REPORTS OF CASES ARGUED AND DETERMINED IN THE Court of WITH TABLES OF THE NAMES OF CASES AND PRINCIPAL MATTERS. BY EDWARD HYDE EAST, ESQ. OF THE INNER TEMPLE, BARRISTER AT LAW. Si quid novisti rectiits istis, Candidas imperti ; si non, his utere mecum. HOR. VOL. II. CONTAINING THE CASES IN THE 42 1) YEAR OF GEO. III. 1801 1802. LONDON: PRINTED FOR JOSEPH BUTTERWORTH AND SON, LAW BOOKSELLERS, 43, FLEET STREET; AND JOHN COOKE, OUMOND QUAY, DUBLIN. 1816. j)l . C. JMorns, I'rinti'r, Higk Street, \\ yc JUDGES OF THE COURT OF KING'S BENCH, DURING THE PERIOD OF THESE REPORTS. LLOYD Lord KENYON, Lord Chief Justice. SUCCEEDED BY EDWARD Lord ELLENBOROUGH, Lord Chief Justice, Sir NASH GROSE, Knt. Sir SOULDRN LAWRENCE., Knt. Sir SIMON LE BLANC, Knt. ATTORNIES-GENERAL. Sir EDWARD LAW, Knt. The Honourable SPENCER PERCEVAL. SOLICITOUS-GENERAL. The Honourable SPENCER PERCEVAL. THOMAS MANNERS SUTTON, Esq. TABLE OF THE CASES REPORTED IN THIS SECOND VOLUME. Those Cases which are printed in Italics were cited from MS. Notes. Page A BERGWILLY, Rex y. - 63 XJL Airey, Rex v. - 30 Allan, Doe d. v. Calvert 376 Allen, Sprins well v. 448 Allison, Williamson v. 446 Atkins v. Banwell 505 Aubert, Castling v. - 325 B Back, Wilksu. - - 142 Ball, Neateu. 117 Banwell, Atkins v. 505 Barclay v. Cousins 544 Barclay, Hammonds v. - 227 Barnard v. Gostling 569 Billet v. McCarthy 148 Bilbie v. Luuiley 469 Bingham, Rex v. 308 Birt. v. Kershaw 458 Bishop of Exeter, Rex t 1 . 462 Blackburn, Prince v. 250 Blackburn v. Stupart 243 Bovill, Oddy v. 473 Brifl'jinan, '1 rier v. 359 Brown, Sampson v. - 439 Burville, Doe v. 47 Burgesses of Truro, Rex v. - 85 Calvert, Doe d. Allan v. Castling v. Aubert Cator, Rex v. Chadderton, Rex v. Chambers, Lord Rodney v. Charnock, Moss v. Chat field v. Paxton Crichton, Stephens v. - Clarke, Lee v. Clarke, Rex v. Collett v. Lord Keith - Cooke v. Lucas Coppull, Rex v. Corsham, Ilex v. Cousins, Barclay r. Clifton, Rex v. Creasy, Haycraft v. Critchell Moor, Rex v. - Critchell Moor, Rex v. Cunlilie v. Sefton D Davidson v Moscrop Davison v. Frost Dimsdale v. Nielson Dee v. Calvert Doe v. Burville Page 376 325 361 27 283 399 471 259 333 75 260 395 25 303 544 168 92 66 222 183 56 305 405 376 47 Doe TABLE OF THE CASES REPORTED. Page Doe v. Hawke 481 Doe r. Humphreys - 237 Doe d. Lord Grey de Wilton v. - 384 Doe v. Telling 257 Douglas, Mersey and Irwell Navi- gation r. 497 Dowdiny v. Mortimer 450 Duggan, Elliott v. 24 Dunn, Pigottv. 134 E Eccleston, Rex r. 298 Ednionson v. Plaistow - 572 Ellefsen, Imlay r. 453 Elliott v. Duggan 24 Evans, Thomas r. 488 Evans, Whitborne w. - 13-5 Exeter, Bishop of, Ilex v. 462 Ex parte Maxwell 85 Ex parte Michel! 137 E\ parte Mackreth - 563 F FeUon, Shawe v. 109 Ferry Frystone, Hex v. 54 Franco, Harrison r. - 225 Frojj'iiorton v. Scott . - 467 Frost, Davison r. T 305 Foxon, Watson v. - 36 Glamor '(jo n, Rcc r. 356 Goldney, Maitland v. - 426 Gostling, Barnard r. - - 569 Great. Marlow, ilex v. - 244 Grey <1< \\'iltu/i, Lord. Doc d. v. 384 II Hague, Taylor r. 414 Hammonds r. Barclay - 227 Hanhury, I! ex v. 423 Uardifnian v. Wliitukcr - 573 Harrison r. Franco - - 225 Harwood, l!i-x r. - - 177 Ilav.ke, Doe r. - 481 Hayrnift r. Cn.isy - 1)2 Heightman, Hulle v. . 145 Helen St. Worcester, Rex v. - 417 Henricksen v. MnryiAson 549 Higgins, Hex v. - 5 llo'ci'ircs, Wilson v. - - 312 Holland, Rex v. Hullc v. Heightman Humphreys, Doe v. ' - I & J Imlay v. Ellefsen Johnson, Shepherd v. - Johiuon v. Sheddon K Keith, Lord Collett v. - Kenebel v. Scrafton Kershaw, Birt v. King, Waterhouse v. Kirdford, Rex v. Lambard, Stevenson v. - Lee v. Clarke Lee, Parkinson r. Lessingham's Case London Sheriff', Ilex v. Lord Rodney v- Chambers Lucas. Cooke v. Lumley, Bilbie v. M McCarthy, Billet v. Macleod, Rex r. Mackreth, Ex parte Mail land v. Goldney Man v. Shiffner Marycts'jn, Henricksoi v. Marlow, Great, Hex v. - Maxwell, Ex parte Maylin r. Townshend - Mel lor, Rex v. IMersey and Irwell Navigation Douglas Michcll, Ex parte Millrr, v. Moore Min worth, Rex r. Moore, Miller r. Moor Critchell, Rex r. Mortimer, Dowdiiir/ v. - Moss i-. Charnock Moscrop, Davidson v. - Nantes r. Thompson Neate v. Ball 148 202 563 426 523 549 244 85 1 189 497 137 49 198 49 66, 222 450 399 56 385 117 Nielson, TABLE OF THE CASES REROUTED. Nielson, Dimsdale v. Oddy v. Bovill Page 405 473 Palmer, Rex v 411 Papworth, Rex v. 413 Parkinson v. Lee 314 Parsons, Rigg v . 156 Paxton, Chatjield, v 471 Pembrokeshire Justices, Rex v . 213 Penny v. Porter 2 Penton v- Robart 88 Picton, Rex v. 195 Pigott v Dunn 134 Pindar v. Wads worth - 154 Pinkerton, Rex v. 357 Plaistow, Edmonson v. 572 Porter, Penny v. 2 Prince u. Blackburn 250 R Regulse Generales - 136, 307, 569 Rex t>. Abergwilly 63 Airey 30 Bingham 308 Cator 361 Corsham 303 Chadderton - 27 Clarke 75 Clifton 168 Coppull 25 Eccleston 298 Exeter, Bishop of 462 Ferry Fry stone 54 Glamorgan 356 Great Marlow 244 Hanbury 423 Harwood 177 Helen, St. Worcester - 417 Higgins 5 Holland 70 Kirdford 559 London, Sheriff of 241 Macleod 202 Marlow, Great 244 Mellor 189 Mimvorth 198 Moor Critchell <;<;, 222 Palmer 411 Rex v. Papworth Pembrokeshire Justices Picton Pinkerton Sowerby Steventon Surry, Sheriff of Truro, Buryessc-s of Wantage Weobly Woodland Wynn Yorkshire, W. R. Rigg v. Parsons Robart, Penton v. Rodnev, Lord, r. Chambers Sampson v. Brown Saunders, Shipham v. Saunders v. Saunders Scammell r. Wilkinson Scott, Frogmortori r. Sefton, Cunliffe v. Scrafton, Kenebel v. Shawe v. Felton Shawe r. Wrigley Sheddon, Johnson v. Shepherd r. Johnson Shitfner, Man r . tihipltam v. Saundei'S Sowerby, Rex v. Springwell v. Allen Stephens v. Crichton Stevenson v. Lambard Steventon, Rex r. Stupart, Blackburn r. Surry Sheriff, Rex r. Taylor v. Hague Telling, Doc r. Thomas v. Evans Thompson, Nantes r. Thornton, Wildey <. Townshend, Maylin c. Trier r. Bridgman Truro, Burgesses of, R' Wadsworth, Pindar r. Wantage, Rex <. Page 413 213 195 357 276 362 181 85 65 68 164 226 342, 353 156 88 283 439 2 254 552 467 183 530 109 500 581 211 523 2 276 448 259 575 362 243 181 257 488 385 409 1 359 R<5 154 65 Waterhouse vm TABLE OF THE CASES REPORTED. Waterhouse v. King Watson v. Foxon Weobly, Rex v. Whatley, Doe d. v. Telling Whitaker, Hardyman v. Whitborne v. Evans Wildey v. Thornton Wilkinson, Scammell v. Wilks v. Back Williamson v. Allison - Page 507 36 68 257 573 135 409 552 142 449 Willan, Yate v. Wilson v. Hodges Woodland, Rex v. Wynn, Rex v. Y Yate v. Willan Yorkshire, W. R. Rex V. Page 128 312 164 226 128 342, 353 CASES ARGUED AND DETERMINED IN THE COURT OF KING'S BENCH, IN Michaelmas Term, In the Forty-second Year of the Reign of GEORGE III. MAYLTN against TOWNSHEND. Tuesday, Nov. 10th. fARRYAT moved to discharge the defendant out of cus- j,, an affidavit tody on filing; common bail, on the ground of a defect to no 'd to bail for 20Z. iii the affidavit to hold to bail ; wherein the plaintiff swore and upwards, that the defendant was indebted to him in the sum of 201. and il is sufficient 7 . to negative a upwards, for goods sold arid delivered, and that no tender had tender of the been made of payment of the said sum in Bank-notes (a). And * td * um iu he referred to a case of Bornet v. Wheeler, Hil. 41 Geo. 3. that having where a similar motion had been allowed on the same and other ti^ispedfic objections: for non con stat, that there had not been a tender of Slim sworn to, all but the fractional part above the 207. according to the case s ^, cn as might of Jennings v. Mitchell (b). be so tendered. * But the Court said, that this differed from the case of Jen- * [ 2 ] nings v. Mitchell; for here the specific sum sworn to w T as such as might be tendered in Bank-notes ; and a tender of that sum was expressly negatived, which was sufficient; and it had been so ruled in a case subsequent to that of Jennings v. Mitchell. () Pursuant to the provisions of the Bank Act, ?,7 Ceo. 5. c. 45. s, 9. (6) 1 Eaxt's Rep. 17. VOL. II. B PF.XXV CASES IN MICHAELMAS TERM 1801. PLNNY against PORTER. Tuesday, JVoc. I Oth. Upon breach TX an action on the case for the non-delivery of wheat accord - for^iuTpui^ m S ^0 agreement, the first count of the declaration stated chase of ioo the contract to be, that in consideration that the plaintiff had 40 or 50 of ' agreed to purchase a large quantity, to wit, one hundred bags which were to o f w heat, each bag- weio-hinp- SOOlb. and for 40 bao-s, part of be delivered on one market the same to pay to the defendant 17. 16*. per bag, and for the day, ami the remaining 60 ba< v s to pay the market price at the then next remainder on i the next market day; the defendant undertook to sell and deliver to the tJhe rk fcintiff P lain tiff 40 of the bao- s immediately, and the remaining 60 cannot declare bags at the then next market day at the stipulated price, absohue con- ^ then averred the sale and delivery of the first 40 bags in part tract for the performance of the contract, and set forth a breach as for the delivery of 40 ,. ,. -. r r , .1-1 -i ba"s oil the non-delivery o^ the remainder. I he third count was similar fust day, on ly stating the contract to be for the sale of 100 bags bags"\verc ( >f wheat, ,30 ba^s of which were to be sold and delivered im- then in fact mediately at the price mentioned, and the remaining- 50 bao-s delivered : but * . e the contract at the next market day, for the then market price. The con- rn U , S .L be i!l? te(1 tract was laid more generally in other counts. At the trial IM I II U nor, though he on, fyc. at, fyc. did falsely, wickedly, and unlawfully solicit chargelnn an ^ incite one James Dixon, a servant of J. Phillips, &c. to the indictment take, embezzle, and steal a quantity of twist, of the value of vant stoleTiie three shillings, of the goods and chattels of his masters /. P., goods, nor that ^ C- aforsesaid, to the great damage of the said J. P., Sec. to the any other act .. , . . ,, . , wa's done ex- evil example, pec. and against the peace, fyc. Alter judgment cept the soli- o f tne pin or y an d two years' imprisonment, a writ of error was citint'. And brought, and the following causes assigned for error: 1. That such offence ^e sa jj coun t does not set forth any misdemeanor or offence is indictable J at the Sessions, which the justices of peace at their Quarter Sessions had juris- llen'" 5 to a en " diction to determine. 2. That it does not appear that J. Dixon, breach of the the principal, was ever convicted of the felony wherewith the defendant appears to be charged, as accessary before the fact. 3. The general error. The case was twice argued; first, in Trinity Term last by Scarlett for the defendant, and Cross for the crown; and now by Topping for the defendant, and Christian for the crown. For the defendant it was urged, 1st, That the count in ques- tion contained no charge of any matter indictable at common law. It is not every act, immoral in itself, or of evil example, which is indictable, although it may subject the party to find sureties of the peace. A bare solicitation or incitement of an- other to commit an offence is not indictable, unless it be accom- panied by some overt act towards carrying the intent into exe- cution ; but if no such act be done either by the inciter or the party solicited, it is nothing more, as Mr. Justice Foster ob- serves, than a mere fruitless ineffectual temptation. Now here it, is not stated how or by what means ihe defendant solicited Ducon to commit the felony ; nor that any act was done by the defendant, such as offering money or the like, to forward such solicitation; nor that any act by Di.ron followed thereupon. It must therefore be presumed that nothing of this sort happened, as there can be no latitude of intendment in criminal cases to include IN THE FORTY-SECOND YEAR OF GEORGE III. include any thing more than is charged (a). It stands therefore 1801. as a mere wish or desire of the defendant to do an evil act. If indeed any evil consequence ensue on such a solicitation, the against party is answerable; but there is a locus penitentise between the HIGGINS. solicitation and the act, and if he countermand the act before it be done, he is absolved from the consequences. An argu- ment may be derived from analogy to cases of slander; for if no action \vould lie for imputing such a bare solicitation to an- other, it follows that the solicitation itself cannot be indictable. In .Bray v. Andrews (b) the words were, " My master was not content to take my living from me, but sent his man Andrews to kill me. " Two of the judges thought the action lay, though no effect followed upon the command : but the other two held otherwise: because no action lies for slander except on the im- putation of such things as are punishable by law; and it was never seen that any punishment was appointed either by the common or statute law, if no effect ensued thereupon. So in 1 Roll. Abr. 50. Q. pi. 2. If a man say of another, "that he lay in wait to rob him, " an action lies ; for there is the imputa- tion of an evil act done. But in the same book, pi. 4. where the words were, " that he keepeth men to rob me," it is said no action lies ; because the only impute a bare intention with out any act. The same principle is clearly laid down in Mur- rey's case (c), and in Crofts v. Brown (d), and in Eaton v. Allen (e). Braclon, lib. 3. fo, 128. pi. 13. observes, " ubi fac- tum, ibi poterit esse forcia quandoque, sed nunquam forcia sine facto;" (which word forcia, says Lord Coke (f), is a word of art, signifying the furnishing a weapon of force to do the fact, by force whereof it is committed, the party furnishing the weapon not being present at the fact:) " quia ubi principals non consistit, nee ea quee sequuntur locum habere debent: sicut dici poterit de prsecepto, conspiratione, et consimilibus,. quamvis hujusmodi esse possuntetiamsine facto; et quandoque puniuntur si factum subsequatur, sed sine facto non, &.c. nee etiam obesse, debent prrcceptum, &c. nisi factum subsequatur.'' Vaughan (g) was indicted for persuading an apprentice to with- draw himself from his master, so that lie should not be taken upon a warrant; and Houghton, J. excepted to the indictment (a) R. \. n'heatley, 2 Rnrr. 1127. (/)) Moor. 65. (c) 2 Bulsir. C06. (rf) 3 Bvlstr. 