiety, the remainder thereof belonging as afore-
Aid, and the faid Hannah Fiwentf fpinfter, being fo feifed of
the faid other moiety, the faid north mediety of faid church he«
came racant by the death of the firft above-mentioned Si/vefirr
Vincent^ whereupon the laft-mentioned Elizatetbf and Hannah
Fintentf fptnfter, prefented . the faid Thomas Gr^fey their clerk»
who upon the fame prefentation was admitted, inuituted, and
indu£led into the faid north mediety ; and the faid plaintiff fui^
ther fays, that the faid Thomas Grejley and EBzabetb his wife
being fo feifed of one moiety, the remainder belonging as afore-
faid \ and the &id Hannah Vincent^ fpinfter, being fo feifed of
the other moiety, afterwards on the 9th day of November 1759»
at Great Sheapy^ by indenture between Tbomas Grejley and £/c2a-
heth his wife of the firft part, the faid Sir Nigell md Francis of the
fecond part, the faid Hannah Vincent^ fpinfter, of the third part,
the faid Hannah Vincent^ widow, of die fourth part, and the faid
Ediford (Uie pliintiff ) 'of the fifth part, (which indenture the
plaintiff' brings into court,) the (aid Tbomas 2nd EKzatetb^ Sir
Nigell and Francis^ did grant the faid moiety whereof the faid
Tbomas and Elizabeth were fo feifed as aforelaidi and the laid
remainder
176
Grant to the
f laintiff in
fee of the
adto«*ion.
Statute
aiH.S.
agaioft plu«
ntitiea.
Trinity Teri^, 3 Geo. III. i^fij*^"
temamder thereof fo limited to the faid Sir I^Ttgell and JFr2rAaf
and the faid Thomas^ to the faicf Edvford (the plaintiff) ; to hare
arid to hold the faid laft^mefitioned moiety to the fiiid Edward
and his heirs ; and the faid Hannah Vimeht^ fpinftcr, by the
fame indenture, did grant to the faid Edward tht fiiid other
moiety of the ikid advowfon f to have and to hold the fame to
fsud Edward and his heirs ; by vhtae of which faid mdentore
he became and is now feifed of th^ faid adTowfon in grcrfs, a$
of fee atnd ri^ht. And the faid Edward Mthtr fays, that by a
ftatute made m the 2 1 ft year of H^nry the 8th, it was ehaAedi
(among other things,) that if any perfon or perfons having one
benefice widi tht cure of fouls of the yearly ralae of 8/. 6r zbovc
ihoitld take any other with cure of foiuls, and be mftitnced and
indoAed in pofleffion of the fame, that then immediately after
fucb poffeffion had thereof the fir ft benefice (hould be adjudged
to be void ; and that it ihould be lawful to every patron, having
the advowfon thereof, to prefent another, and the prefentee to
J&ave the benefit of tht fame in fuch manner as though the in««
cumbent bad died ot reOgned; any licence, union, ot other
di(jpenfation to the contrary thereof obuined notwithftandiogf
as by the faid a A (among other things^) more*fuUy appears;
and the faid Sdwardfzys, that the faid benefice, at the time of
malnng the faid ad, and at the time the faid Tiimas Grtfitf was
admitted, iqftituted, and induced thipreto, was and ttill is a
benefice with cure of fouls of the yearly value of 8 /., and tiie
faid Tbomai Grefley being fo admitted, inftituted, and indtt&cd
into the faid north niediety of the faid church, and the faid £t
wt^d being fo feifed of the faid advowfdn, afterwards, on the
aid day of Dicemier 1759, the faid Thomas Gri/Uy2cccfttd and
took another benefice, with cure of fouls of the yearly value of
8/., to wit, the redory of the parifli church of Seale in tbefiid
eounty of Leice/lfr, and afterwards, to wit, oA the aad day of
Dectmber laft mentioned, the faid ThotHas Grefley was admit^,
inftituted, and indufled into^ the faid church of Seate^ whereby
and by fbrce of the faid ftatute the north mediety cf the fiid
church of Great Sheepy became void, and the faid Edward ir^
feifed of the advowfon of the faid north mediety of the faid
church of Great Sheepy as aforefaid, at the time the fame fo be-
came void, and ftill is fo feifed thereof; and by reafon of tlie
premifes, and by forte of the faid ftatute, it now behmgs to the
faid Edward to prefent a fit perfon to the faid north moiety of
the faid church of Great Sheepy f and the faid Sybep and Thomas
Whitehead unjttftly difturb the faid Edward therein, to the ds*
mage of the faid Edward of 300A, and therefore be brings this
fuit, t^c.
The biibop by his plea fays, that the north mediety of the
hurch of Great Sheepy is in the diocefe of Lincolnj and that he
Plea, that
Sflii^ church of Great Sheepy .. „. .„w «.«wv*^ ^. ^«-w.«, «.^ *—. ^
thing boTai cbiitns liothing therein, or in the advowfon thereof, except the
•tainary. admiflion| inftitutiouj and indu^ion of parfons thereinto, and
die
the amoVal of them thercfrbm, and all fucb other things belong- '
Ing^ to^ and' as ordinary of that placq; and the kt/bof further
fays, that the plaintiff ought not to Have his ^^on againft him^
b^caufe he fays that the faid Elizaheth Vinctniy widow, was
feifedj Csfr. (lind admits the title as fet forth in the declaration^ «
down till the prefentation of the faid Thomas GnJUyj) and (thea
l)e fays) that by the. faid a£l of parliaipent it is ena£led« (as in
the faid declaration mentioned,) and that the faid benefice of.
Great Sbeepy^ at the time of the making of the faid'adly and at
the time of the admiflioni iniditutioni and induflion^ of the faid
Thoinas Grede^y and from thence Was and Hill is, a benefice with
cOreof fouls of the yearly value of 8/. as the plaintiff has above
alJedgcd; * but the faid bljhop further fays, tliat the faid Thomas •Settlie
Grejlej being fo admitted, inftitutedi and induaedinto the faid ^^^
north mediety of the .church of Great Sheepy, and being incum- ^e.
bent thereof, he the fliid Thomas Gre/ley, on the 31ft day of
O^rfrr 175^, accepted and took the faid reQiory of the pari(h
church of S^a/e, and was then and there admitted and inftituted
into the fmie re£lory, as by the plaintiff is alledged, which faid BfAdp
rcQory of Stale then was, and is, a benefice with cure oJF fouls '"J"***.**
of the yearly value of S/., whereby and by force of .the ftatute ^rdoriSl*
aforcfaid.the north medfcty of the church of Great Sheepy be- ftimionttf
came vacant; and the byi^op further fays, that the faid north }|*^V^"7^
mediety of theNJiurch of Great Sheepy was, remained, and cpri- conUnaeS
tinucd fo vacant from the time that the faid Thomas Gr^/ley ac' »oid fix
cepted and to'ik the faid teftory of the church of Seale^ and was X°uilt*"^
admitted and inftituted into the fame as aforefaid, for the fpace of ixtait be cot^
Cxwhol^ months then next following, whereby the ri^ht of iwed by
collating to the faid north niidiety of the church of Great Sheepy ^^^
devolved to the- faid bijhop as ordinary of that place, by rcafon pf
the lapfc of time aforefaid 5 wherefore the faid bifhop, after the
faid 65^ mo,nths from the time that the /aid Thomas Grefley a(^
cepted and look the faid reclory of Seale^ and was admitted and.,
inftituted into the fame, were lapfed, collated the faid north
mediery of the church of Great, Sheepy on the faid Thomas White'- .
head his clerk, and caufed the faid %/)omas Whitehead to be infti-
tufed and inJu£led into the fame, by reafon whereof the faid
Thomas WT)itehead from thence hitherto, hath been, and ftill is,
parfon of the faid north mediety of the church of Great Sheepy
imparfoncd in the fame ^ and this the faid bijbop \& ready to
verify \ wherefore he prays judgnicnt if the faid plaintiff, w}th- .
out afligniiig;*fome fpcclal iwipediment in tfac power of him the
faitf tyb^^ ooght to have his faid a£kion againft him. D. Poole*
Abd tbe faid Thomas m2k.t^Atknct and fays^ that he is parfon Ijiemnbeot*!^
imparibnee'cF ihe faid 'mediety, of the collation of the faid H^****^'***
Inmopi, ztiA iFurtheir fays, that the funic became vacant by the faid h^Jthe "
^^WAT G^^^^^s .accepting aiid taking t^jv^o^^^ of S^a/f afore«* chn.choA
faid, on the 3 111 day of Ofieber 1759,, "and Yo remained vacant {^«^y
Vot.'lI. N until '*^
178 Trinity Term, ^Geo. IIL iy6^.
until on the aotb day of June 1760, on which day, at Great
Sheepy^ the faid bi/bop as ordinary by lapfe of fix months collated
the faid Thomas Whitehead to the faid medicty of Gteat Sheefj
then vacant ; and this he is ready to verify ; wherefore he prays
judgment if the plaindS' ought to have his faid adion againft
him. G. Naru.
Rcpiiotioa llie piaintifF replies to the bifhop's plea, that he ought not to
&©D^ **JV be barred thereby from his a£tion aj^ainft the bijhopy bccaufe pro-
^**^ tefting that he the plaintiff had not any notice that GreJIejh^A
accepted the church of Seale^ and w^s admitted and inftituted
Thitthebte thereto before the faid aid day of December 1750, for replica- .
M^^^r. ^^^^ ^*7* ^^^^ ^^ifi^ ^^^ induSed in pofTeffion of the faid rcc-
daQedtdic. tory of Seale on the faid 22d day of December 17591 and mthe-
*T*^Sf •^'^'' *"^ ^^^ within fix months after the faid 22d day of D/-
1759* Md* ^''^^''' *7S9> ^'^* ^* ^9^^ oi March 1766, by writing under
tintbia fix bis hand and feal dated the fame day lad mentioned, he did pre-
KT^efe^S? ^*^"^ *^^^ ^**^ *i^^^ °°^ TAt^f/w/ HalU his the faid plaintiflTs
lih'dcrl^ to clerk, and requeited the bi/bop to admit and inftitute the faid
ibe hifiiop. Hail to the faid north mediety of Great Sheepy fo vacant as afore-
to bftk*^"*^ faid, whom the bi/bc^ refufed to admit atid inftitute thereto oa
bim. the faid prefcntation of the plaintiff, and hindered him in the
faid prefcntation thereto ; but the bijbop afterwards, on the 20th
of Jufu i 760, collared to the faid north mediety (being vacant)
on the faid Thomas JFhitehead, as the faid bijbop hath in his plea
above alledged i and this the plaintiff is ready to verify \ and
prays judgment and his damages by occafion of the faid hia*
drance, and alfo a writ to the faid biftiop to be adjudged to him
Regicrtion the faid plaintiff. The repUcation to the incumbcBt Whiiebiai\
^m^'i P'^ ^^ cxaftly the fame as the replication to the biOiop's pica
pica. (only changing the biihop's name for the incumbent's name}.
Tbcbiftop't The bi/bop rejoins, and adnrits that Grejlej was induHtd into
.».^»a^ the church of Scale the 2 2d of December 1759, and that the
plaintiff within fix months from that d^iy prefented Hall his
derk, as the plaintiff has alledged in his replication ; but the
bi/bop further fays, tliat before the faid 22d of December 1759,
Grejley accepted the church of Seale^ viz, on the 3 1 ft of OBober
1759, and on that fame day was admit Ud and in/lit uted to the
faid church of Seaie^ whereby and by tlie faid (latute the faid
north itaedicty of SA«^y became void j and the bifi^p further fays,
that the faid Hafl did not within fix months from the time that
Crcjley was admitted ami inflituted to the church of Seakf or at
any time before the collation of the north mediety of Gmi
Sheepy on Whitehead^ and his being infiituted and induBed into the
fame, prefcnt, or offer himfelf, or appear before the faid ijAjp
to be examined in order to his being admitted to the north roc*
dir-ty of Great Sbeepy^ but negleQed fo to do, wherefore the
ii/bop, after the faid fix months from the time Gre/lcy was ad-
mitted
ff^oiadtr.
Trinity Term, 3 Geo. III^ iy6^. 179
mitted and inftittttcd to the church of Siale were elapfcd, collated •
Qrieat Sbetpy on Ifbiuhead^ and caufed him to be inftitoted and-
indaded into the Tame, as tlie biftiop has above allcdged ; vntb* .
eta iUst that the bilhop before he collated the north mediety of •
Great Sheepy on Whitehead did refufe to admit and inftitute Hall
to the faid north mcdietj of the church of Great Sheepy npotf the
fnid prefentation of the faid plaintifF, as the faid plaintiff hath
above alledged j and this the bifiep i& ready to verify; wherefore
he pra^s judgment if the faid plaintiff ought to hayj; his f^d ac-
tion agaiali him, i^c.
The incumbent rrjoins and faySj it is true the faid Thomas TbeSoca^H
Grejlej was indu£led in poircffion of the faid rc^or^ of Seale on ^(*« >•?
the 22d day of December 1 759, and not before \ but fays that the i**^-
mediety of the faid church of Sheepy became vacant by the (aid *
Grejtef% accepting the faid church of Seale on the 31ft day of
OBoher 1 7 59, and fo remained void until oq the 2Qtb day of
JuTte 1 7609 on which day the hl/hgp collated Sheepy on this in?
Ciimbent by iapfe ; and the faid incumbent further fays, that on
the 31ft day of O^0^rr- I7J9 the plaintiff had nothing in the
advowfon of the church of Sheepy: and thi^ he is ready to rerify; •
wherefore Jie prays judgment, and that the plaintiff may be
barred from having his a£lion againft himt iS^Cf
The plaintiff demurs to the iijbop*^ rejoinder, and (h^ws for
fpecial caufes : 1. Tliat it is z departure from his plea. 'a. That
it traverfes matter not alledged by the plaintiff* 3. That it does .
not traverfe the induciion. 4. Nor does the bi/b^ fay whether
he did or did not collate to Sheepy before the end Qf fix months
after the hulucJion of Ttjan^as Grejley to Se^. 5. That the let
joinder tends to put u\ iffu'e matter of law to the country.
The plaintiff's demurrer to the inci^mbent's rejoinder is much.
the fanie as to' the bidhop's.
The bi(I)op and the incumbent feverally join in demurrer,
This cafe was argiied three tinu:s at the bar : the firft time \n
Hilary term 2 Geo. 3, ; the fccood tjme in Trinity term follow-
ing; and the third argument for the plaintiff in Eafieriti^n^
3 G^f • 3- f' and iti Trinity tern> following for the de£endant*
4 note taken of tlie firfl: airguinent for th^ pjir^tiff, Jt 9p?'
pears upon the pleadings that Thomas Qrejley being iticunabent of
the church in queiUon, on the 3 id of QSober 1759, was inftir
tttted to a fecond benefice with the cure of foulS| of the yearly*
value of 8/., and that on the 22d of Decembfr% and liot before,
he was inducted iutq the fame ; that the bj/hop (fuppofing the
N 2 prefcnt
tS9 TKrtnxY TEftw, 3 G«. III. 176 j.
pt€tmi'\mtig in queftion to be void uponr GreJIey's inftitutten io
thtfiecildj hifttre utduBiwi) on the 20th of Jtme 1 7(^0 colbtcd the
defendant Wlmhiai ta the clmrch of Great Sbeepj bf kpfe
^ttttoat notice to the plaimiflF.
% Ro Abr. Tbevrfbf « thd q«ieffion is, Whether thr chuTch was void upon
H b ^6^' ^** iPiJIHmkaXo the fecond benefice, or not before induahn to it,
j66.' ' ^* f'^ a« ^he biibtyp coeid coirate without notice 5 for if it was not
Vwo^ 131. void before ifudtiSuni then the bijbop has collated two days too
foon; for by the ^a/. 21 /f. 8. r. 13./9. it is clear that Ac
firft benefice Ihall not be Toid before induction to the fecond.
yt^^^y^ 7hi Sljbop tf Peterhwnoiigh and Denn^ in quart ifnpi£t'
n>r' title to the avoi^nce, the Jlat. 2 1 Hen. 8. was pleaded tbc
tiking-c^a fecond benefice, with cure, the iffue was taken upon
the itfJk&Un to the fecond benefice, whereby (fays the book) it
fJMnns to be allowed that aimiffim and hJUmidn do not make the
firft TOid| vnfhoiax induiH^* Moor 12. fl. 45*
A note of the firft avgnment for the defendants. This quef-
WsifoBin tion depends upon the^^i^' 21 J?. 8. which fays, that if one
w Wt** ^▼i^?^ benefictf with cure of 8/. per ann. accepts another with
337. cure, and be inJIiHetii and induiiedirkp^ejpon of the fame, then
c«<te«94S» and immediately after fxich poffeffton had thereof, the firft bcnc-
^^ flee fliftU be anljadged void. The wotd poffefton in this ilatate is
very nraterial, for a parfon is i^popjjion immediately upon wfi>
iUikn and before induBkni the point I put this cafe upon is, that
tflr the f<k:Ond, indudion is not neceffary to take the firft benefice
Vbidr^ iMiC if i£ is, it is only that the patron maf have notice,
MioP4^i, 5 but as to every body but the patron, it is void by
inftitutien to tho fecond benefice^ and for this I xely upon
Dighy*s cafe, 4 Rep. 78. b. 79. a.', and the patron may prefen:
l^thOttt any fentenc^ of deprivation.
VjtrttyM, The patron, upon tlie inftitution to the fecond benefice,
pi. 18. xnighC hwt prefented, becaufe> I infift, the church, thereupon,
was void ; and being a ciofe in affion, -it could not pafs by the
Owtorji. grant of the adiowfon afterwards made to the plaintiff on the
pth of ^trtiTMiff^ 1750^ which was nine days after the inftitution
td'the' fecond 'benefice^ as appears by the declaration. Cro.
jEJiz. 8¥f. Ai)4 fikppofe'fk»ticenecefiary to be given to the pa-
tron, yet it is not fo to the grantee, becaufe it is uncertain to
wt^nvit muA be givenr
PbintiiPs.Covnfel-— I agree that induiiion^ and notice are much
ttl^tivn^ thing 5 and if notice be necefiary, induiiionimift befo
t!0b'} tile incttinbcnt Ctttmot fue for tithes before iaJuahfr.
Lord
Lord (!3iittf Jttfti€e-»He can do e?crf thing dfe. I want to
know bow this matter, jsras at.oomnoa kw^ wbethcf ufon the
iocumbenc's taking a feqmd benefice the patron oould jor conU
not prcfent before fentence of depritatioii. I have great diffi*
caltiesy and (ball be gbd to hear another argnment* r
The fecond argument for the plaintiff, at firft. letting nnt^ «rar
much to the fame efitdl as the (irft aigument.
The fffcond argument for the dc&ndants by Snjean^ Iflf/ith
It appears upon this record, that on the gift of OOoiir 1759
the late incumbent of this church in qiicflion w^- iwft^tuted 10
a fecond benefice.
That on the 9rh of Nwemher iffS9 the patron of this church
in queftion granted the advowfon dieroof to the plaintiff.
That on the 22d of December I7$9 die late incumbent thereof
was mdud^ed to the fecond benefice ; and
That on the 20th of June if 60 the bt&op collated the
defendant WTjiUbead to the church in queftion, without no-
tice to the late patron, or to thft plaintiff, his grantee of the
' advowfon*
Two general queftions arc made : i^, Whether the firft Ht-
ing became fo abfolutely void upon inftitution to the fecond Ut-
ing, that the patron, or the plaintiff his grantee^ were bound to
take notice, without notice given to them ?
2^, Whether the firft benefice was fo void* upon ioftitu^
tion to the fecond, that by the grant of the advowfon in foe
nine days afterwards this turn could be transfetred to the
plaintiff?
If it appears upon this record that the plaintiff hath no title,
he cannot have judgnient, be the title of the defendant ever fo
defective.
It is on the defendant's part to contend, that as foon as the
late incumbent was inftituted to the fecond, this firft living was
void, infomuch that the patron could not afterwards transfer the
right jtf prefcntation fox this turn, by his|prant of the advowfon
in fee to the plaintiff; and that the bifhop had a right to colhte,
after iix months elap&d frpm the time of the mftitutionj without
giving notice to any body.
N 3 How
\
i82 TrinitV TeUm, ^GeoAll. 176 j.
How the law ftood concerning pluralities before the (btnte of
21 /f. 8 • r. 13., and whether that ftatute hath made any and
what alteration in the prefent cafe, may be firft confidered.
• Anno One cannot well trace this matter farther back than the third
"^9- council of Lateran^g for, but a few years before that time,
und^Pope there was no fuch thing as a lay patronage in this kingdom. Ic
Aleiaflderi. appears from the moft authentic cccleiiaftical writers^ that from
the latter end of the fixth century until about the Cooqueft, all
oblaHont,. tithes f » (s^c. of a whole dioeefe were the volunurj
gifts of Chriftians, brought into one public ftock, and divided hj
order of thfe bifliop into federal portions for the fupport of him-
felf^ his clergy, the poor, and the reparation of churches.
The parochial clergy in general lived with the bifhop in the
city, who fent them out occaGonally to preach tlie gofpel
throughout his dioeefe, and every prieft received the bblations)
(sfc. within his own circuit, and brought them into the public
Rock;
In this manner were the clergy inftituted by the bi(hop ; and
in whatfoever part of the dioeefe a pHeft was (by his order), he
was (properly fpeaking) refident upon his cure } for rcfidcnce
fbert'wzt relative to the whole dioeefe, as it is now to afingle
parifli* Sherlock iki Bijbop of LtndorCs Charge iokis Clergy^ eutno
1759, touching pluralities ard non-re&ience, page 25.
Although feme writers afcribe the divifion oi patififes to ArcJi-
blfliop Homriu^ about the year 636, from the authority of Arch-
bifliop 'Parker y who fays. That Honerius provindam fuam in para-
thias diviftt : yet Mr. Selden fays, ** Tht* paflage means that he
^* divided \\\^ provtrrcemio diocefes ;''* and BKhop Sherlock fecms to
agree with him, in his charge to his London tlergj I'JS^i Jo- 25,
where he fays that the word parj/h in the old canons ufed to fig-
nify a dicceje^ as appears by injunftions given to bilhops not to
invade the parijhcs of each other.
^M Aii The clergy .were then no othfcr than coIleAors and ftcwards
Nff.s4. of the tithes and oblations till about the loth or nth century,
and their refidence was in any part of the dioeefe as the bi(hop
•Glanv*ii9. ordered. Kentietfs Paroch.Antiq.iZtii). • they were inftituted,
atiohitVioo ^^^ could not properly have any induilion oxfei/n of any church
■dvocaUoo. in the dioeefe.
"fTbe firft, council thai mentions ttthts is th»t oflAtttratif ^nmo Vtm'mi 1119, under
Pope CatixNtt 2. ar.d there they are only fpojcen oU >• receiTcd by fpecial confccrartpBS.
There was 00 canon before that of the foorrh council of Laterati^ ofu^ Dtmm I&S5. htld
under Pope iHmtnt 3* that evea fuf pofed tithn due 6f conunoa rigbu
ThU
Trinity Term, 3 Geo. III. 1763. 183
This being inconvenient, as chriftianity fpread, great encou-
ragement was i;iven to lords of manorsy and other great nien>
to build churches for themfclves and tenants on their own lands;
and for this purpofe the btfliop yielded part of his right to fuch
founders, permitting them to name a perfon to fenre the living,
Erovided he was well qualified ; the judgment of which the
ifhop refervcd to bimfdf. And his judgment, whether fit or *
not, is conclufive to this day. $ber. Charge in 1759, 26. And
this is the origin of lay patronages, and the firft beginning of the
divifion oi parijbcs into the limits we' now find them ; which Jt
feeros) began about the time of the Conqueft, or a little after^
and was a work of fome a^es.
-6^
Before this period there feems to have been no law agalnft
pluraiities and mn-refidettce^ fo that every pried who loved the
^eci more than xkz flock got poffeflion of as many churches as he
could ; and if he had forty there was no law to the contrary \
this accounts for what is often mentioned in our books, '^ That
<< at common law a man niight have held forty livings if he
«• could have got them/'
This avaricious behaviour of the clergy occafioned the making
of feveral cmons and conditutions againft pluralities and non-
refidence. It is proper only to take notice of fuch of them as have
been received here, and are now part of the law of the land,
and which moft materially concern the prcfent queftion.
By the 3d council of L ateran *, held under Pope AUxandn 3. • Tbc U-
anno domini 1 1 79, 5 Hen. 2. Whoever took a 2d benefice, his SjJJJ^
inftitution to it was void \ and every perfon admitted adecckfiam Norwich
^ei ecclefiq/licum minifterium is bound refidere in hco^ et curam per Htre/brd,
fetpfum ixercere. ■"** ®«*^
' "'-' were feat to
thi> council. - Seld. Note 00 Draytoo*s PolyolbiODy 3d vol. 179^.
Thefe are wotds of the 43d canon :
« Quia nonnuIH, modum avaritise non ponentes, dignitates Thtj^u-
«' diverfas ecclcfiafticas, et plures ecclefias parochiales contra ^^fg^;;^
«< facrorum canoufim inftituta nituntur accipekb, utcumunum i^cMaUfl^
«f oOBcium vix implere (ufficient, fibi vendicent Aipendia pluri* void.
«« morum : ne id de cetero fiat, diftridius inhibemus. Cum
«< igitur ecciefia, vel ecclefiafticum minifterium committi de->
<* buerit, talis ad hoc perfona quei;atur quo refidere in loco, et
« curam ejus per feipfnm valeat exercere ; quod fi aliter aAum '
<« fueritet qui receperit quod contra facros canones accepit»
«« amitut, et qui dederit, largiendi poteftatem privetur.' £x/ra
*< lib* 3* ///• 4* de clericis non refidefiiius. Can. 43/'
n
N4 By
i84 Trinity 7^V, s ^^?- *?• i.Ti^i*
4tli Uteraa JBy t^e i^th (which ,18 called the mat) council of f^tram^ if
thefiSwl? *"y perfoh having one benefice with cure of foiils, accepts a
Picfeoc, fecondy the firil i$ declared void ipfojurc} this was held under
4p«tmrcbt, PoDC Jtinocent 3. onm 121 c. " 6 Ric. j.
71 arcbb. ' '
loo abb^T' T^^/^^^*'?.^^^ words of the 28th canon of this council : *f QjU-
tnd prion. << cunq* reccperlt aliquod bencficium curam babens animarutn
xaic total. " aniicxam, £ prius tale l^eneficiuin habebat, co fit ipfo lure
<< prlvatus^ et fi forte illud re^ner^ contcnderit, Qtiam alio Ipo-
f^ lietUr. Is quoque ad quern prions fpe£lat donatio, illuid poj^
*' receptioneni aUerius libere conferat cui meritb viderit coxi-
'* ferendum: etfi* ultra fex mtnfes confcrre diftrucrit, non
*^ folum ad alios fecunoum Latercnfis conciiii (tacutum ejus
<' collatio devolvatur» veifumetiam tan^um de fub cogatur pro-
<' ventibus in utilitatem eccleC^ cujus eft illud bencficium ad-
•** fignarc, quantum a tenipore vacationis ipfius conftiterlt eijc
'* perceptual.. Hoc idem in perfonalibus eue d^cernimus obfcr^
*^ randum, addenres ut in eadem ccclefiay nullus, plurcs digni-
<* tates'aut peribnatus habere prcfuipat, etiam 6, curand atunia-
<< ruiti non habeant. Circa fublimes tamenetHterataspejjrpnas,
<* qux majoribus beneficiis funt jiokiorandx/ cum^ ratio pofEula*
*< verity per fedem fipqftoitcam poterit dLfpenfari.? Extra IH. 3.
tiL 5. 4f Prebendis^ Can. 28. ^ .
So t|iat by this canon whoever took a 2d benegce was deprived
i^yW^ofthe i^, and t,|ie patron might prefcnt to it imme*
diately, and if he did not within fix months, the bifliop migfit
. . collate, and grder the projus received Jjice the avoidance to be affgncd
. to the coilatee. ^ •
»d council ^y the 2c1 council of l^yotis held under Pope Gregory loth anna
rtakti'^ 1ft 74, 3 Ed. i.'upon taking a 2d living, the firtt was void,
or both liv.' ^"d if l^c ^^^ Q^t contented with the 2d but endeavoured to kec^
U^ void, both above a xnonth^ he was deprived of both.
The conflttution of John Pcccham upon the canon made at
this council of Lyons runs thus : " Qui plura bencficia curam
^* animaram habentia, fine difpcufatioMc, ultimo contcntus fit;
** 8c decemimus, & perpetua ita^ilicate iirmamus, ut quicunq.
<* in pofterum plura beneficia cur»m animaruin habeotia, scu
^< alias incom{)atahi]ia, abfqiie fedis apoilolicae difpenfatione, rb-
••* CEPEKiT, vel aflccutiis fucrit per modum ii«iSTiTUTiONis, vel
*< commendx, feu cuftQ»diae, velutmrhj titulo inftitutionisj aliud,
Tbti.etnoii ** titulo commendae vel* ctiftodiaCt prsetcr modum ilium quem.
hrVr^"*^ " conftitiitio Grcgoriana cdita in toncilib Logdunenfi pennilltt^
Latch 243. *^ ^o IPSO fit privatus omnibus fie obtentis beneficiisi ipfoq. h£ko
Sflw'ito^^ " feotemia excommunicatioms perknaheat iiinodatus: « qua,
l4oo»'ii9. " ^'^^i "^li P<^i' "oSf s^u^ iuccci^jres ndilros, Vel fedem apoftor
<< licam abfolutionis gratiam valeat promtrcri. Lind. lib. 3.
^•^ tiu 6. fo. 136, 137. de prsebendis«"
4' ^ ' Obfcnrc
Obfcrvc the words, •* Qui rero aflecutus fiicrit per niodum
" IN8TITUTIONIS," was to lofc both4ivings i but notwithftandinr
thefe well-intended canons, the pope's dl^nfing power (refecvcS
to him thereby), rendered them of littfc ttkGt: '
To redrefs the grievance of holding pluralities by difpenfationSy '
there is to be found among the fpctravi^ntef prifited at Paris
^ijoc. 4io. a decretal of Pope John iUc '^^ih^ginnin^ execrahiUr
ywrundum iam reltgtoforum quant feculaniw, ambitio ; which (after
reciting the many evils of pluralities and ooh-refideoce) decrees
tnat whoever holds a plurality Vy difpenfation fhaH make l^is
'elc£^ion within a month after notice of the Hecr^c,* which bene-
fice he chufes to keep, anc^fliall refign the others ; and if he Onemibact
docs not, all his livings (hall be void. Extra lib. 3. tit. 4e Pre^ n.SJ'dIJder
hn^is 5f t>ignit;atibuSy fo. 19, &c. dated at \ifi;y«(!/i, xykaL thit decretal.
Dechnb, in the 2d year of his pontificate. Tliis was ill tlie year >oE..3 i.
1277, 6 EJ.' I. three years after the council of Lyons. " " Watfooai.
From hence it ;ippears,
(i.) That by a canon in the 3d cQuncU of J^^^j^, the ibcpnd > v7*9 5H.t.
IWing wa9 yoid by deprivation.
(2.) By a canon in the 4th council of Lattran^ the firft liriog ifti5;6R.i,
was ipfojure void| by accepting a fecond^ mtbwt deprivation.
(3.) Bf a canon in the fecond council of Lyo^s the firft wag 1274,^.1.
Toitf^ and iJf he endeavoured to keep both, he was to lo(^ both.
(4.) By the decree of Tope Join 22. no one could hold two xa77,6E.A.
di^nhiefi or benefices by difpcniatipn, except he was a Cardinal,
or the relation of fome prince.
Thefe canons hare all been receired here, as appears from ^ ^iflaifironf
multitude of cafes in our law-books : but the •canon of the 4tK •• •» "^©f
L/iteran council for making the i ft benefice roid, has been the hJIJ^"*!^
law mpft generally, ufed and approved here, and ws|^ certaijily Lynd.
the la.w of the land long before the ftatutc of 21 Jf. 8. So that sE^* 3. ?•
before thie ftatutc (it fecms pretty dear) the church in cjueftion *f H.lleou
would have been void by the canon lai^ upon the incumbent's 4 Rep; 7 c.
Canons not
lU) 'c6uncir of ■ Laterao was a general Tentonce of depriyation. law, hm
acceptance of injtitution to thf ad benefice, without ^ny fentenc^ 79*
'61 ae^ivatm i for the words ** ipfb^jurc fif privatus** in U^c eom
r't':'': -'---'■-■-■ ■
It
recetved.
Continued
i86 TkiHiof y TfikM, 3 Gtf£?. III. 1763.
Hbc a wti It is oblerrabk that there is not a word faid Tof mduffkn in
©r iadu^a ^ny of thcfc canons, but the words arc «« qui nituntur accipete
thcfecnons. *' plQ^^cs ecclefiaSy tiVw- Quicunq. receperit aliquod bcneficiuoi,
3. Lateno. /< ^c. Quicunq. plun beneficia receperit, vel affiscutus fuit per
4. Uteran. cc modum iNSTiTnTioNiSj" f^c. And the words ae^e^ and tab
jooM. 1^ ^j^^ Qattttc of 21 H» 8. feem to be copied from them.
If it maj be allowed to cite Do£ior Aj^tffis Panrjpn Jurk
Canonui Anglicam i he lays it down in fol. [416] that all be-
nefices with cure of fouls are by the conllitution of the fourth
council of LaieroH void tpf9jur€ (without a dtfpenfation) by an
admiflion to a fecond benefice tbwgh they are not induBei to eitier^
hit have only bfftimtion thereunto.
Such part of the canon law as hath been received here is not
the pope's law, but the law of the land, which no ccclefiaiUcal
power could ever lawfully difpenfe with. Vau. 2i. So there
is no occalion for a fentence of deprivation, by our law.
And although this part of the argument is drawn from the
canon law, and the law of the popes, yet it muft be owned thofe
laws were never acknowledged to be laws of England i and there-
fore they are no further of authority than as they agree with the
law, or common law of England^ and fo have been received
here.
The common law ever fets its face againft pluralities^ non-r^--
dence^ and the popi^s ufurped difpenfing power i and Lord l^augban
fcouts the diftindion made between a ceOion by an incumbent's
accepting a bifliopric, and an incumbent's taking a fecond bene-
fice. It pafies for current (fays he) in our new books> that in
the cafe of pluralities the avoidance is by the canon law, and
therefore may be difpenfed with by that Ia^t ^ but that in cafe of
a bi(hop made, the avoidance is by the common law. He feems
to fmile at the diftin&ion, and fays, the patron may prefeirt as
foon as the incumbent is inftituted to the fecond living, without
deprivation i and the law was antiently fo. Fau. 21.
Mr* Selden in his notes upon Drayton* j Polyolbion, 3^ vol. 1793>
EubliQied by Dr. IFilkins^ feys, that England ufcd to. fend four
ifliops to general councils. By this courfe canons have been
The greH received into our law. As of bigamy in the coiincil of Lyons^
council interpreted by parliament under ^d. i ., of pluralities in the coun-
cil of Lateran under i^ope Innocent 3. The law of le^ had its
ground in the council of Lateran^ anno 1 1 799 under rope Aiex^
ander 3. where laymen were only allowed four months, though
the clergy or religious, who had title, had fix months ; but this
was never allowed or agreed to here ^ for every pauon has fix
months in England.
From
1A15.
TriKity T£rm, 3 C^e. III. 1763. 18?
i^rom hence tfays ScUen) *< Yoa cannot but perceive that • Reg. 4s.
^' canons and conftitutions in the pope's councils never bound ''° ^.^f'.' ^
^ us in other form than fitting them by the fquare of J^ngiijk u^cc^^n^
** law and policy." Our reverend fages and baronage allowed tioaed to be
and interpreted them } and in framing their writs would mention ^y ^coa-
them * as taw and cuflcm of the kingdom* and not otherwifc* ^'^^
With refpedl to the ceremony of iniuBkn^ it is obfervablcy TfiMghitlt
that in ouf moft ancient precedents of declarations and pleadings ^'l-^'^
in writs of right of advowfon touching the inheritance, or in quart ^^ cifrit
impedit^ and darrtin prefektment^ touching the pofleffion or turn, maft be al.
there is no mention made of mdu3ioH / but in order to (hew ^^1^^ ^
ieifin or pofleffion in the demandant or plaintiff, or of him under J righTdf'
mrhom he claims, he only alledges that he prefmted his clerk, advowiba,
who was injtituttdl ^* t^ J?»-
• ^u«r« pat
To prove this, Glannnl^ lib* 4. dt Advocationibus Ecckfiarum^ 38H.6. !>
cap. 6. temp. H. 2. Bi/bop Nicbdfin^s Hifl. Library 223. «' Is
<< qui petit jus fuam in haec verba vcrfus adverfarium fuum
•• proponet.
<* Peto advocationem illius ecclefisfe ficut jus meum, et pertU
^* nentem ad hereditatem meam, et de qua advocatione ego fui
^ feifitus, (vel aliquis anteceflbrum fuit,} tempore regis Henrict
<< avi domini regis (vel poft coronationem domini regis) : et adeo
^* feifitus adeandem ecclefiam vacantem prsefentavi perfonam
^* (aliquo prsedidorum temporfim) : et ita prefentavi, quod ad
** prefentationem meam perfona fuit in ea ecclefia instituta ;
-<< et fi quis hoc volucrit negare, habeo probos homines qui hoc
. << viderunt et audierunt et parati funt hoc diracionare fecundum
.<< confiderationem curiae, et maxime illum^. et ilium, et ilium* •
<< Audito autem clameo ipfius petentis, is qui tenet poterit fe
*< defendere per duellum vel ponerc feipfum in aflifam magnam.
The following is a record in quare itfifnedit, copied trulv from a To(be«thAt
MS. in parchment in the pofleffion of the reporter, which is pre- «dtt^»oo
fume4 to be part of the original year book of 18 Edward 2. it ^i^^g,.
being written in tbe court hand of that time \ it being curious
for its antiquity is inferted here at length. '
lis TR|KIT¥ Term, sC^id.'III. 1763.
Dfi termiao Trwtatis anno Regni Regi$ £dwardi
decimo o&avo.
^ Edmufldtts de Appdby fummonitus fuit ad respondendum
• Lytbomor «c priori dc * Lithom dephcito quod permittat ipfum prcfcntarc
jawSir^ ** ydoneam perfonam ad €cde6aiii dc Appdby, qu« vacat & ad
zpion oi « fuam fpeAat donationeni, f^c. et unce idem prior perLde
Bea^i<f^iae x< A. attomatum fuum didt quod qu?edam Marg^ria Banaftor
^laftoci't " quond Jm fuit fcifica dc mancrio dc Appclbv, ad quod praedi&a
ti^p MouaT- ^ advocatio tunc pcrtinebat, quar ad eandcm ccclcfiam prefenta-
iifa»33. 4€ vit quendam Ricardum Middc clcricum fuum, qui ad prcfen-
f Tlj^re is ** tattoncm fuam imt admiflus b* f injiitutus tomporc pacis (em-
notaw^ «c • pore Henrici regis avi domini regis nunc; ct poftea eadem
IntSiwlwlc " Margcria per cartam fuam dcilit & cpuceflit advocationcm
record. ^< praBdidam cuidam Willielmp priori de Lithom» tenendum
<« ejdcm priori et fucceflbr^>us fuis et ecciefix fux (anfii Cucb-
^< berti, in puram et perpetuam elemoiinam in perpetuum ; et
<< dicit quod vacante eccIcGa prxdida per mortem didi Ricardiy
<« quidam Williclmus, filius Williclmi Vernon oppofuit fc pre*
A recovery <* fcntationi prscdi^i prioris ; per quod idem prior tuHt breve
by a former ^ quarc impcdit verfus ipfum WiHtelmum, de advocatione prse-
quarcimpc. ** dida coram jufticiarits prsdifti Henrici regis avi, Is^c. hie dc
dit in c B. «« Banco, anno regni fui quinquagefimp, et prefentntionem fuam,
San er* ** pcr judidum cjufdem curix verfus cum rccupcravit; ita quod
« epifcopus Lincoln* nmc, pcr Inpfum temporis eani^era eccle*
Hob. 154. ^* fiam contulit cuidam Thomse Mandevillc cicrico fuo, ct cum
« inftituit in eadem ut in jure ipiius prioris 8c ecclefise fua: pne«
«« difta, Vc. 5 et po(lmod{im vacante prxdlcla ecclefia pcr mor-
** tcm prxdi£H l^omae, quidam Ricardus Vcruon confangui-
« pctts & hxres pr«di£li Williclmi filii Williclmi oppofuit fc
«< prcfcntationi cjjufdam .Ambrufii tunc prioris de Lithomi pre-
Tbe record *** dccdR)ri8 ipfius priorifi nunc, per quod idem A mbroHus venire
of th^treco- €% {^q\i porapi Raiiulpho dc Hengham ct fociis fuis iufticiariisad
edimo^R. ** placita repis rccordum praediSi placiti habiii hie mter praedic-
fj94%U\» ' ** ium Wiijiclmum quondam priprcm, ^f. ct praedi£lufn Wil-
facijs^o « Kdmum filium Williclmi antccefforis prscdidi Ricardi; ita
whytheprtor ** ^^^^ lidcm juftid^rii prxmuniri feccrint pwcdiftum Ricardum
ilioutd not ** per breve Aft fcire facias eflcndi coram domino Edwardo rege
prefent on « patrc domiui regis nunc anno regni fui decimo fcxto, oftcnfum
Iv'Jidance. ** ^' ^^^ V^ ^^ habcrct vel dicere fcirct quarc prxdi£lus prior
Tu igroent «< prscfcntationcm fuafti habere non debet ; ita quod in odabis
n r"" ^"h " ""^i Johannis Baptiftx anno regni rcgFs Edwardi fupradifto
fciff ul\i%l " confidcratum fuit quod praedi£tus prior habcret breve cpifcopo
•nj a writ CO « quod (uon obftantc reclameo praedidi Ricardi) ad pnefenta-
U)« bi&op, it tionem ipfius prioris ad praedidlam ccclcfiam ydoneam perfonam
<< admitterct, et dicit quod epifcopus ilia vice eandcm ccclcfiam
' pcr lapfum temporis contuUt cuidam Juhaimi dc Arraiins de-^
c( cano'
Trinity Term, 3*0^0. Ill; 1763. 189
<< cano clerico fuoet eum ^inJUtuit in eadem at in jure ipfius •Kotawoi^
** prioris ct ecclefige fu« pra8di£iae» per cujas mortem praediAa ofindoaion.
<^ ccdciia modb vacat> et» ea rattone, nanc ad ipfum priorem
*^ ad pnedi£tam ecclefiam pertinet prefentare, pnedi&us Edmun-
*' das eum injufte impedit, unde dicit quod deterioratps eft et
<' damnum habet ad ducentas libras> et inde producit fedtm.
" Et praedidus Edmundus venh & defendit vim, iifc. et dicit pica.
*< quod ad ipfum Edmundum, et non adpnedidlum priorem^ ad
" pnedi£lam ecclefiam pertinet prxfentare, quia dicit quod com
*' pfsedliSus prior fumat tituliim fuum prsefentandi ad pr9edi£lam
'* ecclefiam de dono proedidse Margerise, quam idem prior aderit
*^ prxfentafle ad pnedidam ecclefiam przdidum Ricardum
^' Midde clerieum fuum qui ad prsefcntationem fuit admifTas &
'^ injitutus tempore pacts regis Henrici) qutdam Henricus Ap- That the
*^ pelby avus ipfius Edmundi cujus hsres iplib eft ultiro& pnefen-* ^!^^^^
'* tavit ad eandem ecclefiam quendam magiftrum Henricum Lei^nied a"^
'^ Lorel clericum fuum> qui ad prsefentationem fuam fuit ad- paribntiie
<' miflus & infiiiutuj tempore pacis tempore praedi£li regis Hen« '***
" riciy per cujus mortem, ut per mortem ipfius qui ultimo fuit
^' praefentatus per^c^^um patronumiprxdidlaecclefia modo vscat^
" et hoc pretendll verificare, titc. unde petit judicium*
** Et prior dicit quod cum ipfe narrandoTerfus ipfum Edmuh- Replicatimr .
'* dum utmat titulum fuum de dono prxdidlae Margeric de ad* T**^.*^*
" vocation^ praedida^ poft quod donum, Tacante ecclefia per ^^^ *^"
** mortem prsedi&i Ricardi Midde, praedi£tu8 Willielmus filius
*' Will^lmi oppofuit fe prxfentationi prsediAtWiUielmi quondam
** prioris. isfc. quam ipfe tunc fecit ad eandem ecclefiam, et
'^ TCrfus quem idem prior recuperavit praefentationem fuam per
^' judicium curiae domiiii regis, et habuit breve pnedi£lo epifcopo
*' ut pniedi61um eft'} ita quod collatio ejufdem ecclefiae, quie
^^ prsdidua cpifcopus fecit praediAo Thomse de MandeviJIe,
** fuit, ic computari debet in jure ipfius prioris et ecclefise fuae
*^ praedidae ; et poftmodum vacante ftxdiGti ecclefia per mor-
** tern ipfius Thomse de Mandeville, praedidius Ricardus de
" Vernon oppofuit fe pisefehtationi prfedifti Ambrofii quondam
*• prioris, Wr. verfui quem idem prior iterat6,'per confidera-
** tionem curiae domini regis habuit breve epifcopo ut premittitur ;
*' itaqtiod collatio quam epifcopus tuHc fecit praedido Johanni
" de Arraiins fimillter fuit in jure ipfius prioris; qui quidem
** Johannes de Arraiins ultimo obiit perfona in ^adem ecclefia,
*^ prottt ipie eft paratU9 verlficare ; ad qins coilationes in prae-
** dijtis duabus ultimis vacatioftibus ejufdem ecclefiae fa£las,
*^ pnedi^lvB Ednmndtts non refpondit vel oftendit quod ipfe vcl
<' altquis anteceflbrum fuoFUm in eifdeni duabus ultimis vaca> *
** tionibiis ejufdem ecclefise aliquem cltricum fuum ad earidem
*^ pnefentaverint, vel aliquod clameum tunc oppofutnntv per
** quod breve hoc habcri debet pio coneeiTo, unde petit judi-
•• ciuua, bV*
" Et
icjo Trinity Term, 3 Geo. III. 1763,
Rejoinder. '< Et Edmuncfus dicit ut priuSj quod prx:di£lus Henricus avas
** fuus tanquam venis pstronus ecclefidc prediftai ultimo pfx*
*^ fentarit ad pned^dam ecclefiam pnsdt^lum magiftrum Hcnri-
^* cum Level clericutn fuum» out ad praefentationem fuam fuit
Tnirrfes <i admifTus ct ittJHtutuSi ahfque bene quod unquam aliquis clericus
^rk wi " ciftiterit admiflas & infiiutM in prxdid^ ccctefia ad pnefcnta-
cverinftitou '* tioncm przdifli prior is fcl alicuj US prcdcceflbrum {uoruiu po(t
cdoache «< pnefentationem fadlam dc ipfo magiftro Henrico Lovel, ct
Sf^le prior ** '^^ prctcndit vcrificare, Wr. ad quam vfrificationcm non rc-
orhuprtde- ** fpondit, undc petit judicium, quod curia, hoc habeat pro
c«flOTt, •nA •« conccflb, ^c. dicit praetere) quod non halict ncccfle refpOndere
titT^m^gt ** *^ colhtioncs quas praedifius prior dicit praBdiflum epifcopum
bad between ** fecifle ad pracdidam ecclefiam, nee etiara ad placita feu ad
the former c< judicia qux prxdidus prior alle^^at fuiflc inter predeceflbrea
v^^tb^ '• 'f«»«« ct pragdiftos Williclmum filium Willielmi, & Ricarduin
iDgOiaogert. '* dc Venion qui ip(i £dmundo funt extranei, unde petit jadi-
•* cium ct breve epifcopo, ^c. Dies datus eft eis hie a die
Defendant '< fanfii Micliaelis ill quindecim dies ; ad quern diem prsedi£lus
•r^novit, c( Edmnndus venit ct dicit quod non poteft dedicere quin prae-
" di£tus epifcopus pncfentavit jure ipfius pripris ad prxdidlam
Jodgraent *^ ecckfiam in omnibus ut praenotatuni eft. Ideo confideratun^
■nd wiit to t€ eft per curiam quod prxdi<f\us prior habeat breve epifcopo ut
t^u. " P^diaa eft, er.-."
. »
tiff.
This record, (hews that induffion^ in ancient times M'as npt
ufed or thought of; that it is an authentic record appears by
Fitzherherfs^ Grand Abridgment, tit\e Darrein Prefentment s where
it is pleaded In another caufe between the fdme parties in a Dar-^
rtin Prefentment brought by Appelhj the defendint again ft the
prior^ for the fame church, debated the fanie term, vhlch wa^
compromifed upon the prior*s paying Appelbjj a fum of poney,
whereupon the prior had a writ (q the bilhop.
Whether induflion augments the title to 7^ benefice ? Ljnd.
Kb. 3. tit' 6. cap, 2. foL i 9. 4iote (c) uj>on (he words " Infii^
*f tutus fuerit* Cum enim jnftitutus fuerit, Tunc enim habet .
'* jus, Don folum ad rem, fed in re, £t hac enim inftitutione^
*' acquiritur titulus, etianif^ pojfejfio nondum Jit aifepta : Nam in
" bene fie 'u lib us, beneficiorum traditio, non augH affi'&um tituK
*• precedentls ; etfmt tradidone trftmfertur dminium**
So that indu£lion (is only a ceremony and) does not increafe
the title to a benefice* S^ P. Lwid. 141. mte (u), {nduflion b not
part of the title where there is tnftitution^ but only where «ii^^
tion or inftallation habetur prQ ipfo tituh.
Havingendearoured to fliew^ that by inftitution to a fecondt
the firft living was void by the canon law (which became part
of our law) ipfojun without deprivation j and fbat anticntly the
ferefuonjr
Trinity Term, 3 Geo. III. 1763. 19^
ceremony of indu£lioii was not nfcd ; it (hall next be (hewn,
that bj me common law a church is. completely full upon i$f/K'^
iution thereto, againft all perfons but the king; confequently
an^ perfon having received inftitutiom to a fecond benefice, has
acctftei and taken it^ and in fuch cafe the firft would have ,beeo
Yoidi beforethe 21 ^. 8. '
At common law, before ihcjiat. Wtftm. 2. (which does not AaooisSs,
mention the word indu^ion) if one had prefented to a church ^3^- '- ^^
thereunto he had no ri)(ht, and the bifliop had admitted and.tw^^^ol
infiUHteilm clerk, the incumbent could not be removed except cilolL|«of.
by the kingrf a Infl. 357. C0. Lift. 344. h. 6 Rip. 49. Bef'
v}eir% cafe } for thefe good reafon%
\ft, Becaufe he was in by a judicial aA of the biihop*
2i/, The law had its end when the church was filled with a fit
perfon.
3^, That the incumbent having the care of fouls might attend
his charge in peace i fo that after in/litution (fays Coke) he (hould
not be fubje& to any a&ion to be removed at the fuit of any com-
mon perfon on any account whatever 1. and if he could not be
removed after itf/ihuiion, furely he had thereby accefUd and taken
the living*
Where a common perfon prefents his clerk^ and he is ad-
mitted and inftituted, he cannot revoke his prefentation though
before induilion. Bro. ^are hnpeditj pi. 65.
If a gtfr be made to a parfon before induXm^ it is good; fo if
be alien with confcnt, ISc before induBion^ it is good, Gol^. 163,
No lapfe can incur ^aftcr injlltutton^ though no induQion be
ever made, becaufe the church is full by tnJUtuttQn. Gold/b. 164*
And Lord tiob. 154. in the cafe of Colt and Glover verfus Bifiop
of Coventry^ fays, I hold it clear that if the patron prefent, and
his clerk be hjlltutedy and remain without induHion eighteen *^
months, the king (hall not prefent upon him by lapfe, for the
king cannot have a lapfe but where the ordinary might have had •
it before* This proves mod clearly that the church is full by Hltcblov.
inJHtutions and even againft the king, where the king has no Giover^s.P.
right to the church as patron. '3 J"^*
The Jlat. of 21 /f. 8. r. 13. / 9, 10. comes next to be confi-
dered^ whether it has made any, and what alteration of the law
in this cafe, as it ftood before.
• PerKaiii
this may
be better
done from
the hiilory
and circum-
ftances of
the timet
than ex lif-
ceribus oF
tbe fiitttce.
Colt and
Cloverir,
£pif. Co-*
ventry,
to. 157.
*' in (lit lit ed and inittBid in p^fftjjim ^f the fame i then ahd rntmi-
'* dtktit/y iiptrftuh poffffflon had thereof, the fir 11 bcntfice (hall be
■* adjudged in law to be voidp"
SeB' 10/ ^' And it fhall be lawful to erery patron having the
" advowfou thereof to prcfcot another, and the prfeUtJtcc to"
" hate the benefit of the fame, lo fuch Hi^ic manner and form as
" though tbe incumbent had died or rcGgncd ; arry^ licence,
^* union^ or other dirpenfation to' the coiitiary hereof ohtamcd'
" notwithflanding."
Tlie true key for conftruinj* a flaiute, is to conTidcr thcfub-
je ft -matter of it, and the ends and*purpofes for which it was
made*-
The preamble of the flatute itfelf tetls us it w^ts " For the
*' more qtiet and virtuous increafe and maintenance of divine
*^ fcrvicCj the preaching and teaching the word of Godj with
" godly and good cismplc giving, the better difcharge of curates*
*< the miintenance ofhofpitaUty, the incrrafe of devotion, and
** good opinion of the liy fee toward the fpi ritual perfons."
Lord HGbart fiiys, ** It was a moft religious and politic
*' chtirch-law, and alni6ft d redintegration of thofc holy anticnt
*^ canons, and a rcftaratioh of the church, ruined by the pope*3
** tQt quotSj difpenfations, (jfr/*
Thisftatute, from the temper of the time when it was made^
feems to- have been intended to knock down the pope's yfurped*
p'oVer to difpenfe wiili pluralities, and was one great flep tc^
wards it,
*^*Ii wh^ the firft flatutc or law which gave allowance to plu-^
*' ralitles,** X^/rA 244. Though it was made to prevent that,
multitude of them which cxilled through the pope's ufurpcd*
dirpenfnig power, it doth not fccm to have been made to intro-^
dice any hew law^j- to thr point m ^tifjlkn^ btit was rather made,
in affirmance of the antient law of the church ufed in Eft^and
longljcforeUns ft'atuie* Davis 6^n. Cafe of C^mmenda,
There arc no negative words in it, that fay the firfl benefice
{hall not be void until the incumbent be hiduBed into the fecond.
It Is in the afEfmatiye j whoevenzc^/^/j- md taka anotlier witli *
curej tffc. and the word& that follow feem to be ex ahuhdantu *
iatobtpriiH
Trinity Term, 3 Geo. IIL 1763. 193
' It was made to vindicate the king's prerogatite^ and to refcue
iki% part of the law of the land from the pope's intolerable
Mforped power» and was not calculated to alter the law as it
fiood in this point.
It was certainly the intent of the makers of this ftatute, that
^hot^tx accified and took a fecond cure Oiould void the firftj un*
le& he was properly qualified as this ftatute requires.
The words of ftatutes are not only to be confidcred^ but ra^ Tlie intcBt
thcr the intent of the makers is to be tueigbedi for the intent b the ?^ • •"^^
principal thing to be confidered, per curiam* Flowd. 464. a. b* \
5«*:5.S.P. Phwd.2iu S P.
^sidfimetimesjlatutis are to be expounded againft the letter, td
prcfcrvc Che intent. Per Eye C. J. Shower 49 1 . cites 3 Rep. 59.*
^dAW. Jones io^.
What Lord Hob. fo. 157. fays, is very ftrong to this purpofe:
^ It is (fays he) the office of judges to advance ]aws made for
** religion, according to their end \ otherwife if a man take
'^ twenty benefices, and enter and take the profits of them all^
'^ bat take no formal indunion, he (hall *be oat of the law*
« Durus eft hicfermor 3 Rep. 7. b. S. P. Hob. 97. S. P*
And again ; Lord Hob. 2^6. fays, <' Judges hare liberty and
*^ authority over (latutes to mould them to the trueft and beft
** ufe, according to reafon and bed convenience."
And therefore, notwithftanding by the letter of this ftatute
the firft living feems not to be void until induSiionintq the fecond,
'* Tet to avoid the great inconvenience that otherwife would
*^ follow, it has been held that the firft living is void upon the
'^ bare inftitution into the fecond; and fo (it (hould feem) was
'^ the law before the making this aS, wh^e the party had no
*< (fifpenfation/' Degge 34. Dr. Godoipi. Rep* Can. 294, both
allowed /w' Lord C. J. North.
But the words trtduB/d, tec. have created the difficulty in this Objeaioo;
cafe I and it is objeded on the other fide, that this ftatute was
not only made to deftroy the pope's ufurped power, but alfo the
fentence of deprivaiibn^ which (it is faid) o\tr fpiritual courts had
always held to benecefiTary in cafes of pluralities; agd therefore
it has been argued, that induBion was to be in the place and
ftead of a fentence of deprivation j and if fo, the ^rft (it is faid)
cannot be void before induSion to the fecond living.
Vol. it. O In
1^ TKFNiTVTEkM, 3<?^*m* J7<53.
Afifwcr. In iif(Wer to thtB: it IB' very dear from tbe refolutionB xo HJ*
tiitfi% tife, and Digbf^ cafe, 4 Rtp. 75. 79. b, that the fiiik
Hvmgih tli€ prcfent iSafe was void upon imJKtKtim to die fecosdi
before induBion^ without fentence of deprivation.
'W'hlt Lotd pBphum fays, was agi^d to by the whole court,
<fl^. « tltffl although by tht ikjtitufian U tU JicMl bimfia^ tbi
<< ^r/i u wmT ^/ tbi iccU/laftical Iviv vntbmt Mny diprivaAm^
<< fentenci declaratory ^ 'Vet no lapfe (hall incur again ft the patnm
^ fiM^ ik^tce be gi^en 2/)^, no ntore than if the church became
^ Void by tefignation or privation ; and yet tbe pAtt^ may take
^ ihiiet if^ tw//, and mayfrefent according to the con/Httttim ^
^* Lateran^ held under Pope Innoceftt 3." But the patron is sot
forced to take notice, at his peril, unlefs he is indu&ed \ fnd
fait eon^Jkm per totam curiam.
If this be law, the firft living was abfolutely void hjinfittuAn
to the fecondy before deprivation^ and before indu£lion / and the
}Hitrd!i fti&y f adtb notice if he will, and may prefeat. May pre*
Kht ! t« ^kt ? Not to a living that is full; thai cahoot Ur.
And the toMnmon fbrm of every prefentation to the biihop fliews
ft. Tht plitron (thereby) hmmbly prays the 'bifhop to admit
(Aicfa a insil) his clerk ad ecckfiamjam vacanUtk^ ftc. W. Jonti
337. jftflrv. Prig?.
Cbjtftlon. It w further bbje^ked, •« That if an incuAibent takes a fccond
** b^nefiee With cure, by which the firft is void by the canoft
<* law againft the patron^ fo that he may prefent befott any de»
Cto, Car. ** privation; yet until deprivation, it is not void as to a ftrangcr,
357*. it con- *^ for if he fyelbr tithes againft a parifluoher, it is no bar againft
tra, by the u him thftt hc had taken a fecond benefice/' 2 Ro. Mr. 353.
ST^thT" M *• ^^^- »3 C^- ^- ^' fa5«^ by Juftice Barkley, that reherm
judges ia in hts argument of the cafe of Frifi faid that it was fo ad-
■^^ judgtd.
Anfwer. jjf^ In anfwet to this. It IS no more than a di^m of orit
judge of what another faid arguendo.
adly^ tt proved for the defendants that the firft is void as V>
the patron, and that he may prefent before deprivation.
After Inrtt- 3*?/)^, But the diBum is, that it is not void as to a ftr aiige r, for
utionhchas }f he fue for tiehes againft a parifhioncr, it is no bar ac^ft him
cbiatioD*. that he had takfcn a fecond behence.
Cafes temp. Annv, 1 1 Mod. 46. Viner, (^refenrmcnt, 3 56. May ester Into the glebe apSofi ^1
ilran£er, a Ro. Rep. J92. Hitchm v. Giovcr, before indu^icii. And a perl'on iaftituted iball h4v<
tbe jprpfiu againft every cominon peiroD* F. N. B. So. margin^ clte« 31 £d« 3. 4.
13 Thii
Trhtitt Term, 3 G!f^ ro. 1753. 19^
7Sb feems to be laid down too largely, and to prorc tpo
imncli: for fuppofe an incumbent inJHtutei to a fecond livings
and the true patron of the firft, the very next, day, prefents bis
cierk, (which it feems he may,) who is immediately inflttuted and
iniuffed into the firft, and on that very dzj^ corn i3 fetered, and
dien the firft incumbent, not yet mdutted but ouIt in/Htuted to
the fecond living, fues a parimioner for tithes of tnat com, wiOl
h not be a bar to his demand for the pariQiioner to (ay. You have
taken another living by in/liuaim^ and I have paid my tithes tp
the new parfon of our parilh who was inJKtuUd and induSid hc^
fore the tithe accrued, and fioce your inftitutionto the fecond
living. This (with great deference) would be a good anf^ifcr^
either at law or tn equity.
^ 4iifyf But funpoGng, for argument's fake, he can recover the'
tidies td the firft benefice before iba church is filled ; yet when-
ever it is filled, he will be obliged by the Jot. 28 H. H. r. 1 1. to
pay over and make fatisfafUon to the new incumbent from the
very time the firft «hurch became void, which (as hath been be*
&re fiibautted) is upon inftitutkn to the fecond living.
Mrt. Waifin^ (or Mr. Plaei of Grttfi Inn^ who indeed was the
true author,) in his Compl. Incumb. %vo. voL 2. 748, ^. iii hit
comment on the /«f. 28 H. 8. fays, << I find but little in all the
** books relating to this ftatute, yet I will venture to give my-
^ thoughts on queftions that may rife upon it : {int. aL) If the
** incumbent of one church of the yearly value of 8A accept
** another, the firft is void, fo that if he doth continue as in«
^ cumbent, by fervtng or providing for the cure, taking the
'' profits, C5V. I conceive that he is in the fame cafe, as if upon
'* the death of the incumbent of another church he (hould of
^' his own authority enter upon the profits, and ferve the cure
'^ thereof, as if lawful incumbent, that is to fay, that he is ao*
'^ countable to the next incumbent for the profits received by
'' him, and liable to an adlion upon this ftatute, if he refufe to
" latisfj the next incumbent for Ae fame."
^ So that fuppofing the pluralift can receive, or fue for the
tithes of the firft living, it by no means proves* that it was not
void on KIs inftitutim to the fecond, for it is for the benefit of
his fuccefibr that he fliould take the tithes of the firft, until the
church be filled, othcrwife they might rot upon the ground,
when they are fet out ; and he is plainly obliged by this ftatute
to account for the fame to his fuccefibr, from the very day of the
avoidance.
But it Is faid the church was not void but only voidable, and OKjeOioo;
that the patron had it in his power to make it void or not.
^0% It
196 Trinity Termj 3 Geo. JIL 1763.
Aniiw. It ™»*ft '^c fiibmittcd, with great deference^ that the word
votdaUe in this cafe mud liecelTarily mean> that the church may
be made void by afiion. ot judgment of law in a proper court,
5ind not by any a£t in pais by the patron ; for it is laid down by
•' Coke in I Ro.R£p.'2i2» ^^^^ before a prefentation can be made
to a church it mud be adually void, and its being voidable only
b not fufficicnf, and he cites SmaJPs cafe, 17 £J. 3. 59* in
thefe words, " L'Eglife doit eftre void devant ppct prefentcr,
<(. car (] Teglife foit voidable nul prefentation poit eftre, mes fi
<' foit void i/f^^^outrement 9ft/'
The true patron in the cafe at bar might have pref^nted,
tWrefore the church was vpid the moment that right accrued,
and not voidable oniy, for then he could not have prefented.
Having thus endeavoured to {hew, that accepting in/Htutm to
a fecondy is an abfolute cef&on of the firft, before indufiion and
before deprivation ^ and that the patron might prefent to it, as-
ad eccUftamjam vacanUm^ and that thtjlat^ 21 H. S. has not al-
tered the law in this point, it niay fairly be ihfiftcd that the
church in queftion was /o void on the 31ft of Offohr 1759, the
day of the infljturion to the fecond benefice, that the patron
thereof could not afterwards, on the 9th of iVn^^m^fr following,
transfer the right tf prefentation (to the church in queftion) by
a grant of the adyowfon in fee to the plaintiff*
This point was fo very clear upon breaking the cafe on the
former argument, that there is not much eccafion to fpeak to it;
the cafes then cited fcem to put the matter out of doubt. Jenkins
Ctnt. 236. Dyer 28a* 1 Leon. 67* Co. Lit* 120.
tepkini The patron of an advowfon of a church being void, grants to
Cent. *36. jg^ proximam prafentationem to the faid church yaiw vacantem, fo
^jrer a 2. ^^^^ .^ ^^jj ^^ la^fyj f^^ j5^ ^q prefent to the church for this
shepard T. tum. Rcfolved by all the judges that this grant is void by a
S.F.283. fubjeft ; for this avoidance is a thing in a£lion and privity, and
vefted in the pcrfon of the grantor, and is as a relief, or arrear-
age of rent, or an obligation, or a debt; prefentation is only a
commendation of a clerk to the bifhop, to be admitted to a
church being void. Dyer 2^2' S. P.
J Leon. 167. Cro.Eliz. 173. Broolejby^ czk^ ^tare impeiit : upon the de-
^ U 2-6 ^^*^^^^°" ^^ appeared, that a grant of the next avoidance was
I. c!""*^ ' made to him and one H. B.^ and after the church became void
Owen 85. H. B. releafed to the plaintiff all his eftate, right, and title ; and
^* ^* be being difturbed, brought a quart impedit in his own name only ;
and after verdi£l, this matter was allcdgcd in arreft of judgment ;
- that
Triwity Term, 3 Geo. III. I763.' l^f
that the' reieafe after avoidance was roid» for it is a thing in'
2£iicm which cannot be granted or releafed from one to another}
andjh it was adjudged. jidatHs's cafe, 1 6 Ed. 3. in quart impe^
dit cited in Befioeir^ cafe, 6 Rep. 50. b. which was thus : D.
was feifed of a manor to which an adrowfon w^s appendant, and
died ; the manor defcended to E* an infant | Adamt ufurped
during the infancy of £.: E.zt full age enfeoffed F. of the
manor, afterwards the church became void, and P. prefented^
and the affignee of ^^tfiTf/ brought a 7//ar^fi»^^irV/ and it was
adjudged, that bj the ufurpation the infant was out of the pof*
feffion of the advowfon ; fo that by his feoffifnent of the manor
at full age, nothing in the advowfon pailfcd to the feoffee, be«
caufe the feoflbr had but a right, and the ufurpation was void*
aUe by aflion, whioh could not be transferred to a ftranger*
To apply this to the prefent cafe. At the time of the inftitu«
tion to the fecond livmg the patron had a right to frefent^ and
might have had his quart impedit if he had been difturfaMsd } and -
this right cannot after be tnmsferred by a grant of the advowfoa
iii fee to plaintiff,
\ '
U a naan be fetfisd of an advowfon in gvofs, 6r in fee appendant F. N. B« 7!.
to a manor, and the church voids, and he dieth, his executor ihaU 4t^
jprefent and not the hein Bro. tit. Prefentatio/t, pi. 34. $• C. :^\ p.'h 2?'
In the' appendix tp the RegJfler^ tit. Brevia Vetera in Officiis
tllerici Coronx^ et clericorum de eurfu in QancfUaria^ Jhh 43. there'
' is a writ of quare itnpedit for an executor to prefent to a churqh
which beoaipe void in (he life of theteft^tor.
Bro. tit. Prsfeniment^ pi. a 2. If baron is feifed of an ad vow*
fon injure uxoris^ (as her dower bv a former huflband,) and the
church voids, and the feme dies oefore difturbance, and after.
the baron is difturbed, he (hall have this prefentation, though he
be not tenant by the curtefy.
. But if the fame perfon be parfon of the church, and alfo be
feifed in fee of the advowfon and dies, the prefentation belongs
to the heir, and not to the executor, becaufe the defcent and
avoidance b^^pened the fame inllant, and the elder right fliaU
be preferred. 3 L^ev^ 47* Holt v. Epifc. Winton.
C$v. EUk. 8 1 1 • X Leak v. Bi/iop of Coventry and Dr. Bahington.
A. and B. feifed in fee of every other turn ; A. prefented, then
jr. prefented, and after indu&ion his clerk is deprived, but no
notice is given. The biffiop collates; A. grants his fee to J. S.
The collatce dies i' it is 4iow B.\ turn, for i^., before his grant
Q3 to
hciriatiU.
iKj^ft TtiNiTT Tbum, $ Oeo. in* 1763^
t^ y. 9^ (bmng the right,) miglit ka.v« remofcd t&c CBilateeio#
want of notice \ but he dying iacumbent^ A.t turn it fer?ed«
But after A*% grant to J. S. neither ^. noc J. & cool^prefent;
an4 the collation is good againft all but the very patron, who
after the grant, could not have a£tioa ) but he has deftroyed ii
by his grant,, and fo none can hare it.
To apply thiB to the prefent cafe.
Upenthe 3 1 ft of 0^^ the true patron might have pitfentedt
therefore he had a right to prefent tmmedtatety and before hit
grant of the adrowibn to the platntiflF*, what b thsa then? but a
giant to a ftranger of an immediate right to prcdent i which
Ucm$ to be the fame thing in other words aa a grant of a pitfeat
aToidance, and with great deference the biChop's collation is
good againft the plaintifF, wh was a ftran^ tA tU aiwufm on
tie 31 OBiiUr^ when tie right of prefentation firfi Btermi t9 tk
then trm p0iron t for it fcems to be very clear that the trae
patron then Md a right to prefent if he pleafed.
From hence it appears, that by the law as it ftood befefe
%l H. 8. and by many refolationa fince that ftatiite» that npoa
the inJHtutian to the fecond living the fattoo of ti^ firft had a
rigl\t tQ pi^cfent*
That he can only prefenc to a chordi which i« nmd di foBf
and npt to one that is only voidable.
That a patron having an immediaU right to pie&nt tWM
. convey that right, for in other words it would be conveying a
prefent avoidance.
And fo the plaintiff haa not aoy titk> and therefore cannot
have judgment*
Anothfer qucftion is, whether the firft living became fo void
by inftitution to the fecond thai thi putrom waa bouttd to tftke
notice without notice given ?
This point was not much debated upon thefbrmet argument (
and though it may be doubtful whether the bifliop haa collated
rightfully or not, for want of notice to the patron, yet if the plaio-
tiff has fliewn na tide in his dount, he cannot have judgment.
But It is fobmttted the bifliop has coBatcd rightfully without
giving notice to the former patron or his grantee, if the firft
living was void by the iaftitveiofi to the fecond.
The
The inftitntion to the fecond liring was a ceffipn bf the firft
by the common law, without any deprivation. Faugh. 21.
And if thia was a ceffion at common law, the patron is to take
notice and prefent, without expe^lbflr notice frQm the btlhop.
G«fc834. r o - . , r
It is further fubmitted, that as this living is above 8 /. perann.
it is void bj tht J^irit of the ftatute of 2 1 ^. 8. which is a pt{t>Hc
law, and it it is a public law th^ patron is bound to take nptice|
(without notice given him,) and to prefent within fix mont^ at
his peril. Holland*^ tafe, and Vaugb. 131. Perhaps it nught/
be otherwife if the living was under 8 A per pnn.^ becai|fe Ae
flatute docs not extend to thofe livings.
Upon the wholes the defendants fubmit it with ^preat deference
to the court that the church was void upon inftitution to the
fecond Kving, that the patron was obliged to take notice withput
notice given to him, and to prefent within fix months after tl^'
infUtation to the fecond living ; and that although both thefe-
points (hottld be againft the defendants, yet' if the plaintiflF has
no title, he cannot have judgment, for if he repovQrs, it muft
be on the ftrength of his own and' not on the weaknefs of the*
defendants' title, who are in pofici&on. Vau^h. 8, 58. 6o.
In reply for the plaintifi^ it was obje£ted, that it did not fuW Stijcuit
ftantiaily appear upon this record that the church #as vcBd at BurUOi
the time of the grant of the advowfon to the plaintifi> becagfe
the day of the date thereof (9th of November 1759) meijtioncd ii(
the count is not material, but mere form comine undier a videR*
cet; and it not being material, the not denying i|t by defendahta'
is no admiflion of it ; for no/y-^/i/j/only admits thofe fa£b which
are materially alledged ; and it would be extremely hard upon
the plaintiff that fuch an immaterial thing which the defendant
may pot deny flio)ild conclude him ; that tlie time of feifin )Q a Bi«.enM;
quare impedit is immaterial ; and felGn generally, in the time of 3S*
peace, in the reign of fuch a king, being aUedeed, is fuffir
cient; and it is the conllant courfe to aUec^e feifin generally.
ikin. 660^ That which is alledged by way of conveyance or
inducement to the Aibftance of the matter need not to be fa
eertainly aUedged as that which is the fubftance itfelf. C9. Lit.
303. a. The grant to and ferfin of the plaintiff in the prefent
cafe is the fvb^ance, and if the .defendants had chofc to wf^
trovert the plaintiff's title, and infift upon the church being void
•n the inftitution to the fecond living, they ought to have &rft
admitted the grant and feifin of the plaintiff, as alledged in the
count, and then gone further and aHedged tiiat before the plain-
tiff bad any thing in the advowfon^ the church in queftion* became
vpid« and ibcwn when and how it became fo, and that it con-*
O4 tinucd
aoo TuiNiTY Term, 3 Ge^. III. 1763.
tk&tted void until and at the time Oif ^e grant to the plfltndffi and
afterwards lentil the end of fix months from the time it became
void ; whereupon the bl(hop on fuch a day collated the church
on the defendant Whitehead, and then the incumbent Whittbtad
to have traverfed, ah/q. hoc, that the late incumbent Tbamat
GreJUy was inftituted to the fecond benefice after the advowfon
of the church in queftion was granted.to the plaintiff in manner
and form as bj the declaration is alledged ; (^ hoc parous ejt
vfrsficare, &c. If the defendants had thus pleaded, and Ae
!Jaintiff bad taken ifTue upon the traverfe, it muft have been
ou^d for him, if the grant was made before the infiitution to the
fecond living \ if it had been found fpecially (which moft probably
would have been the cafe) that the grattt was really made on
the day alledged in the count, which was la days before the
induSion to the fecond living \ the matter of plaintiff's tttic
would have come fairly before the court, and the queftion would
have been, whether the church wasy& void upon the ihitittttios
to the fecond living that this Uirn could not pafs to the plaintiff
after that time by the grant ? but as the pleadings now are, the
plaintiff has a good title before the infiitutkn to the fecond living,
notwitbftanding the day of the date of the deed of grant be after
it, becaufe the time of the grant is not made material by pleading
properly, but the defendants liave entirely relied that lapfe
of time runs from the time of infiitution and not of induQton to
• the fecond living, that the day in the declaration is pot material*
a Stra. 8o6. 5 Mod^ a86. and many other cafes.
It was further infilled in reply, that admitting the church was
fo far void upon the infiitution to the fecond living before indue-
iim, and the patron may take notice of it if he pleafes, and pre*'
fent,- yet no lapfe (hall incur in this cafe againft him unlefs notice
be given to him ; no more than if the church be void by refig«
natiorij according to Lord P$pham in Dighf% cafe, 4 Rep. 75. 79.
Upon this argument the whole court ftcmed to be of opinion
that the church wasy& void upon injituiion to the fecond living,
that the patron might have taken notice thereof, and prcfcated if
he pleafed, but inclined to think that lapfe (hall not incur from
the time of the injlitution againft the patron unlefs notice be given
bim, but they thought that lapfe would run from the time of
induilion without notice given him.
, » '•- ,
The plaintiff's counfcl not being iware of the obje£Hon with
rcfped to the immateriality of the day of the date of the grant,
, which IS under a videlicet in the count, was not prepared to an-
fwer it, and therefore that fingic point was adjourned to be fpoke
, . to again.
This
TitLimTYliR^u^ $G€o.lll. 1763. act
This term the point referred for farther argument was fpoken Vn ^mt.
to again s after which the court were clearly of opinion, that ^^^
the d^j of the date of the deed of grant in the count coming pi^^^^'
under a videlicet^ and being never t»en notice of again in any sH.y.iS.
part of the pleadings^ was totally immaterial, and fo the plaintiff* "^^'9*
had fliewn a good title ; and they were alfo clearly of opinion ] iqi^. '^^
that the church was fo void" upon inJHtution to the fecond living, \% Mod.
dut the patron might preient immmediately thereupon if he 57^*
pleafed ; but that the bifliop had no right to collate by lapfe 5^*
without giving notice $ and therefore, widiout faying more, Vciv. ss].
they unanimouily gave judgment for the plaintiff: which was ^T^V!^
afterwards affirmed up^m a writ ^ error in tie Kia^s Bembm ^ ^*
Before judgment was given in the above cafe, the defendants \^f^^^^
noved for leave to amend their pleas, in order to have put their Bfoimi.145.
defence upori the plaintiff's deled of title, and not upon lapfe iC«tb.3S9.
of time ; but the court refufed it* becaufe it was a toul changing > 2^iSl'tS^
of their defence, and was not like an amendment, but was 561.
making new pleas ; the amendment intended to have been made <^ ^*
was, to have concluded the bifliop*s plea in the following manner: n^J^^^
and the faid 6t(hop further faith, that the faid Tbofmu Grefiej being pi. 60.
to admitted, inftituted, and induced into the faid north medicty Tnvaft
of the faid church of Great Sheepj^ and being incumbent thereof, y^^ ^^
he the faid Thomas Grejley afterwards,, and before the meiklngof Cro/car.
Uie faid indenture in the faid detlaration iq/lly mentioned f and h^e S^* *
^ fold Edward had any thing in the faid advoufon of the faid north ^ui^ ^o
mediety of the church of Great Sheepy aforefaid, to wit, on the 31ft penntttbe
day of UBober in the year of our Lord 1 759. at Great Sheepy afore- ^^^^'^^
ftid, accepted and took the faid other benefice with cure of. p^^„|o
fouls of the yearly value of 8 A, to wit, the faid re£^ory of the change their
parifli church of Sw/r aforcfaid, othcrwife called Nether Sea/e in *»* *«*»€•.
the faid county of Leiceflery and the faid Thomas Grefley was
afterwards admitted and inftituted into the fame before the
maldng of the faid indenture in the faid declaration laftly men*
iioned, and before the faid Edward had ;iny thing in the faid
advowfon of the faid north mediety of the faid church of Great
Bbeepy 2£oitid\A^ to wit, on the faid 31ft day of .O^oi^r in the
year of our Lord 17591 that is to fay, at Great Sbeepy aforefaid,
whereby and by force of the ftatute aforefaid in fuch cafe made
and provided, the faid north mediety of the faid church of Gnat
Sheepy aforefaid became vacant, and remained, continued, and
was fo vacant until and at the time of the making of the faid
indenture in the faid declaration laftly mentioned, and afterwards
until the end and expiration of fix months from the timt that the
faid Thomas Grefley accepted and took the faid re£tory of the faid
church of Sea/e, othcrwife Nether Scale, and was admitted and
inftftuted into the fame as aforefaid, whereby the right of col«
latjng the (aid nexik mediety of the church of Great Sheepy afore-
laid
«o2 TKimTYTzuMy 2; Gea. III. iy6s^
faid deroked to the bid biihbp ad i^rdiooMy of that p)a«f by rrx-
fon of the lapfe of time a& aforefeid^ wh^r^fore the faki biftiop
after the iaid fix mooths from the time that the bM Tlwms
GreJUy accepted and .took the faid roAory 0f ihe pb^rch of Mi%
othcrwife Nether StaU^ and waa admitted and indUuted iPto the
fame, were lap(ed, that is to fay, on the ^oth day of Jmm in die
year of oar Lord 1760, at Gre^ Sbe4py afoiefaids cottfted the
faid north niediety of the church of Gnt^ Shepy aforefaid, fo
being vacant on the (aid Thomas WhUtb^od hts derki an4 eaufed
the uid Thomas Whitibead to be ioftituted and induced iBto the
fame, in the time of peace in the time of the Lord George the
Second, hte King of Gnat Britain^ ftc* by oreaibn whereof the
faid Thomas Whitehead from thence hitherto hath been and ftill
is parfon of the faid north mediety of the faid church of Great
Steepy imparfoned in the fame ( and this the faid biibop is ready
to verify \ wherefore he prays judgment if the faid SJ^w^
ought to have his afbrefaid a&ioa againft him» ksfe*
Naiet The defendant Whitehead^^ plea ought tohavecon«
eluded in like manner as the blQiop's plcai only with this dif*
ferencC) that it ought to have travcrfed (at the. latter end thereof)
edfque boc^ that the faid Thomas Grejley was inftituted tatp ^
faid re£bory of the church of 6eak aforefaid, after the faid moiop
ties, of the faid ^dvow&n of the north anediety of the did church
of Great Sheepy vere or either of them was granted to the faid
Edwardf in manner and form as by the faid declUfttlPO ^^boieia
fuppofcd ; et hoc^ &c.. % whercfore> b'c*
t ao5 1
MICHAELMAS TERM,
Wilkes, Efq. verjus Wood, Efq. Member of Parlia^
meat. C B,
ri^HIS vag a proceeding by bill agajnft the defendant, wfai^li wntofA
^ was of JSqfter term lad, and in Trinity term laft the de^ ,
fendant pleaded the general ifliic, whereupon ifliie wU joined jj^J^
fi&o^ term \ the paper book of the i&iie has been delivered to the Tcred maf
defendant's attorney, whereby the^ whole proceedings in this be entered ae
caofe appear to be of Trinity term, without any eominuunce from ^^ ^
Safier to Trinity^ or any o&rr prout patH^ wMch is irregular) sv«Bt.'69«
this being a proceeding by bill of Eafter term { and therefore it i Brownie ^
b now moved that the iflue as delivered may be fet afide for this £"^**^
liregnlarity. On Ihewing cautb,
CtffM—- This is a nice objection, it is mere matter of form ;
asid we think the continuance, at oUmi prcat patit^ are not iie«
oeflkry in the iiKie paper, it' may be entered at any time u^ioa
the rolU The rule to Ibew caufe was difcharged.
White vcr/uj Shaw. C. B.
^HtS was trefpafs, aflault and battery, whereupon the plain- Q^od cum
* tiff declared, that v^henas the defendant 4 December 176a, lntt«rp»6
at JUeds^ made an affault upon the plaintiff, l^c. The defendant ^.^S
demurred, and (hewed for fpecial caufe^ that the fuppofed affault demamr.
in the e^uMt^part of the; declaration is not charged expref^ly or sLct.soS.
^Gtivcly, but only by way of recital. s Buir. »o6.
Seijeant Hemtt for the defendant inGfted that this, being Viix^l\t.
ihewQ for fpecial caufe of demurrer, is bad ; and cited Amym
y. Sbore^ I Stra. 624* B. R. where it was ill after a verdifl and
judgment arrefted ; and 2 Barnes 3^0, 361. C. B. where this
is hf Id to be ill upon a fpecial demurrer, though the court in
ihat ^ak hdbi it wdl enough after a verdid.
,, . ' ' Serjeant
>04 Michaelmas Term, ^.Geo. III. 1763.
iSia. 1S7. Serjeant Sayer for the plaintiff infifted,- tbat although this
i5<'* might be bad in a proceeding by bill in the E[ing*s Bendi, yet
CrcL Ei?*^^ in this court where the writ is fet forth in the declaration, and
iS;'. 198. is part thereof, the count is helped and made good by the writ ;
^T*"** *P* ^^^ ^^^^ ^^^^ Barnes 360. of Douglas and HaU% was argued
ftLnLzzSo. j^ J ^. ^^^^ ^ writ of error, Trinity 18 fe" 19 Geo. 2. by Mr.
Stracey for the plaintiff, and Serjeant Draper for the defendant
in error, when the court were very much inclined to get over
tbb objeAion, and faid that they thought the count was helped
by the writ j and Dennifan J. faid, he thought they might rejeA
the word whereas as furplufage, as the court frequently does
wher6 a man's name is miftaken in the declaration, and that he
was glad to fee the court inclined to get over this frivolous ob-
jeAion ; it was not theii detern^ined, but ordered to be (jpokeor
. to a fecond time; but jt never was, the plaintiff in error feeing
the court fo ftrongly inclined to affirm the judgment of diQ
Q. J^. (See my report of this cafe in B. R.)
» jooci 197. Ctfn<ii^Pevhaps if this had. been a proceeding t^y bill in B. R^
It might have been ill, according to the cafe in &ra. d^i. where
it was ill after a verdi£l ; but ia this court where the writ is fet
out in the declaration, the count (we tl^nb) 1$ h,dpe4 thereby^
and the plaintiff moft have jvidgment^
WilkeSi Efq. ver/us Wood, Efq. Member of Parli^r
ment. G. 3* loth of November.
l«Tc to J N trefpafs, aflault and imprifonment, the defendant pleaded
'^•ner^iiTu^* ^^^ general iffue, whereupon iffuc was joined laft term, and
and pJcfd I* notice of trial given for to-morrow the i ith of Ntnmiher^ On
fyczi2\ plea Monday laft, the 7th of Novemier^ the defendant moved for leave
wponurmi, ^^ withdraw his plea of the general iffuc. and to plead again the
privilege of general ilTue, and a fpecial juttincatton under a warrant of Lord
pariiaincDt. Halifax^ fecretary of ftate j and relied upon the cafe of Taylor
againft Joddrelly B, R. Mich, 2^ Geo, 2. where, in imprifonment
the defendant had pleaded the general iffue» the court gave him
leave to withdraw that plea, and plead a juftification that he was
mafter ofa (hip, that plaintiff was making a mutiny therein, and
fo he imprifoned him, upon terms of taking Oiort notice of trial^
and giving plaintiff judgment of the fame term. -The Uke was
done in Bhckburn and Matthews^ Tritt^ 2 j C^o, 2. B, R. and in
many other fimilar cafes, where the court could prevent th^
plaintiff from being delayed, or fuffcring any inconvenience.
Serjeant Glynn^ for the plaintiff, obje£ied that th^ defendant
could not, by coming into the ufual terms, put the plaintiff into
the fazpe Ctuation he was now in, the privilege of parliament
taking
t^iDg pUce nfxt MondOfs whereupon defendant agreed to
wtifebU privilege I but it was anfvered by G/jmmt, that the pru
vilege of a member was the privilege of the whole houfe, and that
he couU not waive it without leave of the houfe i and that the
hoitfe might infift upon the privilege,
Curia^^'Mft will not fuppofe any thing fodi {honourable in the
Houfe of Commons \ let the rule be ipade abfolute upon defend-
ant's taking (hort notice of triaU and that if the plaintiff has a
vcrdi£l^ he (hall have judgment of this term.
. TFllkis agabft WM efq* member^ CsV. the like motion, and
the like rule..
«
, Huckle vcrfus Money. C. B.
^RESPASS, affault and imprifonment ; liTue joined upon Anewtrfa
* the general iffue Not guilty, tried before the Lord Chief ^<* excefift
Juftice, when it was proved for the plaintiff that he is a journey- ,fl-™ftlid*
man printer, and was taken into cuftody by the defendant (a unprifon^
King's mcffcnger) upon fufpicion of having printed the North ?J"| *«-
^ritm^ Number 45 ; that the plaintiff kept him in cuftody
about (ix hours, but ufed him very civilly by treating him with
beef-fteaks and beer, fo that he fuffered very little or no da«
mages ; the defendant attempted to juflify under the general
warrant of a fecretary of ftate, to apprehend the printers and
publilhers of the faid North Briton^ Number 45, (which is be«
fore fet forth at length in the cafe of The King and WUkes^ Ei^'^
ttrTermf 3 Geo. 3.) by virtue of the ^at. of Jac* i. and the
Jlat. 24 Geo. 2. cap, 44. but was over^ruled by the Lord Chief
Juitice $ whereupon the kinj^'s counfel, who were advocates for
the defendant, tendered a bill of exceptions, which has not yet
been argued) the jury, gave 300/. damages.
It was now moved by Serjeant fThitaler that the vcrdiA
might be fet afide, and a new trial had ; for that it appeared
upon the evidence the plaintiff was only a journeyman to Leech
the printer at the weekly wages of a guinea, that he was con*
fined but a few hours, and very civilly and well treated by the
defendant, fo that 300/. were moft outrageous damages in this
cafe, and a new trial he hoped would be granted ^ and cited
Chambers N. Robinfon^ I Stra.691. which was an adion for 'a
malicious profecution upon an indi£lment wherein the jury gave
looo/. damages, and the court granted a new trial for ihe cxcef-
livenefs of the damages. Several other fimilar cafes were cited
to induce the court to grant a new trial*
Serjeant
2oS MicRABiMAs T£au>4CSr^.IIL 17^5.
Seijeant BuHani, for the plaintiff, infifted diat in tafti ki
fort^ which foond merely in damages, and are not like iik or
AJfumffity the court will never tnterpofe in fetting afide vefdi^
for exceffive damages ; that in the cafe of Letnum againft Alhn
and others, reforming conftables, C B. in an aftion of tre^paA
and imprifonment, the jury gave 300/. damages; and this court
fefttfed to grant a new trial, though the pbuntiflr had not been
impnfoned above 24 hours» And in a late eafe in B* R% forerU
minal converfation 500/. damages were given- agiainft a man la
very poor circumftances» as appeared to the court by affidavit^
and yet they would not grant a new trial, but faid they could
jiot interpofe in cafes of tort, unlefs the damages were very oot^
rageous \ but that the jury were the fole judges of the damages*
Lord Chief Juftice-^tn all modous for new (rials, it is as ab*
folutely neceflary for the court to enter into the nature of the
caufe, th^ evidence, fads, and circumftances of the cafe, as
Ibr a jury ; the law has not laid down what (hall be the meafure
of damages in aflions of iort\ the meafure is vague and uncer-
tain, depending upon a vaft variety of caufes, fads, and circ«UB«*
ftances; Urts or injuries which may be done by one man W
another arc infinite ; in cafes of criminal converfarion, batterjr^
jmprtfonment, flander, malicious profecutions, tfr. the ftare^'
degree, quality, trade, or pro£c(Bon 6f the party injured, as well
as of the perfon who did the injury, muft be, and generally are,
confidered by a jury in giving damages. The few cafes to be
found in the books of new trials for torts^ (hews that courts of
juftice have moft commonly fet their faces againft them ; and
the courts interfering in thefe cafes would be laying afide juries.