107. Sed vi. Dean v. Eatan, 1 liulsti: U01. (e) 4 Co. 1C. b. (f) 2 Inst. 102. (g) Poph. 134. because CASES IN MICHAELMAS TERM 1801. The KING ayninst HlGGINS. [8] because no venue appeared, nor that the apprentice did hide himself from the warrant ; for if he did not so, the persuasion u-ns nothing. In R. v. Daniel (a) the indictment charged that he inticed away an apprentice from his master, and seduced him to take and carry away certain goods of his master from his house, and that the defendant knowingly received the same. It was objected, that this was but a private and not a public in- jury; that case only lies, and not trespass for inticing away a man's servant; that no fact was laid to be done in pursuance of such inticing, except as to the latter part of the charge respect- ing the carrying away the goods, as to which that no venue was laid where the goods were taken away: for which reasons the judgment was arrested. The same case is reported in 3 Sal/i. 191. (/>), where the indictment is said to have been holden naught by all the Court for not averring that the apprentice did absent himself: for though the words absentare causavit im- ply that he did absent himself; yet the indictment must not only shew the cause but the effect which followed. The same case is most fully reported in 6 Mod. 99. where Lord Holt says, that advising one to rob or kill, without something be done t/H'mijuiH, is not indictable. And he agreed, that a con- spiracy to charge one with a bastard child is indictable; but if one should advise another to do it without more, it would not. And this report also agrees, that the indictment was holden ill by the whole Court for want of an express allegation that the. servant did absent himself. And herewith agrees the opinion of /VW/, .1. in (i Mod. 182. S. C. Lord Holt indeed after- said (r), that he was not satisfied, that to seduce one's servant away was indictable; hut to persuade him to embezzle s master's goods was: but whether it were necessary to alleo- e the servant had embezzled them.' for the indictment might ; iips he for the evil act of persuading. This latter opinion expressed with doubt: audit appears that Lord a'ihere to it in the subsequent case of Reg. v. Cal- i hut also was an indictment for inticiiif an ap- )'""<< to take goods from his master, and afterwards receiv- however was Holt (lid not lingu-titid (d). . . jn observed, that !,, authority of the third part of Salk oA:;;:nt;;;M::i;; t ; r :t;;. orroborated by ther ^Sh (0 6 Mod. 101. (d)2L(/. /?vm. mo. IN THE FORTY-SECOND YEAR OF GEORGE III. < ing the goods knowing them to be the master's, and converting 1801. them to his own use. Judgment was given for the defendant ,, v ~ ., ,1 , f 7 , .. . , Ihe KING on the authority of Reg. v. DameL And to an exception taken against to the indictment that it did not aver that the apprentice took HIGGJNS, away the goods, and that it was not enough to say that the de- fendant received them; Lord Holt said, that it should have been laid that the defendant seduced the apprentice, and that the apprentice vi et armis took away the goods. Though he also thought that the indictment mio-ht have been o-eneral against * o ~ o the defendant for taking away the goods: for he was a taker. In another report (a) of the same case it is stated, that all the Court were of opinion thai it was not enough to lay an intice- ment without an act done in pursuance of it. And another re- port (it) is to the same effect. In none of the books is there any case or precedent to be found of an indictment for a bare solicitation to commit an offence without an act done in pursu- ance of it : and the silence of all the writers on the crown law on this subject is of itself a strong argument that no such offence is known to the law. The general principle of our penal code is to punish the act, and not the intent; with the single exception of high treason, where the traitorous intent constitutes the crime : but even there it must be manifested by some overt act. Nothing is here stated which necessarily irn-r ports that any act was done towards the commission of the offence solicited: a man may incite by words as well as acts. 2dly, It is uncertain upon the face of the indictment whether [ 10 1 the felony solicited were afterwards committed or not; the word incite is in that respect ambiguous: but as the soliciting a felony can only be a misdemeanor in case the felony be not com- mitted, it ought to be expressly averred that no felony was committed; though it may not be necessary to prove such a negative. But 3dly, supposing the offence charged to be a mis- demeanor, and that it is well laid in point of form; yet the Quarter Sessions had no jurisdiction to try it, inasmuch as it is no breach of the peace. That Court being composed of judges deriving their authority from statute (c), can only derive juris- diction from the same source. The stat. 1 .En'. 3. st. 2. c. 16. assigned justices to keep (he peace. The stat. 4 Ed. 3. c. 2. which made the same provision, also assigned other justices to deliver (n) 6 Mod. 288. (/;) 3 Sulk. 4 3. (c) Vide 12 Hawk. ch. 8. s. 13. et sequent. the 10 CASES IN MICHAELMAS TERM 1801. the gaols of such whose indictments were taken before justices IT- of the peace. The stat. 18 Ed. 3. st. 2. c. 2. for the first time S ave *hem jurisdiction to try trespasses in general as well as felo- HIOOINS. nies. This is confirmed by stat 34. Ed. 3. c. 1. The commis- sion of the peace (a) in a sweeping clause gives them authority to inquire of all trespasses, &c. and of all other offences of which justices of the peace may lawfully inquire; and particularizes a number of offences, not including the offence in question. In the construction of this clause Lord Coke says, that the latter words, "of which justices," Sec. qualify the generality of the former: and Hawkins (b) defines trespasses in a large sense to mean not only all inferior offences which are properly and directly against the peace, as assaults and batteries, and such r ji I like; but also all others which are only so by construction. It is true he goes on to add, " as all breaches of the law in general are said to be (c) ; " yet he immediately states forgery and per- jury as exceptions (d); which he founds upon this consideration, that the word trespass is to be taken in its proper and natural sense, namely, to mean personal wrongs and open violence, or at most to extend to such other offences only as have a direct and immediate tendency thereto, as libels and such like. Now it cannot be said that a bare inciting of one to do an illegal act, which implies that it is done in a secret manner and without force, is either a direct breach of the peace, or has a direct and immediate tendency thereto. On the part of the crown it was contended, that every at- tempt to commit a crime, whether felony or misdemeanor, is itself a misdemeanor and indictable, a fortiori in the former case. And if an act be necessary, the incitement or soli- citation is an act: it is an attempt to procure the commission of a felony by the agency of another person. By the incite- ment the party does all that is left for him to do to constitute the misdemeanor; for if the felony be actually committed, he is guilty of felony as accessary before the fact. In high treason, though the rule still holds that voluntas reputabatur pro facto, and therefore the compassing the king's death is (a) Vide 2 Hawk. ch. 8. .. 23. et sequent. (4) Ib. *. 38. (c) In R. v. Lnne, an indictment for exercising the trade of a barber with- it serving to it seven years was quashed, because it was not laid contra l>aocm ; for every breach of the law is against the peace. 6 Mod. \ 28. (), besides that the report is not very intelligible, several acts are mentioned to have been laid in the information, such as, the giving money, and the putting it in a chest, to be paid upon the event of the verdict; but above all, the offence charged, which was in effect the tampering with a witness before a trial, to give evidence for a corrupt consideration, was in itself a spe- cific offence against public justice. Lord KEN YON, C. J. The offence imputed to this defendant is of the most serious kind, no less than, that for his own wicked gains he solicited and incited a servant to rob his master; and can it be a question in a country professing to have laws sub- servient to justice and morality, Whether this be an offence? So it is, however, that a great number of cases have been cited, [ 17 ] some of which, I confess, have tended, not to enlighten, but to perplex my mind. But it is matter of satisfaction, that the more modern cases have gotten rid of a great deal of jargon on the subject. I dismiss at once from my consideration ail the cases of actions for slander. And I am satisfied that some of the propositions which are stated in the books referred to could not have come from the judges to whom they are imputed. As for example, when Lord Holt is stated (/) to have said, that if one should advise another to charge a person with a bastard, (by which it must be understood that the charge was ill founded,) it would not be indictable. I do not believe that he said so; (a) 2 Lev. 205. (b} '2 U. Raym. 1167. ( c ) i stra. 163. (rf) 4 Burr. 2494. (r) 2 Ld. Ra,j*. 1377. (/) C ald. 597. (g) 2 Stra. 1074. (A) 2 Show. 1, (i) Vi. R eg i M v . Danicl) 6 j, cdt 100 . IN THE FORTY-SECOND YEAR OF GEORGE III. 17 for it must be remembered, that such a charge is made upon 1801. oath, and he could never have said that to suborn a witness to ,_, 77~. The KING commit perjury was no offence, although the perjury were not against alleged to have been committed. But if he had delivered such HIGGINS. an opinion, it is a sufficient answer, that the contrary has been expressly adjudged in more modern times by all the judges in the case alluded to, before Mr. Baron Adams at Shrewsbury, which was quoted in the case of The King v. Scojield: and God forbid that it should not be considered as an offence. But it is argued, that a mere intent to commit evil is not indictable, without an act done 5 but is there not an act done, when it is charged that the defendant solicited another to commit a fe- lony? The solicitation is an act; and the answer given at the bar is decisive, that it would be sufficient to constitute an overt act of high treason. The case of The King v. Vaughan was not passed over slightly. It was there attempted to be maintained, that an attempt to bribe the Duke of Grafton, then a cabinet minister, and a member of the privy council, to give the de- fendant a place in Jamaica, was not indictable. Lord Mamjield [ 18 ] rejected the attempt with indignation. It was a solicitation to the duke to commit a great offence against his duty to the king and the public. So it is here: and it would be a slander upon the law to suppose that an offence of such magnitude is not in- dictable. I am also clearly of opinion, that it is indictable at the Quarter Sessions, as falling in with that class of offences, which, being violations of the law of the land, have a ten- dency, as it is said, to a breach of the peace, and are there- fore cognizable by that jurisdiction. To this general rule there are, indeed, two exceptions, namely, forgery and perjury; why excepted I know not ; but having been expressly so ad- judged, I will not break through the rules of law. No other exceptions, however, have been allowed, and therefore this falls within the general rule. GROSE, J. This is a very grievous offence, and it is most important to the public to be made known as such. Neverthe- less, if it be no offence to incite a servant to steal from his mas- ter, or if the offence be not properly laid in point of form, or if the Sessions have no jurisdiction to inquire of it, then the judg- ment must be arrested. First, as to the offence itself, it must be admitted that an attempt to commit a felony is in many cases at least a misdemeanor; to instance the common cases of nu attempt 18 CASES IN MICHAELMAS TERM 1801. The KING against r 19 attempt to rob or to ravish, which are indictable offences in every day's practice. But further, an attempt to commit even a misdemeanor has been shewn in some cases to be itself a mis- HIOOINS demeanor. Then if so, it would be extraordinary indeed if an attempt to incite to a felony were not also a misdemeanor. If a robbery were actually committed, the inciter would be a felon. The incitement, however, is the offence, though differing in its consequences, according as tlit offence solicited (if it be felony) is committed or not. The guilt of an accessary before is m many cases as great as that of the principal ; sometimes indeed it is even deserving of greater punishment. For the principal is often put upon committing the offence by the accessary before, and is instructed by him how to perpetrate it, in order that he may be benefitted by becoming the receiver of the goods after they are stolen. It is said, however, that there is no instance of a mere solicitation to another to commit a felony being ad- judged a misdemeanor; and it was attempted to be distin- guished from the case of Ret v. SctfleM: but that case, though not immediately in point, is in truth much stronger than the present; for there an attempt to commit a misdemeanor was holden indictable: and the cases of R. v. f'aughan and R. v, P/i/mpton were expressly recognized, which come still nearer to the present: nor \v;is the case of R. v. Johnxon denied to be law, which was a solicitation to commit perjury, and which had been cited in the course of the argument. All these cases prove, that inciting another to commit a misdemeanor is itself a misde- meanor: a fortiori therefore it must be such to incite another to commit felony. It is also objected, that some act should be laid to have been done in pursuance of the incitement; but I do not remember any case where such an averment has been holden to be necessary; nor can it be deemed so if, as I conceive, the gist of the offence is the incitement: and indeed if the incite- ment were to commit felony, and the fact were committed, the inciter would himself be a felon. Neither was it necessary, in order to shew that this was only a misdemeanor, to negative the commission of the felony. None of the precedents of indict- ments for attempts to commit rape or robbery contain any such negative averment. Hut it is left to the defendant to shev, if he please that the misdemeanor was merged in the greater offence. Then as to the question of jurisdiction, I am clearly of opinion that there is no foundation for the objection. The passage IN THE FORTY-SECOND YEAR OF GEORGE III, 20 passage cited from Ilaiukins appears to me to be good law, 1801. and it goes the whole length of shewing that the Sessions have , K jurisdiction in this case. The offence tends to a breach of aqainst peace : and no good reason can be assigned why that Court HIGGINS. should not have jurisdiction over such offences. As to the reasoning drawn by analogy from actions for slander, it is in support of this indictment; and I should think such an action would lie for accusing a man of doing what this defendant is here charged to have done. LAWRENCE, J. Three objections were taken to this indict- ment : 1st, That it is uncertain on the face of it whether Dixon did not steal the goods; and that if he did, then the offence would be felony and not a misdemeanor. 2ndly, That a mere intent to commit a crime is not indictable. 3rdly, That the justices in Sessions had no jurisdcition. As to the first, there is no pretence for it; for it cannot be intended that a felony was committed where none is so charged. In 2 Jlmvk. eh. 25. s, 60. it is laid down, that the Avant of a direct allegation of any thing material in the description of the substance, nature, or manner of the crime, cannot be supplied by any intendment or implication whatsoever. And an instance is given from Keihv. 87. wherein it was adjudged that an indictment against one for feloniously breaking such a prison, and commanding another who was therein imprisoned for felony to escape, was not a good in- dictment for a felonious breaking, without expressly shewing that the party did escape ; and yet the breaking could not be felonious [ 21 J as it was laid, unless there was an escape. Therefore as there is no averment here that Di.ion did steal the goods, it must be taken that he did not. 2ndly, All offences of a public nature, that is, all sucji acts or attempts as tend to the prejudice of the commu- nity, are indictable. Then the question is, whether, an attempt to incite another to steal is not prejudicial to the community ? of which there can be no doubt. The whole argument for the defendant turns upon a fallacy in assuming that no act is charged to have been done by him; for a solicitation is an act. The offence does not rest in mere intention; for in soliciting D/.von to commit the felony, the defendant did an act towards carrying his intent into execution. It is an endeavour or at- tempt to commit a crime. The argument therefore for the defendant must go the length of shewing that an endeavour or attempt to commit a felony is no offence, not even a misde- meanor, 21 CASES IN MICHAELMAS TERM 1801. The KINO against HIGGINS. [22] meaner, if the felony be not committed : for if the felony had been committed by the servant, the defendant himself would have been a felon. The doctrine laid down by Lord Mansfield in R. v. Scqfield, which comprises all the principles of the for- mer decisions, entirely governs the present case ; that so long as an act rests in bare intention, it is not punishable by our laws; but immediately when an act is done, the law judges not only of the act done, but of the intent with which it is done; and if accompanied with an unlawful and malicious intent, though the act itself would otherwise have beer inno- cent, the intent being criminal, the act becomes criminal and punishable. That case is ably reported, and contains every thing convincing which can be said on the subject. There are however older authorities to the same purpose. R. v. Lady Law/i/, Fitzg. 263. was an indictment charging that the de- fendant, knowing that J, C. was indicted for forgery, endeavoured to keep away a material witness for the king: on which there was judgment for the crown. The case alluded to in R. v. Scofield, as tried before Mr. Baron Adams at Shrewsbury, is in point; and I have precedents of similar indictments, one of The King v. Broom, in Northumberland, drawn by Mr. Justice Yates, when at the bar. Another against Guy and another, drawn by Mr. Justice Ashhurst, for soliciting one to kill the Chevalier I)' Eon (a). 3rdlv, The objection to the want of ju- risdiction is founded on a mistaken supposition that the Quarter Sessions can only take cognizance of offences which are direct breaches of the peace ; for their jurisdiction also extends to such offences as tend to a breach of the peace. 2 Hawk. ch. 8. 5. 38. is in point ; and this is confirmed by the judgment of the Court in Rer \. Rhpnl, 3 Burr. 1320. which was a conspiracy to charge a man with taking hair out of a bag; and it was holden that the offence was cognizable by the Sessions; a con- spiracy being a trespass, and tending to a breach of the peace. Lr. BLANC, J. It is contended that the offence charo-ed in the second count, of which the defendant has been convicted, (a) That was an indictment against two fo>- soliciting and endeavouring to persuade and procure one (). M'Allerton to kill and murder the Chevalier D'Enon. A id count charged them with conspiring to take and seize him, and carry him against his will to parts beyond the seas. The 3d count was for a like conspiracy, and also charged that the defendants lay in wait for that purpose. IN THE FORTY-SECOND YEAR OF GEORGE III. 22 is no misdemeanor, because it amounts only to a bare wish or 1801. desire of the mind to do an illegal act. If that were so, I agree T , 7T~ that it would not be indictable. But this is a charge of an act against done; namely, an actual solicitation of a servant to rob his HIGGINS. master, -and not merely a wish or desire that he should do so. [ 23 ] A solicitation or inciting of another, by whatever means it is attempted, is an act done; and that such an act done with 'a criminal intent is punishable by indictment has been clearly established by the several cases referred to. The cases of R. v. Daniel, and R. v. Callingwood, cited for the defendant, do not support the proposition that a mere solicitation is not indict- able : on the contrary, Lord Holt says in the former case (a) that perhaps an indictment might be for the evil act of persuad- ing another to steal. That part of the case however was deter- mined upon the want of a venue. And in R. v. Callingwood (/>), the only point determined was, that the first part of the charge, which \vas for inticing an apprentice to take and carry away goods from his master, was not indictable, being only a private injury for which an action on the case would lie, but not of such a public nature as to maintain an indictment : and that the se-' cond part of the charge was not well laid for want of a venue. Then as to the objection that the Quarter Sessions had no juris- diction in this case, it is sufficient to answer, that the general words of the commission of the peace comprehend all tres- passes ; and the word trespasser not only includes direct breaches of the peace, but also nil such offences as have a tendency thereto : and on that ground conspiracies have been holden to be coo'nizable bv the Sessions; not as actual breaches of the J peace, but as tending thereto. And it appears to me that this is an offence tending to a breach of the peace, and is therefore indictable before that jurisdiction. Judgment affirmed. () 6 MwL 101. (h) 2 Ld. Raym.lllG. VOL. II, (; .ELLIOTT 24 CASES us MICHAELMAS TERM 1801. Tlwrsday, ELLIOTT against DliGGAN. JVor. 12tu. "Where the rj^HE affidavit to hold to bail in this case was made by one SffCreTit -*- J f C., stating himself to be agent to the plaintiff, and swear- is not suffici- j n2 - positively to a debt of 20/. for goods sold and delivered, and agent" in 'an that no offer had been made to i,ay that sum or any part thereof affidavit to j n Bank-notes, to the best of the deponent's knowledge and hold to hail . . J to negative a belief. tender of the Const obtained a rule nisi for discharging the defendant on debt in Bank- . . notes to the common bail, for the defect of the affidavit in not positively ne- ^knoicfedee and g at i ym g a tender of the debt in Bank-notes, as the act () re- beiief; but quires ; the plaintiff living in England, and therefore the case must ^e posi- no ^ Ailing within the exception where the principal with whom lively uega- the debt was contracted is abroad. Lamb now shewed cause, and admitted that the objection would have been well founded according to the case of Cass v. Levy (/>); but said, that in a subsequent case of The Mayor of London v. Dias (r), an affidavit sworn in the present manner by a clerk in the chamberlain of London's office was holdon to be sufficient, though the chamberlain himself, who was the princi- pal officer in that respect, was in England. But The Court said, that was the case of a corporation, and an [ 25 ] exception to the general rule, which in the case of individuals requires a positive negative of a tender of the debt in Bank- notes where the principal resides here (//). Rule absolute, () 37 Gen. S. c. 45. (b) r, Term Hep. 520. (c) 1 East's Rep. 257. (d) But a direct negative of such tender sworn by the agent himself is suf- ficient. Knight v. Knjtc, 1 East's Rep. 415. The JN THE FORTY-SECOND YEAR OF GEORGE III. ' 25 1801. The KING against The Inhabitants of COPPULL. Thursday, Nov. 12th. justices by an order removed Henry Bentham, his wife, A settlement and three children by name, from the township of Standish a ,,,| paying with Langtree to the township of Coppull, both in the county of j" ates l> <* Lancaster. The Sessions on appeal confirmed the order, sub- evidence of ject to the opinion of this Court on a case, stating, That the P au "W? ly ' without the respondents proved by the evidence of the pauper, that his production of father many years ago purchased a small estate for less than 