Before the time of granting new trials, there is no inftafice that
the judges ever intermeddled with the damages*
I (hall now ftate the nature of this eafe, as it appeared upon
the evidence at the trial : a warrant was granted by Lord Hal^kx^
fecretary.of ftate, dire£^ed to four meflengers, to apprehend and
ieize the printers and publi(hers of a paper cailled the N§rthBri*
ion^ Number 45, without any information or charge laid before '
the Secretary of ftate, previous to the granting thereof, and
without naming any perfon whatfoever in the warrant \ Carring*
ion, the firft of the meflengers to whom the warrant was di«
re^ed, from fome private intelligence he had got that Leeci was
the printer of the North Briton, Number 45, directed the de-
fendant to execute the warrant upon the plaintiff, (one of LeeeVs
journeymen,) and took him into cuftody for about fix hours,
and during that time treated him well } the perfenal injury done
to him was very fmall, fo that if the Jury had been oonfined hy
their oath to confider the mere perfenal injury only, perhaps '
20 /• damages would have been thought damages fufficient; but
the fmall injury done to the plaintiS> or the inconfiderablenefs
of
MicBABLMAs TfiltM, 4 Geo. IIL 1763. 207
of bis ftation and rank in life did not appear tot -he jury in that
Ariking light in which the great point of law touching the Y\^
berty of the fubje& appeared to them at the trial \ they faw a
magiftrate oyer all the king's fubjedsy exercifing arbitrary power,
fioUting Magna Charta^ and attempting to deftroy the liberty
of the kingdom, by infifting upon the legality of this general
warrant before them ; they heard the king's counfel, and faw
the folicitor of the treafury endeavouring to fupport and main-
tain the legality of the warrant in a tyrannical and ferere man-
ner. Thefe are the ideas . which (truck the jury on the trial;
and I think th^y have done right jyft giving exemplary damages*
To enter a man's houfe by virtue of a namelefs warrant, in order
to procure evidence, is worfe than the Spani/b inquifition \ a law
under which no Englijbman would wifli to live an hour; it was
a moft daring public attack made upon the liberty of the fubjedi*
I thought that the 29th chapter of Magnd Charta^ NuUas liber
Ufm ca^atur vel imfirifohetury isfo. mefitp& earn iUmuf^ b(c. nifi
pir kgaUjudUium fariumjuorum vel per legem temty C^r, which
is pointed againft arbitrary power, was violated. I cannot (af
wlnt damages I (hould have given if I had been upon the jury ;
bat I dire&ed^and told them they were not bound to any certaia
damages againft the folicitor-generaFs argument. Upon the
whole, I am of opinion the damages are not excellive; and
that it b very dangerous for the judges to intermeddle in Ak^
mages for iwts / it muft be a glaring cafe indeed of outrageoua
damages in a tott^ and which all mankind at firft blufli muft
thiid( fo, to induce a court to grant a new trial for exceffivc
diunages.
Batburfi. J.*-I am of my lord's opinion, and particularly In
the matter of damages, wherein he direded the jury that they
were not bound to certain damages. This is a motion to kit
tfide 15 vcrdids in efie£t; for all the other peribns who have
bfought adions againft thefe meiTengers have had ve,rdi£ts far
aoo/. in each caufe by confent, after two of d)e a£tion« wcce
fully heard and tried. Clive J. abfent.
Ar orrarm-^New trial refufed.
[ 2.o8 J
HILARY TERM,
4 Cm. III. 1764.
Sylllvan verfus Stradling. C B.
Jlcpieviii. / TN teplcrin for taking and unjuftly detaining two lieifers of
^▼oyy ^ I the- plaintiiF. The defendant firft aVows that the place in
j!^ment o7 vhich, (SV. IS two acres of meadow-land Ijring and being at a
UtA «i0dtf a place called 7api Corner^ in the pari(h of Ljng in the county of
?*^'**°^*'*&if«i^, and that one Janus Harris for two years, ended the
fecond day,of Afo'tfary 1 761, an<) from thence until and at the
fame time when, Ige. enjoyed the land in which, &V, «s tenant
thereof under a demife made to him by the defendant at the
yearly rent of a/. 2/. payable to the defendant' yearly on the ad
day of February in every year, and becaufe 4/. 4/. of the rent
•for the {aid two years ended on the ad day of Fibruarj aforefaid
in the year laft aforefaid on that day and year, and alfo at the
faid time when, Is^c. were in arrear and unpaid to the defendant,
. the defendant well avows the taking of the cattle in the place in
which, Isfc. 9nd juftly, &r. for and in the name of a diftrefs for
the tent fo in arrear and unpaid, which rent ftiil remains doe
Cognisanct '^nd in arrear to the defendant; and the defendant for farther
ibr the like cognizancc by leave of the court, faV. as bailiff of John PUISpt^
SewurtT^ -well acknowledges the taking of the cattle in the place in which,
Isfc. and juftly, {s*r. becaufe he fays that the faid place at the
time when, ^c. and long before, was two acres of meadow-land
lying ahd being at a place called Taps Corner in the county aibre^
.^^^^ faid, and that the (iid James Harris for two years, ended on the
,^ 2d day of February 1701, and from thence until and at the time
when, (s^c* enjoyed the faid land in which, &r. under a demife
• r l^ereof before made to him by the faid John Phillips^ at the yearly
•tent of 2/. 2A payable yearly on the 2d day of February in creiy
J ear, and during all that time held the fame of the faid J^
^bilUps by virtue of the faid demife as his tenant thereof at the
rent aforefaid, payable as afore&id, and becaufe 4/. 4/* of the
rent for two years, ended on the 2d day of February in the year
laft aforefaid, and alfo at the faid time when, Cffr. were in arrear
and unpaid to fhe faid JobnPhilRps^ the faid defendant as bailiff
of
Hilary Term, 4 <^^- III. 17^4. 509
of the fald Jdin PhilKps^ well acknowledges the taUhg of the
faid cattle in the place in which, &r. and juftly, (jfr. for and
in the name of a diftrefs for the faid rent fo in arrear and un-
paidi and which rent dill remains due in arrear aud nopaid to
ihthxd JoBnPiillips.^&c.
And the faid plaintiff as to the defendant's avowry fays, that Pica to A^
the defendant, for any thing by him therein allcdged, ought not JJ^T^^ '"•
to avow the taking of the cattle in the place in which, i^c. to be t^rtho'
JQft, becaufe he fays that the defendant at the time when, bfc» of c«tUe of his
his own wrong, and without any fuch caufe as the defendant <»'^^*"'*«-
liath in his avowry alledged, took the cattle of the plaintiff in the
J>lacc in which, (^c. and unjuftly detained them in manner and
orm as the phintiff hath above complained againft hims and
this the plaintiff prays may be inquired of by the country, and IflTuetetfar
the defendant doth the Kkc. And the plaintiff, as to the cog- ^^^^* *
nizancc of the defendant, fays, that the plaintiff for any thing by The like
the defendant in that cogni7ance allcdged, ought not as bailiff of f^* '» «*>«
the faid Jch'n Phillips to acknowledge the taking. of the cattle in "fi«»'"«^'
^c place in whic&, ^e. to be juft, becaufe he fays, that the de-
fendant at the time when, iic. of his own wrong and without
any fuch caufe as he hath in his cognizance alledged, took' the
cattle of the plaintiff in the place in which, iltc. and unjuftly
detained them, in manner and form as the plaintiff hath above
complained againfl him : and this the plaintiff piays may be alfo Iflue t» the
inquired of by the country; and the defendant doth the like, lie. country.
And the plaintiff, for further plea as to the avowry of the defend-
ant, by leave of the court, tsfc. further fays, that the defendant Plea in bar
for any thing by him in that avowry alledged, ought not to avow ^* j*>eamow.
the taking of the cattle in the placr in which, lie. to be juft, &c th^rihc
becaufe he fays, that at the time when the defendant is above defendant
fuppofcd to have made the dcmife in the avowry mentioned, of ^^^^Jjjj,**
the faid meadow land, he had not any eftate in the faid meadow
Und, whereby he could 'make fuch demifc to the faid James Har^ .
^^i and this he is ready to verify: wherefore, inafmuch as tlie
defendant hath acknowledged the taking of the catfle in the
place in whtch| lie. he prays judgment and his damages by tea-'
fon thereof to be adjudged to him, lie. And the plaintiff for ThtiWe
further pica, as to the cognizance of the defendant, bv leave of f^!^^^^^
the court, Wr. fays, that the defendant, for any thing by him in nUanVby*
that cognizance alledged, ought not as bailiff of the faid John luve, &q^ •
Phiinps to acknowledge the taking of the cattle in the place in
which, lie. to be juft, becaufe he fays, that at the time when
the faid John Phillips is fuppofed to have made the dcmife in the
cognizanqe mentioned of the faid meadow land, he the faid Job^
Phillipt had ^not Attj eftate in the faid tneadow land wherebv he
could matce fuch dcmife to the faid James Harris j and this ne id
ready to verify : wherefore, inafmuch as the defendant hath
acknowledged the taking of the fsud cattle in the place ini
VoL.IL P which.
Qjio Hilary Teai^ 4 G^o. III. 1764.
ixrhibb^ (Jc* he prays judgment and his damages, by reafon of tht
taking and unjuftly detaining the cattle, to be adjudged to
him, ifc.
demurrer to And the defendant fays, that the plea of the plaintiff by him
w ^^*d^ fecondly pleaded in bar to the avowry, and the matters therein
ilSomy. contained, ^re not fufficienc in law to bar the defendant from
avowing the taking of the cattle in the faid place in which, Vr.
to be juft ; to which faid plea, in manner and form as the fame is
pleaded, the defendant has no ncceffity, nor is bou^id by the law
of the land to anfwer ; and this he is ready to verify : wherefore,
, for- want of a fufficient plea in bar, the defendant prays judgmcni
and a return of the cattle, together w?lh his damages, lie. ac-
cording to the form of the ftatute, (^r. to be adjudged to farm,
SMcld emfc y^. And for caufes of demurrer in law, the defendant (hews to
oTdjanorrcr. ^^^ ^^^^ ^^ following caufes, viz. for that the plaintiff hath not
by his faid plea in bar admitted, traverfed, or denied the demife
mentioned in the avowry to have been made by the defendant,
but hath attempted to introduce a collateral iffue that the defend-
ant had not power to demife the pretnifes ; and for that the faid
plea is only argumentative, uncertain, infufficient, and wants form,
Demurrer to ifc. An4 the defendant as to the plea of the plaintiff by him
?* '^''Vf fecondly pleaded in bar to -the cognizance of the defendant fays,
«ogiii«»ncc. ^^3* h^ ^y ^^eafon of any thing by the plaintiff in that plea al-
iedged, ought not to be barred from acknowledging as bailiff of
the faid Join Phillips the taking of the faid cattle in the place in
which, y*r. to be juft, l^c. To which plea, in manner and form
as the fame is pleaded*, the defendant hath no nocedity, nor is
bound by the law of the land to anfwer \ and this he is ready to
verify : wherefore, for want gf a fufficient plea in this behalf, the
defendant prays judgment and a return o£ the cattle, together
with his dahiages, i^c.^ according to the form of the ftatute, ^c.
Special to be adjudged to him, Wr. And for caufes of demurrer in law,
caufes of thc defendant fhevvs to the gourt the following caufes, t««. For
<Jcmurr«r. ^^^^ ^^ plaintiff hath not by his faid plea admitted, traverfed, or
denied the demife mentioned in the cognizance to have been
made by the faid John Phillips^ but hath attempted to introduce
a collateral >ffue that the defendant had no power to demife the
premifes ; and for that the faid plea is only argumentative, un-
certain, infufficient, and want's form, c^^.
Joinder in And thc plaintiff fays, that the plea by him fecondly above
demurrec at pleaded in bar to the avowry, and the matters therein contained,
totkearow. ^^^ g^^j jyjj fufg^icnt in law to bar the defendant from avowing
^* the taking of the cattle in the place in whichi i^c. to be juft i
which plea, and-the matters therein contained, the plaintiff is ready
^Tbe like at to verify ; and becaufe the defendant to the faid plea hath not
'to the cog- anfwercd, nor the fame in any manner denied, the plaintiff prays
iiicance. judgment, ^c. And the plaintiff fays, that his plea fecondly
? above
HiLAKt Ts&lff, 4^^*UL Z764. * alt
above pleaded in bar to the cognizance of the defendant^ and the
matter therein alledged> are gbod and fufficientin law to bar the
defendant from making cognizance as bailiiF of the faid John
PbiliipSy of taking the cattle in the place in which» iic* to be }u{t $
which faid plea, and the matter thereof, the piaintifFis ready to
verify } and becnufe the defendant to the faid plea hath not an-
fwered, nor in any manner gainfayedj the plaintiff as before prayt
judgment, iic. ^ * - ^ .
This cafe was twice folemnly argued at the bar, by Serjeant Nn babuit
Burland for the defendant, and Serjeant GlynH for the plaintiff, '? te«««a-
in Trinity term laft ; and in this term by Serjeant Davy for the inhux^a^
defendant, and Serjeant Hewitt for the pUintiff* «To<»ry no-
^ Serjeant Bur/and^^he avowry arid cognisance in this cafe is
given to landlords by thc^at. 1 1 'Gm. a. cap. 19. intitlcd) An a£^
for the more effeftual fecuring the payment of rents, and prc-
vcntmg frauds by tenants, whcfcby it is enaded, *• That whereas
** great difficulties often arife in making avo^/rtes or conufmre
•« ujmn diftreffcs foir rent, quit-rents, (fc.^ it ihall and may b€
** lawful to and fo^ all defendants in replevin to avow or make
** conufance generally, that the plaintiff in replevin, or other
'^ tenant of the lands and tenements whereon fuch diftrefs was
** made, enjoyed the fame under a grant of demife at fuch a cer*
" tain rent during the time wherein the rent diftraincd for in-
'* curred, which rent was then and (lill remains due/' This
claufe in the ftatute has taken away the tenant's right to contro-
vert the defendant's title in replevin ; if it has not, and he be
obliged to (hew his title hi the replication to the plea in bar, it
has occafioned a greater prolixity in pleadings in replevin than
there was before, for at common law the landlord or avowant
was obliged to fet out bis title in his avowry 6r conufance at firft.
It may be faid perhaps that the avowant might have replied,
that at the time of the demife he had a good and fufficicnt eitate
in the land whereby he could make fuch demife, and that this
would have been a good iffue, without fetting out the title ; but
this would have been* a bad replication, according to Cyll againft
Glafi, Telv, 227. Cr9.Jac. 312. S. C In debt,' the plaintiff
declared upOn a Icale for years made by himfelf to the defendant
of lands in J?., rendering fo much rent, and for fo much in arrear
at fuch a feaft he brought the zQXan. The defendant (the leafe
not being by indenture) pleaded that the plaintiff at the tinie o£
the denaife had nothing in the tenements whereof he could make
the faid demife ; the plaintiff replied and faid, tKat at the time
of the demife he had a good and fufllcient eilate in the faid te«
nements whereof he x;ould make the demife, and therenpon
being at ii&ie and found for the plaintiff^ he had hi^ judgment*
The defendant brought error, and aifign^ for error, xmt this -
replication was not good, for he ought to'^je ihewn fpecially
Pa : , what
der the <ht#
iiGto«i.
J
2i» Hilary Term, ^G^o. IIL i764.
/what caate he bad U thctimc of the dcmife, fo that the court
might judge that he had fufBdent w the lands, whereof to mate
the Icafc ; and the court held that the replication was not good,
•and that the defendant might well have demurred for that caufc ;
but judgment was affirmed, for the vcrdia found for the pUintitt
hath madp the replication good, for the court is now afccTt:iined
that the plaintiff had an eftate whereof he could make the dcmitc.
And in 3 Lev. 193. Jyleit Jigainft Williams, in covenant upon a
deed not indented,. and declared upon a leafe of land to delend-
* ant rendering rent, and a covenant to pay it, and affigncd a breach
in non-payment of the rent ; the defendant proteftmg that he
did not enter and enjoy the Fand as the plaintiff had fuppofed, for
plea faid, that theplaintiff nil hahuit in Uniraentis tempore dimt^
%nis ; the plaintiff replied, that hahiit bonum titulum unde potuit
Jimiitere; the defendant demurred generally, and the court held
the rppUcation ill in not fhewing what title he had ; according
to 2 Cro. 312. this was not by indenture
The Jdt. n Geo. 2. was made for the benefit of landlorcjs,
« and to obviate fome difiiculties that many times occur »i the
« recovery of rents where the demifes are not by deed ; that it
«« {hall and may be lawful for landlords, where an agreement u
*« not by deqd,. to recover fatisfaaion for the tenements occupied
«< by the defendant or defendants in an aaion on the cafe for the
«« «fe and occupation of what was fo held or enjoyed j and if in
« evidence on the trial of. fuch aflion any parol dcmife, or any
' " agreement (not being by deed) whereon a certam rent was
« referved, (hall appear, the plaintiff in fuch aaion Ihall not
«« therefore be nonfuited, but may .make ufe thereof as an cvi-
« dence of the quantum of the damages to be recovered- Be-
fore this ftatute, landlords were under great diiUculties m getting
their rents of tenants who had enjoyed under a parol demife, or
fome little memorandum in writing-, and in aaions on the cafe
' . for the ufe and occupation, were often nonfuited, which diificultj
this Aatute has removed, arid now they are fafe, and may cither
bring an aaion ort the cafe for the ufe atid enjoyment, or may
dittrain upon thefc parol demifefe, and avow according to the
ilatutc without fctting out a title.
This plea of nil hahuit in Unementis is l?ad in this cafe, as it
alfo certainly is, in an aaion on the cafe upon an ajfump/h for the
ufe and occupation of lands ; as was determined in ^*^^J^^^
Willis, B.R., Hilary, 25 Geo. 2. and in JRicAflrif agama Holdttch^
Hilary,/ 1'^ Geo. I. Newfome againft Dugdale, B. R. — - twm
1761, ^as the like avowry to the prefent 5 the plaintiff pleaded
in bar to it nil habuit in tenementiSy &c. ; defendant replied quod
habuit a fufficient eftate to demife, and concluded to the conn*
try. The court held the plea bad, and judgment was for the
avovraht* Tliis waa between landlord and tenant.
• . Serjeant
Hilary Tbrm, 4 Ge9. IIL 176^. « 13
'Serjeant Glynn for the ptaintiff— The main quellion is, Whe*
ther thc^at. ii Geo. 2. was intended to take away the leflee^
right at eooimon law to controvert the leflbr'a title and authority
to make the demife in cafes where the leafe is not by deed in*
dented ? I conceive that it was not ; it has given the lefTor a new
avowry, but has not taken away the leflee's right to plead this
plea of fill babuit, &c. and to put the leflbr to (hew he had fuch
an e&ate, whereof he could make the demife ; according ro Lift,
fie* 58* ** In cafe of a diitrefs or debt for rent, it behoveth that
*' the leflbr be feifed of the fame tenements, at the time of his
'< leafe ; for it is a good plea for the leflee to fay, that the leflbr
^< had nothing in the tenements at the time of the leafe ; and
'^ Co. Lift,, 47. i« fays, the reafon of this is, for that in every
'' contract there mufl: be quid pro quo^ and if the leflbr hath no«
^^ thbg in the land, the leflee hath not quid pro quoy nor any thii^
** for wtiich he fliould pay any rent ; and in that cafe he may
** alfo plead that the leflbr non dimtfit^ and give in evidence the
'^ other matter \, but Littleton fays, this is the plea, except the
*< leafe be made by deed indented, in which cafe this pica lieth
*< not for the leflfee to plead, for then are both parties conciudedi
*' but if it be by deed-poll, the leflfee is not ellopped to fay that
*' the leflbr had nothing at the time of the leafe made. Co.^
" Lit. 47, i." It is .abfolutely ncceflary that the leflbr hive
feiiin of the land at the time of making the leafe, and a leaf<»
made by a man before entry was held to be void. 2 Ld. Raym,
853. Jre/l V. Sutton. I do admit that in an afftimpfit for the ufe
and occupation, nil hahuit in tenementiSf &c. is no plea, for that
depends merely upon an implied conrrad, and the promife is ^
r^ifed by implication of law, uponprobf of the ufe and enjoyment
by the defendant; but per Lee C.J.— In cafe of a demife it is
otherwife, becaufe a feifln and a right to make the leafe, is th«
foundation of the a£lion for rent. Richard v. Holding 1 3 Geo. a,
B, R. And I alfo conceive that in this cafe a general repUcation
that the defeiulant had fuch an eftate whereby he could make the
demife, would be a good iflTue, at the trial whereof t'^e Angle
queftion would be, Whether he had fuch a feifm as would entitle
him to the rent i
^MrAfff/ZSerj*— This is an improper plea to come oat of tfiie
mouth of one who has received the profits and enjoyed the land.
Lord Chief Juftice— >I defire I mav be underftood not to be ,
hound by vtrhat I (hall now fay, becaule the cafr is to undergo a
fecond argument. This is not a cafe between the landlord and
tenant, but between a ftrang^r and the landlord, a replevin for .
taking the cattle of a ftranger, and therefore I doubt whether the
landlord (hall have this general avowry, by the Jlat* 1 1 G». a.
againft a ftranger to the demife, but am mclined to think he fliallt
be«aufit the words of the ftatuteare gcnctal and univerfali viz.
P3 « It
2ij^ Hila&yTerm^ 4(7^0. IIL 1764.
** It ihall be lawful for all defemLmts in replevin to avow or make
€c conafance generally >** ^c. \ and therefore whether the plaintiflr
be tenant or not, the ^6rm and manner of the avowry giTea by
the ftatute is the fame. It was faid by my brother Giynn, that ml
fmbmt in tenementis was a good plea to a demife without deed,"^
and that if the kflbr has nothing, the tenant is not fafe in paying
him the rent, becattfe he may be fued for it again by the right
owner of the land, and that the ftatute could never intend to
• take away the right to controvert the leflbr's title and fubjed the
leflbr to the danger of being liable to pay his rent twice } but yet
when I confider the form of the avowry which the legiflature has
marked out to be full, perfefl, and complete, I cannot help
thinking but they intended to take away the plea of nilbabuit^ &c«
as if they lu(d faid, after a tenant has enjoyed the land by a de*
mifc or permiflion of the landlord, he ihall not-be permitted to
pry into the tirle» and pick holes in fcttlements and wills; what
has a tenant to do with the title, as between him and his land-
lord after enjoyment ? I fuppofe alfo, that this form of avowry
was given, to prevent the difficulty-the landlord was under to
vecover his rent when the eftate was in mortgage, and thecefore
it feems to me that this plea of nil bahutf &c. is taken away.
But it is faid that a general replication quod baburt in tenementis
a fufficient eftate whereof he could demife, would be gooti, but
this has been determined to the contrary ; the ifibe would be too
large, and the inconvenience to landlords would be the fame, if
not greater. It is very true that nil baBuit, &c. is no plea in an
^Aion for the ufe and occupation, becaufe that is only upon a
mere contra^ or agreement, not upon a demife. Upon the
ivhole, as at prefent advifed, I think this plea of nil bahidt^ &c. a
bad one, as it is taken away by the ftatute, in my opinion.
Clive J.— This is a new cafe. U mlbdbmt^ &c. be a good
plea, and a general replication quod babutt^ &c. whereof he could
demife, without fetting out what eftate he hath, would be a good
replication, it would be impoflible for a landlord wbofe eftate at
the time of the demife was in mortgage to get any rent ; and t}>c
ftatute Was made to prevent that difficulty, as well as many other
siifchiefs to landlords, as prying into titles, family-rettlements^
and wills, to pick boles* in them, as my lord has well obferved ;
and I am very clearly of opinion, that this is a good avowry, and
that the ftatute has taken avay the plea of nii baiuitf kc. m this
cafe of a replevin.
Satlurft J.-^Tbis ftatute was made for the benefit of landlofQa^
d to pAvent tenants from putting them to difficulties (after en-
nent of the Jands) in recovering their rents under parol de-
s or agreements^; for before this ftatute, iii anions for the.afc
pceupa^QOji landlords were continually nonfnitcd, by the
tenants
Hilary Tjbrm, 4 Geo. III. 1764.
-tenants proving fome parol demifcy or memoranduoi in writing,
anonnting taad«mife at the trial, for in that cife the landlord
ought to have brought an. adion qf debf , and not cafe on affumpftt^
which is now remedied by this ftatutc. It is very certain that
ml bsbuitp &c. is no plea at law to ^n affum^i for* the ufe and
occupation \ and in the prefent cafe the plaintiff might have
pleaded to this avowry, that the tenant Harris did not enjoy, CsV.
under any demife of the avowant \ and that is the only boneft
defence, in nly opinion, that .can be fet up in this cafe. In n*
ptevin^ vhere the avowant in cafe of diftrefs for rent fet out his
title fpecially in his avowry, I think the plaintiff at common law ~
could not plead nil iabuit in Unemtntisj &d. but was obliged to
traverfe or deny his title fet oat in the avowry, or to confefsand
avoid it by Shewing a title paramount' in himfelf, or fomebody
ditty or by pleading thr.t no rent was in arrear ; and indeed nil
babmiy &c. in fuch a cafe would be nonfenfical . and abfurd ;
for it would be tb call upon the avowant to fet outhis title again
in his replication, which he had before done in his avowry ;
and would be no aofwer at all to the avowry, becaufi: mV habuit^
&c. to an avowry upon title at common law, neither confeiTes
and avoids, or traverfes and denies the avowant's title. Upon
the whole, as at prefent advifed, I am of opinion that tlie plea
in the prefent cafe is ill, and that if it was not fo, yet that a
general replication quod Aabuit, &c. whereby he could make, the
demife,' would be ill.
Gould ].^A.s this matter is to be fpoke to again, it wiQ b«
proper toxonfider the occaiion of making the ilatute.
Upon the ad argument in this terra,
Serjeant Davy for the avowant, argued to the like effeft as
Burland had done before ; ash^ cited no new cafes, his argument «
need not be repeated, though^ 1 mult fay, it was a very good one.
Serjeant Hevntt .for the plaintiff*— Jhe ftatute of 1 1 Geo. 2. is
confined to difficulties which often arife in making avowry or
conufance upon diftrefles for rent ; that it fliall be lawful for all
defendants in replevin to avow or make conufance generally,
that the.plaintiff in replevin, or othertenant of the lands, whereon
fnch diftrefs was made, enjoyed the fame under a demife, &r.
but in the ptefent cafe, the plaintiff is a (tranger, and never
enjoyed the lands. / '
Curia^-^TYit ftatute is in the disjunflive, or other tenant^ ice.
atld fiarrisw^is other tenant^ and enjoyed the lands.
Hewitt^^Tbis plea otnil haitiit in tenementis^ &c. in debt or
covenant for rent upon a leafc by deed-poll, <8 goodj and there is to
tf ^ doubt
ai6 Hilary Term, 4 G^(?. 111. 17^4.
doubt but that the tenant might controvert the leflbr*s title ; and
if he had no title, the diftrefs for rent could not be juftified or
fupportedy for he ought not to have the rent, which in truth be-
longed to another perfon. The ftatute wsis made to remedy dif-
ficulties in making avowries and conufances, but not to alter the
law fo much as to give a man a tide to rent when he had none.
By Co, LiUfic. 58. £5* 47. *. there muft be quid pro quo, and if
the lefTor had nothing, he could give nothing; thedatute could
not intend to ftrip the tenant of his defence from being UaUe co
pay the rent twice.
In the cafe of Wtlfon and FUld^ Siin. 624. at GuildhalU in <^ebt
for rent upon a demife for years, the defendant pleads nil hatuil
1/1 /^;7^x»^ff/i/; the plaintiff replies, that he had a good and faifi*
cient eftate to make the demife to the defendant moJo etforma^
&c. fctUcety that he was feifed in his demefne as of fee ; upon
which iffue is joined; and upon evidence it wasobjedled that he
ought to fhe^ an eftate in Tee \ fed mn allocatur i for the iflue is
joined upon the good and fufficient eftate to make the demife %
and any eftate is fufficient for this purpofe, out of which thq
eftate demifed is derived ; and all added after the fdlket is but
form \ but if he had not faid, that he had a good and fufficient
eftate, but only had faid that he was feifed in his demefne as of
fee, then he had been reftraiaed to prove fuch eftate. Per H§k
CJ.
The cafe of Newfome zg^inR. Dugdale, AlicL 30 Geo. 2. B. R,
I argued; it was in replevin, and the avowry was like this*, the
plaintiff pleaded in bar, that the defendant took the cattle de tn-*
juriafua propria y &c. and that he had not any thing in the lands
, whereby he could make the demife mentioned in the avowry ;
the defendant replied, that he had a good and fufficient eftate to
make the demife to the plaintitFiWi? etforrfip^ &c. fcilicet^ that
he was feifed in his demefne as of fee, exa£lly as in the cafe x^
Skin\, 624. before ihentioned. The plaintiff demurred to the re-
plication, and ihewed for caufe, that it fhews no certain title in
the defendant at the time «f the demife ; but the court, held at
fufficient, and there was judgment for the avowant. The court
did not determine upon the avowry, or replication, but faid they
thought them both good, and therefore whether nil babuity &c«
was good or ill, qudcunque via data^ the avowant muft have judg-
metit. This cafe fhews, that a general replication quod habuit^
&c. like the cafe in Shin, 624. is govd ; but, I own they di4 noc
determine whether nil taiuit, &c. was a good plea in this cafe*
Chief Joftice—Surely» either the plea was goody and Af r€*
plication illj or the plea was bdi^ and the replication good in that
€afc,
Jliwitt
HiLAKY Term, /^Geo. IIL 1764* , aiy
Hfwitt-^The Gngle qocftion was. Whether the replicadon was
good or not ? and the Jlat. 1 1 Gio. 2. was not mentioAed. Upon
the whole, if the leflee cannot have this plea, and tne. lefibr had
not title at the time of the demire, the .kfiee may be liable to
pay the rent twice over.
Lord Chief Juftice — ^This is a new and important cafo ; and '
before we give judgmenti we muft well confider thift ftatute of
1 1 Gf0, 2. and take care that the landlord niay have every advan-
tage whi^h is thereby gtven to him, and that the tenaot alfo may
have every advantage ,of pleading which he had at law, if it be
Dot taken from him by the ftatUte.
It 18 admitted on both fides, that nil bahuii in temmenHs in debt
or covenant for rent upon a leafe (not by deed indented) is a
good plea ; if the landlord has no title to demifCf the tenant hath
not quidpra qua^ and muft pay the rent to the true owner of the
land } is it juft that I (hall be bound to pay the rent twice over I
It is no anfwer to fay, I can recover my money back again ; and
onjuft to compel a man to pay money which b not due : if the
leafe be by indenture the leflee is concluded, and his mouth is
(lopped to fay the leflbr ml taiuit^ &c. Eftoppels are not much
' favoured in the law, becaufe they go through juft and unjuft
cafes. Why did the legiflature confine this matter to an avowry
upon a diftrefs for rent, and not extend it to debt and covenant
upon a leafe (not indented) for rent ? Did they intend to over-
turn juftice and the common law in one cafe, and not in the
other, which is not fo much as hinted at in the ilatute ? It fays
the avowant may avow as before, is mentioned ; does it follow
that if the tenant by his plea in bar calls upon the lord to fet out
his title, that^he is not it ill obliged to fet it but in his replica-
tion ?
It is objeAed, that the plaintiff Aiall not call upon the land-
lord to fet out that matter in his repUcation, which the ftatute
fays he need not do in bis avowry for rent diftrained. Before
this ftatute, if the landford had repAtd quad habuit, &c as in
Cro. Jac. 312. Telv. 227. "i Lev. 193^ 5^/11.624. and upon
that iffoe a verdi£l had been, it would have been a good replica-
tion, though perhaps bad upon a demurrer \ the ftatute having
varied ihc avowry in a diftrefs for rent, why may not the court
introduce a new way of pleading in reply ? At common law nil
habuk^ &((• would have been a wA plea to an avowry, becaufe it
had fet out the title before^ but good in debt and covenant for
rent (on a leafe not bdented) ; and I think it ought to be held
good in the pcefent cafe fince the ftatute, and that the general
replication ^ptod hahmt^ &c. fhould be held good alfo. If I am
rightj, ve maft adopt this new plea and replication. As to the
14 cafe
^i8 Hilary Term, 4 G^j». III. 1764.
cafe of an affumffit for the ufe and occupation, I lay that out of
this cafe, it being upon a mere perfonal contra£i» and not like a
demife which pafles. an intercft in land. Upon the whole, I
think the plea is goodf and that the ftatute has not deprived die
leflee of his right at common law, of calling upon the landlord
^o (hew his title and power to demife.
Clive J.<— I am ftill of opinion that ml hdbuit^ &c. is a bad plea
in this cafe, and that the tenant is ejlppped by the ftatute, to call .
upon the landlord to fncw his title in reply,
Bathurft J.— Before I heard my Lord Chief Juftice give his
opinion, I was clear this is a bad plea j and I am ftill of the fame
opinion as at prefent advifed ; but it will be proper to take fur-
ther time to confider, as it is*a matter of great confequence.
This ftatute was made for the advantage of landlords ; bat if
this be' a good plea, and the general replication quod bahdt, &c.
be good, the ifiae will be too large, and the landlord may be
turned al>out by any little flaw, and it would have beeq better
for him that this claufe had not been, in the ftatute ; for before
the ftatute the iflue upon title turned upon a Cugle point of fad,
but by introducing this manner of pleading, every fad in the
landlord's title will be in ifiue, which will put hinl under infiaite
difficulties, which I think the ftatute was made to prevent.
Gould J.'^l admire the principle my lord founds his opinion
upon, but muft own I am of opinion with my brothers C/wr and
Bathurft. This ftatute was not calculated for demifes bfy deed,
but aimed at other demifes : enjoyment was the matter in the
contemplation of the makers of this ftatute ; it meant that a
landlord in cafes of diftrefs for rent where there has been an en-
joyment fliall not, in replevin^ be obliged to fet out his title in his
pleadings, though they ftiould go on as far as a furrebutter, i^c*
tsfc. Pleadings from the beginning to the end in one caufe muft
be upon one and the fame thing ; and if this plea was to be ad-
mitted good, it would overthrow the ftatute. Perhaps there may
be one cafe in a thoufand where a tenant may have- taken alarm
upon a bad title ; but in anfwer to tbat^ he may recover his rent
back* again and damages : if a man fells, affirming he has a good
title, if he has not, the buyer may recover his purchafe-money
back again. It is objeded by my Lord Chief Juftice, Why has
not the ftatute taken away this plea in debt and covenant for
rent ? The anfwer is, they are grounded on deeds ; but this fta-
tute relates to parol leafes, or leafes in writing, .not by deed.
After time taken to confider, the Lord Chief Juftice altered his
opinion, and agreed with the other three judges^ ui audixn, diat
this plea of nil iabuitfMc. in this cafe was bad i and fir
curiam, judgment was given for ^e defendant. "*
Hilary Term, 4 Geo. III. 1764. 319
William Stevens, of the Demife of Mary Coftard,..
alias Bigg, vcr/us 3arah Winning, Widow, Sarah
Coftard, Widow, Henry Stevens, Efq- Timothy
Pearfe, and Francis Steele. C. B.
tpJECTMENT of lands in Bradfield in Berl/bins vcrdift for
^^ the plainti6F, fubjc^ to the opinion of the court upon the ' '
following cafe :
Jamei Co/hrd being feifed in fee of the hinds in queftioui by whednra
leafe and releafe of the 4th and $th of April 172 1, in confidcni- ^uatiatai
tkm of a marriage to be had between him and Sarah , mioftf sMfl
and of 300/. hf r portion, fettled the fame to the ufe of himfelf der, ca%
for life, remainder to his intended wife for life, remainder to ^?^^ ^^
-the heirs of the body of S. his wife by the faid James to be be- J^k^^
gotten j remainder to the faid James in fee. The marriage took Ut coQtic-
efiea, and they had iffue James the/tf«, and a daughter Saruh^ Slfc^***
now Sarah Winnings one of the defendants. James Coftard the fine/ *
father, by will of the toth of June 1731* devifed the premifes
to his fon James C. after the death of Sarah his mother, .and-
died in April 1739. James C. the fon, i6th of July 1750,
married Sarah Higgs, now. Sarah Co/lard, another of the de<-
fendants.
James Co/lard the fon, on the 16th of September 1752, (hii
"Wife now living,) married the leflbr.of the plaintiff Jf /iiy Cofiari^
alias Bigg^ and hath ifTue by her a natural fon about two years
old.
^ That by leafe and releafe of the i ith and 12th oijune 1753,
reciting that James C. the fon had married Mary Bigg when he
had another wife living, that the faid James being confcious of
die injury he had done to the faid Mary^ in confideration of the
faid injury, and of looA paid to him by Edward Bigg her father,
he the faid James C. the fon conveyed the premifes to the ufe of
himfelf for life» remainder to the leflbr of the ^plaintiflFfor life,
remainder to the ufe of fuch child or children of the body of the
leiibr of the plaintiflF begotten or to be begotten by the ^id
James C, remainder to himfelf in fee.
On the 23d of April, James Coward the fon musdered his
Hither, who was tenant for life of the premifes, and before he
entered into the lands, James C. by deed of the 24th of June
1762, between himfelf Qf the firft part, the leflbr of the plain*
tiff of the ficcond part, znAAnn Bigg her mother (adminiftratrix
qiJEdvford B^ her father) of the third part,. reciting the faid
deed
2i0 Hilary Term, ^.Geo.lU. iy^4»
deed of the xithand I2th oijune 17539 it is witnefied, that
for docking the eftate-tail, and for making the fatd laft deed
good, he the faid James C covenanted to levy a fine of the prc-
mifes fur conufance de droit come ceo^ &c. to the faid Ann Bigg
with proclamations, to the ufe of himfelf for life, remainder to
the leflbr of the plaintiff for life, remainder to Jamfx Cofiard the
reputed fon of the faid James C. the conufor by the faid Marj
Bigg the leifor of the plaintiff, remainder to his own right heirs
in fee. In Trinity term 1762, the fine was levied accordioglyj
and afterwards James Cofiard the conufor was convi£led of the
muVder of his mother at Oxford affixes. .
The defendant Henry Stephens is lord of the manor, Sarab
Cofiard is the widow of the conufor, Timothy Pearfe and Franca
Steele are tenants in poffeifion of the premifes, and Sarab Whin*
rung is fifter and heir of the conufor, and heir in tail under her
- father's marriage-fettlement in 1721, and has made an aAual
entry into the premifes ; that the lefibr of the plaintiff had no
notice of the marriage of the faid James Cofiard to the defendant
Sarah previous to her own marriage with him.
The quedion was. Whether a tenant in. tail having committed
murder, can afterwards, before convidion, levy a fine and bar
the next heir in tail, his fifter ? and if he capnot, the judgment
of the court muft be with the defendants.
i« It was argued for the plaintiff, that the eftate-tail was ex«
ttnA by the fine, as much as if tenant in tail were dead without-
iflue, bccaufe two fees expe£lant one upon another cannot fub-
fift in the fame perfon. 2. Becaufe by the 32 H. 8. r. 36. the
fine is declared to be a bar, and a discharge of the eftate-tail.
3'. Becaufe i\it flat, Weftm, %. having made e(tates*tail a kindof
particular eftate, they are, (the. prote£fion of the ftatute being
gone by the fine,) like all other particular eltates, fubje£k to
merger ;ind extingutfliment when united with the abfolute fee.
Symond y. Cudmoret i Sa/L 338. it was admitted that if tenant
in tail makes a leafe for years> and is attainted, the king (hall
avoid the leafe where he is interefted ; but where the king is not
interefted, as here he is not, all the a£ls (as was faid) done by a
felon murderer, tenant in tail, between the ftroke and the at-
tainder, are valid to convey.
On the other fide, for the defendants it was o1>je£led,fthat the
operation of the fine veiled a fee in the conufor, which inftantl]f>
became forfeited. To this it was anfwered by Gould 'i^ that
the deed to lead the ufes of the fine is to be confidered as part o£
the fine icfelf, and that in deeds of ufes the intention of the par«^
tics muft always govern } that here, the intentioa of (2ic parties
HILARY Term, 4 Geo. III. 1 764. 22 1
is clear, that a fee'fliould not veft in the connibr ; and. that fuch
intention {haU repel the prefumption of law. The court inclined
to give judgment for the plaintiff^ but a fecond argument being
defiredy there was an ulterius cwdHumi bu^ I never heard this
cafe was argued again.
Hope verfu's Colman, Efq. C. B. Hilary, 4 Geo. 3,
Rolls 401, 402*
j^LLEN Hope brooglit a writ of annuity agalnft Philtps Coi-^ Otbt for «a
-^ man J and declared againft him of a plea that he render to """"r
her 40/. which arc in arreer to her of a certain annuity or yearly dcr(^aQC »
rent of 40/. and which the faid Philips owes to her« and un- pi'iotiffin
juftly detains, lie. and whereupon the faid Ellen by M. B. her ^"^^^J^rt*
attorney complains, that whereas the faid Philips on the 6th of ferrke for
May 1748, at IJlington in Middlefexy by his deed-poll, (which the her life.
faid Ellen brings here into court fealed, l^c) for the better fup-
port, proviiion, and maintenance of the faid Ellen^ then a faith-
ful fervant of him the faid Philips^ and for other good caufes
and confiderations, ifc. did for himfelf, his heirs, executors^
and adminiflrators, grant to the faid Ellen*one annuity or yearly
p.iyment of 40/. clear of all taxe3, charges, and dedu£iions
whatfoever ; to have, hold, perceive, take, and enjoy the faid
annuity of 40/. to the faid Ellen or her afligns. from the 29th
d.iy ol September thtn next, during the term of , her life, to be
paid nt the manfion-houfe of the fnd Philips in Ipfivieh^ fay quaiw
terly payments, wz. on the 25th of December y the 25th of
Marehj the 24th of June^ and the 29th of Septemietj by equal
portions ; the firft payment to be made on the 25th of December
then mfxt, and from thenceforth to continue and yearly to be
paid to her during her life, upon the days and at the place afore-
faid, as by the faid deed-poll (among other things) appears. By
virtue whereof the faid Allen^ then and there became, and was
feifcd of the faid annuity or yearly rent of 4.0 A in her demefne as
of freehold, vrz.-for the term of her life; and the faid Ellen in
fa£l faysi that 40/. of the faid annuity of annual rent for one
year ended on the 5th day of April 1763, according to the ftyle
or computation of time now ufed in this realm, on that day be*,
came and were due and in arrear from the faid Philips to the faid '
jfi/i^fr, and ftill are unpaid and in arrear to her, whereby an ac-
tion hath accrued to her to demand and*have of the faid Philips
the faid 40/., yet the faid Philips (although often requcfted) hath
not yet rendered or paid to the faid Ellen the faid 40/. of the
yearly rent aforefaid, but hath withheld the fame, and bath
hitherto altogether refiifed, and ftill refufes to render or pay the
fame to the faid Ellen^ whereupon (he fays that (he is injured,
and hath fuffered damage to the value of 20 /. and therefore (he
brings fttit, Vc^
And
^22 Hilary Teim, 4.Geo. III. 1764.
Plea. And the defendant L* K. his attorney, comes and defends
Oyer of the ^^^ wrong and injury, when, (^r.^and prays oyer pi the bid
Aeed. deed-poll ; and it is. read to him in thefe Words, (to wit) To all
.people to whom thefe prefents (hall come> Piiiips Co/man, oU
ifc. elq. fendeth greetingi. (fo fcts out the grants iatendum^ and
times and place of payment of the annuirv as in the declaration;
and then goes on and fets out the reft of the deed as follows,}
fubjed nevertheiefs to determination as heteinafter is mentioned;
Defendant > and the faid Pbiiips Colman for himfclfy his htirs, executors, and
cofenants to adminiftrators, doth hereby covenant, promife, and agree tp and
sttltynftfae ^^'^ ^c ^^^^ Ellen Hope^ her executors, adminiftrators, and
frmebeper- aiBgns, that he the faid Philips Colman^ his heirs, executors,
***dedt' adoainiftrators, or affigns, (hall and will yearly and every- year,
the"piain-^ from the fsud 29th day of September next, diiring the natural life
liff )• of thjc faid Ellen^ well and truly fatisfy and pay, or cao(e to be
fatiftfied and paid unto the faid Ellen Hcpe^ or h^ afligns, the
faid annuity or yearly payment of forty pounds, without any
dedu£tion whatfoever, upon the days and at the place aforcfaid,
(if the fame be perfonally demanded by the faid Ellen Hope,) accord-
ing to the purport, true intent, and meaning of thefe prefents ;
Provifo that provided nevertheiefs, and it is the true intent and meaning of
iftbcgrantee thefe prefcnts, and of the parties hereunto, .that if the faid EUeu
■'•'7» ^^ Hope (hall and do intermarry with any perfon whomfoever in the
•eafe^Ld* life-time of the faid Pbiiips Colman^ without his approbation and
thedeedfl&aii confent in writing firft had- and obtained, that then and imme-
Acrtupon diately upon her intermarriage without fuch confent as aforefaid,
the faid annuity hereby given, and granted (hall abfolutely ceafe
and determine, and the faid Philips Colman^ his^ heirs, execotorSy
adminiftrators, or afTigns, (hall be no longer fubjeji or liable to
the pnyment thereof, but this prefent deed, and every claufe,
matter, and thing therein contained, (hall from thenceforth be
utterly void^and of none efie^i ; (any thing herein contained.
to the contrary notwithftanding 5) in witnefs whereof the fard
Philips Colman hath hereunto fet his hand and feal the 6/£day of
May in the year of our Lord 1748, which being re;id and heard,
the faid Philips fays that the h\i Ellen ought not to have or
Vmt ft do ii^^^n^i" ^^^ ^^^^ a£lion again ft him, becaufe protefting that he
chat d«lend« the faid PhillpSy on the faid gii day of /Ipril in the year of our
Aatwaiai- Lord 1 769 afoicfaid, and continually from thenceforth hitherto
'wa>t ready ^^ ready and willing to have paid to the faid Ellen the faid
loottitY. annuity of 40 /. above demanded, if the fime had been perfonally
demanded by the faid Ellen, according to the true intent and
Forpkt meaning of the faid deed-poll; for plea in this behalf the faid
fiiya, tbaf Philips fays, that the faid Ellen did not on the faid §ib day of
the piaanu6F jtpril in the faid year 1 763, or on any other of the days herein-
teUy de!'' before mentioned, whereon the fame annuity, or any part thereof,
the is made payable as aforefaid, perfonally demami, nor hath at
annuity at any time fince all or any of the faid feveral and refpedive days
•^••*£ufc« perfonally demanded the faid annuity of 40/, above fuppbfedto
be duci in iirrear and unpaid to her as afore(aid, or any part
thcieof.
Hilary Tbrm, 4^^^- m« ^7^4* «^3
tbereof, at the faid manfion^houfe of him the {ziA* Philips^ fituate
in Ipfwich aforefaid, according to the tnie intent and meaning
of the faid deed-poll, that is to fay, at I/lington afbrefaid in the
faid county of Middkfex s and this he is ready to verify; where-
fore he prays judgment if the faid Ellen ought tp have or main-
tain her faid a£lion thereof againft him, iic. And the faid ^^^^^ (^
Philips for further plea by leave of ^e court, He. fays, that the p^nliff dW
faid Ellm ought not to have or maintain her faid a£lion againft ootdemud
him,bccaufe protcfting that the faid Pbilipt on the faid 5/A day of ^^^^y
April 1^62% and continually from thenceforth hitherto, was ready 5^ d^Ii-
and willing to have paid to the faid Ellen the faid annuity of 40/. aat.
above demanded, if the fame had been perfonally demanded by
t}|e faid ElUn^ according to the true intent and meaning of the
faid deed-poll ; for plea in this behalf tlie faid Philips fays, that
the faid Ellen did not- on the faid ^tb day of April I'j&^y or oii
any other of the days hereinbefore mentioned, whereon the (aid
annuity, or any part thereof, is made payable as' aforefaid, per*
fonally demand, nor hath at any time fmce all or any of the faid
feverahand refpeAive days perfonally demanded the faid annbity
of forty pounds, above fuppofed to be due, in arrear and unpaid
to her as aforefaid, or any part thereof, according to the' true
intent and meaning of the faid deed-poll, that is to fay, at Ifling^
^aforefaid in the faid county of Middkfex i and this he is
ready to verify ; wherefore he prays judgment if the faid Eiltn
ought to have or maintain her faid adion thereof againft
him^ \ic»
The plaintiff demurred generally to each of the defendant's
pleas, and he joined in demurrer.
Upon the argument of this cafe it was objefted for the plain-
tifl^ that the demand of the annuity is not traverfable in this
a£Uon, that the plaintiff has in her declaration fet out the grant
of the annuity, and how and when it is payable, and that the.
fame is in arrear; that this is fubftantive matter, and fufficient
to (bew the plaintiff's right to this afiion ; that the covenant to
pay the annuity, (if the fame be perfonally demanded by the
plaintiff,) which is in a parenthefis,^ is diftin£l from, and inde-
pendent upon the grant, and extends no farther than the cove-
nant itfelf ; 'but perhaps, if an adlion of covenant had been
brought, it might have been neceffary for the plaintiff to have
Made a perfonal demand in that cafe ; the grant is clear and
certain^ and there are no words in it that want any explanation
by the words of the covenant. ^
I. For the defendant it was faid, that the whole deed now was
before die court, and ought to be taken together, and the per-
fonal demand to be coupled with the grant, a. That m the de«
claration
224 Hilary Term, j\,Gfo. III. 1764.
ckration it is laid, that by virttie of thie grant, the plaintiff b^^
came and wa» feifed of the annuity in her demefne as of freehold,
which is iilf this being a grant of a mere perfonal thing, and
not a rent ifluiQg.out of land.
Per Mam curiam^^i. The grnnt is fubftantive, and (o is the
corenatit fubftantive, and the demand in this adion is nottra-
Terfable, wh;)tever it might have been if an a£lion had been
brought upon the covenant ; but we think it would not be tra*
verfable in that cafe, as it is contained in a partnthefis in the
deed. 2. As to the manner of pleading in the declaration, that
the plaintiff was feifed of the annuity in her iemeftUy &c. that is
mere matter of form, and this being upon a general demurrer,
it is helped by ihtjfat. 4 & 5 of Queen Anne,
There was an infinuation thrown out by the defendant's
counfel that this deed was made and obtained upon an iihmorat
I confideration, but .the court faid no fuch matter appeared to
' them; and gave judgment for the plaintifE
Reeks verfus Gronemati. C. B.
What u a 'TpHE affidavit to hold to bail was made by the plaintiff in thefc
'tvit^'Sld words, {viz.) Thomas Reeks (of fuch a place) merchant,
to toil, and ^^^^^ ^^^^ ^^^^ Jodocus Groneman of the fame place mufitian, in
wh4t ia not juftly indebted to this deponent in the fum of twelve pounds Cx-
***^ teen (hillings and eight-pence, for meat, drink, and lodging, and
other neceffaries foUnd and provided by this deponent for the f^d
Jodocus Groneman*
I objc£lcd that this was no oath of the debt, it being faid that
the defendant in juftly indebted, inftead of // juftly indebted ^
upon {hewing caufe for the plaintiff why a common appearance
(hould not be entered \ Serjeant Burland faid, that it was a mere
flip of the clerk in a (ingle fetter, and offered a fupplemental
affidavit to the court to make it good.
For the defendant it was infifted it ought not now to be re-
ceived, for if the iirft was no affidavit, the arreft was illegal by
ibc^at. la-Gro. I. for preventing frivolous and vexatious arrefts,
and that this was no affidavit, as no perjury could bp affigned
upon it ; and if the arreft was illegal^ no fubfequent aSt could
make it legaL
. Lord Chief Juftice Pratt and Baihurjt J^, at firft, were in^
cUncd to receive the fupplemental affidavit to make the aneft
good; bat dlhe and Gau/J l^&ices^ vrcxc cltarlr of a cgntrarf
opinion j and faid^ asf the turft was no oath at all, it CQuld no^
be made good by any fupplemcntal affidavit. The court being
divided^ the ru^ was enlarjjed till a future day, w;hen th.e n^att^jr <
was (lirred again ; and Serjeant ^urland cited feveral cifes to
(hew that, fupplemcntal affidavits had frequently been receivecl
in like cafes in this court* both in the treafuryi and at the judges'
chambers : that wher^ executors or adniini&racors had oiadis
affidavit of a debt due to their reftator or inteftate (as it* appeared
by the bookS| Cs'r.} without faying as the affidavit-man vfrily pf^
lievedi (which is always occeffaryj thofc words, as he verify t^
iiAtei^ Jiad often been fupplied with leave of the xburt after t£jp
arrcft. ^ ' . ■ . .
In anfwer to which I took this diCcrence, that in the cafc^
chedf there was fome pqfitive oath upon which a perjury mighjt
be affigned, viz. as appeared by the books ^ &q» but in the prefeiit
cafe tnerp is no oath at all. 2dlji That'tbe court of Ring> Bench
never did ^dmit any fupplemcntal affidavit whatever, nor woul^
ever go out of the firll a0idavit to hold to bail Gnce the^o^. •.
12 G(o. |. ^ukI have always held, if that bc infufficient, it caii
neverbcjpfiade good by any affidavit after thearreft. iStrA-tiSJ^
Heaticote v. GoJUin is cUredty in point- Alfo the cafe of HuJJg v.
Bafkervifle in i?. R. about fcvcn years agp •, Mr. Nares tnerie
moved that the defendant might be difchar^ed upon commoii
bail, there being no affidavit to hokl to bail filbd with the proper
officer when the writ was fued out. Mr. Gould iqx the plaintiflf
(hewed caufe, and produced an affidavit of the debt proved to be
aAually made and fworn before the writ was fued out; but the
clerk, when he took out the writ, had forgotten to file it theng
and the court difcharged the defendant from the arreft oa filing *
common bail, becaufe the affidavit of the debt ought to have been
filed with the proper officer before, or at the fame time the writ
was fued out : alfo the cafe of Nichols v. Dalfyhunty^ i Barnes 77* - ^
One convided of felony made affidavit of the debt to hold to '
bail \ this court held it was not to be received, and was as if no
affidavit,' and refufed to receive a fupplemcntal one.
It was alfo infilled, that tiefpafs and falfe imprifonment would
lay in this cafe for the defendant agaxnft the plaintiflF and the
filazer, or either of them, though it would not lie againft the
fljeriff, who might juftify under the wat which was indorfed to
hold to bail by the filazer, and that any affidavit of the debt nov
to be made could not in point of law make the arreft lawful, aa
to the f laintiff or the filazer»
Vot.m O Ior4
ftafi Hilary Tevlm^^G^o. lit. 1764*
Lord Chief Juftice Pratt -^l own^that upon the firft debate of
this matter, I was inclined to receive a fuppletnetital affidavit to
make this good, v^hich is nothing more than a mere flip of the
pen in a fingle letter* When I confider it again upon what hat
been further faid, it appears to be a matter of great confequence
in a point of libertv upon a ftatute made in favour of the liberty
of the fubjed, which in effe£t f»yS| that no man for the ftttuie
flialt be arrefted before fuch affidavit of the debt be made and
filed with the proper officer. Now it Is certain this is no affi-
davit) becaufe a perjury cannot be affigned upon it^ therefore this
. is an arreft contrary to law; and (hall this. court (or can it) make
fhat lawful, which the law fays is milawful ? I do not find this
court has ever gone fo far as to admit. a fupplemental affidavit,
where the firft ambunted to no oath at all, but has only fupplied
fmall defe£ls rn affidavits which have not been quite full enough^
as in the cafed cited of executors and admini(lrators> and which
^ * the Song's Bench has never come into ; and therefore I hare
changed my opinion, and agree with my brothers CKvt and
Ctouldf that the rule muft be abfotute for a common appearance.
C/ivi and Gould Juftices were ftili of the fapne opinion as at firft»
and thought that an a£lion for falfe imprifonment would lie
againft the pbimiff or the filazer; batf^/i^i/r^J. wasof opinioa
St would not lie : as to the matter of a common appearance, he
feemed to agree with the reft of the court i and the rule was
sude abfolute for a common appearance*
[ 227 1
EASTER TERM,
4 Geo. IIL 1764. .
Swithin and his Wife verfiis Vincent and hh Wifo
Swiihin and his Wife vefftis Vincent only. C. B. ^T
TWO anions for words, and two dechratiom, each con« *r#B 9BM$
taining fix counts. In the firft caufc the words were laid J^dhS^ Z^^^
to be fpokcn by the wife of Vincent^ in the latter by Vincent him** mttt^A^nStl ^
fclf. It was moved for the defendants^ that thefe two adiona maa wa his 'J^^^'
might be reduced or confolidated into one j becaufe (as was faid) ^^^ ^
both required the fame pleas | that the hufband and wife were •gtfuirtte^'^w
one perfon in law in civil fuits, and the hu(band was liable to ^i^oniy^
pay ail the damages, both for his own and his wife's flander, aiidl ^'"'^ ^
it would f^ive expcnce to the parties. , Butj>^rr«rwi»—Thb can-
not be done, for it would be error to join the wife in a declare^
tion for words fpokcn by the hulband onljs and the declaration
would be ill, either upon a demurrer^ or in arreft of judgment \
fo the motion was relufcd.
Brett, at the Suit of xWadham* C B.
Motion was made for an attachment for non- Jhyirieint of Afli^fthlr tk
A'
Lvioiion was maae lor an arcacnmenr lor non*paymcni or Amosmt or ^ ,/ > .1
8 /. 8 /. cofts, according to a rule upon the plaintiff for that ^i^'^ij J^ */^>^*
purpofe and the prothonotary's allocatur; upon an affidavit that aUocMor «r Z"^' H
M or about the 9th day of February laft he fcnred the rule with ]j^* ""^ •
the allocatur^ and demanded the cofts of the plaintiff, who re* SSw? ob
fufed to pay the fame. Per curiam ^Tht affidavit is infufficieiit< or tboat
for the words on or about leave the day of the fervice and demand '»?»*^y#
uncertain ; and it might be upon a Sunday .for any thing that ^
appears to the contrary, which is £es non juridieus g fa you muK
mend the affidavit, for there is no rule to fliew'caufe In this cafe^
but an attachment goes at once if the affidavit be fuffic*' ^»
Qji
lX4.fjL/
228 £ASTBitTs>}r,4^^.III. 1764^
Goldftnith verfus Baynard. C B.
iU!«fit A CnON upon the csrfc upon fcTcral promifca, to the plain-
**• tiff's daxnajgc ^rforty pounds.
ffet«#prl* And the defendant by E. A his attorney eomes and defcndi
Viicgc for • the tmmg and injury, 6v. and fays, that this court here bughi
Jg^jJl^ not to take, nor will take cognizance of the faid plea> becaufe be
JZ!^^C f*y* ^^^ '^^ ^^ defendant, long before the fuing forth of the
^^ /iz:^Sc^^ ^ original writ of the plaintiff, and at the time of fuing forth the
^jCi^ c£;&«*-^>^*^ fame was, and from thence hitherto hath been, and ftill is, one
S^fJ^^ji^ ^t^^/'^^ of the ckrks of Chriftian Zincie efq. one of the fix clerks of the
r.%^^^ 1/y^^^iJ -* ^^ coiyt^f Chancery of our lor*the kii»g, (the faid. court then
*" ^ ^^r\ /^€Z^ b«ng> and/ftai held at Weftmnjler in the county of MUdlefiXf)
•'^-^-^^^ '***^ Sind that he doth fcrve and intends to ferve our lord the king and
\^^^^m^:*m^ 4f^f/(€^^ Ills people as fuch clerk of the faid Chrifiian. Z'wdcy one of the
^ZZ^ * -< ^* clerks of the high court of Chancery of our faid lord the now
ling, to i^It, in the faid high court of chancery ; and thefsuddc-
^ fendant further fays, that as well for the royal dignity of our
lord the now king and his progenitors^ heretofore kin^^s of Eng-
land, (h)m an ancient cuftom m the faid high court of Chancery
iai our faid lord the now king and his progenitors aforefaid, time
, . out of min4 obtained, and hitherto allowed and approved of, the
Chancellor of Engiand, or Keeper of the great feal of Englandkt
ihe time being, and other officers, clerksv and minifters of the
fame court of Chancery in their own pcrfons, and in their men-
fervants, Tands, tenements, eftates, goods, and chattels, ought to
be free and quieted, as anciently they ufed to be; and the de-
fendant as fuch clerk of the faid Cbrtfiian Zincke now ought to
be free and quieted^ according to the privilege ^nd liberties of
the faid eouit of Chancery time immemorialiy ufed, and ought
not by any means to be arrefted, impleaded, or imprifooed, or
4rawn or compelled to appear or anfwer before any of our lotd
the kind's juftices, officers, or fecular minifters whomfbever, a-
ccpt before the Chancellor of England^ or Keeper of the great
leal of England for the time beln^^, upon any pleas, plaints, tref-
pafles, qr demands whatfocver which do not touch the king's pcr-
fon, (pleas of freehold, felonies, and appeals only excepted,) elfe*
where than in-the faid high court ot Chancery, whereby thej
might be withdrawn from the faid high' court of Chancery of
our fsjid lord the king, againfl their will; contrary to what they
formerly ufed to be; and this the defendant is ready to .verify;
whercforeheprap judgment -if he ought to be compelled to
anfwer to the'plaiatiff in the faid plea here in courti Cs'r.
J.Burlani*
And
And tlie plaintiff fays, that fot any thing by die deSdnimtt Replictdoot
above in pleading alledged this court here majr and ought fed ulde the defend.
eoi^ntrance of the faid plea agaioft the defendftnt,' bdcaufe prc^ ^hin^ m^
teding that the faid plea of the defendant by him abo^e pfefllddd, pfpiiibDad
and th^ matter therein contained, are iniuffident in hvyand that <lMiQ6riveat
the plaintiff has no occafioni nor is bound by the law of the land ^^^
to maki? any anfwer thereto. For repKeataion in this behalf dit Utoffioe 10
plaintiff fays, that' the defendant having been a prifoncr for debt ^^^ ^
in aSoal cuftody of the gjibl or prifon tt the Sang^s Bench o^ ^^
the 25th day of OBoker in the year of our Lord 1760, amd&
contmaing and being long before the fuiiig out of the faid on-
giiul writ of the plaintiff againft him, towltj on the 15th day bC
July in the year of our*L<^d 1761, in itonfornitty to a certain
a& of parliament made in the parliament of our fovereiga Ipvd
the prefent kin^, at a f^fiion thereof hoiden at Welfminfter in the
county of Midikftx^ in the firft year of hb reign, intitkdy ^ Aa
<< a£l for the relief of infolvent debtors,'* at the general quarter*
feffions of the peace, hoiden at Gilford in the county of iut^
in and for the fame county, before Sir AfUhonj Thmas Jhdij
hzxontx^ Gtorge Onflow and Jvibn Evelyn efquires, and others
their fellows, then juU'icesof our faid lord .the prtfent king, aC»
iigiied to keep the peace, and to he^r and determine divers felo«
nies, trefpaffes, and other mifdemeancTS cbmmited in the feme
coumy, made and dtlivered into the faid court of general quar-
ter-feflions, fo held as.^forefaid, a certain fchedule fubfcribed by
the faid defendant of all the edate. and efie&s whatfoevdr of hin
the faid defendant, excepting faia wearing apparel, bedding for
htmfelf and family, working tools and implements for his occtt«
pation and calling, and chofe in the whole not exceeding the value
of ten pounds ; and amongft other the eftate and efi^£b8 of the
faid defendant, a certain feat or office of the defendant in a oer^*
tain office belonging to the high court of Chancery, called \lie .
fix clerks office, to which feat o\r office the defendant was thoti
entitled as one of the clerks of the faid Cbrifiian Zmch in the
faid plea named, fo betngrone of the fix clerks of the high court of
Chancery} and the defendant afterwards on the fame day at the
. faid general quarter-ftffions of the peace to held as aforefaidy wa|
duly difcharged by virtue of the' faid a£t of parliament as an in*
fofvent debtor, and then and there had aild took the benefit of the
faid z€t ; by reafon of which premifirs, and by virtue of tfie faid
VkStf the faid feat or office of the defendant, and all hif righti titte^
, interest, and benefit ofy in, and to the fame, and all the faid other
eftatit; and effcfb of d^e defendant (except as aforefaid) coft*
faihed and fpecified in die faid fchedule, then^ and there became
and were vefted in John Lavffin efq. then clerk of the fleece of
the faid. county of Surryy for the ends and p'urpofeft in the fame
a£l of parliament in that behalf mentioned: and the plaintiff
further (ays, that the defendint hath not at any time finoe been
Itftoicd to UiC poS^ffioft an4 enjoy th^nt of hU (aid £pat OjTofficftf
<t3 w>f
^3P .Easter Tekm, 4 G^^ III. 176*^
lior bath z6ttd or pra£lifed as one of the clerks of the faid
' * Cbri/Ha^ Zineke as afor^fatd, at any time fince the making and
delivery of the fchedi)Ie aforefa^id, and the taking of the benefit
of the faid z€k of parliament by the defendant as aforefaid ; by
l^afon of which prcmifes the defendant at the time of fuing forth
of the faid original writ of the pl.di[iti(F was not, nor hath at any
- time iince been entitled to the faid pretended privilege \ and this
the plaintiff is ready to verify i wherefore he prays judgment, and
that the court here will take cognizance of the (aid plea, and that
the defendant may be compelled to sinfwer further to the plaintiff
in the faid plea^ {5V. Ja. HiwiU
The defendant has demurred genor^Ilys and the plaintiff h^s
joined in demurrer*
This cafe was argued twice at the bar. Two queftions were
made, ift. Whether thisoflSce of a 6oth clerk is affignabfc pur-
fuant to the infolvent debtors' z£k of the firft year of the king?
2d, Whether the defendant can be entitled to privilege, it ap-
pearing by the replication, that lie has not a6ied or pradifcd
^ce his difchafge and taking the bcnefif: of the a£l.
I. For the defendant it was faid, that a 6oth clerk in Chaiv-
pery is certainly entitled to be fued in the petit bag office, and
that his office is not nffignable by law, and therefore the defend-
ant ftill remains a 6oth clerk. That it is a mere perfonal o£Bcc
pf trail under the 6th clerk, and before any one is admitted to it
• he muft ferve a derUbtp, and undergo an examination by the
- lif after of the RolU, and that it could not veil in the derk of
:tbe peace by the a(Bgnmen{ of hiseffe£ls under the ftatute : that
the 6th clerk is not obliged to admit the atOignee : that it cannot
be taken io execution. FaugL 1 8 1 . It would not go to affigne^s
under a comnii(Iion of bankrupts, nor would copyholds if they had
not been mentioned in thejftsyf. 13 £/iz. This office is a free-
bold ; if the c}erk of the peace dies, who muft it go to ? What
muft become of the buGnefs of his office, if the aflignee be an
unfit perfon ? and a woman may b*: an affignee under this ftatute.
The office of clerk to the dyers' company was determined in this
f ourt not to be affignable in the fchcdule. In the cafe of North
tg^xntt Calfi B. jR.. about 14 or 15 years ago, the court deter-
mined that the office of provoft-marihalman was nqt affignabkt
^nd that he muft have leave to refign. In Bac&n*sAbr. tit. Offias^
there \s a quart whether n 6oth clerk can fell his office or not;
Ftrney, Maftcr of the Rolls, thought he could not j they have
indeed fometimes been permitted to fell, but that has always
been tq perfuns who have ferved regular cl^kft^ipsin the office,
and have been properly qualified \ the affignment of the office
pf a filazer would be void ; this is an office of truft and cOnfi-
(ieace iiudcr the 6th derk, and cannot be affigncd for years, be*
EAsfER TerMi 4^^- II^« ^7^A^ «3t
jcaufe then it might go to executors and adminiftratorSt never
truited or confickd in. Faugh. 1 8 1 •
2. As to the fecond queftion } the plaintiff has only alledged
that the defendant has not pradifed fince his difcharge j they
have not denied that he is Hill a clerk/and confequently entitled
to privilege ; the plaintiff ought to have traverfed ah/que iocp
that the defendant before the fuing out the original writ was*
and ftiil is one of the clerks of Chri/lian Zhicle, one of the fix
clerks of the court of Chancery ; for tliough he has not exercifed
his office fince the time of his difcharge, that may have been by
i^fon of ficknefs> or for waut of bufinefs in the office, for any
thing that appears on this record, a^d therefore be is ftill eiv*
titled to his privilege.
u For the plaintiff it was obje£led, that tl^e defendant's plea
is bad, bccauie it alledges only that he is clerk to ChriftiMi
Zincke^ and that he fervcs and intends to ferve as fueh clerk ; •
but it does not ^Uedge that he is attendant upon that office and
doty \ fo is Bro. Traverfe^ pL 27. Bro. Privilege^ 40. and that t$
the material fa£t to be travetfed.
2. It was obje£led that the plea is bad in another tcfpttk^ for
that it alledges a cudom for the Chancellor to be fued before
himfelfj which is void, becaufe he cannot be fued before him-
felf. 3 Kfb. 352. Fawkfur v. Annu\ iox thefe two reafons a
refpondeas oujier was prayed,
Ctffxa --This fort of plea is to be difcouraged. We fee the
defendant is not in ^Oiy^^X fennce and attendant upon the court of
Chancery \ the replication alledges that the defendant put this
office in his fchedule, and has affigned it} thb is confeffcd
by the demurrer, and therefore the defendant is concluded to
fay he has not affigried it ; this plea is a mere dilatory, and we
look nicely into fuch pleas \ the defendant ought to have al«
ledged that he is aiiually attendant on the office^ for attendance is
the ground and foundation of the privilege that they may not be
drawn into ^ther courts. The defendant has faid in his plea that
he (erves and intends to ferve the king and his people as clerk to
Mr. Zincke\ but a man may be faid to ferve and be a fervant,
and yet not be attendant.
Another obje£lion is to the cuftom ; it is bad to fay that the
Chancellor himfelf is to be impleaded before himfelf ^ it is idle^
and contrary to the fundamental laws of all nations upon earthy
for a man to be judge and party in his own caufe ; Lord Hobart
Up$ aa a£l of parliament could not make fuch a law.
Q^^ Serjeant
*ii EA8TfeltTE«M,4^W.tII. IJ64.
Serjeatkt Miad pleaded Ms ptivHcge in the coun 6( Kmg^i
Bench, that he ought to be futd in this cotkrt, after he had long
Retired from this bar ; aod for the reafon that he was not attend-
dnt here, his privilege was difallowed. Some of the court
tfoabted. whether this office was afli^nable or not, and thought it
tould only be furrendered id the Maflcr of the Rolls, who is
feound to receive fuch farrehder ; they gave no abfolute opinion
tvhether the replication was good or bad ; but the whole court
Wte of Opinion that the plea was bad for the reafohs aboyej and
gave judgment that the defendant fliould anfwef oven
iJotei In Hilary term, 30 G. 2. B.R. one Majnard an at-
lorney was arrefted^on a latitat for 270/. and gave a bail<4>on(i.
He moved to have the bail-bond given up, and that proceedings
^ould day, for that he was an attorney, and ought to have the
privflege bf being fued aS an attorney by bill, and ought not to
nave been artel^ed. Upon Ihewing caufc it appc2ited that he
had left ofFpra£lice, and was called ffquire^ fo the court rcfafcd
the motioftj'^nd difallowed his privilege ; cited ^r Gou/dJ.
Refpendtat wjltt^
'fieitherliy, on the Demife of. Worthiiigton and
Tuhnadine, i)erfus Wefton and others. C B,
^ i Tentntiin in jtCTMENT of lands in the county of JVarwtci. Verdid
^ *^ ^n'STmike • ^^^ ^^^ plaintiff, fubjeft to the Opinion of the court upon a
^^^ ^^ a4(uatkar8..yery fpeciiil cafe of a title which was twice argued at the bar,
• wherein feveral points were debated, but at laft were narrowed
find reduced to the fingle quellion. Whether tenants in common
can niake a joint demife ? The leafe in the declaration being laid
to be of tlic joint demife of the plaintiff's leffors, who appear to
t>e tenants in common upon the (late of the cafe ; and after time
^aken to confider, fbc ^viafe court were of opinion, that tenants iq
common cannot join in making a leafe, for their eftates arc fcve-
^al and diflin^, and there is no privity between them, and for
.thatreafon, one tenant in common may enfeoff another. Bro^
JFeoffm, de Terrey pL 45 . in the cafe of Hinxnm on the demife ofFagg
$Sf aL y. Mootiy B,K. 15 Ceo. 2. this point was determined;
aqd fee SBow, 34a. Cro.Jac, 83, 166. Comff. 2, rpo. I Br&ufff,
39* 134. Co. Lit. 200. Judgment for the defendants, auid|be
.^fa delivered to them;.
r
Jitnes WaHwyn, Efq. ijcrfus Ricliard Bilhoj) of ""77^
Landaff, Wallwya Cecil, Clerk, and John fiSivi^^ Jj^^^
Clerk.
QiUARE im^dk of the vlcaraj^ of the chardi at SlnfrHh Qtttretoipe-
*>^^irrthc county of M&nffwObt tht piaintiflF in his count f^\ .
maki 8 title, that PiW&> CecU being feifed of the adfowfon of «^ Mifb^
the Ticarage in f^rob as of ftfe snii right, on the ^4th of Deiim'%^ mt term
fcr 1706, by indenture between the faid PM^ Cecil and Wah& l^- 3-
Cidl of the fira part, %i« Trj/^ efq. zxxdthomaf Evam cfq, Jjj^^'
of the iecond part, J^^n Kjrle efq. and the faid Jama WhlU
vyn (the plaintiff) ot the third party Wl/Iiam Pawt/i efq. WU-
ham Bennett^ and H^aiter Rifims^ of the fourth part, and Elhui^
beth WaU%9rfnf fpiniler, of the fifth part ; in confideration of a a iivin?»gi.
manriage to be had between the faid Philip Cecil and Etizdbeth f^ttfemeat
WaU^n, did grant the advowfon (among other things to Tri/ JJmp^Ceca
znd Evans f their hem and affignsi to tne ufe of Philip Cecity fhes4tbof ^
Walter Cecil, and William Powell^ their rcfpcaire heirs, eae- Dwciyoe, Jc,c^^
cutprs, and,admini(lrators, until tlie marriage, and aftfcr, to the ^ \xf« -JLr-^
ufe of Philip Cecil for the term of 99 years, if be ihould fo long ' ui^tSS^ffil^m*'
lire; then to the ufe of the &id three truftees to preferve cons- Aty^yH^ m^ >
tingent remainders, and after his deceafe, then to th<f ufe of the \^ /'Jf a 1
faid John Kyrle and Jamis Wallwyft for the term of joo yearS^ i(M. rW^^^v ^
then to the ufe of the firft and every other fon -of the bodf of ^f^ ^^/ ...X ^
Philip Cecil upon the body of Blizahetb fFallivyi to be b<JgOttct<»--. .^ J
and the heirs male of the body of fuch firft and every other fon^L^f'^^ir'T^^ ^
and fa default of fuch iffuc, in cafe the faid Eliiaheth Ihould^^*^**^^^ "^^
happen to be enjlefft with child of the faid Philip Cecil at thfec^^^***-^ / 7 ^ ** -^
time of his death, then to the ufe of the faid £/f!^to^^ until (h^^ «4..«'^^ :> ^ ^
ihottld be delivered, Ot fliould die, whtchfoever fiiould firft ^f^^- 't^*^ *^
happen, in troft for fuch child or children, When it fliould he^^S^ ^^ ^^SLui
born } and if a fon or fom, then from and after the birth of ^,v ^^>^C^i^ ^
fuch fon or fons, to the uft and behoof of fuch after-born fort V^^T y
pr fons, and the heirs male of his and their bodies, oftc aft^r ^*'^^'^^"^^^ * ^
the other, as they (hould be in priority of birth, and the rcfpec-'^P^^*^'*'^^
ti?e heirs male of the body M^ bodies of fuch after-born foh, Cff^^^'-JS^i'f^^
•and foni, and for want of ftfch iffuc, to the trfe of all and every 7^^ ^ -^-^^
the daughters of the faid PhiHp and Eli^bHh in fpecial tails ^^^ •
and ibr warn of fuch iffue, to the ufe of the faid Philip Cecil, his
hetra«and affigns for ever} that on the fitid !i4rh oi Dtcemiir Mftrtr&M^
1706 the faid marriage took effe£t, whereby and by force of the ^« ^^«^-
ftatutfe for transferring ufes into poffeflion, Pbil^ Cecil became JSw^TrS
|>offeficd of the advowfon for the term of 99 years* determinable ijiou^ fi»
as above (the reartaindir thereof belonging ii above]; and Pbi^ Jo«)i«t.
/r> Cecil bting f* poffcffcd of the advowfon, and the church being ^^^^^
then fvdl of one Jama Phi^, the faid Philijp OcU aftetw^, fuUpf Jmin
^(1 ^ $sft ^ 9f ^u$n t7i|t b^ dMil |t»iiit4 the ^en neait \^^^^
prcfcnutioa j„nJi7»4,
334 Easter Term, ^-Geo. III. 1764, -
lie griQted prcfentation to JJ^n Stepitns, in cafe the church (hould become
**T^'s*"* vacant during the laid terra of 99 years ; by virtue whereof
tojo^osu- j^i^ StepbeniM^zs poffcffcd of the advowfon for the next pre-
fentatSon to the church in cafe it (hould become vacant daring
The chwch the faid term of 09 years ; and being fo pofTefled, the church
J«c^ *<»^ during that term became vacant by the death of yames PhtiipTt
of I Phinpsi ^^^^^^ "^^^ ^^^ ^^^^ avoidance after the faid grant, to the faid
and f. Ste-' John Stephens s whereupon Jdtn Stephens prefented to the vicar-
f^V^ age of the faid church, being vacant, WlUiam Stephens his clerk,
^^plrnf,' '^^^ ^** thereupon admitted, inftitutcd, and induScd, crV. ;
and the faid Philip Cecil being fo poflcfied of the advowfon for
the remainder of the term of 99 years, determinable as afOre&id,
That PhUip (iremainders as above) 5 and the church being full of William &ۥ
^eflfdf /Afw/, Philip Cecil afterwards, on the firft day of Oaoher 1731,
sod John died fo poflelled, and the faid John Kyrle then alfo died, where-
Kjrrie alfo upon by furvivorihip the faid James Wallwyn became poflefled
iTti' ^^ of, the advowfon for the remainder of the faid term of 500 years
whereupon then to comc, and being fo podefled thereof the church became
plaintiff be- vacant by the death of William Stephens, whereupon James Wail-
poSifled'if **?* prefented Richard Recce the elder his clerk, who was there-
theadvow. upon admitted, inftituted, and induced in time of peace, lsfc^%
ion for the and tlic faid James Wallivyn being fo poflefled of the advowfon,
^m^Jvt^ the church became vac^n't by the refipnation of Richard Rjcece
the charch jthe elder, whereupon the faid James Wallnvyn prefented Richard
trX'd*^ ^Reece the younger his clerk, who was thereupon admitted, in-
^V^tstt- fti^uted, and indu6ied in time of peace, bfc*\ and the faid
f bens, he Jamcs Wolltuyn being fo poflefled of the advowfon, the church
|i«fented R, became vacant by the refignation of Richard Rcece the younger ;
who refignl wKereupoq it belonged to the faid James Walltujn to prefcnt m
cd, and then fit perfon to the vicarage of the church fo vacant, and oii« /?#•
R tl^T^ -*^ »^A«/^r clerk, ufurping upon the faid James Wallwyn, pre.
jan..who*ha» .Tented to the vicarage of the church fo vacant Wallvjyn Cecil the
lefigocap now defendant his clerk, who upon that prefentation was ad*
WMedto*-'^*"^4» >nfti^tt^cd, and induAcd into the fame 5 and the faid
Jiim t^ Jasnes Wallwjn being fo poflefied of the advowfon, the church
plaintiirro became vacant by the refignation of the faid Walhvyn Cecily and
prefent, and y^j j^ vacant, by rcafon thereof it belonged and ftill belongs to
WlMMv4r the faid James WaHtvyn to prefent a fit perfon to the vicarage of
itfurpation ,the faid church fo being vacant ; and the faid Richard Biihop of
S^rite^' Xtf«i/#, Wal/wjn Cecily and John Davis, unjuftly hinder him
defendant, from prcfcnting a fit perfon to the vicarage of the faid church i
who has re- whereupon the faid James WaUwyn fays he is injured, and hath
fite chJIcb f^^^incNi damage to the value of 300/., and therefore he hnngs
it now va- fait| Isfc.
(ant, and ic •
^clon|f (0 piMntjff to prefent, and detendaDti hinder hSin.
Impariantts. All the defendants imparl from Michaelmas ttrm 1760 tin
TbebiAop JSlarf 1761, from . -Hf&ry till Eafier 1761, and from Eafier to
ISldStty!^*' ^^^y ^c'n* >7|^>» > G». 3. 5 then the bifliop comes and pleads
th%t ^c dafm^ ppthing btt( as Qrdiom^ to vi^hifh the plaintiff
feplif^
Easter Term, 4^^^- M^- ^764. ^35
Teplies m the common forrai and prays a writ to the
which is granted by the court with ftay of execution thereof till
the plea between the plaintiff and the other two defendants be
determined, Uc*
The defendants CectJ and Davis further imparl till Michaelmas TnpaffUiicct
1761, from Miebaeintas t\\\ Hilary 1762, horn Hilary tiH Eafier fcyt*wp«i«i
1762, and from ta/fer till TrfrnVy term 176a, 2 G«. 3.; and b«t"de!."**
then the defendant VTallwyn Cecii coaxes and fays that the plain- ikni
tiff ought nut to have his adlion aj^ainft him, becaufe he faySf
that Pbiiip Cecil the elderi father of the faid Pbi/ip Ocil^ in the riie
declaration n^med, long before the making the faid indenture of 9^ cbe in-
marriage fettlemcnt, while the church was full of a clerk, James ^j*^ ^2
Philip, the then incumbent, to wit, on the |;th of 7afiuafy in pxecil,fcju
the icth year of King William the Third, William Powell zx^i^^^oi^.
Waller Cecil efq. profecutcd out of tlie fame king's court of ^^^^^
Chancery a writ oi entry fur diffetfin in le pofi againCt Henry Pr^- before die
hart efq. and Robert Price efq. (amongit other things) of the fetciemeac
faid advowfon of the vicarage of the faid church, returnable ^iliJ^hM
from the day of St, Hilary ig fifteen days, (which is fet forth at fttilofjaocs
length in the ple^,.). whereupon a common recovery was fuffered P^iip«r
the 6rtt day of the fame Hilary term with triple voucher, when ^^^'^^
all the parties appeared in perfon at the bar, and wherein the commoa
faid Philip Cecil the elder was firft vouchee, who further vouched •«|?>»«r «f
Philip Cecil his fon, who vouched over the common vouchee, foi'/jjl^^i
and judgment was thereupon given, and a writ of feifin awarded wherein ht
and executed the fixth day of February, die, icth year of King "^ ^jf ^
William 3. (which recovery is fct forth at length,) as by the re- JSJ^JIJ^
cord thereof in the court of the Bench appears ; which recovery ed, wfatcb
was fo had and fuff»:red as to the faid advowfon, to the ufe of *?* "*•?[*'
the faid William Powell and Walter Cecily their executors, ad- ufc^o/Wau
miniftrators, and sifligns, from thencefonh for the term of 1000 Powell «o4
years, and after the end pr fooner determination of that term of ?^**£^^*^
1000 years, to the ufe of the faid Philip Cecil the younger in o?iooo
tail male; and for want of fuch iffue, to the ufe of the faid yeara,«hiA
Philip Cecil the elder in fee ; by virtue of which recovery, and [j,^"^^
by force of the ftatute of ufes, the faid- William Powell zt\i ixffK^uL
Walter Cecil afterwards, and long before the making the faid in- tbe<ie«iar*»
denture qulnquepartite in the declaration, became and were pof- ft^Uubaft*
feffed of the advowfon as in grofs by itfelf for the faid term of iag,i!Litbtt
1000 years, which tcrm^ at the time of the making of the faid aochiag .
indenture qmnqi^epartite^ was and flill is fubfifting and unex- J^Jj^^'^
pired, and bj reaibn whereof, nothing of or in the faid advow- Kyrie a^A
fon evqr pafied by the faid indenture qulnquepartite into the pof- the piuadir
fcffionof the iMJobnKyrle and James Wallwyn: and this the !l^ ^"^
jfaid Wallwyn Cecil b ready to verify \ wherefore he prays judg-»
ment if the (aid James Wallwyn ought tp have his a&ion againft .
And
236 Easter Term, ^Geo. IIL 1764.
Tbe other Ahd the faid y^i'n Davis fays that he is parfon of the faid
defendant church ifoparfonod in the fame on the prefentation pf the uid
Su^h^'f.^ irfl//ic9« CfcU, and that the faid Janus Wail'wyn ought not to
the parfon . have his adion againft him, becaufe he fays that long before the
•ippirfonee, faid indenture qmnquepariite in the declaration mentioned, and
«tir*>in y^fotc thA faid Philip Cecil in the faid dc,clararion named had
•fo-fats psuon any feifin of the faid advowfoni one PUlip Cecil the elder, fa*
jtfior to ^ ther of the faid Philip C/fcil above-named, was feifed of the faid
fkETrtiiir? advowfon of the vicarage of the faid church as in grofs by itfelf
Thj^P. Ce- .as of fee and right; and being' fo feifed thereof prefented to the
^h ^*^V* . famet bei«g vacant, James Philips his cleric, who on that prc-
kil^, pt^- fcntation was admitted, inflituted, and induced into the fame
ftnted Ja, church in the time of peace in time of the Lord Charles the Sc-
S**^*h* di ^°"^> ^**^ '^'"8 ^f England i and that afterwards and before the
fwing flc4ftt walling of the faid indenture quinqttepartite^ in the above declara-
temp.Car.i. tion mentioned, to wit, on the i8th day of Ja/iisary in the year
T^*f de-'* ^ ®*' hfyrA 1698, at the patifli aforefatd, by a certain indenture
^tliSJan. of bargain and fale then and there made between the faid Philip
1693, Qeeil the elder and Anne his wife; and the faid Philip Cecil the
'Mhfs^ii^e ^"^^^ ift the faid declaration mentioned on the firU parr, one
Staated, add Henry Prohni znd Robert Price of the fecon«i part, and William
PMlU>Ccdi Ponvell and Walter Cecil of the third part, (which i& brought
2^ the *°^^ court,) in confideration of certain fiims of money to the faid
m^o^ion ^Philip Cecil the elder and Philip Cecil the fon paid, he the faid
(among Philip Cecil the elder, being fo feifed of the faid advowfon as
Me^ty aforcfaid, granted, bargained, fold, and refcafcd, and the faid
Pfobyrt and Philip Cecil the fon in the faid declaration mentioned confirmed
R«-|ric»» to the faid Henry Probart and Rjsbert Price, (in their aflual
raiT Cecil pofl<^^i> then being by virtue of a bargain and fale to them
JU1L for bis thereof inade for the term of one whole year, by indenture bear-
fc?i»**Aijfh "*8 ^^^^ ^^^ ^^7 °^*^ before the day of the date of the faid iii-
t&theofeof denturc, now brought here into court, and made between "the
ibe Hein fame parties laft mentioned,) and their heirs and afligns, (amongft
SdV^*"* other things,) the advowfon, donation, free difpofiiion,andri^ht
. ^^* of patronage of, in and to the faid vicarage of the pariib church
of Sienfretb aforcfaid, with all its rights, members, and appur-
, tenances ; to have and to hold the faid advowlbn with the ap-
purtenancea, (amongft other things,) to the faid Henry Probart
aod Robert Price, their heirs and afiigns for ever, to the ufe and
behoof of the faid Philip Cecil the fon for and during the term
and fbr wftkt of bis natural life, and from .and after his deceafe, to the ufe of
'^Sf'^'J^'f *^ htm male of his body lawfully begotten, and for want of
?. c^ fe^. f^^ ^^"^t then' to the ufe and. behoof of the right heirs of the
f^htt ' frid Philip Cicil the elder for ever ; by virtue whereof, and by
]^j^ ?• force of. the ftatutc of ufes, the faid Philip Cecil the younger
mta IMA in heeame and was feifed of the faid advowfon as in grofs by itfelf
tsU} as of fee-tail and right». that is to fay, to him and the heirs of
his body ifliiiog \ wA the faid John Daw haxiktK faiib|.that the
fsu4
Easter Teem, 4 Qco. III. 1764-' 237
fud ^Si^ Ceo/ Ac younger being ib k\(ti of the find advoir- aad die
. ion, and the dvirch bcixig f uU of the faid James PbiUpi der^ ^^^^'"^
he4hc faid PInRp Cml & fpn, bf a Gertaiir writiog under his pbUips,
hand and feal glinted unto the faid John Supie^j'in the deda- P.CecUjun.
mtioo mentioned, the then firft and next pcefisntation to the ^^^^
diurdi whenfoever the fame (hould then firft and next becpmc j.siepbms.
TacUnty (if the fame ihould happen to become vacant in the life-
time of the Cud PUlip Cecil the fon,} by virtue of which grant- That the
the laid Joim Stephens became and was pofleftd of the advowfoa ^""^ ^^
for the then firft and next vacancy diereof, \ti cafe the fame byl^e'dMth
happened to become vacant in tbe lifetime of tbe faid PhUip- of jamn
Cecii the fon ; and the faid John Stephens being £o poflcffed ^^^^^
thereof, the church became vacant in the lifetime of Pluf^ ofp.'ce^
Cedl the fon by tbe death of the faid James PbiUps^ which va- jun. and Jo.
cancy of the diurch was the firft and next vacancy thereof after ?!5***25
the grant aforefaid to the faid John Stephens by Philip C^eil tbe w^^^
fon made as aforefaid ^ whereupon the faid 'John Stephens^ by pbeos.
virtue of the faid grant, prelented to the church fo vacant the p^?^^ .
£aid William Stephens ^ in the faid declaration named, nis clcr^^ <fiea,^dtbt
who thereupon was admitted^ inftituted, and induded in the (iefendant
time of peace, l^c. and afterwards, at Sken/reth, Phil^ Cecil the ^^^j^^JV
fon died fo feifed o£ the faid advpwfon as in grofs by itfelf, heir mdt,
leaving iflue male of his body iffuing the faid Walhojn Cecity »nd h UivUk
one of the defendants, whereby the &id Wallwyn Cecil became ^^'J;
and was feifed of the advowfon of the vicarage of the church tail.
aforefaid as in grofs by itfelf as of fee-tail and right, (that is to
iay) to htm and the Jieirs male of his body ifluiog ; and being That the
fo fcifed thereof, the church became vacant, by the de^^th of the ***^* ^«-
faid WtUiam Stephens / and the faid James JVallwyn having no by'^/Sa*
right to prefent to the faid church* but ufurping upon the faid ^ w. Ste«
WaUvPfn Cecili to whom of right it did belong to have prefented ^j*'^
a fit perfon to the church, prefented the faid Richard fieece the by l^$r
elder, in the declaration mentioned, his clerk, who was there* tion prdeat^
upon admitted, inftituted, and inducted in the time of peace, f**^^?^
C9V.' and the diurch afterwards became vacant by the refigna* a^^ ]^
tion of the faid Richard Reece the dder ; and the faid James theptaindf
Wallwyn having no right to prefent to the chUrch, but ufurping *^|^" ^7
again upon the faid fFallwfn Cecil, to whom of right it did then pre^!S!ld|U
belong to have prelented a fit 4>erfon to the churchy prefented R««ce jvn.
to the church then vacant Richard Reece the younger, in the That the
declaration mentioned, his.derk, who was thereupon admitted, chjircbbemf
inftituted, and induded in the time of peace, (stc. ; and tiue faid ^eeoj^
' ^abm Davis further fays, that tbe faid Wallvrfn C<dl being ^9 Waiiwya •
ieiied of the advoyrfon, and the diurch being f^l of the faid Cecil gao^
JRjchard Reece the younger, he the faid fTaUyrfn Cecil, by writing wheek^tha
under his hand and ieal, granted to the faid Rahrt Wbefikr in nm tBuu >
the declaration mentioned, the then £Hit and next prefentatipa -
of the 4;hurch whenfoever the £ime Aould then firft happen tp
becooie jracant in thp li^ftimf of thetfiud Walkpyi Q^rili lil v^ttue
238
That the
church be-
came void
by refigna*
tton of R.