30/. acco^ntm^ in the township of Coppull, and occupied it himself for about reasonably for five years, during which time the pauper was part of his father's dnction of it family; and that the pauper's father during his occupation of the although the estate actually paid the parish rates or assessments in respect of | Jot |, owuer his estate; but the respondents did not produce any rates or a ' ld occupier . l ", _of the estate assessments, and had not given any notice tor the production or for which he the assessments or rates. The appellants objected, that without P aid the rate< the production of them, or having given notice to produce them, there was no legal or proper evidence that the pauper's father was charged for the same. O Topping and Scar/eft, in support of the order of Sessions, said, that the production of the rate was only necessary where it stood uncertain or indifferent who is rated for the estate, [ 26 ] whether the owner or occupier : but here it was unnecessary to be produced, because as the pauper's father was both owner and occupier, no other person could be rated; and it was enough to shew that he had in fact paid the rate; and they referred to R. v. St. Issei/ (a), where the like objection was taken to a settle- ment gained by being rated and paying to the land-tax, because the rate itself was not produced nor any notice given to pro- duce it: but the Court there over-ruled the objection, and treated it as a clear case. Cross was to have argued contra. Lord KEN YON, C. J. It is impossible to argue that parol evidence mav be cm en of rates which are not produced, nor any */ ' notice proved to produce them, nor any reasonable account given for their non-production. The best evidence was not given which the nature of the thing would admit of. GROSE, J. It is in every day's experience to reject parol evi- dence of a writing which may and ought to be produced. Per Cnriam, Both Orders quashed. (a) Bun-. S. C. 826. C 2 The 27 CASES IN MICHAELMAS TERM 1801. The KING againstThe Inhabitants of CHADDERTON. Nov. 12th. Where a case np\VO justices by an order removed John Buckley, his wife and "" to five children b y name > from the township of Little Bo/ton to stated the bare the township of Chadderton, both in the county of Lancaster. p^r's^avinsT The Sessions, on appeal, confirmed the order, subject to the received relief opinion of this Court on the following case: from the re- _, T , 7-, , , , spondenfs pa- The respondents proved that the pauper, John .Buckley, when mil, it was j le b ur i e d his first wife, applied to and received relief from the Lolden that this was not overseers of Chadderton; and that the pauper s mother, being cL e "vEcc f of with chikl of a bastard some few years after his father's death, a settlement went from another township to Chadderton to lie in there, and might iwve '^ " as the P au P er had heard from his mother," who has been dead been relieved some years, she was relieved there by Chadderton. This hearsay wMcT'the' ' 1 ' evidence was objected to by the counsel for Chadderton; but it overseers were W as received : and the removants did not give any other evi- Avanted, whe- dence of a settlement in Chadderton. The Sessions conceiving ther the pan- tj ie above sufficient evidence of a settlement in Chadderton, di- per were set- . , . tied there or rected tlie appellants to go into their case; and the appellants not. Hearsay p rO ved that when the pauper was about 12 years of age, his evidence of a * - -IT fact is not to mother and stepfather made a verbal agreement with James lie received pi aft o f C rcat Motion, cotton weaver, that the pauper, wlio upon a fjiics- . tion of seitie- was then able to weave a little, should weave for him three S?party?h h o >' ears - The stepfather and mother were to have half the gave the in- earnings of his weaving, and Plait the other half. Platt was spe'ciln^'beT to ^' ;u ' n n ' m to weave and find him looms, but the stepfather own settle- and mother were to find him in everv thing else. He served rnent were . , ,,, , ' , . , . , dead. ou t the three years with / latt, during which time he slept in [ 28 ] (treat Bo/ion. Tlif-- Smiflni/s lie passed \\ith his mother, anfl tlie rest of his tune at _P/V///'s; but this was not mentioned in the agreement. AV hen this case was called on in the paper for argument, Lord KKNVON, C. .!. said, that, whatever doubt might be raised as to the settlement in (treat l><>/(o>i, concerning which he thought the Sessions should have found the fact one wav or the other, whether the pauper contracted to serve as an apprentice, or only as a hired servant, in the former of which cases no set- tlement could be gained, as the binding was not by deed, which Lord IN THE FORTY-SECOND YEAR OF GEORGE III. 28 Lord Holt says (a) is necessary in the case of an apprentice ; yet at any rate the orders could not be supported, there being no evidence of any settlement in Chadderton, to which the removal was made ; the bare fact of the pauper's having been relieved there being no proof of it, as they might have been relieved as casual poor. Ilolroijd and Cross, in support of the orders, observed, that the fact of the pauper's having received relief from the over- seers of Chadderton was at least prima facie evidence of their being there settled, so as to call upon them to account for it by shewing that such relief was given to the paupers as casual poor, or under a misapprehension of their being settled there ; no- thing of which was stated in the case : and therefore the fact must be taken as equivalent to an acknowledgment by Chadder- ton that the paupers were their parishioners at the time. Lord KEN YON, C. J. The hearsay from the pauper's mother is no evidence at all of any fact (6); and then the only fact ap- plicable to the settlement in Chadderton is, that when the pau- per buried his first wife he received relief there from the over- seers : but the bare fact of his receiving such relief is no evi- dence of a settlement, for the reason 1 before gave. If the paupers were in want of relief while they were in . Chadderton, the overseers were bound to give it, whether the paupers were settled there or elsewhere. And by the late Act of Parlia- ment (c) they could not have been removed till they were actu-. ally chargeable. The respondents' counsel then desired that the case might be sent back to the Sessions to be reheard, as there was other evi- dence of the settlement in Chadderton; and the subsequent set- tlement was what was understood to be principally contested. Topping contra said, that both the settlements were con- tested ; and the respondents ought to have come prepared with all their evidence on the trial of the appeal. But Lord KENYON, C. J. said, that as the respondents might have given other evidence of the settlement in Chadderton, if the Sessions had not been satisfied with this, there seemed no impropriety in sending the case back to be reheard; and he would recommend to the magistrates to determine the fact in (a) It. v. Culiingwnod, 2 Ld. Eaijm. 1117. (b) Vide post. R, v. [Ferry- , and R. v. Abergevilltj. (c) 35 Get), 3. c. 101 = what 1801. The KIXG against The Inhabi- tants of CHADDEH- TON. [29] 30 CASES IN MICHAELMAS TERM 1801 . what character the pauper contracted to serve his master, which m ,~~7T~ would decide the principal question one way or other, and The KING . , , f ,-, against make it unnecessary to send the case back again tor the opinion The Inhabi- of this Court, tants of p er Curiam, The Case remitted to the Sessions. TON. Thursday, The KING against AIKEY. JVor. 12th. In an indict- HPHE first count of the indictment stated, that one James Bar- ment on the X row on tne 2 2d of March, 40 Geo. 3. &c. at the. burgh of stat '30 O. ">. c. si. tor ob- Kirkbij in Kendal, in the county of Westmoreland, delivered to taming money tne defendant Aireu, late of the burgh, &c. common carrier. on false pre- ' r r> ' tenoes, n is certain goods and chattels of the said ./. 13., to be safely carried alufTthat ky tne defendant from the said burgh to one John Leach at Latir- the defendant caster, 8cc. and there to be delivered, &c. for a reasonable hire knowingly' anc ^ rewar d, &c. and that the defendant afterward^, to wit, and designed- O n, &c. at, &c. received the said goods under pretence of car- y anViIo/by r Y m g an( ^ delivering, and then and there undertook to carry and so means of deliver the same accordingly. And that the defendant contriv- which said . .. , . i ' i i T T> p i false pretences ing and intending to cheat the said ./. b. ot his money, after he obtained W ards, to wit, on the 15th of April in the year aforesaid, with the money; * ', afterwards ne- force and arms, at, &c. unlawfully, knowingly, and design- p?et V enc g e 8 8U to h edl y' pretended to the said J. B. that he the defendant had be true; tlio' carried the said goods from the burgh to Lancaster, for the terms Alleged P lir P ose f delivering the same to the said ./. L., and had that he falsely there (at Lancaster) delivered the same to the said J. L., &c. te and e it and tnat tne sa ^ J- ^-" nat ^ given him the defendant a certain seems it receipt, expressing such delivery of the same goods to the said would have , , , , , IIP i i i . . . , , been sufficient J> *-*., but that he the defendant had lost or mislaid the same to allege that receipt, O r had left it at home; and that the defendant there- he obtained , the money by upon demanded of the * said ./. 13. 16.?. for the carriage of prSence* *. UCh tlie sa ^ S OOfls on that occasion; by means of which said false averring such pretences, he the defendant did then and there, to wit, on, &c. bTfakc! 8 w ' 1 ' 1 ^ Orce and arms > at ^ c - unlawfully, knowingly, and de- *[ 31 ] signedly, obtain from the said ./. B. 16s., with intent to cheat the said J. B. of the same. Whereas in truth and in fact the defendant did not at any time whatsoever carry the said goods, or any part thereof, from the burgh aforesaid to Lancaster afore- said, forthe purpose of delivering the same to the said /. L.; and whereas in truth and fact the defendant did not at any time before the time of his said pretences, and obtaining the said money IN THE FORTY-SECOND YEAR OF GEORGE III. 31 money as aforesaid, deliver the said goods, or any part thereof, 1801. to J. L. at Lancaster, or at any other place whatsoever; and fhe K ~ whereas in truth and in fact, the said J. L. never did deliver the against said supposed receipt, or any receipt whatever, expressing the AIHEY. said supposed delivery of the said goods to the said J. L. ; and whereas in truth and in fact the defendant never received from J. L. any receipt whatsoever, concerning the said supposed de- livery of the said goods, or any part thereof; and whereas in truth and in fact the defendant never had in his custody or pos- session any receipt or memorandum whatsoever, relating to the said supposed delivery, &c. There was another count, not materially different as to the present purpose, After conviction and judgment of transportation for seven years, the defendant brought a writ of error, and assigned for special cause, L That it is no where alleged in the indictment, that he did falsely pretend any matter or thing to the said J. -B., by means of which the said sum of 16s. mentioned to have -been unlawfully, knowingly, and designedly obtained by the defendant from J. B,, with intent to cheat and defraud [ 32 ] him, was so obtained by the defendant. 2. That no false pre- tence whatever, specifically and positively alleged and charged as such, is alleged and charged in the indictment to have been made or used by the defendant to ./. B., by means of which the said sum of 16s. alleged to have been wilfully, know- ingly, and designedly obtained by the defendant from J. .B., with intent to cheat and defraud him thereof was so obtained. And also assigned the common error. Knowh/s took objection to the indictment, first, that it is not expressly alleged that the pretences made by the defendant were false, which is the gist of the offence created by the stat. 30 Geo. 2. c, 24. on which alone the indictment can be sus- tained. The words of the statute are, that " all persons who " knowingly and designedly by false pretences, &c. shall obtain "goods, Sec. with intent to cheat any person, &.C. shall be "deemed offenders." 2 Hawk. cJi. 25. s. 60. (which cites Staundf. 96, and Keilw. 