Rcecc jon*
9hi Robert
Whceirr
prefeoced
WaHwyo
Ceoit the
defendant,
trborefign*
«dy and he
WiAg ietfed
of the ad-
Towfoo ia
tail'inale,
and the
church bsiog
void by bit
tcfignatioiiy
be prefented
tills iocunio
bcntdavis
the other
dcfcodttty
Mdthen
traverfet the
leifiAio fee
of Philip
Cedlthe '
Cm, b the
dertararioo.
•» the plea
ofWaUwyo
CeeU,ibe
fatron of the
other de-
ftodanc.
AUedgea
^t Philip .
Cecil being
lelfed ia
tail, anoo '
S Adfitf R.
kviedafiDC
with proi»
*rheword
vicarage it
mtiotht
Easter Term, 4 G^o. III. 1764*
of which grant the faid Roiert Wheeler became and was pof-
feiled of the advowibn of the church foir the then firft and next
vacancy thereofi in cafe the fame happened to beconne vacant
in the lifetime of the faid Waltsvjn CecUj\ and the faid ReBert
Wheeler being fo thereof poffeiTed, the church became vacant ia
the lifetime of the faid Wallwyn Cecil by the refignation of the
faid Richard Reece the yotingeri which faid vacancy of the church
was the firft and tjext vacancy thereof after the faid grant to the
faid Rciert Wheeler by the faid Wallwyfi Cecil made as aforefaid ^
whereupon Roiert Wheeler^ by virtue of the faid grant, prefcnted
to the church fo vacant the (aid Wallnmn Cecil his cierlr, who
thereupon was admitted, inftituted, and induced in the time
of peace in the time of George the Seconci, King of Great Bri*
tain^ &c. and the church afterwards became vacant by the re-
fignation of the faid Walltvyn Cecil i and the faid WaUtayn Cecil
being fo feifed of the advowfon as in grofs by itfelf as of fee-tall
and right as aforefaid, he prefented to the church fo vacant by
the refignation of himfelf the faid John Davis his cierL, who
thereupon was admitted, tnftituted, and induced into the fam^»
and long before the fuing out of the oiiginal writ of the faid
Jamee W'allwyn was and yet is parfon of the fame church im-
parfoned in the fame on the faid prefentation of the faid Wallwjn
Cecil ; without thi/j that the faid Philip Cecil the fon in the faid
declaration named was feifed of the faid advowfon of the vicar-
age aforefaid as of fee and right in manner and form as the faid
James Wallwyn hath above alledged'; and this the faid John
Davis is ready to verify ; wherefore he prays judgment if the faid
James Wallwyn ought to have his faid adlion againft him, (sV.
G. Nares^
The plaintiff imparls from Trinity \*j6% till Michaelmas 17611
from Michaelmas till Hilary terni 1 763, 3 Geo* 3. and then the
plaintiff replies as follows :
And the faid James Wallnvyn as to the plea of the faid Wallwyn
Cecil fays, that by reason of any therein alledged, he ought not
to be barred frbm having his a£tion againft him, becaufe he fays,
that after the fuiTcring of the faid recovery in the fame plea
mentioned, and after the death of the faid Philip Cecil the eld^i
the faid Pklip Cecil the younger, then being the heir*at*law of
the faid Philtp Cecil the elder, and then being feifed in fee- tail
of the advowfon of the faid church, a certain j^ne with prodama^
tiofiSf according to the form of the ftatute in that cafie made and
provided, was levied in the court of the Ladv Ann^ late queen
of England^ £f c* of the Benchj here, from the day of the Hiotf
Trinity in three weeks in the fifth year of her reign, before
Thomas Trevor, &c. juftices of the fame Bench and others^
(ffc. between John try/l cfq. and William Povxll efq, plain-
tiflfi^ 9fiA the fsu4 Pl^lip Cecil the younger^ deforcient (amongft.
other
Easter Term, 4 Geo. III. 1764^ 339
6tlier things) of tieadvowfon rfthefaidfhurehrfShmfrethi where*
of a plea of covenant was furomoned between them in the fame
court, that is to fay» that the faid PhlHp Cecil the younger, did
acknowledge the faid advowfon to be the right of the faid Johni^
as that which the faid John and William then had of the gift of
the faid Plnlip^ and he remifed and quit-cbimed the fame front
himfelf and his heirs to the faid J^bn and WWiam^ and the heirs
of the UiA John for eyer ; and moreover the faid Philip granted
for himfelf and his heirS) that they would warrant to the faid
Jdfa and William^ and the heirs of the faid John^ the. adrowfon
aforefaid, againft him the faid Philip and his heirs for ever ; and
for that acknowledgment, remiffion, quit-claimi warranty, fine^
and agreement, the faid John and William gave to the faid PImUp
900 pounds fterling ; which faid 6ne fo levied was engrofledy
and was afterwards folemnly read and proclaimed in we faid
court of the Bench, according'to the form of thfcftatute in that
cafe made and provided, in manner and at the times following,
that is to fay, the firft proclamation thereof, and thereupon made,
was made on the 1 2th <iay of JuU in the term of the Holy Trinitf
in the 5 th year of the reign of the faid late queen i the fecond
proclamation thereof^ and thereupon made, was made on the
i^b day of Novemher in the term of Saint Michael in the faid
fifth year of the reign of the faid late queen i the third procla-
mation thereof, and thereupon made, was made on the 3d day
of February in the term of Su Hilary in the 5th year of the reign
of the (aid late queen $ and the fourth proclamation thereof, and
thereupon made, was made on the ad day of May in the term of
Eafter in the 6th year of the reign of the faid late^queen, as by the
faid £ne and proclamations thereupon made, now remaining of
record in the faid court of Bench at Weftminjler^ may more fully,
appear \ which faid fine fo had and levied as aforefaid, was had
and levied to the ufe of the faid Philip Cecil and his heirs ; by wbaeWW
virtue of which faid fine, and by forcq of the ftatute for tranl^ became M*
ferringof ufesinto pofieiBon, the faid Philip Cecil the fon be- ^^^^^^^
came and was feifed of the faid advowfon as of fee and right} nlikiogtlit
and being fo feifed thereof did grant the faid adyowfon, in man- in^tarc is
ner and form as in and by the faid declaration is above alledged y ||^^*2J^
and the faid James Wallnvyn further fays, thatjio entry, claim/ t^*cbe
or a&ion was ever made pr brought in due time, or at anytime itrmofiooo
whatfoever by the faid WHliom Powell and Walter Cecil, or cither J^^
of them, or any perfon or per fons whatfoever claiming under them, umA he
or either of them, to avoid the faid fine, and that by reafon of the ^^^t oTm* ,
laid premifes, the faid term became and was barred and of no ^^|^
eftfti and this the faid James Walltuyn is ready to verify } |mc,*<.
wherefore he prays judgment, and a writ to tlxe bi(h9p, isfc.
togedier with his damages, on occafion of the faid impediment^
' ta be adjudj^ed to him, C9V.
joMU Biwti%
^4o EAjtrERTtitM, 4£3rf«IIL i7<$4.
Rcplitttioa Aai Ae bid Jmir WaHtvy/tf as to die faid pica of tbe iatd
to rile b- a^ Davis bj him above pleaded^ as fae£ote favs, thai the faid
pi^ uku ^^# P^^ "> ^< ^^'^ declaratioa above named, vaa fdred of the
IflTucon the' faid advowibn of thip vicarage afore£iid, as of fee jtod right io
^^^^ manner and form as the (aid JanUs Wallwyn hatdi above aUcdged;
and this the fdiid Jama prays may be inijuired of by the coontry.
Janus HnmtU
Denwrer to Aod .the faid JFoHtppt Cecily as io the plea of James Wallvf^
tiff's K^i- ^^^ pleaded in reply to the faid plea of the (aid IFaUwju Cecily
cation to ' f&y^f that tbe fame replication, and the matters dierein contained)
patioa*tplea. are infufftcicnt in lav for the faid James WaUtoyn to matntaia
his faid aAion againd him the faid Wallwyi Cecily and that he
the £iid U^aikuyn Cecil needs no^ to anfwer the faid replication fo
fleaded as «£orefaid ; ^ind this the faid Watlwym Cecd is ready t9
.verify ; wherefore for want of a fufficient replication in this be-
jialfy the fatd Wailwyn Cecil prays judgment, and that the faid
James Wall'wyn may be barred from mainuining hjs faid s^ioo
iRCttmbeat againft him, Isfc. ; and as to the plea of the afbrefaid Jams
j^Mjoin* Wallvyin by him abov* in reply pleaded to the plea of the /aid
John Davis^ and whereof the f»d James Wallvim putff himfelf
* Aipon die country, he the faid Jdsn Davis does ta iOtewiCr.
G. Nora.
llie plaintiff imparls till Ea/ler term t763> and then joins in
idemurrer.
T^pW*. And the faid James Wailwyn fays, for that he has above by
U>^ '^ i^^plyiog alledged fufficient matter in the law for him the faid
aves'JFallwyn to have and maintain his faid a£Uon againft the
WalLwyn Cecil zxkd John Davis ^ which the bXA James WaUr
piifff b ready to verify ; wJnch matter the faid If^fuyn Cecil
doth not deny, nor any ways anfwer thereto, but enrirely ze«
iiifeth to admit the verifying thereof, -the faid James WaUvsfsn
}iefore forays jodgment, and a writ to the biftop, CsV. .together
^rith his damages^ on occafion of the iaid impediment to be adr
Civia aa- Judged to him, \ife. (James Hrwist.) And becanfe the juftioes
^itetTuit. 1^^ ^'ii gj^id* themfelves of and concerning the ptemifesy
• whereof the fa^d James Wailwyn and Wailwyn CeeU have put
khemfehrcs upon me judgment of the court here^ before they
l^ve judgiooent thereon, a day is-jdierefore given to \lm iatd pv-
^mSft m ities here, until ihn morrow of the HJy TrimSy^ hecaufe dtf faid
u2 MTont i"^^* ^^ ^^ 1^^ adviiied, fsfc and as well to trf the lai^ ifiu^
toMHi!!ir««f abovcjoinedto be tried by tbe couqtry^. as to inquioe what ^^
fuDMgti If niagcs the (aid Jasnes Wailwyn ^atfa fufts^ned hy jceafiooi of the
^tiutnOff P<^<^°^>^<^ ^ and conoeroiog which tjie £ud James WaUv^ and
fin the de. Wailwyn Cecil have put themfeives upe^thc j9dgmipnt.0f.die
Goua hctt, if it (hall happen that judgment thereon* (hall be
i^i^n for the* faid James Wailwyn s therefore the (beriff is eom-
ti manded
Easter -Tj&RM, /^C^o. III. 1764. 841
fn2tied that he caofc to come here twelve, (sft-. by whom^ is^c*
and who neither, (5V. to recognize, i:fc. becaufc as well, Uf^-.
This cafe was twice argued at ihe bar, the firft time in Trinity
term laft, by Serjeant //irw/// for the plaintifF, and Serjeant Nares
for the defendants : the fecond time by Serjeant BurJoiid for the
plaintiff, and Serjeant Affinal for the defendants.
To (hew the pl.untiff's title, the declaration fets forth, that Th« pMn.
nUlp CecU on the 24th of December 1706, being fcifed in fee of h*'d,,tl^^l''
the advowfon of the vicarage of the church of Shenfretb in grofs, tion ftortiy
as of fee and right by deed of that date, upon his marriage, fct- ft*»^i
tied the fame to the ufe of himfelf for 99 years, if he (hould fo
long live, remainder to trudees to prefcrve contingent remain* .
ders, remainder to John Kyrle and the plaintiff Jumcs JFalhvyn
for 500 years, remainder in ftrift fettlement ; that the marriage
was had, and Philip Cm7 thereby became poffeflcd of theadvow-
fon for the tefm of 99 years, and on the ift of June 1724 (the
church being then full) granted the next turn to John Stephens^
who upon the next vacancy prefentcd his clerk JVfliiam Stephens j
that afterwards on the itt of Ocfober 1 731, the church being full
of WlUiafA^Stephensj Philip Cecil died fo poffefled, and John Kyrle
died, whereby James W'allwyn (the plaintiff) by furvivorfliip
became poffeffed of the term of 500 years, and upon the death
of U^il/iam Stephens^ prefented Richard Reece the elder,, upon
whofe refignation he prefented Richard Reece the younger, upon
whofc refignation, one Robert Wheeler by ufurpation prcfcntc^l
Walhujn Cecs/f one of the defendants, who has refigned, and that
the church is now void, and it belongs to the plaintiff to prefent.
The defendant JFa/lwyn Cecil fets up a prior title, 'and pleads '^Wch *• re-
thatPi5/7/>Cr«Vfenior, the fatherof i'Zi/;> CrnVin the declara- ^"j^^nd.
tion, in Hilary term in the roth year of King Williifmr fuffcred ant Waii-
a common recovery of this advowfon (^moiig other tilings) with '^J^V ^/''
triple voucher (wherein Phi/ip Cecil the father was vouchcil, who up^'^pj^//
vouched Philip Cecil the fon) to the ufe of William PqiucU and lermoficoa
Walter Cecil for the term of 1 000 years^ which term was fub- j^V^.?*'*
lifting before and at the time of the making the deed of mar- " * **
riagc-fettlement, and is flill fubfifting and unexpired \ by reafon
whereof nothing in the aHvowfon ever paffed. by the deed of
marriage-jetclement, into the poffeflion of Kyrle and the plaintiff
James Wallwyn.
The plaintiff's title in the declaration being rebutted by this PhJntiffre.
plea, the plaintiff in anfwcr thereto replies that after the fuffer- ^*'"**"^
ing the recovery in the plea, and after the death 01 Phtltp Cecil the or claim
elder, the iaid Philip Cecil the younger, then being his heir at ma^c »
law, and then being fcifed in fee-tail of the advotvfon, levied a J^y,'thl{^^^^^
fine of the advowfon ojt)^ church of Skenfrcth wherein he was of xoco
Vox.. !!• R conufor, y«" »»
cbercbf
t/^t EasteH T£ftM, 4^^d.in. 1754.
conilfof , to the ufe of himfelf and his heirs ; by virtue of which
fine and the ftatute of ufes Philip Cecil the younger became
feifed in fee of the advowfon ; and being fo feifed^ made the
marrtage^fettlemcnt in the declaration, and thai no entry or claim
by the faid fTHHam Powell and IValter Cecil or either of them,
or by any other perfon whatfoevcr, claiming under them, or either
of themj was m^de to avoid the faid fine, and therefore the term
of 1000 years is barred and of no effefl. To this, the defend-
ant JFallwjn Cecil loA demurred, and the plaintiffhas joined in
demurrer.
The general que(tion made in this cafe was, upon both the
arguments, Whether a fine of an advowfon in grofs with pro«
clamations, and non-entry or claim, will bar a term of years?
But as the court at laft did not determine this queftion, it is not
neceflary to fct down the arguments, but only the judgment of
the <^ourt after time taken to conGder, which was given this term.
Cwr/tf— It was admitted by the defendant's counfel on the outfct
of the argument, that a fine of lands with proclamations, accord-
ing to ihejaf. 4 H. 7. c. 24. and five years pafied without entry or
claim, will bar the IcfTee for years. 5 Rep. Saffjfn*^ cafe, Crs.
Jac. do. S.C. I Lev. 27GL Freeman v. Barnest Croi Qir. 110.
Jfi^m V. Morris. Carth. 100. Smith v. Pearce* But this is only
in the cafe of lands where the leflee for years is oofted ; for no
fine (hall bar any but thofe who are out of poflellion, and whofe
cftate is turned to a right, according to Margaret Padgetts cafe,
5 Rep. 105. i. If leffec for years is oufted, and he in reverfioa
difieifed, and the difleifor levies a fine with proclamations, and
five years pafc, as well the leffor as icffec arc barred by their ncn-
claim, and the leffor ftall not have five years after the Icafe for
years expired ; fo if a copyholder for life or in fee be oufted, and
the lord dineifed, and the difleifor levies a fine with proclama-
tions and five years pafs, as well the lord as the copyholder arc
barred ; and the lord in fuch cafe (hall not have five years after
the death of the copyholder for life. T/ie difference arifes froni
the words of the two favings in the /at. 4 //I 7. The firft favinf
. extends to thofe who have prefent right, and therefore the five
years begin to run from the time the fine was levied, becaufc
they might enter or bring their aflion immediately. The fecood
faving extends to thofe who, at the time of the fine levied, can-
not immediately have an a£lion, or make an entry, and therefore
they ihall have five years after their aflion, right, title, ^c. firft
accrues. But the cafe at bar is not the cafeof a fine of lan(!s,or
of an advowfon appendant to a manor, but of an advowfon of a
vicarage of a church in grofs by itfelf, which, at the time of the
fine levied, appears by the pleadings to be in the poflcflion 01
William PowjU and Walter Cecil for a then and prefent ftiH f«!^
fifting long term of years, which has never been, dcvcflcd cr
turned
tASTEfe TeRMj 4,CfO. ill. 1764; 443
turned to a right ; for none of the parties to the fine, at the tlm<i
of the levying thereof, had any thing in this advowfon; at that
lime Pkilip Cecil the cortufor in the fine had neVcr preftnted tb ,
the church, nor did his grantee prefent till 25 years afterwards,
and the conufees arc mere ftrangcrs. It %Vas infided for the de-
fendants, that an cilate in ati advowfon in grofs could not be Ae^
veiled or turned to a right ; and that if it could, yet no fitie can be
levied of it, and if it could, yet no entry orxlaim could be made
within five years after the fine levied, for the church nvas full at
the time of the fine, and continued full for above 20 years, as ap-
f ears upon this record: to which 2 Ro/i. Abr. 352. pL 10. was
ited in anfwer, to (hew that a fine it^ay be levied of an advowfon
in grofa : and Phwd. 435. a claim may be made at the church*
It is certain that a fine bars nothing that is not devefted or turned
to a right. It is flrange there is nothing in all the books to (hew
whether a fine with proclamations, according to the Jiat, //. 7.
will bar a right to an aclvowfon in grofi ; but whether it will or will
not, we have now no ocgifion to determine in this cafe, for it ap-
pears mod clearly that the parties to the fine at the time of the Th^ fing't
levying thereof had nothing in the advowfon ; and therefore upon ^^jlj^t^^^/*'*
that Gngle point we are all of opinion, that the plaintifi^ has no course ga»«
title, and judgment mud be for the defendant. jtidgmeot*
Notf: Many cafes wete cited on both fides; bi;t as none of
them arc applicable to the point upon which the court gave judg-
nient, it would be perplexing the reader to fet them down bere^
Mather ijer/its Brinken C B.
I T Was moved oti the behalf of the defcndsTrit to fct afiJe a ver«» Thoog^ the
* did for the plaintifF without defence at the trial, becaufc the nrutoruvcr-
paper-book of the iflue delivered and paid for, varied from the ftomiht r«-.
tecord of nifiprius in this, v/a. in the iffue delivered in the begin- cord pf riti
ning of the declaration the plaintiff's name was jfames, but in P""»« *''^
the record of njfi prius it wzs John, which was the plaintiff's '^^^^^^'[jjgj
right name j and in the ifTue delivered, in that part where the
breach Is afligned, it was, not regarding his promifes, &cc. but in
the record of njfiprJus it Was regarding hisprotni/es, ike. the word
net being omitted.
C«rw— This IS a mere vitium ckrici, and could not poffibly
prejudice the defetidant at the trial ; atid the cafe in 2 Btra. 1131.
is a ftrongcr cafe ; fo the rule to flicw caufc why the verdict
fliould not be fet afide was difchargcd.
Viz
a44 EasterTerm, 4G^^, IIL 1764.
Arthur Beard more, an Attorney, - Flaintifi',
verfus
Nathan Carrington, James Watfon,!
ThomasArdran,and Robert Bhick- [p. r 1
more, four of the King's Meflen- \
gers in ordinary, " - J
A new tnal »Tp HIS was an a£tion of trefpafs and falfc imprifontnent : the
il^n'abt plaintiflF declared, that on the nth of Novemier 1762, the
of cnrfpafs defendants broke and entered his dwelling* houfe at London^ id
and impri- fhc parifli of 5/. Stephen Wal/iroake^ in the ward of Walihrookif
derTfecw- ^"^ Continued therein four hours, difturbed him in his poflfeffion,
taryofrtate** broke and forced open feveral doors of the rooms, and broke and
wnam, fpoiled the locks, bolts and bars thereof, and broke and forced
loooi da- ^P^** many boxes, chefts, bureaus, fcrutores, writing-dciks,
mages were drawers, and cupboards of the plaintiflF in his houfe, and the locks
given Tor fit thcrcof, and fearchcd and examined all the rooms in the houfe,
foflmMr' and all the boxes, i^c. fo broke open ; and read over, prycd into,
and the en- and examined all the privnte papers, books, letters, and corre-
*rL»^? P'«'n- fpondenccs of the plaititiff and his clients, whereby the fecrct and
and ftiXg P'^'vafc affairs, concerns, bufincffes, and circumftanccs of the
his booki plaintiff and his clients, became and were wrongfully difcover-
and papers, gj and made public ; and theti and there fcizcd, took, and catiicd
away 500 printed charts, and a great many other papers, primed
and written, (particularly mentioned,) and took and clofely im-
prifoned the plaintiff for nine months, whereby he was hindered
from following and tranfafling his lawful affairs and buGneis,
and was thereby put to great expences in his maintenance during
his imprifonment, and in obtaining his legal difcharge and re^
leafe therefrom, ag^inft the peace> i^c. to the damage of the
plaintiff 1 0,000 /•
The defendants pleaded firft Not guilty; and adly, by leave
of the oourt, as to the bre tking and entering the dwelUng-boufe,
continuing there, difturbing the plaintiff in his pofleffion, forcing
open the faid doors, forcing open the boxes, chefts, ^c. and ex*
amining his private papers, ^c^ and carrying away the goods, s^c.
and imprifoning the plaintiff and detaining him for fix days and
an half. They plead, that the plaintiff ought not to have his
a£liori againft them ; becaufe they fay, that l^forc the tiefpafe,
iic. was fuppofed to be committed, on the 6th of Nwemb^r 1762,
the Earl of Halifax was, and yet is, one of the lords of the king's
privy council, and one of his principal fecretaries of ftate, and
that he on the 6th of November 1762, made his warrant under
his hand and feal, dire£ted to the defendants, four of the king's
meffengers in ordinary, by which warrant the carl did^ in the
king's
Easter Term, ^Gco. III. 1764* 245
king's namCt authorize and require thein(the defendants), taking
a conftable to their aflidance, to make ftri£l and diligent fearch
for the faid Arthur Seardmore^ mentioned in the faid warrant to
be the author, or one concerned in the writing of feteral weekly
▼ery feditious papers, intitled, The Monitor or Britifh Freeholder^
Number 357, 7(?8. 360, 371. 37^. "378, 37Q» a"^ 38o;i^«A«,
printed fpr J» Wdfon and J. Fell in PaternoJler-RnVy which con-
tained grofs and fcandalous reflections and invedives upon his
majeily's government, and upon both houfes of parliament, and
him the faid Arthur Beardmore having found, to feize and ^ppre*
hend, and to bring him together with his books and papers in
fafe cuftody, before the faid Earl of Halifax^ to be examined '
concerning the premifes, and further dealt with a'ccording to
law, i!fc. That the faid warrant was, that day, delivered to the
defendants to be executed : that they took C. W. a conftablc to
their afliftance, and on the fame day in the declaration, they went
towards the phintiflF's houfe and found him near to it, and did
there feize and apprehend him by virtue of the warrant ; and
immediately on the fame day about 10 o'clock in the forenoon,
being the lime when, l^c, entered his dwelling-houfe, (the doof
being then open,) to fearch for , and feize the books, papers, £^r.
of iht plaintiff, and to bring them wich the, plaintiff, before the
£arl of Halifax^ according to the exigency of the warrant \ and fo
the defendants go on and juftify the trcfpafs aforefaid, and fay
they delivered the books, papers, ^c, to Love! Stanhope^ an affiVl-
ant of the Earl of Halifax^ and a juftice of peace for Wejiminjler^
to be examined; and that they kept the plaintiff in cuftody till
he gave bail for his appearance in the King's Bench tiie then
next term, to anfwer to fuch matters as ihould be objefied
a^ainft him, and then the defendants by order of the Earl of
Halifax difcharged ti>e plaintiff^ and they fay, that he was ne-
ceflarily put to expsnces by fuch detainer, which is the fame tref-
pafs complained, of- There is another juftification much to the
fame purpofc. The plaintiff replied de injuria fua propria^ where-
upon iffue was joined ^ aijd at the trial the jury were dire^ed to
aflefs damages under an idea that the frefpafs and imprifonment
committed under this warrant could not be juftified by any plea
whatfoever} and they found a yerdi^ for the plaintiff', and gave
him 1000/. damages.
It was moved by the King*s Serjeants that the verdift might
be fet afide for exceflivc damages. Upon (hewing caufe, the
Lord Chief Juftice ftated the fubftance of the evidence given at
the trial as follows : .
The plaintiff called his clerk David Merideth^ who proved that
on the I ith day of November 1762, he found all the defendants
in the plaintiff his mafter's houfe, and in the private office tl^ere^
opening the drawers and taking out papers \ that they demanded
R3 the
?45 Easter Term, 4 G^^, III. 1764.
the plaintiff's file of letters, and examined them back till the
year I759» defendant Carritigton then faid, << that was fuffi*
f « cicnt.'* Afterwards they went into the public office, and there
opened the deik, took out the books, and looked into the ledgers,
but did not break any deiks or drawers open, becaufe the plaiiltiff
ppened the fame for them j afterWfirds they took the plaintiff an4
this witncfs away in a coach. This witnefs proved, thtiit the
plaintiff was then concerned in a great many cnufes dependinfr,
gs an attorney ; that he fent for Mr. JVimbolt to manage lus
^ufinefs while he (hould remain in confinement ; that no violence
was offered to the perfon of the plaintiff, and that his wife wa$
permitted to be with him ; that this witnefs h?d a£lions depend-
ing againft the defendants and Lord Halifax; that the defend-^
^nts refufed to permit one Mr. Collet^ who Was a client of the
plaintiff, (o converfe privately with him about his buQnefs; that
while the plaintiff and this witnefs were confined in thehoule of
the defi^ndants, he (he plaintiff was fuffered to go Into any part
of the boufe, and after fix days imprifomnent, they were both
(iifcharged, ypon entering into recognisances to appear in the
King's Bench th(; then next term^ and for their good behavioar|
without paying any fees.
Mr. Colleti a client of the plaintiff, fworc that the plaintiff" was
concerned in fome caufcs for him at that time» and that he de?
fired to fpeak. with him in private about his buGnef^, but he
was refufed by the defendants to fpeak to the plaintiff privately,
^nd to \rrite down what he wanted to fay ; that pen and ink
were refufed to him, but the defendants told him he might fpeak
publicly to the plaintiff in the hearing of the defendants, if b^
pleafed. It was alfo proved, that the plaintiff was then refufed
jhe liberty of writing a letter to Mr. Alderman BeciJhrJ, one of
the members of parliament for the city of London This was
the fubilance of (he plainciff's evidence,
For the defendants, Lovel Stanhope efq. deputy fccrctary of
' flute, afiiftaiit to Lord Halifax^ was called, who fwore that his
f)u(iners was to look into, aqd examine all papers touching the
government ; that he took an oath oi^ office, and was to pay
obedience to the orders of the fecrctary of ftate : he fai(^, that on
thefe occafions when the mrffengers have a man in cullody, they
^ are not to do any thing without his orders; that Lord Hahfssc
prdered the phuntiff tq be bailed^, and that he was continued upon
' his recognizance from term to terra for fevcral tf^rms. It was
admitted on all fides at the trial, that ^here have been a grear
innny precedents of warrants of the like fort with the prefent for
fci'/ing perfpns and papers, \ic. and for all forts of crimes or
offences, let the offence be what it would : and this was th^
(ubllance of the defendants* evidence.
Eastek Tekm, ^Gco. hi. 1764^ 047
Fbr the defendants it wis faid» that for fix days and an half
ceufinement in a meflcnger's hoafe, where little or no injury had
been done cither to the plaintiff's perfon, houfe^ or goods, i ooo/.
were ezceflive and outragcons damages ; and that if the court faw^
that they were cxcefitve, they had power to ^rant, and would
grant a new trial, even in cafes of iort. It is faid the cafe of
WmJ and Gunfton^ Siyles^66. Mich. 1655, is the firft inftance of
granting a new trial ; but this feems to be a miftakcy for there
were new trials granted long before, as appears from this, iizs.
that it is a good challenge to a juryman to Tay that he hath been ^
a juror before in the • fame caufe. Per Holt C. J. 2 &alk. 648. •jvi/r; ThU
It is true that in Roe and Hawket^ i L<v. 97. it Is faid by Twifden ™^»**' ^»'*
Juftice,that the new trial in Wood and Gunjlon was not merely \^^^\l,^^l^
granted for exceflivencfs of damages, but for tampering with the de novo
jury ; but in i S/</. 131. and in a Mod. 15 1. it is faid that the new **"<*«!»
trial in Wood and Gunjlon was for exceffivenefs of damages \ tliat ^ui 'iJibe^
was an aflion for words, and is a cafe in point, that the court b4a.
has power to grant new trials in cafes of tort for cxceflTivc da-
mages* Suppofing new trials fird began in the reign oi Charits
the Firft, yet it appears from the year-books long before that time,
that courts of juiiice, (not having then come into granting new
trials,} when they faw reafon for it, either leflened or increafed the
damages, as they do in the cafe of maibem to this day, upon
view cf plaintiff's maibem and identifying his perfon ; and for
this purpofe thefe cafcs were cited from th^ yeaf-books, Mich^
21 Ed. I'foU I f • r. 10. which was a battery ; Mich. 3 Hen. 4.
JW 4» c. 16. Micb. 7 /T. 4« 3 1, ^. r* 15. in confpiracyi where the
plaintiff releafed part, or the court would have abrid|ed the da-
mages according to their confcience ; Eaftet^ 8 Bin. 4. foL 23.
i^. 9. the jufticc of 19^ /rill/ thought ^e damages too little, yet
ihey would not increafe them without feeing the maiiem s Mich*
19 H. 6. lo. t. e. a8. Trin. 2^ H.6, i. tf. c. 2. ; in debt, th«
parties were at iffue, and the jury found for the plaintiff damagea
6/. id. and cofts 2o/., the court, increafed the damages to
13/. 41/. more; Dyr to s> Po/w. 314. From' thefe ancient '
cafes it was argued, that courts of juftice have in all times con-
fidcrcd themfelves authorized to review the damages given by
juries in all kinds of anions, and either to abridge or increafo
them J and fincc that pradice. has been difufed, and abridging
damages bv the court has been looked upon as unconilitutional^
new trials have been granted for exceffivc damages.
Por the plaintiff it was faid, that new trials can onl]r be granted
in cafes where the court can clearly fee that the jury is mittaken»
or have miibehavcd themfelves ; ail the cafes of new trials tend
to prove, that where the court have no meafurc to dire£k them,
they cannot grant a new trial i there muft be fome infallibly
mark for them to go~ by, in the cafe ^ no two judges in the
' II ^ world
Easter Term, ^Geo. III. 1764.
world can agree what damages ought to be giren in the prefent
cafe, for damages here lie in fpecuhtion. That the mifconduCt
of jaries feems to have been the firft occafion of new trials. It
is faid new trials were firft introduced to prevent attaints; bat
an attaint would not lie in this cafe, for there is no poifibiUty of
pointing out how far the damages are exceflive or not. The
cafe in Styles 466. was not for exceflive damages, but for tam«
pering with the jury ; it was fa id in that cafe to be a packed
huftnefs i in the cafe of Lord Town/end for words, 2 Mod. 150.
the court faid they had no ground wheteby they could mcafurc
the damages, and refufed a new trial. Apt ^nA AJb^ Comi.^Sl'
is not to the purpofe : Lord Ho/t alked the jury upon what ground
they went, which they refufed to anfwer him, and fo were guilty
of a mifcondu£l.
Curia— Wc are called upon, on our oaths, to fay, whether
thefe are exceflive damagc^s or not, and ought to have very clear
evidence before us, before we can fay they arc exceflive. The
jury were dire£ted to aflefs damages for the plaintiff according to
the evidence given, under an idea that the defendants could not
by law juftify the trefpafs under this warrant by any manner of
plea whatfoever. It is clear that the pradice of granting new
trials is modern^ and that courts anciently never exercifed this
power, but in fome particular cafes they corrected the damages
from evidence laid before them. There is great difference be-
tween cafes of damages which be certainly feen, and fuch as are
ideal, as between affum^it^ trefpafs for goods ^ where the fum and
value may be. meafured, and a<&ions of* imprtfonment^ tiudkkus
frofecution^Jlander^ and other perfonal toriSf Where the damages are
matter of opinion, fpeculation, ideal ; there is alfo a di&rencc
between a principal vcrdift of a jury, and a writ of inquiry of
damages ; tl^e latter being only an inqueft t>f office to inform
the confcience of the court, and which they might have aflcffcd
themfelves without any inqueft at all : only in the cafe oinuuhnBi
courts have in all ages interpofed in that fingle inftanceonly:
as to the cafe of the writ of inquiry in the year-book of /f. 4«
we doubt whether what is faid by the court in that cafe be right,
7hat they would abridge the damages unlefs the plaintiff vmdd rt^
Uafe part thereof^ becaufe there is hot one cafe to be found in
the year-books where ever the court abridged the damages after
a principal verdicl, and this is clear down to the time of Paltner*$
Rep. 3 14. much Icfs have they interpofed in increafing damages,
except in the cafe of maihem; one fide fays no attiiint lies (in
cafes of tort) for exceflive damages ; the other fide fays it docs*
We give no opinion as to that point j but it is faid in an hundred
cafes in the books, that an attaint does lie. 'Sec 10 Rep. 119-
Lord Cheneyh cafct
All,
EASTBit Term, 4 Geo. IIT. i764« 349
All, or moil of the cafes of new trials, are where juries hare [
• mifdcmeaned thcmfchrcs contrary to their oath ; in the cafe in *TJ**.J'^
Btr/a 466. the mifconduft of the jury was certainly an ingredient, ^ufc'ifed ta
and fo it appears from thacafe in i JLev* 97. Some books fay it certifycoths
was a trial at bar, and it is highly probable there w^s Tome e?i- ^^^'^Vj*?
dence that the jury had been tampered with; and this was ^f, ^Jj^
certainly the very firft cafe of a new trial, and from that period . £i. 1S9.
the courts have cxercifcd the power of granting new trials in ^li*^'^'
feveral cafes ; as when the jury find contrary to the judge's styl? 4^V*
d!re£tion8 in point of law, when they find dire^ily contrary tp Moor 4519
the evidence,, (that is to fay) againft evidence all on one nde, ^^^^^
for if there' be evidence on both fides, the court never inter- UMchioioa,
pofe$ in that cafe ; as to grantfog the firft new trial in Sti/es 4di5« £>ftcr tem
there.is great reafon (as was faid before) to think it was for mif- l^^f'^'
behaviour in. the jury ; it was an a£lion for words; fo was the tbejudg-
the cafe of Lord Townfindt 2 Mod. 250. for words, and 4000/. m«ntBiinl
damages, where the court refufed to grant a new trial ; and if ^^^^JSe!
a court CDuM not fay that thofe damages were exceifive, they can Paiin. 315.
hardly fay that damages are exceflive in any cafe of flandcr what- Concerning
ever; and this caft has never been contradidled or denied to be "'^f*j^^J
Jaw. The cafe of ^and^, C^w^. 357, was plainly for the fte»H.P,C.
mifdemeanor of the jury in refufing to anfwer Uie judge when 3<>6» 307»
he alked what ground of reafon they went upon: to be fure q^u^
judges are to advife, but not to control juries ; and my Lord aio.cs.
HffU and the King's Bench did right, in granting a new trial ia
that cafe. In the cafe of Jf^iimot v. Berkley^ Trin. 3 1 tiT 32 G. 2*
B. R. which was ai) adion for criminal converfation, die jury
gave 500/. damaged againft the defendant, and upon affidavits
that he was only a clerk in low circumftances, and unable to
pav fo large a fum, it was moved for a new trial \ but the court
reCufed to grant even a rule to (hew caufe^ becaufe in cafes of
tori the jury are the only proper judges of the 'damages. We
are now come to the cafe in lo/rj. 691* Chambers y. Robin'
Jhn, which fcems to be the only. cafe where ever a new trial was
granted merely for the cxceffivcnefs of damages only : we arc
not fatisfied with the reafon given in that cafe, and think it of
no weight, and want to know the fafts upon which the court
could pronounce the damages to be exceflive. The principle on Markbam
which it was granted, mentionelin Strange^ was to give the de^ "- MWdie-
fendant a chance of another jury : this is a very bad reafon; for if ,^oea"*
it was not, it would be a reafon for a third and fourth trial, and B. R. p«r
voiild be digging up the conftitution by the roots ; and there- ?J"^ Jj*
fore we are free tcffay this cafe is not law ; and that there is not foU j^get*
one fingle cafe (that is law) in all the books to be found, where of the da-
the court has granted a new trial for exceifive damage^ in ac« ™^'^
iiQXii for torts^ loca.
%So ' Eastbr Term, ^Geo, III. 1764*
It wa» (Irongljr argued at the trial of this caafc^ that the jtirj
^ere to meafure the damages by what the defendant had fuf-
jfered by this trefpafs and fix days and an half imprifonment ;
but this was thought a grofs abfurdity by the judge who pre-
i^ded there*
We defire to be underftood that this court does not fay» or
Uy down any rule that there never can happen a cafe of fuch
exceflive damages in tort where the court may not grant a njew
trial } but in that cafe the damages muft be monftrous and enor-
mous indeed, and fuch as all mankind muft be ready to exclaim
a^ainft, at firft blu{b.
The nature of the trefpafs }n the prcfcnt cafe is joint and fc-
Terali and the plaintifF has ftill another adion againft Lord
Halifjx^-who, it is faid^ is more culpable than the defendants, who
are only fervants> and have done what he commanded them to
doj and therefore the damages are excelliv^ as to them : but we
think this is no topic of mitigation, and for any thing we know
■^"'s G*'* the jury might fay, «* We will make no difference between the
S^R. Smith '^ miniiler who executed, and the magiftrate who granted this
▼. Boucher. « illegal warrant j" fo the court muft confider thefe damages as
'»o/[n?rf- 8*^®" againft Lord Halifax: and can we fay that looo/. arc
^nipm/da. monftrous damages as againft him, ^ho has granted an illegal
stfge3 on a warrant to a meflenger who enters into a roan*s houfe, and prys
Ittiry '»ool. *°^^ ^^^ ^^* fecrct and private affairs, and carries Mm from his
Ikinoer houfe and bufincfs, and imprifpns him for fix days. It is an un-
mowti to fet lawful power affumed by a great minifter of ftate. Can any body
Mceffi?eda- ^^Y ^^*^ ^ guinca per dlan^\% fufficient damages in this extraor-
vi9get;but, dinary cafe, which concerns the liberty of every one of the
pw curiam, king's Aibje£ls ? We cannot lay the damages of icooA are
WryTw the ^normous 5 and therefore the rule to (hew caufc why a new trial
poper 9>ottld oot be ^rautcd muft be difcharged. Per totam cumm^
[ ^51 1
TRIN IT ¥• TERM,
4 Geo. III. 1764.
Grey vcr/us Jones, Executrix, &c. C. B.
THIS was zfcire facias again ft the defendant, to flicw caufc To* fdit
why the plaintiff Ihould not have execution of his debt J^JJi^
^nd damages recoyered by judgment of the court aj^ainft her wb'ypijuoiur
t^ftator} the defendant pleaded, that the plaintiff ought not to AottMooc
have his anion againft her, bccaufe (he fays, that (he the defend- ^^^
ant, after the recovery of the judgment, and before the fuing judgment,
Jforth the writ of fcire facias^ to wit, on the firft day of OBoher in **« defend-
the year of our Lord 1 763, at K. in the county of S., paid to the JJat'lISntar
plaintiff the debt and damages in fotm aforefaid recovered ; and ought not to
this (he is ready to verify \ wherefore flie prays judgment if the 'f^.^j^'
plaintiff ought to have his faid aftion againft her, lie. The of^,^htMt
plaintiff demurred, and the defendant joined in demurrer. It to have exe-
was objeded for the plaintiff, that the plea was bad, in allcdging *^®"» "?
that the plaintiff ought not to have his a^ion^ &c. for that zfcire *"*'*
facias quare exccuiio non^ &c, is not an aBion. To this it was an-
fwered for the defendant, that a releafe of all anions will bar ^fcire
facias upon a judgment, i Inft. 190. b. That all writs, whether
original OTjuaicial, which require an anfwer by way of plea, are
properly aiElions or fuits. 2 Sa/l. 603. 2 Infi, comment oa
fat. Wejlm. a, ۥ 4 J. hfcin facias to repeal a patent is an ori-
jginal a£lion.
Cirritf— This plea is a little informal. The old way of plead-
ing was for the defendant to fay, that the plaintiff ought not to
have fxecutiofit &c. by virtue of the recovery aforefaid, becaufe,
i^c. ; but as we muft take this plea to be true, and not a (ham
pka, we will fupport it if poffible. Lord Coke fays, that albeit a
Jcire faAas be a judicial writ, yet becaufe the defendant may
thereupon plead» ihh fcire facias is accounted in law to be in na<v
ture of an a£lion, and therefore a releafe of all anions is a good
)>ar of the fame. C^. Lit. 290. b. Wherever a wr^t requires a
S pi«i
25« Trinity Term, 4 Geo. III. 1764.
plea, it 18 an a£bion ; and though a plea be informal in its con-
cluGon> or beginning, yet if it prays a right judgment, courts
have always rejected the informal words, and given judgments
according to the right and merits of the caufe. So the plaintiff
moved for leave to withdraw his demurrer on payment of cofts,
and to reply de novoj which was granted.
lat rttie
■ibult and
tattery
200 1. da-
jnages not
aod a new
Ciialwaa
reliiicd.
Grey agalnft Sir Alexander Grant, Bart« a Member
of Parliament, C. B.
^ HIS was an a£tion of aflault and battery, tried at GulldhaOj
^ London^ wherein the jury gave a verdift for the plaintiff, and
200/. damages; and now it was moved to have the verdi^ fct
afide, and a new trial, for exceOiveneff of damages. The cafe
upon the evidence was as follows :
Captain Holland of the (hip Nanev\ having brought from the
Wefi^Indies a turtle for the plaintiff Mr. Grey^ and which was his
property, and it having^ been, by miftake, delivered to the de-
fendant, the plaintiff went to him and demanded it of him \ bat
he faid he had invited fome friends to dine with him upon it,
and refufed to deliver it, or to pay for it, and that the plaintiff
might take his remedy ; and pointing at the plaintiff", faid, << If
^< that man was |d a(k a turtle of me I would give him one."
The plaintiff an fwered and faid, this is very ungenteel ; and the
defendant flioved the plaintiff out of his houfe with his elbo)^,
who thereupon alked the defendant if he would waive his privi-
lege of parliament, but the defendant refufed to do it; plaintiff
then Taid to him, ^ You are afcoundrel;" and defendant gave him
a blow upon the face, which caufcd a black eye : the plaintiff alfo
demanded the turtle by a letter, and required the defendant to
reftore it : Captain Holland alfa informed the defendant that the
turtle had been delivered to him by millake, and deCred him to
leftore it; but the defendant faid, *« A turtle 1 hai}e got^anJ what
«* / have got I will hep** The captain told the defendant, if he
wanted a turtle to ehtcrtain his friends, there was one then at
the Jamaica coffee-houfe to be fold, and he might buy that: the
defendant anfwered, «* You may buy it yourfelf, I will keep/^j/
^ I have got/'- Then the plaintiff faid to the defendant again,
<< I come here to demand my right, and if you will not give it
** nac I will take my remedy at law, if you will waive yourpri-
«* vilegc." The defendant, anfwered and faid, *' In fuch a
<* trifling buGoefs as this I will not waive my privilege, but in a
•< matter of property I vrould waive it." One Falconer was called
as a witnefs to prove he was prefent at this difpute, and could not
remember that any blow was' ftruck by the defendant ; be had
forgot every thing which made in favour of the plaintiff, but re-
membered
Trinity Term, 4^^^- m« ^7^4^ «5J
fiaembered. every thing which made for tht defendant; fo It was
a meafuring caft whether a blow was ftruck or not } however^
the jurjr found for the plaintiffi and 200/. damages.
Curia — ^This was a quarrel between two gentlemeni and has
been properly tried by a fpecial jury of merchants of Lahdott^
who are the proper judges' of the damages; when* a blow ia
given by one gentleman to another^ a" challenge and death may
enfue, and therefore the jury have done right in gifing exem-
plary jlamages ; the plaintiff has been ufed unlike a gentteoMa
by tne defendant i(i ftriking himi withholding his property, and
infifting upon his privilege, all of them tending to provoke him
to feek his revenge . in another way than by law^ and therefore
we think the damages are not exceilive. Rule to ihew caufe
why, a new trial fhould not be bad diicharged/^ toiam curiam*
MICHAELMAS TERM,
5 Geo. III. 1764.
Cox veffus Rolr. C, B.
THIS was a fpec'ul aftion upon the cafe dgalnft the defend- Prsaiee.
ant for deflowering the plaintiff's dJiughtcr per qUod fif" l^r^^
viiium amtfit ; the defendant having pleaded the general iffue, ^^^^t « de-
now moved for leave to withdraw that plea, and to plead the fendmt t«
fame plea again, together with the plea of the ftatufe of litaita- "J^^^^ft^'*'
tions i upon an affidavit made by the defendant's attorney, that mteof u*^
at the time when he was bound to plead by the rule of the court, mititioo*.
and then pletided the gcneraf iflTue only, he was not fuUy in* .
ftru£ied by his client what to plead \ and upon citing a fimilar
cafe in B. R. of File v. Barry^ wherein that court permitted /A//, .
upon an affidavit made by the very fame attorney, that he waa
preffed for a plea, and was obliged to plead before he was ill-
ftruaed, and tKerefore pleaded the g«ticnil UTut to pfevcfit
judgment.
Upon
254 Michaelmas Term^ 5 Geo. IIL 1764.
Upon (hewing caufe It was infilled fof the plaintiff, that the
general rule of ^th the courts of B. R. and C. B. is to permit a
defendant to withdraw a fpecial plea, and plead the general
iflue, but not vicS verfd s and many cafes were cited to (hew
this to be the pra£lice, which was agreed to be fo by the court -,
and it was faid that in the cafe of Vile v. Barry tne attorney
was furprifed, not inftruAed, and pleaded the general iffue to
prevent judgment j and for that reafon the court of King's Bench
deviated from the general pra£lice in that particular cafe ; but
here the affidavit made by the fdme attorney does not go fo far,
and therefore the rule ought to be difcharged*
Curia— It is a good maxim» that the law will tather fuffer t
particular mifchief than a general inconvenience ; general rules
of practice muft be ftridly obferved for the fake of certainty, or
pra&ifers will be negligent. Indeed, under very fpecial circum*
ftances, the court will permit a defendant to add a fpecial pica;
in a late cafe of public concern, the defendant being advifed by
hiscounfel that he might give the fecretary of ftate's warrant in
evidence upon the plea of the general iffue, pleaded that plea
only } the judge before whom that caufe was tried, having beea
of a contrary opinion^ it was afterwards moved in a (imilar cafe
of Wilhit V. Webb^ to withdraw the eeneral iffue, and plead the
lame plea again, and a fpecial juftification under the fecretary
of Hate's warrant, which was allowed by the whole court; the
defendant, at the time of pleading the general iffue only, being
ill advifed by his counfel, and not knowing then the opinion
of the judge who tried the former (imilar caufe ; befides, that
fpecial plea was allowed to try the real merits of the cafe, but
the plea of the (bitute of limitations is not to be favoured, be-
caufe it excludes the merits ; the court gives leave to add a plea
for the furtherance of juftice, but to permit this plea of the
ftatute of limitations would not be fo. The rule was dif-
charged per totam curiam. Serjeant Hewitt and Davy for the
dcfcpdant^ Serjeant Burland for the plaintiff.
Firebrafs, on the D^mife of Jane Sjrmcs, Widow,
verfus Pennant. C. B.
tU^mktS 17 JECTMENT of lands in the county of Sotmr/et, tried at the
]}^^^ • a(Ezes, i yipril 1763; verdift for the plaintiff, fubicft to
^12^^^ the opinion of the court upon this cafe ; which ftates, that the
lands to liU preipifes in queftion are parcel of the manor of the xc&otj of
^^'"■••' CamfUn Martin in the county of Somer/et, and have been held
voii.^ " : by copy of court-roll of that manor time out of mind, of which
manor the reftor of the fame rc£lory for the time being is the
lord.
Michaelmas Term, s^eoAlL 1764. 2S5
That the Reverend William Sytms clerk, on the 20th of Fe^
hruarf j 7269 was re£lor of the fatd reAory, and lord of the ma-
nor of the fame re£tory ; that the premifes in queflion, being in
the hands of the (aid WiUiam Sjmes the lord upon the death of
the lad tenant thereof, as redor of the faid rcfkorj, and lord of
the manor, did, on the 20th o( February 1726, demife the pre-
mifes in qaeftion to the leflbr of the plaintiff Jaae Symes^ by
copy of court-roll} to hold to the faid Jam Symes^ Richard
Syma^ and Cbriftian Symes, for the term of their lives, and the
life of the longeft liver of them fttccelBvely, according to the
. cuftom of the faid manor, as they were named in the faid copy.
That at the time of the demife to the faid jfane Symes^ (he was
the wife of the faid William Synus lord of tne manor ; that the
faid William Symes died in the year 1756, and that the defend-
ant upon his death became, and ftill is, re£lor of the faid redory
and lord of the manor, and thereupon entered into the premifes
in queftion, and is in pofleilion thereof.
The queftion is, Whether the demife by copy of the court-
roll, by a lord of a manor to his wifc> be good in law or not ?
This cafe was argued twice at the bar \ and being quite new,
no authority could be cited to (hew, whether the grant of this
copyhold immediately from the hufband (lord of the manor) to
his wife was good or bad ; nor did it appeiir to the court, that
there was ever any fuch cuftom in tbisy or any other manoV, for
a lord to -grant lands by copy of court- roll to his wife imme*
diately, without the intervention of a third perfon, and there^
fore it would be nugatory to fet down the cafes cited by the coun-
fel who argued; for the court cited no cafe that I heard.
Ct/rx0<— As this was a provifion by a hu(band for his wife, we
(hould be glad (if po(&bIe} to get over that maxim in law, <* that
*' a hufband and wife are oneperfmi* and therefore cannot grant
lands to one another ; fo where there is no particular cuftom in a
manor, the common law muft take place} this is an original
voluntary grant by the huiband to the wife, who cannot by law
take immediately from him, any more than a monk Who is dead
in law, and confidered as no perfon ; fo here is np perfon to
take, for the wife and hu(band are only one perfon. We are
dealing with a fundamental maxim of the common law, and
might as well repeal the firft fcdion of Littleton^ as determine
this grant from the hufliand immediately to the wife to be good,
and where there is not fo much as the (hadow of a perfon inter-
vening. The pofiea was ordered to be delivered to the defendant>
. reluRante iota curia.
oftbefaa.
As6 MicnAELiiAsTttM^ S^oAlh 1764ft
AVilkes, Efq* againft The Earl of Halifax.
Tbetirteaf ^r»HE plurief di/lringas to compel the carl to enter his appeaf*
So^BMdT" ^^^^ ^^ returnable on the morrow of Saint Martin in this
agitcibie term ; who then appeared, after having delayed the plaintiff by
5Jk!^* cffoining and privilege of parliament for feveral terms, whcrc-
^"^' upon the plaintiff declared of this term of Saint Michael gene-
rally, which is conCdered by relation as a declaration of the
firft day of the term in law. During the delay in this canfe,
and before the earl could be compelled to appear,* Mn WHies
was outlawed upon an information filed by the attorney or foli-»
citor-general, and therefore the defendant wanted to plead xhA
outlawry in abatement, which, being a dilatory plea, muft be
pleaded within four days from the time of the filing the declara-
tion, or it cannot be pleaded at all ; and if the declaration is to
be confidered as of the firft day of the term, (which it feems it
is in point of law,) then the defendant was too late to plead this
dilatory, and it cannot now be received ; and therefore it was
moved on the part of the defendant, that the plaintiff might be
obliged to intitte his declaration, <* Of the morrow of Smnt
<< Martin in the term of Saint Michael in the 5th year of the
*< king,*' according to the truth of the cafe i for the earl did
not appear till that day, and before he Was in court the plaintiff
could not declare againft him*
Upon (hewing caufe, it was faid for .the plaintiff, that the
intitling his declaration as he has done, of the term generally, is
not erroneous, and therefore he has a right to intirle it in this
'manner j that the court pays great regatd to legal fiftions. The
plaintiff died the firft of December^ judgment was entered -the
6th, and held good by relation, a Barnes 205. The defendant
Jied the 1 ;jth of Tvirt/^ry, the judgment figned the aiftheld
good. 2 Barnes 208. and S. P. 209. defendant died 20th of
jtprily on the 2 1 ft of April application was made on an affidavit
from Effex (fworn 19th of Jpril) for leave to enter up judgment
on an old warrant of attorney, a rule was made, and judgment
was figned the 2 1 ft of JpriL 2 Barnes 2 1 2. That the defendant
here having delayed, the plaintiff is noc entitled to favour, and
if he hs^d doi^ as he ought to have done^ he would have been hi
court four terms ago.
For the defendant it was faid, that they did not afk this as a
favour, but that the court would order the records to be made
and entered according to the truth of the fadls in the proceed^
* ingr, and they have often done this. 2 Barnes 271. That the
plaintiff who is an outlawed perfon is no more entitled to be
favoured than the defendant } the words in the titles of decbra-
tioos
Michaelmas Term, 5 Geo. IIL lySi^ %S7
tions are the words of the courts and thcf will fee that they are
true according to the z€t done in court, i Barnes. lo.
Ci/m— The defendant does not a(k this alteration to be made
in the title of the plaintiff's declaration as a matter of favour,
but of right; and if he has that right, we are bound Wr <2rjirtf
ju/Hiia to make this rule abfotute. Can it be faid that the de-*
fendant has forfeited his right of pleading in abatement^ of an j
dilatory^ when four days are not p;)fled fince he was in courtf and
before that time the plaintiff could not, by law, declare againft
hioiy and the defendant may plead whatever plea he pleafes ;
therefore the rule mad be made abfolute, and the tirie of the
declaration, according to the truth, and fiflions in law (hall never
do injullicei for iu fi^ne juris femper eft afuiias.
£ ASTER TERM,
sGio. IIL 1 765,
■as
o
Smyth ver/iis Reynolds. C. B*
TROVER for i ;o calks of butter. Upon Not guilty, there Then h no
was avverdift for the plaintiff, fubjefl to the opinion of the right rofei«e
court upon this (hort cafe : the plaintiff's flbip lying in the river ^|^^
Thames with the butter on board brought from Ireland^ the de- rfve t>efoce
fendant (a cttftotn-houfe officer) went on board, and before the thcgo«dtai«
hatches were opened, or bulk broken, or any goods landed, or ^{f^^
offered to fale, feiced the butter as contrablsnd. The fingk quef* ftie.
don waS| Whether the feizure was lawful?
Curia^Wt are all of opinion that the feizure was unlawful^
and that there is no right to feize, unlefs the goods be landed, or
offered to fale ^ the mere bringing the (hip into port ghres no
right to feize ; and this is our opinion grounded on the ^at»
x8 Car. 2. r. 2. and 20 Car. 2. c. ;• | fo £ere was judgment for
the plaintiff /irr totam curiam.
Vol.. IL S
95$ Ea6t£1 TSRM^ 5 <?^« HL 1765.
Bardet verfus Robins. C. B.
^^ '^m^ /^ASEupoQa^i9^. The defondantpWded a tender of hair*
^fMaiDt < a«gaiiiea which the plaintiff took out of court, and ptoccedcd
pi6a4t • cno for move. There was a Terdi^ for the plaintiff, damages \L i /. >
^^^" Md ^ j«dge certified under xhtjltd. 43 Eli%. cap. 6. that thoda-
iHiichlfl maget 10 be recovered in this a Aion did not amount to 40 (hillings»
fiwrdtgainft hut to I /. I /• and no more. And now Serjeant Burlanimo^
joS' '/e^ Ihat the prothonoury might ux the plaintiff full cofts di sncre^
lies upon the iMffto; alfedged that the judge ought not in this cafe to hare
AjKiictbat eertified, becaufe the defendant has pleaded a tender, which
wdu^ou ^*^^S found falfe, he has by his own wrong pleading increafed
the cofts } fo on the other ftatutes Which fay that the plaintiff
fliall not recover cofts if the judge does not certify, yet where
' there is fpecial pleading he is entitled to his cofts i and if a de-i
ftndant it mute a eauie out or an inierior court, he is not en*
jitled to this certificate, becaufe it was his own fault to remove
the caufc, and thereby put the plaintiff to greater expences*
Chief JuAice— I*believe that in fome cafes fuch a rule has ob«
tained, becaufe the defendadt by his own fault has rebutted bis
right to cofts, by brio(in^ anqther matter in queftion.
CHve Juftice«-In an aAion for words, ^* that the defendant
ftolc a hen," the defendant juftified, there was a verdid for the
plaintiff, and damages lefs than 40 /. The court of King's Bench
refufed to allow more cofts than damages.
Chief Juftice«*»This adion is clearly frivolous^ and the plea of
tender docs not s^ter the cafe } fo the rule for full cofts was dc«
Wed.
EngUfh ver/us Buraell and InghiEim. C B,
|li|Mn« n n^LEVIN for taking plaintiff's cattle : avowry thzt Bumell J
^Towijrtkat ^ was feifed in fee and in poffeflion of a certain ancient met*
Sreuowoeif ^^^S^9 ^"^ *^^ hglmm was tenant and occupier of another ao-
and occu- cient meffuage, and that Burnell as owner and occupier of the
plen of eery meflnage then, in his poffeflion, and Ingham as owner anioeatf^
fom^and ®^ ^ meffuage then in his pofleflion, and aH other occupiers of
^faibe for the fatd meffusges have had time out of mind, and of right oagbt
common In ^ have common of pafture in the loct4s in quo^ &c. and avow ihey
SVTnd ** ^'^^ ^^ ^^^ iam^fiMfant; the plaintiff pleads in bar, aod
ifowda* traverfes the right of common ; and thereupon iffuc is joi8€4|
jw« i^^j-j^ and 4 vcrdi^i wsis found for thp dcfcndapis,
Sb^pre, §erp»^
(srif^HMit
Easter Term, 5 G». III. iy6s^ 9S9
Serjeant N/trix for the plaiDttff laored in arreft of judgment,
9nd objeSed that the avowry is ill, the prefcription for right of
common being confined to the ^fcupiers of the meffuages, who
hare but a mere temporary, and not a permanent intereft there-
in \ for that fuch prefcriptions ouqht to be made by tiK>fe who
hare a permanent intercft. 22 i. 4. 17. Tehani for life can-
not prefcribe, and where there is no perpetuity there can be no
prcfcripfion, Bro. Prefcription^ pL 77. 6 Rip. (Jo. a* Ggite^
VJard*s cafe, the third refi^lution. This is contrary to the nature
and quality of common, for ^very common may be either fuf-
pended or ektmguithed, but fuch common as this fhall be^ in-
cident to the pcrfon (the occupier) that no certain pcrfon can
cxtinguiih it; but *^ foon as he who releafesit, ^c, removes, the
new occupier (hall have it. Gatenvard's cafe, 6 Rep, 60. a. the
fourth rcfoiution. Hunt v. Beauthamt in Eajler term 3^ Geo. a*
B. R. trefpafs ; plea, that every inhabitant of the parifh reading
and dwelling in the parifli, and being an occupier of an ancient
mefluage, had a right of common, l£c, this wa*; determined by " ^
GatewarJ*$ cafe to be a bad prefcription. Au fye v. Fatokmt^
Cro. Eii%, 44f^. replevin ; the defendant avows for damage feafant g
the plaintiflFjuftifies, for that he had a clofe adj »ining to thede*
fendant's clofe, and that the defendaniLand all thf? orf«//Vr/ of the
faid clofc from time whereof, 5s*r. had ufcd to repair the fences,
and for not fufliciently repairing, the beads entered, Wf. Iflu^
was taken upon the prefcription, and found for the avowant, and
in arreft of judgment it was held, that the prefcription, that every .
occupier^ ficc. was too general. -Indeed it is faid in that cafe, that
it was aided by the ftatute of jeofails, but in fabfcquent deter- '
minations that rule is ijot allowed Crouiher v. Qldfield^ i Salk^
364. That a title defeftively fet forth, may be cured by a Ver-
did ; but a bad title fet forth never can be cured. A prefcriptiorr
that the pofTeflbrs ought to rep^iir fences, was held bad, and judg-
ment arretted after verdift. 2 Roll. Rep, 288. Palmer 331*
S. C. Cro. Jac. 66^, S. C. Weekly r. IVildman^ 1 Ld. Raym.
ijoj. He obfervcd the particular manner of joining the two
defendants in one avowry,^ that though it might be good as to
one of them, [Burnetii) who is feifed in fee, yet tt caanot be
pood as to the other, and a plea cannot be good in part^ and bacf
m part, z Stra, 509. 1 Saund. 28. a Cro. 2^•
Bro. Prefcription^ pi, 7(J., in trefpafs ; the inhabiianis prefcribft
for common^ &c. Per totam n/r/am —Tenants at will cannot prCf
fcribe injure proprio, fed in jure domini fui ; but the defendant Cm. Jk;
may fay, that the ufage of the villof j3. hath been frcnn time «s^^ "
whereof, l^c. that the inhabitants have had a way over the land *^«***'^9S'
of the plaintiff to the church, l:fc. or that they have been quit o£
toll to the mill, (fc. Tenants at will cannot prefcribe in a thing
which endureth i^ perpetuum^ &c« but in the ufagc and cuftoov
of the Till ^ £9 tmti d9 diverfttie. , &eq HHq Br$. Pnfcripti^
ft. 29.
S 3 Burbmi
ago . Easter Term, 56^0. ni. 1765.
Burland Serjeant contri-^ln this arowry, one of the defend-
ants avows as ewner and occupier of a tenementj and the other as
ecoifier ;. the iflues are found for the defendants'; the plaintiff did
not take advantage by demurring, as he might have done» there*
fore he is not entitled to favour. Admitting the . argument on
the other fide, we have fufficicntly fct forth a title in the avow-
ants I where the plaintiff complains of an injury done to his foil,
there the defendant, in his j unification, muft prefcribe in a que
fftatij becaufe the plaintiff complains of an injury done to his foil,
but in trefpafs for taking goods, it is fufiicient for the defendant
to fay, that he was pojfeffed of the locus in qm^ and the goods were
damage feaf ant : fo for taking cattle, a judificatipn that the de-
fendant was poffejfid of a dole and entitled to common, and took
the cattle damage feafant is good, and there is no difierence be-
tween replevin and trefpafs for taking cattle only ; for replevin is
qnly an adion for taking the cattle. In eafements, ^r. it is
fufficient to declare upon the poffcflion. If an avowry (hews the
)^Vymt|8Tf hcus in auo belongs to the plaintiff* it mud fet forth a que ejate^
otherwile it need not ; and though an avowry is informal, it is
cured by verdi£l \ our title is only defe£tive in the fetting It
forth, and fo |s cured, as in Cro. EUz* 445.
Hewitt Serjeant of the fame fide with the defendants—There
are two queftions ; 1. Whether the avowry be good? a. Whether
it be aided by the ftatqte after verdi^ ? Here the injury cora^
plained of, is only for taking the plaintiff's cattle, no right to the
clofe is fet forth ; againft a wrong doer it is fufficient to fet forth
imiF* 335* zpojejpon^ as in the cafe of a v^ay^ eommony &c. \ fo in all decla-
rations, and ah avowry is in the nature of a declaration. 2 Ld.
Raym,i)22 In a£lions againft wrOng-doers, it is enough to
(hew pofef
Ld. Ch, J.— Have you any cafe to ifaew th^t an avowry is coq*
^dered as a declaration ? Do you argue only on principle ?
Hewitt Serjeant — Only on principle. Diftrfefs is the firft pro-
cefs in this replevin, and the avowry is the declaration. 1 1 Afod.
919*. fjarrington V, Bujb^ ^at. 3a if. 8. f. 30, Here the true
cift of the adion has been tried, and it appears the plaintiff has
been a wrong-doer^ Brown v. Bookifl^ Skin, 115. 213. The
Teafon there given is, that it muft be fpppofed.the judge at the
trial made him (hew his title. 1 Sound. 2|6, 19. By pleading
pver, the plaintiff here has waived the objection. In Gateward's
fafe, the title was fuch as he could not have as an inhabitant^ but
might as an occupier. Freeman v. Jugg^ B, R. replevin^
for taking a horfe ; the defendant avowed that he was poffejfed of
the locus ip quo^ and todk* the horfe damage feafant / plea in bar^
jffue joined, and trial had. In arreft of judgment, it wa ob-
je£led, that the defendant in his avowry ought to have flicwa
the owner of the fee ; but the court held the avowry was cured
^y the plaintiff's pleading over.
Easter Term, 5 Geo. IIL lyS^^ a,6i
Uares Serjeant in repljr— It feems to be admitted by the lad
tafe cited by my brothery^that poffej/ian i$ not fuQcient in aU
ayowry. I admit that in trefpafs for taking cattle poffeffion !$ a
good plea, but in replevin it is othcrwife^ for there the avo^iTant
muft (hew a title in fee^or derive his title from him who had
the fee, to entitle him to have a return of the cattle ; and the
JlaU 1 1 Gio, 2. €. 19. was made to excufe the avowant from
fliewmg his title in an avowry for a diftrefs for rent. 2 Stta^
847. though in the cafe of eafements you may declare upon the
toffejjion^ yet you muft prove a prefcriptive right at the trial.
After a trial» the court will only prefume every thing was proved
U make good the title pleaded j but not to make a good titli.
Chief Juftice— ts there any cafe to (hew that pofleiBon is (mU
ficient in an avowry ? The court took time to conGder till the
latter end of the term^ when the Lord Chief Juftice delivered
the opinion of the courts
Lord Chief juftice— It is obje£led that the right of common
is laid in the occupiers only. The defendant's counfel did not
pretend it would be good where it is neceflary to fet forth a
title ; for it is now fettled law, and the reafon in Gateivard*^
cafe is convincing. The anfwer given isf that in trefpafs there
is no occaGon to fet forth a title againft a ftranger, but the de^
fendant's counfel p]?6duced no cafe to ihew that replevin ia fimi^
bir to trefpafs.
In replevin the avowant muft juftifyi and ihew by what author
tity he diftrains} the power of diftrefs is an extraordinary power^
and almoft the only cafe wherein a party is his own cafver.
There are many cafes dire£Uy in point, Telv. 148. there is a
great diflPcrence between replevin and trefpafs^ becaufe the avow*
ant being to have a return of the cattle muft (hew a title in
omnihsj otherwife in trejpafs, in which the defendant need
only plead an excufe. 2 Lutw. 1231. the avowant muft alledge
what eftate he is feifed of, therefore this avowry is bad } the
queftion is, whether the verdt£l will cure^it ? the diftindion ia
between a title defeifivefy fet forth, and a defeQive titles where a
title is defeBivcy the ftatutes of jeofails do not extend to it, and
the jury cannot examine into what was not fet forth s the fta*
tutes therefore cannot aid itj and per tUam curiam'^Tb€ judg*
ment muft be arrefted.
S3
Johnfon wr/us Kennion. C 6*
Bmofex- A CTIOK «pon the cafe upon a bill of eichang^ brottgbt hf
lo^Tidwa ^ J9hnf9n the indorfce agmnft Ketttii^n the drawer theicofy
br the io« Hy^^^ ^<^ BiHfon^ or his order, who indorfed it to plaintiff ia
^orfeeagaioft f^^ ^ g|^ i| d^rcouoted i plaiiitiff delivered the bill to BMwjih
!ho^Th< ^^ adranoed the whole money $ f^vj^/c paid 232 /. to the pUii^
iadorCtn haf (HIV thcA B^ldwyM rewletfvered the bill to the plaintiff^ who re*
paid part of ^^^ \^^ ^^ refiduc. TfaeM was a veniia for the whok 1000 A
to t^b-^ in the biU Upon (heviag caufe why there (hould not be a new
dorfee, be trial, the plaintiff the tndorfee jtaving been paid part of the fum
fttin in the * #> i
biiiagatnft Ghtcf Jii(licc*-Cop6der the natuTC of thefc contra^; they
the drawer, ^rc negotiable bills pafling through the hands of divers ptrfons;
and though there are many indorfements on the bill, yet there is
but one fecurity for one fttiti of money, and he who has the
fofleffion of (he bill may bring his a£kion ; where there are
ipatiy inddrlbrsi the iodorfecs have a right of a^on in (uc«
cefioa \ bat diere ia but one right of action, under the biii ^
ligainft one perfon at one and the fame time. The bill being ia
onf iRdorlee'3 hand, the indorfor pays a part, and the obje&ion
14, ihat this ought to be confidered as a payment for the drawer;
but I think toto calo it is othervvife, becaufe tlie iudorfor is no
fervant, nor is agent to the drawer. Suppofe' Benjhn had paid
the whole 1000 1, to yobft/999 and Benjon's name had not been
ilruck out> and an a(^ion had been brought in JohnfotC^ name
9gainft the drawer, will you fay the adiou wiU-not lie ? Sup-
pofe after a recovery againft Kennicn he had run away, could
Bftifin have had a right to come againfl: Johnfon before any fatif-
(a£|ion i the bill i^i a fecurity for every indorfor as ceflitj qyi
tnfft ; I think it is a piain cafe that John/on has a right to recover
|hc whole money, and when he receives it, he will have rtcetved
23^1 A of BfafoH*% money ; the defendant has no reafon to cooh
plain.
Bqtbtail J. of die fame opinion. You cannot fplit the bill
, fo as to mbjed the party to different anions.
*^ .
Gould J. — The thing is very clear, when the defendant has
paid the 1000/. there is an end of the contraft. Where the
drawer of the bill has paid part, you may indorfe it over for the
refidue \ otherwife not, becaufe it would fubje£l Iu.m to variety
•f anions. A new trial was denied. '
£a8TER T£RM| $^6. m. 176^. 463
Doe, on the Demife of Neale, vct^ Roe. C B»
|N eje&ment : Serjeant Jephfm moTed for judgment againft PioMft.
^ the cafttsd ejedor upon an affidafit thata perTon tendered a ^^J^^*"
eopy of Ae declaration to the wife of the tenant in pofleffion in Shttitttmit
the ifaop, and would have read to her th^ notice to appear^ bttt
ihe refufed to hear it, or to reixife die dedaration, and faid
Ihe would have nothing to do with it, smd turned out of the
(hopi and ihut the door after her^ whereupon the dedaratioa
was left in the (hop.
Bathurtt and GwtU Juftxccs (otily in court) thought this not
quite fumcient fenrice, as the notice ought to have been read
aloud in the (hop, though no perfon was there \ but as this wai
a hard cafe, they made a rule to Ihew caufe why this fliottld not
be deemed good fertice*
b a few dinrs afterwards the -court made a Hke rule» on M
affidaWt that the tenant kept out of the way to prfvttit beaiy
iinnredy 00 the motion of Sieijeant Hewitts
\
S4
[ «64 J
TRINITY TERM,
S Geo, IK. 1765".
county.
Rofs anJ Walker. C B.
ProhiBWott^ y^ PILOT was fcnt for to Gravefendy to come on hoard the
^li^lbut l\ fl^T Oxford^ being in Sefi-Reacb^ who accordingly, went
cannot f«c in 'on board of her there and piloted her from thence to her moor-
^^\ ^^7w ^"^^ ^^ Deptfird, and for his wages doe to him upon that account
wo!k be ^ 1^^® inftituted a fuit in the court of Admiralty \ and now it was
wiChin the moved for a prohibition upon a fuggeftion that both the contrad
^y^^* and the work done were within the body of the county, and an
*«,ntv. ajgdatit that Sea-Reach is within the body of the county.
Againft a prohibition it was faid that a pilot rs a mariner, and
a prohibition (hall not go to the Admiralty to (lay a fuit there,
for mariners wages, though the contraft: wais upon the land.
I ft, Becaufe it is more convenient for them to fue there, becau(e
they may all join, adly, According to their law, if the (hip
peri(b, the pilot lofes his wages, i Vent. 146. i Saik, 31.
1 Ld, Raym. 632. i Fent, 343. 2 Vent. i8r. That if aeon-
tract be with failors on the land to enter on board and go an
intended voyage, and they according enter on board> rig the
{hip, and do work and labour there in the river, though the
voyage never pfoceeds, they may fue in the Admiralty for th^
wages, and a prohibition (h^Il not go, notwithftanding both the
contract and the labour was done within the body of the county.
2 Ld. Raym* 1044, 5. WtrlJs v. Ofman. 6 Mod. 238. S. C.
In 2 Stran. 85 8. the mafter cannot fue in the Admiralty for his
wages, but all the mariners may. In i Ld. Raym. 632. the
fame d}(lin£lion is taken, and it is out of compaifion to thefe
poor men that they may>ll join in the court of Admiralty ; they
do not know who is the mafter, or is to pay them, fo they pro*
ceed againft the (hip. That there is no doubt but a pilot is a
mariner : the mafter covenants with the owners to find a pilot,
and they to pay him. JUolloy^ cap. 9. / 2. MaMs Lex Mer-
cat. 104. fpeaks of a pilot's being a Coarineri a iUirgeon during
the
Trinity Term, 5 6^^<?-*ni. 1765. 26^
tbe voyage is a mariner. Suppofe an Indtaman in diftrefs in the
liver, and 40 mariners are neceflary to be had from the land,
muft thefe poor men be obliged to bring feveral fuits at common
law ? it would be very hard.
For a prohibition it was faid, ihat as it was now elear on all
hands that both the contrad and the labour were within the '
bodv of the county, the Admiralty had no jurifdiclion in this
cafe, yet that it muft be admitted, that if the contra^ be at land
for an intended voyage, and the mariners go on board, rig the
fhip, tstc. though the voyage never proceeds, the Admiralty
(ball have jurifdidion ; but where both the contradi and the
whole voytige or work is within the body of the county, as it is
in the preftnt cafe with refped to the pilor, the Admiralty has
no jurifdi£lion. Litt, Rep. j66. Ajbton\ cafe. 2 BrownLS. C.
Hob, 213. 4 In/l* 13(^1 &c. GQ4ffoii 261. and the cafes in 2 Ld.
Rttym. 1044, 5. 6 Mod. 238. cited on the other fide, were rc«>
lied on for a prohibition, S. C. 12 Mod. 405.
Curia — We are much inclined to favour the pilot (who is a
mod necefiary mariner) if we could do it without breaking
through the rules of law, becaufe it would be for the benefit of
trade, and fave great expence to thcfe poor men ; it is efta*
blifhed that every officer and common man who alTifts in navi*
gating the (hip, (except themader,) even the furgcon, is a ma-
riner, and may fue for wages in the court of Admiralty ; for tlie
furgeon prefcrves thofe who prcfervc the fhip, and whether he
is to be paid a grofs fum, or fo much per month, it is the fame
thing. Though both the contract, and work done on board, in •
the cafe of Wells 9,nA Ofinan^ 6 Mod. 238. v^ere within the land;
yet that cafe was. very rightly deierniiricd, becaufe the contract
was to manage the (hip for an intended voya;;e, which did not
proceed on account of fome difctgrecment among the owners :
the mariners were in no fault; and the true reafon why feamen
may fue for their wages in the Admiralty, though the contrafb
be at land, is, that tbere the fhip itfelf is madc^ liable to them;
and befides, there tliey may all join in the iuit, neither of which
may be at the common law, and yet much for the cafe of poor
feamen ; 6ih Modern has reported this cafe very fully, and be is
the beft reporter who reports fuUy.
But there is no inftance to be found* where the contrafl was' ^Nte; Of
at land, and to do the work on board, within the body of fomt ^^^ comrafti
county ; that the common law courts have ever permitted the J"'' *K"P
Admiralty to have junfdiflion ; and that is this cafe, the con* thcbodie^of
trad with this pilot was made at land, and to do work within counties as
the body of the county, and not at fea, or upon a voyage; and Jl^^y^Jf^f"*
though it is (and mud be) laid in the libel that they were both the idmirai »
on the high feas, yet we muft now take the fuggeftion to be court (haii
true, that both the contraft and the work were at land. A pro- ^fJ*^on!^'
hibition was granted per totam curiam. Serjeant Nares for the Sutuie oi*
plaintiff^ Serjeant Hcvjitt fcr the defendant. i i R, 2. « 3,
266 Trinit? Term, 5 Ge$. III. 176/.
TottcrdcU and Harris, Matters of the Taylors*
Company at Bath, veffus Glazby. C B.
Wherttim • a CTION of debt for a penatty upon a by-law. The decla-
tottd^" ration fcts out that the city of Bath is a corporatton, and
ibretgiien ftates the charter and power to make by-laws ; that there has
ftwn cxer- {y^en a guild and company of taylors, free of the city, and two
ifla°Gorfor«. rafters for the government thereof, and a cuftom, time oat of
tfon, aod a mind, in that city, that no perfon whatever (hall exercife the
fcy-Uw to tt^de of a taylor within that city, unlcfs he be free of the faid
cBfbm, ^ ttidc and city ; and that a by-law has been made by the mayor^
firet a pc- aldermen, and commons of the city of JSati, for the better pre-
Irt'tbecor- *^^*"S ^^^ ^^^^ cuftom, which gives a penalty of 3/. 44/. fir
pontioa, it ^^ againft any one exercifing the trade not being free thereiirf^
ii M- to be levied by diftrefs, or recovered by adion of debt, by the
^,B. €x- ffjoflers of the faid company for the time beinc:, for the me of
don to the the poor of the company of taylors (fettmg forth the by-Jaw
Chamber- exafily}; that the defendant not being a freeman of the faid
c^Rep. 61. ''"^^^ ^^ ^*^y» exercifed the trade of a taylor there ; whereby an
Hon'tngt ▼. a£lion accrued to the plaintiflF to have and demand, fs^c. ^ upon
Hongerford. n// J^i^t there was a verdifl for the defendant ; and now it was
r!^^,"'^ moved that a new trial might be had for mifdireaiTO by the
B. R. Mich, judge, and for not receiving evidence which ought to have been
11 Geo. !• received,
«Ld.Riym.
Saik.*to3. Without entering into the queftlon, whether the judge had
€Mod.%t» mifdirefted the jury, or had refufed evidence which he ought to
have received, it was objected, that, upon the face c^ the re-
cord, the by-law is a bad one ; and if the plaintiflFhad a Verdifii
hfi could not have judgment, therefore it would be abfurd and
* nugatory to fend this matter to be tried again, 'fhe obje£lioa
is, that thefc taylors are not the corporation of Satip and dieie-
fore the by-law is ill in giving the a£iion to the mafters of die
taylors* company for the time being, who are .(hangers to die
corporation of JBatb ; the by-law ought to have given the aAiflO
to the corppratton of Bath ; for^to give it to any body elfe^ is
like affigning a cho/e in aBicn^ whioi the policy of the law will
not endure. * Co. Lit, 214. a. Bodviuk and Ftnaell^ Mick
aa Geo. 2. B. R. Ellington v. Cheney^ 9 Geo. 2. upon this ob-
je£lioni a new trial was denied by the court.
[ 267 ]
MICHAELxMAS TERM,
6 Geo. HI. 1765.
Fox verfi^s Smith* C. B.
DEBT upon a bond to perform an award. The defendant Debt upon
prays $yer of the condition, which is, that if the defendant an arbitia-
ftal! perform the award of John Thomfon (and two other arbitra- pj^"*"!^''*
tors named therein) chofen between the parties to determine of aw?rd.
and concerning all and all manner of caufes^ anions, futts, Repiicnion
trottWes, debts, claims, and demands whatfoevcr, CSV. depend- jjj^ *"
ing between the faid parties at any time before the date of the 16*. 101^^
faid bond, fo as tlie faid award, isfc. of the faid arbitrators - be *od coft$,
made in writing, tSc. on or before fuch a day, then, tic, j which %ll^y^ r
being read and heard, the defendant pleads that the arbitrators fi^ed for'
made no award between the parties, according to the form and aon-pay-
cflfeftof that condition ; and this he is ready to verify ; where- ^^^^^^^
fore, (s^c. .* the plaintiff replies, that the arbitrators before the day oaiy\ good,
in the condition for that purpofe fpecified, to wit, on fuch a day p^^ _
made a certain award in writing under their hands, t^c. of and 6 Geo. 3.'
concerning the premifes in the faid condition above fpecified, Addifon w.
and by their award ordered and awarded that the defendant ^'^■y>S'P.
(houid pay to the plaintiff* 16/. 10/., and all fuch cofts, charges,
and ezpences as the plaintiff had been put unto in a certain caufie
dien depending between the parties, at a certain day then to
come^ and that thereupon they (hould give each other general
releafes} and then the' plaintiff aifigns a breach in the non-pay* •
mentof the faid 16 /• iox.( upon which replication the defend-
ant demurred in law. And the counfel for the defendant took
fcveral ezceptiOAS i lit, that no certain coils, charges, andex-
peoces are fet down and averred ; adly, that the award doth not
mention any caufe between the parties depending in any certain
court, and it might be in an inferior court, i^fcy and jdly, that ji>y ^,j^
there is nothing awarded to the defendant but a feleafe, and that and Note and
is not to be made until all the reft be performed j and although J;^"^^^' ^*
the award is good for die 16 A 10/., which is certain, yet the xsiik.75.*
cods, charges, and expences of the fuit are totally uncertain and
void, and the award in that part can never be performed, and fo
the releafe to the defeodant can never be rnade^ for it is to be '
It
268 Michaelmas Tbrm, 5 G^o. IIL lySg.
s Luc. 504. It was anfwered by the counfel for the plaintiff, that the
sVaiL24s. breach is well affigned in the replication for non payment of the
pS^^ 16/. io/. only \ and in that part the award is good and certain,
whether it be void or not as to the cods and charges is not ma-
terial, for an award may be good in part and bad in part, and the
breach is ai&gned in the non-performance of that part which' i»
good.
Ld. Ch. Juft.— ^If the award be good in that part, whereof the
breach is afligned,' (the defendant having admitted the breach
by his demurrer,) the plaintiff mud have judgment. The firft
ODJedion goes too far ; a benign conftruftion of awards hath taken
place in modern times, though formerly courts of juftice looked
nicely and critically into them. We will intend, that by cofts,
charges, and expenc<rs, are meant fuch cods, isfc. as courts take
notice of by their officer. It might be faid, that all cods between
the attorney and client are meant thereby, but we will take the
words of the arbitrators to mean the fame as if they had been the
words of the court. The fecond objeftion is, that it does not
appear in what court the caufe was, and it might be in an infe«
riur court, where there may be no proper officer to tax the cofts
fo as to afcertain them to this court; but we will prefume die
caufe was in a fuperior court, and the rather, becaufe the de-
fendant might have (hewn by. pleading, that the caufe was in an
inferior court. As to the third obje£tion, a recovery in this ac-
tion will be a bar to any future a£lion brought on this bond for
the non-payment of the cods, is^c. after they are afcertained.
Clive J. — I am of the fame opinion.
Bathurfl J.-^There is no doubt but an award may be good in
part, though bad in part ; and if the plaintiff in his replication
lets out the award, and affigns a breach in the non-performance
of that part which is good^ and the defendant demurs, the plain-
tiff muil have judgment, for the whole penalty of the arbitration-
bond is forfeited by fuch non-performance. In this cafe the
plaintiff might have applied to the court to have his cods taxed
and fettled, and then he might have extended the breach to the
non-payment thereof alfo \ but if he has judgment now, he can
never have thofe cods, becaufe a recovery in this a£lion will be a
bar to any future a£lion upon the fame bond. And I am of
opinion the breach is well affigned^ arid the plaintiff ought to
have judgment.
Gould J. — ^I have a little doubt whether the plaintiff ought not
to bave got his cods taxed before the day appointed by the award
for the payment thereof, ind of the i6 /. lo/., and before he
could bring this %Qkon % for the defendant is not to have a rcleafe
until he pays both the debt and cods according to the award.
3 And
Michaelmas Term, 6G€o. III. 1765. a69
And therefore I. am indined to think the breach is not well
affigned ; and if the plaintiff be not barred of any future adioa
forthe c<^8, he cannot be entitled to judgment.
Ld. Ch. Juft.— My brother Gculd*% objeaion is, that the
breach is not well affigned ; but if it is well affignedj the plaintiff
mud have judgment for the whole penalty of the bond, and
when he has once recoycrcd the whole penalty* he certainly can
never have another aflion upon the fame bond to recover the
penalty twice over : that would be unjuft) and therefore it is moft
clear, a recovery in this aAion will be an eternal bar to any fu-
ture adion on the fame bond. Surely it is not neceffary to affign
breaches of every matter in an award ; the breach of any one^ is
a forfeiture of the penalty of the bond. Whether the cofts be
taxed or not, paid or not, I think the breach in non payment of
the 16 /• 10/. is well afligned, and being conftfTed by the de-
murrer, the plaintiff muft have judgment. {Gould Juftice at laft
not difagreeing,) judgment was given for the plaintiff.
Catherine How, Widow, ver/us Edward Strode.
T^ EPLEVIN for taking the cattle of the plaintiff in a certain Rcpievfai,
•*^ place called Banbury^s Furlongs othcrwife Wooljbrooh in the
county of SomerfeU The defendant avows aitd fays, that the Avowrrthtt
place in which, isfc. is called Banburifs Furlong, and contains five ^feadaot
acres and an half, which place is, and at the time when, tSc. was ^jjfg^j]^
the foil and freehold of the defendant ; and becaufe the cattle at magefea*
the time wheii, tic. were in the faid place in which, iic. depaf- ^t.
luring on the grafs there then growing, and doing damage to the
plaintiff, he well avows the taking of the faid cattle damage'feom
fant, &c. the plaintiff pleads in bar to the faid avowry, and lays, piea !n bar
that the place in which, (ffr. is and at the time when, ijc. was th^p'tcehi
parcel of Eafifiild in the parifli of Bvileigh in the faid county ; and jj'^'^J'/^^'*
that long before the time when, lie. (he was and (liU is feifed in Bifida
her demefne, as of fee, of ten.acresxof land, with the appurte- UutpUintiir
nances, in the parifli of Builaghi and that flie and all thofe 1*^**^^*^
whofe cftate (he hath, lie. from time whereof, faV. have had and i-^/hl^/^
ufed, and have been accuftomed to have and ufe, and ftill of r?ght u<iGiaiinc
ought to have and ufe common of pafture in Enjtfteld^ whereof, f^jj^j ^
Ifc. (her and their own lands in the fame field excepted,) for all EaftfieH
her and their commonable cattle levant and couchant on the faid V'beo the
ten actesof land, every year when the fame field hath been fown Jjjj^h^o '***'*
with any kind of com or grain, from the time that the corn or and it is cn%
grain in that year, growing therein, hath been cut down and *"^ carried
carried away, until the fame field, or fome part thereof, hath been Jc rcfown* ^
re*fown with fome kind of com or grain, as to the faid ten acres
9f |af)4^ belonging and appertaining \ aqd fnrther the plaintiff
ayo
and at a pro-
per time put
in bcrc^tJc*
Replication
^to the plea
In bar, that
there are in
B« two
fields, Eaa
at.d Weft-
field,
■nd tV.at
the owners
thereof in-
tercommon
while they
lay not in-
deled
for a certain
A Cttftom to
bclofe.
Michaelmas Term, 6Geo. III. 1765.
fays, that in the year of our Lord 1764 the faid £a/^SMwi$^
fown Vfith corn, and that before the time When, iifc. all the com
in that year growing, had been cut down and carried away,
wherefore the plaintiff before the time when, C!fr. the fame field,
or any part thereof, then or at the time when, (sV. not being re-
fown with any kind of corn or grain, put her fiiid cattle into tbt
faid piece of land called Banbury*! Futiong^ being part of the fud
EafifUld^ to feed on the grafs there, and to take her common
there. And the cattle remained there until the defendant of his
own wrong took them, (^r./ wherefore (he prays judgment and her
damages, t^c. The defendant replies to the plea in bar, and
fays, that in the Ciid parifh.of Buileigh there are, and from time
immemorial hare been two common fields, one called EaJlfUli
and the other Weflfeid^ and the Eaflfield is the fame Eaftfitld in
the plea in bar mencioatd wltereof, lie. ; in which common fields
the lands of divers perfons for the time being now do lie, and
from time immemorial have laid difperfedly and in fevcral par-
cels, and that all and every perfon and perfons, feifed in fee of
any lands lying in the faid common fields refpcAively, and un-
inclofed from'the rell of fuch common fields refpe£iively where-
in fuch lands have laid, or do lie, from time whereof, ISc* have
had and been ufed and accuftomcd to have for him, her, and
themfelves, his, her, and their farmers and tenants, occupiers of
fuch lands refpeAively, fo lying in fuch common fields, and un-
inclofed from the reft of fuch common fields refpcftively, com-
mon of pafture for his, her, or their commonable cattle levant
and couchant in and upon fuch his, her, or thtir refpedlive lands,
in the faid refpe£live common fields, in which his, her, or their
faid lands fo refpe£lively He as aforefaid, in and throughout all
the uninclofed parts of the faid common fields refpeftivcly, (his,
her, or their own lands in fuch common fields refpe£lively ex-
cepted,) in manner following, (to wit,) in every year, when the
faid common fields refpcftively, wherein his, her, or their faid
lands in fuch common fields refpe£lively lie, have been fown
with any kind of corn or grain, then in every (uch year, from the
time that the corn and grain, growing in fuch ye;ir, in fuch re«
fpe£iive common field, hath been cur down and carried away,
until fuch common field, or fome part thereof, hath been re-
fown with fome kind of corn or grain, in ref|)e£k of fuch his,
her, or their refpeclive lands : And the defendant further fays,
that the faid lands of the plaintiff mentioned in her plea in bar
do now lie ; and from time whereof, lie. have laid in Eafifeldf
and uninclofed from the reft of the uninclofed lands in Eafifield:
And the- defendant further fays, that within the faid parifli of
Butletgb there now is, and from time whereof, lic> there hath
been an ancient cuftom there ufed and approved of, (that is to
fayi) that every perfon or perfons having any lands in the faid
common fields, or either of them for the time being, and being
willing to inclofe the fame, or any part thereof, from the reft of
fuch common fields refpcdircly, h*ivc refpe^ively from time to
' ■ time
Michaelmas Tekmi 6 Ge$. III. lyGg^ ^71
timeinclofed, and have been u(ed and accuftomed to iacloicy and
of right ought to have inclofed^ and ftill of right ought to inclofie
(iich his, herj or their refpe£Uve lands in fuch refpefiive comnioa
fields, or any part thereot^ from the red of fuch refpcdlive com-
mon fields, and in fuch cafe, during all the time aforefaid, from .
the time of fuch refpedlive indofures, have had and held, and
have ufed and been accuftomed to have and hold, and of right ■«<> ^^
ought to have hacfand held, and iliil of right ought to have and rH^^ iWi!^
hold fuch his, her, or their refpe£live lands fo inclofed as afore- from com*
faid, free and difcharged from any com mon of pailure of any other »'>» of nr
perfon whatfoever therein ; and that in fuch cafe by the cuftom ^^^^
aforefaid, every perfon and pcrfons fo inclpfing as atorefaid, hath fterfonfo jo-^
and have during all the time aforefaid, thereby from the time of «lofi"S
fuch sefpedive inclofures freed and difcharged, and have been ^^^^^^'^^
ufed and accuftomed to free and difch.arge, and of right to have cbar^ til
freed and difcharged, and dill of right ought to free and difcbarge, ^ »<>'"- '
ail the reft of the uninclofed lands in the faid common fields, or ^uoimm
either of them, in which he, (he, or they were entitledr to com- in refpca »
moa as aforefaid, from all and all manner of common of pafture, ^^^^J^
in refpe£i of fuch lands fo by him, her, or them inclofed as afore- "^
faid : And the faid defendant further fays, that he long before That he iiw
the faid time of the faid taking, tffc. to wit, on the ift day of dofed the
OffobiT in the year of our Lord 1761, was feifed in hb demefne J|Jj,^J"|^
.as of fee, of and in the faid place ia which, ^c. lying in and par* to whkh )m
eel of Eaftjieldy and uninclofed from the reft of the faid field ; bad a n«h€
and that the faid defendant, and all thofc whofe eftate he then J^^JJJ"'
had in the faid place in which, Isfc. for the time being, from time
. whereof, (5V. had then bsd, and had been ufed and accuftomed
•to have, and of right ou^ht to have had for himfelf and theniU
felves, his and their farmers and tenants, occupiers of the faid
place in which, He common of pafture for all his and their com^
monable cattle levant and couchant in and upon the faid place in
which, He, in and throughout the then uninclofed parts of JS^*
^r//,'(his and their own lands in fuch common field exdepted,) in
manner following, (that is to, fay,) in every year when the (aid
EafiyUld hath been fown with any kind of corn or grain, then in
every fuch year from the time that the corn and grain growing
in- fuch refjpediye year in fuch common field called the EqfiJUld
hath been cut down and carried away until the fame field, or
fooK part thereof, hath been re- fown with fome kind of corn or
grainy in refpedi of the faid place in which, f^fc, .and being io
feUcd thereof, he the defendant afterwards and before the time *
when, tic* to wjt, on the fame' day and year laft aforefaid, at
the parifh aforefaid, did inclofe, the faid place in which, U<.
from the reft of the faid field called Ea/tfieldf according to, and
by force of the faid cuftom, and hath kept and continued ever
Cncci and ftill keeps and continues the fame (b inclofed frosl
. the yeft of (be £imc common fidd, wheseb j according tOj and
^yz Michaelmas Term, 6 G^(?. in. 1755!
thereby all by fofcc of thc faid cuftom, all common of pafture of every per-
the unin- fQ^ whatfoever, in fefpcd ot right of any land lying in the Ea/l^
%rere freed J^^^y and all right of common of pafture of the faid defendant^
fromhis faid in all ^nd every the then unindofed lands in the faid field in right
right of of the faid place in which, t^c. from thence wholly ceafed and
comiiwn, was determirted, and of Yight ought to have ceafed and be deter-
mined, and ftill of right ought' to ceafe and be determined ; and
and that the the faid defendant from th? time of the faid inclofure hitherto
cd'<M tttl^ owght to have had and held, and of right ought to have had and
be^^ from held, and ftill of right ought to have and hold the faid" place in
common of which, tfc freed and difchargcd-from any common of pafture of
«ny other j^^y other pcrfon whatfoever*: And the faid defendant further
* faySj that the faid cattle, long after fuch inclofure was fo made
as aforefaid, and during the time that the faid place in which,
^c. fo was and continued fo inclofed from thc reft of thc faid
common field called the Eaftfitld as aforefaid, to wit, at the did
time when, Wr. were of the faid plaintiff's own MTong in thc
^ faid place in which, f!fr. feeding and depafturing on the gra&
there then growing, and doing damage there to the defendant,
in manner and form as he hath above in his avowry alledged}
. and this he is ready to verify : Wherefore .he ptays judgment
and a return of the faid cattle, together with his damages, cofts
and charges, (5*r. according to the form of t^e ftatute in fuch
pUiotiflr re- cafe made and provided, to be adjudged (ohim, &c. The plain-
2L"* Ha ^'^ rejoins and fays, that flic having fuch right of common in thc
the cattle Eajlfitld whercof, ^c, as in her plea in bar is fct forth, (he at
C'lldefeadwt the faid time and in fuch manner as in her plea in that behalf
«?his*^w* mentioned, put her cattle into the faid piece of land called Ban^
wioo;, hurfs Furlongs being part of the faid EaftfieU^ to feed on thc
grafs there growing, and to take her faid common there, and
the fame cattle remained there for the caufe aforefaid, until the
defendant at the time when, ^c. of his own wrong took her faid
cattle and unjuftly detained them, againft fureties and pledges in
manner and form as the faid pUinttff hath in her plea in bar in
and trmrfci that behalf alledged ; ivithout this^ that within the pariQi of But^
to iaciofc"^ '"l8*> there now is and from time whereof, isfc. there hath been
ftc an ancient cuftom there ufed and approved of, that every perfon
or perfons having any lands in the faid common fields, or either
of them for the time being, and being willing to inclofe the fame,
or any part thereof, from the reft of fuch common fields refpec-
tiyely, have refpeftively from time to time inclofed, and have
been ufed and accuftomed to inclofe, and of right ought to have
inclofed, and ftill of right ought to inclofe fuch his, her, or their
lefpeftive lands in fuch refpedlive common fields, or any part
thereof, from the reft of fuch refpedive common fields, and in
fuch cafe during all the time aforefaid from the time of fuch re>
fpec^ive inclofures have had and held, and have ufed and beep
accuftomed to have and hold« and of right ought to have had and
held,
hcUi ^ind (Ull pf ngbt ougbt to have and hold fq^ hi$» li«r| gr *
itbcir ccfpe&ire lands (p indoied as afar^faid, freo fiiwi 4ifdmg«d
froin 4107 99iQiQon of p?fture of any otb^r porfpn vbillfq^cr
ihcreio ; ai^d that in fucb cgfc by tb^ cvftpm ?f«ff &M» cfcnr pfll*
fon asd perfpn^ (o inc(oGng as afpr^faid, batb 91)4 biro 4vrillg
|iU tbo time aforel^id^ thereby from the tim#.of (pqti r^pe^ife, )
iQ<;l9jrmpi9 freed a^d dilqhArged, and b^^ve bi^D iiftd and a^ttf-
toraed 19 £ree and difch9rge» and pf right ought t,o b^te freofl
and difcharged, and ftill of right ou^ht to free and difcharge, f 11
the reft t>f the uninclofed lands in the faid common fields, or
cither of them, in.which he, {hfi or thf y were enotM IP comfrion
a9 aforcfaidy frpip^ all and all manner of comnion of piR,ure, ih
t^fped of fych Ifi^nds fp by biin> hf r, or them inclpfed as ^foMfiil^f .
as the faid d^epda^^ ip bi3 replicatiefi'to the faid plea in bar qC
the plaintiff bath abpve alledged % and this the plaintiff is ready
to verify; whereforf, as belpre, (he prays judgment smd bar
dan^ges by xqafoa vf the faking and unjuftly detaining her ftiil
cattle, tp ^ adj^dged tp hpr» 4{ff. Thp defeadant fuiffejoiiis, |n4 Theddcoa.
. as befgre fays> that within th^ pariib pf BaiUgh there now is, •^} A^m-
and frpm tifne wber^, V^. iber^ hath bem an aneiem cuftpm, {^7f i?M
^c. (and jTo tafces i0\ie i^ion the iraverfe,) as di^ feid defiendaiit on the to*
hath in his (aid rf plicatipn to the faid plea in bar of die faid ▼»&.
pUiatilF abpve alledged \ And pf ibis be putt himfelf upon the
country, and the faid plaintiff dpth fo Ukewifir : Therefore, (ic.
This c:mf« w^ trkd at the laft afll:ies for the cpunty qf S«ttt#r- ^^y^]^^
fet^ the iffoe lying upon die defendant to pro«e the cuftom. It ^f ^t^jS^
vas reported by the judg^, that the defeadant produced five very upoo the
old deedf» and f^^cr?! Ptb^r deeds which proofed ths cufotu io ni- ^T*^**"^ 1,
(lofii he alfo called feven old witneiles, three of thaoldeft proved f^l^dmt k
the cttftom to incjor^pf their own kno'wledgefor a great nuraber the trial*
of years^ and that they had been told (when they were young)
by rery pld perfpns then livingi that it was the cuftom (or the
laodnown^r^ in thefe fields to inelofr, and faid that they thoug|kt
^7 Q>fm migbt indole his land. A\tp the right of common
whilft the Jiiiidf laid mdnclofed^ fome of the wttneffea laid that
fagh owners 0f the nnindpfed lands had a right of common with-
out (linf ; tuf ibat afiir 4#iy ofihem had incMtdhis Umd^Jucb perfon
bad no right of ^ommofi at all in thi faid fieldsf «r either of them.
' Another witnefs &id» if a. man inclpfed all his Unds in the fieUia, ,
he loft his right of common totally ; but that if he left any bit»
only an acre uninclofed| he ufed to enjoy his common in regard
to that acre uninclofedt juft as before, and ufed to put in any
number of cattl e without ftint. Several other old witnefies fwore
to the fame efied, and here the defendants refted their cafe;
whereupon the judge was of opinion that the defendant had not
proTed the'tuftom, which he faid was entirc^ihat feveral of die
^itncfleshad proved that if a man inclofed 19 acres out of 20, it
was the cuftom for him in refpeA to the one acre not inclofjpd.
Vol. 1L T to
574. Michaelmas Term, 6 Geo. III. 17^^*
to put oil to the uninclofed lands as many cattle a$ he pleafcd
nuithoutjiinty and as he had done before be inclofedthe ip acresi
and therefoTe the judge was pleafed to tell the jury, that he
thought the defendant had hot proved the cuftom iniirely^ and
.that if they believed the land tnclofcd in queflion was difcfaarged
and freed from any perfon having a right of common thereon,
they (hould'find for the defendant; if not, that they (hoald find
♦for the plaintiff i whercufon the jury gave a verdi£2 for the plain-
tiff. ■
' It was now moved for a new trial, for the mifdiredion of the
judge; ift, for that the cuftom to inclofe'was fully and clearly
proved; and 2dly, that the right of common before tnclofune
niade,<was for cattle levant and couchant upon each pcrfon's un-
inclofed lands ; and this matter is not atall in iffue, but is ad-
mitted^on the pleadings by both fides ; the right of ihclofure witi
its confcquence, vi%. its being freed from any perfon's former
right of common thereon, was the only matter in iffoe, the other
rwas a legal confequence, and not trayerfaUe, (to wit,) that the
owner of fuch inclofed land is barred of any future right to com-
mon on the uninclofed land in thefe fields, and what fome of the
witne(fi:;s faid of common fvithout Jfint is nothing to the purpofe,
.for there is no fuch thing as common 'imiboutjiint belonging to
land;, common bek)Dging to land can only be. for cattle /r^wi/
and couchant thereon: that the cuftom to inclofe was clearly
{proved, as appears by the evidence before dated ; and when the
and is inclofed, it is freed and difcharged from any perfon's
former right of common thereon : and of this opinion was the
whole court, and faid, ift, that the parties agree by the plead-
ings, that while the lands in thefe open fields are uninclofed, all
. . have a right of common for cattle levant and couchant; 2dly, the
cuftom to inclofe, and that the land as fbon as, and whUc in*
dofed, is free from common, i» fully proved ; the 3d matter is a
confequence in law, and wanted no proof, viz, that as foon as
any perfon has inclofed,. he has excluded himfelf from any right
. of common on any of the uninclofed lands ; and any judgment
given upon this record cannot be a bar to any other party who
may claim common in thefe fields without levancy and couch-
ancy. Per totam rwrww— The verdi£t moft be fct afide for mif-
diredioa of tlie judge, and there muft be a new trial.
MtcuAiRLMAS TEViM^ 6 Geo. III. lyG^r , 975.
|oha Hntick, Clerk, verfus Nathan Camngton and
three others, Meflcngers . in ordinary to the
King. C. B.
I N trefpafs ; the plaintiff declares that the deferidants on the Trefjttft Tor
•* nth day of November in the year of our Lord 1 762, at fFt^" breaking aw*
minjer in Mlddlefexj with force and arms broke and entered the ^aTntiTt
dwelling-houfe of the plaintiff in the parifli of St. Dunftan Sfep- hwfe, &c.
riey^ and continued there four hours without his confent and
againft his will, and all that time difturbed him in the peaceable
poflcflion thereof,, and broke open the doors to the rooms, the
locks, iron bars, ifc. thereto affixed, and broke open the b6xes,
chefts, drawers, ^c. of the plaintiff in his houfe, and broke the
locks thereto affixed, and fearchcd and examined all the roonis,
&c, in hi"§ dwelling-houfe, and all the boxes, Wr. fo broke open,
and read over, pryed into, and examined all the private papers,
books, Wr.' of the plaintiff there found, whereby the fecret af- '
fairs, C^r. of the plaintiff became wrongfully difcovered and made
public; and took and carried away 100 printed charts, 106
printed pamphlets, iSc. Uc. of the plaintiff there found, and other
100 charts^ Wr. i^c. took and carried away, to the damage of
the plaintiff 2000 /. The defendants plead,, i ft, Not guilty to
the whole declaration^ whereupon iffue is joined. 2dly, As to Sptcialjor.
the breaking and entering the dwelling-houfe, and continuing t'^catioa
four hours, and all that time difturbing him in the poffeffion "rn*t*of iSe"
thereof, and breaking open the doors to the room?, and breaking fecretary vf
open the boxes, chefts, drawers, iifc. of the plaintiff in his houfe, ^*^*
and the fearching And examining all the rooms, (!fr. in his dwell-
ing-^houfe, and all the boxes, isfc, fo broke open, and reading
over, prying into, and examining the private papers, books, (5V»
of the plaintiff there found, arid taking and carrying away the
goods and chattels in the declaration firft mentioned there found,
and alfo as to taking and carrying away the goodtand chattel^ in
the declaration laft mentioned, the defendants fay, the plaintiff
ought not to have his a'flion againft them, becaufe they fay, that
before the fuppofed trefpafs, on the 6th of Nifvember 1762, and
before, until, and all the time of the fpppofed trefpafs, the Earl
of Halifax was, and yet is, one of the lords of the king's privy
council, ^nd one of his principal fecretaries of ftate, and that
the earl, before the trefpafs on the 6th of November 1 762, made
his Warrant under his hatid and fe^l directed to the defendants^
by which the earl did in the king's name authorize and require
the defendants, taking a conftable to their ajjtftance^ to 'make ftri£l;
and diligent fearch for the plaintiff, mentioned in the faid war-
rant to be the author, or one concerned in the writing of feveral-
weckly very feditioiis papers, intltled The Monitor^ or Britijb
Freeholder^ No. 357, 358, 360, 373, 376, 378^ and 380 i
T 2 London^
4;^ MjcaAtLMAs Term, i^G^. IIT. 1765/
L^ion^ printed for J. Wiifon and J. Fell in Patem^er-^o^^
, ooataioi^g gre(s and fcandalous refiedion« ao4 in¥e£^ifcs upoi^
his maje(lv*8 government, "and upon both houfes of parliament^
and him the plaintiff hitving^fouml) lo (t\%t and apprehend and
bring together With his books and papers in £afe cuftody, 1>eft>re
the Earl of Halifax to be examined concerning the prenrifes, and
. i^i^r ^k with according to law \ in the due txecution where*
ol aQ nayor^, fiieriflfs, juftices of the peace» conftaUea, aind
^ .othor his ma)eft-y*s officers civil and military ^nd loving
fttb|eA«i whom it might concern, Mrero to be aiding and aflifting
t^ thorn the defcntbtniSt as there (hould be occa£on : And the
dcieodsmts further (ay, that afterwards aind before the trefpa£^
en the famo day :^nd year, the warrant was delivered to diov> to
b» ^xecutedi and thereupon they on the fanie day and vear In
th« dtdstfpationi in the day time about i \ o'clock, being the £»id
'timt when» ^<. by virtue and for the execution of the £ud war-
nut^ entered the plaintiff's dwelling-houfe, the outer door tbareof
l^tng then open, to fearch for and feize the plaintiff an4 his
hooks und papers in order to bring him and them before thefiarl
oi-H^if^p^i accoKling to the warrant, ?nd the defendaiits did
then aod there find the plaintiff^ and feized and apprehended
. btmf lUad did fearch b>t his books, and pjipeie in hifr ho«fi9> ^nd
did neeeiTerily feiirch and examine the rooms thereiot and ajfo
ha hoxes> ebefta, ^c. there, in order to find and feize his books
and papers, and to bring them along with the plaintiff before the
f<Hd earl, according to the warrant ; and upon the iUid iearch did
th<n in the faid houfe find and fet^e the goods and chattels of
the plaintiff in the declaxation, and on the (ame day did carry the
f4id books and papers to a houfe at WtJbmnJUr^ ,where the £aid
earl then and long before tranfa£led the bofinefs of bb office,
and delivered the fame to Lwel ^tanhfpe efi). who then was, and
St is an aiTidant to the earl in his office of iecretary of ftate, to
.examined, and who was then authorized to receive the &me
fcom tbem for tlut purpofej as i» waa lawful jbr thena tadoi and
tlve pUintiff afterwards, (to wit) on tlic lyth of November in the
faid yea;r, was difcharged out of their cuftodyi and in feasching
f(br the books nnd ^^tx% of the plaintiff the defendants did ne^
cdF^rily read over/ prv into, and examine the faid privnte papeis,
hboks, Igc. of tJie putntiff in the declaration mentioned then
found in his houfe ; and becaufe at the faid liqfie when, ^c. the
faid doors in the fnid houfe leading tp the rooms tbeitin, and tJie
faid boxes, chells, t5*<r. were Aut and faftened fe that the defend*
a;Ks could not fearch. and e)(9Ynine the faid rooms, boxes, cbcfts,
^c. they, for tlve neceflary CearcMng and eztfmining the fame,.
did then nectffiirily break and fgsce open the faid doorSy boxes,
chcits, iic as it W9S lawful for them to'do \ and on the iaid^cca^
•fion the defendants neceflarily flayed in (he lu>u(e of the plaintiff
for the faid four'hours, and unavoidably during that timcdiftotfaed
him in ihe poffcltion thereof,, they ths defendants dexnjj as little
9 - damage
Michaelmas Term, 6 Geo. IIL 17^5. 377
dam^ to the plaintiff as they poflibljr could, which are the £iQie
hreaking and entering the hQufeoF the plaintiff, tfc. (and fo i««
pesrt the trefpara covered bj this pica} whereoFtheflaintilF above
coroplatns } and this, i^c, wherefore they pray judgment, (if. RepKcarlM
The )»Iaintiff replies to the plea of juilificatioti abQve, that (as Ip ^* ^"i"^
the trcfpafii thereby covered) he, bv any thing alledgcd bv the dn- f«« ?«?"«•
feodants therein, ou|ht not to be hurred from bavftig bis a&i^fi
againft them, becaufe he fays, that the defendants at the firi/U
of Stepney^ of ihtir rwif nvrcn^^ aqd wi^iout the caufe by them i|i
^t plea alledged, hroke and entered the houTc of th6 plaimi^
cK. lie. in manner and form as the plaintiff h^ oomplain^
above ; and this he prays may be inquired of by th^ country} %r^
the defendants do fo Itkewife. There ll another plea of jpHifr
cation like the firft, with this difference only, that in the Jia£Lfilet
it is alledged, the plaintiff and his papery He. wtve carried baor9
liord Halifax^ but in the firft, it is before ^^ovel Staniofie^ Ml
aiEftant or law clerk } and ^e tike replication of dg ifumriUm
pnl^ria aify. tali cau/m^ whereupon a third iffue is jotnfd. This
paufe was tried in W'efiminfitt^aU before the Lord Qiief JulUcc^
when the jury found a fpeci^ verdift to the following purport :
The jurors updn their oath fay, as to the iffue firft joSiked* ^i^'*^ ^^
(upon the plea of Not guilty to the whole trefpafe b the dcdaraf ^
tion,) that as to the coming v/ith force anditrmSp^nd a{/h tike ir^&^
in declaraiion^ except the breaking and entering the d^veUif^-ho!^ ^
the fimtitiff^ and continuing therein for thefpace of four b^ttrSf «m all
that time di/luriing him in the pojjfejfion thereof and filching fkvurat^
rooms therein^ c^nd, in one bureau, one writing'de/if andfeveraidriffx^
rrs of the phmtrff in his houfe, and reading over and examining fe^
vend ofhts papers there j andfehnng^ inking ^and rarrying cPV^yfoM
of his books and papers there found, in the declaration complained of
thefdd defendaMs are not gtdkf* As to breaking «hd eltterin^
the dweliing»hpt^, (jTr. {ab&ue rxcepud,) ^e jurors on their oam
f^y^ that at the tune of making the following information, asd
before and until and at the time of granting the warrant here*
after mentioned, and from thence hitherto, the Earl of Hainan
was, and dill is one of the lorda of tfaie king^ privy council,
>md one of hi$ princtpnl (bcretaries^f Aate, and that before the
time in the declaration, wz. on the iiih otQ&^r 17^0, at
£/i/i»/ Jame/s^ W^fifnmfitr, one Jomaihan Scott of ^London, book<»
fdler akid publiQier, came before iufward Wefim efq. an affiftaitt
to the faid earl, and a juftiee of peace for the city and liberty of
Wefiminfier, and diere made and gave information in writing til
and before Uie faid Edward Wefhm agaihft the faid J^ Enti^
and others, the tenor of whidi information now produced and
given iq evM^nce to the jurors 'fdioweth in thefe words and $«
gures, to wit, << The voluntary information of J. Scott, in th^ Soott'si».
•« year 1755. I i)ropoltrd letting up a paper, and mentioned it to ^ormttion
H Br. Sbetb^ur^ and ia a fetv days one detin^ ^onrdmoro, an ^^fl£^
' T 3 " attorney
^yS Michaelmas Term, 6Geo. III. 176^.
* '^< attorney at law, fent for ine» bearing of my intention, and de«
'' Grcd I would mention it to Dr. SheUeare, that he, Bearimore^
<< and fome othefs of his friends had an intention of fetting up a
«* paper in the city. Shehbeafi met BtarifMre^ and mjfelf and
,^ <« Mniick (the plaintiff ), at the HornTaverHf and agreed upon
<* the fetting up the paper by the name of The Monitor^ and that
** Dr. Shebbeare and Mr. Entick ifaould have 200 /. a-ycar each.
^< Dr. Shehbeare put into Bearimorf% and EntUVs hands feme
^' paperSj but before the papers appeared Beardmore fent them
^f back to me [Scott)* Shebbeare infilled onhaving the pr oportioa
•«* of his falary paid him ; he had 56/. which I (S«?//) fetched
••« from Vere and Afgills by their note, which Beardmm
^< gave him. Dr. SbMeare Ufon this was quite left out, and the
•** nwnies have been continued to Beardmore and Entici ever
'*< fince, by fubfcription, as I fuppofedj raifed, I know not by
*' whom J it has been continued in thefe hands ever fincc.
« Shebbeare, Beardmdre, ^nA Entick all told me that the late Alder-
*< man Beci/Drd countenanced the paper ; they agreed wifh rtCj
*' that the profits of the paper, paying all charges belonging to
^' it, (hould'^be allowed me. In the paper of the 22d May, called
^< Syanusy I apprehend the chara£ter of Sejanus meant Lord
** Bute : the original Wanufcript was in the hand-writing of
•' David Meredith^ ,Mr. Beardmor^*s clerk : I before received the
y manufcript for feveral ye^rs till very lately from the faid handS|
•* and do believe that they continue ftill to write it. Jonat
'« Scott, St.James\ nth OEiober 1762.**
• •• • , * •
The above information was given voluntarily before me, and
Cgned la my prefencc, by Jotia. Scott. J. JVefton,
: And the jurors further fay, that on the 6th of November 1762,
the faid information was (hewn to the Earl of ^. and thereupon
the earl did then make and iflue his warrant direfled to the de-
fendants, then and ftill being the king's mefliengers, and duly
fworn to that dfiicc, for apprehending the plaintiff, tic. the tenor
of which warrant produced in evidence to the jurors, follows in
•The fecre- thcfe words ind figures : «* George Montagu Dunk, Earl of Ha-
u"n«t to' " ^'^"'^^ Vifcount Surtburyy and Baron Ha/i/ax^ one of the lords
fcitc plain- •" "f ^*3 majefty's honourable privy council, lieutenant«>generalof
ti/Fand hit " lus majcfty's forces, lord lieutenant-general and general gover-
p^oi **''* " "°^ °^ ^^^ kingdom of Ireland, and principal fecretary of ftate,
" il^c. Thcfe are in his raajefty's name to authorize and require
*< you, takhfg a conftahle to your ajjiftance^ to make ftri£l and dili-
!' gent fcarch for John Enticky the author, or one concerned in
" -the writing of. feveral weekly very fcditious papers, intiiled
. « The Monitor, or ^ritijb Freeholder^ No. 357, 358, 360, 373*
** 37<^. 378, 379> and 3805 London^ printed for V. Wllfimnd
*^ J. Fell in Faterftofter-Row : wWch contain grow and fcanda-
wjous
Michaelmas Term, 6 Geo. III. lyS^. zyg
*^ lou8 reflections and inve£lives upon, his majefty's goremmenti
^' and upon both hotifes of parUament, and him having founds
<< vou are to feize and apprehend « and to bring, together with
'* his books and papers, in fafe cuftody before me to be examined
*< concerning the premifes, and further dealt with according to
^' law; in the due e;xecution whereof all mafors, flieriffs, juftices
^' of the peace, cooftables, and other his majefly's officers civil
** and military, and loving fubje£ls whom it may concern, are
*^ to be aiding and aflifting to you as there ihall be occa&on; and
'^ for fo doing this (hall be your warrant. , Given at 5/. Jamis'%
^* the 6th day ol November 1 762, in the third year of his majefty'a
'' reign. Dunk Halifax. To Nathan Carringion^ James WatfoHf
^ Thomas Ardran^ and Robert J^iackmcre^ four of his majeily's*
'< melTengers in ordinary/' And the jurors further fay, the earl delivered to
caufed this warrant to be delivered to the defendants to be cxe- ^^«defeiid»
cuted, and that the defendants afterwards on the nth of Novem^ avLuu^
ber 1762, at II o'clock in the day-time, by virtue and for the who on rise
execution of the warrant, but without any conftable taken by them t9 -"?'*^^°':
their ajj^ftance^ entered the houfe of the plaintiff, the outer door execute !h<
thereof being open, and the plaintiff being therein, to fearch for remewith-
and feize the plaintiff and his books and papers, in order to bring ?[^* ^^"^ .
him and them before the earl, according to the warrant \ and the '
defendants did then find the plaintiff there, and did feize and ap«
prehend him, and did there fearch for his books and papers ia
feveral rooms and in the houfe, and in one bureau, one writing*
deflc, and feveral drawers of the plaintiff there, in Order to find
and izxTfi, the fame, and. bring them along with the plaintiff|>efore
the earl according to the warrant, and did tlien find and feize
there fome of the boqk^ and papers of the plaintiff, and perufed
and read over feveral other of bis papers which they found in the
houfe, and chofe to read,* and that they neceffarily continued there
in the execution of the warrant four hours, and difturbed the
plaintiff in his houfe, and then took him and, his faid books and •
papers from thence, and forthwith gave notice at the office of the
(aid fecretary of (late in Weflminjler unto LowlStanh^e efq. then *
before, and Hill being an affidant.to the earl in the examinations
of perfons, books, and papers /eized by virtue of warrants iffued
by fecrctaries of ft,tc, and alfo then and ftill being a jaftice of 2eu!'v**
peace for the. city and liberty of We^minjler and county of Mid-' &c. toLo'Cel
dlefex^ of their having feized the plaintiff, his books and papers, StanHope,
and of their having them ready to be exatnioed ; and they then ^j*,J?*
and there, at the inftance of the faid Lovel Stanhope^ delivered the |j Lppoimed
faid books and papers to him : And thejurors farther fay, that, to that office .
on the 13th of April in the firft year of the king, his majefty* by- J^t^^J'.^i.^^^
his letters patent under the great feal, gave and granted to the tent,MdJ«
{M Lovel Stanpope the office of law- clerk to the fecrctaries of ajoftice of
ftate; and the king did thereby ordain, con ftitute, and appoint ^^**
the law-clerk to attend the offices of his fecrctaries of ftate» in
grdcr to take the depofitions of all fucb perfons whom it may be
T4 ncccflary
li te tefiiry to et^ittine nptm trfhin whii^ ftilglft cmtem fix pub.
lie^ (:fr. (and then Uie yetAiCt (eti out ch« MtteYv potent to tW
liw-clcrk in hjte veria,) zk by the letters pfeittetit prodttctd in tvU
Aence to the jurors appears. And the jtttors further ftyf dut
^ Jjovel Stanbopii bf virtue of the faid letters patent long befotethd
time vlieo, bfc. on the 1 3tli of April in the firft year of the king
•WtSi and ever fiiice hath been, ahtl ftill is Kii^-clerk n> the king'i
fecreuries of ftate^ and hath exeeuted that office all that tiin^.
Thtt tht And the jurors further fay, that at different tiMes ftom the time
WfluS'* ^f ** Revolution to this ptefent time, the like warrants with iUi
fi^iheRe. ifibed againft the plaintiff, hSVe been fteq^nUjr gtaHted by the
voiuUoa. Aretttariea of ftate, and executed by the AeAfcngets in ordimiry
f6r the time being, and that each of the defetidamt di« refpedive-
. . ly take at the tithe of bebg appointed thefltegers, the nfuai tilth,
Tbit no ie- that he would be a true fervid t to the kbg, &c. in the #hice 6f
^^ a mcffenger in ordinary, tSTt. And the jurbrt filtthef fay, that
p&iA^tofi m demand was ever made of left at the iifoa! pUce bf koiiic of
cSpy of th^ die defendants, or any of them, by the ^athltff, 6f hU StlM»y
dw'^iwlft' or s^gcnt, in writings of the perufal and c6py of the ftHl intmt
b^ing his ' fb iflUed atgainft the ^lainti^ as aforifiiid, neither did the {Mttiff
a£ffoh ^tU' ccrnimeAce^or brinf{ his faid aAtOft sgAiiift the defetaaitits>otliiy
Iflij'liit* *** of them, within fu c»«cndir moutW hktt 4fter the fevewd sas
fa^s done afetifaid, and each ef therti were tnd wesdone ahd eofninitted
by defeod- by them as-aforefatd ) but whether, upbii the Whole ilfeiitter is
^^' aforefaid by the ju^Ors fduhd, the faid defendants ^re guilty of
ihe trefpafs hereiribefore ^attitAltktly fpeiified in PrttAing iniefh
ptihgtheboujkcfthfptaihftfu the iici^triaioH mniian^tU ^Jf^
tinuihg there fir four iouri^ and M thai time difiarUn^ iUpMO^
iff i6epc0hfi thereof, a^J /edrcbing fevi^dt fUins thefeih^ tf*ri im
tulreMi om kuriiifig^e/k^ hndfeixr^l drawers &f the pUnntif ih Us
bcfift^ and riodrng over and ekimiimh^ feverai ffbisfe^s Hkrf, effd
/eittifsgi raking and caHjiPfg tmhy fithe if his books dntpdp^s there
SpecW w. fiufidi 6r the laid phkirttiff oorht to rhaintain his ftid afllon
ci^.?°n the ^8^^"* ^^^^"^ ^^^ J"^P*^« *^* iltbgcther ignorant. And fnrsy the
comiBJir 3»dvlec of the court theteupon 5 and if upon the whole matter
ia«m. ifotefdid by the jurors found, it (hall feem to the court that the
d'efeiiddiits are jguilty of the faid trefpafs, and that the plaintiff
Ottght to maintiiii his A£lion againft thctn, the jdrors fay u^ott
their faid o«h, th*t the defendants arc guilty of the faid ttet^fl
lA manner and form as the plaintiff hath thereof ediA^hnaed
pamig^ sfgaiAft ^hem \ aiul they affcfe the damages of the plaintiff by oc-
}09i- (fafioh thereof, befides his edfts and ehar^e^ by him about his fait
in this behalf laid Out, to ibo/.^ aAd for thdfe eoft* atid chirges
to 40 /. I but if Upon the whole matter by the jurors found j il Ihall
ftem to the cdurt that the iTaid defendints are h^ guilty of ftehid
tnfpaftiOt that the irtaintirfeiught not tomathtaih his a£Hdtt againft
fhetti, then the jurors do fay upon their oath that the defendants
1^ Ufa feuihy of the (aid ircfpafs 10 manner and form as the
fttifttiff haHi thfer«bf ^om^laincd agVmft tjiem : fed as to *«
laft
lift iffiie tn the fecond fpecial juftificatioti, the jnYy foohd fbr t!ite nclaftite
^ladhttfi; thit At defendants in their own wrofJg brbke and tn* *2^i£'
teted, and did the trcfpafs as the plaintiff in his teplicatten h^ ^^^*^
iUedgcd,
Thh fpecial vetdift was twice folemnly argued at the bar; In
tSa/H^itvm hit by Serjeant Lfigb for the plaintMF, and BuHint4^
dot of the king's ftrjeants, for the defenfdants, fthd in this pre-
ftM fetm by Serjeant Gtynn for. the plain tiff^ and Nares^ one of
ibe kibg*^ feijtantSi for the defendants.
' Counfel for the ptaititiflT— At the trial of this tzo^ the d^Ibhd- Uto tmm
ants relied upon two defences ; ift, TTiat a fectetaty t)f ftite is S^t^f.
a jaftice or conferrator of the peace, and thefe mei)<^ngets zGAn^
undet his warrant, are within the ftatute of the 24th of Geo. ±.
ۥ 44. which ena^s, (among other things,) That ^^ no aflion
<* (hall be brought jigainft apy conftable or othtr officer^ cr any
^< pHfin a£bing by his order and in his aid, for any thing dbnc
<< in obedience to the warrant of a juftice, until demand hath
^< been made or left at the ufnal plade of his abode by the (>arty,
^« ot by his attorney in writing iigned by the party dtriianding
*< the fame, of the perufal and copy of fuch wattafit, ahd the
^« fame hath heen refufed or negleded for fit d^ys after fuch
^ demand," and that no demand was ever made by the plain-
titfof a perufal or topy of the warrant in this cafe, aCcordihg ro
that ftatute, and therefore he (hall not have this a£lion agairtft
thefe defendants, who are merely minifterial officers afling nnd^
the fecrerary of ftate, who is a juftice and confervator of thfe
{scare, ^dly^ Thdt the warrant under which the defendant
a£led is a kgal Warrant, and that they can well juftify what thef
have done by viftae thereof, for that at many different timei,
from the rime of the f^^^olution titt this time, the like warrantli
with ibett iffu'ed agdinft the plaintiff in thi^ cafe have been gratit^A.
\>j fecretaries of ftate, and executed by the meffengers in ordi-
nary for the time being.
I. It is moft clear and manifcft upoir this verdiA, that the Actetfi^
Earl of Halifax aded as fecrerary of ftate when he granted the
vvarrant, and nbt merely as a juftice of the peace, and thettfolrfc
i:annot be within the ftatute 24 Geo. 2. r. 44. neither would ht
be within the ftatute if he viras a confervator of the peacfc, (btft
perfon not being once named therefn ; and there is M hodt tk
the law whatever th^t ranks a fecretary of ftate ^uafi f/critiiy
9mofig the eonfervatcrs of the peace ; Lambert^ Coke^ HetvjkhU^
Lord Hafe^ &c. &c. none of the/n take any notice of a fedret^^
of ftate being ? confervator of the peace, and nntil of )ate dftyk
he Mras iio hiore indeed than a mere clerk ; a cotifervatOt xKiAt
pe^ice had n6 more power than a conftable has how, wht) b i
tonfervator of the peace at bommon law. At the time of riiStkhoft
this Atktttt^^ a jttdice of pe^ce^ CQUft^blej^ headfb(y);ttigh, ml
prbcr
Ml
aSz Michaelmas Term, 6 Geo. Ill* 1765.
other officers of the peace, bor(h<^ders ami tithingmen, as w^ll
. as fecretary of Kate, confervator of the peace and meflenger ia
ordinary, were all very well known ; and if it had been the m-
tent of the ftatute, that a fecretary of ftate, confervator of the
^ peace, and meflenger in ordinary, fliould have been within the
ftatute, it would have mentioned all or fome of them, and it not
hSiving ^one fo, they cannot be within it. A meflenger certamly
cannot be within it, who is nothing more than a mere porter, and
Lord Halifax^s footmen might as well be faid to be officers within
the ftatute as thefe defendants. Btfides, the verdid finds that
thefe defendants execute^ the warrant nvUhout tailng aconJlahU U
their affiftance : this difobedience will not only take th^m out of the
. prote&ion of the ftatute, (if they had been within it,) but will alio
difable them to juftify wl^at they have done, by any plea whatever ;
the office of thefe defendants is a place of confiderable profit,
arid as unlike that of a conftable or tithingman as can be, which
is an office of burthen and expence^ and which he is bound to
execute in peribn, and cannot fubftitute another in his room,
though lie may call perfons to affift hiip. i Hal^s P. C. 581.
This warrant is more like a warrant to fearch for ftolen goods
4Tn&. Z76. and to feize them, than any^ther kind of warranty which
ought to be dire£led to conftables and other public officers which
the law takes notice of. 2 HaU^s P. C, 149, 15a How much
more neceflary in the prefent cafe was it to take a conftaUe to
the defendants' affiftance ? The defendants have alfo difobeyed the
warrant, in another matter, being commanded to bring the
plaintiff and his books and papers before Lord Halifax ; ihcy
carried him and them before Level Stanhope^ the law-clerk, and *
though he is a juftice of peace, that avails nothing, for no fingle
jpftice of peace ever claimed a right to iflue fuch a warraitt as
this, nor did he a£t therein as a juftice of peace, but as the law^-
clerk ^o Lo^^d Halifax. The information wa$ made before jufiice
Weflon i the fiqcretary of ftate in this cafe never faw the accufcr
nor the accufed ; it feems to have been below his dignity \ the
names of the officers introduced here are not to be found in the
law-books, from the firft year-book to the prefent time.
At to the 2. A power to ifTue fuph a. warrant as this, is contrary to the
fccoAd. genius of the hwof England^ and even if they had found whatthey
learched for, they could not hiive judified under it; but they
did not find what they fearched for, nor does it appear that the
plaintiff was author ot any of the fuppofed feditious papers men-
tioned in the warrant, fo that it now appears that this enormous
trefpafs.and violei;t proceeding has been done upon mere fur-
inifc ; but the verdict fays fuch warrants have been granted by
fecretaries of ftate ever fince the Revolution 5 if they have, it is
high tiipe to put an end to them, for if they are hela to be legal
tfie liberty of this country is at an end ; it is the publifliing of
fi libel.which is the crime, and not the having it locked up in a
priyatp drawer in a m^n'9 ftudy i but if having 'n in gnc's cuf-
Michaelmas Term, 6 G^(?. III. 1765. 5183
tody was the crime, no power can lawfully break into a man's
hpufe and ftudy to fearch for evidence againd him ; this would
be worfc than the Spanijb inquifition \ for ranfacktng a man's *
fecret drawers and boxes to come at evidence againft htm» is
like racking his body to come at his fecret thoughts. The war<-
rant is to feize all the plaintiff's books and papers without ex«>
ception, and carry them before Lord Halifax ; What ? has a fe-
cretary of (late a right to fee all a man's private letters of corre-
fpondence, family concerns, trade and bufmefs ? this would be
moHftrous indeed } and if it were lawful, no man could eixdure
to live in this country. In the cafe of a fearch warrant for ftolea
goods, it is never granted, but upon the ftrongeft evidence, that
a felony has been committed, and that the goods are fecreted in
fttch a hoVife, and it is to feize fuch goods as were ftolen, not all
the gopds in the houfe ; but if (lolen goods are not' found there^
all who entered with the warrant are trefpaflets. However frCf
quentiy thefe warrants have been granted fince the Revolution,
that will not make them lawful, for if they were unreafohable or
unlawful when iirft granted, no ufage or continuance can make
them good ; even cuftoms which have been ufed time out of
mind, have been often adjudged void, as being unreafonable, con-
trary to common right, or purely againft law, if upon confidering
their nature and quality they (hall be found injurious to a multi^-
tude, and prejudicial to the common wealth, and to have their
commencement (for the moft part) through the oppreffion and
extortion of lords and great men. Davis^ 32.3. Thefe warrants
are not by cuftom ; they go no farther back than 80 years, and
mod amazing it is they have never before this time been oppofed
or controverted, confidering the great men that have preflded in
the King's Bench fince that time % but it was referved for the
honour of this court, which has ever been the prote£lor of the
liberty and property of the fnbje£l, to demolifh this monfter of
oppreflion, and to tear into rags this remnant of Star-chamber
' tyranny.
Counfel for the defendants— I am notat all alarmed, if this
power is eftablifhcd to be in the fecretaries of Hate ; it has been
ufed in the bed of times, often -fince the Revolution. I (hall
argue, ift. That the fecretary of ftate has power to grant thefe
warrants, and if I cannot maintain this, I muft adly (hew that by
the (latute 24 Geo. 2. c. 24. this adion doe.s not lie againft the
defendants the meffengers. i. A fecretary of ftate has the fame
power to commit for treafon as a juftice of peace. Kendale znd
Rotf Skin. 596. I Salt. 346. S. C. 1 Ld. Raym. 65. 5 Mod. 78.
S. C- Sir Wm. Wyndham was committed by James Stanhope^ fecre-
tary of ftate, to. the Tower for high treason the 7th of OSiober
1715 ; fee the cafe i Stra. 2 ; and Serjeant Hawkins fays, it is
certain that the privy council, or any 6ne or two of them, or a
fecretary offlate^ may lawfully commit perfous for trcafonj aiid^r
vtker
J
284^ Michaelmas Term, GGeo.Uh 1765,
9tifr offences agmnjl the JtaU^ as in all ages thcj hate done,
a Hmuk. P.C.ii Tnfeif* 4; 1 Leon. 70, 7 1, Carth, 291. 2 tt$iL
1 75* If it is clear diat a fecretary of ftate may commit for trca«*
fon and taker offences againjl ihefiate^ he certaiply may commit f(0r
a fedittous libel agaiplt the governmebtf for there can bardlj be
% greater offence againtt the ftatfcp except aAual treafoo. A i^
cretary of. ftate is within the habeas corpus ^^ but a power to
commit without a power to idue his warrant to feiae the oSeader
and the libel would be nothing ; fb itmuft be concluded that \st
lias the fame power upon information to ifftie a womo^t to feard
for and feize a feditious libel, and its author and publi(heri a
a juftice of peace has for granting a warrant to fearck {or ftolcn
goods, upon an information that a theft has been commictad,
and that the goods are concealed in fuch a place } in which caft
the conftable and officers aflifting him in the fearch, may break
open doon, boxes, ^c. to come at fuch ftolen goods. Sap-
ling tht pradice of granting warrants to iearch for fibek
agatnft the ftate be admitted to be an e?il in particular cafiet^
^^t to kt fuch libellers cfcape who endeavour to raife ttbelHos
a a greater evil^ and may be compared to the reafomng of Mr*
Juftice Fojler in the cafe of preffing, 159, where he fays, <' that
<* war is a great evil, but it is choien to avoid a greater* The
<* pra£tice of preffing is one of the mifchiefs war brings with it)
^^ but it is a maxim in law and good policy too, that aQ privaM
^^ mifchie^) muft be borne witli patience^ for preventing a o»i
<< tionai calamity,'' Wr, .
2. SuppoGng there is a defed of jurifdidton in the Secretary
oF ftate, yet the defendants are within the^/^. 24 Gia. a. <* ^4*
and though not within the words, yet they are within the tearou^
trf it4 that it is not unufual in aAs of parliament to comf^head
by conftruAion a generality where escprtfs mention is made oirfy
m a particulars the ftatute of circnmfpeBi agatii concerning the
Bifliop of Norwich extends to all biOiops* JFiiz, Probiikion y
and a Injl, on this ftatute. 25 Ed. 3* enables th^ incum?
bent to plead in qaare irnpedit to the king's fuit ; this aMb^exteads
to the fuits of ail perfons. 38 Ed. 3. 3I1 the ai) i Rich* z. or-
daiust that the warden of the Vket ihall not permit prifoners iQ
ekeirlition to go out of priibu by bail or t^afton, yet it is adjudged
that this a£b extends to all gaolers. PU^ud. Com. cafe A tiatt
35. p. the Jfat de donii conHtionalibtis extends to all other limits-
tions in tail not there particularly mentioned, and tlic Uke can-
ftruAion has been put upon feveral other ftatules. %ho. Jonet 62*
The/tfl. 7 %ir. i. f. 5. the word tonflablt therein extends to I
deputy tonitable. Moor 845. Thefe meflengers^ in ordinary
have always been confidered as officers of the fecretariesof ftate,
itid acoftifliuHnent v^vf be to their cuftody, as in Sit W.. Wjni*^
ioHi^s cafe. A juftice of peace may make a conftable pr6 h^ vice
to execute a warrantj who woul4 be wilMa the /?</. 24 Geo. 2.
. 9o
MicHAjJi-MAS TEjtM, 6 Geo. III. 1765.' a8i
$Q if iMe ^fcad^nis arc dot confbUcSy yet as ^ffktrs they bare
yotror to esecHte a wanraot of a jufticc of peace ; a conftablo
mays but oinnot be compelled to execute a warrant QUt of his
JAlUtti^iott I officers aAing uii«ier colour of of&ce, though doing
aa iUegal aa> are within thia llatute. Vaugb. 113. So that no
demaod bayiag ever been m^de of the warrant, nor any a£lion
<:QOini«need within fixmonthsy the plaintiff has no right of ac-
tion* It waa faid that a confervator of the peace h^d no more
power than a condabie has now. I anfwer, they had power to
btod over at common law, but 4 conftabiq has not. Daho/f, cap. i»
Cottxlfel for the plaintiff in replj*- It is faid this has been done
in the beft of rimes -ever fmce the revolution ; the concluGon
£ro«i thence is, that it is the more inexcufable, becaufe done in
die beft of timesy in an sera when the common law (which had
been trampled under the foot of arbitrary power) was revived.
We do not deny but the fecretary of ftate hath power to commit '
for treafon and other offences .againft the ftate, but that is not
the prefent cafe, which is breaking into the houfe of a fubjedtf
breaking into his drawers and boxe^ rahfacking all the rooms
in bis hou(e» and prying into all his private affairs ; but it is faid
if the fecretary of ftate has power to comn)it, he has power to
feafchy l^c. as in the cafe of ftolen.goods. This is a falfe con-
fequence» aod it might as well be faid he has a power to torture.
As to ftolen goods, if the officers find none, have they a right to
take away a man's goods w:hich' were, not ftolen ? Prefling is faid
to be a dangerous power, and yet it has-been allowed for the
benefit of the ftate; but that is only the argument and opinion
of a fingle judge, from ancient hiftory and records, in times-
when the lower part of the fubjefks w^re little better than flaves
to their lords and great men, and has not been allowed to. be
lawful (without an aft of parliament) finte the time of the Re-
volution. • The Jlat. 24 Gea» 2. has been compared to ancient
ftatutea, naming particular perfons and diftrids, which have
been conftrued to extend to many others not named therein;
and fo the defendants^ though no fuch officers are mentioned,
by like reafon^ are within the ftatute 24 Geo, t. ; but the law
knows no fuch officers as meffengers in ordinary to the king. It
25 faid the hahai corpus aft extends to commitments by fecre-
taries of ftate, though they are not mentioned therein : true i
but that ftatute was made to proteft the innocent againft illegal
and arbitrary power. It is faid the fecretarji of ftate is a jufticc
of peaccj and the meftengers are Ms officers ) why then did the
warrant dittft them to take a conftable to their affiftance, if
^ey were themfelves the proper officers ? it feems to admit they
t^ere not the proper officers i if a man be mad^ an officer for a
ipecial purpofe to arreft another^ he muft fliew his authority ;
and if he rcfufes* it is not murder to kill him ; but a conftable
or other known officer in the law need not ihew his warrant.
*• I-ord
286 Michaelmas I'erm, 6 G<r(?, Ill, 1765^
Eafterterm Lord Chief Judicc — I fhall not give any opinion at prcfenfi
5 Geo. 3. becaufe this cafe, which is of the utmoft confeqaence to the
public, is to be argued again ^ I (hall only juft mention a mat-
ter which has flipped the fagacity of the courifel on both fides,
that it may be taken notice of upon the next argumeni. Sup-
pofe a warrant which is againft law be grafited, fuch as no
judice of peace, or other magiftrate high or low whomfoe^er,
has power to iflue, whether that magidrate ot judice who grants
fuch warrant, or the ofGcet who executes it^ are within th«
\fiat. 24 Geo, 2. r. 4 |.? To put one cafe (among an hundred that
might happen) ; fuppofe a judice of peace iflues a warrant to
fearch a houfe for dolen goods, and direds it to four of his
(ervantSi ixrho fearch and find no ftolen goods, but feize all the
' books and papers of the owners of the houfe. Whether in fuch a
cafe would the judice of peace, his ofHcers or fervants, be within
the Jlot, 24 Geo. 2.? I dcHre that every point of this cafe may be
argued to the bottom; for I (hall think myfelf bound, when I
come to give judgment, to give my opinion upon every point in
the cafe.
Mich. Counfel for the plaintiff on the fecond argument— If the
6 eo. 3. fecretary of ftate, or a privy counfcllor, judice of peace, or
other magidrate whatever, have no legal power to grant the
warrant in the prefcnt cafe, it will follow, that the magidrate
ufurping fuch an illegal power can never be condrucd to be
within the meaning or reafon of the datute of 2/^Geo. 2. c.44.
which was made to protect judices of peace, fcfr. where thcf
made blunders, or erred in judgment in cafes within their jurif-
. dif^ion, and not to give them arbitrary power to iffue warrants
totally illegal from beginning to end, and in cafes wherein they
had no jurifdiflion at alt. If any fuch power in a fecretary of
ftate, or a privy counfeUor, had ever exifted, it would appear
from our law-books; all the ancient books are filcnt on this
head ; Lambert never once mentions a fecretary of date; neither
Jje, nor a privy counfcllor, were ever confidered as magidrates;
in all the arguments touching the Star-chamber, and petition of
right, nothing of this power was ever dreamt of; ftate commit-
ments anciently were either per mandatum regis in perfon, or by
warrant of fevcral of the privy counfellprs in the plural number;
the king has this power in a particular mode, viz. by the advice
of his privy council, who arc to be: anfwerable to the people if
wrong is done ; he has no other way but \ti council to fignify
his mandate. In the cafe of the Seven Bifliops, this matter
was infided upon at the bar, when the court prefumed the com-
mitment of them was by advice of the privy council, but that
a fingle privy ccunfellor had this pOwer was not contended for by
the crown lawyers then. This court will require it to be (hewn
that there have been ancient commitments of this fort ; neither
the f-:cretary of date or a privy counfcUor ever claimed a right t©
admiuiller an oath (but they employ a perfon as a law-clerk,
who
Michaelmas *fERM, 6 C^(?. III. 1765. 287
tVho isajufticeof peace, to adminifter oaths, and take recogni-
zances) 5 Sir Barth. Shower in Kendale and Ro^s cafe, inHiled
thev never had fuch power. It would be a folecifm in our law
to lay, there is a perfon who has power to commit, and has not
power to examine on oath, and ball the party *, therefore who*
ever has power to commit has power to bail ; it was a queilion
formerly, Whether a condable sis an ancient confcrvator of the
peace could take a recognisance or bond ? In the time of Queen
j?/f2u there was a cafe wherein lame of the judzes were of
one opinion and' fome of another* A fecretary of (late was fo
inconfiderable formerly, that he is not mentioned in the ftatuto
of/candalum magnatum : bis office was thought of no great im*
portancci he tsdces no oath of office as fecretary of flate, gives
t)o kind of fectirity for the exercife of fuch judicial power as ht
now uftirps. If this was an ancient power it mud have been an-
nexed to his office anciently^ it cannot now be given to him by -
the king ; the king cannot make two chief juftices of the Com-
mon Pleas, nor could the king put the great feal ill commiffion
before an zQ. of parliament Was made for that purpofe. There
was only one fecretary of ftate formerly, there are now two ap*
pointed by the king \ if they have this power of magiflracy, it
(hould feem to require fome law to be made to give that power to
two fecretaries of ftate which was formerly in one only. As to
coifimltments^rr maridatum regis^ fee StamK PL Coron. 72. 4 Infi^
c. 5. Court of Star'cbambir. Admitting they have power to com-
mit in high treafon, it will not follow they have power to commit
for a mifdemeanor \ it is of neceffity that they can commit in high
tredbn^ which requires inmiediate interpofition for the benefit
of the public. In the cafe of commitment by Walftngham fecretary
of ftate, f Leon^ 7 1 • it was returned on ^he habeas corpus at laft , that
the party was committed exfentetttia i^ mandato toiius concilii pri"
vati domifid: reginas becaufe he found he had not that power of
himfelf, he had recourfe to the whole privy council's power;
fo that this cafe is rather for the plaintiff. Commitment by the
high commiffion court of Torh was declared by parliament illegal
from the beginning; fo in the cafe of (hip-money the parlia-
m^ent decbred it illegal.
Counfel for the defendants on the fecond argument— The moft
able judges and advocates ever (ince the Revolution, feem to
have agreed that the fecretaries of ftate have this power tg com«
mit for a mifdemeanori Secretaries of ftate have been looked
upon in a very high light for two hundred years paft. 27 //. 8:
c* II ..their rank and place is fettled by 31 /f. 8. c.\o. 4 Infl.
362. cap. 77. of precedency. 4 Infl. 56. Selden^s Titles of Ho^
nour C. Officers of State / fo that a fecretary of ftate is fomething
more than a mere clerk, as was faid. M'mfhenu verb. Secretary t
he is i fecretiurihis conciliis domint regis, Serjeant Pengelly moved
that Sir Wm.* Windham might be bailed ; if he could not b^
committed
lS8 MiCQAELMAS TerMi 6Gco. III. 17$^^
.committed by the fecretary of ftate for fom^Ing left than tmr
. fon, why did he move to have hxm bailed ? thU fe^ms ^ coa-
ceffion that' he might be committed in ths(t ca(^ for fomethio^
lefs than treafon. Lord Hottkcm^ to agree that a commitnueot
by a fecretary of ftate is good. Shin. 598* i Ld* R^ffm, 65.
There is no cafe in the books that fays ir\ what C4fes ^ fcier^ry
of ftate can or cannot commit i by what power is it that he w
commit in the cafe of treafon, and in no other cafe ? The re«
folution of the Houfe of Commons touching the petition 1^
right, Se/Jen, laft volume. Parliamentary Hijiv^^ vol. ^•fit- 95^
' 96. Secretary Cofu told the lords, It wa$ his duty to cgmniit by
the king's command. ToxM% cafe, Clarth. 991. : lie was ooilif^
mittcd by the fecretary of ftate on the ftatute of ^i%* for re-
fufing to anfwer whether he was a RomiQi pri(;ft } Tlr ^{<M
and Derij^ Fortefcu/s Rep: the cprpmltment was by H fecre**
tary of ftate, Mich. 10 Anti^^ for a l^di 9Dd hei4 good. {N^e;
BatburJI, J. fald, he had feen th& habeas corpus aod the re^t^i
and that this was a commitment by, a fecretary of ftate). 72k
Kinf and Earbury, Mich. 7 Geo. 2. % Bernard. 346. Wiis « Ifk^
tion to (iifcharge a recognizance entered into for writing a p^pcr
<;allcd the Royal Oak. . Lord Hardwicke faid k was fettled ia
Kendale and Ro^^ cafe, that a fecretary of ftate might appreheirf
pcrfons fufpe£ted of treafonable pra£lice$ \ and ^^re are a great
number of precedents in.the Crown-of&ce of (;ama^tinents by
feeretaries of ftate for libels agatnft ths government. Aft^ U<°0
piken to confldcri the whole court gave judgment this tcrps (^
t}ie plaintiff.
Curia— l^^c defendants make two defences ; firfi^ That they
are within the Jlat. 24 Geo. 2. c. 44. ; idly^ ^fhat fuch warrants
have frequently been granted by feeretaries of ftate ever lincc the.
Revolution, ,and hjjve never been controverted, apd that they arc
legal } upon both wliich defences the defendants rely.
A fecretary of ftate, who is a privy counfellor. If he be a con*
Cervator of the pcace» whatever power he has to commitia by
the cofmouDQ law : if he be confidered only as a privy counfellor,
he is the only one at the board who has eKcrcifed tbM autliority
of late years; if as a confcrvator, he never binds to the peace ^
no other coofewator ever did that we can find \ he has no power
10 adminiAcv aa oath, or teke bail ; but yet it miift be adiiiittei
that he is iu the fuH exercife of this pow#r toconifnif, fprtvta*
ffm and feditious libels agamft the govemnMnt, whalevev wne
Aq original fource of that power $ as appears ffom the eaftt>£
the ^i/ef^ and De^fby, Tar King and Eai^,- and Semdkk and
i&er's cafe.
We rouft feow what a fecretary af fti^e U, WdM Wf M».4«tf
whether lie is within ihcjfift. 24 Geot. 2. ^^44* Ifo hibfi Utpf
si the June's fignet wherewith the king's privAte kttertare fipn-
2 l»/f*
Michaelmas Term, 6 Gtfo.IIL lyGs^ aSg
5 Infi. 556. Coke upon Ariicullfuper charias^ 28 Ed. i. Lord
&l/s filcncc is a ftrong prcfumption that no fuch .power as he
novi^ exercifes was in him at that time } formerly he was not a
privy counfcllor, or coiifidercd as a magiftratc \ he began to be
fignificant about the time of the revolution, and grew great
when the princes of Europe fent ambafladors hither ;- it feems
incon&ftent that a fecretary of ftate (hould have power to com*
nit, and no ppwer to adminider an oath> or take bail ; who cati
commit and not have power to examine ? the Houfe of Com-
mons indeed commit without bath, but that is nothing to the
prcfcnt cafe 5 there is no account in our law-books of fecretaries
of ftatCj except in the few cafes mentioned 1; he is not to be
found among the old confervators j iq Lambert^ Crompton, FitZ'^
herbert^ &c. &c. nor is a privy counfellor to be found among
our old books till Kendall and Ro^s cafe, and i Leon, 70, 71.
29 Eliz. is the firft cafe that takes notice of a commitment by a
fecretary of ftate; but in % Leon. 175. the judges knew no fuch
committing magiftratc as the fecretary of ftate. It appears by
the petition of right, that the king and council claimed a power
to commit ; if the fecretary of'ftate had chimed any fuch power^
then certainly the petition of right wonld have taken notice o£
it ; but from its filence on that head we niay fairly conclude h«
. neither claimed nor had any fuch powpr; the flat. 16 Car. i»
for regulating the privy council, and taking away the court o£
Star-Cbumber, binds the king not to*commit, and in fuch cafe,
gives a habeas carpus /it is ftrangc that Houfe of Common*
ihould take no notice of the fecretary of ^ftate, if he then had
claimed power to comn\it. This power of a fecretary of ftate
to commit was derivative from the commitment per tnandatum
regis : EphemerU parliamentarian Coke fays in his fpeech to the
houfe, «« If I do my duty to the king, I muft commit without
**f (hewing the caufe 5" 1 Lectu 70, 7 1 . (hews that a commitment
by a fiitgle privy counfcllor was not warranted. By the licenling
ftatute of 13 li 14 Car. 2. cap. 33. fee. 15. licence is given to
a mcffengcr under a warrant of the fecretary of ftate to fearch for
books unlicenfed, and if they find any againft the teli^jion of the
church oi England^ to bring them before the fecretary of ftate ; the
warrant in that cafe exprefled that it was by the king's comniand.
See Stamford*^ comment on the mandate of the king, and Lam^
berty cap. Bailment, All the judges temp. Ellz. held that in a
warrant or commitment by one privy counfcllor he muft fliew it '
was by the mandate of the king in council. Sec Afid^ 297. the
opinion of all the judges ; they remonftrated to the king that no
fubjecl ought to be committed by a privy counfcllor againft'the
law of the realm. Before the 3 Car. i. all the privy counfcUors
cxcrcifed this power to commit ; from that sera they^ifufed this
power^ but then they prefcribed ftill to commit p7r mandatum
regis. Journal of the Houfe of Commons 195. 16 Car. i. Coke^
Selden^ &c» argued that the king's power to commit^ meant that
Vol, II. U '^ he
490 Michaelmas Term, 6 ff^(?. III. 17^5.
he had ftich power by his courts of juftice. In the cafe of the
fcven bifhops all the court and king's council admit, that fup-
p'ofing the ve arrant had beco figned out of the council, that it
would have been bad, but the court prcfumcd it to be figned at
the board ; PolUxfen in his argument fays, we do not deny but
the council bo:ird have power to commit, but not out of council i
this IS a very ftrong authority ; the whole body of the law fecm
not to know that privy counfellors out of council had any power
f commit, if there had been any fuch power they could not
have been ignorant of it ; and tkis poXt^er was only in cafes of
high treafoH, they never claimed it in any other ciafe. It was
argued that if a fccretary of ft.itc hnth power to commit in high
treafon, he hath it in caf?s of leffer crimes : but this we deny,
for if it appears that he hath power to commit in one cafe en/j?>
hoV can we then without authority fay he . has that power ia
Other cafes ? he is not a confervator of the peace ; Juftice Rt^^j
only f.iys he is in the ^lature of* a confervator of the peace : Wc
aire now bound by the cafes of ^bt ^een and Derby^ and.T*^
iCing and Earbwj*
The fecretary of ftate is^no confervator nor a juflicc of the
peace, qtMfi fccretary, within the words or equity of the fat.
24 Geo. 2. admitting hitn (for argument's fake) to be a confer-
vator, the preamble of the ftatute (hews why it was mate, and
for what purpole; the only grantor of a warrant therein men-
tioned, is a juftice of tlie peace ; jufiice df peace and confervai^t
are not convertible terms ; the cafes of conftrudlion upon old
ftatutes, in regard to the warden of the Fleets the biihop of
Norwich, Sec, are not to be apjolied to cafes upon modem ftatutes.
The beft way to conftrue modern ftatutes is to follow the words
thereof; let us compare a juftice of peace and a confervator;
the juftice is liable to a£lions, as the ftatute takes notice, it is
applicable to him who a£ts by warrant dire£tcd to conilables;
"a confervator is not intrnfted with the execution of laws, which
by this aft is meant Aatutes, which give juftices jurifdiftion;
a confervator is not liable to a£tions ; . he never a£ts $ he is
almoft forgotten ; there never was an aftion againft a conferva-
tor of thb peace as Ifuch ; he is antit)uated, and could never be
, , thought of when this a£t was made ; and ad ea qua frequenttr
accidunt jura adaptantur* There is no a£t of a con liable or
tithingman as confervator taken notice of in the ftatute : will
ihe fecretary of ftate be ranked with the hightrft or loweft of
thefe confervators ? the ftatute ol^Jac. i. for officers adling by
authority to plead the general iflue, and give the fpecial matter
in.evidenccj when confidcred with this ftatute of 24 Gt9* 2.
the latter fcems to be a fecond part of the a£tof Jac. i. and
we arc all clearly of opinion that neither the fecretary of ftate,
nor the meflengers, ate within the fiat. 24 Geo. a. but' if the
mcftengers had been within itj as they -did not take a coaftafale
*2 ^- with
Michaelmas Term, 6 Gr^. III. 1765. 291
With them according to the warrant, that alone would have been . .
fatal to them, nor did they purfue the warrant in the execution
thereof, when they carried the plaintiff and his books, f^c. before
Level Stanhope^ and not before Lord Halifax ; that was wrong;
becaufe a fecretarf of (late cannot delegate his power, but
ooght to zQt in this part of his office perfonally.
The defendants having failed in their defence under the ftatufe
24 Geo. 2. ; we (hall now confider the fpecial juftification, whe-
ther it can be fuppprted in law, and this depends upon the jurif-
di£Uon of the fecretary of ftate ; for if he has no jurifdi£tion to
grant a warrant to break open doors,, locks, boxes, and to feize
a man and all his books, bfc. in the fir ft in (lance upon an in-
formation of his being guilty of publifliing a libel, the warrant
will not juftify the defendants : it was refolved by B. R, in the
cafe of Sbergoldv, Holbfvay, that a juftice's warrant exprefsly to
arreft the party will not juftify the officer, there being no jurif-
difiiion. 2 Stran, ibo2. The warrant in our cafe was an exe-
cution in the firft ioftance, without any previous fummons^
examination, hearing the plaintiff, or proof that he was the
author of the fuppofed libels; a power claimed by no other magif-
trate whatever {Stroggs C.J. always excepted) ; it was left to the
difcretion of the fe defendants to execute the warrant in the abfence
or prefence of the plaintiff, when he might have no witnefa
prcfcnt to lee what, they did ; for they were to feize all papers,
' bank bills, or any other valuable papers they might take away
if they were fo dipofed ; there might be nobody to detedi them.
If this be lawful, both houfes of parliament are involved in it, '
for they have both ruled, that privilege doth not extend to this
cafe. In the cafe of Wilkes^ a mfember of the Commons Houfe,
all his books and papers were feized and taken away } we were
told by one of thefe meffehgers that he was obliged by his oatli
to fweep away ail papers lohatfoever : if this is law it would be
found in our books, but no fuch law ever exifled in this country^
our law holds the property of every man fo facred, that no man
can fet his foot upon his neighbour's clofe without his leave ;
if he does he is a trefpaffer, though he does n6 damage at all \
if he will tread upon his neighboaVs ground, he muft juftify it
' by law. The defendants have no right to avail themfelves of
the ufage of thefe warrants fince the Revolution, and if that
would have juftified them they have not averred it in their plea,
fo it could not be pot, nor was in iffue at the trial ; we can
fafcly fay there is no law in this country to juftify the defendants
in what. they have done; if there was, it would deftroy all the
comforts of fociety ; for papers are often' the deareft property a
man can have. This cafe was compared to that of ftolch
goods ; Lord Cole denied the lawfulnefs of granting warranty to
fearch for ilolen goods, 4 Inft. 176, 177. though now it prevails
to be law; but in that cafe the juftice and the informer mu(l
proceed with great caution ; there muft be an oath that the
• Ua party
A^2 Michaelmas Term, 6 Geo. III. 1765;
party has had his gdods^ftolcn, and has ftrong reafon to bth'eve
* they are concealed in fuch a place ; but if the goods are not
found there^ he is a trefpaffcr ; the olTicer in that cafe is a wit«-
nefs ; there are none in this cafe» no inventory t;iken ; H* it had
heen legal many guards of property would have attended it. We
{hall now confider the ufage of thele warrants (ince the Revoltv-
tion ; if it began then, it is too modern to be law ^ the common
law did not begin with the Revolution ; the ancient conftittttion
which had been almod overthrown aiul deftroyed, was then re*
j)aired and revived ; the Revolution added a new buttrefs to the
ancient venerable edifice : the A*. B, lately faid that coobjedion
had ever been taken to gener.iI warrants, they have pailed /ii^
^ JiUntlo : this is the firft inftance of an attempt to prov^ a modern
practice of a private oflice to make apd execute warrants to enter
a man's houfe, fearch for and take away all his books and papers
in the firil inilance, to be law^ which is not be found in our
books. It mud have been the guiic or poverty of thofe upon
whom fuch warrants have been executed, that deterred or hia>
dcred them from contending againft the power of a fecretary of
date and. the folici tor of the treafury, or fuch warrants could
never have pafled for lawful til) this time. We are inclined to
think the prefent warrant took its firft rife frqpi the U^cDCng
a£l, 13 & 14 Car, 2. r. 33. and are all of opinion that it cannot
be judified by law, notwithftanding the refolutiou of the judges
in the time of Cia. 2. and Jac. 2. that fuch fearch warrants axe
.lawful. State Trials^ vol, 3. 58. the trial of Carr for a libeL
There is no authority but of the judges of that time that a Koufe
liob.ft53* ^^y ^ fcarched for a libel, but the twelve judges cannot make
1 Vent. SI* law ; and if a man is puni&ablc for having a libel in his private
^s^ li?* ^"'^^^T* 2s many cafes fay he is, half the kingdom would be
* ' * * guilty in the cafe of a favourable libel, if libels may be fearched
• for and fcizcd by whomfoever and whercfoever the fecxetary of
ftate thinks fit. It is fiiid it is better for the govermnent and
the public to feize the libel before it is publiQied \ if the legifla-
ture be. of that opinion thcv will make it lawful. Sir Samuel
AJlry was committed to the Sr^wrr,.for afferting there was a law
of (late didindl from the comgdon law. The law never forces
evidence from the party in whofe power it is ; when an advcr-
fary has got your deeds, there is no lawful way of getting them
again but by an a£iion. 2 Stran, 1210. The King and Qome^
Jius. The King and Dr. Purnelly Hit. 22 Ge9. B. R. Our law
is wife and merciful, and fuppofes every man accufed to be in*
nocent before he is tried by his peers : upon the whole, we are
all of opinion that this warrant is wholly illegal and void. One
word more for ourfelves ; we are no advocates for libels, all go-
vernment^ muft fet their faces againft them, and whenever tkey
come before us and a jurv we fliaU fet our faces againft thcm^ and
if juries do not prevent tnem they may prove fatal to liberty, dc-
ftroy government and introduce anarchy ; but tyranny is better
than anarchy, and the woxft government better than none at alL
Judgment for the plaintifiT.
t 293 ]
HILARY TERM,
6 Geo. III. 1766.
Addifon verfus Grey. C. B.
DEBT upon an arbitration^bond, ' The defendant craves Debt upon
oyer of the condition, which isj that if the defendant a/^wWrra-
Gray and one Mary Birknodod (hall perform the award of Wil^ 11^^^*
iiam Bradley and John Bellamy^ arbitrators, chofen between the good in p»t
fai4 Gray and Birkwood^ and the plaintiff ^dU/^/i, concerning all y^^ ^^din
matters in difference between them, foas the a\rard be made in ^^^
writing on or before the firft of September then next, then, lie,
which being . read and heard, the defendant pleads no award
was made. The plaintiff replies, and fets out an award, wherebr Ante, Mich,
the arbitrators awarded that all a£lions, fuits, quarrels, and dii- |G«»* 3<
putcs to the day of the date of the bond flipuld ceafe between s^this.P.
the parties, and that the plaintiff (hould hold and enjoy three
acres of meadow in Glatton till the lOth of O^ober then next,
and then he (hould quit the fame to the faid Gray and Birt-^
^uood; and that the faid Gray and Birkwbod (hould on or before
the 10th of September then next pay to the plaintiff the fum of
4I* 15^'t And that they (hould pay all cofts and charges due to
the (leward and attornies on account of an a£lipn of replevin
depending in ^the court of the hundred of Norman Croji, and
(hould pay all the cofts and charges of the faid arbitration*bond«
and of that their award, and that the parties (hould execute mu»
tual general releafes on or before the 29th of Siftember thea
next ; and the plaintiff avers, that the faid Gray and Biriwoed, -
or either of them, have not paid to the plaintiff the faid' fum of
4/. 15/. or any part thereof, on, or at any dav before the, faid
xoth day of Ociober then next after the making of the awards
according to the form and tSkdt thereof ; and this, (5V« the de-
fendant demurs, and the plaintiff jobs in demuner.
It was obje£ted for the defendant, that this award was void 3 Lev. 4 1^
in awarding cofts in an inferior court unfettled and uncertain, »° ?<»'.'"' ^
and did not make a (inal end between the parties. But per ^ *^°^* *
turiam'^Sixc award is good for the payment of the 4/. 15 /., and «
U 3 the
^94 Hilary Term, 6 Geo. III. 1766.
the mutual releafes make a final end between the parties, and
though other parts of the award be bad^ yet the breach is well
alEgned. Judgment for the plaintiff.
.Ravenfcroft verfus EyIcF, Efq. Warden of the
Fleet. C. B.
A^'afeX* A CTION on the cafe againft the warden of the Fleet, for the
an*cfcape**' cfcapc of One JVilliam Warren. The defendant pleaded
upon mefne not guiltyi and the ifiue was tried before Mr. Juftice Gould at
''Tfontf* 1*^* Guildhall the 13th of June laft, when a vcrdia was found for
turMto'^Sic ^^ plaintiff, damages 18/. 3/., cofts 40/., fubje£t to the opi-
Fieet the nion of this court upon the following cafe^ viz.
fame day,
plaintiff pro- Thc faid Warren being indebted to the plaintiff in the fum of
ceca»to linai i8/. 3/. Upon his promiffory note of hand, and alfo for gootis
Irtf rilSTi- fold and delivered. Thc plaintiff, in Trinity term in the ^i\\
tion lies 7^3^ of the king having made an affidavit of his caufe of ac-
•grnft thc tion, delivered a declaration againft the faid Warren to the turn*
Sbmc^** key of the Fleet prifon, he the faid Warren being a prifoncr in
the cuftody of the defendant the warden at the fuit of one Ptdmer^
as is fct forth in the plaintiff's declaration.
That afterwards, upon the firft of O^ober, the defendant w-
tuntarily permitted the faid Warren to efcape put of the faid prifon,
and go at large out of his cuftody, the faid plaintiff not being
fatisfied his damages in the faid declaration.
Tliat the plaintiff »*ff&wi/f^ of fuch efcape^ on the faid firft of
OBoier did notwithflanding afterwards proceed in his faid caufr
againft the faid Warren, and in the then next Hilary term obtained
judgment againft him for the fum of 30/. 16/. for bis daoiages
and cofts, as is fet forth in the declaration.
That after having fo obtained judgment againft thc faid War*
ren^ the plaintiff commenced his prcfent action againft thc de-
fendant the warden.
That Warren having fo efcapcd on the faid firft of OBtAer^
returned to the Fleet prifon on the fame day, and has ever fincc
continued a prifoncr therein in thc euftody of the defendant.
The queftion therefore fubmitteito the court is, Whether
the plaintiff is entitled to recover in this a^ion againft the de-
fendant, he the plaintiff having proceeded to judgment againft
the Cud warden, as i$ above mentioned.
This
Hilary Te'slm^GGco. III. 1766. 295
Tikis cafe was argued hj Serjeant Davy for the defendant,
and by Serjeant Hewitt for the plaintifT^ in Hilary term in the
6th year of King George the Third.
Judgment of the court.
Lord Chief Juftice injmol^The cjueftion is. Whether th"s
adion upon the cafe lies, the plaintiff having proceeded to fii.al
judgment againd the prifoner IVarreHy after he the plaintifF
knew that the warden had voluntarily permitted him to efcape ?
The quantum of the damages is nothing to the purpofe; fcr if
the jury ha^ power in this cafe to give damages, 'we muft now
take it that, they have done right; and I am of opinion that the
jury were not confined to give the exafl damages in the final
judgn^cnt, but had a power and difcretion to aflefs what da«
magts they thought proper ; for this being an a£tion upon the
cafe, the damages were totally uncertain and at large, and War^
ren e&aped by the perniiflton of the warden before final judg-
ment. But it is objcded for the defendant the warden, that the
efcape was but for a fiugle day, that the plaintiflF knew thereof,
and proceeded to final judgment, and might have charged the
defendant in* execution, ^as he returned again to the Fleet the
fame diy, and is now there. But to this I anfwer, that when*
ever a gaoler permits a voluntary efcape, from that moment he
commits a tort, and the plaintiff has a right of a£tion to recover
fuch damages as a jury (liall pleaie to give for the fame. 'Tl.e
prifoner when Voluntarily fuffered by the gaoler to efcape, is in-
fiantly at large ; the gaoler cannot afterwards retake and detain
him for the fame matter ; the plaintiff may retake him by an
efcape warrant, but has his option to proceed as he pleafes euher
againft Warren to judgment and execution in this cafe, or
againd the warden. I fay Warren is n6t now a prifoner at the
plaintiiTs futt although he be locked up every night, and though
the plaintiff might lawfully proceed to judgment againd him,
yet he could not charge him in execution ; and the cafe of Key -
and BriggSf Skin. 582. is dire£tly in point ; I have not the lealt
doubt but that judgment mud be for the plaintiff, ^nd if we
ihould do otherwife we (hould permit every gaoler in England
to let his prifoner go at large, as much as if they had never been
arreded ; if an efcape be voluntary in the gaoler, nothing after-
wards wijl purge it. Sali. 271. Judgment fbr the plaintiff /^r
tilam curiam. *
U4
[ ^96 ]
EASTER TERM,
6 Geo. III. 1766.
Truman verfus Walgbam and Key/ C. B.
Trefpaff. TN trcfpafs thc plaintiff declares that the defendants, on tlic
Prefcr.ptiOA J^ j^jj q{ November 1 764, with force and arms, fa'f. at Gaifif'
through the i*^"^* «n thc county of Lincolni (lo|)ped thc waggon of the
itrectsof plaintiff drawn by his cattle in and along the king's highway
F*"*^j* . there, and feized and took from the cattle drawing thcT waggon
co^aderation thc gccfs of the plaintiTF, viz, one pair of his iron gccrs, and
of repairing carried a Way, kept, and detained the fame, and alfo that the
thw* u'r" defendants, on the jlh of Novembtr 1764, with force and arms,
becauVe ^Tocs ^tGainJbrough^ feized, fook, and carried away dthergeers of the
notOyhe plain titf, to wit, one pair of 'iron gecrs, at Gainjbrwgh lately
the'ttmctt* found, and converted and difpofcd thereof to their own ufc, to
there, and thc plaintiff's damage of 10/.
the plaiotiflF
Effing *^ith '^^^ defendants as to coming with force and arms, £^r. plead
bis waggoa Not guilty, and thereupon iilue is joined \ and as to the reGdue '
torough a q{ thc trcfpaffcs abovc fuppofcd, that thc plaintiff ought not to
?i*dd Mt ***^^ ^** aftion againtt them, becaufe they fay, that Sir Nevili
lepair, for George Hickman bironet, at the time when, tic* long before,
any thiNg ^^j yg^ {g feifed of the manor of Gaiftjbrough in his demefne as
totheo?!* of fee, thc faid town of Gavt/hrovgh (which is an ancient mar-
ii«iy. ket to^n and a borough) beinp: iituated in, and parcel of the
faid manor, and that the faid Sir NeviUy and all thofe whofe
eftate he hath, and at the faid time had in his faid manor, from
time whereof, t^c. have at their own proper cods and charges
repaired, cleanfed, and maintained, and have ufed and been ac-
cuftomed, and ought to repair, cleanfe, and maintjun divers and
pianyjlrcets belonging to the faid town or borough as often as was
neceffary, and by reafon thereof have for and during all the time
before mentioned of right enjoyed,, received, and taken, and
have ufed and been accuftomcd to receive and take as belonging
to the faid manor a certain toll, of and for every cart and wag-
gon coming from out of any other lordfhip or manor, and paffing
over any part of the manor of Qainjbrougb into the town or bo*
rough
12ASTER Term, 6 Geo. III. 1766. 297
rough of Gainjbrougb at all times In the year, except fuch times
during which the common marts or fairs are held at Gainjbrougb
aforcfaid, (that is to fay,) for every cart or waggon of any perfon
or perfons whatfoever, except the carts and waggons of the bur-
gelTes or Inhabitants of the faid town or borough, and the carts
and carriages loaded with fuel for the ufe of the inhabitants '
within the faid manor, and the carts and waggons of other per-
fons otherwife exempted, according to the rate of one penny a
wheel for every wheel of fuch cart or Waggon, the faid toll being
payable and to be paid by the perfon or perfons who (hall drive
or condu£l fuch cart or waggon into the faid town or borough,
and in default of payment of the faid toll, then they have ufcd
and been accuflomed, from and during all the time aforefaid, to
didrain any part of the hamefs of the cattle drawing fuch carts
or waggons, and to keep and detain fuch diftrefs until the faid
toll was fatisfied and paid to them. And the defendants further
fay, that at the faid time when, C^Tr., and not being the time
when any of the faid common marts or fairs were held, a certain
waggon of the plaintiff having four wheels coming from out of
another lordfliip or manor, that is to fay, the lordfliip or manor
of Lea in the county aforefaid, and palling over the manor of
Galnjbrough was driven and conduced by the fervant of the
plaintiff, and paOed Into the town or borough of Gainjbrough^
the faid plaintiff not being at the time when, U'r. a burgefs or
inhabitant of the faid town or borough, nor a perfon otherwife
exempted from the payment of the faid toll, and his faid waggon
not being then loaded with any ki|^d of fuel; whereupon the de-
fendants, being colleftors of the toll and fervants of Sir Nevile
on that behalf then and there requefted the fervant of the
plaintiff fo driving and conducing the faid waggon as abovefaid
to pay the toll on that behalf due for the faid waggon, (chat is to .
fay,) four pence for the faid time when the faid waggon of the
plaintiff was fo driven and conduced by the fervant of the
plaintiff, and came from out of another manor or lord(h}p, and
pafied over part of the faid manor of Gtun/brough into the town
or borough of Gainjbrough as aforefaid \ which faid toll the faid
fervant of the plaintiff did then and there refufe to pay, and did
not pay, and the faid toll is actually yet unpaid; therefore the
defendants,' as fervants of the faid Sir NeviU, and by his com-
mand, at the time when, bfc. at Gain/brougb aforefaid, did In
the name of a diftrefs for the faid toll ftop the waggon of the
plaintiff drawn hy his cattle in the king's highway at Gainjbrougb .
within the manor and town or borough aforefaid, and in the
name of a diftrefs for the faid toll, did then and there feize and
take from the faid cattle drawing the faid waggot) the faid iron
geers of the plaintiff in the declaration fpecined, and did carry
away, keep, and detain the fame, as it was lawful for them to
do; which 18 the fame refidue of the trefpaffes wherjeof the
plaintiff above complains againft them ; and Uiisj (siV.
And
298 Easter Term^ 6 Geo, IH* 1766.
The ria'n- And the plaintiff, as ta the faid reCdue of the trefpais In the
tiff tfprirt above plea, fays, he ought not to be barred, iic. becaufe he fays
f"*"^""rU' that the defendants at the time when, l^c^ 2t Gai/j/brwgbf of
an*d!MTerfci thcir own WFong lloppcd the plaintiff's waggon drawn wiA his
theprcfcrip- cattlc, Vc. and feized and took from the cattle, (fc* the ^cers of
^^^ the plaintiff in the declaration firft mentioned, and carried awayt
' kept, and detained the fame, and alfo at Gain/brougb fei^ed^
took, and carried away the other geers of the plaintiff in the de-
claration fecondly mentioned, there found and converted and
difpofed thereof to thcir own ufe, as the plaintiff has above com->
plained agiinil theraj ivithout^ ihis^ that the faid Sir NruUe
George Hickman^ and all thofe whofc eftate he hath, and at the
faid time had in his faid manor, from time whereof, &r. have
at their own proper coils and charges repaired, cleanfed, and
maintained, and have ufed and been accuftomed and ought to
repair, cleanfe, and maintain divers and many greets btlongutg to
• the town and borough of Gainjbrough as oftsn as was neceffary,
•and by reafop thereof have for and during all the time aforefaid
of rignt enjoyed, received, and taken, and have ufcd and been
accuilomed to receive and take, as belonging to the f^id manor,
a certain toll of and for every cart and waggon coming from out
of any other lordfliip pr manor, and pailxng over any part of £he
manor of GainJhrGugh in the faid town or borough of Galnjbrougb^
at all tinu's in the year, except fuch times during which com*
mon marts or fairs are held at Gaitt/brough, (that is to fay,) for
every cart or waggon of any perfon or perfons whatfoever, ex-»
cept the carts and waggons of the blirgeffes or inhabitants of
the faid town or borough, and the carts and carriages loaded
with fuel for tlie ufe of the inhabitants within the faid manor^
and the carts and waggons of other perfons exempted, according
to the rate of one penny a wheel for every wheel of fuch cart or
waggon, the faid toll being payable and to be paid by the perfon
and perfons who (hall drive or condu£l fuch cart or waggon into
the faid town or borough, as the faid defendants have by their
faid plea in that behalf above -alledged ; and this he is ready to
verify; wherefore inafmuch as the defendants have acknow.
ledged the flopping the faid waggon of fhe plaintiff, sSi'r. the
plaintiff prays judgment and his damages by reafon of thofe tr^*
paffes, to be adjudged to him, i^c. The defendants take iffue
on this traverfe of the prefcript^ve right, and thereupon iffue is
joined \ which was tried at the la(t Lincoln ailizesi when a vec*
di£t was found for the defendant.
It was moved for the -plaintiff in arreft of judgment, that this
is a bad prefcription, being for a toll thorough^ which caimot be
good without a good confideratioa, which is not ihewn or plcade%l
in this cafe, for it is not ajledged that the lord of the manor re«
pairs, cleanfes, and maintains aiitbedt^tts ip Gainjkrough^ hut
only divers and manyjlreets^ (g th^it for any tlung (h^^t ^yptars on
tl^efe
' Easter Tekm, 6(7^0. IIL 1766. 299
thefe pleadings the plaintiflF's waggon might be pafling through
a ftreet'in Gain/brough which the lord of the manor doth not re-
pair ; this is dearly a toll thorough a flreet which the lord has
not fliewn that he repairs } and Uiis obje^on alone was relied
upon.
For the defendant it was admitted, that a toll thorough can-
not be taken where there is no confideration, but iofifted the
confideration here alledged is fufficient^ and need not be fo large
as the prefcription \ that it is fufficient, if there be a charge to
the lord, and a benefit to the king's fuhjeAs, that the repairing
divers and many ftreets is a benefit to the inhabitants and all per-
fons wbofe particular bufinefs calls them thither, and to all the
king's fubjeds who pafs through that town. Afanj cafes were
cited touching toll thorough and tolt traverfe ; but as none of
them are exaSly in point, it is unneceflary to fet them down.
The court took time to confider, and in this term arrefted the
judgment.
Ciirui— This is a prefcription for a toll through the king's
highway, the ftreets of Gain/brougby which cannot be taken
without a good confideration be alledged. The reafon is, be«
caufe it is to deprive the fubje& of his common right and inhe->
ritance to paf& through the king's highway, which right of paf-
fage was before all prefcriptions. -ifoor^ S14fS7S* Toll tra-
verfe, or for going through a man's private land, may be pie-
fcribed for, without any confideration $ and payment time out
of mind is fufficient, ai|d will fupport the prefcription. In the
cafe at bar toll is demanded of the fubjeft in the king's highway
for pai&ng there ; the fubje£t ought to have a benefit for paying
it i the confideration here is for rq>airing, cleanfing, and main-
taining dn»ers and manyjireits in Gainjbrough^ not for repairing^
&r. all the ftreets there; how, therefore can we fav that the
!>laintiff's waggon was paffing through any ftreet repaired by the
ord of this manors the waggon might be paffing over fome
ftreet not repaired by him when the diflrefs was taken, for any
thing that appears to the contrary, and we mnft take it that it
was fo i we cannot let the defendant have judgment upon this
record. Courts are exceeding careful and jealous of thefe claioiB
of right to levy money upon the fubjeA ( thefe tolls began, and
were eftabliflied by the power of great men. The defendant's
plea is as bad as can be; the lord has artfully tried to make it
doubtful, whether this be a toll thorough or toll traverfe, for he
has confounded them together ; the confideration he claims it
for, is for mending the highway, and he would have us believe
it is for pafling through his own manor or land. The judgment
was arreftcd upon the merits, fer Mam curiam.
300 Easter Term, 6 Oto. ILL iy66m
Beavor verjus Hides. C. B.
u"^^*' A ^^^N ^^^ fcandalous words. Five fcts were laid in the
intfaerouod. declaration, and upon the general iffae, there was a general
boufe for verdijf!^ for the plaintiff upon the whole declaration. One of the
iteaiing f^tg Qf words were thefe, viz. Ht (meaning the plaintiff) ^oasput
CrowJand '"^^ ^^ roundboufe fir Jlealifig ducks at Crowland, which were al-
are adiiop. Icdged to be fpoken of the plaintiff by the defendant fiifily aud
•*^^ * maUciotiJty. And' it was moved in arreft of judgment that the
words were not a&ionable, for the defendant doth not hj ex-
. pirefsly that he dole the ducks, like the cafe in Cro. Eiiz. 234.
•* Ihaveferved thee nvith the queet^i letter for Jlealing goods in my
<< mothers houfei^ were held not aftionable. « Thou art a falfo
** knave, thou w.j^ arrcignedfor two buliocksy^ held not aAion*
able. Cro* Bliz. 279. and it was faid, if the words had been,
•< Thou art a faJfe knitve, thou wajl arraigned for Jlealing two bui-
<< locks ;" thefe words would not have been actionable, for a man
f ^0. Abr, may be arraigned for felony, and yet no feldn. " James Steward
64. -p 6. «< «• in Warwick gaol for Jlealing -a mare and other beajls /* after
verdift the whole court gave their opinion feriatimy that thefe
words would not bear ah a£lion, for th^y do not affirm dire^tj
that he did (leal the beafts. Hob. 1 77.