86, 7. ) says that the want of a direct allegation of any thing material in the description of the sub- stance, nature, or manner of the crime, cannot be supplied by any intendrnent or implication whatsoever. And the same author (.s. 110.) adds, that neither the words contra formam statuti, nor any periphrasis, intendment, or conclusion, will make 32 CASES IN MICHAELMAS TERM 1801. make good an indictment which does not bring the fact pro- ,,,, hibited within all the material words of the statute ; as rapuit in auatnst rape; voluntarie and corrupte in perjury. Secondly, The AIUEY. omission ii charging that the pretences were false cannot be supplied by the words following ; " by means of which said " false pretences," &c. for no pretences used were before al- ii 33 J leged to be false, and therefore the conclusion is not warranted by the premises. It is true, at the end of the indictment the truth of the pretences used is negatived ; but that Avill not sup- ply the want of a direct allegation that the defendant knowingly used false pretences ; because it is not enough to bring a case within the statute, that the defendant made use of certain pre- tences, and that those pretences were false, unless he knew them to be false at the time. Falsity is as much the substance of this crime as of perjury; now no indictment for perjury would be good without a direct allegation that the defendant falsely swore, although the falsehood of the fact sworn were afterwards positively alleged. So in forgery, all the precedents are that the instrument was falsely made. Besides though the truth of each member of the pretence is separately negatived, it is no where stated that the whole combined together was. false. Holroyd contra was stopped by the Court. Lord KEN YON, C. J. The case is too clear to require any argument. I do not quarrel with any of the general proposi- tions which have been advanced, such as, that the substance of the offence ought to be charged with certainty; and that the law will not intend guilt unless it, be positively alleged and proved ; and the like. But the question is, Whether there be not a positive charge of obtaining money upon false pretences in this case? In certain cases it is true, there must be known technical words used in order to describe particular offences, such as, inurdravit in murder; burglariter in burglary; rapuit in rape. These having been long ago establised to be neces- sary in the description of the several offences must be abided [ 34 J by. But (here is no rule of law which says that there must be technical words in every case; nor am I inclined to multiply the instances. I once before had occasion to refer to the opi- nion of a most eminent judge, who was a great crown lawyer, upon this subject, I mean Lord Hale (); who even in his () 2 Hale, I'.'S. time IN THE FORTY-SECOND YEAR OF GEORGE III. 34 time lamented the too great strictness which had been required in indictments, and which had grown to be a blemish and in- convenience in the law; and observed, that more offenders escaped by the over easy ear given to exceptions in indictments than by their own innocence. What is this case? a man gives goods to a carrier to convey to a certain person at another place ; the carrier pretends that he delivered them, and that the bailee had given him a receipt for them, but that he had mislaid or left it at home; by which he gets the price of the carriage from the other; and all these pretences the indictment proceeds to charge were untrue ; and yet it is objected that it is not alleged with sufficient certainty that he obtained the money by false pretences. But unless there must be some particular arrangement of words in such an indictment, I cannot see how the matter can be rendered more certain. There would be just as much sense in requiring that the indictment should be written in the old Saxon character. Take the whole of the in- dictment together, and the charge appears plain and intelli- gible; and if the defendant had not known the pretences to be false, it would have been matter of defence for him before the jury. GROSE, J. I agree that the offence must be substantially alleged, and I think it is so in this indictment. It is alleged O that the defendant received money upon certain pretences, and in a subsequent part of the indictment all those pretences are alleged to be false; and it even goes on to state, that by means of such false pretences he obtained the money. That was not necessary in my opinion ; for it would have been sufficient to have shewn the pretences, and averred them to be false. And all through the indictment charges the several pretences to have been made " unlawfully, knowingly, and designedly," for the purpose stated. The offence therefore is completely brought within the words and meaning of the statute. LAWRT.NCK, J. Every indictment must contain all the cir- cumstances necessary to constitute the crime ; and those cir- cumstances must be stated positively without any periphrasis, or intendment. Now here the crime in fact was, that the defend- ant obtained money from the prosecutor by pretending that he had delivered the u'oods according to his order; which in truth he had not. done. Then does the indictment charge that offence I It alleges Jhat the defendant pretended that he had de- livered; 1801. The KING against AIIIEY. [35 ] 35 CASES IN MICHAELMAS TERM 1801. The KING against AIREY. livered the goods, and had taken a receipt for the delivery, which receipt he pretended he had mislaid or left at home; and then the indictment avers every one of these pretences to be false ; and that the defendant did all this unlawfully, know- ingly, and designedly ; which is all that the statute requires : and it is immaterial in what part of the indictment the several allegations are to be found. O LE BLANC, J. concurred in opinion; observing, that there was a positive allegation that the pretences made were false, which was all that the statute required in that respect to bring the case within it. Judgment affirmed. [ 36 ] WATSON against MARY FOXON. a limi- T]\f assumpsit for money had and received by the defendant to tbMife tne plaintiff's use, tried before Lord Kenyan, C. J. at Guild- Under a tation (after estates for to A. and fi.) ^ a // Sittings in Triniti/ Term 1801, a verdict was found for the 'every the plaintiff for 161/. subject to the opinion of this Court on the following case : An action was brought by the plaintiff to recover 161/. paid by him to the defendant in advance on a contract entered into between them for the sale of certain messuages and lands at ' "otten'' e if lje " Waskingborough in the county of Lincoln, and which he seeks to recover on the ground that the defendant cannot make a good title to the premises. The title is as follows : Thomas Becke was seised in fee of the premises in question, and several other estates in Lincolnshire, on the 25th October 1755. He had a son, John Becke, and two daughters ; Ellen, who had married Gervase Gibson, and Sarah, who had married Charles \ewco- nien. John Becke had two children, Thomas Kellett Becke and J\lan/ Becke. Lllen Gibson had one daughter, Ellen. Sarah \ewcomen had one daughter, Man/, who married John Foxoit; and hud four children, Thomas, Clarissa, Charles and James. All these persons where living when Thomas Becke made his will, and at the time of his death. On the 25th of October 1755, he ' body issuing ; ' and for vnnt of such issue" (a devise of) "the said premises to C. ,V. &<." (with several limi- tations over.) "And for want of such iss'ie,'' then testator divided the said premises between several branches of his family. Held that cross remainders were to be implied between the younger children of U. from the apparent intention of the testator from the whole of the will, notwithstanding the use of the word respective iu such devise. made | said P rc- niiscs to 31 1 'and every ' tlle >' un s-" r children of ' B. begotten ' more than 'one equally ' to be divided ' amoni'st ' them, and ' to the heirs ' of their re- ' spectire bo- ' dy and bo- ' dies as te- nants in ' common, '&c. and if 1 only one 'child, then ' to such only 'child and to the heirs of his or her IN THE FORTY-SECOND YEAR OF GEORGE III. 36 made his will, duly executed and attested to pass real estates; and thereby, after providing for his grand-daughter Mary Becke, limited the principal part of his estate (not now in ques- tion) to his son John Becke for life, remainder to Thomas K. Becke for life, and so on in strict settlement to the children of Thomas Kdlett Becke, with divers remainders over to his other children and grand-children; and also limited other premises (not now in question) to his daughter Ellen Gibson for life, remainder to his grand-daughter Ellen Gibson in tail, with divers remainders over to his other children and grand-children. O He devised the premises in question in the words following; " Item. I give and advise all that my farm, with all and every " the messuages, cottages, closes, lands, and tenements to the " same belonging, situate and being in Washingborongh and " Heighington in the county of Lincoln, as the Same are now in "the tenure of Mr. Robert llurton, his assigns or under- " tenants, together with my fishery there, to my daughter Sa- " rah Neiccomen, and to my grand-daughter Man/ Foxon, during "their respective lives, and the life of the longer liver of them, "equally to be divided between them; remainder (to a trustee "and his heirs to preserve contingent remainders). And from " and after the deaths of the said Sarah Xewcomen and Mary " Foxon, and of the death of the survivor of them, I give and " devise all and every the said premises to all and every the "younger children of the said Mary Foxon begotten or to be be- " gotten, if more than one equally to be divided amongst them, " and to the heirs of their respective body and bodies, to hold as "tenants in common, and not as joint-tenants; and if the said " Man/ Foxon shall have only one child, then to such only "child and to the heirs of his or her body lawfully issuing; and "for want of such issue, I give and devise the said premises to "my son in-law Mr. Charles Netvcomen for the term of his na- " tural life ; and from and after his decease, 1 give and devise " the same to my grandson-in-law Mr. John Foxon for the term " of his natural life ; and from and after his decease, I give "and devise the said premises to my son John Becke for the "term of his natural life; and from and after his decease, 1 "give and devise the said premises to my grandson Thomas "he/left Becke, and to the heirs of his body to be begotten; "and for want of such issue, I give and devise the said pre- "mises to my grand-daughter Mary Becke, and to the heirs of "her body to be begotten; and for want of such issue, I give " and 1801. WATSON against FOXON. [37 J [38 ] 38 CASES IN MICHAELMAS TERM 1801. WATSON' against Foxox. [3D] "and devise the said premises to my daughter Ellen Gibson for " the term of her natural life ; and from and after her decease, I "give and devise the same to my grand-daughter Ellen Gibson, "and to the heirs of her body to be begotten ; and for want of "such issue, I give and devise the said premises to all and "every the younger children of the said Ellen Gibson my "daughter begotten or to be begotten, if more than one equally "to be divided amongst them, and to the heirs of their "respective body and bodies, to hold as tenants in common "and not, as joint-tenants; and if my said daughter Gibson "shall have only one child, then to such only child and to the "heirs of his or her body lawfully issuing; and for want of " such issue I give and devise two third parts of the said pre- " mises to my two nieces Jmtina and Elizabeth Becke, and the "other third part of the said premises to the three children of "my niece Sarah Searbi/, and to the heirs of their respective bo- "dies, to hold as tenants in common and not as joint-tenants; "and for want of such, to my own right heirs for ever." The testator has taken notice by name of all the four children of Mary Foxon in different parts of his will. The said Thomas Becke died seised in fee of all the said lands in 1758. It is admitted that the defendant can make a good title, and that the plaintiff is not entitled to recover, if under the devise above set forth cross-remainders are raised in the premises in question betwen the younger children of Man/ i\)ion: and that she cannot make a good title, and that the plaintiff is entitled to recover if such cross-remainders cannot be raised, The question for the opinion of the Court was, Whether the plaintiff were entitled to recover ? If he were, the verdict to stand, otherwise a nonsuit to be entered. This case was argued in Triniti/ Term last by Hnllock for the plaintiff, and Dampierfor the defendant; and again in this Term by Gibbs for the plaintiff, and The Attorney General WAS to have argued for the defendant, but the Court thought it unnecessary to hear him. The arguments ran to great length; but as the cases cited and commented upon have been so .often discussed before on similar occasions, and as the Judges in delivering their opi- nionson the presentcase went so fully into the subject, both upon general