In anfwet, it was faid for the plaintiff, that ihefe words are
alledged to ht folfely and malicioujly fpoken of the plaintiff by the
defendant, and the jury have found that they were fo maVmeufiy
and folfely fpoken, like the cafe in Cro. Car. 268. *^ He njuas
<* arraigned at W^rwidn for Jlealing of twelve hogSy and if he htwd
•• not made good friends it, had gone hard with hipn;'* uhi re verd he
never was arraigned for felony. After a verdift, thefe words
were held to be aflionable, being laid to be fpoken folfely and
malicioujly. ** Thou art a clipper y and thy neck Jball pay fir it ^
after a verdi£l held actionable, though the word clipper be am*
biguous. Skin. 183. *^ You are a roguey and broke open a houfe
•• at Oxford, and your grandfather wasforitd to bring over 40L /»
<* make up the breach i^ held a£)ionable, though the word rogue if
not; and breaking open ^ hdufe is only a trefpafs. Skin. 364.
" He wasftnt to prtfonfor running wool:** held to be a£ltonablie
by Lee C. J. at Guildhall. ** He was whipt about Taunton cqfUe
** far pealing fbeepi* were held adionable. i RolL Abr. ^o.pl. 9.
' This motion in arreft ^of judgment was made in Michaelmas
term lad, when the court thought the cafes cited for the defend-
ant were in point, that thefe words are not adionable.
* Lord Camden faid, if we (hould judge thefe words adionable^
many aflions would arifc at every ailizes in the kingdom, where
the
Easter Term, 6 Geo. III. 1765* 301
t^ common topic of conrerfation is> that fach a man was fent to
gaol for focfa a crime, and fach a one was arraignedy and tried^
Uc. Vc. s and if fuch words are true, where is the flander ? faf •
ing « a map nuas v:ktpt^ if the words are tniCy is no ilander.
Batburfi J. alfo inclined to think the words were not a£iion-
able, but thought that if this particular fct of words were not
proved at the trial, the po/lea (upon the judge's certificate th;it
they were not proved) might be amended, and a verdifl for the
defendant entered as to this fct of words, if any precedent for it
could be found ; for he faid, if they were not proved, the plain*
tiff ought not to have bad a verdi£l upon them ; but if this can-
not be done, he thought the cafes cited for the defendant fo
ilrongly in point that the court were bound by them. Gould J.
was of the fame opinion, aud faid the cafe in Hob. 177. was fo
firong for the defendant, and fo folemnly determined^ that he
could not well get over it.
Lord Camden (in anfvrcr to Mr. Juftice Bathurfi) faid» it would
be very dangerous after a verdi£t of twelve men recorded by the
court, to refer to the judge's notes in order to alter it; and he
thought there* was no precedent of fuch a cafe, and that a ver-
di£l cannot be varied. And the court at this time pronounced
that the judgment mu(t be arrefted, unlefs caufe the lad day of
the term {Hilary term laft). But at that day xhey adjourned
it for further confideration \ and after having taken time till this
term, the court changed their opinion, and gave judgment for
the plaintifFj that the words were adtionable.
Lord Camdefi'^'Upon conGdering this cafe more fully, we are
now all of opinion that thefe words being laid in the declaration
to be fpoken fal/eiy and malicioujly of the defendant, are adlion*
able ; we muft take it upon this record, that the plaintiff was real-
ly not put in the roundhoufe or imprifoned for (baling of ducks,
becaufe the jury have found that the words ^tx^falfely fpoken ;
the words cle^riy import that the plaintiff had. been guilty of a
crime, and if tne fa£t had been true the defendant might, and
ought to have judifiqd; if we (hould arred the judgment, the
malevolent would think the plaintiff had been guilty of. the crime
falfely imputed to him, and thp good-natured could not help
fufpeftibg him to have been fo- We lay great ftrefs upon the
vroti/al/es "if words are true they are no flander, but may be
juftified. The obje£lion here is, that the words do not ezpref:ily
alledge -that the plaintiff dole ducks *, but words are to be taken
According to the common parlance, and to be fpoken in t^e worft
fenfe according to the common underdanding of the by-danders.
Cro. Jac. 154. " Iknonv vfkat lam, I know what Snell i, / ^'^*J'^1
«« never buggered a mareP It was objeScd theft words were J Uv*8ii"
9ot a^ionabki for they 4o not charge the Q^aindff with buggery; Moor 86S.
bat
302 Easter Tjsrm, 6 G^e?.ril. iy66.
but the court faid they implied a charge of buggcrji and gave
judgment for the plaintiffl 2 Lev. 150. The words in the
prefeiit cafe mud be taken to be^ii^, and to throw a (tain upon
the plaintifF's chara£ter.
Judgment for the plaintiff /fr totam curiam.
Goilin ver/iu Wilcock. C. B.
Aniaion C FECIAL aflion upon the cafe, wherein the plaintiff declares,
lieifnrf'jing O ^^^ whcrcas by the laws of this realm no pcrfon ought to be
alintl?ior st^^cftccl, impleaded, or imprifontd without a probable caufe of ac-
court maii. tion againd him, yet the defendant /o^i^ and malicioujij^ without
ciouily, and jjiy probable caufe of a£tion, in the King^s court of record held at
him* when ^^^ ^^^ ^^ borough of Bridgwater in Somerfetjbire^ on the 30th
that'coart of September 1765, levied a plaint againft the plaintiff^in a plea
had nojttrif. ^f trcfpafs upon the cafe to the damage of 10/., and afterwards
^f caufe. 5it ^be fame court on the fame day fucd out upon the (aid plaint
a writ of capias ad refpondendum dire£led to the bailifis of the bo-
rough, to take the plaintiff, and have his.body before the judges
of that court on Monday after the fervice of that writ, to anfwer
the defendant in the^faid plea } which writ the defendant fal/eiy
and malicioujly caufed to be indorfed for bail 5 A 3 /. 1 1 </• againft
A new trial the plaintiff; and the defendant fuviher fal/ely and malidoufly^
vtu refuied, and without any probable caufe, afterwards, on the 3d of O^ober
ded«llion* ^ 7^5' *^ ^^^ ^^^^ borough, caufed the plaintiff to be anefted and
was faulty in kept in cuftody twenty-four hours, without any probahU cauje^
notalledg'mg ^uhen in truth and infah the defendant had net at the time of ike
fendafl!t^ ^^' ^^^'^i '^^ plaint, or of the /aid arrejl and impri/oament^ ifnj juft
knew the or probable caufe of action againf the plaintiff for which be ought t9
inferior bave been arre/ted and imprifoned; and the defendant hath not de-
j>ifdi«i!,n^ dared againft the plaintiff in that plea, nor further profecuted
of the c£ttfe. his faid plaint, but hath difcontinued the fame, and the fame fuic
is long fince ended and determined ; and the plaintiff in fa£l fays,
that by means of the premifes he is greatly injured and damni-
fied, and hath been put to great charges in freeing himfelf from
the faid imprifonment, and forced to undergo grievous pains of
body and mind, and during his imprifonment was hindered from
exercifing'his lawful employment, trade and bufinefs, and loft
the whok profit thereof at the borough aforefaid to his damage
of fifty pounds. The defendant pleaded Not guilty of the pre-
mifes laid to his charge, and thereupon ifliie is joined.
' This caufe was tried at the laft Somerjitflnre aflSzes before Mr.
Juftice Jflon at Taunton, when the jury gave a verdifil for die
plaintiff and 5 /. damages. The judge reported that it apcieared
in evidence at the trial, that the plaintiff and defendant both lived
at Tauntgrt a quarter of a year together j that the plaintiff being
air
Easter Term, SQeo.Ul. 1766. 303
all thajt time indebted to the defendant in about 5 A ttpon a con*
tra£t: zt' Taunton, where the plalntiflF appeared publicly, and
might have been arreiled for the fame there at any time ; that
the defendant faid, thkt if he could not do for the plaintliT at
^awttan he would do for him at Bridgwater i that afterwards
at tht fair at BrldgwatoTy when the plaintiff was ftandipg at his
ftall there expofing his goods to fale, the defendant came alon^
with the bailifiB to the ftali,* and faid to the bailiffs, there is the
tegue^ there is your prifoner^ whereupon they indantly arrefted
the plaintiff in the fair ; the ^01/1/ levied, and the capias indorfed
for bail, were alfo proved ; there was alfo evidence of the injury
the plaintiff fuffered, and the expences he wais put to on this
occafion ; there was no witnefs called for the defendant, but it
ivas admitted th.it he difcontinued his a£tion in the borough,
when he knew it would not lie there, and that he brought an-
other a£lion againft the plaintiff for what he owed Iiim, and had
got a verdifl at that aflizes for the fame, fo that there really was
a debt owing by the plaintiff to the defendant, at the time the
plaintiff was arrefted at the fuit of the defendant in the borough
court of Bridg^uatery though it was not contrafled within that
jurifd]£tion ; bixt the judge was of opinion, that the arreft there.
at the time of the ^air was done maliciouflyj and was fatisfied
with the verdi£t.
It was moved for » new trial, becaufe the evidence did not
ffipport the declaration {with leave given to the defendant at .
the fame time to move in arreft of judgment in cafe he ihould not
fucceed in this motion) ; it was objected that the gift of this kind
of a^ion is malice : as where a man malicioujly arrefts another
when there is really no debt at all owing, or where one mali-
cxoufly arrefts another for a far larger fum than is really due,
mrith an intent to opprefs him and prevent his friends from being
bail for him ; but the malicious intention muft clearly be made
to appear, and muft be exprefsly averred in the declaration ;
in the prefent cafe it appears there was really and bona fide a debt
of 5 A and upwards owing from the plaintiff to the defendant
at the time of the 'arreft at Bridgwater^ and that the defendant
r-ot knowing but that he might lawfully fue plaintiff there caufed
him to be arrefted there ; but as foon as he was informed that
court had no jurifdi£iion, he difcontinued his afllon, and '
brought another in a fuperior court, and has recovered ; fo there
Appears no malice in the cafe/ adly. It was objcflcd that an
«dion will not li^ either againft the judge, officer, or party, for
«irrefting a man in an inferior court, when there is no oaufe of
«£lion within thiit jurifdi£lion ; and the cafe of Temple v. KiU
lingworthy B. R. HiL 2 Jf^. isf M. Rotulo 'jxs. Carth. 189.
I Show. ac4. S.C. 12 Mod. 4. S. C. was cited as in point,
^w'herein the plaintiff declared thus : viz. *« JPetrus Temple
<* queritur de Samuele Killingworth in cuftodia marefcalli maref-
^* caltias, tsfc. pro eo videlicet quod prxdifius Samuel machi-
^ sans & malitiosc intendens cundem Fctium magnopere prxgra-
«* vare
304 Easter Term, ,6 G^. III. 1766.
** yare & minds jufte opprimere 25 die Aprilis anno regni domiiit
<< regis & dominx reginae nunc primo, injuile & malitiofe apad
'< London prxdictum in parochia, &c. in warda, ^c. pnccextu
<< if colore cujufdam praetenfs querelae in curia diAornm do*
** mini regis & dominae rcginae ad tunc tcnta coram Johanne
*< Flint ^roilite tunc uno vicecomttam civitatis Londini praedidi
** in computatorlo fuo fcituato in parochia Sc warda prxdidis
<< intratae & levatae ad fe^am ipfius Samuelis fuper quandam
-** praetenfam actionem ad magnum praetenrum damnum ipfius
<< Samuelis arrcftari & imprifonari ibidem caufavit & procurarir,
** ac prsediAum Pctrum in prifona & cuftodta ibidem racione
<< arreftationis prxdi£lse pcr4nagnum tem^us fciUcct per fpatxum
' *< (ex dierum detincri fecit pro defe£ia fuDidentium manucap^
** tor Am & fecuritatis ad prxtenfam actionem pnedi£lam pro
<' pr«di£lo praetenfo damno, ubi re verd & in fado praediAus
** Samuel tempore arreftationis ^ imprifonamenti ipfius Petri
<< prxdi£li ut praefertur, vel ad aliquod tempus antea, nulhim ha*
<* buit caufam a£lionis verfus praefatum Petrum infra- jurifdtdio«
<* nem ejufdem curix ; ratione quorum quidem injufte^nalitiofj
^< arreftationis & imprifonamenti prxdi£li ipfius Petri ipfc idem
^^ Petrus non folum in prifona 8c cuftodia per totum tempus prx«
<< didlum detentus & de libertate fua deprivatus fuit fuper prx-
<< diAam prxtenfam a£lionem ob prxtenfum damnum praedi£lum
<< t^nimetiam magnos labores et expenfas pro relaxatione fua ab
•« arreftatione & imprifonamento illis crogavit ac fubire & en>-
** gare compulfus fuit, unde dicit quod deterioratus eft & dam-
** num habet ad valenciam qutngentirum librarum et indc pro-
<< ducit fe£lam/' i^c. Tlvi defendant pleaded the general iOue
Not guilty, and there was a verdidi for the plaintiff. It was
moved iitarreft of judgment, that the plaintiff (when he was de-
fendant below) ought to have pleaded to the jurifdi&ion of the
fheriiPs court, and if the plea had been refufcd, then a prohibi-
tion would have been granted: the court inclincd'to that opinion,
and judgment was ftayed till the. plaintiff (hould move it again;
• and afterwards the plaintiff moved for judgment, and the cafes in
• Hob. 105. the * margin were cited to maintain the a£lion, but the court
Cro. Jac. ^as Tiot fatisficd with the aftion. There does not appear any
Cro.'BL6i8. judgment entered upon the roll. In Shower 254. S, C. Holt C. J.
636. faid, the point was fit to be confidered by all the judges ; and in
^^At^'^' 12 Afoi. 4. S. C, Holt C. J. faid, that of lat« it is held that eafi
Kegift. '98. w*** "o^ Jic for profecution in an inferior court where the court
F.NrB.45. hasnotjurifdidion: that the firft cafe in point was at ffiM/m^db
islnd 2it. *^^^*» ^"^ referred to the C. A, and there adjudged that for
Sid. 46I3. * fuing one without any caufe of aftion at all no adion lies, unkft
4 Rep. 14^ b> it appears to be with a malicious and vexatious defign. Eight of
•^ 3t> the judges fecmed to think the adiion would not lie.
It was anfwered by the counfel for the plaintiff^ that it appeals
by the judge's report, in this cafe at bar, the dmc, place, and every
circumftancc attenditig the arrcft at Bridgwater, that it was done
" . 1 - witk
feAartERl'ERk, 66^0.111; 1766; S«>jf
With a mdliehui defign to iojnre the plaintiff in the fale of his
goods at the fair» and to expofe him to his cnftomen : the defend*
ant muft certainly know that the borough court at BriJgwater
had no jurtfdi£lion» and his difcontinuing the a&ton after he had
executed his maliciovs defign will not atail him : and adly^ that
it 18 a rule in law^ that wherefocTcr a man fuflttrs an injury* .
joined with a lofsj the law (hall give him a remed j and recom«
pence, /M* 45*} and no remedy or fttisfa£lion can be had ill
this cafe unlefs this a^on will lie ) for fal£b imprifonment cet«»
tainly will not lie* Gmnne r. PooU bt al. 2 Lutnv. 935. 15710
1572. And that an aAion will lie for fuing in an infetior cdurt
without any caufe of a£lton within the jurifdi^lion, was held
goodi was cited 2 Shower 328. Hudf9n and.GMft
In reply to the cafe of Hudfon aftd Co^he^ was cited what Sir
J»bn Powel faid iii his learned argument in tb^ cafis of Gwinne v.
Ppokt % LutwA^Tu 2* In regard to die cafeof ffi/^n and Cooket
*^ I was prefent (fays he) when the czicoiHudfim and Co^i^ was
*< adjudged \ it was an action upon the cafii brought againd tho
^< defendant for commencing an a£lion in an inferior court
"where the caufe of aAion arofe out of the jurifdiAbn of that
<< court t Not guilty was pleaded, and a verdid for the plaintiff)
'* and an exception was taken in arreft of judgment, for that it
<< was not (hewn that the defendant knew that the place where
<< the a£tion arofe was out of the juri(idi£lion. But it was held'
<< by Jefferxs^ Hdilovoay^ and Wcdcot^ that it was aided by the xtx^
<< di£l \ fViiheus J« being of a contrary opinion-i*l coufcfs (fays.
" he) that I th<?n thought it ftrange that tht gift of the adion
<« (hottld be aided by the verdiA;^ therefore the defend-
ant's cpuufel infilled this cafe of Hudfin and Co$ki is noc
law.
Lord C»nidem~-^^2fon Powtlt in his argument of Gwmm and'
Poole^ has ftated the learning of ca(es of this kind, but hath not
laid down any prccife rule of law : this is a nice cafe, and is to
be looked into with precifion. There are no cafes in the 'old ^
books of actions for fuing where the plaintiff had no caufe of
a£lion \ but of late years, when a man is malichufiy held to bail
where nothing is owing, or when he is malidmSy arrefted for a
great deal more than is due, this adUon has been held to lie^ , .
becaufe the coft's in the caufe are not a fufficient fatisfa6iion for
imprifoning i man unjuftly, and putting him to the difficulty of
getting bail for a larger fum than is due. Whenever this kind
of a£liott is brought, the particular ^oswmMi muit be alledged
m the declaration, and it muft be laid that it was done fnoHdouftyf
iuut mii an inUnt to iigure and ^refi t the fa£k of die evidence
in the prefent cafe is,, that tho defendant at BridgviaUr faid,
<< 1 inavf t can catch you hen though I could not at Tai}xr^on\^
but this doth not pipovc that he might not think tliat the adion
V(^.II. X wguld
y)6 Eastek TsRM, 6 Gfo^ IIL 1766.
tM)QU lit at BHJgwaUr^ and it feems to me that he iU nm
kaow to the oontrady wfaea he levied his plapit, hecaufe a» <boo
•a* hit attoraey infarmed him that it would not Ke iiert, he dif-
oonttaued his fuit ^ I think the declararion is illy becaufe k is
not alliedged in* the deckHration, that the defendant knew thftt the
place where the caufe of action arofe was ont of die jurifiiidion
of the borough court of Bridgwater^ and that the cafe proved at
the affixes is different from the cafe ftated iii>lh€ declaration, and
if it be £by we ought to grant a new trial*
CUve J — ^This is the foft afilon of the kind I hare ewer feen
brought for fuing in an inferior court which has not jurifdiflion^
and I am inclii^ to tbmk the declaration will not fnpport the
evidence.
Badmrfi J. — ^This is a^motion for a new trial, as being a vcr-
dift againft evidence. I cannot help agreeing with the judge
• who tried th^ caufe^ that the arreft at BndgwaUr was matkieujly
done; it then cpmes to this queftion^ whether an adion upon
the calc will not lie for fuing in an inferior court which has not
jurifdiAton, with the circumftances of moUcif which manifeftly
appear r and I am verf clear that it; will H^y but think this de-
elaration is not rightly drawn ; it ought to have alledged, that
the defendant knew that the caufe of adion did not arife within
Ihe jurifdiAion of the court at Bridgwater^ and then it would
have been right enough. But the court can fee in this cafe that
juftice and equity are with the plakitilF, and they never wiU grant
sew trials, where the verdict is on the honeft fide of the caufe.
The cafe of StMuh v. Page^ 2 Sa/k. 644* is a vety ftrong cafe to
tfab purpofe. In eje£lment, *thc plaintiff was a noortgagee and
claimed by furrenjer, whereas the land was not copyhold, and
the defendant claimed only by a voluntary conveyance^ the ver-
diet was for the plaintiff, and the court of B. R. would not fetit
afide, and grant a new trial againfl: the honefty of the caufe; fa
in the prcfent cafe> I think the hoiieity of the caufe is with the
plainti£^ and therefore I am for fuppotting the verdi£t if poffiUe.
When a defendant has got a verdid in a bard aAion> the comt
will not grant a new trial, and in many cafes, as in qui tmh
no new trial is ever granted^ where the defendant has got a
verdiA. '
Gouid J.— I am of the fame opinion with my brother Baittt^^
a» to the maliee in the defendant^ and the jufttce of the fhva-
tiff 's caufe^ and think the defendant was eonfcious that he had
no right to arreft the plaintiff at Bridgwater: and tbe court yiH
be aJiiUe to fupport this verdia, as Afey fee it is on the fide el
juftice, and will not grant a new triuL I am inclined to think
.Ais declaration U well enough, for it is alledged, TbaiAedt-
fendant mdimujlf^ wtbmtt any pnAMg emife^ ut tie Jmd krmtgi
IS ^^
£asiie ft Te* m, 6 G^. liL 1 76^. 3^7
tauftd ihf pltdntiff to he arrefisis when in truth and tnfaHthti^
fendant had not at the time of levying the plaint % or of the arx^. and
impriforiment^ anyjufl or probable caufe of aBion^for 'which he ougl^
to have been arrefied and imprifoned. 1 think this i$ a Cubftaatial
difclofure and allegation ot his caufe of a£lioil, and was fiiflicieat
notice to the defendant to come with proof, and ihew at the trial
that he had a caufe of a^ion arifing within the jurifdi£tion of
the court at Bridgwater^ and that the plaiiuiff in bis declaration
was not obliged to aver, that the defendant knew chat his caufe
pf aALon did not arife within the jurifdidion of that courts f^r
this is matter of evideocey which t\o man h obliged (a fet put iii
his pleadings. As at prefent advifed,' I thiuk this declaratioin is
fubftantially good : but fuppoGng it i$ not» yet in fuch a cafe ^^
this we ought not grant a new trial. The couri being divided*
took time to conGder ; and afterward^, in this f^oie term, Lord
Camden and Mr. Ju ft ice C/iw agreed in opinion with Mr. Jttftige
BathurJ and Mr. Juftice Gould to refuCe a new trial*
Lord Camden ^1 think, upon^ further conJ^erationi that a9tW
juftice and equity of the caufe is on the fide of the verdtd, w^
ought not to grant a new trial. I (hall always be willing to granit
a new trial, where the equity and juftice of the cafe is with bioi
who ^rays tt» if the law and cix:cun)ftances of the cafe will per*
mit ; and (ball be as willing to refufe a new trial, where { am
warranted to do fo by precedents. The granting new trials ber
gan within time of memory, and I will not extend the pradlice of
granting them further than precedents have already gone. This
is an a£iion for bringing a fuit at law \ and courts will be ^aiH
tious how they difcourage men from fuing. Where a party ha^
been malicioufly fued and held to bail, malice^and'that it was wtth-m s
out any probable eaufty muft be ^Hedged and proved. Upon more
mature con(}deratiou, we ^re all now of opiniqni that if you hold
9 man to bail in an inferior court when you kaow it hath not ju-»
rifdickion, and with malicey an adlion upon the cafe will lie. And
that if the plaintiff had averred, chat the defendant knew that hia
caufe of a^ion did not arife within the jurirdi£kion of the court
of Bridgwater^ we are all clear of opinion the declaration would
have been good ; thatfmgle averment ^^ together with iTMi/irif^, -would
have been fufficient without any other. The plainti^^ and de^
fendant lived In thefame town of Taunton a quarter of a yeaf
together, and the defendant to whom he was indebted all that
time, never fued him there, (though it is not pretended but the
pbintiff always appeared publicly,) but the defendant follows hioi
to Bridgwater and abufes him there publicly, and arrets him in
the fair at his ftall, when the defendant muft know that the
court there had no jurifdidion ; we are forced to fay the verdi£fc
is according to the juftice of the cafe, and on a motion fdv a
new trial we are defired to grant it for a fault in the declaration
X a againft
3o8 Easteh Term, 6 Geo. III. 1766.
againft tbejuftice of the cafe ; but if I had on}j the cafe of
Deerlj ▼> l%e Duchefs of Mcaariney i 8alk» 646. to warrant me#
(though the jury were liable to an attaint in that cafe,) I would
not grant a new trial in the prefent cafe. So a new trial was
^fttfed by the whole court.
Williams vcffus Leaper. C. B.
11 or r^NE Tiiybf was indebted to the plaintiff WtH'iams in 45/: for
jore- V^ three quarters of a year's rent for a meffuage which he held
WtifCisc
it not a I
tibcftatuteef ofhim^ and Tajhr becoming infolvemi made a bill of fale to
inudi ind the defendant Leaper of all his goods in the faid mefliHige in truft,
vn^^^ to be fold for the ufc of his creditors. While the defendant was
in pofleflion of the goods upon the premifes, the phinbff' (the
landlord) came there to drftrain for his rent, whereupon the de-
fendant, in confideration that the plainriiF would not di(baiir>
undertook and promifed to pay the plaintifT the faid funs of 45/.»
and upon that promife this aAion b brought againft the defend-
ant for non-payment of the money, and was iried before Ix>rd
Mansfield zt Guildhall^ Ldnden : ▼erdi£l for the plaim^, fubjcd
to the opinion of the couh, whether this promtfe (not being in
writing) was within the ftatute of frauds and perfuries, as being
a promife to pay the debt of another pcrfon. -This point was
deoated by Mr. Morton for the plaintiff, and Sir Fletcher N^ortsn
and Mr. W'allace for the defendant. To (hew that it was not
within the ftatute was cited Read ▼« Nij/b^ Trin* 24 & 25 6. 2.
B. R. And that it was within the liatutc was cited J^j/b j.
Hutchinfon^ Trin. 32 W 33 G. 2. C. B. ante.
Cf/m— This is not a promife to pay the debt of another, Ae
goods were debtor, and the defendant was in nature of a tMiiJiff
for the landlord^ Smd if the defendant had fold the goods and re-
ceived money for them, an afiion for money had and received
for the plaintiff's ufe would hare hrd in this cafe by all the
juftices except Jjlon^ who thought if the goods had not fold for
' fo much money as the plaintiff^s rent, he would bare been liable
for no more than what they fold for j but per Taies J. — ^The de-
fendant's promife is an admiffion that the goods were fufficient
to fatisfy the plaintiff's demand, and it was a new contrad npon
a good confideration ; the defendant had an inteitft, and the
plaintiff gave up his right to diftrain. Judgment for the plaintiff
per totam curiam*
Easter Term, 6^0; III. 1766. 309
Blaxton verfus Pyc G B.
A N a£lion of ajTum^t upon a wager of foarteen guineas to Horfe net
•* eight guineas Dj the plaintiflF with the defendant, upon two !*j£?!^
races to be run by two. horfes called Elephant and Granby^ that 9 Ann.
Elephant would win one of the races, v/z. that if Elephant won
one of the races, defendant promifed to pay plaintiff eight guineas^
and in confideradon thereof if Elephant won neither of the races»
plaintiff promifed to pay defendant eight guineas ; the event waSt
that Elephant won 'one race, fo the defendant loft the wager.
After verdi£l it was moved in arreft of judgment, that the coofi-
deration of laying fourteen guineas to eight guineas in this cafe is
nudum paclum^ bccaufe the laying above ten pounds upon a horfe-
race is a bet within the ftatutes againft gaming ; if the ftatute of
16 Car. 2. r. 7. and xhtflat* 9 Ann. c. 14. be taken together j fp
that plaintiff could not poffibly lofe the fourteen guineas, and .
' therefore ought not be allowed to win the eight guineas of the
defendant; andof that opinion was the whole court, and the
judgment in this cafe was arrefted ; and the court faid they ought
to extend the ftatute of 9 Ann. to prevent excellive betting upon
^XJ^orts as well as games, and that although horfe-racing is not
mentioned in that ftatute, vet it is within the general veotis ether
gam^ w games^ as in the caie of Goodhurn y. Marley^ 2 &tra. 1 159.
See Lpull and Longkttom, ante^Ji. 36. and Lovit and Thompfin^
iGio^^. C.J?.
Alcinbrook verfus Hall. C B.
ACTION upon an ajfumpfit^ for money paid by the plaintiff Mbaer \<t\
for the defendant at his inftance and rcqueft. The cafe Jj^^
was this, vi%. The defendant having loft, a fum of money above bet opon a
ten pounds, upon a bet at a horfe-race, requefted the plaintiff to korfc-nce,
pay it for him, which he did; the defendant objefted, that this ^^)l
money being loft* at gaming, and recoverable back again by the hU nqueft,
fiat. 9 Ann. c. \6. this a£lion would not lie ; but the court held ^ i^Aioa
this was not a cafe within the Statute, for there is not the word ^*''^<^''<'
contra£l as in the ftatute of ufury } S/r^. 1249* So the court
here held this was not a cafe within the Jloit. 9 Ann. and ^ave
judgment for the plamtiff*
X3
[ 3»«^ 1
TRINITY T E R \f;
6 Geo. III. X766.
Mary Hayes verfus Samuel Long, Clerk. C B,
AaJon for a A CTION upon the cafc, wherein the plaintiff declares, that
"rofrf r /t^ whereas (he is an honeft fubjed, and "never was j^uilty of
poaTiJidS. Steeping a bawdy-rhoofc, yet the defendant well knowing this»
meat. ' filfdy and maUcioufiy^ nvitiout any prohahk taufe^ on the 1 3tfa of
April 1765, at Btufon in the county of Oa^/, charged and ac*-
cnfed her of being known to keep a lewd and diforderly hoofei
and of permitting feveral young gentlemen from Oxford ftvquenti*
iy to refort to her houfe at late and unfeafonablc hours, and letting
tnem ftay with her all night, and of behaving in a riotous and
indecent manner at Benfon^ and of being a public nuCince to the
inhabitants thereof, and then and there falfcly and maliciouilyy
without any probable caufe, caufed the plaintiff to be arrefted for
the fame fuppofed bffences, and carried from thence to Oxford^
in cuftody before Thomas Randolph D. D. a juftice of peace for
the faid county, and there at Oxford falfely and malictoufly) and
without any probable caufe, caufed the plaintiff to be ex^mine4
before him, and on that occafion to be kept in cuftody for five
days, when in truth and in fa£^ the plaintiff neter was guilty of
any of the faid offences ; and the defendant afterwards, at the
geneml quarter- fcflions holden at Oxford ior the faid county the
16th of Jprtiy in the 5th year of the king, before Thedphihis
Leigh D.jy. and others, juftices of peace of the faid* county,
falfely and mnlictoufy 'without pny probable caufe^ indided the plain-
tJlF, for that (he on the ift of May in the 4th year of the king,
and on divers days between xhat day and the day of preferring
the indictment at Benfon^ did keep and maintain a common ill-
governed dtforderly houfe, and in her houfe for lucre and gain
permitced drinking and whoring, to the common nufanceof the
public, andagainll the peace ^r.; and the defendant malicioolly,
(!fr. profecuted the indi^ment until the plaintiff, at the quarter-
feffions held at Oxford the a3d of July in the 5th year of the
king, was thereof by a jury of the faid county lawfully acquitted,
^ gn account of which indictment ai^d premifes the plaintiff has
bcca
Tkinity TE»M,6(?ro.IIL 1766. 3I1
been much damnified and obliged to paj lafge fttms of m<mief$
co.che plaintiff's damage of looo/.' ^
The univerftty of Qic/on/ come and ckim coniifance> fetting Claim of co.
forth the privileges of the univerfiiy, under a charter of 14 /f. 4. "^fej^^
by which the king grants to f be uaiverfity the conQfanoe of all nnWerfity of
cjufes, where either plaintiff or defendant is a member thereof, Oxford, the
though the caufe of action arife in any part of the Jdogdom, with ^^\ a
an excluHve claufe that no juftice (and particularly mentions the member, not
judges of thiseourt) (hall prefume to intermeddle in any cafe being refi-
adfii^g within the jurifdidiion of. the univerfityy which charter ^ "^ ^*
and privileges are confirmed by an a^ of parliament of 13 £iix.
Tile defendant makes an-affidavit> and fwears he is, and for 2*1
years pad has been, a member and ftudent of the college -of
Chrift'Churcb i that he is now refident there ; whereupon the
court made a ride for the plaintiff to ihew caufe why the claim
of conulance ihould not be allowed*
Uponfhewing caufe, an affidasvit was produced by the plaintiff,
which fwears that the defendant generally refides, and is obliged
to refide at Benfin^ where he has a college living, and though his
name remains upon the books of the college, and he is ftill a
member thereof, yet he has no room or chamber there to refide
in ; thereupon it was infifted for, the plaintiff, that conufance of .
pleas ought not to be allowed to the univerfity for^ two reafons:
id, Becaufe the caufe of a£iion arofe at Benfon out of the uni-
verfity : 2dly, That the defendant liad no right to the privilege
of the univerfity, he having ccafed to refide .there as a ftudent
and member thereof, and being obliged to refide. upon his living
at Bttifin ; like the cafe of an. attorney, after be has left off prac-
tifiog, and no longer attends this QDUtt,;he fliall not be entitled
to privilegCj notwithftanding bis name remains upon the roll of
atiornies.
In anfwer, it was faid for the defendant, that the plaintiff waa
iodi£led at Oxford for keeping a bad houfe at Benfon^ and there-
ibre l^e caufe of ackion ar0(e titOMfrrdi but however that was,
the privilege extends all over the kingdom ; and 2dly, he is
Jwom to be a member of the univerfity, and fometimes refidea
there, and fometimes upon a college curacy at Binfim,
Lord Catnjdih — ^The charier exfendd to aAions arifing in any
.port of England i but furely it could never .intend that fcholars as
'j^aintiffs ihould h^ve the privilege of fuing in the univerfity in-
^aules of.a^ion.arifing in any pvLXt.of £ngland; but when they
are defendants, this privilege extends all over England. • The
i;haf ter was granted and confirmed by parliament to the members
«f she univerfity in conGderation of their being rgCt/zay/ there, and.
the privilege 6xte9<ls f^ om the higheft member to the loweft fer-
X 4 vani
3ia Trinity Term, 6 Gtfo. III. 1766-
yant there refiding. The fuperior courts' conftme this pririlege
very ftri£^lT> therefore it ought to be m^dt to appear clearly to
the court that the defendant b a fcholar refiding. Great nuin-»
bers of perfooa remain on the books long aftfer they hare left the
univerfityt on purpofe to vote for members, ifc» Many who ate
fellows of colleges never go thither at ^1 ; I myfelf was one a
long time, and never went tliere at all : it would be ftrange if
this court {hould allow conufance in cafes where fuch perfohs are
defendants i it is therefore abfolutcly necefiary that refidence
ihould be proved to the court. The claim under the feal of the
univerGty fays not one word of the refidence of this defendant,
and fo we can fee why the courts have required affidavits of the
refidence i yet if the chancellor (hould certify falfcly that ^ perfon
98 refident who is not, there is no doubt but an a£lion upon the
cafe would lie againft him, and therefore the chancellors do not
choofe to certify refidence } and I am indined to think the chan<«
cellor knew that this defendant was not refident, and fo did not
certify that matter. Lcr^s affidavit is a fubtcrfuge under the word
fffidence^ which is indefinite. If a man refidcs for one night, and
fwears he was refident, he could not be, convided of perjury.
|t is certain he b curate of Beufon^ and has a family there, and
frequently refidcs at OxfM^ 'but he does not fay how kmg
together.
In fimilar cafes, as that of an attorney leaving oflFto pra^&,
though his name remains on the roll, he is no longer entitled to
the privilege of the court. I am of opinion tl^at conufance ought
not to be allowed.
CSve J.— I am of the fame opinion. The oaft of an attorney^
privilege is fimilar to this. I think there needs no affidavit of thie
refidence, but that the chanoellbr ought to certify refidence, or
the conufance ought not to be allowed ; however, it appears to
the court that the defendant is nof refid^nt at Oxford^ but upon
^is curacy at Ben/on.
Bating ]n^l we were to fay that efetj member whofe name
is in the bpoks of the univerfity was entitled to this privilege, it
would be very inconvenient ; refidence of the party ought to ap-
pear upon rccprd, and muft be entered before it can be allowed.
The univerfity of Cflffv^i/^f claimed conufance, and produced the
certificate of the chancellor, that the parties were of the uriverfi-
ty -, and upon the rulfs to (tiew caufe, it was objefted that the
claim ought to be entere4 on the ^oll, and an affidavit to verify the
certificate (hould be p|oduce4t a^4 ^f that opinion was the
court, and difcharged the riile. ' Patetyf^et v. Graham^ % Stra. 8to,
And in the cafe of Kenrich and Kihafion B^ R. the claim was en*
Xetcd on record4 The claim of conufance is tantamount to a
P^a in at^a^ement Qf tlie fuit herci the truth whereof muft be
Ycri6c4
Trinity Term, 6 C^. IIL ij66.
verified by affidaTit $ Jlai. 4 Ann. This feems to be the reafon
why affidavits were firft introducedi atid required in thefe mo*
tion8 for allowing conufance. An affidavit therefore feems ne-
ceflary as well as the ehancellor's certificate of refidence^ and we
cannot allow this claim of contt(an€e» before it appears to us upon
record that the party is refident in the oniverfity.
GeulJJ.^A am of the fame opinion; where the fiiggeftion
ioif a prohibition is defedUve, you cannot have a prohibition.
Claim of conufance diflfallowed per totem curiamm
Gates verfus Bayley, C. B.
'TRESPASS for taking and impounding the plaintiff's cattle,
^ and keeping them in the pound fo clolely confined tog^theri
that by reafon thereof one of the beads died \ the defendant firft
pleads the general iflue to. the whole declaration^ and thereupon
iffue is joined ; andj fecondly, a juftification under the corporation
of London that he took the cattle damage-feafant^ and put them
into the pound, as it was lawful for him to do ; the plaintiff re^
plief de injuria fua propria^ and thereupon iffue is jomed. The
jury gare a verdiA for the plaintiff upon the general iffuei and
the value of his beafts that died in damages; upon the other
iffoe on the juftification they found for the defendant.
And now it was moved that judgment might be entered for
the defendant, becaufe the jury have found for him upon the
juftification, which covers the whole trcfpafs in the declaration ;
and the beafts dying after being put into the pound is only grava^
nufft and does not make the defendant a trcfpaffer ^^fV//^; if
the plaintiff can have any zGtion for the lofs of his beafts it
mnft be cafi and not trefpafii the difference between trefpafs
and cafe is, that in trefpafs the plaintiff complains of an imme-
diate wrong, and in e^€ of a wrong that is the confequence of
another a£ls per Fortefcuo]. and by Rajmond]. -^Thzt idiftinc-
tion is perfectly right : and, by the Chief Jujlicc — We niuft keep
up the bottndaries of anions, otherwife we fliall introduce the
utmoft confttfion } if the ad, in the firft inftance, be unlawful,
tnfpaft will lie % but if the aA is prima facit lawful, (as it was in
the cafe at bar,) and the prejudice to another is not immediate
but confequential, it muft be an adion upon the cqfig and this
JSthediftin£Uon. i Stran* 63$. Reynolds y. Claria 2Ld.Rajm.
I402« S.C. ^Mod. ^'jiL. S.C. That the per quod the cattle
died, after impounding in trefpafs, is only a^gravatioxit i Fent. 54.
The only aA done by the defendant in this cafe was the taking
and impounding the cattle in the common pound, for doing da-?
I^age ^ this the law gave him authority -to doj| and he did no
other
sn
TreTpafiibr
impounding
cacde, and
keeping
themfbclofi
that one
died. Jufti.
ficatioa for
damage few
faoti the
dying of the
beaft it only
gratamea,
and need not
be anrwrro^
i^itrerpaia.
Tbe differ.
CBce between
cafe and trcC*
paA.
314 Trinity Term, SGco. III. 1766.
otlier 'aQ. whatever ; and he cannot be charged ia trefpaTs for tlic
deathof the beaft , whkh was a confeqiieDcey and not an immediate
malfeafance by the -defendant ; no 4nan can be a ti cfpafler for
a nonfeafance t the law gave the fee carpenters authority to go
into the tayern, but the mi paying for the wine did not make
tbem trefpaiTes ab initio ; the tavemer might hare his adlioB of
debt for the wine. ^ Rep, 146, 147. Trefpafs will not lie for
taking ati exceflive diilrd'Sy becaufe the entry at firft is lawfal ;
the remedy in that cafe is by the ftatuteof Mar&ridgef 2 Stra, 85 1.
3 Lev. 48. , So that it is not every abufe of a diftrefs that makes
ft man a trefpaffer at ifiitio.
For the plaintiff it was faid, diat the juftification gives no
anfwer to the putting the cattle fo clofely together, whereby one
died; and therefore the plaintiff ought to have judgment upon
the iffue found for him on the Not guilty ; that it was a xntl«
feafance in thefird inftapce, and made the defendant a nre^afiei
ab initio* Sed non alhcatur.
Cieria — The juftification is in anfwer to the whole drefpais in
the declaration, which is only the taking and impounding $ all
the reft, as the dying of the bead, is. only aggravation ; if the
plaintiff would have infilled that the defendant had abufed the
diftrefs, he ought to have replied that after the faid diftrefs the
defendant abufed it fo and fo^ and have concluded with anaver^
ment, and this would not have been a departure^ becaufe he wiio
abufes a diftrefs is a trefpaffer ab initioy according to the cafe of
Gargravey. Smithy i Salk, 2I1 . and Bagjhanv v. Gawanl^ TihK'g6,
9^7. Judgment for the defendant per totam curianu
Barwis verfus Keppel, Efq. G B»
c*re for fe- A CTION upon the cafe, wherein the plaintiff declares, tiut tbe
i^'rSf the defendant at the time, tsTe. was an officer, wz. The fecond
guards to a major in the firft regiment of guards, and as Gich, ia the abftnoe
€r»iiimonf(j. of all the fuperior officers of the £iid regiment, had the com*
iB^nw*' "™3nd» government, ordering and dire6lion of ^l tbe iaferior
aot lie at ofHccrs and foldiers of the fecond battalion of the (aid legiment;
a>i^niott and the plaintiff was then and there an inferior officer calieda
•trt'of !he"^ ferjeant, and doing duty in the capacity of a ferjeant in thefaii
Ui>g*i do- fecond battaH6n, and always during his contimianee in tbe fiune
office and fervice of a ferjeant, demeaned htmfelf with ^cat
prudence, propriety, honetty, and obedience, as well towards
his fuperior officers of the faid battalion, as alfo^to the infimoia
of the faitl Battalion, and by means thereof had defervedly ac*
qtiired the good opinion, credit, and dleem, as well of ril tbe •
crificers and foldiers in the faid battalion/ a^ UlSo of all orhor
petfoM
Trinity Term, 6 Gi?d. IIL 1766. 315
perfons to whom he was known, and did lawfully and honeilly
acquire great gains, profits^ and emoluments by his faid office,
to his comfortable fupport ; yet the defendant, well knowing
che premifesi but contriving and malicioufly intending to hurt
and injure the plaintiff, and to ruin him in his charafVer and
fortune, and to deprive him of the good opinion, credit, and
efteem as well of the officers and foldiers in and of the faid bat-p
talion, as if the faid other perfons to whom he was Jcnown, and
to deprive him of the profits, emoluments, and advantages
arifing to him from his office and (lation aforefaid, on the a^th
day of September 1761, wrongfullyl unlanvfuUy. and malicioujlj^
and without any reafonable ground or caufe wbatfoever^ under the
falfe, fcandalous, and malicious pretence that the plaintiff had
before that time behaved himfelf improperly in his faid office
und ftation, and had been guilty of a breach of orders in the
exercife thereof} and that the defendant might therefore fufpend
and remove him from his faid office and ftation, the defendant
did then and there fufpend and remove, and caufe the plahuiff
to be fupended and removed from 'his faid office and ftation of a
ferjcaht, and reduced him, and caufe him to be reduced to the
poll and (lation of a common foldier in the faid battalion, and
wrongfully and maliciottfly kept and continued him,' and caufed
him to be kept and continued To fufpended and removed and
reduced as aforefaid for a long time, to wit, from thence ami!
the fuing out of the original writ of the plaintiff; by means
whereof the plaintiff hath during all that time unlawfully and
injurioufly, and under the falfe and malicious intent aforefaid,
been hindered and prevented from exerdfing his faid office of a
ferjeant, and his pay thereof, and has been deprived of great
gains, profits, and emoluments, which otherwife would have
accrued and arifen to him therefrom, and is greatly leffened
in the good opinion, credit, and edeefn of all the officers and '
foldiers in the faid battalion, and of the faid pther perfons to
ivhom he was known, to the plaintiff's damage of lOooA
The defendant pleaded Not guilty, and the iflae -was tried *at
the fitting after Hilary term 1765, ztWefminfter^ by a fpecial
jury, before the Lord Chief Jeftice, when a verdift was fbtind
for the plaintiff, damages 70 A, cofts i^o /•, fubjeft to the opinioft
pf the (;ourt upon the following cafe, viz.
That in the year 1 760, the plaintiff bcirfg one of tiie fcr- Cafe for the
jeants of the fecond battalion of the firft regiment t)f'foot- ^^"J^"^
guards, and the defendant the fecond major of the faid bat- "*"'*^
talion, that battalion was ordered to Germany ia the fctvice ydf
his majcfty againfl his enemies then at war i«rith this kii^g*
dom, and remained ' abroad m Germany till the end of the
war.
^ That
courts
y6 Trinity Term, 6 Geo. III. 1766.
That this regiment confifted of three battalions, whereof Lord
Ligonier was the colonel and commanding officer \ that the firft
and third battalion remained in England^ as did alfo the faid
colonel Lord Ligonier^ the lieutenant-colonel, and the firft major
of the fecoud battalion'; and the defendant being the fecond
. major, was, during the abfence of his fuperior officers, the then
commanding officer of the faid fecond battalion in Gtrmanj for
the time being in the armf , under his majefty's commander m
chief his Seretu Higbnefi Prince Ferdinands
That in September 17619 the army being in hourly expeQatioa
of a battle, the advanced guard of the enemy being within a
fmall difta^nce of the Englijb army, a certain order was given by
the faid Prince Ferdinand^ that all dcferters from the enemy
ihould be immediately fent to the headrquaiters without being
4tetained one moment.
That the plaintiflFhad full notice of fuch order, and that after
fuch notice of the faid order, in%. on the «— - day of SefUwkr
1 76 1, and while the armies were in fuch expectation of an en*
gagement, three French deferters came and furrendcred them-
felves to the plaintiff, then being the ferjeant commanding the
quarter-guard, who, notwithd^n^Iing fuch order of his ferene
highnefs a$ aforef^id, detained the faid deferters fix hoars inth-
out bringing, or attempting to bring them, or either of them, to
the head-quarters, or even making a report of fuch deferters
to the defendant, the then commanding officer of the ba|«
ialion. '
That the plaintiff being a ferjeant as aforefaid, and as fuch a
non^commiffioned officer of the faid regiment, on the 28th of
September 176I1 Was duly tried bv a rezimental court-martial for
the faid offence, which found the de&ndant guilty of the laid
charge, and by their fentence ordered him to be fufpended from
bis office of ferjeant for the fpace of one iponth, and to do the
duty and receive the pay of a private foldicr during that time.
That by the articles of war no fentence of fuch court-mar-
tial is to be executed, till the commanding officer (not being a
member of the court-martial) (hall have confirmed the £unes
that the defendagt then being the commanding officer, and no
member of the court-martial, did not confirm the fentence of
that court, but on the contrary, thinking the fentence of the
court-martial not a fiifficient punifliment for an biR;nce of fo
dangerous a confequence, and while the army fo remained ia
expedation of a battle, made an order in writing under his
hand, fubfcribed at the foot of the faid fentence, vrz. << But
<* as ferjeant Barwis could not be ignorant of the duke's orcjer
^ concerning dcfcrtersj and colonel Keppet thinkiiig his negle^
•« m^fait
Trinity Teum, 6 Geo. IIL 1766. 317
** might have been attended with the ntmoft bad confequenceiTy
'< orders that he be broke, and that corporal jBi/btc; be appointed
*' ferjeant in his room*''
That the defendant being fuch commanding officer of the faid
battalion, his faid orders were executed, and the plaintiff was
according!? removed totally from his office of fcfrjeant, and re-*
doced to the ftation and pay of a private foldier, and was thereby
forced and did perform tbe daty and receive the pay of a private
foldier in the faid battalion in Uermanyf and afterwards m this
luogdom, until the time of die trial ot thb iffne.
That by articles of war, non-commiffioned officers may be dii^
charged as private foldiers, either by order of the colonel of the
regiment^ or by die fentence of a regimental court-martial : that
it is generally and univerfally underftood in the army, that the
whole power of the colonel devolves, in his abfence, on the com*
manding officer for the time being, and that in fa£l fuch com*
manding officer ranks as colonel, and always ads as fuch. That
by the conftant cuftom'and pra^ice of the army, the command-
ing officer for the timf^ being hath always made ferjeants, and
broke or reduced them in the fame manner as the colonel him-
felf might have done 'if aftually prefent ; that the defendant con-
tinued in the faid regiment till the 3d of January 176a, before
which time he was appointed to command an expedition to the
HavannaA, and never returned to the faid regiment } that the
plaintiff continued in Germany till -—^9 at which time he came
to Engtands that the plaintiff never complained to any fuperior
officer during the time the defendant remained in Germany^ or
during the time the plaintiff remained with the army in Germany^
nor after his return to England.
The queftion fubmitted to the court is, Whether under the
particular circumftances of this cafe the plaintiff is entitled to
recover in this adion ?
It was objeded for the defendant, that this is in the nature of
an adion for a malicious profecution \ and unlefs malice appears
upon the ftate of the cafe, the phintiff cannot recover \ the de-
fendant beipg the commanding officer, had power to remove the
plaintiff, (as ne did,) who it appears had difobeyed the orders of
the commander in chief, and the lead malice does not appear in
the cafe : falfiu and malice are the ground and foundation of
adions of this Kind, i Z^mt. 107. and i Lev. 1 19. Adioniipon
the cafe for making a falfe affidavit againft the plaintiff, touching
a malfeafance in his office, and getting him turned out of it there-
by ) the falfehood nvas an evidence ef the malice^ which was the
ground of that aCtion. A condemnation of goods, for not enters
ing
3i8 Trinity Tbrm, 6 Geo^ IIL iy66. .
ing them and paying duty by fulxommiffionersy was. iever£b4 hj
commiffioaera of appeal in Ireland. An action for a malicipvfi
profecution does not lie againft che informer^ for the judgment
of the fub-commifiioners (hews there was a foundation for the
information and profecution. Reymlds v. Kennedy, Mich.
22 Geo. 2. B. R. upon error from Ireland* So in the prefiait
cafe^ the cmtrt-martial's Sentence ihews that the plaintiff dis-
obeyed orders* and that there was a go6d foundation for the
commanding oBSicer ta reduce himjt without having any fal&hood
or malice at all (againfl: him), according to the CQnilantpra£Ucf
of the army, as ftated in the cafe.
For the plaintiff it was laid, that he had been tried by a oanrt-
mard^ who thought fufpeofion for a month a fufficient puailk-
• ment for his offence, and therefore it was malicioua in the de-
fendant to reduce him abfolutdy to a private man^ and maUcc
being laid in the declaration! the jury have found it to be ma-
licioufly done*
Cvm— By the aft of parliament to puniih muttny and dcfer«
tion the king's power to make articles of war is confined to lus
own dominions \ when his army is out of his dominionss he a&s
by virtue of his prerogative, and without the ftatute or articles of
war ; and therefore you cannot argue upon either of them, for
they are both to be laid out of this cafe, and flagrante ielb^ the
common law has never interfered with the army : inter armafltent
kges. We think (as at prefent advifed) we have no jurifdi£lion
at all in this cafe ; but if the plaintiff's counfel think proper to
fpeak more fully to this matter, we are willing to hear htm- But
plaintiff feeing the opinion of die court againft him, ac<)uiefcedf
and the judgment was for the defendanti ut audivi.
In the vacation after this term, the Right Honourable Charier
Lord Camden^ Baron oi Camden-^Place in the county oiKent^
Lord Chief Juftice of the court of Common Pleas, was ap-
ptnnted Lord High Chancellor of Great Britain*
I 319 ]
MICHAELMAS TERM,
yG^o.lIL iy66.
THE Honourable Sir John EarJfey Jf^stmet, Knt, one of the
judges of the King's Bench, was appointed in the htt
vacation Loir! Chief Juftice of the court of Common Pleas, and
took his place the beginning of this term.
Dickon the younger verfus Clifton. C B.
1
N an a6lion upon the cafe, the plaintiff* declares, that whereas Cafe f»r a
he the plaintiff on the 28th day ol Auguji 1764, at the caftk misferfance
otTori, was owner and. proprietor of a certain boat or vcflcl Lncew^
called a keel, and being fo, he afterwards on the fame day and be joined
year there, at the inftance and rcqueft of the defendant, retained I^'i ^7*"
and employed him in the fervice of the plaintiff to be mafter and dlciatiUok
commander of the veiTel, and to receive and take on board there-
of from one Atnttbetv John/on^ at a place called Brough in the
coumy of Tork^ fifty-fix quarters of malt of the plaintiff of the
▼alue of iQo/., and to carry and convey the fame by water'in the
veflel from thence to Horbury in Torkjbirty and at Horbury to
deliver Uie fame to one Jonathan Crojland for certain wages, hise
or reward, to be theiefore paid by the plaintiff to the defendant
as malter of the veffel ; and althotteh the defendaht afterwards
on the 29th of Augufi in the year aforefaid, at Brough in Torh'
Jbire^ had and received from the faid Matthew Johnfin the whole
56 quarters of malt of the plaintiff, and afterwards on the fame
day and year laft aforefaid fet fail and departed with the veffel
from the faid place where he the defendant had fo received the
jnalt from Matthew John/on^ towards and for Horbury; and after-
wards on the 2 T ft oi September in the year aforefaid arrived wltbi.
the veffel at Hdrbury^ and afterwards on the fame day and year
laft afore&id at Horbury dtlivered to the faid Jonathan Crojland
a part, to wit, forty quarters of the faid malt ; yet the defendant '
not regarding the duty of liis eniployment, fo badly, carelefsly,
AegKgendy, and improvidently behaved himfelf in his faid em*
ployment, and took (iich little and fuch bad care of fixteen <)ttar*
%tx% of malt, relidue of the (aid fifty-fix quarters of malt fo by
•1^ received as aforefaid, that the defendant did not deliver the
fame
320 Michaelmas TsitMy 7 ^^^•lU. 1766.
lame x6 quarters of malt, or any part thereof, to the faid Jona^
tban^ at Horburj or elfewhere, (although often reqiiefted fo to
do,} but the dcraidant on the contrary thereof, hj and through
his own mere neglc£t and default, and through his careleflnefs
and improvidence fufiereid the faihe, and everf partthereof], while
the fame were and continued in bis pofleflion anci cuftody for fuch
carriage, to be embezzled and wholly Ibft, to wit, at the caftk of
JVI aiforefaid*
Second And whereas the faid plaintiff on the zft day oiAuguft 1764,
and from thence until the 1 ft day of Oilober in the fame year, at
the caftle of Tori^ was owner and proprietor of another veflel,
and the defendant was during all that time matter of the &me
/ veflel, retained and employed as fiich by the plaintifi> and in his
fervice, to navigate the fame from place to place, and to take
care of the laft-mentioned vefTeli and of all goods delivered to
him as fuch mafter, or put on board the fame for carriage from
place to place, for wages, Yart or regard, to be therefore payable
and paid by the plaintiff to him as fuch mafter of the veiTd, to
wit, at the caftle of Torks and whereas within the time afore-^
faid, and while the plakitifF was owner of the laft-mentiooed
veflel, and while the defendant was mafter thereof in the fervice
of the plaintiff, to wit, on the 29th of Augufi in the year afore-
faid, he the defendant, as mafter of the fame veffel, received
from the faid Matthew John/on^ by order of the plaintiff at
Brough aforefaid, other fitty-fix quarters of malt of the plaintiff
of the value of other 100/-, to be carried and convcved by the
defendant in the laft-mentioned veffel to Horhtij aforelaid hj
water, to be there delivered to the faid Jonathan Croftand for the
plaintiff; and although the ^defendant afterwards, on the aptfa of
Jngufl in the faid year, had and received from the faid Mattheto
Johnfen the faid whole fifty-fix quarters of other malt of the
plaintiff, and on the fame day and year fet fail and departed with
, the faid laft-mentioned veffel from the faid place where he had
fo received the faid malt from Matthew Johufin^ towaids and
for Horburyy and afterwards, on the 21ft of September in the year
aforefaid, arrived with the fame veffel at Horburj^ and alfterwards
on the fame day and year there delivered to Jonathan Crofiani a
part, to wit, 40 quarters of the laft-mentioned malt ; yet the de-
fendiant not regarding the duty of his employment, fo badly, care-
lefsly, negligentfy, and tmprovidently behaved himfelf in his faid
employment, and took fuch little and bad care of 16 quarters, re-
fidue of the faid 56 quarters of malt fo by him received as laft
aforefaid; that the defendant did not deliver the fame 16 quar-
ters, or any part thereof, to the faid Jonathan^ at Horhiry or elfe-
where, although often requefted fo to do ; but the faid defend^
ant on the contrary thereof, by and through his own mere nesled,
careleffnefsj and improvidence, fufl«red the' fame whileit contmued
Michaelmas Term, tGco. TIL 176^. 3at
}n \m pofleflion and cuftody for fuch carriage, to be embezzled
and wholly loft, to wit, at the caftle oiTork aforcfaid. There is
ainothcr count in trover for fixty quarters o( malt, laid to be the
property of the plaintiff, and converted by the defendant to hit
own ufe, to the plaintiff's damage of 40/. The defendant
pleaded the general iffue, and there was a general verdiA for the
plaintiff on all the counts in the declaration.
And now it was moved in arreft of judgment, and objeded
that the two firft counts are in the nature of an adion on the
cuftom of the realm, which is founded in contraB^ and therefore
cannot be joined with a count in trovef which k 7k tort, zdly^
That this a£lion ought to have been laid upon a promife and
undertaking, and not being fo Uid is ill ; and to (hew that thefe
counts could not be joined, many old cafes were cited from
Vine^s Ahr^ title AElion^ (joinder,) which the court over-ruled^
and therefore ihall not be fet down here.
Lord Chief Juftice Wilmot — ^This motion Is after the merits
have been tried, and a verdicl found for the plaintiff, which the
court will fupport, if poflit^le. It is obje£ied,that t&e firft count
is laid quaft ex contraQu^ and cannot be joined with trover : fun-
pofing it was fo, yet I (hould lay no great ftrefs upon old ca(es
to this point at this day } but I think the firft count is laid to be
ex deliBo of the defendant, and as a misfeafance, which may un«
doubtedly be joined with trover. The true tefi to try whether Two cowi*
two counts can be joined in the fame declaration, is to confider ^\^^^*
and fee whether there be the fame judgment in both, and not there » the
whether they both require the fame plea, and wherever there is *■* i*^*
the fame judgment in both, I think they may well be joined. I f^X^
own, that in many books it is reported, that trover and a count
againft a common carrier cannot be joined, but common expert-
cnce and praQice is now to the contrary. This is laid as a mtf-
feafance wherein there is the fame judgment as in trover^ and
therefore lam of opinion the plaintiff muft have judgment*
Cltve J.— The firft count is as plainly a tort as trover is* Sup«
pofe I truft a (hepherd with my (heep^ and he puU his own dog
among them, which worries them, this would be a tort^ althouga
I contra£^ with him for wages to take care of my (heep, and he
undertakes accordingly; and I am of my lord's opinion, that the
true teft is to fee whetner both counts require the fame judgment^
in this cafe they do, and the plaintiff muft have judgment.
Gould J.^ think trover and f afe- againft^ a carrier may be
joined, notwithftandine what is faid in the books. In the cafe
put of tlie (hepherd, he might either be charged upon the con«
tra£l, or as a wrong-doer; and fo might the defendant in the •
prefent cafe. I am of the fame opiniox; for the plaintiff.
Vol. II. Y Chief
5« MiCttAEtMAS Te*M, 7 Ged. III. 1766^
Chief Jufticc— I hiTC a doubt whether frefp'afs vi IS armh anJ
trover can be joined, but think they cannot, becaufe they have
diiFerent judgments. Judgment for the pbintiff.
HILARY TERM,
J Geo. IIL 1767,
Roe, en the Demife of George Dodfon, Efq. verfss
Grew and others. C. B.
PcTife t^ T? JECTMENT for lands in MiddUfex^ tried before Lord Cam*
G.G. h>r^ jQy den at the fitting after jfcfl/?rr term laft; verdid for the
terV^s d«nh plaintiff Upon the following cafe, fubjeft to the opinion of the
to the iiiue court. The cafe dates, that Daniel Dodfon being feifed in fee of
^dht^'Tof ^^^^ ^^"^* '** queftion, by his will devifed the fame in thefe word*,
the b.dy of ^'^^T. " I givc, dcvifc and bequeath unto my nephew Gforge
rucb iOtt?,ls «< Greiv, all my lands, (naming and defcribing them particular-
S^g'c •** " ^y*^ ^° ^°^^ ^^^ ^^^^ ^'^^'^ ^^^^ appurtenance* unto him the
** faid George Gre^o^ for and during the term of his natural life,
• •* and from and after his deceafe to the ufe of the i/Jh^ male of
•** his body lawfully to be begotten, and the heirs male of the
*« body of fuch iffue male ; gnd for want of fuch iffue male, then
« I give all and every the aforcfaid premifes unto my nephew
•«* George Docffon^ his heirs and affigns for ever.**
That in the devife to George Grev/, tlie words " heirs m»Jc
« of his body" were originally written, but that the ^ord iesrj
"was fcratched out, and the word iffi^e infcrted in its (lead, in the
fame hand with the body of the will, but in different ink.
That' George Dodfon^ the devifce in remainder m the will, is
the lefibr of the plaintiff.
Tliat the tcftator dcvifcd other lands to the Icffor of die plain-
tiff in fctf.
TlMt
^iLAiiY Term ^y Geo. lU^ lyCy. jaj
That €forg£ Grew and the Icifor of the plaintiff were the tcf-
tator's nephews, and he devifcd the rtfidue of his eftates botih
real and ^ erfonal, equally between his faid twd nephews*
That George Gre%u bad no ehild at the time of majclnj;: the
will ; that he entered dn the premifcs in queflion, and fuSgced
a common recovery thereof, and died without ifluc male.
The quedion upon thi$ cafe Is, Whether George Grew took an
eftate*tail> or for life only, under the faid will i
This cafe was argued by Serjeant Leigh for the plaintiff, and
Serjeant Burland for tlic defendant. After time taken to confider,
judgment was given for the defendant by the whole court the
28th of January in this term, that George Grew took an eftatc-
tail, and that the leffor of the plaintiff was barred by the recovery.
Lord Chief Juftice TFUmot --The teftator had no iffue at the jodgmeatof
time of the will \ his intention is to be followed, provided it doe9 ^^ court,
hot clafh with the rules of law ; the Qatute of wills gives a man
power to devife his lands, but he cannot by his will create a per-
petuity, nor reftrain tenant in tail from fuffering a recovery, ^c»
Vc\j thefe being contrary to the rules of law. The Intention*of
the teftator clearly was to give George Grew an eftate for life only,
but his intention alfo clearly was, that all the fons oi George Grew »
Ihould take in fuccefllon; both thefle intentions cannot t^ke
place, for if the devifee Giorge Grew took only an eftate for life,.
his fons could never have taken ; and although it eventually hap*
peried that he had no fons> yet we mud confider this cafe as if be
had had iflUe ; therefore the court muft put thcmfelves in the
Elace of the teftator, and determine as he would have done, if he
ad been told rtiat both of his intentions in the will, by the rules
of law, could not take place, and had been afked which pf theoi
He dedred (hould take efFe£l and ftand, as both could not, he
certainly would have anfwered, ** that fo long as George.Grew
*^ had any iffue male, that the premifes (hould not go to the leffor
*' of the plaintiffj'* and if we balance the two intentions, the
^eigh^icft is, that all the fons of George Grew fliould take in
fuccefBon ; and therefore to enable them to take, George Grew
■iDuft be adjudged to have bten. tenant in tail, for the tcftator's
gteat intention moft clearly was, that the lands (hould never go
over to the leffor of the plaintiff in remainder, but upon a failure
of iffue of George Grew.
The word ijue in a will, is either a word of purchafe Or of li-
mitation, as will beft effeftuate the intention of the teftator ; it id
a plural word, and takes in all the fons of George Grew^ and the
Words *« ijftte male of bis body, and the heirs male of the body offuch
3^4 Hilary Term, 7 ^^^'^ IIL 1767.
<< ifju^* mean onlv that they were not all to take at a time but
in Ittcceffion, as if ne had fatd U hisfirfl and every other fon^ See.
As to the fcratching out the word beirs^llsLj no (Irefsat all upoa
' that, becaufe the teftator's chief and predominant intent was
clearly, that the landa Ihould go in facceiEon to all the foos of
Geirge Grew*
Cafes in the books upon wills have no great weight with me»
iinlefs they are exa£Ur in the verjr pointy and there has not one
been cited in every tning like this y the intention is the great
thing which governs me^ which is, that George Grev/% fons Ihould
take in fucceffion, which they could not do if he was only tenant
for life, and therefore I am of opinion he was tenant in tatl^ and
judgment mnft be for the defexldant.
C/rpr J.— The word iffiie is one of the mod vexed words in the
books I fometimes it is nommfingidare^ fomeiimes plural^ fome-
times a word oi limitoAn^ fometimes of purtfmfe^ but it mull al-
ways be conftrued according to the intent of the will or deed
wherein it is ufed ; if one grants to a man and his ifiiie (who has
iflue at the time of the grant) the ifibe fliall take jmntly with him.
In the prefent cafe the great intention is to give in fucceffion to
all the fons of George Grnv^ which cannot be withoutconftruing
It an eftate-tail in him. I think too great regard has been paid
to the foperadded words^ *' heirs male rf the My ofjuch ifflu*
and am ot the fame opinion with my Lord Chief JufUce.
Bathurfl J.— It Is a rnle» that where an ani;eftor takes an eftate
of freehold, if the word ifue in a will comes after, it is a word of
limitation \ where tiierc appears a particular intent, and a general
intent, the general muft take place ; the great view here was,
that the land (hould not .go over to Dodfin (o long as Grevf had
liTue, but that general intent cannot take tSt€L unlefs Grew be
tenant in tail \ and 1 am of opinion ht was, and agree with my
lord and brother.
Gould J-— I am of the fame opinion. The wotdifife is ufed
. in the ftatute de dtmis promifcuoufiy with the word &irs. The
term ifue comprehends the whole generation, as well as the word
heirs; and in my judgment the word ijfue is more properlyj in its
« natural fignification, a word of limitation than oipurJ)afe* Judg*
mcnt for the defendant.
Hilary Term, 7 Geo. III. 1767. 325
Ruflell vcr/tts Palmer, an Attorney. C. B.
MidJIefex^^JMES Ru£tU^hjTb9masB€nmH\i\%^X^ Special ae.
to wit. J plains of Cbarlwi PalnuTy gentleman, one of the ^fe^n?
sttornies of the court of oar lord the now king, of the bench aaanoroey
here, prefent here in court in his own proper perfon^ of a plea of A>r sefU-
trcipafs on the cafe, for that whereas the faid James heretofore §^^^
in JTtlary term in the fifth year of the reign of oar fovereign lord tion feet
the now king, in the coart of our lord the pow kinjF, before the fa[di,thit
king himfelf, the faid court then being held at JFefimnfieriti the JSiSff, ta
faid county pi Middlefex^ by bill without his majcd/s writ re- Hilary term
covered againft one John Stewart as well a certain debt of " *'*^*^
5322/. 1 3 /• 2 //., as 1 7 /. for his damages which he had faftained j^^ ^^^^ .
as well on occafion of the detaining of diat.debt, as for his cofts vered againU
and charges by him expended about his fait in that behalf, a9 by «« J«*»«
the record and proceedings thereof remaining in the faid court jadgtneat
of our lord the now king, before the king himfelf at Wtftmnjter for ^%%\\m
aforefaid, more fully and at large appears^ which faid jtidgmeat *3«* »^-
ftill remains in its full force and effect, not revcrfed, annulled, jj^'cTftt
fet afide, paid, or fatisfied : And the faid James RuffeU further in b. r.
faith, that while the faid fuit was depending in the faid court, to 5^"?/'??'*
wit, in Trtnitj term m the fourth year of the reign of our lord depending,
the now king, in the faid court erf our lord the now king before in Tilnuy
the kinghimfelf, the faid court then being held TXWtJImlnJier inthc XTX^
faid county oiMiddlefeXj came perfonally Andreto Grantoi K'tng^s- ©f the klngji^
Arms^ard^ Coleman-Jireeti London^ merchant, and Robert Bogle of A. G. and
Love4ane^ Eaftcheap^ London, merchant, and then and there in the ^Jn^btlTfot
faid court became pledges and bail, and each of them by himfelf fud Stewart
became pledge and bail for the faid John Stewart^ that if it (hould ia the Wd
happen that judgment in the faid plea of debt' ihould be given for P^"<>' <**^*^
die faid James RuffeU againft the faid John Stenvart^ that then
the faid John (hould fati^fy the faid James RuffeU the faid debt
and all fuch damages as Ihould be adjudged to the faid James
RuffeU in the faid plea, or render liimfelf on that occafion to the
prifon of the marflial of the Marjbalfea of our lord the king be-
fore the kin^ himfelf, as by the record of the faid recognizance
remaining in the faid court of our faid lord the king before the king
himfelf may more fully and at large appear: And the (aid James That after
further faith, that after the recovery of the aforefaid judgment, ^7^^^f
[that is to fay) on the i8th day of Afav in Eafier term, in the ^nc oi^dST
fifth year of the reign of our faid lord the now king, before the i. th day
honourable Bit Richard Afton^ knight, then one of the juiiices of ^^J^*^ '"
our lord the now king, affigned to hold pleas in the court of our {„ ^^ ^^
year of the kjog , before Jufttce Mton of B. R. at his charabcra in CbiKery.Iaiie» ihe CiAd Stewart nam
dered himfelf in dUcharye of hii bail to Uie prilbn of B. K.. and cheic coatiniie4»tiU the time of hiA
being fuperledcdfl
Yj lord
3l6 Hilary Term, 7 Gf(J. III. 1767.
lord the now king before the king himfclf, at his chambers fituate
in Serjeants* ^Inriy Chancery- lan^^ the faxd John Stewart rendcied
himfelf in difcharge of his faid bail in (he faid plea at the fuit of
t\ve. faid James Ruffell^ and was thereupon committed to the prifoa
of the marOial of the Marjbalfea of our lord the now king before
the king himfelf, on that occa(ion, at the fuit of the faid James
Rujfell^ and there continued in cuilody of the faid marfiial in the
afore faid prifon, from, thence until the time of hi^ being fupcr-
Thitthede- fedcd out of cullody, as hereafter is mentioned : And the faid
^^ r J''"'" ^'ilf'''' ^^^^^^^^ f-^"^» ^^»^ ^^ ^^^ f^*^^ Charlton Palmer from
actnrney Tor the firfl Commencement of the faid fuit until the difcharge of the
the plaintiff faid John Steiuflri out of the cuftody of the faid marflial hereafter
r»itt^^*'^ mentioned, was by the faid James Rujfell retained or employed
as attorney or agent of the faid James Rujfell in the faid fuit, and
employed by him as fuch to profecutc the fame fuit againil the
faid John Stewart for hire and reward, to be paid by the faid
And that James Rujfdl to the faid Chafltan for Jiis fees, work and labour
btiiTg^fo "^ ^^^' behalf, and tliat the f.dd John Stewart being fo furrcn.
rendered at dcrcd and committed as aforefaid, and fo being and continuing
abbre, by j^ the cuftoily of the faid marlhal of tKe Marjbalfea of our faid
'pr!akctf ^^'"^ ^'^^ Iting, before the king himfclf, at the fuit of the f^id
B. R. oujl^t Jam^s in the faid plea, by virtue of the faid render and commiN
to hye been j^cnt thcreon as afore(iud, he the faid John Stewart by the rule
' jpicc?Vion"oii ^"^ praSice of that court ought to have been charged in exe-
or before the cuiion in the faid plea, at the fuit of the faid James RuffitU^ for
lafidiy of ti^g debt and damages aforefaid, in the faid court of our lord the
in the fifth" "^w king before the kin^ himfelf, on or before the lad day of
year of the Trinity term, in the fifth year aforefaid, in order to prevent his
vlnf'h?/"" the faid John Stewart's being difcharged out of the faid cuftody,
being dif- without firft paying off or making fatisfaftion to the faid James
charged. Rujfell for the debt and damages aforefaid, of all which faid pre-
mifes the faid Charlton Palmer afterwards, to wit, on the faid
eighteenth day of May in the fifth year aforefaid, at Wefiminjier
And the faid aforefaid, had due notice; and the faid Charlton Palhier^ llill
Pajmer, ftiil bgjjjg jj„j continuing agent or attorney of and for the faid James
torncyofthe *" ^^^ ^^^^ ^"^^ ^^^ ^^^" ^"^ there undertake and faithfully pro-
pi aij.iif?;un- mife to the faid JameSyi\\2X he the faid Charlton the bufincfs ^nd
*rom!fcd*"o ^^^^ °^ ^^^^^ ^%tnt or attorney in the iM fuit would well and
do bit duty, faithfully perform and execute : And the faid James faith, that
and ihe It was thereupon tlie bufinefs and duty of the faid Charlton Pal*
Jlfff 'th^at It ^^^* ^^ ^"^^ attorney or agent of and for the faid James Ruffeliin
* Was rhcduty the faid fuit, to have caufed the faid John Stewart to be fo chaqjcd
if PaiiMrto in execution as aforefaid for the debt and damages aforefaid in
thTfaM"^*^ the faid plea, on or befoie the faid laft day of Trinity term, in the
Stewart to fifth year aforefaid, to prevent the faid John Stewart from being
be charged fo fuperfeded and difcharged as aforefaid, of all which faid prc-
te'w b^ort ^^^^^ ^^^^ ^**^ Charlton there, to wit^at JFeJlminJln' aforefaid, had
Jait day of due noticc ; and although the faid Charlton had not any orders or
Triniiy term direftions from the faid James Ruffill to the contrary, yet the faid
•^^^«^J - -^ -r ^'^ Charlton
HiLAitY Term, 7 Geo. Ill, 1757. 3^27
CS>arh9n not re$rarding the duty or bufinefs of his faid office and
cmploymeot of fuch attorney and agcrnt of the faid James in the.
faid fuit as aforefaid^ after that the faid J^hn was fp rendered
and com nutted as aforefatd, to wit, from thence until and on but that be,
and throughout the faid laft day oiTrimty term in the fifth year ^■JS^^'Sf'
aforcfaid, at Wtfimmfter aforefaid, fo negli;;cntly and inadvert- ^ ^^ ^^
cntly conduced and behaved himfclf in his faid employment,' Too where(>f
that the faid Charlton whojly ncgle<f>ed and omitted to caufe the Vf^*''!'^'*
faid John to be fo charged in execution as aforefaid, and by ^eo^btrin
means of which faid ncgk£l and omiflion of the faid Charlton thefixihyear
afterwards, to wii, on the 2itt day of November in Miflfaelmas' ^^ ^^^}^^^^^
term in the fixth year of the reign of our lord the now king, ^barged by
the faid Jjhn w.ts fuperfeded and difcharged out of the guflody rupeu'cdeui
of the faid mar«hal by the. faid court of our faid lord the now
king, before the king himfelf at Wejlminjier aforefaid, the debt
and dama^^es aforcfdid being wholly unpaid to t!ie faid James ^
whereby the faid James hath been wholly hindered and ob« tothephin-
(tru£lcd from obtaining of his debt and damaged aforefaid, in tiff sdamagt
form aforefaiJ recovered, and hath' wholly loft the fame, to the ^ ^^^^ '
faid James his damage of 3500/. and therefore he prays relief*
l^c. The defendant pleaded the general i/Tue, and the cauC;
having been trie.i before Lord Chief Jultice Wilmot, ther^ was a
verdicl for the plaintiff and 500/. damag-:s«
The plaintiff's declaration fully dates his 'cafe: for the de»
fendant ic was faid that the rule of the court of King's Bench
made in Trinity term in the 2d ye^r of Geo. i. toucliing this
matter* is in very doubtful words, which are thus, v/2. " If
<< any plaintiff fhall obtain judgment in the court here in tiny
*' a£tioa againft any def(fiid«mt a prifoner, and (hall not charge
** the faid defendant fo in prifon remaining, in execution, upon
** the judgment fo obtained within tnuo. terms next after fucb
*^ judgment fo had and obtained, then fuch defendant fo in pri-
•* fon remaining (liall have leave to file common bail» or to fi\c
«* QvXz'^nX.oi Juperfedeas for his difcharge out of cullodyi"
that from the words of this rule \t fecms as if the plaintiff had
two terms next after, and exclufive of the term wherein judg*
ment was obtained againft the prifoner, to charge hini in execu-
tion 5 and therefore it was moved on the behalf of the defendant
that judgment might be ftayed ; for two reafons j firft, bccaufe
if the defendant i^almer had two terms exckiGve of the terin
wherein judgment was obtained againft Stewart^, and wherein
he rendered himfelf to prifon, to charge Stewart in execution»
then this aflion is mifconceived ; and idly^ although the mean-
ing and conftruction of the faid rule be, that Mr, PeJmft
ought to have caufed Stewart to be charged in executiop, the
very next term after the term wherein judgment was obtained
againft Stewart J and wherein he rendered himfelf, yet the words
of the rule are fo doubtful, that it can only be confidered as pn
error in judgment iu Mr. Palmer^ and not a negligence ip the
Y 4 duty
3aB Hilary Term, ^jGeo. III. 1767.
^ Aity of bt$ office as an attorney. Upon (hewing oiufe, the Lord
Chief Jttftice leported that feveral eminent p^afbifen were
eacaniined upon the trial as to the conftru£iion and pradice upon
the faid rule, who Oiid, that of late years it was well under-
ftood, that a perfon furrendering in difcharge of his bail after
judgment mull be charged in execution the very next term after
fuch furrender: Some of them faid they belicTed this was' not
uniTerfally known by the city attorniesy and that tbey thought
that it was an omifiion in Mn Palmer^ proceeding from want of
judgment, and not from any wilful negligence in regard to his
client Mr. RuffelL Join Lambtrt, Mr. Palmer^s clerk, fwore
that in all the time he had ferved Mr. Palmer^ they never had
one render after judgment ; that the friends of Mr. Stewart^
while he was a prifoner, were in treaty about an accommoda-
tion with Mr. Rujftll^ in order to get Stewart difcharged ; that
lie Lambert^ before the end of Trinity term in the 5th year of
the king, propofed to Jiis mafter Palmer ^ to charge the prifoner
Stewart in execution, at th« fuit of the plaintiff i^ii^//; but Mr.
Palmer then informed him (this witnefs) that the faid parties
were in treaty for an accommodation, and that he believed the
matter would be ended; that upon a fummons before Lord
Mansfieldi' to (hew caufe why Stewart fliould not be difcharged
hj ftiperfediosy Lord Mansfield thought the faid rule did not ex-
tend to this cafe ; another eminent pra^^ifer was called for the
defendant, and faid, that upon a fummons before Mr. Juftice
pefier in 1753, ^P^*^ ^^^^ ^^^y po^i^^ of pra£iice, that the judge
thought a plaintiff had two terms to charge a prifoner in ezccut
tion, exclufive of the term wherein the judgment was obtained
againft the prifoner, and wherein he furrendered himfeif. There
was fome evidence that Stiwart was not totally infolvent, and
that RtiJ/ill probably might be able in time coming to obtain
fome part of his debt by execution againft his goods; upon
this eiridence the jury gave a verdid for the plaintiff, and 500/.
in damages,
Curia^ThU eauie was firft tried before Lord Camden about
Iul£-a^year ago, when a verdid was given for the plaintiff for
3000/. the whole debt» by my lord's dircAion ; but afterwards
a new trial was granted, my lord and the court being of opinion
that he had mifdirefied the jury ia telling them they ought to
find a Verdi£k for the whole debt; whereas this afiion foumls
• merely in damages, and the jury ought to hfive been left at
liberty to find what damages they thought fit. And upon the
laft trial the jury were told they might find what damages tbey
pleafed, and accordingly found only 500/. as it appeared to
them, in evidence, that Stewart was not totally infolvent. We
are all of opinion that this adion is well conceived, and lies
againft Mr. Palmer for negligence ; and we have authority 10
fay that Lord Camden is of the fame opiaioo. Judgment for the
pkunti£ r * i»
I 3^9 ]
EASTER TERM,
yGeo. III. 1767.
Goodrigbty of the Demife of Francis Hoole, vcffus
Jofeph Sales* C B.
EJECTMENT, of certain mcfluages or tenements in the A.Wog
county of 17^^; Terdi^for the plaintiff as to one mef* ceftuiq^t
fuagc in the poffeffion of Francis Butchery part of the premifes ?["* ^^
in the declaration; and -is to the meflnages in the declaration in RUckaa^
the poflei&on of John Pritcbardy Samuel Walton^ Ththas Hodg^ «fterwvdi
kinfin^ and Thomas Clifton, Mng the refsdue of the premifes in J^^^j^
quejlion; a verdiA for the plaintiff, fubjedl to the opinion of the ownaime,
court upon the following cafe, which ftates. That John Tlooie and dc?ifet
was felfcd in fee of the faid refidue of th6 premifes in queftion, ^*^^""*
that an indenture of three parts, dated the 1 8th of December heir, whom
175 1 9 was made and executed between Samuel Crompton^ fole be makes
executor of the will of Abraham Cromptony decea/ed, of the firft "^J^"*^
part, John Hoole o\ the fecond part, and Thomas Sheppard of the gatee, who
third part, whereby, after reciting an indenture of mortgage d>et» the
which had been before made by th<; faid Cooke to the faid Abra^ wUh ?hcV«
bam Crompton oi a meffuage, with the appurtenances, in Sadler tochebeir*
Gate in Derby for 500 years, for fecuring 60/. and intereft j aid not to
and alfo reciting an affignment of fuch mortgage term from tlie ^g^g^enu^
faid Crompton to one Gi/borney and a re-a(Iignment thereof from tUe.
the faid Gi/borne to the faid Crompton \ and after reciting that
Cooke afterwards borrowed of the faid Abraham Crompton 40/.
and loA on his bonds, and deed-poll, whereby he alfo charged
the faid meffuage with the payment thereof ; and after reciting,
that fince the making of the faid indentures three new meC-
fua^es had been erected on part of the faid premifes, and that *
Abraham Crompton and John Cooke were both dead ; the faid Sj-
muei Crompton^ in confideration of 76 /. i /. paid him by the faid
John Hoole^ and by the appointment of the faid HooUy and of 5 j.
paid him by the faid Thomas Sheppard^ affigned to the fa^d Sbep^
pard^ his executors, (sfc. the meffuage in Sadler Gate^ and alfo
the three new-fbuilt meffuages and appurtenances, being the faid
refidiie of the premifes in queftion, for the refidue of the faid •
term of 500 years, in truft for the faid Hoole^ his executors, i^r.
but
2^o Easter Term, 7 G^^. IIL 1767.
but fubje£l to fuch equity of redemption, as the heirs or afligns
of the faid Cooie had therein.
That by indentures of le^fe and rcleafe (the releafe tripartite)^
.and dated the iitli oi January 1752, made between John Cookey
fon and heir of the before-named John Cooke deceafed, Catherine
Jerome widow, and Elizabeth Port widow, daughters of the faid
Cooke deceafed, of the firft part; the faid John Hoole of the
fecond parr, and Richard Rofn of the third part ; in confidera-
tion that the faid Hoole bad paid to the faid Crompton 76 /• i /•
in difchar^e of the faid mortgage, and other confiderations, the
faid JohnCoohey Catherine Jerome^ and Elizabeth Forty granted
and conveyed the faid reddue of the premifes in queftion to the
faid Rofe^ his heirs and afligns, to the ufe of the faid John Hoo/e,
his heirs and afligns for ever, fubjefl to two annuities • of
13./. 4 d, each, to Catherine Jeronu aud Elizabeth Port for their
Uves> both lince deceafed.
That John Hooky being fo feifed and entitled, received
the rents till his death, which happened i>n the i6th day of
Augujl 1757, l^^vlng Mary Launder y hi^ grand -daughter and
heir at law, and next df 4in, ihe being the only child of Marj
Launder (tiien deceafed), who was the only child Qf the laid
John Hoole.
That on the death of the faid John, Hooky the faid Mary
Laundery his grand^daughter, entered upon and received
the rents of the faid premifes in q'ueilion up till the time
of her marriage with the defendant Salesy from which time (be,
or her faid huiband in her right, continued in the poflciGon and
receipt of the rents and profits of the premifes to the time of
her death, without iflae, on the 13th day of March 1766.
' That John Hoole made his will, dated the 3d of February 17561
whereby he devifcd the mefluage recovered in this ejcA-
mcnt, and the refidue of the premifes in queftion, and all other
his mefluages, houfes, tenements, and real eft ate whatloever to
the faid il//iry his grand^daughter in fee, and appointed her re*
fiduary legatee and executrix of his faid will ; that Francis HooU^
the lefTor of the plaintiff, is nephew and heir at law of the (aid
John Hoole^ and alfo heir at law of the faid Mary Saks on the
part of her mother ; therefore whether the faid Francis Htokt
the Icflbr of the plaintity, is entitled to recover the faid rcfidue
of tlie premifes is the queftion?
John Hook being ftifcd in fee, and having this term of fCtis
in Sheppard in truil for himfelf, by his will devifes ail his wA
eftate v/hatfoever (entire) co his grand- daughter, bis heir at bVj^
.^n fee, and appointed her refiduary legatee and eKeciitrix; (bo
yras in of the fee by defcen^ and not by the \vijl \ Saks^ her h^^
S haaJ|
EAgTBR Term, 7^^^* ^^^- ^1^7* 331
ban4, produced at the trial flie faid afiignment of the mortgaged
term to Sbeppard in truft for John HooU* It is obje£ied, that the
Icfibr of the plaintiflF cannot recover becaufe of the fubfifting
term for years which is in Sbeppard^ in truft for John HooU the
^eftator, who by his will had deyifed it to hi^ grand-daughter^ who
was hi$ refiduary legatee, jind therefore the defendant her huf-
band (hall have the benefit thereof, and it (hall not attend the
inheritance, there being np mention made in the afiignment
thereof ^o Sb^ard that it was in truft for John Hoole to attend,
fhe inheritance: io whether this term can be fct up to bar the
plaintifi^ the heir at law to thp fee from recovering pofieilion in
this ejcclmentt
Lord Chief Juftice— It is obfcrvable there arc no creditors in
|his cafe to incline a court of law or equity to fever this term of
years from the fee ; it is a. queftion between the perfonal rcpre*
fcntative of the wife under a fatisfied mortgage, and her heir at
law. When John Hoole purchafed the fee, he became both the
hand to receive, and the hand to pay off the mortgage-money;
it wrought an e^tinguifliment of the debt due on the mortgage 5
when Hoole purchafed the fee the mortgaged • term was gone,
though it did not extinguifli the term in point of /aw, (becaufe
that was in Sheppard,) yet it became attendant upon the inherits
ance, and' mull follow 11 in point of law, as much as if it had
been made to do fq by the aft of the party John Hoole himfelf. *
But it is obje£led, that although this will is void as to the de-
yife of the fee, yet that the devife will have fome effeft, becaufe
it is evidence that the teftator intended to give his grand-daughter
fome intercft in his rcal.eftatc by his will, and if (he cannot take
the whole fee by devife, why fhall (he not take part, viz. the
term ? In anfwer to this, it is plain he had no intention to fever
the terhi from the fee, but he intended to give her the whole in-^
iieritance intire ; the words are, jill my mefluages, i^^* to her
and her heirs for evpr, not having it in contemplation to divide
the term from the fee ; and the cafe of Whitchurch v. Whit^
fhurcby 2 fVms. 236. G/7J. Eq, Cafes 168. S. C. 9 Mod. 124*
S. C. is in point. A» being poffeffcd of a term of 500 years in
Blachacrey afterwards purchafes the fee-fimplc in B*s name, and
devifes Blachacre to J^ S. in fee, but if the will is not attefted by
three witneffes, the term (hall not pafs, becaufe attendant on and
part of the inheritance ; the. intention of the teftator in that cafe
was to give the inheritance ; the attendant term could not pafs^
but was confidercd as part of the inheritance. It is obfervable
fti the prefent cafe, there is but a month between the afiignment
pi the mortgage and the purchafe of the fee ; it is admitted that
if it had been mentioned in the alEgnmcnt of the term that it wai
fo attend tht inheritance^ it could not be fet up agai^ft the heir
at law : now I coniider fuch (as much as if it faa:d been fo ex^
prcffcd)
33^ Easter Term, 7 Geo. IIL 1767.
prefied) upon legal principles, and it (hall not be fet np agitoft
the heir. LiUfeEl^ 464. cefiuy que ufe at common law was confi-*
dered as the owner of the land, and was fworn in affi?es and
other inqueds in pleas real and perfonal ; and feofiee to ufes was
to make fuch conveyance or eftate as cefiuy quf ufe di reded, or he
would have been guilty of a breach of truft*) and, by Lord f&-
hariy an aftion would He againft him at law to recover damages
for breach of truft, i Vem. 344. ; therefore it would be very ab-
^ furd to fan£lify a thing> for which an a£tion would lie at law \
for when a truftee accepts of a truft, he agrees in efFe^l, that
eeftuy que trujl fliall enjoy the land *, and it would be againft the
truft to hinder him from having that which is his own by law«
" The ^Jiea^ per totam curiam^ muft be delivered to the plaintifiw
Knight vtrfus Prefton. C. B.
Debcapon T^EBT upon a bond for 781 /. 14/., dated the 27th of iV^onaf^i
*^<*- ^ her 1^62, The defendant pleads non ejl foBum ; and ai^,
eft fJaum!" ^y leave of the court he pleads and fays, that he by virtue of the
2d piej, writing obligatory ought not to be charged with the debt, becaufe
fcndan**V**" ^ ^^^^^ ^^^^ ^^' ^^ ^^^ '^"^^ °^ ^^^ making the faid writing obli-
force and re. g^^ory, wos wrongfuUy and unlawfully imprifonedby the plain*
iiraincof tiflF and others in colluGon with her, and was wrongfully and
impnfon- unlawfully kept and detained in prifon, until he through the force
cuted the ^nd rcftraint of that impnionment lealed, and as hxs act and
bond. deed, delivered the faid writing obligatory to the plaintiff; and
this he is ready to verify ; wherefore he prays judgment if he by
. virtue of the faid writing obligatory ought to be charged with the
jd pica con- faid debt, 55V. And 3^//J^, for further pica by leave of the court
thebo**d^* ^^ craves oyer of the bond, and of the condition thereof, and it
hiade^." is read to him in thefe words; (to wit,) The condition of this
obligation is fuch, that if the above^bounden James Prefton^ his
heirs, i^c» (hall and do well and truly pay, i^e. unto the faid
Elizabeth Knight^ her executors, £5'r..,the fum of 3 19/. 17/, of
lawful money, ii^. with legal intercft for the fame, at, \\\ or
upon the day of demand, then this obligation to be void, or eife to
remain, ^c. Which being read and heard, the defendant favs, that
he cannot deny the faid adion of the, plaintiff, nor but that the
faid writing obligatory is the deed of the faid defendant, nor but
that the plaintift' ought to recover her debt aforefaid^ together
with her damages by her fuftaiucd on occafion of the detaining
Put that the thereof againft him the defendant ; but he further fays, that he the
before thl t^cf«^"<l*"' ^opg before, and upon the 25th day of Offober l^6o^
asth^ofOc- '"cntioned in a certain aft made at the parliament of our lord
toberi7fo, the HOW king of Great Britain^ &c. holden jit Weftminjler in
tivl beyild -^^'^^A/^^* **y prorogations, on the 18th day of November in the
thcfe^sat fi^ft year of his reign, iutitled « An aft for relief of infolvent
twida. <c debtors*
Eastjbr Term, ^Gco. IIL 1767. 333
^^ 'debtors^** was abroad and beyond the fcas in foreign parts, U>
wit, at Canada in North America^ and at the time of the making
of that ad, and from thence until the furrender and difcharge of
the faid -defendant hereafter mentioned, was a perfon entitled by
the faid a£l to return into this kingdom, and to furrender himfelf
to priion as a fugitive, and a perfon abroad and in foreign parts,
on the faid 25th day of OBober in the firft year aforefaid, and as
fuch to take and receive the benefit of the faid zOt \ and there-
upon he the defendant, after the making of the faid ad, and
during the continuance of the faid aQ, and within the time
limited and appointed in and by the faid ad for fuch fugitives
to return and furrender themfelves to prifon, in order to have
and take the benefit of the faid ad, to wit, on the firft day of ^"^ ^ ^^
FeWuary in the year of our Lord 1762, did return from the flbiwy**
faid foreign parts beyond the feas into this kingdom, in order to 17619 re-
and with intent to have and take the benefit of the faid ad ; ^^^^JTl'^kr
and the defendant further fays, that he, before fuch time as he. nefitoAhc*
fo went abroad and beyond the feas as aforefaid, and long infoivenft
before the faid 15th day of OBober in the faid ad mentioned, ThT^bef^*
was indebted unto the faid plaintiff in a large fum of money, to the aa bT"
Huit, the faid fum of money in the faid condition meniiottedy and was indebted
being fo indebted, the plaintiff, after the return of the defend- |J ji*J"„^
ant into this kingdom frOm the faid parts beyond the feas, and in the con-
before fuch time as the faid defendant had furrendered or could dition, wha
furrender himfelf to prifon, in order to take the benefit of the ^j^'j[^iS
faid ad, in order and with intent to deprive the defendant of in prifon f^
the benefit of the faid ad^ impleaded the faid defendant for the '^ i>s'ore he
recovery of the faid debt fo due and owing from the faid de- Jhcibe^fie
fendant before the faid 25th day of OBober 1760, to the plain- of theaa^
tiff in a certain court of John lord bifhop of Winchefter, com-
monly called the Cheney Court, held before George Prefcod efq.
bailiff of the faid bifhop of his faid court, holden at j'— in the
pounty of Southampton, within the juvifdidion of the court,- in a
cettain plea of trefpafs upon the cafe upon promifes, and. by where he
virtue of the procefs of that court in the faid plea, caufed and ^"^I?"*'*
procured the defendant to be taken and arretted by his body> and "^ th^**"
to be imprifoned at Winchefler in the faid county of Southampton, bond the
in a certain prifon there called the Soke Prifon, then and ftill being. *7th^ No-
the prifon of the faid court called the Cheney Court, and then cauibd j^,.
and procured him to be kept and detained in the {aid prifon until
he the defendant afterwards (to wit) on the faid 27th day of iVb-
vember 1762, m the declaration mentioned at W^minfhr afore-
faid, in order to obtain his releafe and difcharge from the faid
imprifonment ; and by and through the force and reftraint of that Wbeieupoo
imprifonment fealed, aad as his ad and deed delivered the faid ^'}'^^^\
writing obligatory in the faid declaration mentioned to the plain- \^xht 21ft
tiff J and ibc defendant further fays, that he being difcharged of Febmarf
1763, Tof^
yemlered himfelf to the King*t Bench priibn, in order to take dbe benefit of the 9/St, aad oc Um ^.xft
of Match 1 763, be waa diCebarsfd at the quarter lediooi.
from
334 feASt«R Term, "jGeo. lit; f^j6j.
from his imprifonment in the faid Cheney Court prifon, did after*
wards, to wit, on the 21ft day of February 17(^3, in compliance
with the faid aft, and according to the form and eSe£l thcrcofi
furjrendcr himfelf to John AJton efq. then and ftiil beia)^ marihal
, of the Marjbalfea of our lord the now kinp, before the king him-
felf, and the keeper of the prifon of the King's Bench mentioned
in the faid aft, in order to take the benefit of the faid ad, lod
remained and continued fo in cullody of the faid ^obn AJbton in
the (aid prifon as aforefaid, until the faid defendant afterwards^
(to wit,) at the general quarter-fcflions of the peace of our lord
the now king, holden at Southiuark by adjournment, in and for
the faid county of Surry^ on Thur/day the 3 ill day of Matrhy In
the third year of our lord the now king, before certain of the
king's juftices affigned to keep the peace, iifc. in and for the faid
county, C^r. was duly by yirtue of and according to the form of
the faid aft of parliament difcharged by the faid juftices in open
court at the faid fe (lions ; and this he is ready to rerify ; where-
fore he prays judgment, and that his perfon may be difcharged
from the execution of the judgment to be obtained againft him
by the faid plaintlflF in this aftion^ according to the form of the
faid aft, i^c^
^^"rfT/''* TIic pLintKT replies, and joins iflue upon the plea of w/r $1^
**** "" fa5lums and as to the plea of the defendant by him fecondly
Repiicatioii abovc pleaded in bar, the plaintiff fays, that (he by reafonof any
2^ •* thing in that plea ailedged, ought not to be barred from having
*^ her aftioH againft the defendant to charge him with the faid
debt, becaufe (lie fays that the defendant made the faid bond in
the faid declaration mentioned of his own free will, and not
through the force and reftraint of imprifonment, as the dcfend-
l>noiintrto ant hath above in that plea ailedged \ and this he prays may be
thc^dpict. inquired of by the country; and as to the plea of the defendant
by him laftly above pleaded in bar, the pJaiotifFCays, that (he, by
reafon of anything in that plea ailedged, ought not to be barred
irom having execution againft the perfon of the defendant, be-
caufe (he fays that the faid plea, and the matters therein con-
tained, arc not fuffici^nt in law, 6^f. (fo demurs generally,) and
the defendant joins iflue to the country to the replication to the
fecondplea, and joins in demurrer as to the third plea.
Aftortftate The cafc upon the demurrer to the defendant's third pleafe
•pon^h^r*' Shortly this : The defendant being a fugitive for a fimpic contraft
^naoirer. debt owing by him to the plaintiff before, and on the 25 th day of
OSober 1760, returned to England the I ft oi February t^67y in
order to >take the benefit of the infolvent debtors* aft made in the
firft year of the king, and before he furrendercd himfelf for that
purpofe, was arrefted by the plaintiff for the faid debt, and con-
tinued in gaol under that arreft four or five months, u:DCil he esit-
cttted the bond the 27th of Noventbcr f^62, ior the payment of
tUi
Easter Teum, yC^o. III. 1767. 335
the faid debt, whereupon he was difcharged from that arreft^ and
afterwanls on the 21ft oi February 1763, within the time limited
by the a£i, he furrenderedhimfelf 'to the King's Bench prifon, in
order to take the benefit of the faid ^Qt, and at the quarter-feffions
for Surry on the 3 1 ft of March 1 763, was difcharged ; and now
the plaintiflF has brought this a£lion upon the bond ; the defend-
ant confcfles the bond, but fays it was given to the plaintiff/ir m
targe fum of money ^ to Hoit^ thefum of money in the faid conditien men*
thmed^ owing to her before the (aid a5th of OSober 1 760^ and
therefore he pleads that his perfon ought to be difcharged from
any execution againft him. Upon demurrer to this plea, three
exceptions were taken :
' ifiy That the defendant fays, he was indebted to the plaintiff
in a large fum of money ^ {to luit,) the faid fum of money in the faid
condition metaioned; and that this coming under a videlicet is not
direftly alledged, and therefore is not traverfablc. But^^r cur.
•—The office of the videlicet is to explain what went before, and
Inhere it is not repugnant or contradiftory, it is material and tra-
verfable. i Saund. 170. 118. Hob. 172. Zalh,^ 561. And thej
held the plea good in this point.
The id exception was. That the new bond has extinguinied
the old debt, and therefore the defendant is not entitled to be
difcharged from the bond, which is a debt created in 1762. A9
to this point the court feemed to diflFer among themfelves, bat'
gaye no opinion.
The 3^ exception was, That it appeared that the defendant
had been returned from Canada to England above a year, vi%. -
irom February i, 1762, till February 21, 1763, before he furren-
dcred himfelf. This was held a good exception by the whole
court, for the defendant ought to have furrendered himfelf in a
reafonable time, but he laid by, was arreded^ and continued in
gaol five months, when he might have brought his habeas corpus,
and been furrendered to a proper prifon in order to have taken
the benefit of the infolvent debtors' adl ; but inftead of doing
thaty he gave this bond ; and upon this exception alone, judgment
' vas given for the plain tiflF.
33^ EASTEft Term, 7^««ni. 1767*
Roe, on the Demife of Thomas Buxton and Mary
his^ Wife, verfus Thomas Dunt* C B.
rower under rpJECTMENT of onc mcfluagc and lands in Hithtrfit^ Greai
feS^eSHa Mflton, and Little Melton in the county oilf&rfolk. Oil the
gWe to the trial thereof at the laft fummer affizes a verdi^ was for the plaia*
chUdren of xxS^ fubjed to the opinion of the court, upon the following cafe :
i^da fliarety Sarah Smithy widow, in the year 1 744, was feifed in fee of the
.&c. and for premifes according to the cuftom of the manor, being copyhold,
A^ttd of Hetherfit Cromwells, and being fo feifed, at a court held for
there it but the faid manor on the 25th of March 1 746, fiirrendered die pre-
one child of ^Ak^ to the uic of her fon John Smith and Elizaieih ^is wife,
Schthii?*' during their lives and the life of the longer liver of them; and
skuft have after the deceafe of the furvivor of them, to the child or childreo,
«»»« *'*""!*. u whether male or female, of the faid ^ohn Smith and Elizabeth his
tlttLuted. ^if*^> hi fuch proportion and proportions, and foi fuch eftate and
eRates as the faid John Smith and Elizaheth his wife, or the fur-
vivor of them, (hould by any furrender or furrenders thereof, and
according to the cudom of the manor $ or by his or her iail will
and teilament direfi, declare, limit, or appoint; and for want of
^ fuch diredion, declaration, limitation, or appointment, then to
all and every the child and children of the laid John Smith and
Elizabeth his wife, and their heirs, equally to be divided between
them as tenants in common, and not as joint-tenants; and for
want of fuch iflue, then to the right heirs of the faid John Smith
for ever. John Smith and Elizabeth his wife were at the fame
court admitted tenants thereof, to hold the fame, according to
the ufes aforefaid ; and the faid John Smith immediately at the
fame court furreudcred the premilcs to the uie of his laft will
and teftament*
Elizabeth Smith the wife died, and John Smith her hufband
furvived her, and by his will duly executed the iptfa of March
1764, devifed as follows, viiu '* I give and devife unto Sarah
<< Smith my daughter, and her heirs for ever, when (he attains
*' the age of twenty-one years, all my meffuages, lands, tene-
** ments, and hereditaments whatfoever, fituate, lying, and being
** in Hetherfet aforefaid ; and if my faid daughter Sarah fliail
•* depart this life before fhe attain the age of twenty- one years^
^ then I give and devife the faid mefluages, lands, tenements^
^ and hereditaments unto my fiftet Ann Dunt^ the yMt of
«* TI:omas Dunt of Hetherfet aforefaid, mafon, and her heirs for
H ever, fubje£t neverthelefs^o the condition following, that is to
•* fay, in cafe my faid filler Ann fliall at any time when (he is
•* poflefTed of the faid meffuages and lands, make falc thereof
** to any perfon or perfons, then mj will is> that the faid Ann
» my
Easter Term^ 7 Gio. HI. 1767^ 337
<* my^fiftcrib pay to Samuil Snutbmj brather^ fbefiiai of fibf
*' pQiiod« oat of the motley anfiogby foch (ale/'
^«i0 5;»y/>& dkd in May 17649 and left only one chiU, hia
daughter Saf^ah &miihy by his faid wife Elizabeth^ vtha on her fa-
tbcr'tf death to^ poiTdlion of the preniifes, and died feifed thereof
on the 4th of Augufi 1 765, an infant of the age of 19 years and
38 days ) and Mary the w^e of the leffor of the plaintiff ; l^hmks
Bttxtm is the confin and heir at btw of Sarah the infantt as being
the omVf ^drild and daughter of Tbmas &mtb^ the ddeft uflcle of ^
Sarab the infent) and grand-daagfater and heir of Sarab Smbb
mentioned as the farrenderer in the furreoder of the a5th of
March 1 746, aiid Tbamai Dufit the defendant is budbaiKl of die
faid jian DuKt^ the fifter and devifee of the teftator^ The queT*
tipn for the opinion of the coort is, Whether the plaintiff, as
leCee of Tboma/ BupOoh and Mary hin wife, in right of cbe find
Mary, as hei? at law to Sarah Smith the in^t, is entidcd to re-
cover in this ejedment ?
'The whole court were clearly of opinion, that Smkb the teffau
tor had no power or authority to make the will and funender at
above, but that theoe being only one child of the faid teftator by
his kte vriff , that child' was entitlecl to the whole of the pxemifes
in fee;' :^ad. 'Mrs. BuMtm being her heir at law, the leffor of the
plaintiff had judgment.
Note t It was faid by the Lord Chief Juftice, that he had known
a cafe where there has been one child only, ilxTittbat child under
foch a power as this had been made tenant for Hfe, with remain-
der in tail to its iiTae, but he n|uch doubted whether it could be
legally done. He faid| he thought a fingle child in fuch a cafe
ss this mighe be made tenant in tail. But quare, as to this
matter.
This cafe of Roe, on the demifi of Buxton and his wife v, Dunt,
w»s argued by Serjeant Fofier for the plaintiff, and Serjeant
WTntaktr for the defendant. The principal cafe cited and relied ^^ "- ^-
apon on the part of the plaintiff was, Doe on the demife ef Brown* ml ag G.a,
ftnkb and bh wife t. Denny^ in B* R., Hilary term, 29 Geo» 2. in ' the like cafe
which Rider C. J/delivered the opinion of the whole court. The
cafe was this^^By indentures of leafe and releafe of the a3d and
74A of June 1727, between Mary Hammond of the firft part,
Henry Tan^ion of the fecond part, and Jamef Haiies and Samuel
Dynes e! die third part,' reciting that a marriage was then in*
tended to be had between the (aid Henry and Mary. In con-
fideratioti tf the faid intended mafriage, they the faid Henry and
.^farfveitkft .and coorey unto the faid Haiies and Dynes and theii^
heirs, the prent^ in queftiony lying in Swilland in the county of
Siifofkj then the eftate ia fee ^f the fiild Mary, and alfo a certain
Vok. II. Z other
338 EASTEii Term, 7 ^co- III. 176/.
other eftatfi in Samerpfom^ then the eftate in fee of the (aid Hemjf
to the ufes following, viz. As to the prtmifes in Svnllaadf (being
the premifcs in quellion,) to tlie ufe of the faid A^ary in fee until
the iharriage, and as to'the preniifes in Sonur/bami to the ufe of
Hmry till the marriage \ and after the marriage, then, as to the
idxi eilates as well of the faid Mary as of the faid H<nry^ to the
ufe of the faid Henry for life, and after his deceafe, to the ufeof
the faid Mary for life in bar of dower, and after the dcceafe of
the fucviTor of them, to the ufe of fuch child or childreii,.oa the
body of the faid Mary by the faid Henry to be begotten, and for
facb eftate aod eftates, and fubje£l to fuch powers, provifocs,
conditbns, and limitations as the faid Mary^ nptwithftanding her
ooverttire, ihould by any writing under her hand and feal, at-
tefted by threif or more credible witnefics, or by her laft will and
teftament in writing fontte(led,fliould limit, dire£l, and imoint
t\ve fame ; and for want of fuch limitation, (9*r. to the w of
fttch child or children on the body of the faid Mary by the faid
Hifhj to be begotten, and his and their heirs equally, as tenaQts
in common, and not as joint-tenants \ and for want of fi|pb ifluc,
to' the lifo and behoof of fuch petfori and perfons, and for fuch
eftate and eftatcs^ lit. as the faid Mary during her coverture, or
at any other thnct and as well married as Me, (hall in and by
her laft will and teftament, or by any deed duly exccal^ in die
prefence of three or more credible witneffes» give and appoiB^ ^
famci and as the eftate and eftates fo to be appointed (if any foch
(hall happen to be) (hall refpe£^ively end and determine ; and for
want of fuch gift and appointment, die premifes (in queftioo) in
Swilland to the right heirs of the faid Mary^ and the prei^ifes in
Somerjbam to the right heirs of the faid Henry. The maniage
took ttkdt^ and they had iflue only o>ie fon Henry. The hu^
band died in 1729, leaving his widow and the fon aninfanc
Afterwards in 1 733, Mary the wife died, leaving her faid.fimaa
infant, but before her death made her will in due formj and
therein (reciting her power under the faid marriage-fettleoKnt)
by vittue of the fettlement aforefaid, and of other powers In her
vefted) (as it is expreficd in the will,) gives and devifcs unto the
faid Henry Tampion her (on, and his heirs for ever» all the £ud
premifes in Swiiland and Somer/ham ; but in cafe her faid fon
(hall die before his age of 21. years and without iiTue, then (be
gives the Swilland e(late to her brother Jcifepb Clarke^ and to her
fitter Ann ProBor^ and to their heirs for ever, as tenants in com-
mon \ and on the like contingency (he gives the premifes in Somer^
Jbam to Rotert Shearcroft and John Hailes and their heirs, as te-
nants in common. Henry Tampion the infant fon furvived bis
iftQtber about five years» and died in 1 738, an infant and without
ifioe* The wife of Srown/tnitb the plaintiff's leflbf is heir at
law to the infant on the part of his father; and the defendant
Demff claims under the will of Mary the widow. Lord Oki
Jufticd Rider deciftred^ tliat it was the opinion of the whole coun
an-l
Easter Terii, 7 Oeo. tlL 1765^. 339
and of the hte Chief Juftice Lh^ that the title Uras in the heir at
law of the infant, and that the deyife \>j Mary was Toidf and
that there being a fon* living at the « time of the niothcr'a appoint-
ment» the appointment was void ( for as there was ifliie living at
the time of her death, the fecond power to give it to a ftranger
coald never arife, for (he had no power to difpofe of it to a
ftranger, but upon failure of ifluc. If indeed (faid the Chie£
Juftice) the fon had died in the lifetime of the mother without
iflucy then perhaps (he might have had the power of difpofing
of it, agreeaUe to the cafe of Holt and Burlngb in Cia$tceff Pre^
^tdmUf ^93. 2 Vtm. 6$. (whieh was like our cafe, but the child
died in the lifetime of die parent,) as Ihe had a fon living,. fl)ei
could not difpofe of the cftate from him^ nor alter his eftatCt
and gave judgment for the plaintiff. Upon the authority of this
cafe, the prefent cafe at bar, of Roe and Dunt was determined^
and judgment ^iven fot the plaintiff by the whole court. May 13^
1767. Per JFtlmot C. J. who faid, that the cafe cited was di^
re^ly in pomt, and that he could not diftimuiih one from the
other j but he thought the cafe at bar was a ftronger cafe, for if
this power could have taken place, and the child had died undei^
twenty-one and left iffue, that iffue would have been difinherited«
Catharine Turner, ' Spinfter, verfus Thomas
Vaughan. C B*
DEBT upon a bond, dated the 23d of Marci 1764, for igoL i^ tii
- The f4id Tbomat^ by Matthew Coultburft his attorney, comes^ wirtSfl^
and defends the wrong and injury when, ksfc. and priays oyer of paftcoht-
tbe faid writing in the declaration mentioned ; he alfo prays eyer Wmmo if
of the condition of the faid writing, and it is read to him inthefe •*** *■ ^^*
words : (to witi) Now the condition of this obligation is fuch^ Oyer of dis
that in conGderation of cohabitation had by the faid abovo* ««**d«n«
bounden Hhmuu Vaughan with the faid Catharine Turner^ he the
faid Thmnas Vaughan hath hereby agreed to fecure to the faid
Catharim Turner during her natural life, the yearly fum of 30 A
a-year, to commence from the day of the date of thefe prefentsi 4
and made payable on the four moft ufual feafts or days of pay<*
ment in the year, (that is to fay) the birth of our Lord Chrifi^
the Annunciation of the bfcffed Virgin Mary^ the Nativity oi
St. Jebn the Baptift, and St. Mkhael the Archangel, by even
and equal portions i the firft payment to begin and be made oa
the fea(t-day of St. John the Baptift next enfuing the date of the
above-written obligation: Now if the above-lnmnden Tbenuu
Vavghem^ hb heirSf executors, adminiftrators^ or affigns, pay or
caute to be paid to the faid Catharine Turner, her executors, ad«.
ininiftratort, or affigns, the faid annuity or yearly fum in the man*^
aer and on the days and times aforelsad, then this obligation to.
be Toid^ or rife to lemaio in full fprce and virtue i which being tytmmn.
Z a read
34© Easter'Tehw, 7 Ged. III. 1767.
Had »od heard, the faid Thmai faith, that the iedxn66niim^
fald, and the matter therein contained, is not fufficient ill law to
maintain the faid action of the faid Catiarm againft the £ud
Thomas f to which faid declaration the faid Thmax need sot, oor
Is he in any way bound by the law of the land to anfwtr i and
this he is ready to verify :. wherefore, for want of n fuflSdeiit
declaration, the faid Ihomai prays judgment of the (aid dcdan^
lion, and that the fame may be quaibed, btc.
joiftdcrln Add the faid Caiharim faith, that by any thing by the laid
<^«nw>*'' f^bffMf abore alledged, the dechration of her the faid Caiianm
ought Hot to be <|ua(hcd, becaufe (he faith, that the dcclaratioo
aforefkid, and the matter therein contained, are fuffident in law
' " to itoaintain the faid aAion of the faid Catbartm againft the fiud
Tiomas^ which faid declaration, and the matter in the fame ooiw
tained, ihe the faid Catharine is ready to verify and ptOTC, as the
court ihall award : and becaufe the £iid Thomas dorh not anfwer
to the faid declaration, nor doth otherwife gainfaf the fame, (he
Ae (hid Catharine prays judgment and her faid debt, togethet
with her damages occafioned by the detaining of that diebt, (o be
adjudged to her, ^e. But becaufe, tic.
It was objeAed, i^. That it appeared by the condition of the
bond, 'that it was executed and giren upon an illegal, flagitioas
confideration of haying cohabited with the plaintiff, who appears I
to be a fpinfter, being fo named in the declaration, and therefc^e I
the court would not affift her to recover any debt thereupon; |
and cited the Dige/i^ lib. 4;. fee. 1 23. and Cicero de SeneStste^ i2. |
where he explains the word Jlagttium to mean ^r#^nnfi, (^8s,)
Shipra ii aduiteria l^ omne talejlagitjum nuilis aliis ilUceMs exet*
" HmHsr fi'tfi vohiptatis / and Cic. Kerr. 5. 10. NoRis lonpiudojhtffii
VJfa^itiss conturbatur. ' lidlyy That this bond appears to be giren
ibr a conCderation pajl^ and therefore is no confideration at all)
and cited i RoU. Abr. 11, 12. Moor 642, 643* S.P. 2 Sira*
5i33>S.P.
J ofcneiii Per Qlive^ Bathurft^ and Gouldy JufKees, {alfiMo emfHahjafie.
^theptim- 1^/^^^) without hearing the other fide—Theie mnft be juc^-
ment for the plaintiff. .
Clive J.—- 1 am in a court of common law, and net4ii an eccl^>
fiafttcal court. If a man has lived with a eirl, and aftciwvdf
nher a botid, it is good. Suppofe this bond had'betn ghreQ
^ le defendant to the plaintiff for bemg hia miftrefe, k woeM
h^ve b^en good In point of law, although in si court of afjdty it
Arould be poftponcd to creditors. Sir Jofit^^ J^% Mhftar of
the Rolls, in a cafe where creditors interfered againiil'a bond of
this fort, wifhed he could have given the lady the money upon the
bond \ and where it is framrumpudoris^ % conft*of-ec{ai»y will not
rclicre
^AeTEE TbrMi 7(^0. IIL 1767* 34X
idkfe* agamft fwch a bond* Thi^ coadidoli It matpubk of M
esphaatioD to make the botid an illegal tSt*
Batburjt J.— Where a man is boMtid in bonoQt and confeictec,
God fbrbidy that a cOurt of HiW flioold fay the contrary; anl
wfaereyer it appears thiit the man is the lediicer, the bond is
good. Bracfon.hjSf when a man cohabits with an namanried
woman it is bgitima amcuUnat and Enodujp cap; 22» v. id* ** If a
<< man entice a maid that is not betrothed^ and He ii^tfa her^ he
*< (hali furely endow her to be his wife.'' See alfo Deuterimmny^
cap. 22. v.t%. *^ If a man find a d^mfel^tbat i^ a virgiii nrfiich
<^ is not betrothed^ and lay hold on her» and lie with her, add
** they be found, then the man chat lay with her ^nU give unto
** the damfera father fifty fhekels of filvcr, and flie fliall be his
*< wife, bocanfe he hath humbled her, he may not put her away
'< all his days/' Honour and confcience oo^ht to bind ereijlj. .
man in point of laW. In an a£kion in the £ing*tf Bench, upon a
pomife of marrbige, die eridence upon the trial was^ that the
defendant had brag;^ and boaifted that he had debanded the
plaintiff, by promtfing her marriage; this cauie being tried
before me in die circuit, I left it to the Jury upon that mdtoct
only, and they gave a yerdi£l for the plaintiff, and 500/. da-
mages, which I thought right; the /court of King's Beodi ap^
proved of my opinion, roofed to fist afide the rtxiiiiBt, 9M
thought 506/. daitaagfcs were little enough. ^
GpuU J<Wrhe c6urt may take this for a lawful and confcieni*
- tbos confideration. We mud piefume that the defendant hath
done what in honour and conCcience he ought to hare done, and
that he thought himfelf a wDoag^dociTy and gave the plaintiff this
bond to flaake her amends.
• • •
CoIliQs ver/us Blantern. C B,
Titt nc9rd if ^Hil^y //rw it the fivetfth year ofib^ nig^ rfKing
George lAtfSnWrrf. Rp/l i26. [
&br(^re^ J^OBERT plantern late of Rodenhurjl in the faid ncBtupba^
to wit- -" county, "yeoman, was fummoned to anfwer Ed- '^^ ^^.
vford Collins of a plea, that he render to him feven huttdre4 the 6th ay
poun^. which he owes to and unjuftly detains from him, iic. of April
Whereupon the faid Edward Cailins bv Join Leake his attorney ^^^^*
fays» that whereas the faid Robert Blantern on the 6th day of
Jprii^ wbich was in the year of our Lord 1765, at Radetihurfl
aforeiaid in the county aforcfaid,.by his certain writing obligatory
acknowledged himfeU to be held and firmly bound .unto the faid
Edward CilUns in the aforefaid fum of feven hundred pounds, to
be paid U^ thc< jTaid Ednvard Calfitfsjwhai he fixwld be thereunto
'. 2J3 ' ' required;
34Z Easter Term, 7 Ced* in. 1767.
requixed} nevetthelefe tbefatd Roi^ Blanurm (altbcn^ ofien
thereunto required) hath not paid the fiid feven hundred pounds
to the faid Ednoari Collins^ but hath hidierto refufed and ftiU doth
tefofeto pay the fame to the faid Edward CdBfUy wherefore he
fays that he is the worfe, and hath damage to the Talue of teo
pounds, and therefore he brings fuit, and fo forth } and he brings
here into court the aforefaid writing obUgatory» which teftiSes
the faid debt in form aforefaid^ the date whereof is the fane day
wd y^ar abof ementioned.
xft Vka &u And the faid Robert^ by GtorgeGreene his attorney, conies and
SeiwS.*^ defends the wrong and injury, when, ^c. and craves 9jer of the
tioo wbfreiii 'laid fuppofcd writing obligatory, and it is read to him in thcfe
fwif othm words : (to wit,) Know all men by thcfe prcfcnts, that we J^
Sdi«i^ ^^^^ ^ F^on in the county of Stafford^ yeoman, TbomM
jointly fnd Walker oi Draycott^in-tbe^Moors in the" laid county of &j^r^,
^c»iir yeoman, and Rohnf Blantem of Rodinhufft,in the county of
pHanUff io^ &i/!^, yepman^ are held and firmly bound to Edward ColHns of
7CQl« Brecmd- in the faid county of iiajfirdj furgeon, in the fum of
(even hundred pounds of good and lawful money oi Great Briiam
to be paid to the faid Edward Collins ^ or bis certain attorney,
•executors, adminiftrators, or affigns, for^ which payment, to be
well and faithfully made, we bind ourfelves and each and every
of us jointly and feveraliy, our and each and every of our heirs,
executors, and adminiftrators, firmly by thcfe prefents, fealcd
with our feals \ dated this fixth day of Aprils in the fifth year of
the reign of our fovereign lord George the Third, by the gnce of
• .God, of Great Britaint Prance^ and Ireland king, defender of tbe
faithf and fp forth, and in the year of our Lord one thaufand fcven
hundred and fixty-five \ he alfo craves oyer of the condition to
the faid fiippofed writing obligatory, and it is read to him iq
AtA alfo thefe words : (to \yit,) The condition of this obligation is focb,
SMWpifrr *^^ *^ ^^^ above-boundcn John Walker, Thomas Walker, and J!s-
%ht piyment kert Blan$ern, our heirs, executors, or adminiftrators, (hall and do
of 350I. to well and truly pay or caufe to be paid unto th« above-named
^tC^eih^ Edward Collins, bis c^cccutors, adminiftrator?, or affigns, the full
^fMaynext. fuQ^ ^^ three hundred and fifty pounds of good and lawful money
qi Great Briton, upon the fixth day of May ncift, without fraud
pr further deUy, ^hen this obligation to be void and of none
efFcfi, or elfe to retr>ain in full force and virfu^ } which being
read and beard, the faid S.obert faith j that fhc faid jTi/uMir^ ought
not to haVe his aforefaid ad^ion thereof againft him the faid Re^
ffon eft faf- bert^ becfiufe he fays that the faid fuppofcd Vfriting Minatory is
f!J«Pf'w<itd. not his fUed^ and of this hp.puts himself upon the country, Wf.
And for further plea in t|ii? behaliF the ftld Rdtrt, by leave of
the pourt I^ere for this purpoffe firft had and obtfuneds according
to the form. of the ftatute in fiich cafe made ^tiA provided, fays,
fha| the faid Edward ought not tp have bis afbrefaud iSde^
' ^ fhcftof
Easter Term, yGeo. IIL 1767^ 54J
tktreof andnll him, becatffe hefaystluit befercj and at'the time idly. The
of the mauuDg of the abovementioned fappofed \7Titing obligatory^ Jf ^*I?*2L,
and aifo before and at the tim^ of the making of the promifibrjr £2^^^^
note hereafter mentioned, (to wir,) at iZttftnAv/^ aibrefaid, the iiwdaMtfr.
faid J9hn Walker and TLomat ITa/ktrin the faU fuppofed writing ^^^"^ \
obligatory named, and alfo one Rahrt Walker^ oncTbomof 8dU ^l^tUti^
letoe^ and one Jo/jn Cullifk^ flood re^edively indified in a duo mcadtMd,
courfe of law on the profecutton of one .John Rudge^ by. fire fe- JTS*^***^ ^
Ycral and refpefiive indi£kments ion wilful and corrupt perfufv, 1^!!^^ *>
to which £iid lisverat and refpedive indi&nicnts the faid John^ Thomm '\
Wnlker, Thomas Waiker, R^ert WMer^ Tbomoi Sciilitoe, and- ^^^^^^^
John Cullick^ had refpc^tvely pleaded the fevcral pkas of Not; ftood mdi^^
guilty before the making of the faid fuppofed writitig obligatory,) •^ ^ J^^ r
and al£i before, the time of the making of the*faid note hereafter' g^e fhdiaV'
mentioned ; and the traverfes of the fan! John Walker^ Thonuis mtnu H&r'
JFalkff\ Robert Waiter. Thomat SdUitoe, and ^ohn CiiiUeh refpee- ^»^i •»<
tirclyon the refpe£live indidmcnts were, at the time of thcJ^^JK
making of the ualawful, wicked, and corrupt agreement heceaftet rever'iUy
mentiooed, and of the note hefraftcr. mentioned, and atfo of the ^^^ Noe
abo¥e fuppofed writijig obligatory* (to wit,) on the day whereon" Sl^ljjjl^
the faid fuppofed writing obligatory waa made,, about to come on the boqdaod
to be tried at the alBzes then, (to wit;) on that day being,. ^nd ^^* .
cootinuing to be held at Sta^d for the;county of Staford, and ^"i^^^: - '-
that the faid JcAn Walker^ Tbonuu Walker j Robert Waiker. Tbo^ Terfesob'tlie
mas SciUitot. and John Cullidt^ fo (landing indidedon the profe- - *'^'^°>«nts
culion of the faid John Rudge^ and the fiid traverfes ib being ^^o^fmak.
about to be tried as aforefaid, it was on the faid (ixtfa day oiAfnl ing the on-
in the year 1765, in the faid writing obligatory mentioned, (to''»wf^«'y«e-
.wit,) at Rodenburft aforefaid, unlawfully, wickedly, and conupt* ^liowd,
ly agreed by and between the faid John Rudge^ the pro&cutorof and tii6flor«'
the indiaments aforefaid, the faid Ed%vard Collins the plaintiff, f"!?'*''.'"*
and the faid John Walker, Thomas Walker, Robert Walker. Thomas S. filmJillJ^
Sallitoe^ and John GuUkk, the defend<intr*Jn thefe refpc£tive in*> tliebM^wat
didments, th^it the faid Edward Coili/^ thcr now plaintiff ihould ^^^^
give to the laid John Rudge the profecutor of the indi&mems con!e « to
aforefaid, his note in writing, commonly called a promiflbry note, be rried 4c
a^ and for value received, to bear datif on a certain day and in a ^^^^^'<'*
cenain year now paft, (to wit,) on the day and year laft men- i^^^^^
tioned, for a large fum of money, (to wit,) the fum of three hun- corroptly
dred and fifty pounds, payable to the faid John Rudgi thereafter, »«««<» ke*
.(to wit,) one month after the date thereof, as a confideeatton for |hj^ro(2j*l
his the faid John Rydg/s noi appearing to give evidence as pro* tor, the
feeutor on tnp trial of any ^or either of the traverfes aforefaid, pi*iatiA*and
againft any or either of the defendants, and that in confideration i^i)[aial*
thereof the faid Jobi^ Hudge (hould not, nor would appeal^ at the ed, Uiat th«
trial of the traverfiss afore laid as profecutor, and (hould not,.nor ^^^j^.
would give evidence on any or either of the faid indidments uiTprofecu-
td» Hiidte Jm Bots for $501. w coaiidcmicai for aot appeariss to^irt cntecaat the tiial oftht fiud
Z 4 • againft
J44 EasteuTeum, yCtfo.m. 1767^
tgaSnft an]^ar either of the paities fo ftanting indiAed ts^ow
Aod tbit (aid. Mid that the faid John WaOtir, TUmas Wdher^ aad Jtabtft
te^d^oT ^l^^^^^ ^e now defendant, ihould feal, and as their deed deltvtr
ctttttthftVnd unto the faid Edward CoUins their bond or obligation of the faux
**ff^?w*' ^*^ wththe faid note in the penal fiim of fcvcti huodied
^Lfteiiiic^ pounds^ with. a condition thereunder written, for the payment of
tl^eaciiu three hundred and fifty pounds on the 6th day of May Uien neat
•"*^«2«V*y and now dl^pfcd, at an indemnity to him the ^id Ediuafd CoUm
dfrft^Ji^'ag f®^ ^^ g*^ving of fuch note ; and the faid Ribnt BhtHirn ftinher
fuchaotc iaithj that inpurfuance and in part of performance of the faid
That pUio. Uniawfuii wicked and corrupt agreement, the faid Edward CMns
dffgi?« to ijid thin and there, before the trial of the faid travcrfcs, or of any
Jjfccutor ^ ^^^^ 4>f them, (to witO on the faid 6th day of Afril'va the
tbi note for Year. 176; aforefaidy at Rodenburjl aforefaid, make, give, md de-
S^^^f ... iWcx notq the faid JohnRudgi his certain note in writing,- com*
:.. . < '. mmily called a promiflbry note,' bearing date as aforefaid, (ta
wit|) on the day and in the year laft mentioned, for the Aim of
. three. faundced and £fty pounds, ag for value reecwed, payable to
tbefiiid JAuJtu^ thereafter, (rowit,) one month after tkedate
' thereof, accosding to the tenor and effe^ of the agreement afoit-
Siiir ir ^*"'* "* * confidcration for his the faid John Rui^/s not appcar-
profccutor ^9 9^' fxro&c^tor, and for his not giving evidence as profecutor
w'i giving ^on th^ tria) of any or either of the traverfes afore&id, agahfift any
cTidcncc. ^ gijjj^ ^£ ^g parties fo indited as aforefaid ; and that in por-
fuanceof the faid unlawful, wioked« and corrupit agreement, and
" "^ ' according to. the tenor and eflfeft thereof, the faid Jcin Rtu^e
.(then and there accepted, had, and received the faid note ef and
''from the faid Edward Collhis for the purpofe aforefaid* and inpait
of performance of the aforefaid unlawful, wicked and comi]pt
iUdtWtho.. agreement; and that in further puriiiance and completion of ihc
gUinl^'lKr ^^*** nniawful, wicked and corrupt agreement, and according to
iH>t«o«eciiu the term and effeft thereof, the faid John Walker^Thomas Walkiff
c4tbif bond., and Robert Blafttern the now defendant, did then and there inn-
' mediately after the giving of the faid note, and before the tri^lof
. thetraidmiDS aforefiaid, or of any or either of them {to wit,) on
' tlie faid'fiKth'day oijipril in the year 1 765 aforefaid, feal, and as
their deed deliver onto the faid Ed'ioard CoiiinsxYit U\d wrimg,
now brought here into court, with the condition above fpetified,
istnindcQf asan indemnity to him the faid Edward Collins for the ^ing of
Bityto*^*' fvtchnote fo given for the caufc aforefaid; and the faid iWwt
Ji^ fuch Blantvmioitihtt faith, that the faid Edward Collim then and thcw
Boce. at the time* of the giving of the faid note to the faM John Rudge
wcllknow for what caufe and confideration the £ime was io
_, given, ^aod that the faid Edward Collins^ at the time irf the feaKag
. and ddiueriqg to him of the writing now broaght^hcw into codffi
took, accepted, and received the fame of and fiomtke feidjsfci
H^Hfibr, Thomas Walber^ and Robert BlaHfopH die now defondkit,
> msmn nidcBiotty ^ainii the aforefaid note, widi this, that'the Md
Roiert Blatitern doth aver, that the faid fuppofed writing ohHga^
I \ tory
Easter Tx&m, yG£o.T[L ry6yi 345
rfarong^ hare into coaft) was given f or fttdiedriflderaflon Anavcnneat
jHiifiDiefaids and po other wbatfQcver ; and that he the faid Rohert tli>ttbeboa4
iUnrf^ and the fatd John Walkir and Thomas Watker mentioned "ZT^tJZ
inr the (aid fnppofed writing obligatory were not, nor were, or iidcratioo,
was any or either of them, at the time of the making of the *n<'nooKbcrj .
aforefaui n^e, or at the time of the fealing or delivering of the
iaid ftt|^ofed writing obligatory to the faid Edward Cotiins, or -at ndthattU
daelime of his acceptance of the faid ftippofed writing oUigatory, oWgonwere
^ any wife indebted to the faid Edward Coiiims or to the faid John 1^^!!^'^
Sjidgo in any fom of money, or m any other refpea whatfoeTer; tiff.aiKj
and fo the faid Robert Blanternfaith^ that the/aid fup^okd mmtitfw thercfoKtlie
pUigdtory fo made and given by them the faid Robert Blanterny ^^"^^/^
Jabii H^aSter,'%nA Thomas Walker^ for the caufe aforefiiid^- m twtitf hoc, aw.
in lamfi and this be is ready to verify ; wherefore he prays judg-
ment if the £iid Edward Collifit avight to have his aforcAtd a£Rra
thereof againft him, itc. And for further pica in tbisbehalf, the
faid Robert Blaniorn by like leave of the court here- for this pur-
pofe firft had. and obtained, according to the form of the ftatute
m fiich cafe, made and provided, fays, that the faid JBdward ought
Slot to have' his 4rforef;i«d a£lion thereof againft htm, beesufe he 3<^Pfe'*tfaat
faysy that the laid fnppofed writing obligatory was given by the luJ!rfc**h!
£itd Robert Biantom, JohnWaUfr, and Thomas iTalken to the Sbiigon tT
fbtd Edmkird, (to wit) zt Rodenburfi aforefaid, to indemnify the iixinniiify
faid Edward againft a certain note in writing of the faid Ed" ^^|^^^
ktkird% commonly called a promiflbry note, theni (to wit) 'on ooie given
the faid ftxth day of April jn the year 1765 afovefaid, (to wit^ by Mm to
9t Rodenhyrft aforefaid, given by the faid Edward CoUins to the ^',|^/^°^
laid John RudgOj as for vahie received, bearing date on a certain cbe'pbifltiiF
day and in a certain year now paft, (to wit,) on the day and year ^ "^1|^
}aft aforefaid, wherpby the faid Edward promifed to pay to the tbT,^!^;
faid John Rudge a certain fomof money, (to wit,) the funi of ethoc, &c.
thve^ hundred and fifty pounds, as for value received, at a certain
tiitie thereafter, (to wit,) one mpnth after the date of the faid
note, which faid note ftill remains unpaid, and that l!he faid Bd^
ward Collins bath not been in anywife damnified by means of tho
faid note, or of the gt¥iagof the fame ; and thils tb6 fatd Robert
J Uamt e m is ready to verify i wherefore he prays judgment if the
fatd £dwar4 ought to have his aforefsiid adioa tberedf agtfinft
him, Wfc. John Glynn.
And the faid Edward ColHrn^ as to the fsid pleia of the faid Replication
JMM^by hun firft above pleaded in bar, and.whereof he hatll "^f^^^
pathimfalf iqpon the country, fays, that he tho faid Edward
dosh the fame like wife} and the faid Edward i <xo to the faid Demurrer t*
plea of ibe faid Robfrt \yj him facondly above pieced in bar, ^^v"^ *
fuys that hog by reaibo of any thing by the faid Robert abote in
that plea aitei%ed, ought net to be barred fvom* having and
fliaiataimng his faid aAiehagainA die faid it^^, becaufa he ^
Ays that 1M U^ pka, ia maniiev and forns As-the fame is abov6
y i e u j td i aq^ the matters^ therein contained^ are noiliafficient \tk
law '
34^ Eastek T ERK^ yCdo. III. 17^7.
Isiw to bar the faid Edward from having his faicl adion ogainft
the faid Robert i to which faid plea, in manner and fonxt above
pleaded, the faid Edward Collins hath no need, .dox ia he bound
by the law of the land in any manner to anCwer; and thia he is
refidy to verify : Wherefore, for want of a fufficient plea in this
'behalf, the faid Edward Collins prays judgment and his debt
afprefaid, together with his damages, by occafion of the deutmng
Pemiirrerto that debt, to be adjudged to him, Isfa wA Oxt iM Edward
jdpiea. CoUins^ as to the faid plea of the, faid Robert by him lalMy above
pleaded in bar fays, that he hy reafon of any thing, by the faid
Robert^ above in that plea alledged^ ought not to be barred from
having and maintaining his faid a£liou againft the faid Robert^
becaufa he fays that the faki plea, in manner and form as the
fame is above pleaded, andtlK matters thefein contained, are
not fufficient ia law .to bar the faid Edward froni having his
faid adion agai^nft thq faid Robert f to which faid p{ea, in man*
nev and form above pleaded^ the faid Edward Collins hath no
need, fK>r.is he bound by the law of the land in. any nunner to
anfwer ; and this lie is ready to verify.; wherefore^ for want of
a fufficient plea in this behalf, the (M Edward GaUins^ frzjt
judgment, and bis debt aforcfaid, together with his damages^ by
pC^aiiou of the detaining that debt, to be adjudged to him, f9V«
' G. Nans.
Joto^enia And the faid Robert hith^ that the faid plea by him the faid
4K»ttner. Robert fecondly above pleaded in bar, in manner and form as
the fame is above pleaded, and the matters therein contained,
are fi^fficient in law to bar the faid Edward from having his iaid
a&ion againft the faid Robert \ which faid pleat and the matten
therein contained, he the faid Rsibert is ready to verify and prove,
as the faid court ffiall award ; and becaufe the faid Edward hath
fiot^ in any' manner anfwered thereto, nor in anywife denied the
fan^e, he the iaid Robert prays judgment, and that the faid Ed*
ward may be barred from having his faid a£lion thereof againft
him the i2\dL Robert^ l^d and becaufe the ju dices here wiU.ad*
vife of and upon the premifes Wfore that they give judgment
tbelreupon, dav is given to the parties afore(aid here until ■
to hear their judgment thereupon, fo that the faid juftices here
;ure not yet ready to give judgment theron: And the faid iffAn^l
ifurther faith, that the faid plea by him the faid Robert laftly
above pleaded in bar in manner and form as the fame is above
pleaded^ and tha matters therein contained, are fufficient in law
to bar the faid Edward froth having his faid adlion againft him
the bSA Robert s which faid plea, and the matters therein con«
tained, he. the faid RsAert is ready. to verify and pspve» as the
court ihall aw^rd ; and becaufe the faid Edward hath not in any
iinanneranfweredi thereto, nor in a'oywife denied die £unc, be
the faid Rjiert prays judgment, and that the faid Edward may
be barred jfrom .haying his &id afkion thereof againil: him the
if^*R6bir%^^^ . . JobnGl^
And
Eastkr Term, 'jGeo. HI. i767, 347
• And becaufe the jufticet befC will adTifii of and apoiv the pf0^
Aifiai before that thcjr give judgment dicreiipony day is |;iTea to
the parties aferefaid Mre until ■ to hear their ^judgoient
thereupon, for that the faid juftices here are not at yet ready
to give judgment thereon \ and in order to try iht iflue bettrteti
die pities aforefaid above joined to be tried by the eoontryy the
flieriff is commanded d)at he caufe to come nere ui eight days
^the Purification of the blefibd JMsr^ twelve^ tSc* by whooii
&r. and who neither^ tfc to lecogoiBey iSc* becaufii 'as
wren, &V.
Collins verfus Blantern. C. B.
^HIS cafe was well argued laft Hitarj term by Serjeant Nmr€$
'^^ for the plaintiflF, and Serjeant Glym for the defendant, and
in this term by Serjeant Burlani for the' plaintiff^ and Serjeant
yepbfon for the defendant.
On the fide of the plaintiflT it was infiftcd» Aat the conditipQ
of the bond being fingiy for the payment of a fum of noney^
the bond is good and lawful; and that no averment (hall be
admitted that the bond was given upon an unlawful confidera*
tion not appearing upon the face of it, and therefore that the
fpecial plea is bad : Upon the firft araument tbefe cafes were .
cited for the plajntiflP, Carth. 25a* Cnnb^ Tbomfon v. Harvej^
Jsoiy Lovming v. Chapman^ C B. Mich^ 6 Geo. 1. (now depend*
ing iu error in J9. R.) 1 Leon. 73. 203. Jenk^ io6. Otrih 300;
C^.24s. Em^ony^Bathurft^ iMpd. 35. Button ^2. Fent.^^u
Cro. Jac. 248.
For the defendant it was infifted, that the averment of the
wicked and unlawful confideration of giving the bond might
well b^ pleaded, although it doth not appear upon the face of
the deed 1 and diat any thing which (hews an obligation to be
void, may well be avened, althoudi it doth not appear on the
lace of tne bon^, as durrft^ that it was delivered as an eferow
to be delivered upon a certain condition to the obligee} infancy^
foverture^ or upon a Jwi^niacal eontraB^ fnaintenaneOf &c. and
slthotigh it is f^id, there i$ a diflfcrence between bonds being
void at common bw» and by ftatute, yet it is otherwife ; for the
jBommon law was originally by ftatutcs which are now not in
being: The general role that you cannot plead any matter
deiors the deed, dotfi not apply to this cafe 1 the true meaning
of that nde is» that yon cannot idledge any thing inconfiftcQt
widi and contrary to the deed^ but you may aJledge matter
confiftent with the deed : The bond in the pxefent cafe is for
idle payment Of money i Ae plea admits this, and the averment
alledges upon what confideration that money waeto be paid, and
H^e^oie if not-in^oii&ftent Of cpntrddlfNnrT to the condidon
of
^ EA9TE& T«lLM) J Geo. IIL 1767.
itf iW bottd; duB rde of (deading^ applied to die Arfifc of
finimji^tf$i comrttfrtf i^fin£y^-&c.f U on the fide of ite do-
lendiim in ifcirGgfe* < In bonds not to follow t trade As defiend-
onl maf affec the ooofideratiott to avoid the bond. Dmmtig ?.
Chfman i% Bdt like this, oafs; that was an- itamtut coptm-
diiliwy to the oondition of the bopd, and aftioiiiitod to a de-
Ira&li^.'^ the piefenA co^ditioads coofiftent avilfa the conditkm,
wUtfh ia for payment of jnorieir, and only (hews the bad coi^
jBdeaation iipoft wl^soh (he money ifai tq be .paid* .
Upon the firft argument the Lord Chief Juftice broke the cafe,
and £aid that this-was verj dtfFerent £rom the cafe of Lady IWih
ing T. Chapman^ «rtd thet^ore he would cbnfider h whoUv inde-
pendent thereof} and faidj as lie wa3 then advifed, he thought
there wa^ no di^rence between an -ad being void by ftatate or
hy'the common law; that the principle the judges heretofore
hare gone upon for ihaking the diftin^ion (in the books) is not
a found one } for wherever the bond is vtnd at law or by ftHtutS)
jon may ihew hpw it is void by plea, and that in (cuth it n^ver
had any Icga! eiiftente. That the ftatntc law 1$ the will of the
legiflature in writing } the common law is nothing elfe but ft»»
ttttes Worn ouf by time^ all our law began by confent of die
legiflattife, and tirhether it is now law by ufage^ or wridng} it b
the fame thing : a ftatute fays fuch a thing mall be avoided .by
plea \ why therefore may not a deed executed upon a confider-
adoR agalnft the common law he avoided by plea? In dunfit
frnonj^ infancy^ coverture^ &c. the plea difclofcs that in troth
there never was any obligation. The principle, upon which
coucts of juftice mnft go, is, to enforce the performance of
concra£ls not injurious to fociety ; and it would be abfurd to fay
t}\at a court of julUce (hall be bound to enfqrce qontraAs in-
juripus to, and agalnft the public good. No man (hall come
into a court and fay, ^ give me a fum of money which I defire
•*. to have contrary to law ;** there Can be no doubt but ths^t the
compounding a profecation for wilful and corrupt perjury is a
vety great offence to the public,' and whether it was Dctwecft
feme perfons who^ are ftrangers to fliis aftfoiij it is not material.
' Safiur/f]. (upon breaking this cafe jtaid. ttat the cafe of Z^^
Dowmn'g V, Chapman was not; lijie it. , ' » *
... GoM], (apon the breaking ibii^ ca(e} ^aidr that he dificred
with thereftof the court in th^judameat gbrciyn^Lady Df^mm^
1r» Cbapttuuij ,and that upou die wnoje'of that c^fe. he thought
thcaxeuuent that- the bond.iSr^/ir^g^vea w;^^ 'woaa. wicked coo-
fi)leraUopi audit to hav^ \^tjx acUnitted. jE^ /^^d that if this
c^fc .at bar had been upon a.^m{4c.cosfra^, the copit would siot
haue heiitated a moment^. but;WouId have givea judgment diat
it was &4d;fcao4 (haU ^lm^\'^^^J .»:^i^d^^ ¥P»-f
wicked
Dr. k Stud,
•Vent, X07.
Codb« 29.
Ea«ter Tejim, jGeoAlh 17^7. ^49
Wick«d c onfidnniftion beoauT^ il ia feakd ? To have a deed, which
oaghjt to bofor a man's good^ turned to evil purpofea, he thought
ircf X wrongs and that there was no diftinAiost whether a deed
be vofid at law or by ftatote.
Upon the fecond argument of the cafe at bar in this- term, the
Lord Chief JdUce delivered the opisiou of the wh^ court
(and proopuaced judgment for. the defendant) to the foUowiing
Lord Chief j^iftice JFUmot^'Fowe queftiona are to be coa«
fidqred ;
1^) Wliethet' it doth not appear from die fafia alledged in
the fecond jplea^ that the conCderation for giving the bond la an .
illegal condderatioo ?
%df WbedieV; a bond given f6r an Illegal coafideratioa is not
dtarij void at common law aUnitk T
3^9 Suppofingihe bond is void, wheth^ the faAa difclofed in
the plea to fhiM it void, can, bj law, be avevfed and fpeciallj
pleaded?
4fkt If Aey can be pleaded, then, whether thia .fecond plea
ia dul^^ aptlf; and ^operly pleaded ?
* . ^
t. As to the firft queftion, it hath been infilled for the plain-
iM^ that he wua not privy to the bargain and agreement, fo (as to
Mm) there appeals to be nothing illegal done by btmJ But we
are all clearly of opinion, that the whHole of the tranfa£lion is to
be confidercd as one entire agreement \ for the bond and note
are both dated upon the fame day, for payment of the fame fum
of money on the fame day \ the manner of the tranfaSion was
to gild over and conceal the truth \ end whenever courts of law
fee /ttch attempts made to conceal fuch wicked deeds, they will
Wfifii away the cobweb vamtft, and ibew the tranfiiQionfr in ibeis
tcw« lightfc Thi» is an agreement to ftifle a profeeution for wilful
and corrupt perjury, a~ crime mod detrimental to the common-
wealth; foff it is the duty of every man to profecuts, appeat
againft, atHi bf ihg ofienders of this fort to juftice. Many fekmiea
are net fe enormous c^fiences as perjary, and therefore to ftifc a
profectition for p^ury', feems to be a greater offence than com^
pemidtng fome felonies. ' The promiffory note, waa cettasaly
iFeid|y4iat right then hath the plaintiff to recover epoa 41119
bond, which was given to indemnify htm from a not< that ipia
md? They are both bad, the confideration for giving theoa
being wicked and unlawful. .
9. As to the fecond point, we are all of opinion that the bond
^ void ah imti^^ by the common law, by the civil law, moral law,
and
$50 Easter Teum, 7 G^o* III. 1767.
tiul aU itws whatelrer ; and it it fo held by all writen whatforrer
upon thb fubjefty except in onepaflage mGrviitUf lib. a. eaf. tt*^
f9B* 9. where I think he is greatly miftaken, and difien from Pm^
fendorf^ lib. 3. ei^. 8. feB. 8. who, in my opinion, conT]£U the
dodlnne of Grotius. In Juftin, Infiit. lib. 3. tii. 2o. de turpi
€aufaf fiB* 13. ^uod turpi ex caufa promijfum efi^ vdutiji 4fuis ho*
^mcubm vel facrilipum ft foRurum prmnittat, mn vaJet. And
Vintttui^xxi hb commentary, carries it fo far as to (ay^ yon fludl
HOC ftipolate or promife to pay money to a man not to do a
crime, H qms peeymam promferrtj mfurtum atd esuUmJkeent^ out
fub conditioner Ji nonfecerit^ adbuc J&cendum^fitpulatknem nulBusefi
momenti; cum hoc ^umflaptkdum efl% peeumum padfci qmJU^ii6$
AJlineas. Dig. Hb. utit.$. Uode^ Kb. 4. tit, 7. to the fame point.
This is a contrail to tempt a man to tranf^reft the law, to do
that which is injurious to the community : it is Toid by the com-
mon law I and the teafon why the conmion hw fays foch con-
trads are void, is for the pnUic good. Toujball mt fiipmiatefiir
Mfuity. AU writers upon our law agree in thist no polluted
haiid ihall touch the pure fountains of juftice. Whocftr is a
* V^ttj to an unlawful contraft, if he hath once paid the money
ftipulated to be paid in purfuance thereof, he ihall not have the
help of a court to fetch it back again, you ihall not have a right
of a^ion when you come into a court of juftice in this nndteui
manner to recover it back. Procul 0/ procul efie frofamm See
DoB. a Stud. fo. I a. and chap. 24.
^. The third point is, Whether this matter can be |deaded?
It IS objedled againftthe defendant that he has no irmedy at,
law, but mud go and feek it in a court of equity: I anfwery we
are upon a mere point of common law, which muft have been a
f^ueftion of law, long before courts of equity exerciled that to-
nfdi£liou which we now fee them exercife i a jurifdi&ion which
never would have fwelled to that enormous bulk we now fee, if
the judges of the courts of common law had been anciently as
fibeiral as they have been in later times : to fend the defendant
in this cafe into a court of equity, is to fay there never was anv
lemedy at law againft fuch a wicked contrad as this is : we all
know when the equity part of the court of Chancery began. I
iliould have been extremely forry if this cafe had Men withom
xemedy at common law, Efi bonijudicis an^Uarejuryj^Bimem;
and I lay, efi bom judicis an^iare jufiitiam s therefore^ whenever
fuch cafes as this come before a court of law, it is for the public
good that the common law (hould reach thefo and give rcUef.
I ^ve always thought that formerly there was too confined a way
of thinking in the judges of the commpn law courts, and that
courts of equity have rifen by the judges not properly applying
the principles of the common law, but being too narrowly go»
terned by old cafes and maxims, which have too much pieveoced
the public from having the benefit of the common law. It is now
objcac4
Eas^eeu Term, 7 G/^' HI. 1767. 351
obje&ed as zpiaxim, that the law will not endure a faft mpmr
dehors a fpecialty to be averred agaiuft it, aad that a deed cannot
be defeated by any thing lefs than a dftd, and a record by a re^
eordf and that if there be no confideration for a bond it 19 a gift.
I anJfwer, that the prefeilt condittoa is for the payment of a Turn
o£ moneyy but tiat payment to be matie, w^s grounded upon a
vicious confideration, which isnot inconfident with the condition
of the bond» hnt ftrikes at the contraft itfclf in fuch a manner as
ihews» that, in truth, the bond never bad any i^l entity, and if
it never had any being at all, then the rule or maxim that a deed
mult be defeated by a deed of equal (Irength doth not apply to
this cafe. The law will legitimate the (hewing it void ai initw,
and this can only be done by pleading.; nothing is due under
fitch a contra£l^ then the law gives no adion, the debitum never
exifted \. as much as if it had been faid it (hall be void, becaufe
there is no debt: but if this wicked contraft be not pleadable, it
wtU be good at law, be fanftified thereby, and have the fame
legal operation as a good and an honed cpotradi, which feems to
me mod unreafonable and unrighteous, and therefore, unlefs I
am chained down by law to rejed this plea, I will admit it, and
let jttdice take place. What drange abfurdity would it be for the
law to. (ay that thi& contra£i is wicked and void, and in the fame
breath for the law to fay, you (hall not be permitted to plead the
fa£l6 which clearly (hew it to be wicked and void. I am not for^
dirring a fingle pebble of the common law, and without altering
the lead tittle thereof, I think it is competent, and reaches the
cafe before us. For my own part, I think all the cifes upon a£ts
of parliament, with refpeA to making bonds, i^t\ void, do warrant
the receiving this plea and averment ; there is no dire£tion in
fuch a&s of parliament given for the form and manner of plead-
ing in thofe cafes ; the end dircAs and fan^E^ifies the means : I
think there is no diflference between things made void by aft of
parliament, and things void by the common law : datute law and
common law both originally flowed from the fame fountain, the
kpjlatures I am not for giving any preference to eitlier, but if to
either, I Ibould be for giving it to the conimon law. If there had
ever been any idea or imagination, that fuch a contra£l as this
could have dood good at common law, furely the legiflature
would have altered it. There has been a didin£kion mentioned
between a bond being void by datnte, and at common law; and
it is faid, that in the firft cafe if it be bad, or void in any part, it
is voidfiv totoi but that at common law it may be void in part,
and good in part, hot thb proves nothing in the prefent cafe.
The judges fofmerly thought an a£t of parliament might be
eluded if they did not make the whole void, if part was void. It
isiaid, the ftatute is like a tyrant, where he comes he makes all
void, but the common law is like a nurGng father, makes only void
that /art where the fault is,andpreferves the red. i Mod^^S^i^* iLev.M^.
The cafe vt a (imoniacal contradi may be reached by a plea ; this Hard. 464.
proves
$Sit * Eastea TEkM^ 7 Geo. IIL 176/;
proves tbe cootraA in the preftnt c«& is to be atoided at com*
moa law. The two cafes in Lan. I fct ime agaioft the odicr^
and lity no ftnfs upoa either} infimejf^ovtrtttre^durrfs^ ftc* apply
diteAljrto tbti Cafej the plea iliews a fa£i:, which if true, tbo
bond never hai) any legal exiftence at all : as to a bond being a
gift, that is to be repelled by (bewiog it was given npon a bad
eonfidenabn ; you may thereby repel the prefunption of dona*
lion, it has been obje^ed, thk theadmlfiion Of fuch plea as the
prefeat will fttike at fecuritres by deed ; the anfwer i^ diat fodi
a plea in the cafe of infofujy gaming^ dure/s, &c. &c. is admiffiUe}
what is the plea of fiM eftfaHumf Ninety>mne in one h«ndicd
of tbem are falfe \ why then is fuch a plda to be recekred, and noc
the prefent plea ? I fee no reafon why. I want no cafe to warrant
mj opmioni it is enough for fiie if there be no cafe ag^aft me,
and i think there is not. In i Hen. 7. 14. i IS. h. Briam was tllen
t£e Chief Jodicej and his opinion there is founded upon what I
hare now faid : Brian fays, ** I do not fee in any cafe in At
** world how a man can avoid a fpecialty by a bare matter of
Cfo. Etit. ^ faA concerning the fame deed, if Jo be that the died ioatgmd
TnL^ioS. ** ^ the eemmencement !* hot the prefent deed was never gwsd,
Mcor 564.' Mmt 564* b a fimoniacal contra£l pleaded to a bond^ whieb
was held a bad plea, becaufe^Mry was not thin confideied as
'xmtrary to our law, but at this Axf/jimony being agaillft our hw^
liich a plea would be good. The cafe id Camh. 12 f. is nothing
but an Mter di^um of a judge, to which I pay very Iktfe reganL
4. As to the fourdi point, I think, the plea is ri^lf pleaded,
.and concludes very properly in faying^ " And fo the faid bond is
^ void." It feems to me that rum efifa&um eouhl not have been
' properly faid at the conclufion of this plea aiter the fpecial mat-
ter before' alledged^ nm efifaitum means nothing but that, ** I
^ did not feal and deliver tne bond ;" and whv nem efi faBwm
may be pleaded by %feme covert 1 do not cleairly fee the realbn,
iinlefs the law unites the hulband and wife (b cMieiy, that it cofi-
liders tliem as one and the fame perfon, fe that flie without the
huftand cannot CYccute the deedL If two be jointly bound, and
only one iiied, he cannot plead nm efiftHum^ but ought to pleid
that another Was bound with him. $ Rip. x\g. m. b. It is Mr
to tdl the party what is your defence, upon what point you put
pcmr cafe: I think the right way is to condode the plea as it is.
And Jo the faid wrififfg obligator f. is void, et hoc^ 8C€* and t^ pvty
judgment if the plaintiflTbught to have his a£liioil^ GAr« aad do not
fee how he could fay non ^faSkm, when he ftaied die deed:
but fuppofmg the pka might have been ixioft apcty eonoluABd,
yet it is well enough upon agenerai demuirrerv ais tMs is, and we
are all of opinion that judgment muft be for thedefekldam $ thM
the averment ^eaded is not eontradifbory, &at enplanattory of dMf
condition \ that the bond was void ab initio ^d never had ail|
eloftence. Judgment for the defendant /«i^/s«sfif^rni«r.
I 3S3 1
"TRINItY tERM»
7 Geo. IlL 1767.
Chattxberlyn vcf^s Ddarlve. C. B»
ACnOM upon the cafe for work and labour done by the a creditor
plaintiff for the defendant^ upon the general ifTue^ tried tccepti a
I^cfbre Lord Chief Jaftice IFi/fnta. At the trial it appeared In JJII^^J^^f
evidence that the defendant being indebted to the plaintiff in hii dobtor
1 8 A for work done, the defendant gave the plaintiff a note or ttronitUrA
draught upon pne HeJJjf whereby the defendant dcfiredifejW)/ to JS??Ci^
pay to the plaintiff a few days ifcer date 1 8 /. for value received i ui money ibr
the plaintiff took and held this note or draught foilr nlohths, and value te-
ncver applied to Heddy to demand the money of him ; Heddy af- £^7i1{ m**
torwards broke and became infolvent ( the note or draught not uoreafoatUt
being payable to the plaintiff Cbamber/ynj or order, the jury looked ?°T^|j?
upon it as not a negociable bill of exchange ot draught, and found |^^^'
\ verdifk for the plaintidF, damages i i /.| contrary to the direc- aod tho fi^
tions and opinion of the Lord Chief Juftice ; and therefore it was ^®^"^"j
now moved for a new trial without payment of cods. J^J^ *^
comet in*
Curia^^ift^ it was objeftcd for the plaintiff, that this is not a ^^^'^^ !*
bill of exchange, becaufe it is not negociable ; that it is of the very owViofi!^ *
cOeqce of a bill of exchange to be payable to fach a one, or ordtr^ thQ«tl> <)»•
and therefore the plaintiff (hall not lofe the value thereof, a$ be **'■''*^n^*.
^ould have done if it had been negociable, by reafon of his ei^hmiew
holding it fo long without demanding the money of Heddy: negotiiUt*
2% That the plaintiff was no more than a fervant or agent to
the defendant in this cafe, and could not receive the money for
|iw own ufe. As to the firft objcftion, we think it is not neceffary
in this cafe to give any opinion, whether this be a bill of ex-
change or not» becaufe we are of opinion that when the plaintiff
accepted and took from the defendant this note, draught or order
upon Heddy for 18/., to be paid to the plaintiff for value receiv- x
cd, the' plaintiff acquired an intereft in the 18 A, and if he had
'■^ccived it of Heddy ^ he would have received the fame for his own
^/<^> and not for the ufe of the defendant the drawer; the pUin«
tiff by accepting this note or draught, undertook to be duly
Vou 11. ^ A Ji diligcm
3^4 Trinity TERAt, 7 G^^. HI* 1767.
diligent in trying to get the money of Heddj^ and to apprife tbe
defendant, the drawer^ if Heddj failed in payment ; the plaintiff
fubftituted himfelf in the place of the defendant the drawer,
who has beeii deluded into a belief that the plaintifF had got the
money of Heddy. The common law detells negligence a;nd lacks;
there is no real'on applicable to the cafe of holding a bill of ex-
change, that is not applicable to this cafe ; the plaintiff by hold*
ing this order four months^ hath difchar^ged the defendant of hb
debt, and credited Hfddy in his (lead and place : if this vcrdid
fliould (land, it would be mifchievous : if a jury can fay that a
man may hold fuch an order or draught as this is ten weeks after
it is due, they may as well fay he ms^y hold it ten years. Here
appears to be grofs negligence in the plaintiff, and we think the
jury (hall not pronounce the law in fuch a cafe as this is, and
therefore there muft be a new trial upon payment of cofts.
MICHAELMAS TERM,
8 Geo, III. 1767.
,and decttret
for tiklog
l^is cattle at
M.
Dcieodaat
pleads non
cepit modo
Se forma {
plaintiff
proved the
cattle were
In the de.
fendmCt
caftody at
M. J defend-
ant j>roved
thejf were
ortginalljr
liken at H#
Walton verfiis Kerfop and another. C. B.
REPLEVIN : The plaintiff declares for taking his cattle In
^ Mariet'^reetwzxd ; the defendant pleads the general ifluc
fton ecpit modo ksf forma. Thi^ caufe was tried before Mr. Juftice
Gould at the laft aflizes for Northumberland^ when the plaintiff
proved that the cattle were in the cuftody and pofleffion of the
defendant at Markei-Jlreet^ where he was driving them to the
pond ; the defendant proved that he iirfl; and originally took
them at Hardball in the pariQi of Warden^^ £id was driving them
through Market^reii unto the pond. It was infilled at the
trial, that the plaintiff had not proved his declaration, that die
cattle were taktn -axMarhet-Jlreet^ as it was alledged therein,
for that the defendant had proved they were firft taken at another
place, viz. at Hardball in the pariih of Warden. . There was a
^▼erdi£l for the plaintiff^ fubjeA to the opinion of the court.
Judgment for the plalotiff*.
Ecrjeaflt
Michaelmas Term, 8(^0. IIL 1767.' ^55
Sefjeatit Glynn for the plaintiflF infifted that the plaintiff had
^ell proyed the taking at Market-^reet^zs laid in the declaratioDi
for he proved the cattle were there in the defendant's cullody ;
and although it may be true that the defendant originally took
them at Hardball^ yet as he the plaintiff was unable to prove
the taking there» it would be very unreafonable and inconvenient
if he was obliged to lay the taking there. That the defendant
ought to have pleaded in abatement, and alledged that they were
taken at Hardball^ abfque hoc that they were taken at Market'^
Jlreet^ upon which the plaintiff might have taken iffue^ or con-
feiled the plea, and juftified the taking at Hardball^ and driving
them to Marlet-Jireet towards the pond ; and he infifted that
wherever the de^ndant has the cattle wrongfully in his cuftody,
that is a wrongful taking at that particular place ; as in the cafe
of larceny committed in one county, and the felon flies with the
goods into another county, it is a felony in both counties, and he
may be tried in either county.
Serjeant Burlandiot the defendant infifted, that upon the plea
of nm cepit tnodo et firman the defendant may prqve the taking was
at a different place from that laid in the declaration \ and for that
purpofe cited jfobnfon v. IVoUyer^ i Stra. 508. 2 Mod. 199*
Anonym, by Lord North C. J. If the plaintiff alledges the taking
at ^., and they were taken at 3.^ the defendant may plead mn
cepit modo ^fortna^ but then he can have no return, for if he
would have a retorn. habendoy he muft deny the taking where the
plaintiff hath laid it, and alledge another place 1n his avowry.
He alfo faid, that in replevin the firft place of taking is the only
material place, and muft be laid in the declaration, and it is not
like the cafe of larceny above mentioned*
Wilmot C. J.— At this day it is very clear that the vill and
place where the cattle are taken muft be laid in the declaration i
if there is no place defendant may demur, but here is a place
laid ; Arid it ln^as proved the cattle were in defendant's poffeffioa
there g and though originally defendant took them at another
place, yet if he took them wrongfully at firft, the wrong is con-
tinued to any place where the defendant has them, i Stra. 508.
IS only a cafe at ntfi prius, and 2 Mod. 199. a didlum of Lord
Norths and neither of thofe cafes are like this, for here is a fuffi-
cient proof (in my opinion) of the plaintiff's declaration, to wit^
that the cattle were taken at Marlet-Jireet. This cafe is very
clear, and like the cafe mentioned oi larceny^ the wrong continues ,
wherever the defendant has the cattle ; and I am quite fatisfied
the defendant's evidence was irrelevant and immaterial on this
• iflue, and ought not to have been admitted, unlefs the defendant
had pleaded in abatement. And of this opinion was the whole
court, and the pofiea was ordered to be delivered to the plaintiff.
A a 2 See
^^6 Michaelmas Term, 8 Gw. Hi. 1767'.
See Cro. Eliz. 896. Hd. 16. Moor 678. See the cafe of lii%
T. ParkburJ, ante, Trin. 21 tt" 22 Geo. t. cited by Batburfl J.
Roe, on the Demife of Hamerton ver/us Milton and
others. C. B.
^h« .a of T HIS was an ejcamcnt for lands in rorkjhire: the jury founi
. parent ftaU 1 a fpecial YcrdiS, which ftated very long deeds and convey-
•* «f°fv-. ance, fines fur concejiijur conufance ii droit come ceo. &C. 8cC. Sc.
TrSSr cont;ining-'fcveraliundreds of copy (heets. which wa. argued
limiation j^ice at the bar, and in this term the judgment ot tbc coon wai
!?.g.!^«".. given by, the Chief Juftice.
mentbyway . »• r :.««iiT*
ofremaioier X/)rd Chief Juaice Wilmet—The queftion in this cafe ts a v^
*'t\t^!' ftort one, but it is fo involved and covered by the length of tU»
" tl^i^- fpecial vcrdid, that it is mote difficult to find it out than to dc
t.iided hof. tcrmine it. This Oiameful prolixity puU the parties to an unne-
So"V^r ceffary and immoderate expcnce, and therefore it was Aat.tg
Ztl referved were fitft introduced inftead of fpecial wdifls; «wt
furcly fpecial verdifts may be drawn out and Hated as Ihortly »
cafes for the opinion of the court •, I therefore recommend rt to
gentlemen who have the drawing of fpecial verdias, to «»«
Them as ihortly as pofliblc, and if they fl'O"^,.*'"*"'?™!^
whether they are fully and fufEciently ftated, and the faOs found
be properly inferted, the judge who tried the caufc will alwsys
he ready to lend his afliftancc, in onler to prevent thu nott
fliameful prolixity, which is a fcandal to the profeflion, and to tw
law itfelf. I have often thought of, and been ^neved at th»
matter, and therefore was dctermintd to mention it puWidf. »
prevent it for the future, if it poffibly can be done ; and I can lee
no reafon why it may not, as the judges themfelves, I am luie,
will all be wiJling to aOift counfel in fo good a work.
The cafe is fingly this->A« Hamerton in 1706 being feiW 'B
fpe of the lands in queftion, and at the fame time having *«f^
living, who had an annuity of 50 /. iffuing out of the »«» law",
and John having two brotlicrs, Thomas and Vavafirt Jetm bei^
about to be married to Mary. Kell;^ his modier previous to w
marriage confcnts to part with her fecurity upon the wW* bo»
for her, annuity, and to take, inftead thereof, a fecurity for w
fame upon part of the lands ; and accordingly ihe and her faid Jon
John (the intended hufband) join in a fine to deliver die whole
lands from the faid annuity ; and in confideration of the tnartttg^
and a pi rtion of 1 300 /., and of the faid grant and leleafc of t^
fjid annuity, John Hamerton conveys to truftecs that they flKW"
pay 50 /. per ann. to the mother, out of part of the lands, for her
lif<f, then as to the whole of the lands to the ufc of John Bannr-
Michaelmas Term, 8 (^a.ni. 1767; ^S7
t&n for life, remainder to truftees to preferve contingent remain^
derSf remainder to the firft and every other fon in tail mate^ re*
maioders to Thomas Hamerton and Vavafor Hanurton feverally
one after the other in tail male in ftrid fettlement, remainder to
the daughter aqd daughters of the marriage of John ' Hamerton
and Mary Kelfy, remainder to John Hamerton in lee.
There was no iflue of the marriage : afterwards John Ha^
purton mortgaged the eftate to Monktan, and acknowledged n
^he to him Jur concejj^t ; then Monkton purchafed of John Ha»
merton for a valuable conGderation in fee, and took a fine from
\{im fur conufgnce de droit fomeceOf &c. and John Hamerton died
without iflue } but Thomas Hamerton his brother has left a fon
Vavafor Hamerton the leilbr of the plaintifl^, a very poor man,
(who it is fa}d was or is a common foldier).
The fingle qu'eftion is, Whether there is a good and valuably
coniideratiou to fupport the limitation in the fetttement to 3>&0-
mas Hamerton^ the late father of the lefibr of the plaintiff? or
whether that limitation is merely voluntary under' the ftat. of
27 Eliz. cap. 6. and bad againft a purchafer for a valuable con^
(deration ?
I am very clearly of opinion that this fettlement is fair and
honourable, and that there is a good and valuable conGderation
to fupport the limitation therein to Thomas Hamerton,. the late
father of the lefibr of the plaintiff, and that it is quite out of the
{iat. 27 Eliz. c. 6. which was only made againft covinous and
fraudulent conveyances, and which makes the parties avowing
fuch fraudulent conveyances criminal ; whether the purchafer
for a valuable conGderation had notice of this fettlement or not,
is not material (I think) in this cafe ; but if he had notice, I am
(learly of opinion'that the purchafc is fraudulent.
The whole of this queflion turns upon the mother's joining
in the f(;ttlement : the friends and relations b| Mary Kelly, the
intended wife of the marriage, (muft he funpofed to fay,) to the
mother of John the intended hufband, ** Mary (hall not marrj
f' your fon unlefs ydu will give up, or take off your annuity from
<' the whole of the lands, and let it be charged upon a part
<* thereof } the mother anfwer$, if you want my afHftance you
^< (hall pay for it, that is to fay, you (hall limit the eftate to my
** younger fona in preference and priority to the daughters of *
^< the marriage in failure of iflue male ;*' this is a good conG-^
deration to John the fon (and the quantum is tiot at M iQa^erial);
|ie purch^^fes his vifiic by iiis mother^s concurrence^
3^8 Michaelmas Term, SGeo. III. 1767.
But it was objedred that Jokn was feifed, and could have made
the fettkment without tlie mother, and that in truth no real or
good'Confideraticm moved from her at all, for that (he ilill had
her annuity charged upon part of the lands ; in anfwer to this,
the applying to the mother (hews that Join Hamerioa could not
have made a Settlement agreeable to the lady's fi lends without
the mother; and I am of opinion that any confideration given
by the mother would have made her a purchafer for her younger
fons ; by the limitation to the daughters of the marriage, after
/All/ to the two brothers pf John,Hamertont it is plain the mother
intended her fons (hould be- preferred to the daughters of the
marriage : and this is as phiu to me as if I had heard the mother
fay, «< I will not part with my annuity fecured Ijpon the vaboU
<< lands, and take a fecurity for it upon part of the lands, anlefs
•* you will prefer my fons to your daughters ;" the fettlement
can have no other meaning, and any confideration moving from
a parent to a child is good. The whole court were of the fame
opinion, and^judgment was given for the plaintiflF.
* The- following ftatement of the foregoing cafe has been commnjucatei) to be la-
f9rte4 in the prciSent cdkioa. It vill be found moch falkr,-and move explicit «s to tLc
point deiermined.
Roe, on the Demife of HameVton verfus Mitton & al«
[Tried before Bfthurji^ at the Summer Affiaet, 6 Cn, 3.]
'SPECIAL terdia ftated, that John Vemertcn being fetfe4 in fee by leaie and leleaie^
17 and %%' January 1706, (whereto Franas his mother, who had a rent-<hnrfe 0/50/.
fir aitn, iffuiog out of all the eflatea for her lifc^ was a party,) reciting that a mani«ge
was ihortly to be iiad between Jckn Hamtrton and Sdary Kjtliy^ p9f ty thereto i asd that
Frances the mother, for the better enabling him to fettle a jointure on the wife» had, by
another indenture, re]e«iied her rent-charge; the faidy^^tt Hamtrtm^tn con6dentien s^
jthe marriai^e to be bad, and of a marriage-portion, and for fettling a jointnte 00 ifae
wife, and ihat the ellates might ccninue in the name and WooAf^Joka mmtrttm^ snd
for fecurfng portions for younger children, and in confideration of 5 j. paid to J:hm
Banter ton by Franas, and .in confideration of the faid grant and rek^fe of t|» faid
rent charge of 50/. and for divers other good caufes and confideratioos, granted and
leieafed to truflees the premifes in queftion^ to the ufe and intent that Fretwus BumlA
have and receive a rent charge of 50/. per ana, for her life out of certain part of the
premifes : And as to all the faid premifes fubjed to the faid rent-charge to the ufe of
JcAa Humerfn for iile, to ttufteeii to preferve, &c, to the wife for her life, to the firft,
Gfr. fons of the mania^e in tail-male; remainder to all and etery the fons of ^vic
Han:ertoH by any other wife in tail-ir.ale, remainder to his brother Thomas Hamtrfom for
life, rfmaindvr to truftces to prelcivc, fcfr. remairdsr to the firft, GTr. fons of Thmui
in tail -mail, with a like-remainder to Vavajor Uamertoft^ another brother of J^km, and
to his fons ; icmaind-r to a'l the d4Ughters of Jckn Hamtrton in tail, remainder to his
own light heirs. The marriage wss had, and afterwards John Hamerttm and Ikis wife,
*fbcmas Hamertoiif and Fa^afor Hawcrrcn, there b«ing at that time no ifliie of Qthar of
them, by leafc, relrafe, and fine, conveyed the premifes to Afpnktsm, tinker whom the
dcfeTidant claimed. Joha H. died without iflTue; Mary his wife diefi $ Tbmu died,
leaving his wife enHent with a fon, «;/z. Vavajor Hamerton^ ihe lefTor of the plunXitfy
uho cliipied Moder the fettlement. The Icflbr of the plaintitf* made an adual catryp
and it was ftaled that tdoaktong at \\^t ump of ;b^ pur^afej hid «»U^ of the fectio*
• oent.
' ^ Setjeaat
MicuAntMAg Term^ Z Geo. IIL 1767^ *.358
Sojeaat Nsres fat plaintiff madf tiro qaeftiom.
^ I ft. Whether the confidcrition of marriage aod poitioD does inot operate t> fuhflao*
tjate erery part of a mamage.fctdaBent.
zdy Whether when an anceftor parts with any confiderKton or benedcial intereCf (o at
to induce or enable the party fettling to mikc fuch fettkment, the relaiioa of fuch an*
ceftor chioiing under fuch feitlemeat is not to be coofidered as a pucchafer.
He «'ted Jtnkins and KemySf x Lev, i co. Hardrejs 398. ; when the qnelHoa beiog>
Whether a limitition to the heirs of the body of the bu(band ihouid be good at to the iHuC
of a fecond marriage? and Ualtt C.J. was of opinion that the con6dertltlon of the
marriage and porlion applied to ail the eflates raifed by the fettlement; and be cited the
Cafe of Ofg0od V. Strtde, % Wmt, 245. whete a fpecific performance of marriage«articlcii
in favour of the nephew of the hu/baod^ was decreed againft the heir*
A% to the fecond queftion, heinfifted that the concurrence of the mother was neceflary
to enable the fon to make fuch a jointure as be chofe to make. That the taking a left
fee art ty for her rent-charge wai parting with aTalutble confidrration> which fhontd be
applied to the limitation in favour of her younger fons^ /or whom (he raigUt be fuppofed
to iHpulate, and make that limitation the condidjn of giving ap her former reot^charge.
Serjeant Lee fo*- Jefendant argued that the only parpofe of the iiiptber*s parting with
her rent-charge m^ t be taken to be the enabling her fou to make the fettlement^ be*
caofe that is the only^purpofe recited in the fettlement ; and where one confiJeration ii
eapreflcd, no other can be prefunoed. In the cafe of Bedford v. GUjm^ '74 3> ^^i^
Hardwcke exprefsly laid it down, that where exprefs confiderations are named in a deed^
and there are no general words, as ** for other gobd purpofes,** or the like, no proof* can
be adeoitted of any other cbnAderatioo, though confiftent with that which is ezpreiTed;
He laid that in hGt the mother parted with nothing, that her agreement was not necef.
fary. As to the iiril queAion, he faid that notwithftanding the cafes cited, it is now
fettled that the marriage and portion apply as confiderations only as to the hu&and, wife^
and iflfue, and all other limiutions are fraudulent againft purchafers by ftatute 27 Erm»
WtlmsiQ.], faid, this is now fettled law, though often Very hard^ that whatever
reafons there may be to hold a contrary opinion. If the oueftion was open, the cou^ can%
not now go into it ; that tlie point had been carried fo far in cooftruOion of the Ratute*
that the voluntary limitations of a fettlement have been held fraudulent^ even where the
purchafer had full notice upon the ground that what was void by the ftatute <ould not
be of any efTe^. He f^id that Lord talbta^ in a cafe before him, exprcffed great difla-
tlsfa£lion at thefe determinations, and went £> far in oppofition to them, that the ^ueftfoa
being, Whether in a fettlement made after marriage, by which a very large eftate was fet«
tied, the confideration whereof was an additional portion of 100/., the ^ttletnent Should
not be confidered as voluntary, the portion being fo much out of proportion to it ? He
faid he would not weigh confiderations in diamond-fcalet; that there was a moral obliga^
tion to provide for a wife and children, and he would not fufFer the deed to be infe6led
with do^rine of voluntary efiates. He faid it would be uimeceiTary, in the nest argu-
ment, to go into the queftion, Whether the confideration of marriage and portion eit*
tend to any limitations beyond thofe to the huiband, wife, or iift^e ? it being a fettled
point that all other limitations in the fettlement are voluntary in regard to thofe con6de;r-
fttions. Of later times the courts have laid hold of every twig of confideration to get rid
of thefe determinations. In a cafe before Lord Ilanhckke^ where a marriage fettlement,
after providing for the ifTue of the marriage, had a limitation in favour of iflue. of a fu* .
ture marriage, on the faith of which the fecond wife married j he inclined (b much
agaiail thefe determloaTloni, as to hold the limitation not to be voluntary. In the pre-
ient cafe there feems great reafon to believe that the limitations to the brothers mufi have
Deeir a fiipul'ation on tht part of the mother .as a confideration of her giving up her rent
charge and becoming a party to the fetclement, as there are no other parties who can bt
pr<*famed to have made this fpecial ftipuUtioQ in their favour j the giving a larger ibr 4
lefs fecurity i& a valuable confideration. And the court will not-go one inch further ii&
avoiding fuch limitations than they arie obliged to do by prior determinations diredlly ilk
point, and will lay hold qf very inconfid:rable circomftanccs t* get oat of their reach*
This term the qnefiion was argued a fecond ttaicfer Fofitr and ClyMK, Serjeants, ani
WilfMt C. J. delivered the opinion of the court. He faid he thought it a very clear
'Ki'Ui and within % narrow csmpals) the only point heingp Whether the ItflUtattoa to
At4 te
358 1 Michaelmas Term, 8 Geo. III. 1767.
(he brother is void by the ftmtote of %^ EHx, m againft a purchaier for a valaable 'co««
^ration ? T^at prc?)ou« to the ftatuce t^e law did not avoid any ads on the gnmfi4
of fcvxi againft fubfe^uenc parchafers, but onlj fuch as were in fraud of a former coo*
Teyance. U^*n v. Bajetr, Cro Eltx. 444. The ftatute was made in fatoor of fob.
^qv^cac piircbafersy piyii^ a valuable confideradon for the'*r purchaf;rSy as aguaft per-
(pns wbofe title is not fuppcrted by fuch conftderation. Many cafes have been dctrr-
mined i thefe I do not mean to iU^ke. The flatute itfelf plainly ihews that the objeCt
which thd legiflature had In view was conveyances made with afiual intent to dcfiaod.
It confideri the parties as crini'^al ; and not only avoids the ad, but |t fubjeds the of-
fender, on convidiooy to impr'fonmert for Ita^f-a-year, an4 to* forfeit Qne year*§ raloe of
%ht lands i and though the lemcdy of the ad is extended by coaOrudion ip favour of AsmJ
fide purchafen a^aintt all voluocary convevaoces) yet, whenever there is any fiait of se4
coofidcratioo, it ought to taic'e it out of tLe ad| and i^l the cafes opoo Tc*
The fettlement in this cafe, by the elder brother upon the younger brotheri is in every
fefped fair, proper, honourable, and meritorious ; as between thtoifclves, it is ceitaioly
Mod. And the point in ^ucftfon now ia^ Whether it is in lifcewtie againft puichaici^
^ valuable confideratioo.
At firll, fome of the cafes incllnf^ to extend the confidcration of marriage, and the
marriage- portion, io all the limitations in the fetdement, where, from' the nature qIT
fhe tranfadioo, no fraud could be fufpeded. Bot for many years back aU the coorta
iuve agreed that ihe cooiidrratioiis ihall apply only to the limitatioiis of the iDarr'.a8e9
Sq that wbatfuever collateral limicationi there may be, they are ^oo^de|ed, as a^MJUl
f urchalen^ to be merely yoluntarj.
Another qupftion ai^fe foon after the ftatatei which wai. Whether notice of the
fettlement or conveyance at the ^ine of the fubfequsnt porchafe (hou^d not take the
purchafer out of the benefit of the ftatute } This queftion occurred five drears aft^ the
^ute. Cifich'i Cafif 5 (>• 69. A;^d the court held, tba*-, nocwichftaoding the'noDcej^
the prior conveyance was abfolutrly void ^ for that the purchafer had at this lame time
iiocive of the ftatute, and knew It to be void thereby.' This fettlement was foUowcd^
4nd confirmed by many cafes, ancieat and modern. I believe, however, that no
cautious conveyaiicer ever did or ever will a^vife his ^lie^t y> purchafe in the face of a
prior conveyance, unlefs fome very particular reason i^ade It convenient or proper foe
him to boy thp land. But I do not mean to impeach any of the caies $ it is dear tha|
fuch fettlements, though with notice, arc fraudulent as againft purchafen.
In the prefent cafe, the linnitation to the daughters of the marriage, 'fubfequeot to the
limitations in queftion, is very material, and diftinguilkes this cafe from all other the
cafes on ^is ftatuie. It is true| indeed, that the limitations of a fetdement may be
partly good and partly void ) but here the firft is good, the laft js good, and the inlcr-
mediate one only is attacked. The cafe muft be coofidered as it the daughters were
now living, and if fo> the purcbarcr would be obliged, at the (ame time that he coo^
tends the limiutioo to the brothers is' void, to proted himfelf by that ^imitation againif
the perfso n^xt in remainder. He wo\ild have an intereft of a Vfry 6ngolar nntate, to
cxttt during the exiftence of the brothers or their ifliie, and to expire on the hUnn of
fuch iflue— A fee determinable. If the cafe had turned upon the effed of the fnb-
fequent good limitation, 1 would hare taken time to coofidcr, whether that limitatioB
m ghc not give fome validity to the former one^ The cafe of Msi^^ and Ckrk,
which was cited to have been before Lord Nortbbtgton^ FAruttrj 1761, does not a^plj
ya this difficulty. That was a cafe tipon articles : All that the court did was, to decree
them to be carried (nto execution, to accommodate the daUgh eis of the 6rft aaarriage|
but not to fet a(ide any of the 1 invitations as void. Bui thii cafe turns upon the aflbat
intereft parted with by the mother, and the purchafer has decided it i;gainft himfeif, by
making the brothers parties to the fine. ^ The mother certainly gave op a greater and
accepted a left fecurity. What has ihe in return for it ? to herfelf nothing} fe ihat^
unlefs the limirations to her fons are fupported by that ooofidcf^tioo,* Ae deports with
Sin intereft, and derives no benefit wbatroever by the fettlement. The eUcr ibo rr-
ceive* a material benefit from het releafe of the rant-charge, as Uie friends of the wil«
would not confent to the marriage unlefs ftie had a fecurity for her jointure clear of
every other incumbrance. ' The mother very properly avails herialf of that opportvaity
to ftipu*ate in favour of her younger children. The mntwm of this confideratica i«
iinmaierial } what proves to a demonftration that the Umttttjoai to the brotheis m«ft
M|CHABLMA9 Term, BGeo, Itl. 1767. ^3^8
Jiave been ftipQUtcd for by the mother it, the priority of them to that of the daagh*
ten of the marriage | as it cannot be fuppofed that the holband or the friends of the
kdy would have «onfented to poftpone the daogbterf to the brothfn, if th^ mother
haii not made it 'the condition of her renouncing the fecority Hit then had. The
cales of Scott and Bellt 2 Lxr. 70. and OJjnod ▼. Strodi^ are (bang aathorities 10 fup-
• p<tft thh lit», that the aaoc|xer would not nave cunfented If the iimitations to her foot
Jud not been agreed on. But if no fuch cafe had before occurred on the chfumdancci
«F this cafe, 1 Ihould ha?e been of ihiie fiune opinion*
It it objeded, that there being an exprcfa conSderatipn, none other can be prefume^.