principles of law, and the particular application of them to the will in question, it is unnecessary to detail the arguments urged at the bar. The principle stress was laid by the plaintiff's counsel IN THE FORTY-SECOND YEAR OF GEORGE III. 39 counsel on the word respective., in the limitation to the younger children of Mary Foxon and the heirs of his and their respective body and bodies, &c. as disjoining the title and preventing the raising of cross-remainders between such children : and the opi- nion of Lord Hardwicke in Comber v. Hill (a), and Davenport v. Oldis (b) thereupon. Lord KEN YON, C. J. Whether if the question were now to be taken up again de novo, the strict rules of construction ap- plicable to deeds were not better to be required in the case of wills, I have always had my doubts. It is now however too late to consider that question; forever since the statute of wills en- abled persons to dispose of their property in that manner, the endeavour has always been to give effect to the intention of the testator so far as it is to be collected from the instrument itself. And such being the rule of construction, it would be deluding parties to do otherwise ; after pretending to give them a power to dispose of their property according to their intention, not to give effect to it where it is capable of being ascertained and effectuated. I cannot do better than express my opinion in the words of Lord Mansfield in Pen/ v. White (c), that where cross- remainders are to be raised by implication between two and no more, the presumption is in favour of cross-remainders : where they are to be raised between more than two, the presumption is against them : but that presumption may be answered by cir- cumstances of plain and manifest intention either way. What- ever is declaratory of the intention of the party, I take to be expressed. No technical words are necessary to convey an in- tention: but if taking the whole instrument together there be no doubt of the party's meaning, we arrive at the conclusion. Now here the testator sets out with devising all that his farm, and all and every the messuages, &c. in W. and 11. to his daughter S'. A. and his grand-daughter Man/ Foxon for their lives, re- mainder after the death of the survivor to all and every the younger children of Man/ Foxon; if more than one, equally to be divided amongst them, and the heirs of their respective body and bodies as tenants in common; raid if only one child, then to such only child, and the heirs of his or her body, &c, "And for want of such issue, I give and devise the said premises" to my son-in-law C. JY. (What he meant by the said premises is evident, and could not have been rendered clearer by saying fl// 1801. WATSON against FOXON. [40] () 2 Sl:-u. 960. (t) 1 Alk. 5T9. (c) Cowp. 7bO. the 41 CASES IN MICHAELMAS TERM 1801. the said premises ; though it might have served to multiply the WATSOX against Foxox. [42 ] words.) Then after several limitations, " and for want of such issue," he proceeds to divide the estate into thirds to go to dif- ferent persons ; till then the entirety of the estate was to be pre- served, and all was to go over at the same time. But great stress is laid here upon the wore! respective as disjoining the title ; and the authority of Lord Hardwicke is referred to in the cases mentioned (). No person regards whatever fell from that great Judge with more reverence than 1 do: but it was unworthy of his great learning and ability to lay such stress as he is stated to have done on the word respective. Creating a tenancy in com- mon divides the title as much, whether the word respective be used or not. And as to what may have been said by other Judges, with reference to the opinion delivered in Comber v. Hill, and Davenport v. Oldis, in subsequent cases where the word respective did not occur; feeling themselves right in the principle on which they proceeded, it is not to be wondered at that they were desirous of relieving their own minds from the weight of Lord Hardu-icke's opinion by shewing that there was a distinction between the cases in the omission of that word on which he had so much relied : but it is too much to infer from thence that those judges therefore approved of his opinion, or that their judgments were governed solely by that considera- tion. In deciding this question we are also bound to look to our own opinions delivered in other cases ; more especially when those opinions have been revised and approved by higher tribu- nals. The case of Alhcrlon v. Pi/e, 4 Term Hep. 710, was like the present; our opinions there were certified to the Lord Chancellor, and approved by him, and the estate went accord- ingly. There indeed the devise over, in default of such issue, was off/// the testator's said lands; and stress was laid bv some of us on the word all in support of raising cross-remainders be- tween the issue, I will not say by implication, but by what we collected to be the intention of the testator. But the word all was not decisive of that rase, and in truth makes no difference in the sense; for a devise over of the said promises, or the pre- mises, or all the s-.iid premises, means exactly the same thing. Admitting therefore the general rule that the presumption is not in favour of raising cross-remainders by implication between more than two, still that is upon the supposition that nothing () Cumber v. Hill, 2 Stra. 969. Davenport v. Oldis, 1 Atk. 579. appears IN THE FORTY-SECOND YEAR OF GEORGE III. 42 appears to the contrary from the apparent intention of the tes- tator. I have no doubt here but that the testator intended to give cross-remainders amongst the issue of M. F. The devise over of the premises meant ail the premises : he intended that all the estate should go over at the same time. I think Lord Mans- JielcCs quarrel with the case of Davenport v. Oldis well founded ; and I agree with the cases of Wright v. Holford (a), and Phi- pard v. Mansfield (/>) ; 'and I cannot distinguish this case from those. I am clearly of opinion that the intention of the testator is the Polar Star by which we should be guided in the construc- tion of wills where no rule of law is thereby infringed ; and here the intention is clear to give cross-remainders. GROSE, J. The old rule of construction was, that as amongst more than two, the presumption was against cross-remainders by implication ; but that being a presumption of intent, it would be most absurd to say that it should prevail against the apparent intention of the testator to the contrary : for that would be no other than saying that that which was to be governed by the tes- tator's intent should be decided in direct opposition to it. (Af- ter adverting to the state of the testator's family at the time), the premises are devised amongst the younger children of Mary Foxon, his grand-daughter, and the heirs of their respective body or bodies, if more than one, as tenants in common, if only one child, then to such only child and the heirs of his or her body ; and for want of such issue, then over. The question then is what the remainder-man was to take ; in any event, whether there were one or more children, it is plain that he was to take the whole, for the devise to him is of the said premises, which must mean the whole, in default of such issue, that is in default whether of one or more. And this is rendered still more plain by the subsequent part of the will, where, after other interme- diate limitations, the estate is to be divided in several portions, which shews that the testator meant that it should go over entire, till the event in which it was expressly directed to be divided. Then can we say that, it was not his intention that the children of Mary Foxori should take cross-remainders, without which the estate could not go over altogether to the person to whom it was next limited over. It is true that the word respective occurs here in the limitation to the children of Man/ Foxon, and the 1801. WATSON against FOXON. [43 ] (a) t'uwp. 3t. (b) II... 43 CASES IN MICHAELMAS TERM 1801. WATSON against FOXON. [ 44 ] heirs of their respective bodies; and it is as true that there is no case of cross-remainders where that word has been used in the same manner; but that is of no importance: there is no magic in the word ; nor can it be said to be of any other conse- quence than 10 denote the intention of the testator; but if I find other words which more strongly denote a contrary intent, why should greater deference be paid to that word alone than to all the rest of the will : and as other parts of the will shew a plain intent to give cross-remainders, we cannot construe it otherwise without violating that intention. LAWRENCE, J. The rule as laid down in Gilbert v. Witty, Cro. Jac. 665. is that cross-remainders shall not be implied between more than two; but in Cole v. Levingston, 1 I eiitr. 224, Lord Hale admitted that they might be implied between three, where the words very plainly express the intent of the devisor to be so. And in the more modern case of Pert/ v. White, Coicper, 780, Lord Maw-field lays down the rule thus: "Whenever cross- " remainders are to be raised by implication between two and no " more, the presumption is in favour of them : when they are " to be raised between more than two, there the presumption is "against cross-remainders: but that presumption may be an- "swered by circumstances of plain manifest intention either "way." This is a qualification of the rule laid down in former cases; for they seem to say that there shall not be cross-remain- ders between more than two. Lord llardwicke's authority leans a good deal that way, and so do the cases of Comber v. Hill (a), and Williams v. Brwcn (b), and some others. But the true rule is, as I take it, with the qualifications I have stated. In the case now before the Court, cross-remainders are to be raised between more than two, and it is to be seen if there be not cir- cumstances to destroy the presumption against implying them, and it seems to me that there are. At the time that the testator made his will there were four persons in esse who fell within the description of children of Man/ I'oxon : there might be more, or they might be reduced to one, or all might die. To these circum- stances he was attentive; for he speaks of the children begotten and to hi: begotten, and adverts to the possibility of their be- ing one only to be the object of his bounty: and he jjives his estate in such way as to shew his intention to be that the~children (a) 2 Stra. 9G9. Ib. 996. Of IN THE FORTY-SECOND YEAR OF GEORGE III. of Mary Foxon, however large or small their number might be, should take the whole of the estate ; and that he was not influ- enced by any consideration of their being many or few, or by any preference to those in esse : but that he meant it should be enjoyed by the issue of Mary Foxon, whatever their number might be. And if that be so, it would be putting a construction on the will contrary to his intention, not to give cross-remain- ders; for if other children had come in esse and died without issue, it would have made the situation of the survivors worse than the testator intended it should be if the number of chil- dren had not been increased, without that reason subsisting which alone was meant by the testator to have that effect : and an advantage would be given to those in remainder by an after-born child divesting so much of the estate as was intended solely for his be,nefit, and not for the remainder- man. He never could intend that the three children, who were born, should have the w r hole estate, if no others were born; and that if three others were born, and had died immediately on their birth, that the three eldest and their is- sue should lose half the estate. I think further that the pre- sumption against cross-remainders may be answered from the circumstance of the devise over of two third parts of the said estate to Jiislina and Elizabeth Becke, and of the other third part to the children of Sarah Searbi/. It is a limitation of the said premises: now the said premises are the whole of what was before devised. And it seems to me improbable that the testator could have meant, that his two nieces and the children of a third niece should take otherwise than the whole together, from the very inconsiderable part of the estate which might come to be divided, if they were to take, as the different persons to whom the earlier limitations were made died without issue. For if cross-remainders were not implied, and one of Mar// Faxon's three younger children had died without issue, and the share of that child, by the failure of intermediate limitations, had gone to the younger children of his daughter Ellen Gibson, and she had had a like number of younger children, and one of them had died without issue, there would have been in that case the third of a third or one ninth part to be divided between the tsvo nieces and the children of the other niece ; so that all the children of Sarah Searbi/ would have taken one 27th part; and if instead of three younger children, there had been six, they VOL. II. D would 1801. WATSON" against Poxox. [46] 46 against FOXON. [47 ] CASES IN MICHAELMAS TERM 1801. would have had only one 108th part. In many cases the pre* sumption affinst cross-remainders has been controlled by cir- WATSOK - *, r i . TT_ 7^. _ j / _\ cumstances & notto my mind stronger. In Wright v. Hoi ford (a}, the words "in default of such issue" were holden sufficient; there being no words to narrow their effect. In Phipard v. Mansfield (b), the Court collected an intention to give cross-re- mainders from a clause by which the testator gave his personal estate equally to his devisees, and from thence inferred that he intended them equal benefit in his real estate. In Atherton v. Pye (c) cross-remainders were implied from its being collected that it was the intention of the testator that the whole of the estate should go over together, from his directing that in default of is- sue, all the premises should go to his right heirs ; and yet that was but tautology, for the premises and all the premises are the same thing. In Doe v. Burvillc (d), where the testator, after giving A devise by A. (having o sons and 7 daughters) to Ins sons in succession lor lite, re- mainder to the lieirs male of their bodies, re- mainder to tlie heirs fe- male of their bodies, re- mainder to all and every his drtuyliter and daugh- ters (if' two or more) as tenants in common, and to the heirs of her and their bodies, re- mainder to (a) Coicp. 