But it may be aofwered, chat the enabling the fon to make a joint ute, tbouiih a goo4
codQderation to him, was no coofidcracion to her. The releafe of the rent-charge it
cspce(ftly ftatcd as oae of the coofiderations, and muft be applied to ihu dnly p^rc of
the fettlement in which ihe takes any beqefit, vrs. the ftiputation in favour of her
younger children. ** Whererer the court feet any confideratioo moving from the pa«
** rent, it vnll not confider Tunitai^ont to the chiltben as voluntary, even againft pur<t
t< chal^r* ' ^ Judgnient for le% of pUlntiff.
pibbins & al. ver/iis Mantel, a Prifoner io the
Fleet. C. B,
AOTION upon the cafe upon feveral promifes } the phmtiff Afcrrthelii«
declared in i'tf^^r term Uft, and in Trifiity term laft ob- ^^^^^
gained an interlocutory judgment, whereupon a writ of inquiry wjawlrdhn
was then awarded, returnable and executed in this prefent term \ \^9 writ of
but after the faid judgment, and the awarding the writ of in- JJjJ^j'.i ^
quiry, and before the fame wa^ executed, the plaintiff became com «
bankrupt i whereupon {t was now moved on the behalf of the ba.ikrupc,
defendant, that the writ of inquiry and inquifition taken thereon tlrd'^h^M
might be fet aiide i for that by the ftat. of Joe. i. of bankrupts, Twn n»me *
the xiebt owing to the plaintiff is immediately vefted in the the inquiry
aOignees upon his becoming a bankrupt, and therefore they "nj^^^'JJ^*
ought to have fued out a fcire facias againft th^ defendant, to without fn-
ihew caufe why they fliottld not have had a writ of inquiry of *"< oat a
damages ; upon (hewing caufe, it was faid for the plaintiff, that it'Jhc^lSirof
the defendant is a prifoner, and will be difcharged \^^ fnperfedeas theaifigi^es.
sf the plaintiff cannot be permitted to proceed to finaJ judgment,
this tenui upon the writ of inquiry.
Curia — ^We will confider this 98 a ^rit of inquiry executed by
the aflignceflf in the name of the bankrjupt, and the objefiion
comiqg out of the mouth of the defendant is very unfavourable ;
befides, the writ was awarded in laft term before the plaintiff
was a bankrupt, and the inquifition ought, in juftice, to be fup-
poned, otherwife the defendant would get out of gaol, and the
creditors thereby might be greatly injured, fo the rule mi^ft b^
difcharged. l^xdai There is no c^fe in the point to be found in
the books; but the ftatute 21 Jae. i. r. 19. enads, that the
Jaws agaiiift bankrupts (ball be in all things largely and bene-!
^cially conl^rued for ^he relief of the crc4itofa.
359
Michaelmas Term, 8 G^o. IIL 17^7.
Special ac-
tion on the
cafeagaioft
a forgeon
and an apo-
thecary for
unlkilfully
difunitiag
the callous
of the plain-
tiff*! leg
after tt was
Slater verfus Baker and Stapleton. C B«
qPECIAL aftion upon the cafe, wherein the plaintiff declares
^ that the defendant Bai^r being a furgeon, and StapUton an
apothecary, he employed them to cure his leg which had been
broken and fct> and the callous of the fraAure formed ; that in
conGderatton of being paid for their fkili and labour, (s>*r. they
undertook and prom tied, ^c. \ but the defendants not regarding
their promife and undertaking, and the duty of their hufinefst
and employment, fo ignorantly and unCkilfuIly treated the plain-
tiff, that thejr ignorantly and unlkilfully broke and difunited the
callous of the plaintiff's leg after it was fet, and the callous
formed, whereby he fs damaged. The defendants pleaded not
guilty, whereupon iffue was jo'ined, which was tried before the
Lord Chief Juilice WUmot^ and a verdi£l found for the plaintiff,
damages $00 /. The fubilance of the evidence for the plaintiff
at the trial was, firft a furgeon was called, who fwore that the
plaintiff ha.ving broken both the bones of one of his legs« this
witnqfs fct the fame ; that the plaintiff was under his hands nine
weeks \ that in a month's time after the leg was let, he found
the leg was healing and iu a good way.; the callous was formed ;
there was a little protuberance, but not more than ufual : upon
crofs examination he faid he was inilrudled in furgery by ht&
father, that the callous was tlie uniting the bones, and that it
was very dangerous to break or difunite the callous after it wa^
formed.
John Latham an apothecary fwore he Attended the plaintiff
nine weeks, who was then well eqough to go home ; that the
bones were well united \ chat be was prefent with 0ie plaintiff*
and dv'fendants, and at (irit the defendants faid the plaintiff had
fallen into good hands •, the ftcond time he faw them all together
the defendants faid the fame \ but when he faw tliem' together
a third time there was fome alteration ; he faid the plaintiff was
then ii^ a paffion, and was unwilling to let the defendants do
any thing to his leg \ he faid he had known fuCh a thing done
as difunitiiig the callous, but that had been only when a leg wag
fct very crooked, but not where it was ftraight.
. A woman called as a witnefs, fwore, that when the plaintiff
came liome he could walk wjth crutches ; that the defendant
Baker put on to the plaintiff's leg an heavy fteel thing that h^^
teeth, and would ftrpich or lengthen the Icgj that Ihp defend*
ants broke the leg again, and three or four months a&erward&
the plaintiff was ftiU very ijl and b^d pf i^^
The
Michaelmas Term, 8 Geo. III. 1767. 360
The daughter of the plaintiff iwQre» that the (!efendant Sta*
pfetan was firft fent for to take off the bandage from the plaintiff's
leg s when he came he declined to do it himfclf, and defired the
other defendant Baker might be called in t9 aflift j when Baker
came he fent for the machine that was mentioned ; plaintiff of-
fered to give Baier a guinea^ bat Stapleton advifed him not to
take it then, but faid they might be paid all together when the
bufinefs was done ; that the third time the defendants came to .
the plaintiff, Baker took up the plaintiff's foot in both his hands
and nodded to Stapleton^ and then 'Stapleton took the plaintiff's
leg upon his knee, and the leg gave a crack, when, the plaintiff
cried out to them and faid, ** you have broke what nature had
** formed ;** Baker then faid to the plaintiff, Tou muft go through
the operation offxtenfion^ and Stapleton faid, we have confulted an4
done ioi the bed.
' Another furgeon was called, and fwore, that in cafes of crooked
legs after they have been fet, the way of making them flraight is
by compreffioii, and not by extenGon, and faid he had not the lead
idea of the inftrument fpoken of for extenfion : he gave Baker a
good charadier, as having been the firft furgeon of St. Bartholo^
tnenjo^ hofpital for 20 years, and faid he had never known a cafe
where the callous bad deoflified.
Another /urgeon was called, who fwore, that when the callous
IS formed to any degree, it is difficult to break it, and the callous
in this oafe muft have been formed, or it would not have given a
crack, and faid extenfion was improper ; and if the patient him-
felf had afked him to do it, he would have declined it ; and if
the callous had not been hard, he would not have done it without
the confent of the plaintiff} that compreffion was the proper
,way, and the inftruipent improper: he faid the defendant J^i^
was eminent in his profeffion. Another furgeon was called, who
fwore, that if the plaintiff was capable of bearing his foot upon
the ground, he wc^uld ncft have difunited the callous if he had
been defir€d4>y him, but in Ao cafe whatever without confent
of the patient : if the callous was loofe, it was proper to make the
extenfion, to bring the leg into a right line# A fenrant of the
plaintiff fwore the plaintiff had put his foot upon the groun4
three or four weeks before this was dotie*
. The counfel for the defendants at the trial, for Baker^ relied
upon the good chara£ter which was given bim, and obje£ted
there was no evidence to affe£l the other defendant Stockton the
apothecary ; but the Lord Chief Juftice thought there was fuch
evidence againft both the defendants as ought to be left to thb
jury, as the podding, the advifing Baker not to take the guine;^
offered to him by the plaintiff; befides, the apothecary firft |>ro«
jpofe4 fending lot Baker : the plaintiff was in no pain before tbey
extended
361 Michaelmas Term, SGco. III. 1767,
extended his leg, and he onlv fent to &iaphton to have the btnd*
age taken off. The Lord Chief Juftice afked the jury whether
they intended to find the damages againft both the defendants ?
and they found 500/. againft them jointly^ and he fiud be was
liveU fatisfied with the verdid.
It was now moved that the verdid ought to be fct afide» be*
caufe the a£lion is upon a joint contraA, and there is no evidence
of a joint undertaking by both the defendants ; the plaintiff fends
for Stapletou to take off the bandage, who declines doing it> and
fays, I do not undcrftand this matter, you mud fend for a fur*
geon ; accordingly Mr. Baker is fent for, who enters upon the
buGnefs as a furgeon uaconne£led witli Staplehn^ who, it doe$
pot appear, ever undertook for anyikill about the leg, fo the jury
have found him guilty without any evidence. That Baker has
been above 20 years the firft furgeon in St. BarthaIomew*s hofpi-
tal, reads ledurcs in furgery a»id anatomy, and is celebrated for
his knowledge in' his profeQion as well as his humanity; and to
'charge fuch a man ^ith ignorance and ynlkilfulqefs upon tKp
records of this court i$ moft drea4ful. All the witneQes agreed
Mr. Baker doth not want knowledge, therefore (his verdi^ ought
not to Rand. 2dly, It was obje£(ed that the evidence given does
not apply to this a&ion, which if upon a joint contraA : th^
evidence is, that the callous of the leg was broke without the
plaintiff's confent; but there i^ x^o evidence of ignorance or
want of (kill, and therefore (he aAion ought to hai^ been tref-
pafs w {5* armis for breaking the plaintiff's leg without his con,
fent. All the furgeons faid they never do any thing of this kind
without confent, and if the plaintiff (hould not be content with
the prefent damages* but bring another a£tion pf trefpafs vi bT
armis^ coul4 this verdidl Ije pleaded in bar ? The cpii^rt, without
^ bearing the counfe) for tho plaintiff, gave judgment for hiou
Curia T-ifij It is obje£lcd, that this |s laid to he ^ joint under^
taking, and therefore it ought to be proved, and we are of opinion
that it ought : the queftion therefore is| Whether thete is any
^evidence of a joint undertaking ? Vfc are of opinion there is \
Mr. Siapleton declines ading alone, but in concurrence with Mr.
Baker attends the plaintiff every time any thing is done, and
affifts jointly with Mr. Baker. This appears in evidence, and if
fufHcient, for there is ho occafiQn to prove an exprcfs joint con-
%T2^Qtf promife, or undertaking. When an offer is made to Baker
of a guinea, Siapleton fays, you had better be paid all at laft : they
both attended plaintiff together every time, and Stapleton faid^ we
have confulted and done for the beft : when the plaintiff com-
plained of what they had done, Stapleton confidered himfe^ as
one of the perfons to join in the cure of the leg,^ for be put his
hand on the knee when Bfiker nodded,* and then the bone cracked s
he is the oii^iual ^erfpn aiding ^n Uhi matter^ an4 U^^rC i$ no
^bun4
KlicHAtLMAS Term, 8 6eo. Itt 17^7. 2^6i
gfoand for this obje£lion. When we confider the good chara£ler
of Baker^ we cannot well conceive why he a£led in the manner
he did ; but many men very fkiiful in their profei&on have fre*^
quently z€tti out of the common way for the fake of trying ex-
periments. Several of the witnefles proved that tlie callous was
formed^ and that it was proper to remove plaintiff hbm^l i that
he WIS free from {fain, aiid^able to walk with crutches. We can-
not conceive what the nature of the inftrument made ufe'of is:
Why did Baker put it on, when he faid that plaintiff had fallen
into good hands, and when plaintiff only fent for him to take
off the bandage ? It feems as if Mr. Baker wanted to try an expo-
riment with Uiis new inftrument.
liljt It is obje£^ed, that this is not the proper a£lion, and that
it ought to have been trefpafs vtV armis. In anfwer to this, it
appears from the evidence of the furgeons that it was improper
to difunite the callous without confent } this is the ufage and law '
of furgeons : then it was ignorance aiid unfldlfulnefs in that very
particular, to do contrary to the rule of the profeiBon, what no
furgeon ought to h^ve done } and indeed it is reafonable that a
patient (hould be told what is about to be done to him, that he
may take courage and put himfelf in fuch a fituation as to enable
him to undergo the operation. It was objeQed, this verdidl and
recovery cannot be pleaded in bar to an a£t ion of trefpafs vi iiar mis
to be brought for the fame damage ; but we are clear of opinion it
may be pleaded in bar. That the plaintiff ought to redeive a
fatisfa6iion for the injury, feems to be adnucted ; but then it is
faid, the defendants ought to have been charged as trefpaffers
w y armis» The court will not look with eagle's eyes to fee
whether the evidence applies exa£lly or not to the cafe, when
they can fee th^ plaintiff has obtained a verdidl for fuch damages
as he deferves, they will eftablifh fuch verdi£l if it be pollibie.
For any thing that appears to the court, this was the firft expe-
riment made with this new inftrument ; an4 if it was, it wns a
rafti aAion, and he who ^£^3 raOily z&s ignorantly : and although
the defendants in general may be as (kilful in their refpeflive
profelEons as any two gentlemen in England^ yet the court can-
not help faying, that in this particular cafe they have aded ig-
norantly and unlkilfully, contrary to the known rule and ufage of
furgeons.
Judgment for the plaintiff per tctcm curlcm.
363 M!chaelMa8 Term, BGeo.Jll. lyGy^
Drinkwater ver/us The Corporation of the Londoil
Aflurance. C B.
Covenant ^HIS 18 an adioti of covenant a^inft the defendants upon a
"r° fu^MM policy of infurancc of a malting-ofBce of the plaintiff at Nor^
fjom firr°" 'wuh'from fire, in which policy there is a provifo that the corpo-
proTifo that ration (hall not be liable in cafe the fame fliall be burnt by any
fcllinorbe *"^^^on by foreign enemies, or any military or ufurped power
i.abieTn ca^Te whatfoever I and the plaintiff in th^ declaration avers, that on the
the houfe be 28th of September i ^66 the faid malting-houfe was burnt not by
^^^^f ^"7 invafion, by foreign enemies, or any military or ufurped
anyinTafion, powcr wJiatfoeTcr, and that defendants hare not kept their cdve-
foreign ene- nant, to the plaintiff's damage. The defendants plead firft the
xnifs, or any ggj,gyai jfl-^- that they havc not broke their covenant, and there-
ufurped upon ilTue IS jomed. 2a/yy The defendants plead that it was
power. bunit by an ufurped powen the plaintiff replies that it was not
Visbumt^ bunit by an ufurped power ^ and thereupon "iffue is alfo joined,
^y a mob at This caufc was tried at Ndrnvich affixes ; verdid for the plaintiff
Norwich } and 469 /. damages, fubjca to the opinion of the court, upon the
tlith"n"he following cafe ; viz. That upon Saturday the 27th of September
provifo. laft a mob arofe at Norwich upon account of the high price o^
provifions, and fpoiled and deftroyed divers quantities of flour;
thereupon the proclamation was read, and the mob difperfed for
that time : afterwards another tnob arofe» and burnt down the
making-office in the policy mentioned. The queflion is. Whe-
ther the plaintiff Is entitled to recover in this action ?
This cafe was twice argued at the bar^and after time taken to
confidcr, Mr. Juftice Gould vrz^ of opinioti, that the making-office
being burnt by the mob who rofe to reduce the price of provi-
fions, the fame was burnt by an ufurped power^ withift the true
intent and meaning of the provifo in the policy ; that it is an
ufurped power for any perfons to affcmfcle thcmfelvcs, to alter
the laws, to fet a price upon vi£tua1s, ifc. He cited Popb. I2a»
whete it is agreed by the juftices, that to attempt fuch a thing by
force is felony, if not treafon ; and therefore he was of opinion
that judgment ought to be for the defendant.
- Mr. Juflicc Bathurjl was of opinion, that the words ** ufurped
** poioer'^ in the provifo, according to the true import thereofi
and the meaning of the parties, can only mean an invafion of the
kingdom by foreign enemies, to give laws and ufurp the govern-
ment thereof, or an internal armed force in rebellion affuming
the power of government, by making laws, and punifhing fornot
obeying thofe laws : he faid, the plea alledges the malting- office
was burnt by an ufurped poiver unlawfully exercifcd, but does not
charge
Michaelmas TEiiM^ 8 Geo. III. 1767* 364
charge that ufurpcd power as a rebellion : that a mob rofe at Nor*
voidj on account of fhe price of viftuals, and as foon as the pro-*
damation was read they difperfcd \ fo he was of opinion that
judgment ought td be given for the plaintiff.
Clive J. was of opinion, that the words ufurped power In the
provifoi mud mean fuch an ufurped power as amounts to high
treafon, which is fettled by the 25 Ed. 3. That the offence of
the mob in the prefent cafe was a felonious riot, for which the
individuals might have fuffered, but cannot be faid to be an ufurped
power: therefore he was of opinion that judgment ihould be
given for the plaintiff.
. Wilmot C. J,— Upon the beft confideraiion I am able to give
this cafe, I am of opinion, that the burning of the malting-ofiice
was not a burning by an ufurped power within the meaning of the
provifo : policies of infurance like all other contrads mud be
conftrued according to the true intention of the parties, although
the counfel on one fide faid, that policies ought to be conflrued
]it}erally } on the other fide, that they ought to be conflrued
firiclly. In % doubtful cafe^ I think the turn of the fcale ought
to be given againft the fpeaker, becaufe he hath not fully and
clearly explained himfclf. The impcrfeAion and poverty of
language to exprefs our ideasy is the occafion that words have
equivocal meanings, and it is jDften very uncertain what the par-
ties to a contraft in writing mean. "When the ideas are fimple,
words exprefa them clearly ; but when they are complex, difficul-
ties often arife,'and men diflPer much what ideas are occafioned by
words. In the prefent cafe, what is the true idea conveyed to
. the mind by the words " ufurped power ?^^ The rule to find it
out, is to confidet the words pf the context, and to attend to the
popular ufe of the words, according to Horace^ Arbitriutn efl^ et
juSy £5* norma hquendi. My idea of the words burnt by ufurped
power^ from the context, is, that they mean burnt, or fct on fire
by occafion of an inVafion from abroad, or of an internal rebel-
lion, when armies are employed to fupport it. When the laws
are dormant and filent, arid firing of towns is unavoidable, thtrfe
are the outlines of the pi£ture drawn bv the idea which thefe
Words convey to my mind. The time 01 the incorporation of
this fociety of the London Affurance Company was foon after a
rebellion in this kingdom, and it was not fo romantic a thing to
guard againft fire by rebellion as it might be now ; the time
therefore is an argument with me that this is the meaning of thefe
words. Rebellious mobs may be alfo meant to be guarded
againft by the provifo, becaufe this corporation commenced foon
after the riot-2£l \ and if common mobs had been in their
minds, they would have made ufe of the word mob. The words
** ufurped power^^ may have great variety of meanings, according
to the fubje£l matter wjiere they are ufed, and it would be pe-
9 ' dantic
^6s Michaelmas Term, ^Gco. III. 1^67.
dahtic to define the words in all their varibus meanings i bat i^
the prefent cafe they cannot mean the power ufed by a common
mob. It has not been faid, that if piic or fifty perfons had wick-
' ediy fet this houfe on fire, that it would b^ within the meanin((
of the word^ u/urpfd power* It hath been obje'<£led, that here
was an ufurped power to redace the ptice of vidltials^ and that
this is part of the power of the trown, atid therefore it was ah
ufurped power : but the king has no power toreduqe the price of
viduals. The difference between a rebellious mob and a com*
mon mob is, that the firft is high treafon, the latter a riot or a
felony. Whether was this a coinmon mob or a rebellious mdb ?
The nrft time the mob rifes the magiftrates read the proclama-
tion, and the mob difperfe ; they hear the law, and immediately
obey it : the next day another mob rifes ixpon die fame account,
and damages the houfes of two bakers $ thirty people in fiftedi
kninotes put this army to flight, and they were difperfed aifd
heard of no more. Where are thb /pedes belli which Lord Hde
defcribcs ? This mob wants a unrrerfality of purpofe to deftroy,
to make it 2 rebellious mob, or high treafon. Hak^s PL Coron. 135.
there miift be a univerfality, a purpofe to deftroy ^//houfeSi ^
inclofures, all bawdy-houfes, (sfr. Here they fell upon two
bakers and a miller, and the mob chaftized thele particular per-
ions to abate the price of provifions in a particular place $ this
does liot amount to a rebellious mob. When the laws are exe-
cuted with fpirit, mobs are eafily quelled. Sometimes a coa-
rageous 2Q: done by a finele perfon, will quell and difperfe a
mob, and fometimcs the wildom .of an individual will do thd
fame, as is thus beautifully defcribcd by Firgil,
Jtt veluti tnagno in populo cumfxpe coorta efi
Seditio^fjevitque animis igmhile vuigus,
^amque faces ii faxa vdant : furor arma tntnifirat.
Turn pie/ate gravem^ ac mentis^ ft forte virum quern
Confpexerefjilenty arreBifqueauribus adftant :
Vie regit diffis animos, Hf peSlora mulcet^
But amongd armies, great guns and bombs, the taws ate filenced,
and the wifdom or courage of an indtvidvai will fignify nothing.
Upon the whole, I am of opinion there muft be judgment for
. the plaintiff; and accordingly ihtpojfea was ordered Xo be ds-
livcred to him, by three judges againft oae^
Michaelmas Term, B'Geop III. 1767. 3^6
Sparrow verfus Turner. C. B,
nr HIS caufe being.at iflue, the plaintiff moved for a fpecial Cofttfbrtfae
j*^ry, when the caufe came on to be tried, all the jury did 'ottfitireto
not appear, and neither fide prayed a /^/f/, fo the caufe went thena«ufe
off, for that time, for want of jurors ; at anotlier day it came oh goei off «nd
to be tried, when a vcnlift was found for the defendant ; but the «M»»n»tobe
prothonotary did not allow to the defendant his cods occaGoned fca^ jlJ*^*'
by the attendance of his attorney, coanfel and witneffes, when tomm.
the caufe went off for want of jurors ; and. therefore it was now
moved on behalf of the defendant, that the prothonotary might \j!^\]^*
review his taxation, and be directed to allow the defendant his* Bircb^Trui.
cods occafioned by the caufe going off as above, that this was i^^%**
the pra£lice of the court of King's Bench, and very reafonable. ^en t. hsU*
Fpr the plaintiff it was faid, that in this court the praftice wa$ Cafter
otherwife, and that cofts in fuch cafe had never been allowed i^c*** *•
here, which was agreed to be fo by all the officers of the court
prefent.
B.R.
Curia— rh^ it is the pradlice here not to allow cods in this Tbepraaict
cafe, the prothiMiotarv has done right, and therefore we will not o^tb't court
order him to review nis taxation in this particular cafe ; but for cofls^Jhwa
the future it may be reafonable to make the pra£lice of this court a cauVe re-
conformable to jhat of the King's Bench, and therefore for the "»*•"* ^^
future we order that the practice be altered accordingly. The "x^^
default was equal, for either the plaintiff or defendant might
have prayed a tales; they both afted upon a prefumption
that the pra£lice was not to allow any cods on either fide, and
that feems to be the reafon why neither. of them prayed a tales.
Tillard verfus Shebbenfe. C. B* . .
(^TJARE impedity ytxAiQt for the plaintiff. Upon a motion Evi<ierae.
«X^for a new trial, the quedion was, whether the copy of an ^^?PI °f
entry of an infiittitioni in the biftiop's indltution^book,'be evidence Inftuidon-*
admifiible and fuilicient to prove a prefentation by the patron to book it not
the living. It was objeSed for the defendant, that the prefent- «*»<*•»«« ©^
ation under the hand ind feal of tiic patron ought to have been fion"by"the
produced, or upon evidence that a proper fearch had been made patron to a *
for the prefentation itfelf, and that it could not be found ; then ''T^s«
the bifliop's inditution-book itfelf (which is the next bed evi- ciarke v'*'
dence) ought to have been produced, but neither of thefe things Heath,
hath bcea done. For the plaintiff it was faid, that the court J^i?'^*?'
will not grant a new trial .in quare impeJit, becnufe the j^laintiff .'
can recover no cods, nor more damages than half an year's
value of the benefice j whereupon the couufcl for the. defendant
Vol. II, Bb propofcd
367 Hi;.A9Y Term, 8£^^«III. 1767'
propofed to pay the plaintiflF cofts, and to accowtfer tlie profitt
of the living ix^ ca(^ there fliould be auiother Terdift agaiuft th«
defendant.
Ci/r£f(— There muft; be a new trial. The true point is, migU
not the plaintiff haye produced better evidence ? He has nci^er
produced thc^ifmMton^ nor (heym that he hath made a j^toper
xearch for it, and that it coi^td not be fpund : befidesi* the bi(hop*s
inftitucion-book might have been produced, which would (utc
been better evidence than a copy firom it. Let there be a oer
trial^ the defendant undertaking to pav plaintiflfhis coiU> and to
' account tp him for the profits of the living, tf another verdid be
found againft the defendaAt.
JIILARY TERM^
BGeo.llL 1768.
Eichorn vei^ Le Maitre. C B.
lOUe on • A CTIQN upon the cafe upon feveral promifes for goods fold
P'H»n*^i«- Jt\ and delivered ; the defendant pleaded mi/nomer in his
ag^Bftthi chrifiian name in abatement; the plaintiff replied, that the dc-
<i«fai<ia«t» fendant was called and known as well by the name of ^. X. as
the judg. ty the name of B. Z»., and thereupon iflue was joined. Upon
^wiptolyr ^"^ ^™^» ^^^ i"*7 found a VerdiO for the plaintiff, but did not
A writ of ' affefs any damages. And now it was moved on the behalf of the
h^uy ihaii plaintiff, that a writ of inquiry might iffote to affefs the damages ;
Iwatdtd to fo^ ^^ ^^^ defendant's plea beipg found to be falfe, the judg^
fu{i|>iy the ment to be given againft him in this cafe muft be peremptory
omiffion of and final; and there is no difference whether the pica pleaded
tb«^^*' be in bar or abatement ; and for this purpofe was cited Bf9. tit
where an PeremptoTte^ Long ^to Ed. 4. 90. *. where it is agreed for dear
attaint iiet« fjj^^ fc fhat if af dilatory plea be pleaded to the wr//, or to the
TcW. i». *^ county or to the aSiton vel bujufnwdiy and they join iffuci Aeie
a v«t.:ia. ft always, if the iffoe pafs againft the tenant or defendapt in an
Hilary Term, 8 G^«>. III. 176S. . 368
^ *< aAion real or perfonal, it is peremptory to the tenant or de-
* << fendant/* And the Long 5/^ Ed. 4. 90. i. fay8> <* it is pe-
*^ rennptory, be the iflue upon matter dilatory or upon matter tti
^* bar.'' For the defendant it was faid, that although in real
aAions wh.cn iflue is joined upon a dilatory plea, and tried by a
jury, the judgment (hall be final, according to i Ltu. i6j.
I Sid. 252. yet in a perfonal aftion s^ this is, there (ball be a
Tifpondeas ouflers and tlierefore a writ of inquiry of damages
cannot be awarded. But 2^/, it was faid for the defendant,
that fuppoGng the judgment to be given upon thb iflue found
againft.the defendant rouft be final and peremptory, yet the
oniiflion of the yxx^ in not finding damages- in this cafe cannot
be fuppiied by a writ of inquiry of damages, bccaufe if the jury
upon the writ of inquiry fhould aflefs outrageous damages, an
attaint would not lie, ^at being only an inqueft of office;
whereas an attaint would lie agatnft the jury who tried the iflue,
if they had given outrageous damages in this cafe ; and the rule 2 Stn-ioat.
laid down in Cheney* s cafe, \o Rep. 119. is, that the court will x Vent. 40*
never rv officio award a writ of inquiry to fupply the omiffion in skin, 595.
the finding of the jury upon the trial, in a matter whereupon an 1 Sid. 380.
attaint may be brought j and therefore if the judgment in this ^•^•y'S9*
cafe is to be final and peremptory, the verdifl is ihfuiHcient for Bcatbam't
the- court to give judgment upon,- and* a writ of venire facias de c^iie.
novo ought to be awarded. !JI*^1;/J?*
.0 7»i. pi. 14,
>5) >6» >7»
Ctfr»i«-The firft oueftion Is, whether the court upon this Iflue &c.
mull pronounce a nnal and peremptory judgment, and if they ^^^ 3^**
mu(l>.the fecond quedion is, whether they can ex officio award a
writ of inquiry to fupply the omiflion of the jury, or whether a
a writ of venire facias de novo mufl^not go r and we are all of
opinion that the judgment mud be peremptory, and that there
is no difierence whether the ifliie be joined upon a fa£l in a plea
in abatement, or in a plea in bar, for wherever a man pleads a
fa£l that he knows to be falfe, and a verdifi be againft him, the
judgment ought to be final, and every man mu(l be prefumed to
know whether his plea be true or falfe ; but upon a demurrer to
a plea in abatement there fliall be a refpondeas ou/lerj becaufe
every man fhall not be prefumed to know the matter of lawj
which he leaves to the judgment of the court.
As to the 2d queftion, we are all of opinion that a writ of in-
quiry cannot be awarded to fifpply the omiflion of the jury in not * ••'
finding damages, but that a venire facias de novo muft go ; ** for
'< where a man may have an attaint, there no damages (hall, be
*< aflefied by the court if they be not found by the jury." 4 Leon. tzEd.3.56.
345. Godi. 207. This is an ajumpjit in which damages are the ^i^^^^^f
whole objef^Bf the writ and fuit, and though iflue be joined upon fl. So. a.u
a h6t in abatement, yet as to the defendant It is conclufive to all Bio^io^fiiea
intents and purpofes^ and involves' the damages upon finding the ^^
Bb z faa
569 Hilary Term, 8 Geo:lll. 1768.
' fzCt againfl: him, and if outrageous damages bad been given» an
attaint would have laid. " In trefpafs, the defendant pleaded an
^< arbitrement, and it was found againil him; the court held, that
*< in trefpafs the whole recovery is damages^ which cannot be
Oaidfi)^ 40. -« taxed but by the inqued who paiTcd upon the principal ifluc "
-*ffoii* Abri J I if. 4. 57. 3. A venire facias de mvo was awarded.
t83.
Ellis qui tam, &c. verfus . C B.
"^vWc a de- A CTION upon the ftatute for felling coals fhort in ineafure,
l^-'^ajTafiiam ^^ rccovcr JO /. penalty. The defendant laft term pleaded
• e», the 21 recovery in B.R, for the fame offence, and now Ire moved to
. ' irt will withdraw that plea, to plead the general iffue, and take fhort no-
lithdrawTt **^^ ^^ X-iv^ys but per curiam-^Tbfi defendant has delayed the
n d plead plaintiff by this (ham plea ; he has produced no affidavit that he
f^e.^eiAi }ias any merits, and deferves to pay the 50 /. for pleading a (ham
plea, fo the rule muft be difcharged.
.iue.
Goodtitle, on the Demife of Ruflel, Clerk, and two
others, ver/us Weal, Widow, and others. C. B.
Pr ter rtoier T N ejeflment, of thrce-fourth parts of certain lands in Trebaniy
* 2*^''-^^' * and Marjlon Court in the county oi Herefhrdy verdift for the
^^.olIuTo^° plaintiff, fubjeft to the opinion of the court upon the following
c children cafe ; which ftates, that Thomas Philpot the elder, great grand-
! .p^^'"*'' father of the lefTors of the plaintiff, being fcifed in fee of the
.;i>iy*con- prcmifes in queflion, by indenture of the 2d of February 1666,
i- cJiaihofc made between himfcif of the one part, and ^. C. and W M. of
gii^iJrcn. ^'^^ other part, in confideration of a marriage between his fon
and heir Thomas Ph:fpot the younger and jfarte Chin, covenanted
to ftand feifcd to ,the ufe of himfcif Thopias Phi/pot the elder for
T4 years, for raifing portions f^r the daughters of the marriapr,
remainder to the ufe of Thomas Philpot the elder for life, remain-
der to the ufe of Thomas Philpot the younger, and of fuch chiJd
dr children of his body upon the body of the (zid.Jane to be be-
gotten, in fuch martfter and form,^nd for fuch eftate and cftates
injee or in iatly upon fqch provifoes or conditions, and paying
fuch legacies or proportions to thf other children of the f^id
. Thomas Philpot the younger, as he (hould by his laft will andtcf-
tament in writing, or by any other writing under his hand and
feal, in the prefence of two or more credible witnefTes, nominate^
appoint, limit, exprefs, and declare ; and for want of fuch nomina-
tion, appointment, limitation, or declaration, to the ufe of the
heirs'of the body of the faid Thomas Philpot the younger, on the
body gf th? faid Jane tQ be Ucottcn j and for want of fuch child
- 91
Hilary Term, 8 Gtf^?. III. 1768. 370
orrhildren or ifltie, to the ufeof the heirs of the bod]^ of the faid
Thomas Philpot the yoangcr, lawfully to be bcgottrn, remainder
to the right heirs of the faid Thomas Phiipct the elder, his heirs
and ailigns for ever.
Thomas Phiipot the younger, the grandfather of the leflbrs of
the plaintiff; had iflue by Jane Cbin^ Richard^ Thomai^ John^ and
Mary; and by his will ot the 22d of June 1688, reciting his
power under the faid fettlcmcnt., devxfed the prcmijfcs in Trebandy
and Marjlon Courts and did thereby limit and appoint that the
fame ihould remain and come to his fon and heir Richard Phiipot
and the heirs of his body begotten for ever; and for want of fuch
ilTue, to the right heirs of the teftator Thomas Phiipot the younger.
Thomas Phiipot the elder diedju i6B2» whereupon Thomas Phil^
p«t the younger entered, and afterwards died fcifed in 169$, uponr
whofe death Richird his fon entered, and afterwards died feifed
in 1708 without iflue. Thomas^ the fecond fon oi Thomas the
grandfather of the leflbrs of the pUinttfl^i died young without
iflbe ; John the third fon, upon the death 6f his brother Richard,
entered in i7Q8, and by his will of the 2.8ch of January 174 (,
devifed the prcmife's in queftion to Hugh Rujfd his nephew, who
was the eldeft fon of Hugh Rujfel^ who married Mary the ftfter ,
of the teftator John Phiipot^ and afterwards the fame teftator
John Phiipot ix^d without iflue in 1748.
Mary^ the fitter of John Phiipot ^ and daughter of Thomas Phiipot,
the grandfather of the leflbrs of the plaintifl^, had iflue by Hugh
Ruffel^ the faid Hugh the devifee of John y and Richard, Thomas^ and
William Ruffel the leflbrs of the piaintifl^, and a daughter Mary
now living, and John RuJJel, who dieil in the lifetime of his bro-
ther Hughi the eideft brother Hugh, on the death of his uncle
John Phiipot in 1 748 entered, and by his will devifed the pre-
mifes iu queftion to his nephew Thomas Ruffely eldeft fon of his
late brother John^ whofe tenants the defendants are ; and after-
wards the faid teftator Hugh Rujfcl died 1 765, without iflue.
The queftion is, whether the contingent remainder to the ufc
of the heirs of the body of the faid Thon^as Phiipot the younger,
upon the body of Jane Chin his intended wife begotten, created by
the deed of fettlement of the 2d of February 1766, hath been ia
any manner deftroyed or barred.
Cirrra-— This is a covenvint to ftand feifed to ufes, arid there-
fore we can give it the m'oft liberal conftrudlion, according to'
the intent and meaning of the covenantor, which plainly was,
that his fon ihould have power to limit the premifes to his children
of the marriage in fee or in tail, as he ihould think fit. I'he firft
queftion therefore is. Whether Thomas Phiipot the younger has in
fa£t made an appointment to any of his children of the marriage^
in fee } if be hatj the whole fee is gone^ and the fettlement could
, B b 3 never
371 Hilary Tj?rm, 8 Geo. IlL ij6^.
aor er Uke place. zsUy^ Suppofe his appointment is not aa ap*
pcHOttnent of a fee, then the queftion is, Whether an eftate-t^
appointed is a complctQ appointment within the power i
ifi. The children of the marriage are the fole obje&s of the.
fiettlement ; and we are all of opinion, that Tb$mas Fln^ the
Jounger has not appointed the fee to any of his childien, for he
as devifed the premifes to. his fon Richard in tail general, with
lemainder in fie to bis own right hiirs, and his own right heirs
might not hare been any of his children of the marriage, fo that
this is not an appointment within the power, which is wholly
confined to the children of the marriage.
2dlyf We are of opinion, that the appointment of an eftate-tail
to Richard is not fufficient to defeat the fettlementt the intent
whereof is plain and clear \ the old man the covenantor meant
that the father (hould have power over the whole eftate, and to
difpofe of it among his own children as he thought fit, to keep
. them dutiful to their parents; as if he had faid, <' If yi>u think
<^ fit to difpofe of the whole eftate, do it in fuch manner as you
<< pteafe, but you (hall difpofe of the vihaU among the children
'' of the marriage ; if yon do not^ the fettlement and the remaio*
'' ders therein (hall take place." This is the true meaning of
the deed of fettlement, and we do not confine our£bI?es to the
mere words of it.
We are clear of opinion, that the contingent remainder to the
heirs of the body of Thomas Philpot the younger, upon the body
of Jane to- be begotten, has not in any manner been barred, de«
feated, or deftroyed \ and the pojiea muft be dcli?ered to the
plaintiff.
JBeal verfus Langftaff and his Ball. C. B.
Dponaptrol ^H£ defendant's bail, and feveral other perfons, made an
STrbSi^ . *ffi^^^»^ t^at the bailentcred into the recognizance at 4e
fcVrmieff, i^ftance and requeil of the defendant's attorney, who in coafi-
the court deration thereof promifed to the bail- to (ave them harmle&y'Wl-
telfere \i"» withftanding which promife their goods were taken ine^ecobon
feinma^- ^" a. judgment upon the bail-bond for 170/. and upwards ; and
w«y, ana nbw it was moved that the defendant's attorney might be obliged
^vit"^" to make the bail fatisfadion for the value of their goods taken i
b«en rUd ^^^ P^ r^WtfOT-R-This is only a breach of a parol promife^ and we
aod filed, it cannot interfere in a fummary way, here being nothing criminal*
S« off ihe **"^ 1^^ °^"* '^""S y^"^ ^^^^ » f® *•»« ^^ ^^^ nothing by the
file. motion : then it was moved that the Bail might hare the affidaYit
returned to them ; but per cttriam^mlt has been read, and is now
^ filed and become a record of the court, and canaot be taken off
the file.
hititRY Te±U^ S <^ec. UL 1768*. 37a
In the Cbxnmoa Pleas.
Nota t Eaftit term In tbe Sth year j6F King Gtw%9 tb^ Thirds
l>egan upon the 20th day oi JprS 17689 when this court dt*
dared, that from thia day (orward all mefiie procefs ferved upon
the retnrn-:day thereof (hall be deemed regular, agreeaUe to tbe
pra^ice of tbe court of King's Be&cb.
EASTER TERM>
8G^*. III. 1768.
liewit and othisrs^ Aftigneies of JBibbins and otbefSi
Bankrupts, i^e^s MantclU G. B.
niBBtlfS and others before they became banVrupts brought A/ler tfie
-^ an a£tion upon the cafe Upon fcvcral promifes againd the ??5!!Mrt*^
defendant Mantefi^ and obtained an interlocutory judgment by ih^^^ti^
nil dicii againft him in ^rinltf term lad, and thereupon a writ oL b^comet a
inquiry of damages was awarded, returnable in Michaelmas terra JjJ^^JJ^
laft; On the Sth of Septrmier lad, before the writ of inquiry ^anit pro-
was executed, the then plaintifis Bibbint and others became c«eds(ofinjl
bankrupts, a commiQion imied, and the now plaintiffs Hitmt and '^^y^^^
dthers were chofen aflignecs ; and aftetwacds the bankrupts Bib^ Agncesbrinf .
bins and others proceeded to execute a writ of inquiry of damages, « <««« f«. to
and to. final judgment in Michaelmas terra laft, and thereupon Jl^* ^d**
recovered 648/. 7/; for damages in totat whereupon the a& upoode
Ggrtees, the now plaintiffs, for the benefit of themfclvcs and the nurterjudf-
rcft of the creditors oiBibbtns, brought '^fcire facias againft M^n- 2s^
tellf to (hew caufe why they (hbuld not have execution upon tbe
faid judgment againft him, returnable tbe firft return in laft
Hilary term ; to which Mantell in that term pleaded the whoI«
matter before ftated, in bar, and prayed judgment if the aiBgnees
ought to have execution againft him for the damages on the laid
judgment The aflignees demurred generally to uus plea, and
ManteU jcintd in demurrer.
B b 4 u tt
37^ Easter Term, 8 Ci?^. III. 1768.
T. It was objefied for the defendant, that the moment when
Bibbin/s became bankrupts, the debt owing to them by ManuU
was veiled in the aflfignees, and therefore the proceedings of Bib'
b'ws^s to execute the writ of inquiry, and to final judgment after
they became bankrupts, was contrary to law and the feveral fts-
futes of bankru'p^t, and that the adignees ought to have fued out
tkjcire facias upon (he interlocutory judgment obtained by Biibin/s
againft Manteli in Trinity term laft, for him to (hew caufe why
the afiignces fliould not have a writ of inquiry of damages, and
' be at liberty to proceed to recover final judgment thereon for the
benefit of cbemfelves and the reft of the creditors. 2. It was alfo
objefted, that bankruptcy brfore the final judgment was an
abatement of the fuit \ that Bihbi9is*s were then dead in law, and
could not proceed one Rep further.
For the plaintiffs the affijjnees it was anfwered, i^, That all
the ftatutes concerning bankrupts are one fyftem of laws made
for the benefit of creditors, and (hat a bankrupt may a£l for their
benefit, although he cannot do any thing to the contrary. The
judgment hath been fairly obtained, and the prefent writ oifiirt
facias fliews the afl'cnt of the aflignces to what' the bankrupts have
done in proceeding to final judgment. In the cafe of PriddU v.
Thomas laft Hilary term B, R* the parties were at ifllie, and no-
tice of trial was gi\'en ; before the trial Priddle became a bank-
rupt, and Mrs. PritckarJ was chofen aflignec ; the court upon
motion permitted the trial to go on in the name of the bankrupt
PriddU^ upon the affignces undertaking to pay the cofts of fult in
cafe a vcrdift ftiould be given for the defend nit: Alexander Halt
recovered a judgment atmo 17 Car. 2, againlt the defendant, and
had a teflaium fi.ire facins to the tcrtcoants j they appear ar.d
plead, and there was a vcrdid againft them at the aflzzcs in Zuf*
folk, and judgment (hereupon ; afterwards Holt became a bank-
rupt, and the commiiTioners afilgned the original judgment to
Plummsr^ who in Mi:h:ulinas term 7 W. 3. moved the court that
It might be enterecl to entitle him to the benefit cf the judgment
upon x\it fcire fttcidi^-^\\\Q\\ was ruled accordingly without bring-
ing a new fcirefaciasy {qmd mta fays the reporter,) 5 Mod* 88.
Plummery, Lea ; which cafe fiiews that the courts will give the
creditors all thte airiib^nce.they can for the fpeedy recovery of
debts owing to the bankrupt, without- tumipg them about. A
man has a judgment in debt, then becomes a bankrupt, and after-
wards fues out execution ; the money is levied and brought into
court, the afljgnee moves that it may not be paid to the plaintiff
the bankrupt, furmifing that the judgment was aflSgncd to him ;
the court detained the money until the aflignee brought ^fcin
facias to try the bankruptcy. From this cafe it appears, that if it
had appeared on record to the court that the plaxntiflF was a bank-
rupt, they' would have ordered the^ money to be paid to the af-
fignce. In the cafe at bar it appears by the defendant's own plea
that
Easter Term, 8 G^^. III. i768* 374
that Bibbins's are bankrupts; smd whether Manteil is in execution
at the fait of Biibin/^^ or the affignees, it can make no difference
to him. After a writ of inquiry executedj the defendant moved
to (lay the proceedings; the plaintiff Gnce the aftion brought
having been difcharged by the infolvent debtors' ad, 'and having
affigncd his debts and effeds for the benefit of his creditors, the
court refufed to make any rule, and faid, the a£lion brought be*
fore the difchirge and ailignment mud proceed. Hedley v. Brov/n^
2 Barnes 308. This cafe (hews, that the court permitted the
aflignee for the benefit of the creditors to proceed iu the name of
the debtor to recover judgment in his name.
Wilmct C.J. — When a motion, was made in the caufe of Bibbini
y. Manteil in lad Michaelmas term, I had fome little doubt whe-
ther the affignees gught not to have fued out a fcire facias upon
the interlocutory judgment, but upon further and more mature
' con(ideration I think we may, with juftice, give judgment for the >
a{iignees in this cafe. Courts of law have interfered equitably
in many cafes of bankrupts, and if they can fee upon the face of
the ^hole record that the affignees are entitled to recover, they
will ufe their atmoft fagacity and ajlutia to give them judgment.
That they are entitled to this debt is as clear as the fun, and t^e
bankrupt has no right to receive this money \ therefore unlefs we
are bound down by the rules of law and ^orfner determinations,
we will ik)t turn the affignees round ; it is truly faid» that the
ftatutes of bankrupt form one body or fyftera of law made for the
benefit of creditors, and every aft done by the bankrupt for the
benefit of his creditors, the courts will liberally conftrue to be
right and jufl, but contraryof ads done to the injury or difad-
vantage of creditors. It has been objeded, that the right and
property of this debt was fo abfolutely divefled out of the Bib^
bins^s when they became bankrupts by the ftatutes, that they
could not ftir one ftcp further in the caufe againft Manteil, \i\
anfwer to this, it appears on this record that Bibbin/s had ob-
tained an interlocutory judgment, an<| the court awarded a writ
of inquiry before the bankruptcy. The defendant Manteil after-
wards had no day in court, nor. could he afterwards plead any
thing, to the aftion. The taking the inquifition and entering final
judgment were only the conciufion and neceffary confequence of
the interlocutory judgment, for the court themfelves, if they had
fo pleafed, might, upon the interlocutory judgment, have affeffcd
the damages, and thereupon given filial judgment before Bibbin/i
became bankrupts, and the inquifition is only a matter of courfe
taken to inform the confcience of the court. There is no found-
ation to fay that the bankifuptcy was an abatement of the fuit
againft Manteil, for fuppofe the ttk(Xs of the bankrupts (hould
amount to pay 20s. in the pound and more, furely they might
afterwards proceed to final judgment : the final judgment cannot
be void, for the interlocutory judgment entitled Bibbin/s to recover
fomething, which by the uiqucft was afcertained ; the aflignee§ •
by
375 Easteh Tbrm, B^. Ill lySS,
by bringing this yHr# /aciax, have e^refsly affirmed die aA of
Bibhins^s proceeding to final judgment. There ui no doubt but
12 Mod* 7k fare facias lies upon an interlocutory judgment ; and it was
HowT.Ta. obje£lcdthat the aflignees ought to have taken up the caufeat
^^ tliat period, but if they had, this plea does not lie in tlie mouth
of the defendant in anfwer to the allignees \ indeed if the bank-
rupts themfelTes had brought zfdr^ facias^ this plea might hare
been good, becaufe after they became bankrupts, perhaps tbef
could have no legal right to have execution. Upon the whole,
t Mod. 93. the defendant's plek difclofes fucb hOi% as (hew the aflignees
ought to recover, and therefore I am very clearly of opinion tbey
muft have judgment. The cafe of Friddle and Tboouu is not fo
ftrong as this.
Satbur/t J.-^Tht a£lion certainly doth not abate upon the
platntifF's becoming a bankrupt, nor doth it abate if a defend-
ant becomes a bankrupt ; we here muft look on thb judgment as
a right judgment while it remains unreverfed by another coun,
we cannot fay that a judgment of our own pronouncing is nul
and void In law.
Judgment for' the aflignees^ curiam^ ahftnU Gculiji
ver/i4s Cooper. C. B.
Uffe/tar 1 N replevin, the defendant avows under a diftrefs for rent dde
vein aflignt * from the phintilF to him upon an aftigment of a leafe of a
wnrtdif^* term for years to the plaintiff, in which aflignment there is no
tnio for' ' ciaufe of diftrefs ; the fingle queftion is, Whether this is fach a
JKo*- rent for which a diftrefs lies, there being no rcverfion in the
defendant. It was faid for the defendant that although rent be
incident to the reverfion, yet it is not an infeparable incident,
and therefore it may be fevered from the rcverdon ; and al^
though there is no ciaufe of diftrefs in the aflignment of the
term, yet the rent referved thereupon may be confidered as a
rent-feck, and diftrained for by the ftatute 4 G^, a. c. aS.^.54
9nd that it appears clearly to be the intent of the parties that
the plaintiff fliould pay rent to the defendant ; tliis cafe was fo
dear, th:it the court gave judgment fof the plaintiff withoat
bearing his counfcl.
C«rr/a— There are two ways of crediting a tent ; the o^net
of the lands either grants a rent out of it } or grants the lands
and referves a rent} there is no fuch thing as a rent-feck, rent-^
fervice, or tent-charge iffuing out of a term fot years. £r^ DttUf
pi. p. cites 41 JSd. 3. 4« per FyncbJen Ch. Juft. C. S. If a man
hath .a term tor years, and grants all his eftate of the term tat'
dering certain rent^ he cannot diftrain if the itnt be in artears
This cafe is law; and in point ; therefore if the aTOwant will
recover what is owing to him from the pbubtiffy he muft bring
his a£tion uppa the contra£l«
Judgment' for the plaiadff j^ Mm curiam
l;Af Tisft Tsitx, 8(?^iIL 176B. 376
Smith verfus Cattel. C. B.
maliciouiljf, without any probable caufci in the court at Daven^ wbcs-M
try fued out a prcxept againft the plaintiff in an a£lion upon the »>^ <>^
ca(b| which the detcndant falfely and malicioufly caufed to be 4^^ ***
indorfed iot hail for a/. 14 x. againft the plaintiff* and thereupon
caufed the plaintiff to be arreftcd and held to bail for that fum |
and the plajinuff avers that he only wag indebted to the defend-
ant in 30 J. and no more, and that the defendant had no right to
hold htm to bail by the law and cuftom of that court for that fum,
whereas he malicioufly held the plaintiff to bail for 2/. 14 j. in
order to oppreis him, to his damage. Upon not guilty there ^
was a verdict for the plaintiff*, and now it ws^s moved in arrefl'
of judgment, that it did not appear upon the face of the decla-
ration for what fum the court at Davcnttj could hold to bail %
but per curiam^ fmce the ftatute of ii Geo. i. for preircnting
frivolous and vexatious arrefts, no perfon can be held to bail in
an inferior court for Icfs than 40/. and here it is averted that
00 more than 30/. was due to the defendant, and that he had
no caufe of a£kion whereby, by the law or cuilom of the court
of Daventry^ the plaintiff ought to be held to bail. The declara*
tion is well enough; the fling of all thefe kind of afUons is ma^
ikf zxidfalfibo^d^ and injury dpne in purfoance thereof.
Judgment for the plaintiff*
Rogers verfus Payae^ C. B.
|N corenant, breach affigned for. non-payment of a fum oi^oiifmnt
* money \ the defendant pleads a difcharge (in the nature of a S^j^"**"^
teleafe) without deed* in fatisfaftion of all demands. Upon ctnnot S
demurrer it wa$ obje<^d for the plaintiff that the plea is i3l^ *^/^^<^
for that a covenant to pay money which is. by deed cannot be J2**'
difcharged without deed, 6 Rep. ^^. a. Biake'% cafe| and of that Yeiv. t^t,
•pinion was the court, and gave judgment for the plaintifi; Cm. Jm.
377 Easter Term, 8 1?^<7. III. lyCB.
Drage, Efq; ver/as Brand. C B.
Debt fort . np H E defendant's Icafc of a fann belonging to the plainti(f»
articles -"tfae ending zt Lady-day 1766, and being defirous to hold the
jury ought farm another year, articles of agreement were executed between
to aflertdA- the plaintiff and defendant, dated the 26th of March 1766, that
Sefbteach* *^^ defendant (hould hold the farm from the 25th March 1766,
aifigiwd, ac. for One year Ipnger, and the defendant thereby agreed to hold the
thelfta* % ^^"^^ ^^^ '^^' term, and not to cut any tree or trees growing
2 & 9 w. 3. thereupon under the penalty of 500 /., and would leave the fences
cap. 10. ana in good repair. The defendant having very much mifufed the
ihail not find farm, and cut down almoft every tree growing thereupon, the
a venire fa- plaintin brought an action of debt for the penalty of 500/., and
cias de novo alledged that the defendant had cut down a great many trees,
mrd^. ( "mentioning them,) and that he did not leave die fences in good
repair, whereby an adion hath accrued to the plaintiff to have
and demand of him the faid penalty pf 500/. Upon nil dehet,
there was a verdiA for the plaintiff, that defendant owed the
debt, and they found one fliilling damages and 40 x. colts«
Whereupon it was moved for the defendant upon the 8th and
' 9th of W. 3. cap. JO. that the jury ought to have taken into
confidecation and affeffed the real damages done to the farm, upon
the breach affignedin.thc declaration, and if this verdift is to
Hand, the pliintiff may take out an execution for the whole pe-
nalty of 500 /• and hiscbfts, and the defendant will be obliged to
go into Chancery to feek relief, which the flatute was made to
prevent. After hearing couufel on both fides, and time taken to
confider, the court was of opinion, thzt z venire focias de nwo
ought to be awarded ; that the ftatute was made for the benefit
cf defendants ; that the plaintiff was bound down by the flatytc,
and obliged to affign as many breaches in this cafe as he pl.eafcd;
that the damages might be affeffed by the jury upon each brcachi
and it is not in the plaintiff's elefticn to take a verdi^ for the
whole debt, as he has done in the prefent cafe ; and there muit
go a ventre facias de novo^ the verdi^ being defedivc*
East£R Term, 8 C^o. IIL 1768* 378
Bibbins and others vtrfus Mantell» a Prifoner. C. B.
THE plaintiffs having proceeded to final judgment in laft Final judg^
Michaelmas term, when the defendant was a prifoncr, and J^^fo^'i^
the
a prifoncr ia
plaintiffs not having charged him in execution in laft Hilarj Michaelmas
term, according to the rule of the court, it was now moved on the term laft, the
behalf of the defendant that he might be difcharged out of prifon S|!|^g^^*n
hy fuperfedeas ; to which it was anfwered and admitted, that the bankrupts,
plaintiffs did proceed to final-judgment againft the defendant in ^goeea
latt Michaelmas term, but the plaintiffs being then bankrupts ^h^^e^Wm
could not legally charge him in execution, neither could the af- ia exccutkm
fignees under the commiffion of bankrupt charge him> without '*" Hilary
firft fuing out zfcire facias to (hew caufe why they (hould not ^^ ^^^
have execution upon the judgment aeainft the defendant, which vented hj
they accordingly with due diligence fued out returnable the firft the/efen«i-
return of laft Hilary term, to which the defendant pleaded a plea th^rfdra'^
which was held to be bad upon a demurrer, in this very term, facias.
(fee the cafe of Hewit fef aL AJignees^ &c. y, Mantell before,) and
therefore the defendant himfclf by pleading a bad plea has hin-
dered the aflignees from charging him in execution in laft Hilarj
term, which they might have done if he had not pleaded.
Curia^Bihhins^s the bankrupts could not charge the defend-
ant in execution in Lft Hilary term, becaufe the affigrfees were
entitled to the benefit of the judgment, had .then brought T^fdre \ M^d.^^
facias upon it, and, Vi Mantell has any lands, (which he may have
for any thing we know) they may perhaps choofe an elegit againft
his lands, and not to charge his perfon in execution. The rule
to (hew caufe why the defendant (hould not be difcharged by
fuperfedeas was difcharged, the affignees having proceeded with
due diligence.
Denny verfus Trapnell, Efq, C. B,
TRESPASS for taking and carrying away an anchor of the .An inquifi.
plaintiff at Ipfwichf of the value of 6 /., judgment by nil dicit Jj^j? "''«'*
was of laft Hilary term, and a writ of inquiry of damages executed ^ndlr-Si!^'
in the laft vacation, jipril the 14th, (returnable the iirft return of ri/r<extraor.
the prcfcnt term,) before two peffons under-(heriffs extraordinary **iT^^*\
appointed by deputation under the hand and feal of the hi^h- Isih-ihenfS
iheriff of Suffolk for that purpofe 5 the jury affeffed 77 /. for the can appoint
plaintiff's damages. This terna began tipon Wednefday the aoth nomo'"!"*
of Aprils and upon Saturday the a3d, being the 4th day in term, fteriffe"'
at three o'clock in the afternoon, the plaintiff might have figned traordlnary.
, final judgment if he had pleafed, but not having fo done, the
defendant on Monday the 26th oi April moved the court that the
inquifitiop
379 Easter TEitw, 8 Geo. III. 1768.
inqui(iti(m might be fet afide for two reafons, firft> becaufe the
higb-Qieriff cannot depute two perfons to take an inqueft, for if
he can appoint .two, ke can appoint tweoTy-twcr, or any other
number i 2d!y^ becaufe the damages of 77/. aifefled for an an-
chor worth no.more than 6L are etceffive^ whereupon a rule
was made ro fliew caufe why the inquifition AefuM not be fet
iffcuijiKii. afiie. Upon (hewing cMfe for the plaintiff it was objefted, that
lefoie fignT ^^^^ modou was like a motion in arreft of judgment, or for a new
cd» a motion Crial| and therefore the defendant not coming to move it widiia
•» jet afide i^^ gyft fom^ j^ys in term, according to the courfe of the court,
tiQo"imVbe ^^* ^^ ought ndt to have been marf6 % fid mn aU9catur^ per at*
mde the fiam^rWc defendant made the motion before final judgment
** ^y^ was figned, and fo came (bon enough, arf/y. It appeared by affi*
themic of 'avits on the behalf of the plamtiff, that' he was a Rfherman ;
tnqoiry is that his Tefltl was lying at aiYchor in the j>ort of Ip/kvicb,- and
«H..^,u. ^^. j^ j-jjjj j^ ^j^j^^ ^^ gg^ f^y fprats; that fuch firfierman, io
the IptAt feafon, can get 20/, per week clear ; that the defendant
diftrained the anchor worth 6/. for a toll of 8 dJ pretended to be
due for every fiOiiog veflel there, and that by the taking away
the anchor the plaintiff was delayed in his voyage about two
weeks, and that the defendant upon the eaecuting the writ of
inquiry made a defence, and therefore it was faid the damages
were not exceflive. 3<//y, It was faid, that the prafHce of ap-
pointing an under- flienff extraordinary upon fuch occaGonas
this, had been often allowed by the court of King's Bench ; and
4tbly, That the plaintiff ^s, moil material witncfs was gone to fea,
and he did not know when he would return, and therefore the
inquifition ought not to be fet afide. For the defendant it was
replied, that the practice of the King's Bench of allowing the
appointment of om under-(heriff extraordinary was right enough,
but there is no inftance of an appointment of two under-flierifi
extraordinary in one cnufi ; and that the defendant would admit
the evidence before given by the now abfent witne&
Curia-— 'Wt (hall fay nothing as to the damages, whether they
are, or are not exceflive. There is no inftance of dep'uring two
under*flieriffs extraordinary to take an inqueft, for if the high-
Ihcriff may appoint two, he may appoint twenty or xssxac^. if he
can exceed one, no line can be drawn to limit the number : be-
fides, it appears that the fworn under-fheriff lived in the fame
town, and therefore the writ of enquiry ought to have been exe-
cuted before him. Let the inquifition be iet afide,. and the writ
of inquiry be executed before the judge at the next aflizes for the
county of Saffoih^ and the evidence of the abfent witnels be ad*
mitted at tlie defendant's requeft.
Seijeant Leigh for the defendant} Serjeant Fofttr for the
plaintiff.
Garratt ver^ Mantell, a Prifoner. C B.
RUI£ to fror cauTe whT tlte deCendant fliottU not be d!f- a prifimcr
charged out^f cuftody by writ of fuper/tdeat, the plainti£F not ^^^i^^ "^
htviDg dbirged ktm in execiition according to the courfe of the pUh^^ff u
cttart. Upon Slewing caafe it appeared to the court that final not oUjge4
judgment for 6qoo A debt, after a verdia was fipied and enteral j^^;^^^^^
in the vacation after laft Mlcbaeltmu temiy that upon the 27th day cotion the*
of January^ the 4th day in the laft term, the defendant was brouglit ><i term
Vp m order to hare been charged in execntiont bat a writ of error ^/**^
was then btov^ and allo wed ^ but no bsA was p»t ia thereupon *
until the 30th of Januarji ; that an injundion bill was filed by
^efeadant againft the plamtiff^ but no injun£Hon was fued out.
v Curia^t\>c plaintiff fliall hare the wboky viz. erery day of fbr • pUm-
He fecond term af(er final judgment figned, to charge a prw 5*^ ^^1
foner in execution, and it appears the defendant has hindered the ^-^^
plaiimff from lb doing, fereral days in the laft term, by bring- %A cenn i«
ing a writ of error) therefore the rule muft be difcbarged, ^.'/se «
ptifoner*
Freelanc) verfus Hunt. C. B.
N cofenant^ on a deed of aflSgnment by the defendant of par- Aft«rt Re-
ticular debtSy and he covenants that none of thofe debts were ^ce aade
fatisfied \ judgment by default^ and a writ of inquiry executed; fnJliry"*the
a fatal miftake being now found out in the declaration, it was - - *
1
foored that the interlocutory judgment m^ht be forthwith en« notaUowed
tered upon record agreeable to the declaration delivered, and the ^^l!!^^',
roll be brought into the ptoper office, and that the defendant miiiak* ia
might have four days to move in arreft of judgment after the ^ dedwa*
roll is brought in. Upon (hewing caufe, it appeared that the '^*
defendant attended the executing the writ of inquiry by counfel,
and crofs examined the plaintiff's witneffes.
Curia —We lament that entries on the roll are TK)t made at the
times when they ought to be made; the rule muft be dif-
charged^ becaufe the defendant did not rely on the miftalis, but *
}us made a defence on the executing the writ ot inquiry*
$Si EAiTS^TERM^B Geo. UL 1768.
In the Common Pleas.
Nota s Trinity term in the 8th year of king Geo* 3. began oa
the 3d day of June'^i'j6S, when the court ordered^ thst upon
proce(s returnable the ^rjty fecojtd^ or third return of any term*
if the plaintiff dechre within four days before the end of the
teroij the defendant (hall plead without an inrparlance.
TRINITY TERM,
ZGeo. III. 1768.
Bates verfus Barry, Efq. C B.
A defendant HT^HE plaintiff brou(rht a former a£lton agatnil the defendants^
j»M held to J^ < held him to bail for 70 /. declared againft him in an aflioa
titn/fw*thc ^P^^ ^^ ^*^^ ^*P^** * fpecial agreement in writing under the de-
fanw caufe fendaut's hand and feal, not (lamped } and the caufe bein^ at
^'ftcf r'*ff '^^^^^ the* plaintiff's attorney found out he had made a miftakc
haddif^n- '}^ declaring in in aftion upon' the cafe, the writing being
tinucd fhc made and. executed in Ireland^ where no (lamps arc neccf-
firftwit, by fary ^as a good deed, and the plaintiff ought to have declared
«itibJ(e. ^^ covenant i therefore he ditcontinued that action upon payment
of cofts $ and having now brought this fecond writ for the fame
caufe of a£iion, and arrefted the defendant a fecond time, where-
uponthe iberiff h^th returned a cepi corpus : it was moved that
the defendant might be difcharged out of the cultody of the
fheriff upon entering a common appearance, for that it was op-
Erefling and haraffmg the defendant to arreft liim, and obl^e
im to put in fpecial bail twice for the very fame caufe of a£Hon.
Ci/rij— This fecms to have been a mere miftake, and not done
with any intent to opprefs or harafs the defendant; if any fuch
intent had appeared, the court would certainly have difcharged
14 the
Trinity Tbrm, 8 Geo. IIL 176a. 382
the defendant upon entering a common appearance \ but it would
\^ too touch to fay the plaintiff in this cafe Qiould lofe his bail
hj a mere flip of his attorney ? fo the role was difcharged. Ab*
ft nit Batburjl J.
Evans vcrfus P ^ an Attorney of the C, B. \
J^VANS and^one C made an affidavit agatnft P. that he had l^ « attor-
-^^ been guilty of fome malpradice with refpeft to a bill of ^^^^
' cofts for bufinefs done in the county court of Monmouth^ where* any thing
upon it was moved that he miglit anfwer the matters of the affi* wrong ^m-
davit ; to which it was objedcd on the behalf of P. that this.was J^y|%'^"
a tranfa^ion in an inferior court, and this court wpuld not in- ao inferior
termeddle therein; and cited a cafe of Htninfonv. Jldertm^ court, this
HUarjy 3 Geo. 3. C. A when upon an applicatbn of this fort, ^^]Sid
this court thought they had no power to proceed againft an toanfwcrcht
attorney of the court in a fummary way^ charged with a mifbe- conp^t.
haviour in his pra£lice in an inferior courti (the Mayor's court of
Niweaftle^) to make-hiro anfwer the matters of an affidavit, be-
caufe they could do nothing with the caufe*, but mud leave that
xnfiatu quo*
Curia'^An attorney cannot pra£life in an inferior court if he
is not an attorney of a fuperior court, and that is the reafon why
this court interferes; where deeds are put into an attorney's
band (who happens to be concerned for the adverfe party) and
not xe-delivered, this court interferes ; and if an attorney of this
coufC doth any thing wrong a/iy where quatenus attorney, this
court interferes, whmupon Mr* P. agreed to accept of a left
fum than he had demanded in the county court of ManmQutb^
and the matter was compromifed at the bar.
Perkin verfus Prodor and Green. C. B,
TRESPASS for entering the plaintiff's hoiifci and. difturbing TVefpa^slict
him in his pofleffipn thereof ; the fecond count is for ex- ^^^ ^ ^
pcUing him from the poflVffion thereof; upon the general iffii^ Ser^com*'
this cauie was tried before the Lord Chief Ju(ll(;,e /!P!/iiMf laft mliiioaof
Eafltr term at IVefiminfter ; verdid for the plaintiff, damages 40 /. ^^^^
againft A
The evidence given at the trial was as follows {,. v«. That the w^»»ov
plaintiff on the 8tb of Apririjti, purchafed of one miliam ^^^
Goodalif a publican, his int^reft in a term of years in a houfe he] litbietobes
was then in poffeffibn Qf» and held by leafe (being the ho^ife in ^knipc^
which, t^c.) which leafe had been fome tyne before depofited iiu
the Hands of the defendants^ who are bre^er^i (Qf whoi9 G0W/
Vo^. II. C c • bottjght
3^^ TrInitvTerm, 8G^(?. in. lySS.
bough( his^ beer,) as a fecurity for a debt due to them ffotA
Gpodall: that GooJall grzntcd to the plaintiflfaii under-leafe» for
which he paid Goo Jail 40 /. for the good -will of the houfe, and
paid him 35 /. for the goods in the boufe ; that upon the 26th of
^pHI 1 763 a commilfion of bankrupt ifiued againft GooJaii: he
was thereupon declared a bankrupt, and the medtnger feized all
the goods in the houfe, which were bought by the plaintiu of
Go^a// wi^h the knowledge and upon the recommendation of the
. defendants ; the plaintiff continuing in poflVfiion under his under-
leafe^ and the cfefcndants being affignees of Goodail, brought an
e|e£ln\ent as aflfignees againft the plaintiff, recovered, and put
« one of. their (ervahts in poiTeflion of the houfc : tha£ the plaintiff
haying at ati expence got another public houfe in the fame (Ireet,
applied for a licence, which was much oppofed by the defend*
-ants ; but the jtiftices being inforpied how the plaintiff had been
treated by the defendants, did remove the licence to the plaintiff,
and fnid they never would licenfe the houfe fo taken pofleffionof
by the defendants; and within twelve months afteiwards the
defendants furrendered their poflcflion under thp judgment in
cj;;£hnent to the original landlord, by which the plaintiff's intc*
reft in the houfe was loft : that the plaintiff hearing of the lat^
d::terminatton in the court of King's Bench, that a vidualler or
cQnjmon alehoufe-keeper is not liable to a commlfEon of bank-
rupt, brought trover for the goods and recovered 35/. the fum
he p;iid for the fame, and has now brought trefpafs and recovered
the Turn of /^oL danfages. Nota; the commil&on of bankruptcy
was fuperfeded the ad of February 1768.
It was now moved for a new trial, for two reafons ; firft, that
trefpafs vi ^ armis doth nor lie in this cafe •, idfy^ that 40/. da-
mages are excefTivc ; upon fliewing caufeit was anfwercd'for the
plaintiff that trefpafs W fa^flrw// is the proper a£lion, and that
this is like the cafe where* an execution has been exec'uted upon
an irregular judgment, which is afterwards vacated \ trefpafs vi
(5* armis lies againft the plaintiff in that judgment, ^dty^ The
damages in this cafe are what the plaintiff hath really fultained,
' for he gave 40/. for the good- will of the houfe ; they belong to
fhe jiiiy, and are. not exccffiVc. In anfwer^ it was faid for the
pJajntiff,;thatthis aiftion was brought before the16bmmii&on was
aAually fuperfeded^ for the Lord Chancellor's order forTuper-
fediiig It was only made two days before the trial, and.that while
the commiffion was fub&fting they adled under a proper autho*
. rltjf, and could not be trefpaffers ; 2 RoH. Abr. 555. 6 Y. pi. 4.
be whd comes to a thing lawfully cannot be a treipaffer: to
which It was aiifwercd, that the caufe determined in Banco Regiif
Ea,^tr tcrfn 1767, of Rolls v. Rawlinfon^ was trover brought in a
fiihilar cafe to this, before the commiffion was fuperfeded? per
CllveJ. Turri€rr.Fe(gaieiiLev.$s* ^P^^ a judgment vacated an
' ' ' officer
Trinity Term, 8 Geo. l\l. 1768^ 3^4
officer is czcafed for executing an execution, but the ptrt^ it
not ; the court took a few days time to confidtrj and then gave
judgment to the following effcft t . .,
Curia— U the late refolution in B. R. that a vi&ualler cannot
be a bankrupt, had not happened^ probably the prefent a£Koti
would never have been brought ; and the Chief Juftice, who
tried the caufe, thought it a very hani cafe^ and (lid recommeocl
it to the jury to find fmall damages ; but they found 40 /., wbidi
he thought they meafured by the fum which the plaintiff pai4
Goodall. for (he good-will of the houfe. It is now moved diati
in point of law, trefpafswlll not lie; Q.dlyf that the.damages are
exceflive ; the prefent a£lion is againft the perfons themfielvet '
who fued out the com mi (lion of bankrupt, who are bound to
fupport the legality of their a£^s» and is not like the cafe of att
officer executing a writ of execution upon a judgment, which ia
afterwards vacated. We are all of opinion, that the commiffioQ
of bankruptcy is void, and of no avail ; the jurifdidion .concem<&
ing bankrupts is confined to particubr perfons atid cafes \ as^
that the perfon fubject to a commiffion muft be a trader, muft
be indebted in fuch a fum. muft do fome particular ad> (sV. Isfc^
The court of Chancery a6ls herein folely upon the applicatfoa
of the party petitioning, at whofe peril the commiffion iffues ;
and if he fues it out upon any falfe fuggeftion, the law gives a
remedy againft him to the party whofe liberty and property is
thereby invaded ; there are a variety of commiffioncra whofe
power and jurifdidion are litnited and confined,* which if they
exceed, the law will give remedy againft them ; and where
courts of juftice afiume a jurifdidlion which they have not, aa
adion.of trcfpafs lies againft the officer who executes procefs,
becaufe the whole proceeding was coram mn juUce^ the cafe of-
iSx^Marfialfea^ \o Rep, 76. a, b. ; where there is no jurifdiftion at
all, there is no judge; the proceeding is as nothing. Tliisis
the very cafe of the Marjbalfea ; the party in this cafe is no
trader, there is no foundation to build a commiffion upon, the
commiitioners had no power at all. Where a rate is undntjr
taxed, the warrant of the juftices of peace for levying thereof
will not excufe the churchwarden or overfcer of the poor who
diilrains for it ; Nichols v. Jfalier ani Cartir, Cro. Car. 395.
And it is hot like where ah officer 'makes an arreft by warrant
out of the King's court, which if it be error the officer rauft not
contradifl, becaufe the Court hath general jurifdidion; but
here (fays Juftice Croke) the juftices of the peace have but a par*
tieular jurifdi£lion. THe cafe of Ter)^ v. Huntington ist ah
Hard, 480. is a very ftrnng caife. In trover for goods levied by
warhirit of the commrffioners of excife, the queftion 'was^ if
they adjudge low wines to be *Jirong waters perfectly made, •winetia
Upon thtjlat. fa Car. 2. f. 23. Whether an a&ion-ltes againft the Hardr. 480.
<J^cer? Pit ffaULotd Chief 3aron— The* commiffioners have jJtViS.*
C C a only take in ui«
pitft.
385 tuiMiTir Term, 8 Gto. IIL 1768.
only I'ftinted, limited jarifdidlioiiy and if they exceed it| that
does not take zvrij the jurifdidion of this court. Special jurif-
diAions are circumfcribed : i. With refpc£l to place^ as a /«ef or
a corporation : a. With refpeA to per/ons^ as to Rfp. thcx»fc o^
the Marjhalfea ': 3. With refpe£l to the fubjed-matter of their
jurifdidion ; and the ftatute limits their jurifdidion in all thefe
three refpefls ; and therefore if they give judgment in a caufe
arifing in another place, or betwixt private perfons, or in other
matters, all is void and coram non judict^ as if they Ihould ad«
judge rofe watgr to be Jlrong water. Where a judgment is va-
cated for irregularity, the party Is never excufed, if an execa-
tion is executed thereupon ; yet the (heriff's officer is excufed,
becaufe he* has the king's writ to warrant him. Turner v. jFh/-
gatCf 1 Lev. 95. i Sid. 272. Though thefe cafes have been
fometimes grumbled at, yet they are good • law. Carth* 275.
2 Stra. cop. In the cafe of an irregular judgment againft the
plaintiff, and a capias ad fatisfaciendum executed thereupon, in
trefpafs and imprifonment the party and the officer joined in a
plea of judification undrr the writ; and the officer was there-
fore helJ guilty as well as the party ; but where a judgment is
revcrfed for error it is different, and (lands good until revcrfed;
one cafe is the fault of the party himfclf, the other is the error of
the court. Smith v. Dr. Bouchier and others, vice-chancellor,
judge, gaoler, and party, in a caufe in the chancellor's court of the
, univerfiry of Oxford: the queftion arofe upon a cuftom, that a
plaintiff making oath that he has a perfonal a£lion againft any
pcrfon within toe precin£ls of the oniverfity, and that he believes
the defendant will not appestr, bi/t run away, the judge may awanl
a warrant to arreft him and detain him till fecurity be given for
. his anfwering the complaint. On the 7th of Augtijl 1731, the
defendant Bouchier having the privilege of the univcrfity, made a
complaint to the defendant Shippen the vice-chancellor of a per-
fonal a£lion againft the plaintiff Smith to his damage of loco/.
according to his eftimation, and that he ^fuJpeBed the plaintiff
Smith would run away; that he took his oath of and upon the
truth of the premifes, upon which a warrant was granted to the
other defendants, whQ arrefted Smith and kept him in prifon eight
days for want of furctics. The court held, that the party muft
fwear to his belief oi the defendant's defign to run ^way, in order
to give the chancellor's court this jurifdidion, and that fwearing
that hcfufpeiied the defendant would run away was not fufficient,
and' that nothing but 3^//^ would do, therefore the whole was
coram non judice; and Lord Hardwicie was of opinion, that taf'
pafs andfalfe imprifonment well laid againft the vice-chancelk>r,
judge, gaoler, officer, and all of. them; and though Sir ,7^
Strange in his report of this cafe, 2 Stra. 994.' fays, that dieoffi-'
ccr and gaoler might have been excufed ^f they had juftified-
without the bailiff or vico-chancellor, yet it fecms they could not,
3|s the whole proceeding was coram non judice^ and a mere nullity
. . , (there-
Trinity Tirm, 8 Geo. III. -1768. 38^
(therefore qwtrt as to that point). See the cafe o£ Martin aod.
Marjball^ (the mayor of Tork^) ztAKej^ a.ferjeaot at mace^
J%(* 68. in trefpafs and falfe imprifonment, where the prefcrip*
tion was for the mayor of Tork to diredi precepts for appearance
in the court of Chancery there i the court held fuch precepts muft.
be intended to be made in^ writing, and becaufe the jullificatioa
did alledge that the command given by Marjball the mayor to
Key^ the officer to take Martin was by nvord^ the plea w^s held ill.
This is againft a judge of a court a^ing where he had a limited
jnrifdi&ion, but had no jurifdidion of procefs ore tenus. To the
adlion well laid againft him : there muft be a jurifdidioh of the
proeeft as well as of the perfin and caufe.
In the cafe at bar we lay the fupfrfeding the commifSon of
bankruptcy entirely out of the cafe, as if it had never been fuper-
feded at all. The commiflioners had no more power to z(k under Hird. 479.
the commiffion of bankrupt againft Goodall who was a vifluallery '
than if he had been a divine, a lawyer, or a phyHcian : although
it may be thought hard to adjudge a man a trefpalTer in a cafe
heretofore doubtful, yet the law cannot bend to particular cafes*
and it is more for the general utility to fufier particular hard
cafes, than to give ufurped authority any effect at all ; the hard- ^
(hip of particular cafes is thereby moft amply compenfated to the
public*
As to the damages, the Lord Chief Juftice was pleafed to far^
he wiflied they had been 40 t. inftead of 4q/. ; that he thought
there was a foundation for the jury to have IciTened them, but \
they thought otherwife, and they (he (aid) are the conftitutional
judges as to damages ; and there muft be fome very extraordinary
condu£l in a jury to induce the court to meddle with damages*
So th^ po^ea was ordered to be delivered to the plaintiff^ who had
judgment*
John Connor verfies John Cbnnon C. B,
70HN Conmr of Baniett was fummohed to anfwer Jahn ^tStfuf-
Connor of a plea that he render to him 68A which he owes ?2*°*,*^*
to him and unjuftly detains, {5V. and whereupon the faid %bn ^^L^ ^^^
Connor declares upon a bond; the defendant craves <;jp«r of the
bond and condition, which is fet forth ; whereupon the defend-
ant demurs in law, and (hews for fpecial caufe of demurrer that Dyer 70.^.
it does not appear that the plaintiflF hath any caufe of adion, or margin.
that the defendant is indebted, or that he executed the bond. It ^^' ^'•*
was objeAed, that it did not appear to the court which Join Con^
.nor executed the bond, becaufe there is no diftin£lion bv way of
addition to the name of John Conner after the firft line di the de-
claration : to which it was anfwered and refolyed b^ the court,
C c 3 * * that
3^7 ' TitmiTT TBftM, 8 Geo. III. 1768.
Bfo. Addi. tluKt. foficieilt cortaittt j: appears upon thp record that J An Cptmor
^*f" 47* of BdPnstt itiiKtebteil upon a bond executed by liim to John Cetuwr
S«r!pL76. ofJ^nda^rmtf the^j#r whereof is fct forth j and therefore Join
&mmr 01 Friday-Jlreet mM&. have judgment againftj'9i&» Conmroi
JSarmttm
MICHAELMAS TERM,
gGco. III. 1768.
Rogers veffus Carter, Efq. C. B.
A game- ^^T^ RESP ASS agaiiifl; the defendant, a j udice of the peace, for
keeper oft ' ^ taking and carrying away the plalntiflTs gun from him.
^^^^ Upon the general iffue Not guiky, which was 'tried before Lord
m tjghc to MonifieU upon the home circuit lad fummer, there was a verdid
•■^•rw fcr the plainttflFt and Serjeant Nans having moved for a acw
TOt ofS^ *'*•'• ^^^ Juftice Gould now reported to the court the fafts pro? cd
at the triali as they had been ilated to him by Lord Mansfidds
vix.
ThatLord H.^ lord of the manor of Ringwood^ by. writing.undcr
his hand and feal, on the 26th day oi Auguft laft, made and ap-
pointed the platntiffhis^al7?^-i/r^r^ within tfaefaid inanor, which
'.appointment or deputation was duly entered and rcgiftcrcd with
5 the clerk of the peace where the' manor lies on the a7th of
>Auguftj that on the loth of Ofloiir lad the plaintiff hunted and
beat for game in the faid manor, and in a large field iben fpmng
a; ^coyey of partridges •, after their firft flight he Ihot at them
-within the mapor ; they took a fecond flight, and the plaintiff
.purined them ont of the manor, but could not find them ; as he
■s was returning ^gain to the manor oiRingwood^ he was met by the
defendantabout thfee quarters of a mile diftant from thatnsanor,
who aflbedhiniJf Lord H. had qualified himi the plaintiff an-
f^ercd,' " I Vye*a deputation from the lord of the manor of
•• Ringtuccii'* the defendant replied, ^« You are now out oltiai
*« manor,"
MiCHAXLMAs Term, 9 Geo. III. 1768. 388
^5' manor/' and demanded Ymgun^ and took it from htm ; that the
defendant did not (hoot out of the manorj but was* three quar*
ters.of a mile out -of the manor with bis gun and dog with.an
intention to (hoot at game.
By the flat. ^Geo i. c. ii. it is enaAed, That no lord of a .
manur (hall make any perfon to be z game^keeper wich' power to
l^ill game, unlcfs fuch perfon be qualified by the laws of this
realm fo to do \ or unlefs fuch perfon be truly and properly a
ferv4nt to the faid lord; or be immediately employed and ap»
pointed to take and kill the game for the fole ufe of the faid io^d^
and not otherwife.
Tt alfo appeared that the plaintiff was neither a qualified per-
fon to kill game by the laws of the realm, nor was properly a^
menial fervant to the lord of the manor ; wheseupoh two quef-
tions arofe at the trial ; ijt^ Whether, from the fa£bs proved,
the plaintiJ had been guilty of any offence againft xht game-^
laws, fo a^ to fubje£l him to have his gun feized and taken from
him by the defendant ? 2^, Whether, as the defendant was nei-
ther a qualified perfon, nor a menial fervant to the lord, he could
be appointed his game^keeper? Lord Mansfield thought the de*
fendant had no right to feize the gun \ and that it was not ne-
ceflary that the plaintiff fhould be a qualified perfon, or a menial,
fervant to the lord, in order to make him capable of having a
deputation as a game-keeper from the jord of the manor : So
the jury found for the plaintiff. But as the lords of manors and
country gentlemen prefent at the trial were of different opimohs
about this matter, Lord Mansfield faid he thought the bell" way
was to move the court for a new trial without colls, and if he
had thought this could not have been done, he would have
made a cafe for the opinion of the court, or have dire£h:d the
jury to have found a fpecial verdi£l*
This matter was debated on i^nW-ory Nwemker the ^8th, by
Serjeant Leigh for the plaintiff and Seneant ttares for the de-^
fendant, and on Monday the aift of fjovemher tlie court, dif*
charged* the rule to (hew caufe why there (hould not be a hew
trial.
C«/r/fl— There are two queftions \ \fi% Whether the plaintiff
was 4 perfon qualified to receive a deputation from the lord o(
the manor to be a game-keeper at all,
idj Suppofinghe is, Whether the jufticc of peace (the de^.
fendant) under the Jiat. 5 Ann. c, 14./ 4. had' a right to take
his gttn from him, while he was fporting, for the pufpofc of
killing game, for we think it will make no difference in the cafe^
whether htjhot, or not, out of the manor*
Cc4 The
389 Michaelmas Terbi, 9 Geo. IIL 1768.
The fat. 22 bf 23 Car. 2. r. 25* is the firft a£l that latro-
duces game'keepers^ whercbjr it b enad^di that lords of manors, '
Vc. may bv writing under their hands and feals authorize gftme-
keepers within their royalties to feize guns, Vc* or other engines
for taking or kiUing game. See this ftatute.
Thcjlat. 4if S W'.li M. c,. 23. / 4. puts gameJteepers upon
. a footing with the antient keepers of parks, whereby it is etiaded,
that all lords of manors or their game^heepers may within their
royalties refift offenders in the night-time in the fame manneri
and be equally indemnified as if iuch fad had been committed
within any antient chafe, park or warren. See this ftatute.
' Thtjlat. 5 jinn. c. f 4. / 4. adds power to the ganu^ieeper to
kill game upon the manor. See the ftatute.
' The fat. 9 Ann. c. 25. /. I. cna£is, That no lord'or lady of
a manor {haU make above one game-keeper within one manor with
power to kiU'game^ and the name of fuch perfon (hall be entered
with the derk of the peace ; fuch entry to be made and viewed
without fee. See the ftatute.
Tilt fat. 3 Geo. I. c. 1 1, reciting the fat. 5 /nn. c. 14. and
Hhkijtqt. 9 Ann. c. 25. and the abufe of thofe ftatutes, by lords
df manors granting deputations to the farmers, tenants, and
occupiers of the lands within their refpeftiye manors to be ganu^
keepers^ with power to kill and deftroy the game, which praAice
tended to the deftrudion of the game ; for remedy whereof it
was by this ftatute enaded, that no lord or lady of a manor (hall
appoint any perfon to be a game keeper with power to kill game,
unlefs fuch perfon be (qualified, or be truly a fervant to the faid
ford or lady, 6r immediately employed to kill game for the folc
ufc of fuch lord or lady, tfr. See the ftatute.
As to the firft queftion, we are all of opinion that the plaiiitifF
was a perfon properly qualified to receive a deputation from the
ford of the manor to be a game-keeper^ although he was neither
a* qualified perfon, nor a menial fervant to the lord of the manor;
that this fiat. 3 Geo. i. never was meant to check or hinder lords
living at a diitance (from their manors) from appointing any
perfon whatfotver to kill game for the immediate ufe of the lord ;
if it was othcrwife, this ad would take away the right of every
lord living at a great diftance from his manor; we therefore are
of opinion that the plaintiff was well qualified to kill game in
the manor of Ringivood^ and cpnfequently to carry a gun for diat
purpofe.
The
Michaelmas Term, 9 Geo. HL 1768. 390
The plaintiff .being fo qaalified, the fccond queftion aiifcs upon,
^cjai. s Ann.c. 14. A- 4- Whether the jufticc of peace under.
that Jatute had a right to take his gun from him while he was
fpcmingior the purpofe of killing game in another inanor, out of
the manor of Ringwood? for we take it to be true that the plain-
tiff intended to kill game when he was out of that nunor of
Rmgfuood^ and when the gun was taken from him; and think
it makes no difference in the cafe whether he (hot at game out
of that manor of Ringwood or not \ if he had lolled game wbtrt
he was not a game-keeper, he might have been conviaed in the
penalty of 5 /^ 5 but he wsis entitled to keep and have dogs, guns,
and nets for the taking and killing of game any where : upon the
dcbatbg this ^afe at the bar, cafes were cited from the civil law-
books and our law-books tQUching the property of game and other
creatures/^* naturs^ and the lawfulncfs of purfuing the fame ;
ittt we Ihall not take notice of thofe matters, bccaufe we are
now to judge upon a law of penalties, and the words of penal
laws mud in all cafes be ftridly purfued 5 if the words be doubi*
fiil^ courts of juftice will explain and conftrue them in favour
of ^zfuhjeEt; if they be plain and clear ^ord^^ the office of the
court is jus dkere et non dare^ and we muft not rack and torture
words to punifli the fabjefi.
The firft part oifec. 4. of this fiat. 5 Ann. gives a penalty of
5 /. againft any perfpn not qualified for keeping an engine to kill
game, and then proceeds to give jufticcs of peace and lords of
manors power to take away the ganu^ znAfuch engine in the cufr
tody of fuch perfon not qualified to keep the fame : but game^
keepers are all qualified to keep fuch engines, therefore are not
the objcdls of this claufe.
But it is objeGcd, the plaintiff was ufing the gun to kill came
out of the manor of Ringwood: the anfwer is, he, had a right to
\itc^ It any where s and if he killed game with i^ out of the
manor, he might have been convided in the penalty aforefaid,
but the juftice had no right to take the gun from him ; it would
be confounding the right of keeping with the right of ufing the gun
to fay otherwife \ we cannot think the legiflature had any fuch .
meaning.
The a£ls of parliament come from lords of manors themfclves,
who moft commonly furnifli their game-keepcrs with dogs, guns,
nets, ^c. : we cannot think their property was intended to be
put in the power of their game-Jkeeperi to forfeit the fame, when-
ever they might pleafe to exceed their authority under the depu-
tations- By the Jtat. a2 £tf 23 Car. 2. gamekeepers themfclves
are empowered to feize guns. What ! fliall a game-keeper in the
very next manor to mhic have a power to take mv game-heepef^t
guft, if he hippcns to b« trefpafling in my neighbour's manor ?
* this
59^ MicnAELMAs Teilm^ gGeoAU. ij68.
Ma vould be a humiliating difgiace indeedi aod could never be
meant by die legHIatarc; and if ;am^4<i^J were permitted to
feize one another's gunsj there would be a kind of a hrder^viar
among them : if this was a doubtful cafe, we ihould incline to
the (ame opinion wenre of, to prevent breaches of the peace \
but it 18 a clear cafcj- and the gams-h^er is neither witiun die
words or meaning of the Jlat. 5 jinn. r. 14. / 4. Upon the
ii^le we are all of opinion that the gun of a game^iafer of a
nanor cannot be feized either^ mnJo or redatndof or any wien
dfe^ and that the defendant the juIUce of peace had no right to
take away the plaintiflF's gun from him : die rule to (hew caufe
why there fliouid not be a new trial was difcharged. Ftr iofam
' 0WWfn»
HILARY TERM,
9 Geo. IIL 1769.
Freeman ver/us Jones, a furviving Partner with one
Napleton.