31. (ft) Ib. 797. (c) 4 Term Rep. 710. (d) The following note of this case is taken from the MS. of Mr. Justice Ashhurst, compared with another note taken by Mr. Justice tiuller when at the bar : DOE on the Demise of BURDEN against BURVILLE. E. 13 Geo. 1. B. R. In ejectment the following case was reserved for the opinion of this Court: George Charllon by his will, dated 30th June 1707, devised unto trustees and their heirs, his dwelling-house and lands thereunto belonging, with the appurtenances, upon trust for the use of his wife, Elizabeth for life; and after her decease to the use of his son .lumen for life, without impeachment of waste ; and after his decease to the use of the heirs males of his body issuing : and for default of such issue to the use of the heirs female of his body is- suing; and for default of such issue to the use of his son John for life, without impeachment of waste ; and after his decease to the use of the heirs males of his body issuing ; and for default of such issue to the use of the heirs female of his body issuing; and for default of such issue to the use of his son George for life, without impeachment of waste ; and after bis decease to the use of the heirs male of his body issuing; and for default of such issue to the use of the heirs female of bis body issuing; and for default of such issue to the use of all and every his (the testator's) daughter and daughters as tenants in common (if two or more) and not as joint-tenants, and to the heirs of her and their body and bodies issuing, with remainder to the heirs of his brother Al>rahnm for ever. And he also devised to the same trustees and their heirs another estate in Ilcudcorne upon trust for the use of his said wife for her natural life, without impeachment of waste, charged and chargeable with the payment of one annuity or yearly rent-charge of 30/. tax free to his son John, payable half yearly durin-; his life. And from and after the decease of his said wife upon further trust to permit his said son Julm to receive the rents and profits for his life, without impeachment of waste; and after his decease to the ix THE FORTY-SECOND YEAR OF GEORGE III. 48 giving to his three sons estates in tail general, with cross-re- 1801. mainders in default of their issue, limited the estate to all and ,,7 WATSON * every the testator s daughter and daughters, as tenants in com- against mon, FOXON. *[ 49 ] the use of the heirs males of his body issuing; and for default of such issue to fne heirs of the use of the heirs female of his body issuing; and for default of such issue , e th ev ' SC to the use of his son George for life, without impeachment of waste; and after gives cross- his decease to the use of the heirs males of his body issuing; and for default remainders of such issue to the use of the heirs female of hi body issuing; and for default- to tne daugh- of such issue to the use of his son James for life, without impeachment of waste ; . ers ' ...... ______ 'tween more and after his decease to the use of the heirs males of his body issuing; and than two the for default of such issue to the use of the heirs female of his body issuing; presumption and for default of such issue to all and every his daughter and daughters a* ' s against tenants in common (if two or more) and not as joint-tenants, and to the heirs cr '. S! 5 ~|^" of her and their body and bodies issuing, with remainder to the heirs of his ij u (; tms ma y brother Abraham for ever. All the sons are dead without is.sue. All the be controlled daughters, who were seven in number, surviving the father, died in the life- y a time of the surviving son John. The question was, Whether by this will there ! n en I0 " . were cross-remainders raised between the daughters? If there were, the verdict to stand for a moiety of all the premises devised to James and John. If not, then a nonsuit to be entered. After argument by Cox for the plaintiff, and Wallace contra ; * Lord Mansfield, C. J. delivered the opinion of the Court. The question * g ] ft 3 is, Whether there are cross-remainders between the daughters? A limitation of cross-remainders milit without doubt have been made in express words: The question then is, Whether the testator has used such words as to shew Iiis meaning that there should be cross-remninders? No technical words are necessary in a will; if the testator's meaning sufficiently appear, it ought to be carried into effect. The argument at the bar turned not upon the inten* tion, but upon the rule of construction which has been echoed from the case of Gilbert \. Witty down to the present time, that ihere shall not be cross- remainders by implication between more than two. The reason given for it, namely, to avoid the splitting of tenures, could only be used as an argument against the testator's intent. This rule has been so often repeated, that, though not solemnly adjudged in any case which turned on that point, yet it has been so often recognized that it ought nat to be .shaken. But the true sense of the rule is, that between two the presumption is in favour of cross- remainders; between more than two the presumption is against them: but in either case the intention of the testator may control the presumption. In Comber v. Hill, and Williams v. Brown, though between two only, the word respective controlled the construction of cross-remainders. In Cole v. Leving- stn{l), and the case in Dy. 303, though between more than two, yet it was holden there should be cross-remainders from the plain intention of the par- ties. The case in Dyer, which was, where A. had five sons to whom he devised, was determined upon the words, if they all die. Cole v. Livingston has adjudged Gilbert v. Wittij to be good law; for the judges said, there shall not (l) 1 Vfntr. 224. O 2 be 49 CASES IN MICHAELMAS 1801. WATSON against FOXON. *[50] mon, if two or more, and not as joint- tenants, and to the heirs of her and their bodies issuing, remainder to the heirs of his brother. * Lord Mansfield relied on the use of the word re- mainder being in the singular number, and on the necessity of all the daughters of each of the testator's sons dying without is- sue before the remainder to the other sons would take place, as circumstances to shew that cross-remainders were intended be- tween his own daughters. The counsel for the plaintiff have most relied on the devisor having given the estate to the heirs of be cross-remainders between more than two, unless the words plainly express the intent. In Marrynt v. Townly (l), Lord Hardwicke says the law will not admit of cross-remainders between more than two : but that is by impli- cation only; but where the intention is plain, it is otherwise: and there he Leld the word joint-tenants to explain it. In Miller v. Moore, 13 Geo. 2. Lord C. J. Lee 1 said, "where the devise is to three or more, cross-remainders "cannot be held, unless the intent bo plain and unavoidable; and then the ' Court may be forced to determine it to be cross-remainders." The question then is, under these authorities, Whether the intent here is so plain and un- avoidable as that it cannot be effectuated without giving cross-remainders? and we think that it is plain and unavoidable to give cross-remainders. The testator had three sons, to each of whom he gives several estates in tail. His plan was to follow the course of descent, by preferring even the female line of each of bis sons (in failure of the male) before his other sons and their male line, and before his own daughters. He thought the coming to his daughters a remote contingency; he therefoie makes use of the words "daughter and daughters; 'all and every; if two or more;" supposing that the number might be reduced before they might become entitled. He takes for granted that a remainder to his brother jlbnthnm, who was alive when he made the will, could not take place till failure of his own issue ; therefore he limits the re- mainder to the heirs of his brother Jbrulunn, supposing it not likely to bap- pen in his time. He also limits the remainder in the singular number; con- ceiving that it conld not take effect till the death of the last daughter without issue. We think these words are equivalent to an express declaration that there shall be cross -remainders. In all the limitations the female line of each son must fail, before the male line of the oilier sons shall take, and all must fail before the -daughters could take : then it would be absurd to suppose that he meant to devise over the shares of any of hU own daughters dying from the rest, when he had not done so by his son's daughters; or that he should have given to the heirs of his brother the share of one of his own daughters dying while any of them were left; for if /Ibruhttm had no children, then the daughters would be his heirs. Therefore we think he has given all his daughters the estate with cross-remainder.s as fully as if he had given them in the most express words. Consequently the verdict must be entered for a moiety of the premises deviied to James and John. (1) 1 Vcs, 102. the IN THE FORTY-SECOND YEAR OF GEORGE III. the respective bodies of the children, as a circumstance to shew that cross-remainders were not intended ; and have cited the cases of Comber v. Hill, Davenport v. Oldis, and Brown v. Williams. As in those cases the limitations are not in the same words with the limitation in this case, I do not feel myself pressed by them : there is no principle extracted from them which I mean to controvert. And where a case is cited not for the sake of some principle or rule, but to shew that certain ex- pressions cannot or must have this or that construction put on them, such cases can only rule other cases where the subject- matter of construction is not to be distinguished. The word O respectively has no uncontrollable force to prevent cross-remain- ders : the intention of the testator may be collected from that word to shew that he did not mean cross-remainders, but that inference may be restrained by other words ; according to what was said in Doe v. Dor-veil (a). In this case I understand the word issue to mean ' all and every the younger children of Mary Foxon, " begotten or to be begotten, and the heirs of their respective "body and bodies;" and as long as any of her children or the heirs of their bodies are in esse, there is not a want of such issue. It is true that in Comber v. /////, and in Davenport v. Oldis, Lord Hardwicke, in the construction he put on the wills in those cases, referred the word respective to the heirs of the bodies: but there it could not be referred to the first takers of any estate of inheritance, because the limitations were to certain persons by name, and not to persons falling under the general descrip- tion of children beo-otten or to be begotten, to whom issue ~ O will fairly apply in this case. The case which is nearest the pre- sent is that of Williams v. "Brown (b), in which, according to the account of it in Barnardistou, the Court did not decide against O cross-remainders but with great difficulty. But in that case the limitation was materially different ; for that was a limitation to all and every the child and children born or to be born of the body of Mehetabel, equally to be divided between them and the- heirs of their respective bodies; and for want of such heirs re- mainder over. Now the word heirs was not applicable to the words "child and children," but was according to all rules of construction necessarily referable to the same word which just preceded it. There was not a limitation over, like the one [ have pointed out, to the nieces after other intervening liniita- (a) 8 Term. Rep. 513, (6) Barnard, 251. and 2Stra, 996. lions ; 1801. WATSOK against FOXON. 