The court /^SE upon promifcs for goods fold and deliveied to the de-
»«^*»^to w fondant and one NopUton his late partner deceafed 5 the
SradJnticate declaration was of EaJUr term laft ; in trinity term laft the dc-
to withdraw fendant pleaded a bond given by hind and NapUton in fatisfadion :
9 ipecial j^ Mtchoilmas term laft the plaintiff Teplied to the country : now
pi^ thegr- '" ^^ beginning of the prefent term Serjeant Burlani mored that
neraiifiae. the defendant upon payment of cofts might have leave to with-
draw his fpecial plea and plead the ^^/zfnz/{|^, upon an affidavit
that the fpecial plea was pleaded by the mil»)ke of the defendant's
attorney, and .that the defendant had.a^oodi defence to make
upon the general liTue ; upon, flie wing. oau(c Serjeant7^]pH^
I for the plaintiff prodiKied an /affidavit that the, plain tifF^ only
material witnefs was gone to the /ir^*/i3idSf«i.finQe the iflue joined
laft term. < Serjeant ibiri^^. in anfwer Xaid this, bad often been
donei' where the plaintiff had not been dekyedy a* in, this^ cafe
he had nor^ for the plaintiff could not havetried his.€aii& before
this term.
Hilary TEnfa, 9 C^o. HI. 1769. 392
^ P^r irvf%ifn^^Tht8'has iircqucritly been panted ^ftcr a re^ltca*
tion in fome cafes; but Here the plea goes'to the z&Umz it was
pleaded fo long ago as li(t Trimfy Urm, and the defieodant has
laid by /r//laft Michaelmas ternij and there is no reafon to let the
defendant withdraw this fpecial plea and plead the general Iflue :
the rule was difchlirged^ Slfmtt ClhtJ.
Calteghan^ in Attdrney, Executor, &c. verfits Harris
and Kis Wife. C. B.
^T^HE plaintiff fued out an attachment of privilege whereby the Ac etiam'cb
^ (beriff was commanded to attach the defendants to anfwer "f*^^!?*
the plaintiff in a plea of trefpa(s» and alfo that the defendants \ '^^ ^
anfwer the plaintiff according to the cullom of the faid court in troirer»ftc«
a certain plia cf trovery and for converting of the goods and '• *^'
chattels of the faid plaintiff as executor as aforefaid for one bun- S^^'it
dred and twenty-four pounds. would ha^
clerk-like Ca
The defendants having been an'tfted upon this writ and held hate faid In
to fpecial bail* Serjeant Nares moved for a rule to fliew caufe ff}^-"^
why a common appearance Qiould not be accepted foi: the de- the cafe^^
fcndantsj alledging that the acetiam in this writ doth not pat^- coavtrdug
a^<>r/)r exprefs the caufe of a£lion as the ftatuie of 13 Car* a» SjiJ*^
c. 2. /. 2. dire& ; for that there is no fuch caUfe of aQionas a \^ hii^*
plea tf trover ,• but it ought td haf'e been in a cirtaia. plea oftlref^
pafs upon the cafe for converting the goods and chattels of
the plaintiff to the defendants' nfe to the plaintiff's damage
of 124/.
Upon ihewing caufe it was faid by Serjeant Glynn for the
plaintiff, and refolved by the court, that the caufe of aAion is
fully and clearly expreffedr^ * and' althbugh^the ac etiam be not
exa£lly clericali yet nobody who reads it can doubt of the caufe
of a£Ubn \ befides, fihce* the ilatute of ac etiam 13 Car, 2. the
ftatute of 12 G<9. i. tfap. 29. hath enafied, that no perfoh fliall
be'held to ipecial bail before an affidavit be made and filed of
the caufe of aflion^ which hath been done in this cafej ,fo that
tbe.defei&danrs'have had notice from the affidavit of the caufe of
adUon ) and \£'^hat affidavit be fufficient^ the court cannot admit
•fa conlmon^ppearance. The rule was difchaiged.
NJta; Hifc 4th/eff. ottht'^at. 13 Car. 2. c. 2. was not men-
flontd,'' which, fays, «* This aA Ihall not extend to any attach*
, ^""fnent ofptWle^ if the'fuit &f any privileged pcrfon, and upon
'^nicTf*Ht< otMimiini fuch courfc^ (hall be taken for fecurity
'^ for appearance as hath been ufcd j" fo that it feexbs there is no
occafion
393 Hilary Term, 9 Geo. IIL 17^9.
occafion to infert an ac etiam of the particular caufe of aAion in
an attachment of privilege at the fuit of an attorney who is aprir
vileged perfouj in order to hold a defendant to bail.
Jofeph Hole verfiis John Finch. C B.
The defend- i^HE defendant was ferved with a copy of a Ujlatutn capias ad
cd«ritha^I rejpondendum by the name of Richard Finch: and having
pUs by tlM entered a common appearance by his right name John Finch, the
Si'ch^^ plaintiff declared againft him by his right name John Finch.
•p'^"b* Upon an affidavit made by the defendant that he was ferved as
bis right aforefaid, and with a notice at the bottom of the faid capias di-
"T^**^» reded thus, viz, Richard Finch, you are ferved with this pro-
idaiiitifrde- ccfs to the intent that you may appear, ^c. and that he had
citees againft not been ferved with any other procefs at the fuit of the plain-
him by his ^jff Serjeant Nares moved that all proceedings might be Hayed
Tight name, -'. •'i.^ ji_j i^if >■ ° '
J&n; the for irregularity, and had a rule to fliew caufe. .
court will QOC bterpofe ia a fummary way and (et afide the proceedings of the plaintiff for incfalarity.
About the fame time a fimilar motion was made in a caufe of
Jack/on verfus Doleman, dodor in phyfic, C. B.
So where a The defendant was arreflied upon z capias ad refpondendum^
Saawwig wherein his addition was efquire^ and he gave a bail-bond by
addition the nanie and addition of Robert DoUman^ doBor in pbjfic^ the
given him in plaintiff declared againil him by his right addition of doQor in
MttTb bail P^sfi^f whereupon it was moved that all proceedings mig^ be
hy bis right ftayed for irregularity. A rule to (hew cauie bfing made, the
*h^'^'*ff court ordered that both the above cafes fliouid come on to be do*
declares"" bated at thc fame time 5 and now
againft him by hit right addiibn, the court will not interpofe upon motiom
Serjeant Bur/and (hewed caufe for die plaintiff HoU.
The pbje£lionis, that the capias is againft Richard Finch^ ditt ,
' the defendant has appeared by the name of John, and the plain-
tiff has declared againft him bv the name of John, and now the
court is dcfired to ftay the proceedings for irregularity. This is
an unfavourable cafe ; the merits are not at alt in 4]ucftioii; it
is a motion to delay juftice ; and if the plaintiff's proceedings
be bad in point of law, the defendant may take advantage
thereof by pleading ; in the prefent cafe he may crave oyer of the
6 Mod. 28. original writ; and if there be a variance between that and the
sSaJk.6s8. count, he may pfead it; and there is no cafe like this to be
*M*od 6 ^^^^^ whertver the court ftayed proceedings as for an irrcgu-
*/***' larity upon a motion 5 if there 19, it is incumbent on the other
fide to Oiew it,
I Scrjcaiit
KjLASi'iTji^Mj gGeoAlL 1769. 394
Serjeant Jephfin (hewed caufe for the plaintiff Jack/on.
Where the return of the capias ad rej^ndendum is wrong;
where there are not 1 5 days between the tefie and return ; where
the notice for the defendant to appear is wrong and not agreed
able to the a& of parliament, or where there is no attorney's
name to the writ, the court upon motion generally fets the (ame
afide for irregularity ; but I cannot 6nd that the court ever fet
afide proceedings in a ^aufe upon motion^ for a variance between
the capias f or the vnrit and the count $ the old way of declaring
was to fpread out and repeat the whole original writ in tlie de-
claration in all a£lions whatfoevcr, until the order made by this
court in Miciaelmas term 1664, fe^. 16. whereby it is ordered,
** For avoiding of long and unnecefiary repetitions of the ori-
<< ginal writ in adiions upon the cafe, and perfonal a£lions upon
** penal ftatutes, that declarations in a£lions of trefpafs upon
** the cafe, or perfonal anions upon any general (latute^ namely
*< hue and cry, monopolies, and for fuits in the Admiraltv, and
** fuch like other than debtt repeat not the original wnt, but
** only the nature of the a£tion,. viz, A. B* was attached to afi^
'* fwer C. D. in a plea (jf trefpafs upon the cafe; or in a plea of
<< trefpafs and contempt againfl the form of thefiatute!* And when
the whole original writ was fo fpread out on the roll, together
with the count thereupon, if the count varied from the writ in
any thing material, it was ufual for the defendant to plead in
abatement or demur for the variance. In this cafe the defendant
ought to have craved oyer of the original writ, and pleaded the.
variance if there was' any.
Curia — At this day the courts of juftice interpofe in a fum- .
mary way, and in njany cafes fet afule proceedings upon mo«
tion, where the law hath provided other remedy $ as where they
fee that a plea is frivolous and dilatory, and that there is no
ground or foundation for pleading fuch (ham plea, they will fet
it afide ; fo they will upon motion fet afide executions irregularly
ilFued and executed, and order the money levied thereon to be
rcftorcd to the party, where the only remedy formerly was by
audita querela; but neither of the cafes at bar are fuch as ought
in juftice to induce the court to interfere in a fummary way^ and
ftay or fet afide the proceedings for irregularity.
Fontierly, when the whole original writ was fpread in the fame
roll with the count thereupon, if a variance appeared between the
writ and count, the defendant might have taken advantage,
thereof, either by motion m arreft of judgment, writ of error^
plea, in abatement^ or demurrer. Cro, Eliz. 829. 285. 198* 330.
a Lutw, ii8i. S.P.— But afterwards it was detenhiuedj that if
• the
If 1 defen<i. the dcfctidaot will take advantage of a variam^ between the tpnV
tot will take ;ind countf he muft demand oyer of the writ and (hew it to the
a1SriI?c^ cwrt. 4 Mod. 246. EtUry r. Hicks W Mr. 2 SalL 701. 658.
between the 6 A/l^i 303. And a cafe in MS. of Grofs v. Lee^ which was
*"** "fcl replevin by Writ for taking his cattle^ the ^w»/ was for taUng a
muft crave i^^ ^fit there was a demurrer for tho variance^ but jui^ment
oyer of the was for the plaititiflF. Parker C. J. cited Saik. ^ou, and the
TrtJdh ^^^^ ^^^^ ^^^^ defendant cannot take advantage of a variaaa
the Kcord. between the writ and count without (hewing oyer of the writ.
Ante, 85.
iaB.R. There is no equity, to authorise us to interpofe in either of
thefe cflfes; and if the defendants in either cafe can take any ad*
vantage rigore Juris, let them take it. One reaion why the
court (hould not intprpofe is, that after the defendant hath ap-
peared and is in court, there is an end of the mef/te procefs i and
if the defendant craves oyer^ it mud be of the original writ^ he
cannot have it of the mt/ne procefu and if applicarion wa& to be
made to the M-iftcr of the Rolls, he, certainly would not refnfe
to order right originals to be made out in both thefe cafes. The
rules muft bo difchargrd, but without cofts« this being a new
cafe* Per totam curiam.
Rigg verfus Curgenvcn. C. B.
In an aaion A CTION of debt for 27,000/. brought againft the defendant
upon the «a- f\ ( upou thc^/i/. 2 G«. 2._ for . the morc cfFeflttal prevcating
ing^a^^fo^T bribery and corruption in the elc£lion of members to ferve in
to give hit parliament) for corrupting and procuring 54 voters to give their
^^•***f* votes .at the lad elcftion for the 'borough of Mitchell in the
mem'^of CQV^Oty of Cornwall^ wherein the plaifltiff declares, that whereas
pariiamenc, JilUchcll i^ an auticut borough, and, for a long time paft» two
ceiTarT* ""^ burgeffcs thereof have been clefted and fent, and ftill of right
prov!?that SUgl!^ .^0 .!^^ eie£led and fent to fcrve in parliament for the £iid
theperfim l^orpugh J and whereas, on the lith of March in the eighth year
ri"htto*ot^ of his prcfeiit majcfty's reign, the king's writ under his great feal
iyfTMeci put of his court of Chancery, direfled to the then (heriflF
(jf Qqrn^qall^ xeciung .that whereas .by the advice of his council,
i^c. he })ad prdered a parliament to be holden at Wejtminjler on
the i(Dth Avi o^Mqy then next cnfujng, the king by his faid
wiit commanded the ihcrxff to make pfoclamatioh (fo fets out
the whole writ); which writ on the 14th of March in the fame
ycjir was delivered to Francis Kirham efq. then and ftill (herifF
of Comwatt, to'be .executed id due form of law; by virtue
vi^herepf the Iheriff, on the faid 14th of March, made his pre-
^pt in writing,' fealed with the feal of his ofiiCc> dire£ied to the
pqrtf^tve of ihe borough of Mitchfll, for the eleAion there of
t^^O'burgcflesrby viitue of which precept^ on the 2tft day of
March
Hilary Term, 9 G^o. III. 1769* 396
March in the fame fear at Mkchell^ an ekdbn of twoburgefliet
for the fame borough was had, which faid ekiflion was the firft
and next eleflion of burgcifcs of the faid borough to ferve as
Imrgefies of the faid borough in the parliament of this kingdom
after the committing of the f<*vefal oflFences hereafter men-
tioned ; and the faid James Rigg further fajTS, that at the time of
committing the feveral offences hereafter mentioned and before^
and from thencefotrth until, and at the faid elc^iion, Jamu
Scawen and John ^tephenfon were candidates, thac they might be
eleded and chofen to ferve as burgefTes for the- faid borough at
the ^forrfaid then next parliament, that is to fay, at the borough
of Mitchell aforefaid \ and the faid James Rigg further fays, that
the faid William Curgenven, not regarding the ftatute in this cafe
lately made and provided, nor fearing the penalty contained
therein, after the 24th day of June 1729, and before the> faid
eleflion of burgefles in and for the faid borough, and whilft the
faid James Scawen and John Stephetifon fo were and continued
candidates as aforefjid, and before the fuiiig out the original
writ of the faid James Rigg^ to wit, on the Jlrfi day of March in
the eighth year of the reign of his prefent majefty, at the borough
df Mitchell aforefaid in the faid county, did corrupt one Peter
Buddie^ the faid Peter being then and there and from thenceforth
until and at the time of the eledion aforefaid having a right to
V7tc in the /aid ele^ion, to give his vote in the faid election for the
faid James Scawen and John Stephen/on, that they might be chofen
burgefles to ferve as burgefles for the fame borough in the faid
then next parliament of this kingdom, by then and there giving
to the faid Peter Buddie a large 4um of money, to wit, the fum
of five pounds and five {hillings of lawful money of Great Sri"
tvin^ as a gift or rewani for his the faid Peter Buddie*^ giving his
\"Ote as aforefaid for the faid James Scawen and John Stephlnfim
at and in the faid eleftion, contrary to the form of the ftatute in
fnch cjfe lately made and provided j whereby, and by force of
the faid ftatute, an a£(ion lia;h accrued to the faid James Rigg to
demand and have of the faid William Curgeffven 500/., part of
the faid 27,000/. And the faid James Rigg further fayst that secmi
the faid William Curgetfven^ -not regarding the (latute in this cafe couat.
'lately made and provided, nor fearing the penalty contained
thtrein,- after the 24th of June 1729 and before tne faid elec-
tion of burgefles in and for the faid borough, and whiift the
faid James Scawen and John Stephenfin fo were and continued
candidates as aforefaid, and before the fuing out the faid ori-
ginal writ of the faid Jasnes Riggt that is to fay^ on the iaid firft
day of March in the /aid eighth year of his bid majefty's reign, at
the borough of Mitchell aforefaid m the faid county, did corrupt
one Peter Buddie, he the faid Peter Buddie then and there, and
from thenceforth until and at the time of the election afoFefaid^
having ti fight to vote at the faid ele£iion, to give his vote for the
fame James Scawin and John Stephen/on in the faid cleAion, that
they
393^ Hilary Term, 9 G^o. III. 1769.
they might be chofen burgefles to ferve as burgeffes for the faid
borough in the faid then next parliament of this Icingdom, by
• Vanes then and there * agreeing to give the faid Peter Buddie a large
from the fum of money, to wit, the fum of 5 /. and 5 1. of like lawful
coont- money, as a gift or reward for bis the faid Peter Buddli^ giving
his vote as aforefald for the faid James Scawen and John Stephen-
fott2t and 10 the faid ele£lion, contrary to the form of the ilatute
in fuch cafe lately made and provided \ whereby, and by force
of the faid ftatu'te, an adion hath accrued to the faid Jma
Rigg to demand and have of the faid William Curgenven other
500 A other part of the faid 27,000/. (there are 52 other counu
in the declaration exa£lly the fame as the two counts above
mentioned refpe^ing Peter Buddie^ differing only in the names
of 26 other perfons corrupted by the defendant, among whom
is one William Hotfkin in the nth count, for which the plaintiff
Bicaai. had a verdict): Neverthelefs the faid William Curgenven^ iX*
though often requeded, hath not rendered to the faid James
JSiig^ the faid 27,000/. or any^part thereof, but liath hitherto
altogether denied and (I ill doth deny to render him the fame,
whereupon the faid James Rigg faith that he is injured, andbath
damage to the value of 100/.; and therefore he brings fuit, Ur.
The defendant pleads nild^Uty whereupon iffiie is joined.
This caufe came on to be tried before. Mr. Jufticc Willesziiht
laft fummer aflizes for Cornwall^ when a verdid was given for
the plaintiff on the firfl and eleventh counts, fubjefl to the-opi-
nion of this court on the following cafe, vi%*
That the plaintiff on the trial of tins caufe proved the writ
and precept as mentioned in the declaration, and that James
Sca^eri and Jck.'t Stepbetifon, efquires, were candidates, as
therein mentioned, and that the tight of voting for reprcfcnta-
tives for the faid borough was in the inhabitants payingyiw* and
kt^ and that before the faid return of burgcffes, and whilft the
did James Scawen and John Stcphenfen fo were and continued
candidates, and before the fuing out the original writ of the
• plaintiff, to wit, the /r/l day of Man b in the eighth year of his
prcfent majcfty, the defendant did corrupt the faid Peter Buddie
smd William Hockin to give their votes in the faid elediion for
the faid Scawen and Stephen/on that they, might be chofen to ferve
as burgefles for the faid borough, by then and there giving to
the faid Peter Buddie and William Hockin the fum of 5 /• 5/. as a gift
or reward for the faid Peter Buddie and William Hockin giving their
votes as aforefaid j that the faid Peter Buddie and William Hockin
afterwards voted at the faid eleaioif for the faid James Scawen
and John Stephen/on; but the defendant's counfel having obje&ed
to the aforefaid evidence, as m>t fufficient evidence of the laid
two perfons' right to vote, a verdift was given for the plaintiff
upon the two counts wherein, the defendant is charged for
having
Kjlary TEftM, 9Gif^. Ill* 1769. 39S
Saving cdmiptea the faid Peter Buddie and William Hockin^ fub-
}e£l to tdc opinion of this court} whether the evidence of the
d^iidant's having bribed the faid two perfons to vote as aforc-
tzxig and their having aduallf voted accordingly without pro*
ducfng the poor ratei^ be evidence of their right to vote, as
iigainit the defendant.
This cafe Was ai^ued the 17th of January m this term, hj
Serjeant Davy for the plaintiff, and Serjeant Gijnn for the de«
fendant.
For the plaintiff it was infilled, that it was tiot ncceffary tt>
^lledge in the. declaration that BnMe and Hockin had a right ^
vote^ for the words of the ftatute are, «< Any perfon who hath
*« or claioieth to have, or hereafter (hall have or claim any right
** -to vote,*' ifc. . So thsft if.^. applies to S., who has no right
to vote, and bribes him to vote for C. and A, and i9. a£luall)r
gives his vote lor them, A. is equally guilty under this ftatule as
if ^. had had a right to vote. The cafe of Comb v. Pttt^ S. R.
tried at Weffs in 1763 before Mr..Juftice Wiirmt^ was cited^
'm^ch was a motion for a new trial, and was faid to be etaAlf
like this cafe ; that the declaration in thatc^k was veriatim (ex*
tept in datea and names) thie fame as this ; it charged that itf. B.
had a right to vote, and did vote, but it was not proved at the
trial that he had a right to vote } it was proved that A. B. voted
*)and was received upon the poll, and that the defendant Pitt
gave him nioney to give his vote. The cotirt Of -B. R. held
clearly it was conclufive ^idence againft the defendant PiV/,
and gave judgment for the plaintiff. Lord Mansfield faid, Shall
4be defendant be allowed to defend himfelf by faying i\i^t A. B.
had no right to vote, when it is clearly proved that the defendant
gave htm money for his vote ? Certainly he fliall not. WilttUt J.
faid there could be no ftronger evidence than A> B*s being ad- ^
mitted to vote. This cafe in B, R. was relied upon, as dire£ily
in point for the now plaintiff.
For the defendant it was infilled, that the averment or allega-
tion in the declaration «• that the perfons corrupted had a right to
** vote^ \%. material f znA fuhjtantive^ and mud be* proved ; that
an intention to commit an oflknce cannot be punifliedi but if
thefe perfons had no right to vote, the offence is not committed^
therefore it was neceffanr to prove they had a right, by proving
they were inhabitants of Mitchell^ and paid fcot and lot there.
That fuppofe an a£lion o{ fcandalum magnatum was brought* for .
fpeaking flander of a peer or zjudge^ &c. it muft be proved that
the plaintiff was that great per/on which the declaration alledges
him to be, or he will fail in his adion. That fuppofe it had
appeared that Buddie and HocHn had no right to voce, the decla-
ration would fail, becaufe the averment therein would not be
fupported. That the poll-book is not evidence of a perfoti's
Vol. II. D d . right
§99 Ha Any TeuMi 9 Gee. IIU i j6g^
right U> \<Xtt for ai^ttgh he voted^ it does Dot foUov that lif
had ft right to rote. Soppoie in an a£tion for criminal coawtx*
fation it be proved that the defendant had faid that he had kid
vith ibe t»taintiff*a wire9 thai would not be evidence to be left to
$> jur]r». with^t proyitig.the marriage of the plalntiflF and his
ynife \ and fo it was faid to be determined in a cafe of Dr. itmti
▼• MilUr^ which was an a£tion for criminal converfation with
the pbiatift'ft wife. The proof at the trial was, that when the
4fif^Khat was caught in $ed with ber^ he begged the HoGUm
miRht not know it, and faid, << For God*s fake let it not be
<< known.'' The plaintiff conld not prove his marriage^ and it
, <«ras hcM thit the 4efen4aat'Ss appreheofiona that the nerfbn,
widi whom he vsas caught in bed, was die plaintiff's wife, wis
Aot fiificient tacoovaft him, as there was no proof that hekocw
htst to be fiftch, of his own kaowIe4ge* From this cafe It was
UkAt it foUows that no belief or rcpott diat ^ peHbn has a ri^
-to vole is evidence.
. C^rM--^We are of opinion that .at is not aeoeflarr m thb ^
Jo aUedge in the declaration, or to prove that Budiu and HvJis
had a rwht to vote % that the giving monc j to a man for his vUt^
amd he &odiiig by the prefi£iig officer at the eloClum, and giving
hiS'VOle» which is received^ and not obje^ed to» or contio-
' ^ptrtod, is condiifivc evidence againft the defendant^ and that, n
agamft Um it is the moft dedfive and heft evidence that can be;
-aftd the cafe cited of ConA v. Pkt governs this cafe, and is ex-
ftQly Uke it. As to the cafe mentioned of criminal coavcrlk-
tioft, to be f«irea defendant's faying in jeft, or in loofe rambUng
talk, that he had laid with the phintiff^s wifie, wonU tM »
.fofficieot alone toconviO: him in that a^lion; but if it were
proved that the defeadaat had ferioufly or (blemnlv recognoed
that be knew the voman he bad laid with was the plamtiff's
.ivife, we difaik it would be evidence proper to be left to a juryj
whhgiut proving the marriage* We think that the pioof that
thcfe two perfons voted at the eleftioQ. smd their'votes not then
difputcd or controverted, is evidence of their havbg a right to
.vote» pvoper to be left to a jury; although it be not tm^ifive
evidence of fueh their right. Judgment for the pfauntiff|ir
-4fft4m ^uriam^
feASTER TERM^
^Geo. III. 176^
Holder^ on the Demtfe of Sulyard^ Efq. Lord o^
the Mtoor of Haughleyin Sufiblk, verfus Prefton;
|7|ECTM£KT of copyhold lands held of the manor of
Jlr HaugUej^ tried at the laft affixes held for the county oif
stifolk^ when a verdiQ was given for the plaintliF, fubje£l to the
Opinion of this Court upon the follo^iring cafe; which ftates^
That Jatms Andreva cXttV^ being fei&d in fee of certain a eopf-
copjhold lands held of the manor of Haug^lej with it^menibers ^^f* ^^*
in the county of St^olt^ on the ift of September l^z^ duly lur<> [heufeS^
tendered thie fame m open court to the ufe of his will ; and after- hii wUi, and
warcfs by his will duly executed did ^rder and direff, that Join **y **" "^
Caifiam efq. and £dioarJ Coldham^ or the funrivor of them» or dii^, tw9
the executor or adminiftrators of fuch furvivor^ fliould (among porfoai to
Other things) make fale of the faid copyhold premifeSt and apply ^^'> '^'^
aiid difpole of the monies ariGog thereby lor the intents and ^^es atif.
purpofes in the faid will mentioned. That the faid John CanSdm lag thereby,
and Edward Coldbam^ by virtue of the faid will and furrender to ^'^^^^
the ufe thereof, did by deed indented bargain and fell the fai4 ^ifj the/
copyhold premifcs to liichard Ray efq. and his heirsj to hold to nar f«li
him the laid Richard Ray^ his heirs and a%n8, of the lord of J^^mlt-
the {aid manor, according to the cuftom thereof, by the rents ^/and°Use
and lenrices due and accuftomed for the fame \ that at^a general lordfluihui-
court-haron holden for the faid manor, the death of the faid 3^*,2!dISu
James Andrenm was prefented, and at that and two fubfequent have but me
courts proclamations were dulj^ made for his heirs to come in ^^e.
and be admitted to the faid premifes ; that at the lad of the faid
three courts the iaid Richard Ray perfonally attended with the '
faid deed of bargain and fale, and craved admittance thereooi
which the lord of the faid manor refufed to grant, inCding ^hat
the f^id trujiees (hoUld have come into court and been admitted
to the faid premifcs previous to their making fale thereof, and
.paid a fine for fuch tbeir'admlflion; that a fourth proclamation
D d 2 was
401 Easteh T^rm, gCto. III. 1765.
tRras made at a fubfcquent courts and a warrant of (tituH
awarded, and duly executed.
Tl^at the firft perfon admitted under fuch bargain and fale
was in the year 17039 and that between, that tiine and the year
1760 feveral perfons have been admitted under fuch bargains and
^ fales, without the truftees of fuch wills having been previouflf
admitted ; and that during that period no! perfon claiming under
fuch bargain and faie appears to have been rcfufed.
This cafe was ai^ued lall term by Serjeant LW^i for the plain-^
tiff*, and Serjeant Glynn for the defendant ; and in this term
Serjeant Whitaher argued for the plaintiff, and Serjeant Forfer
Vas prepared for the defendant \ but the court without beanhg
him .gave judgment for the defendant.
CttT/^i— -The queftions for the confideration of the eourt are,
Whether Mr. Ray^ the purchaier of thefe copyhold lands, was
entitled (under the furrender, will, bargain, and fale) to be ad«
ttiitted to the fame on payment of one fine ? or, Whether the
truftees under the will mud firft be admitted^ and then funender
to Mr. Ray ?
We are all of opinion that the lord of the manor ought to have
)^dmitted Mr. Ray to the copyhold lands in queftion ; we had very
little doubt of this upon the firft argument ; buc as counfel were
retained on both fides to take notes, and the parties dcfired a
fecond argument, wbpermitted an u/teritu concilium i and having
now hcatd brother Irh'ttaher^ who has faid all that can be faid
for the plaintiff, we are all very clear (without hearing brother
Forfter) that judgment muft be for the defendant, and that the
lotid in this cafe is only entitled to one fine.
Copyholders, anticntly, . were little better than flaves, or tlie
tattle Upon the land j their tenure originally (moft probably) was
in villenaget by the help of reafon, true religion, and fcicnce^ we
by degrees emerged from that ftate of barbarity } villenage be-
came copyholdy but ftlU the tenure was at the mere arbitrary will
©f the lord ; at length copyholders got more permanent eftatcs,
like freeholds : anticntly their lord might ouft and turn them out
when he pleafed : his fines were arbitrary ; but fincc we arc be*
come more civilized and free, the lord cannot at this day fet a
fine at more than two vears value upon an admittance on an
alienation ; aJmtUance formerly was of grace and fauour^ now
it is of riijht : the lord took \i\%flne for the admiltanct in nature
of a rtUefi it was a boon for having admiited the tenant, and the
adtnlUafwe is the true parent of Hat fine ^ for he could have no
7&;^ without admittance* 4 Rep. 28. «.
If
If a copyholder furrenders to the ufe of his will, and dtvtfes
Co i/. B. and his heirs> the will only doth not pafs the eftate< but
the furrender and will together transfer the eftate. The legal
eftate in iiis cafe was in Mr. Andrews the devifor until his deaths
when it defcended to his heir» in whom it now continues until - *
the admittance of Mr. Ray the vendee under the order and direc-*
tion of the will. So in the cafe of an alienation the copyhold
eftate always refts in the furrenderor until the furreuderee be. ad-
mitted tenant. 4 R/p. 23. a. Fitche's cafe.
It is obje£led for the plaintiff) that the truftees (who have no
eftate or intereft given them by the will, but are only ordered
and dire^ed to fell) ought firft to have been admitted^ before
they, could have power to fell to Mr- Ray. In anfwer to this we
are of opinion, that when the devifor died the power to feU was Cro. Jae«
inftantly in the crudees, and that where a rnatl by his will gives '99
.power to fell, the lands defcend to his heir until that power be c^utJJ^
executed. There is a great difference between a naked power and b. 271. b. *
VL'vtfttA intereft: upon z naied power given to sl wife, (he may
fell to her hujband ; in the prefent cafe, a mere naked power is
given by the will to the truftees to fell, and when the vendee
comes in, he is in under the furrender and the will, as much ts
if he had been exprefsly named in the will* ^
But it is obje£led,|How can a man fell when he has nothing in
the lands ? In anfwer to this, fee Co. Lit. 27 r » ^. The commif- s«e Atkms
fioners (in the cafe of a bankrupt feifed of copyhold lands) by 95*
their bargain and fale put an eftate therein in the alfignees, ^."c^V
although the commiffioners were never admitted, and the af- 50! fc«.
iignees who are bargainees or vendees take from the original
owner of the eftate.
We think thefe truftees have no right to be admitted tenants
. eitherin law or equity, becaufe they have no intereft, but only a
. mere naked power or authority. We (ball not take notice of the
cafe in Cro. Jac. 199. becaufe we think our determination wants
no cafe to fiipport it ; as Mr. Ray the vendee came in upon the
third proclamation and defired to be admitted, he ought to have
been admitted upon paying a reafonable fine to the lord, who
has no hard (hip in this cafe. Judgment for the defendant per
tQtam curiam*
Dd3
Villcrs ti^ij^i.Mbnfley. G. B#
Cafe opoa a ii CTION upOti thc Cafe agtiinft the defendant for itialictonSy
Jj^l?/^, • *^ witing and piAlifliing a libc! opte the plaitttiff in (he woid*
letter that lbUowing> ViZ.
pkiinti/f
brimftalL. " 0*^ f^Hl^rs, h fttOng of brilllftoitC JMl faicll,
and had the ^' As if not long fince you had got out of hell i
icclu tt But thU datnnabte inicll I no longer can bear,
** Therefore I define you Vftyxili come no more here i
^ You old ftinking, old nafty, old kchjMtoadj
<< If you come any more, ypu (hall pay for your boardi
(( Toull tiierefore take ^is as a warning from me,
♦« And net er more enter the doors, white they beltmg to J. P,
1* Wilncoati Dfcemher ^^ 1767."
The dtftttdant pleaded Not guilty : a verdift waa fottfid for
the plaintiff and npence damages, at the laft afltzet fer the
county of W^grmick. And now it was moi«d by Serjeant An"-
hndj in atteft of judgment, that thia was not fueh a IHsel for whidi
an action would lie ; that the itth is a diftemper to whieh every
family is liable \ to have, it is no crime^ nor does it bring any
' di&irate upon «i man; for it may be innocently caught or takca
by infe€|ioni iSxefimHpn% or % MfUfivtr, are muthwwfe
dilltmpers ; the itci i^ not fo deteftaUe or fo eonta^ous ae tlth^
of themj fbr it is not communicated by iixt air, but by tontaft
or putting on a glove, or the dothes of one vrfio has die tirA;
»nd although it be an tnfeftious diftemper, ydt it implies no
$fei Burro. ofFcnce in the perfon having it, and therefore M aftion wfll lie
wg'-I?''' for faying or writing that a man has got the 1/^, It is not like
• feying or writing that a man has got Ae le^Jjij or is a t^j for
which an a€llon upon the cafe will lie, hecaufe a ti^ fkA he
remoTed from the foetety of men by the writ dt kfr^ m mvm b ^
1 Rtlt. Abr. 44. Cro. jit. (44. |IW« ai<}. althoi^h it be a Mf;
tural ittfirmity.
»%S0r Lord C. J, --t think this is foch i( ltl)el for whieh aq
action well Kca; we muft take it to have been proved at the trial
that it was publiflied by the defendant malicioujljs and if any man
ddlheratel^ or inalidoujly publiflies any thing in writing concerning
another which rcndtfrs him pdictfhuj^, extends to hinder mankind
from affociating or having intercb\irfe with him, an a£lion well
lies againft fi^ch publiflier. I fee no difFereuce between this and
the cafes of the /f^rofy 2Lnd plague i and it is admitted that an ac*
tion lies in rhofe cafes. The writ delcprofiatnovendo is not taken
awayj although the diftemper Is almqft driven away by deanlinefs.
ilA8TEit TsKM, 9 Geo. IIL I769» 404
mt new-invented remedies ;. the partT muft have the diftemper
to fucKa degree before the writ (hall he granted > which com**
nanda the fiieriffto remore him wiAoutMnj ad UeumfiUtarium Regiftnuii
mI haUtandum ibidem prout moris eft^ ne per commumm cotiverfa* ^tn^
tknemfuam honAnihts dampnum vet perkuhm evemat quov^modd. ^ '*
The degree of ifpro/y U not material $ if yoa fay he has ttie le-
firotj it is fuficient, and the adion lies : the reafbn of that oafe
lippnei to this. I do not know whether the ifci^ maT not be coiiv*
iiraoicated by the air without oontaQ | it is faid to ne occafimid
by ammaUtila in the fkb, and muft be eured by outward appli-
cation. Nobody will eat, drinki or have any intercourfe with a
perfen who has the itch and ftinks of brimftona ; therefore I think
this libel adionahle, and that judgment muft be for theflaittdK
CRve-^l am of the fame o|Mniofi> that dils is a Tsry maUoiooa
«nd fcandalous libel.
Baihmfl Ji-rt wi(h this matter was thoroughly gone into, and
"more fofemnly determined i however, I have no doubt at prefent
but that the writing and pnUifliing any thing wluch renders a
man ri^fieulous is aftionabie ) and whether the itth be occafionod
b^ a man's fiiult or misfortune, it is a cruel bhaxge, and renders
htm both-ridiculous and miferable, by being kep( out of all com*
pany : I repeat it, that I wiih there weit feme more feleinn de-
termination, that the writing and puUsfliing any thing whidi
tends to make a man ridiculous or infamous iDUght to be puntflted;
lor faying a man has die iteh^ without more, perhaps an aAion
would not lie widiout other malevolent circumftaiic«i« I ^m of
^e fame opinion^ that judgment muft be for the plaintiC
O^ld J.-»What my brother Baiburfl has fiiid is very material \
there is a diftindion between libds and words i a lUid H puniflN
able both eriminallv and by adion, when fpcaking the words
would not be puniihable in either way ) for fjp^ing the wosds
, rogui and rafcal of any one, an a£lion will not lie ; but if thofe
'words were written and publifhed of any one, I doubt not an
•Aion would lie. If ont man fliould fay of another dut he *has
the iteh, without more, an adion would not lie ^ but if be fliouid
write thofe words of another, and publiih them nuiUAmJIft as ia
the prefent eafe, I have no doubt at all hut the aAion well lifs.
What is the reafon why faying a man has the A;^^ Qtplagu$\M
a£kionable f it is becaule the having of either cuts a man oiF from^
foclety ; fo the wrtttng and pt^blifiiing fimlicipujiy that a man has ,
the iteh and ftinks of brimftone, ct^tt him o# from fixriety. I 5^«P- 1^«
think the puUiOimg any thing of a man that renders him ridicu-
lous is a libel and aAionahie, and in the prefent cafe afla4>f
opinion for the plaintiff. Judgn^ent for the plaintiff ^^ /of. cur^
without granting any rule to fliew caufe.
Dd4
405 Easter Term, 9 C^^.IIL ij^gi.
Redfhaw ver/us Brook and others. C 6.
TrcTpafs .HT RESPASS againft the defendants (who are euftom^houTc
agiioft cof- 1 officers) for breaking and entering the plaintiff's boufe, and
effictrtfor fcarching every place therein for prohibited and uncuftomed
eotering^ goods, but they found none. Upon Not guilty pleaded, this caufe
S^fifwd '^^^ *''^^ before Lord Chief Juftice ^ilmott when the jury gave
Searching & TcrdiA for the plaintiff and 200 /• damages*
for rroW-
wh«^e*** Serjeant Davy now moved for a new trial, alledgiog that the
found none; .damages were exceffive, for that it appeared upon the trial that
the jury And the defendants had not done damage to the plaintiff to the value
ttagM***" ^^ ^^^'* whereupon the Lord Chief Jufticc reported as follows,
agaioft v/2*
tbeniy
du"wf *^ • '^^^ proved for the plaintiff^ that on the 2d of Afiy the dc-
littie or DO fendants came to the plaintiff's houfe, and defired to fee everj
namage. place Uierein, and to fearch for prohibited goods, which they did,
Kfufcd ^'^ ^"^ opened many bundles of goods, but found none fuch ; then
they defired to go' into the cellar,^ but the door thereof being
locked, and the plaintiff himfelf being from home, and having the
•key of the cellar door with him, his fon fent for a blackfmith,
and had the door opened, whereupon the defendants entered the
cellar to fearch for cambrics and prohibited goods, but found
none; plaintiff's fons then told the defendants they had done
the plaintiff great wrong, and would be brought to juftice: the
defendants continued the fearch about twenty minutesi and then
departed. It appeared they did very little damage, and behavnl
well enough. They did not pretend to have been informed by
?ny body that the plainriff had anv prohibited goods in his houk^
nor was there any proof of any fuch information at the orial. This
is the fubdance of the evidence given at the trial. And
Although I myfelf may think ioo/- too large damages, yet
how can we draw the line to fix the meafure of damages in tnis
cafe ? I cannot fay the jury have done wrong } and perhaps if I
bad been one of the jury, fome of them might have convinced
me that.aooA damages arc little enough, 1 am not diffatisfied
with tlie verdift.
Clhe J.^As^my Lord Chief Jufticc is not diffatisfied, howcaa
we fay that thefe damages are too large ? A rule to (hew caufe
why there fliould not be a new trial was tcfixtcdperMamcttricfm^
aad Serjeant ^axy took notliiug by his motioiu
[ 4o6 ]
TRINITY TERM,
gGeo. IIL lylSg^
Leaiingby vcffus Smith, Savilian ProfeOfor of Geo«
metry ia the Univerfity of Oxford and Do£lor ia
Phyfic. a B.
I HIS was a rule to fiiew caufe why claim ofconufanci of diis CoBttfnct '
_ caufe, prayed by the Earl of Litchfield^ Chancellor of tht o^piwire-
strnverfity nf Oxford^ Ihould not be allowed, which was made uni'^aiy*^
upon themotion of Serjeant Jephfon the 14th of ^ri7, the 3^ Oxiw^^ht^
day in the laft term. Upon proof by affidavits that the defend- *"»fc^twa«
ant was a matriculated member of the univerfity, Savilian pro* chUmed in
fefior in geometry, and refident there, and upon producing to the doe fono,
court a letter or warrant of attorney, under the hand and feal of ^'^^^
the Earl tf Liuifield, appointing jt. B. his attorney to claim *
Wiufance in this cafe for the univerfity^ alfo the letters patent
under the great feal of King Hen. 8* bearing date the ift day of
AprU in me 14th year of his reign, whereby (amongft other
things) he granted to the tl^en chancellor, m&fters and fcholars
• of the univerfity of Oxford and their fucceflbrs, that the faid
chancellor and his fucceflbrs, or his deputy or commtflary for the
time being, ihould have the full conufance and examination, hear-
ing and determination of all pleas, as well of debt, trefpafs contra
pacemy and other inifdemeanors, as of mirprrfions, extortions, con-
fpiracies, confederacies, maintenances, falfe allegiances, accounts,
contra£l8 and injuries whatfoevcr, and of all other articles which
may fall into fine or redemption, or into other pecuniary punifli-
ment, and of ail other pcrfonal contrails, pleas, and plaints, and
other caufes and matters whatfoever, by whatfoever name they
are.called or may be called, although they might concern the
faid late lord the king, his heirs or fucceflbrs, (aflTiaes and pleas
of freehold only excepted,) within, the vill of Oxford^ &c. or
clfewhere within the kingdom oi England^ after what manner
foever arifing, done or committed, as well at the fuit of the faid
late king, his heirs and fucceflfors, as at the fuit of the party, or
in any other mannei^ whatfoever where the fcholars, or their
(ervants or minifters, or any other perfbns^who ought to enjoy
any
467 Trinity Te4m, 9 Geo. Ill, 1769.
any privilege of the faid univerGty of Oxford i which, for the pri*
vilegcd perfon the faid chancellor, commifiaiy, or his bcum tencns^
or their fuccciTors for the time b^ing, {hall or will claim, lie. {^r«
iic. And alfo upon prdchicing ta the court an exemplification of
an a£l of parliament made in tne 13th year of Queen EUzakti^
confirming the faid letters patent; and alfo an entry of the claim
of conufance in this caufe upon a roll of laft £afier term, whercia
the charter and the 2A of parliament are (hortly aotfuJIy fi,ated»
and it is fet forth, that no fcholar (haU.be fued, arreited, or im^
pleaded any where oqt> of the univcrfity, for whom the chancellor
fliall claiir. this privilege \ then recites that this a£lion was com*
pienced^ and the defendant ferved with a capias (as hereafter »
mentioned, the copy of which wdt is annexed tatli«*iatd'XoU}|
then fets forth, that the defendant is a matriculated perfon, &»-
vl/i^n profefFor, and refident In the univerfity, ai^ concludes with
praying that tifis court will remit the conufance of this cttiie to
the chancellor of the univerQty, without fetting forth the decUv
ipatiou which had been before delivered in the cauie.
Jtijiff the 3d ill tliis term, the plaintiff, on (hewiitg caufe, pre*
^uccd affidavits that he is a builder, and that the defendant waa
indebted to him in the fnm of 2)9/. 11 s. 61 J, for work and
labour, and materials found, in building and repairing the honfe^'
of the defendant in OxforJ^ who has paid the ptatnttff 91 /. m
' part thereof, but has refafed to pay the remainder $ dhat the
work has been fairly meafured and valued, atid there rpfta d«e
to the plaintiff 13^8/. and upwards ; diat in order to recover tUa
^ebt, the plaintift|
On the 2 1 (I of January tjSpf fqed out a eemmoa c^fmfMi
rejpondtndum againft the defendant, to an(Wer the pkiotUF is
fladto quare cfaufum fregit at Oxfyrd^ tefted the agthor Jfa wii w fc 'i
J 76S, the lad day of Taft Michadmas term, and returnable 01^
ihc morroKv of the Pi4rtficatum (fthe BkJ[dld9ff^ thi ^4^Mni^
ary 1769.
Tiiat on the 24th of Januatj fjS^^ a copy of the ^^fl^ ^i*^
ferved upon the deifendant, who entered his appearance with the
filazer of Oxford on the 5th of February 1769.
' That on the 3d of Jprit^ in the vac^thn after IBbrj term M,
the plaintiff's attorney delivered to the ddendant's ataDtney a
declaration intitled of that term, in an aftion v^fon the e^fe apoQ
mjfun^t^ for work done and materials found aa above*
On the 1 2th of ^rtT 1769^ the firi^ da^ of Jh^ /ifm^ a fi^
(0 |>lead was given, and that
On
Trinity Term, 9 Geo, \\l. 1769. 49^
' On the t4th of Affile the tbiri day of the f4me term, and not
hfir€y appHcatton was made to this court hy the attorney of the
chancellor of the nniverfity, claiming this conufance, and prajing
the fame might he allowed, when the rule to (hew eaofe betore-
mentioned was made on the motion of Sefjeant Jfpt/w as abo?e,
nad on the 3d of Ju$u in tbi frifint Urm this matter was debated
by Ghfnn and Jifijin Serjeants, on behalf of the uniTerfity, and
* by Harti Serjeant fbt the plaintiff; and after time taken to con-
dicier whether the chtm of conufance Ihould be allqwed, the
^ourt on the 14th of June^ the laft^day of this term, ^aye judg*
ment agalnft allowing thereof to the ttkOi following :
Wilmt LordC. J. (after ftating all die fa<^s exa£bly as above} Judgmemor
faid to Ais cftft : ^ thectutt
Theqneftion is. Whether this claim has been made xadu^
firmj and in due titm? an4 we are alt qf opmion that it is defecr
txvein both.
The courts of Weftmin/hr-hall have in all times been anxioni
to.reftrain and curb inferior jurifdi£lions, and to bring the fub-
icft to the common law courts here^ for the obtaining of juftice,
\ can eafily difcem very proper motives in the courts for fuch
their cotiduft : there had been great power given from the crowa
. to great men, which occafioned much ppprefBon, s^nd made
jieople look up to the king, and deilrous to have jtiftice in his
courts, whtdi is more impartially adminiftered there than in in-
ferior jurifdiftions ; this is the reafon that induced the fuperior
courts to uke deJFendants out of inferior courts, and to lav dowii
very ftridl and fevere rules to keep the plaintiff to the fup(rior
jurifdiAion, which he had eleded and chdfcn, although the in-
ferior jurifdi&ion proceeded 'in the fame manner according to
the rules and maxims. of the common law i fi fortiori to be more'
ikAdt to fee that the claim be made in duefycm and time, when, it
is to fetch the p%rty, ;|nd conufance of m caufe to an inferior
ittrifdlftion that proceeds by a different law and mode of (rial.
This grant of connfance of pleas to the nniverfity would have
been void without 4n ad of parliament^ for the crown cannot Hard 501.
"•jant conufance of pleas to proceed by any other manner than
^y the rules of the common law, and theref/nre the ftatute of
13 Bli^. was made to eonl^nn this chatter to the uoiverfit j.
s
Although I rqpurd the dvit law, yet I hold it as pMff. in
Comfiarifon to the law of the land an4 a trial by a jury, therefore
am inclined to keep ^ tight hand upon this daim^ iiccording to
. |he rtiks laid down by our ^cdece^^
None
'409 Trinity Term, gGeo. III. 176^.
' None whofoever have greater regard for the uoiFerfifte$ than
we oil have; I may fay, we have filial piety towards them; they
excel in all fcience whatevei\ and fiiine with brighter luftre than
either the Roman , Grecian^ .Egyptian, or Alexandrian fohools; they
are (tars of the firft magnitude, and although I fee fome fpecks
in them, yet I fee more in others ; and if there could be any
partiality in this matter we fliould ali have bcei^ with them, bttC
we are bound to deteroiioi;. by the ftrici rules laid down by our
predeccflbrs.
As to this claim, at,fidl reading thereof it feemed to me to be
imperfeR^ and not entered in due manner and form; it is drawn
after the entry of the claim in the cafe of Hayes x* Long^ C 5.
Ante^jio. Tnft.C Geo. 3 ; and if the claim in that cafe had been allowed
upon debate, I (hould have been weighed down with the autbo-
. rity ; but the only point in queftion there was. Whether the de-
fendant Long was rejident in the univerfity ? and whether the
claim was made in due manner and form, or in due time? was not
at all debated by the counfel or the court. Long was not refi-*
, dent, and thai claim was difallowtd.
The entry of the claim pn the roll in the cafe of Kendrki r*
Kynqftony in Hilary 4 Geo, 3. B> R.f was exaAIy like that in Hayes
V. Long (which fecms to be drawn from it). I was in that court
when a rule to (hew caufc was made why the claim of conufance
Qiouid not be allowed ; but nothing further was done, nor was
the rule ever made abfolute; fo that whether the claim in the
. cafe of Kendrick v. Kynqfion was duly made and entered or not^
. was never determined*
I (hill now confider this claim, how it (tands> and how and
when it ought to have been made*
The claim of conufance in this cafe, is an intervention of a
. third perfon demanding judicature in the caufe, againft the pl;ua«
tiflF who has chofen to commence his a£lion here^ and it is telling
this court they have no right to try the caufe \ and if the ani^
verfity have a right to fuch judicature and conufance, they have
a right to tell this court fo \ but yet the court and the crown are
interefled, becaufe the claim is made againft the general jurifdic-
tion of the king's fuperior CQurt, and againft the adminiftration
of juftice therein, the fineft garland ia the crown \ therefore the
court, as judges between the crown and the Univerfity, muft look
Into. the claim nicely, and fee whether it be made in due^^mt
and time according to the ftn£t rules laid down by our prede*
cefibrs.
. This claim is a demand of fomething quodfthi dehetur^ the con-
fecjuence whereof is^ that it muft be perfectly entered upon re-
cord»
Trinity Term, 9 Geo. IIL ly^g. 41a
cordy muft ftate every thing tbat is to take away the general ju-^
f ifdiAion of this court ; it may be demurred to> or the fafte
therein alledged may be controverted by pleading ; the whole
ought to be fet forth, with all the proceedings in the caufe that
have been bere^ with great precifion. In this cafe the claim was
made after the declaration was delivered.
The period and fituation of the caufe at the time when the
tlaim was made, is very material. A declaration had been deli-
vered on the 3d of Aprils a rule to plead given the i ath oi Aprils
and the claim was made the 14th of Aprils fo that it was necef-*
farv to fet forth the declaration in the entry of the record of the
claim, which is not done; there ought to be no diminution of
^ny part of the proceedings in the caufe, but the whole progrefs
thereof^ till the inftant of the making the- claim, ought to have
been entered on the to11> fo that the proceedings and declaration
in this caufe ought to have been entered on the roll ; and then
upon the fame roll the entry goes on thus ; viz. And the faid
defendant by A^ B* his attorney comes, (but the defendant fays
tie more, nor makes any defence,) and hereupon comes George
Henry Earl of LitchfieUy chancellor of the fair univerGty of
Oxford by C. Dd his attok'ney, to demand, claim, profecute, and
defend his liberties and privileges thereof; that is to fay, to have
the conufance of the plea aforefaid, (and fo the whole claim is
entered in due form to the end thereof, which concludes thus,)
and the afprefaid chancellor demands his liberties and privileges
aforefaid, according to the form and effed of the letters patc^it
aforefaid, and the confirmation aforefaidy in this plea betweeh
the parties aforefaid here in the court of the lord the king now
depending to be allowed to him^ *a/ heretofore hath been allowed. • Thefe
words fecm
'■ In the cafe, of Wells and Traherne, the claim was- difallowed, ^^^y"^"**
fo that the roll wherein the entry was made was taken away and this cafe,
never filed ; but I have been favoured with a fight of a copy of !>«ca«fcthu
that entry by Mr. Wilmot^ who was concerned in that caufe, J|;*„"y^*
wherein the proceedings in the caufe are ftated in the manner ^a of pai-
and form as I have faid; in Rylej and Appleby y. Storey^ Eajler ^^^f^^f*^
p Ann. Roll 330. the proceedings are there ftated as in JVelh
and Traheme* In Chapman 2nd .Wj/h, Trinity 3 &^ 4 Geo, 71
Roll 2 S^' ^* ^* ^^^ entry is the like as in Wells and Traheme:
(o 3lfo in ■ ■ V. Faufcety Mich, i Geo, i. Roll 613. all thefe
cafes (hew what is to be entered on the roll in making a claim of
conufance.
The proceedings in the caufe fo far as they have gone ought
to be ftited in the fame roll with the claim ; becaufe the court,
if the claim be allowed, does not fo abfolutely difmifs the caufe
that it can never be- brought back again; but it is plain from
many of the old entries that the pax ties have a day given them iri
9 the
411 TRiNiTT.T£itM, 9^^^* HL ij6^.
the court of the p;irty dsimiiig coo ii£»RGCt and if tbai mbsxicir couvi
ihall not do thcm/uJiandJfnidyla(iiQef tbey iOiaU ft tarn agsuu
to the king's coart for jaftice ; after the entry of the allowancQ
of the claim, the further cotrjr upon the fame roll rune tbu^
tua* << E^ fuper hoc idem attornatus eorundem abbacis j| cob-»
<< veotus hie in curia prse&xit diem partibus prsedifitit cocam
<< fenefchallo ipforum abbatis & conventus apud T. infra hon^
*< dredbin praedi£lttm die luaae proximo poft feilum Fenteooftes
*' proximum futurum : Et diBpm ift ftidm aitomato prsdiB^ntm
V Matis is^ cwvtniw quod partibms prsdUlis plma Iff cehns ji^^
** tia inde iMhib€0ttif% aJioqain rediant^ &c« Pqfcb. 17 ]^^ 7^
R^^ 33* Roft' ^^^ 139* ^^ i( appears, that fpr good eaofi)
ftewo to this court, the caufe may be brought back a^jHn, and
a re^fummons may be awarded, and the parties may go on beni
a^n from the period or fituation the caufe was in. at the tiow
Qf the albwance of the claim \ but in fuch cale, if tl^e ftats of
the proceedings at the ti<ne of the ^llow^ig the claim was not |«
be entered upon record, the plaintiff would be obliged to tom^
^ tnetoce another adion, and to declare again for the iaine cauiSs^
which would occafion great delay amd ezpence; but i^ tfaefii
c]»sim$ there muft be no delay whatever \ tht^ (hew9 the sieoeflicy
of dating the declaration in the^eotry on the rolU
It was obje£ied at the bar dn behalf of the Uniyerfiif, Hat Ai
declaration being of Hilarj itrm^ and df Uvempd in the vicaMQ •
few days before Eajltr tenttf thty could not take notice of thtf
declaration, becaufe in that cafe the claim would have appeaval
to ]iatc been made after an imfar/aac^iVfhkh was never ali^wed^
£or an imparlance azmihilates a claim, and tiierefbre they wem
obliged to grant the claim uppn the writ of i-x)^ quarf ckt^um
fregiti and that they came to the court to make it in due time
before tfte luie for pleading waa out, 'vi%. on the 3d day in the
term.
But iii anfwet to this, we think that onder the ptefimt eif«
cumftances of the caufe, notwith(U<iding this kind of imperitoie^
tlie claim might have been entered upoa a roll of Hik^iiw0t^
and an allowance thereof prayed upon the firft day of Bijftm
f£rmr {(ir the delivery of a declaration, (intitled oi JU^ tefm^)
in the vacation siStcfJiilary Uftn^ is a mcrt^hn,* and the r^dn
. ws^ would have been to have fee one jfi^iofi upon anodker, for
the &ke of juftiost and to have feigned thst the clalQei w>os modo
in Hilary termy as the plaintiff had feigned that the declaratioa
was delivered in Hilary term^ when in truth it was delivered
after that serm in time of vacation* Fiiii^a in the l»w is a great
^agi^ian, who never mpkes ufe of his magic but for the fake of
jttllice,. for in JiBi^^e juris femper $Jl ^quitoi; fo that we dnnjk the
declaration and claim might have been enttrcd on a eoU of l^arf
But
TRimTY "Teum^ g Geo. in. 17^. .41a
But fuppoCb the ckim could not be catered as of Hilaff temk^
and that after ^/peeml imparlance it might be made and eotered
of JBafimr ixrm following ; in that cafc» it is as clear as the fun,
that you muft have come the \erjfirjl day of the term to make
the claim; and there is good reafon for this, becaufe yon come
to ftop a plaintiff who is proceeding to obuin juftice in a fnperior
court at gjreat expence.
It was laid for the unifer£ty» that as the &c^fmr day tn the
tern by the mles of the court are allowed to the defendant fof
time to picady that the claim being made on the third day of the
tenxiy was in due time ; in anfwer to this we fay, the time 10
plead after an uuparlofui is (lri£lly on thcjlrfi day oitht next
term, being the aiu datiUp and that the four dajrs allowed in that
ca/e for pleaiding are ex gratia^ and by the pratkice of the court
at to time for pleading \ out this rule does not at all apply to the
f ftiry^ £qi^ /*ia«pr^ ji i| g conoiance*
In this entry of the daim it is difficult to Uy one's finger on
any part of it without pointing out ibme objeoion thereto \ the
durter and the ftatute (being a private tuBl of parliament) ought
to have been fuUy fet fortii ; the court is not bionind to look into
every privaO: charter and a£l of parliament^ and here they are
neither of them fully fet out upon this record. The cafe of Caftle
,v« UithJUdt Hard* 505. kcm$ to be abnoft the firft claim of conu-
iance allowed to the univerfity of Oxjird : diligent fearch ha^
been made for the record thereof^ but we are informed it can-
be found*
The oonadince of pleas is granted by a^ tf parliament to the
imiverfity of Oaffirdf and therefore it does not feem to be neoe£-
fary to (hew that this chavter has ever, at any ^me before, been
allowed by the king's writ, dr by any of his fuperior courts.
The pevfoo who drew this entry of the claim has uken the
caafeup at the return of the writ^ as if it bad flood at that period
at tbe^tiBie when the daim was made, and when the court was
aooved to allow it, viz. the X4th of jipril^ a dedaration as of
Hilary term having been delivered before on the 3d of jipri/g
perhaps be law the objeAion upon the imparlance, and remem-
bered the cafe of Bi$ti v. Graham^ 3.. R. a Geo. a.
BenuHfdm 65, where Page J« obferving that the claim was. not
entexed 00 record, the counfel for the univerfity moved that it
might be entered emncpro ttmc^ which was refufed by the court,
and the daim was difallowed becaufe of laches.
But in the prefent cafe it is faid there is no laches, for that the
declaration was not delivered until after Hilary ttrm^ and that
the
TiiNiTtTsJiM, p&d^IIL 1769/ j^t^
Between John Weller and Elizabeth his Wife, Jdhn
Mercer and Sufannah his Wife, Thomas Fry and
Elizabeth his Wife, Benjamin Fry and Sarah hi^
. Wife, Ana Gripps Widow, WiUiam OkUi the
younger and Ann his Wife, Plaintiffs ; aft J Dovn
cas Baker Spinfter^ Defendant* C. B.
i&ff/i^npHIS is an afiion of trdpafs upon the cafe, wbeidn Jo^ Sn
^ the plaiotiflfs declare, that whereas at die time of *^^^
the federal grieyances hereinafter firftlf, fecondljr, and thirdly The dippers
mentioned, and alfo at the time of the making of the agreement atToiMaie
and the ad of parliaittent hereinafter mentioned, and for a. long j^^ uid
time before, there were and ftill are certam fprings or wells <? Sa their
medicinal water called Tunbridge Wells within the manor of bolfrtDds^ia
Rufthall in the iaid county of Ktnt^ to which faid fprings or SrtSdle
weUs divers perfoos have during all the time aforefaid reforted, d^odwr*
and ftill do lefort, at proper feafons of the year, to drink the ^ ezerdf.
water thereof for the benefit of their heakh } and whereas befipw \l^^
and at the time of ^e agreement hereinafter mentioned certain ai^« aoC
perfons called Sfpers ufed to attend at the (aid fprings or weU%^ Ms ^
and delifer the water thereof to fuch perfons as reforted thereto ^Stwm*
to drink the waters thereofy and had and received from fuch ^ wMOk^
perfonjL fo refotting divers fums of money for fuch their attend- ^2^^
ance and emphjmeni as fuch Uppers : and whereas before aa4 ^*'''
until the time of making the agreement hereinafter mentioned
there fubfifted between Maurici Conjers efq. then lord of the
faid manoi*! ^°^ ^^ feveral freehold tenants of the (aid manor
hereinafter mentioned^ divers difp^tes and controverfied touchii^
and concerniog the (aid fprings or wells ^ and whereas before
the feveral grievaaces hctcaaSttTfirftly^fecondiy^ and thirdfy men-
tioned^ and alfo before the making of the ad of parliament here*
inafter mentioned^ (to wit) on the ai^ ^jtf, Ntvemher in di$
year of our Lord 1 739^ at Speldhurft in the (aid county of K^nt^
the laid Maurice Conyers then being lord of the £iid manor, and
the right honourable WUliam lord Abergavenny^ Sydney. Stafford
Simytte t{q. Is^c.ls^c. Isfc. then being freehold tenants, wh^
then held lands and tenements of the faid manor, by certain
articles of agreement then and . there made between the faid
Maurice Gonyers of the one part, and the faid freehold tenants
of the other part, and fealed with their KfycGdvc feals, the faid
MAurice Conyers and the faid freehold tenants did determine and
finally adjuft the faid di(putes and cnatlers in dtflerence betwcea
them, and amongft other things in the faid articles contained^
the faid Maurice Conyers and (he /aid freehold tenants did ia
and by the (aid articles agree, Tiat n^perfinJh^M he permitted ta
Vol. (!• £ c ^utnd
41^ TxiKiTt Tb&M| 9 &9. IIL 1769J
attend and filhw the empbjment of a dipper tf the /aid nudiamJ
waterSf butfucb asjbmld he chofen hj the Homage at the courts iaron
pti held fir the/aid ^nantr^ and Ar?^ma> fy the ttrt ^ tha JUi
wianorj in vfhich choice and afpaobatiom the tuiiw^ tmdanfnt and
daughters of freehold tenants of the faid enanor JbmU ie tirefomd^
nndfbould notexce^ the nuwber of tfvthtp as hf the fidd attidest
tmongft other things, mpie half appears 1 and wbenat after-
wards tnd before & titpe of tke grfetancts beieuia^ter Jfrj/lfyf
jHconJfyt and thirdly mentionedi bv a certain z€t made in the par-
liament of out bte fovereign lorcl lung George the Second, at a
feffions thereof, }iolden ivi thp 13th year of his reign at We/hmn^
f^ in the count j of MhiHefhc^ intitled An aA ror eonfixtning
and eftablifliing certain articles of Agreement made between
t Maurice Conyers efq. lord of the manor of Rtffiall in the coontj
of Kentf and the right honourable William lord Jlbergavennjy
and other freehold tenants of the faid manor, relating to certam
boildings and inclofores mad6 and ercQed in and upon part of
the waftes of the faid manor, and for making the faid agreemeot
. inaore eflfeftnal ibr the pnrpofes thereby intended, it was and is
amongft other thmgs enaded, that the faid articles of agteemcnt
fe made and entered into by and bet ween the faid Maurice Cmers
and the laid freehold tenants of the fitid manor, and in die'nid
^ before fet forth and recited, and erery artide, claufe, corc-
nant, and ag ie emeni theiein tnferted and contained fbouU bcj
and were by the faid aft ratified, eftabliflied, and confirmed, ac-
eofding to the tenor, purport, and true meaning of the famc« as
by the fim) aft of parliament more fully appears ; and whereas
before the time dF the foreral grievances hereinafter firlllj^
feconJBy^ tndthirdfy mentioned, (to wit) at a court-baron of Sir
Ceorge Kelfy knt. then lord of die faid manor of Rti/fhaU^ held
at fpeldburjl aforefaid in and for the faid manor, on the 26tfa
diy of May in the jear of out Lotd 1 768, before Thomas Scoonrs
|ent. then ilewanl of the courts of the faid naanor, the fiud
MSzaketh Welter^ Sufannah Mercer^ ESzabeth Fry, Sarah jFVj,
jihn CrippSj and jttnn Okill^ were duljr chofen by the homage of
tiie faid court at the laid court to be fuch dippers at die fiud wells
«s aforefaid : and afterwards, to wit, on the fame day and year
,ifore£iid at BptUhurfl aforefaid, were c^rovcd ^ by ^e fiud Sir
George KeHey, then being lord of the laid manor as afoicfaid,
»nd then and there took upon themfehrcs the faid emph'mfni of
uppers at the faid wdls ; and by reafofi tfiereof, and pfth^ faid
agreement and the faicf aft, the faid B. IT,, *. JIf., K. F.^ S. F,
A. C„ and A. O. became, and at the time of the fcveral grieTaooes
, .hereinafter firfij, fecondly, and tl4rdly mentioned were^' and
: from theneefortJi hitherto have been and ftill are Sppers at die
faid weUs $ yet the faid Dorcas Baker well knowing the ptesnifes»
Init cpntnvTng.anjl,fraadtJcatly intending to injure the faid ^2^
^s whilft the faid E:W.yS. if.; E. F, S. F, a. C, and A. O.
were fuch tHppers as aforefiiid, (to wit) on the firft day of June
in
TuimttTEniA^ ^Ge^.in. 1769. 41S
!n the jczt of our Lord 1768, and on dirers other days and times
^tween that* day and the day of fuing out the original writ of
the faid plaintiffs^ £d uft and exercife, the employtnent of a fftppur j
at die faid wdh, and JM take and receive divers futns of money for I
txercifing fuch employment from divers perfont, irho daring that ^
time relorted to the faid wells to drink the waters thereof, ihe
the faicl Doreas Baker not being a dipper duly ebofen by the homage
at any court-baron of the faid manor, and apprived of by the lord
of the faid manor, nor having anv right to excrcife fuch tmphy^
ntertt as aforefaid» and by reafon thereof the faid "^phnntiffs loft. •Thcbttf-
and were deprived of divers large fums of money, which others Jj"*| "^
wife they would have received from the faid petfon's fo reforting ^^*^
to the (aid wells as aforefaid; and the faid f E. W.\ 8. M.^ E. P.^ f Dlppen
y. F.y A. &, and A. O. were greatly injured in their empl^ymM ^^'
of fttch £ppers as aforefaid, (to ^t) at Speldhurjl aforefaid ; and Sccooi
alfo whereas whilft the faid K W.^ 8. 3t., B. -F., 8.F., A. C, and «»»«•
A. O. were fuch dippers fo chofen and approved of as' afoftefaid,
(to wit) on the firft day of June in the year of out Lord T7089
and on divers other days and times between that dajr and die daf
of fuing out the original writ of the faid phintdls, the faid
Dorcas Baker well knowing die premifes, and contriving and in«
jurbufl^ intending as aforefaid, did nfe and exerdfe the employ*
ment (^tz dipper at the faid wells, ihe the faid Dorcas Bdter not
being a £pper duly chrfen by the homage at any coutt»banm of the ,
faid manor, and (proved of by the lord of the faid manor, not
having any right to exercife fuch employment of fuch differ at
aforefaid, by reafon thereof the Mdplaintifi loft and were de«
prived of divers large fums of money which otherwife they would
have received from divers pcrfons who daring that time rcforted
to the faid wells as aforefaid, and the faid Jsi W.^ 5« MJ^ E. F.,
S. F.^ A* C, and A. O4 were greatly injured in their Aid emphy*
matt of dippers as aforefaid, (to wit) at Speldhurjl aforefaid i and T&MtoMt
alfo whereas whUft the faid E. IV., 8. if., E. -F., 8. F., A. C,
and A* 0. were fuch dippers 2S aforefaid, (to wit) on the firft day .
of June in the year of our Lord 1768, and on divers other dayt
ftnd times between that day and the day of fuiing out the original '
writ of the faid plainiifs, the faid Dorcas Baler well knowing
the premifes, and contriving and injurioufly intending as aforefaid^
did ufe and exercife the employment of a dipper at the faid wells, flie
the laid Dorcas Baker not being a dapper duly chofen by the homage
at any court-baron of the faid manor, and approved of by the lord
of the faid manor, nor having any right to cicrcifc fuch employment
of fuch dipper as aforefaid, and by reafon thereof the faid % £. W.^ \ Kptt}
8. Jf., £.jF., S. F.y A:C,, and A, 0. were greatly injured in their ]^^
faid employment of dippers as aforefaid, (to wit) at Speldhurjl the piajntlri
aforefaid} and alfo whereas at the time of the fcvcral grievances the taArtdt '
hereinafter menrioned there were, and for divers (to wit, fifty) J^«««^»«^
years now laft paft there have been and ftill are, certain medi- **•'*
dual wcUs or fprings of water called TunMdge Welts at S^'*'-
Eca
4«7
plaint^s,
both bttf-
baads and
dippcn.
t Tbfe dip-
pen o»ly.
tAll«e
pbtimiFt.
B The dip-
pen ooly.
Trinity Term, 9 Geo.Wl. 1769;
lurft within the manor of Rujihall in the faid cotmcj of Rttii$,
and whereas during all the time aforefaid there have been and
ought to have been and (lill are and ought to be certain womea
caUied dippers^ not exceeding twelve in number^ cboftn and to be
choftn by the homage at the courts baron of the faid manor, an4
improved and to be approved by the lord of the faid manor for the
time being, to attend at the faid wells, and deliver the water
thereof to fuch perfons as during all the time aforefaid have re-
forted or do or (hall refort to the faid wells to drink the waters
thereof, and during all the time aforefaid the faid women fo
^bofen and approved as aforefaid have received from fuch perfons
fo reforting as aforefaid divers fums of money for fucn their
attendance and employment as fuch dippers^ to the comfortable fup«
port of tbemfelves and their families \ and whereas before the
time of the feveral grievances hereinafter mentioned, ^to wit) at
a court-baron of Sir George Kelly knt. then lord ot the faid
manor o( Ru/liallp held at Speldburji aforefaid in and for the faid
manor, on the 26th day of Maj in the year of our Lord I768»
before Thomas Scoones gent, then fteward of the courts of the
faid manor, the faid JS.»^, S. M., £. R, S. F., A. C, and A. O.
were duly cliofen by the homage of the faid court at the faid court
to be fucn dippers at the faid wells as aforefaid, and afterwaxdst
(to wit) on the fame dav and year aforefaid, at ^peldhurjl afore«
faid, were approved by tne faid Sir George Kelly^ then being lord'
of the faid manor a^ aforefaid, and then and there took upon
themfelves the faid employment of dippers at the faid wells, andbf
rcafon thereof the faid E. JT,, S. AL, E. R, S. F., A. C, and
A. 0. became, and at the time of the fev.eral grievances herein-
after mentioned were and from thenceforth hitherto have been
and ftill arp dippers at the faid wells ; yet the faid Dorcas Baier%
well knowing the premifes, but contriving and wrongfully in-
tending to injure the faid ^plaintiffs whilft the faid f JS. WT., S.M^
E.F.f S. jP., a. C, and A. 0. were fuch dippers as aforefaid, (to
wit) on the firft day of yune in the year of our Lord 1768, and
on. divers other days and times between that day and the day of
filing out the original writ of the faid plaintiffs, did ufe and ex-
crcilc the employment of a dipper at the (aid wells, and did take
and receive divers fums of money for eicercifing fuch employment
from clivers perfons who, during that time reforted to the faid
wells to drink the waters thereof, (he the faid Dorcas Baker apt
being a dipper duly cho/en by the homage at any court-baron o£
the faid manor, and approved of hy the lord ot the faid manor^
nor having any right to cxercife fuch employment zs aforefaid, and
hj reafon thereof tlie faid % plaintiffs XoH and were deprived of
divers large fiims of money, which otherwife they would have
teceived from the faid perfons fo reforting to^he faid wells aA
aforefaid, and the faid J £. JFl, S. M.^ E. f"., S. F., A. C, and
A. 0. Mi^TC greatly injured in their faid employment of fuch dippers
as lift aforefaid, (to wit) at Speldhiirfi aforefaid j and alfo
wiicceasy
TKimrYTEVLM.gGeoAlL lyGgl JlS
wliereas, whilft the faid E. W.^ S. ilf ., E. i^, S. F.\ A. C, and Tifth c0lm^
A: 0. were fuch JSr/»^^/ as afbrefaid, (to wit) on the firft day of
June in the year of our Lord 176B, and on divers other days
aud times between that day and the day of fuing out the original
writ of the i^A plaintiffs^ the faid Dorcas Baler well knowing
the preoiifes, and contriving and injurioufly intending as afore-
faid, did ufe and exercife the employment of a ^pper at the &id
^xrellsy (he the faid Dorcas Baler not being a dipper duly chfen
by the homage at any court-baron of the faid manor, and t^roved
of by the lord of the faid manor, nor having any right to exercife
fuch employment of fuch dipper as aforefaid, and by reafon thereof'
the faid plaintiffs loft and were deprived of divers large fums of
'money, wliich otherwife they would have received from divers
perfons who during that time reforted to the faid wells as afore-
laid, and the faid E. fV., S. 3/., E. F.^ S. F.^ A. C, and A. O. •
^KTcre greatly injured in their faid employment' of uppers as afore-
faid, (to wit) at Speldhurjl aforefaid \ and alfo whereas, whilft sisthcout*
"the faid E. W.^ S. M.y E. F., S. F., A. C, and A. O. were fuch
dippers as aforefaid, (to wit) on the firft day, of June in the year
of our Lord 176S, and on divers other days and times between
that day and the day of fuing out the original writ of the faid
phintlffsy the faid Dorcas Baler ^ well knowing the premifes, and
contrivmg and injurioufly intending as aforefaid, did ufe and
exercife the employment of a dipper at the faid wells, ihe the faid
'Dorcas Baler not being a dipper duly cbofen by the homage at any
court-baron of the faid manor, ztid approved of by the lord of the
faid manor, nor having any right to exercife fuch emploment of
fuch dipper as aforefaid, and by reafon thereof the faid JS. W^f
S. M'3 E. F.^ S. jP., a. C, and A. O. were greatly injured in their
faid employment of dippers as aforefaid, (to wit) at Speldhuri .
aforeiaid, whereupon the {zid plaintiffs fay they are injured, and \
havefuftained damage to Uie value of loo/.^ and thereof they j
bring' fuit, WV, »
The defendant has pleaded the general iflue, that (he is not
guilty of the premifes above laid to her charge, and thereuptn
iiTue is joined, which is entered of Hilary term laft.
This caufe was. tried at Maidfione the 6th day of March 171(9
l)efore Mr. Juftice Clive^ when a verdi££ was found for the
plaintiiTd upon the fecond, third, fifth, and fixth counts in the
declaration, and 5/. damages, fubje£t to the opinion of the court
upon the following cafe^ which ftates.
That the plaintifis gave in evidence a private oR of partiament Tho cafe
pafTed in the 1 yh year ofking^ Geo. the %d, confirming certain gr- ^"5^^°'^^
tides of agreement inferted in the faid aftj in which are con- 2?f^^
fain^d thetwofoUoDvingdaufes, (via.)
»c J "Fifthly,
fif Trivitt Term, 9 (r^^. m. 1769.
*^ FtftMf ; It is alfb fartber agreed bettireen ^ (aid parties^
^ that the faid Mauria Conjers and hU hcin and aiEgns, and
^ the feveral ftteheld tenants parties hereto^ and their re^
^< f|;»e£Uve heirs and affigns, fliall and will from time to tine»
<^ and at all tiiBes for ever heceafter, permit and fnfler die laid
^' medicinal fprings or wells of water called TunbriJgt VJls^
^ the plaoe or flied near the faid fprings called DipptrsJMdl^ anit
^ the wtOb called Tunhrldge WelU Walis^ and a)l wars^
^< paflagtSi and open pieces of ground^ part of the faid premiiest
<' or leading therctO| whidi are particularly fet forth and diCUa*
. *< gttiflied in the plan of the premifes hereto annexed, to re*
*< main always open and free for the public ufc and benefit ol
*< the nobility and gentry and other perfons reibrting to, or fre-
*< quenting TunM4ge Welis, in- the manner the fame now are*
i* or lately have been ufed, and tbat the faid Mauria Conjeri^
** his heirs and afljgnsi Qiall and will from time to time j<un and
^< colicur in doing all fuch a£^s and things ae fliall be neceflary
'* for the preparing and keeping the fame open and free, accord-
<* ing to the true intent and meaning of this agreement
<< Thirteenthly } Alfo it is hereby further agreed by and ber
<< twecn the parties hereto, that no perfon fliail be permitted to
« attend and follow the employment of a Jifperoliht (aid me-
*< dicinal waters hut fnch as fhall be cbo/ht by the iam^ at die
^< couri^hnrcn to be held for the Ciid manor, and affrowdhj the
<< lord cf the mdwr: in which choice and approbation the icim/»
<* mnehWf §Hd daughUr^ rffrabM tenants rf the faid mamrfiJl
^^ ht preferred^ and fliall not exceed the number of twelve*^
It did not appear in evidence that the homage and lord had ever
«£lrd under the faid ad of parliament, or thaf there had ever
been any difpers cUfm by the homage^^ and (^proFoid by the hrd
from the time the faid a£l paiTed until the ^6th ofMaj 17681
1^'hen, at a court^iarcn then^holdenf the iomage cbofe^ and the Urd
ttftpnivfdf &c. prffut the following fntry upon the rolls o£ the laid
^urt, (viz,.)
** At a rouTt-baron of Sir Ge^rgi Kelly lent, lord of the manor
<< of RuflMh held at Speldhuirft in and for the faid manor on the
*' 36th day rof ^ity in the year of our Lord 1 768, before Tbomaf
^ Si9omfs gent, steward of the court of the faid manon
'< Alfo t^ie homage aforefaid do <^oofe Elizahtb Witter the
« wife of John Weller^ Ann Cripps widow, Sarah Fry the wife of
^ Benjamin Fry^ Stf^nna Merger t^e urifc of Join Mercer^ EHzen
« teth Fry the wife of Thomas Fry^ Ann Qiillxhtwik of WWiam
« Okilly Mary %hp wife of JVUliam friead, and Doreas Bater-
^> fpinfterj to attend and fpUow the employment of dippers of the
« medicinal
TRINITY Teilm, 9 Gee. III. 1769.
^ aedicind waten ^tfain this maoory coromottly called TWkm
^« M/^ n^/i//, f objea acTcrtliekiii to the affrwiatha of the lotd
^* of the faid mmnor.
^^ fieMiPs 0fipnhfiwns At thtt court SaGm^Keihkoki
^* &r^ of this manor, apfroves of ail the perfons fo cbopm 07 tbt
^^ homage for Uppers aforefilidt Dorcas Baker only excepted."
It did not appear in eridence that any notice wis giren, preriotts
to the holding of the (aid court, of ^njhtteutkntDVffdxktJ^peN
there.
It appeared iii evidence that Dorcas Baler the defendant was'
the daughter of a freehold tenant of the. manor, and alfo a free*
hold tenant in her own right,, but no evidence was given hy the
plaintifis that they or either of them were, or was xefpeAitely
the w^c, widow, or daughter of a freehold tenant.
it appeared that the defendant Dorcas Baker had aOed as a
dipper during the laft fumraer, but there was no proof of her {
having received any gratuity, other than ^eral evidence, diat I
the employment ot a (Upper is attended with profits which ari& '
from- the voluntary contributions of the company reforting to
T'^fMdge Veils.
This cafe was twice argued at the bar ; the firft time in Baficr
term laft by Serjeant Jephhn for die platntifis and Serjeant Horn
fox the defendant, and the fecond time in this term oy SeijeaaC
JLeigb for the plaintifis and Serjeant Forfier for the defendant*
After a few days time taken to confider, judgment was givea
for the plaintiffs per Mam curiam^ to die followmg efie& ;
Ciyriii-i^There are two general queftions in this cafe; i^, Who»
ther the defendant Dorcas Baker ^ the daughter of a freehold tenant
oE the minor, and chrfen by the homage to be a ^per at the Wells^
but not approved of by the lord of the manor, can juftly follow or
exercife the employment of a dipper f
^dfyi Suppoiing flie cannot. Whether the plaintifis have a right
to recpver in this adion ?
As to the firft queftion, we are all of opinion that the defend-
ant cannot jufily follow or exercife the employment of a dipperi
the words of the agreement between the lord and his freehold
tenants are, *< That no perfon (hall be permitted to attend and
<^ follow the employment of a dij^/irr of the medicinal waters^
<^ but fuch as (hall be cbofen by the homage at the court4>arou to
<< be held for the manor, and approved by the lord, bV." which
fm ifow |the word9 of an a£t of parliamcat, ^md as dear an4
441 Trinity Term^ gCea.UT. 1769.
plain 2t words can poffibly be ; none Ihall be differs but ^ch
pcHbns as (hall be tko/en by the homage and alfo approved ci by the
lord ; Dorcas Baler (it appears) was not approval of, but on die
contrary was excepted againft by the lord \ therefore by the dear
words of the ftatute flie (hall not be permitted to attend and
follow the employment of a di^er.
The intention of this ftatute b alfo plain : before the making
thereof, there was a great conteft between the lord and his tenants
^ touching their right of common^ thefe wells, and other matters i
the lord was much benefited by the great refort of the nobiCty
and gentry to drink the waters, and the tenants thought them-
feWes injured in their right of common, i^a at length the arti-
cles of agreement were made and executed, and being fotiod to
be for the mutual advantage of the lord and tenants, were con-
firmed bj parliament and made firm and permanent ; the benefit
' of thefe waterjs being thereby gi?en freel^r to the public, it was
neceflary to eftablifh a rule, how, and m what manner, thcgr
fiiodd be dealt out to the' public, the tenants having loft part of
their eommon, thought they ought in confideration thereof to
have fome benefit, therefore to prevent itrife, confuGon, and a
kind of civil war amongft the tenants, which mnft neceiTarily
follow if every body who plea(ed was fuffered to exerdfe lixc
employment of a dipper^ it was agreed that the homage (houM
cioa/e and the lord fliould approve, not more than twelve perfons
to be dippers; fo that, by this law, all diflblute idle perfons are
•prevented, and no perfon (hall come to be a dipper at the welb,
hfxt whom the lord pleafes, who is the owner of the foil where
xhey are i cujus efi dare ejus eft difponeres it was a very right me»9
fure, that every perfon (hould be (as it were) ftamped with Ae
feal of both the lord and the homage, before (he (hould be per-
mitted to exercife this employment of dipper i fo that we haTQ
po doubt but the lord muft approve.
Another matter was mentioned at the bar as to this firft qiie&
tiort, and that was, whether thefe-words in the articles and the
ftatute, iyiz.) '< In which choice and approbation the naives^ widows^
•« and daughters of freehold tenants of the manor Jhall be prefer red/*
are tnandatary or dire^ory ; but this not being an aft ion agatn(L
the lord for refufing to approve of Dorcas Baker after (he was
chofen by tlic homage, we need not determine this matter. There
are many cafes where tjie wor<ls of a ftatute feem to be mandatory^
:yet have beea held to be only direffory ; and fo e contra^ whcve
words which feem to be dlre^ory, have been held to be mandatory^
the fubje£l»matter of a ftatute muft explain the true meaning
thereof. The wordsin the prefent cafe feem to .be mandatory^
and yet, on the other hand, if they be abfoiutely compfsJfory^ it will
lake away the choice and approbation of any other perfons out the
wives ^ nvidou's^and daughters offreehcld tenants i we give no opii^on
Trinity Te»m, 9^^* ni. 1769. 422
as to this mattery bat think that if the homage do choofe the
rvife^ mdow, or daugbt/r of a freehold iifumt to be a dipper y the
loird ought to reprove of iuch perfon, unlefs he has fome good
exception againft her: if Dorcas Baker could have an aSion
ajpiinft the lord for not approving of her after the homage had
^afim her, (he could only recover damages^ and not afpedjic relief i
but let her right of aAion againft the lord be what it wUl, it does
not appljr to our cafe ; at piefent we are of opinion fhe cannot
jttftly follow or ezcrcife th^ employment of a dipper^ which brings
us to the
Second quelUon, which is. Whether die plalntifis have a right
CO. recover in thu a£lion ?
Several objedions were made by the counfel for the defend*
amt : ift^ It was faid, that there mud be both an injury and a da«
mage done to, and fuftained by the plaintiffs, to fupport an
adiion upon the cafe : in anfwer to this, we fay here is both an
injury and a damage; an injury^ by the defendant's difturbing i
the dippers in the exercife of their right or employment^ and a real\
damage in depriving them of fome gratuity which they would |
othenrife have received, perhaps more than they might truly de-/
ferve, for their labour and pains : befides, an a£lion upon tbej
cafe will lie for a poflibility of a damage and injury ; as for per-
fuading A. not to come and fell hb wares at the market of ^.^ the
lord of the market may have this zCdon.
adfyf It was faid, that this is not fuch an office or employment
for which an aflize would lie, and therefore this adion will not
lie : in anfwer, we think this may be an efnploymentfor life deter*
minable upon mifbehaviour; and if fo, it is a freehold, Kas a cer-
tain place where it is to be exercifed, and may be put in view to
the recognitors: howeveri we think it fuch an interefi or employ^
ment that an adion upon the cafe will lie againft a ttranger for a
difturbance therein.
3^^, It was faid, that no notice was given previous to the
holding of the court-baron on the 26th of May^ of any intention
to appoint 4/i)^r/ there, which ought to have been done : in an«
Xwtr to this it is ftatcd iii the declaration, that the dippers were
ebofen and approved at that court-baron } and Mr. Juftice Clive
has reported* that it was proved at the trial, that the ufual notice
of holdinfi; the court*baron was given ; it is the court of the free-^
holders who are the judges thereof} the Jlevfard is only their
prcthonatary^ and notice is never given of any particular hprmefs to
be done at a court- baron ; if any body Is to give notice, it mud
be done by iht freeljotders^ for it is their court, and they are the
fuitors thereof. What ? muft the freeholders give notice to tlic
freeholders? It is nonfenfe to fay fo; and. perhaps the grcateft
part af them may be difpcrfcd all oyer England, or many of them
may
443 TniviTY Teum^ p GeoAll. 1769.
tila>f be abroad in other countries. BnthtrcU^aB of fatUafmnt
whxh gives them all noticii fo we^te of opinion that wikt of
this particular bufinefs to be done was not ncccflfary to be g^ren
bjy or to anybody.
4/A^, It was faid the plaintifis cannot join in this aOion.
But we think they muft Join, for althoagh the Jspberi vctfewraBj
entitled to receive for tneir own fevgral ufe fo^cn voluntary gra-
tttities as the nobility and gentry are pteafed to give them refpeo*
lively, yet with regard to a firanger's difturbing them in tbcrr
fmphjnuntp they are iSLjmntlj concerned in point of intcreft % it,
is a tori as done to them all, like the cafe of the two mills in
2 Sound. 21^, 2i6| aiy.y whereof the two plaintilB were feve-
rally owners, and joined in a^oo againft the defendant for not
grinding at one or either of their milts, which he was obfeed
to do by the cullom of the manor ; the principal obje£iion ibert
was, that the plaintiffs had joined in one adion, where it ap-
peared their interefts^ wctefeveraf. Hales C. J. and the whole
court were of opinion that they might well join in adion, for
although their interefts zte/everal, yet the not grinding at eidier
of their mills is one entire joint damage to both the plaintifi, for
which they ibali have their jfotW aAion, Or otherwife the damages
would ^ twice recovered, if they fliould bring their feveral ac-
tions. I Vent. 167, 168. S. C. 2 Lev. 27. S.C this cafe is
diredlly in point as to this objedlion.
^thfyt It was qbje£led that the plaintiffs ought to have zU
ledged ip their declaration that the dippers were ready to dip at
the wells ; but they have altedged that they took upon them-
felves the {aid employment of dippers at die wells^ and that the
clefendant well knowing thereof difturbed them, &fr. that ia wdl
enough.
Lq/lljy It was objeAed that the hujbands and mves ought not
to hzvc joined in this adlion. In anfwer to this, it is very diffi-
cult to reconcile all the cafes in the books touching this matter
o( joinder in aflion i at prejfent it is fufficient for ns to fay that
this a£lion is not grounded on any contract exprels or implied,
but the hujbands zxt joined' to aflcrt the right and intereff of their
wiveSf which has been difturbed and injured by the defendant ;
whatever be the nature of this right, intere/f, or emphvmenty it is
her own, the hif/band hzth nothing at all ,to do with it, he only
Joins for conformity -, it is a ftronger cafe than an adion by taron
and feme touching the wife's bnds where they muft join, 1 Buljt.
21 ., or than the cafe of a debt due to xhtfeme dumfola wherein
they muft join. Moor 422. Baron poffefled of tithes in right of
thefemef they muft joiti in the adion of debt upon the^d/.
a Ed. 6. Jot not fettiiig forth tithes, becaufe thtfime is proprie-
Cro. Car. tor. Cro. EL 608.613. ' So in the cafe at bar Acjeme h die
4^^! 419* proprietor i and if (he miittjoht in a cafe where the hufbaod ha«
an
Trinity Term, 9 Cr^^nl. 1769. 424
an intereft in her- lands, a fortiori (he muft /m in the prefent
cafe s they nuy join in tiefpaft ii ckatfofraBo and cutting their
grafii, Cr9. Em. 96. ; and this fame pomt was ruled in the cafe
of Wlthf and Ins wife r. Hawtfimre, B. R.$ that tfaej macjjoin in
trefpals quare claufumfregit of the wife's land. Wherever the
wife is the meritorioas caufe (he xasLjjain ig aftion : a very ftrong
cafe to thisrpurpofe is 2 Sid. ia8.| and fo is Cro. Jac. 77., which
was cafe by baron and feme upon an afumj^ for caring a wound
by the wife, and allec^d in/a^ that flie cured it, refolved Ihe
was the caufe of the aoion, audio the adion brought in both
their names was well enough. The cafe of Holmes and nu^ n
Wood (argued in Micb. term 3 Geo. a. but not determined till
Ba/Ur term following) was an aCUon upon the cafe, wherein tho
plaintiffs declared upon a quantum meruit for a cure done by the
plaintifTs wife; and upon another count for medicines and
plafters found and provided for the defendtot ; upon a general
demuirerit was olijeAcd that die fvife could not Jiin^ for that
flie was not the fole caufe of the a«ion, becaufe tie medicines
and flafiers were the hsjbants ownproperty^ and the damages
could not be fevered; and of that opinion was the court; but
they Cud that if the a^ion had been brbughtforthc/ufcttr of the
vnfe only^ tbc tfight well have joined. OA. $. P«
THB END OF TBS tSCOMD VOtTTMSi
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