51 CASES IN MICHAELMAS TERM 1801. WATSON against FOXON. '[52] [ >* J tions; which limitation is rational enough if cross-remainders are implied from the certain defined benefit the two nieces and children of the third would in such case take; but, as it seems to me, if cross-remainders are not implied, the benefit is too uib- certain, and in events not improbable, too inconsiderable ever to have been intended by the testator. LE BLANC, J. This is a question of intention, which is to be collected from the words of the will according to the rule which has been established in this respect; \vhich rule I take to be, that if cross-remainders are to be implied between two only, the presumption is in favour of raising cross-remainders, unless the Court see any thing in the will which shews that the testa- tor meant otherwise. But if cross-remainders are to be implied between more than two, then the Court must look to the will to see if there be any words from whence such an intent is to be collected, in order to rebut the presumption of a contrary intent. Here the testator devises to the younger children of M. F. and the heirs of their respective body and bodies, to hold as tenants in common, &.c. and the word respective is relied on as shewing an intention to sever the title, and against cross-remainders. But where would have been the difference if he had omitted the word respective? It has no effect beyond giving an estate in severally to each of the younger children and their heirs, as te- nants in common, which would equally have been effected by the tenancy in common, without the use of the word respective. Therefore unless the use of that word shew a different intent in the testator, I cannot distinguish this case from any other where it was omitted in a devise of the same kind. The Court how- ever luive been pressed with former decisions where stress was laid upon that word, as in Davenport v. Oldis, and Comber v. ///'//; and with subsequent cases in which the former were re- coo-ni/ed. Of the hitter it is .sufficient to obseive, that the Judges went expressly upon the apparent intent of the testator; and it, was a ready answer to give to the former decisions, that they were distinguishable from the cases then before them in having the word reject ire. But all the latter decisions establish th- principle, that, cro.,s-r< mninders may be raised by implication even between more than two, where the intent is clear to that purpose. .\ow 1 collect such an intent in the present case from tin: limitation to,/// and eccn/ the younger children, and the heirs of their bodies, if more than one, us tenants in common; if IN THE FORTY-SECOND YEAR OF GEORGE III. 53 if only one, to such only child, and the heirs of his or her body, 1801. and in default of such issue then over : and in the subsequent part where he foresees the possibility of all the children dying without issue, the testator divides the estate amongst different FOXON. branches of his family ; which shews that till that period he in- tended that it should go over entire. Therefore, without break- ing into any rule of law, I think the intention so plain as to re- but the presumption against cross-remainders ; and where such an intent is apparent, the rule of law is to raise cross-remainders. Postea to the Defendant (a). (a) Vide cases on cross-remainders collected in Mr. Serjeant IVilliams's note on Cook v. Gtrrnrd, 1 Smind. lfi.5. To which may be added, Doe v. Cooper, 1 East's Reji. 2i 373 _ (c) Viilc RCJC v. Chadilerlon, ante, 27. and Rex. v. Abcrgtcilhj, post. 63. L 36 ] A'or. 17th. DAVIDSON against M o s c R o p . ^ replevin the defendant made cognizance as bailifl'of Sir James (ifdliam, Bart, and justified, 1st, That the locus in A riMom to swear tin 1 ju- rors at one court leet to inquire, and return their presentments at the next court, is bad in law IN THE FORTY-SECOND YEAR OF GEORGE III. 56 quo from time immemorial has been within and part and parcel 1801. of the manor of Nichol Forest, in the county of Cumberland, of which Sir James was seised in his demesne as of fee and against ' that from time immemorial the lords of the manor have been MOSCROP. used and accustomed to hold a court leet and view of frank- pledge within the manor twice a year, 8tc. of all the inhabitants and resiants within the manor before the steward, &c. That the plain- tiff, before and at the time of holding the court after-mentioned, and from thence continually until and at the time when, Sec. was, and from thence continually hitherto, has been, and still is an in- habitant and resiant within the manor, and subject to the jurisdic- tion of the said Court; and that before the said time when, Sec. and whilst Sir James was so seised, Sec. and whilst the plaintiff so was an inhabitant and resiant, Sec, and before the holding of the said Court after-mentioned, viz. on 28th September 1800, due notice was given to the inhabitants and resiants within the manor to appear at the then next court leet, Sec. within one month after Michaelmas, Sec. viz. on 1st October 1800, to do suit and service there: that on the said 1st October, a court leet and view of frankpledge was in due manner and form holden in and for the manor before the steward, according to the cus- ~ torn, Sec. a.t which court the plaintiff, so being such inhabitant and resiant as aforesaid, though called, did not appear, but made default; whereupon the plaintiff was then and there by the said steward in the said court jined 40s. for his said default, L J whereof he had due notice, Sec. but though demanded, has re- fuserl to pay the said 40s. wherefore the defendant distrained, Sec. The second cognizance stated in like manner that Sir Jamcx Graham was seised of the manor, and had a prescriptive right to hold a court leet and view of frankpledge twice a year, within a month after Easter and Michaelmas, of all the inhabi- tants and resiants within the manor, before the steward, Sec- And it further stated an immemorial custom within the manor, that the jurors sworn in every court leet and view of frankpledge so holden, Sec. have been and ought to be charged and s\v<>rn in the said court to inquire into and present those things which to the said court belong, Sec. and to return such their present- ment at the, then next court to be holden, Sec. and in default of their so doing, the steward of the said next Court has, during all the time aforesaid, been used and accustomed, and of ri^-lit ought to set a certain reasonable fine upon every such juro* making such default for the use of the lord, Sec. and then set forth 57 CASES IN MICHAELMAS TERM 1801. DAVIDSON against MOSCROP. [58] forth another immemorial custom to distrain for such fine. It then averred that the plaintiff, before and at the time of holding the court after-mentioned, and from thence continually, and at the said time when, &c. was and still is an inhabitant and re- siant within the manor, and subject to the jurisdiction of the said court ; and that whilst he vas such inhabitant, and resiant, viz. on 16th April 1800 (within a month after Easter), a court leet and view of frankpledge of the inhabitants and re- siarits within the manor was holden in and for the same, before the steward, according to the custom, &.c. at which said court the plaintiff, so being such inhabitant and resiant, appeared, &c. and was then and there, with the rest of the jurors present, duly sworn and charged to inquire into and present, &c. and to return such presentments at the Court then next to be holden in and for the manor, 6cc. That afterwards, viz. on 28th Sep- tember 1800, due notice was given to the inhabitants and resi- ants, &c. to appear at the then next court leet, &c. within a month after Michaelmas, &c. viz. on 1st October 1800, and that on the said 1st October the said court Avas holden before the steward, &c. being the next court, &.c. after the plaintiff was so sworn and charged as aforesaid; at which said last-mentioned Court the said plaintiff so being such inhabitant and resiant as aforesaid, and having been so sworn and charged as aforesaid, though called, did not appear to return any presentment*, or to do suit and service there, but therein made default; whereupon he was then and there by the said steward, in the said court, according to the said custom, fined 40s. for the use of the lord, &c. for his said default; (the said fine then and there beino- a reasonable Jinc on the said occasion) whereof the plaintiff had notice; but though required, has refused to pay the same, &c. wherefore the defendant, as bailiff, &c. distrained, &c. To this the plaintiff demurred, and assigned for special cause as to the first cognizance, that it does not therein appear that the said fine of 40,s. was a reasonable fine on that occasion. And as to the second cognizance, that it is not alleged that any of the rest of the jurors who, besides the plaintiff, are alleged to have been sworn and charged at the court therein first-men- tioned to have been holden, were resiants or inhabitants within the manor at the time of holding the court therein last-men- tioned ; so as that it might appear that there were a proper or sufficient number of the jurors who were sworn at the said first court, IN THE FORTY-SECOND YEAR OF GEORGE III. 59 -court, resiant and inhabitant within the manor, to make any 1801. presentments at the last-mentioned court, &c. and also for that _. . , . ,, DAVIDSOS it does not appear by the said cognizance that any presentments against were in fact omitted at the last-mentioned court, &c. or that Moscaor. there was any default in any presentments being made at such court. And also the general causes of demurrer were assigned. Littledale, who argued in support of the demurrer, did not touch upon the special causes assigned against the second cog- nizance, but objected as to the first cognizance, that the steward of a court leet has no authority to impose a fine for the non- attendance of a suitor; but according to Hall v. Turbett (a) there ought first to have been a presentment. And by the same case the party should rather be amerced than fined; for if the fine be too grievous he has no remedy; but for amerciaments a moderata misericordia lieth. And the distinction is taken in Griesley's case (6), that as to contempts and disturbances in the court, as by refusal to be sworn, it being a court of record, the steward as judge may set a reasonable fine; but for acts or of- fences out of court, the party ought to be presented and amerced by the jury. Bro. tit. Leete, &c. pi. 29. 1 Roll Abr. 219. & Dy. 211. b. also notice the like cases in which the steward may fine : and the doctrine laid down in Godfrey's case (c) is to the same purpose; where it is also said that the fine must be reasonable: (which is confirmed by 4 Inst. 261) and if unreasonable it may be avoided by plea. Wherefore it seems that it ought to have been averred here to be a reasonable fine, that issue might have been taken on it. [Lawrence, J. There are precedents of pleading in Co. Entr. 571, 572. where there is no averment of the reasonableness of the fine: and in God/'rey's case it is said, [ 60 ] that the justices are to judge of the reasonableness of the fine.] Perhaps it might be good on general demurrer. As to the second cognizance, there are three objections* 1. It goes to compel every person who attended at one court to attend at the subsequent court, and so on at the succeeding courts, whether or not they continue resiants within the manor. 2. It is a cus- tom against the policy of the law, and the due administration of justice, that the jury should be charged at one court leet, and make their presentments at another. 3. It is void as empower- ing the steward to impose a fine for non-attendance at the sub- Co) Cm. Eliz. 241. (b) C Co. 3C. b. and Sav. 95. c) 11 Co. 42. 41. and 1 Roll. R. 73, sequent 60 CASES IN MICHAELMAS TERM 1801. DAVIDSON- against MosCROP. [ 61 ] sequent court, when by law he can have no such authority. 1 . None but resiants are required to attend courts leet ; and at common law none are to attend for lands holden within the manor; because it is a personal service, and not by reason of tenure. Dalt. Of. of Sheriff, 387. 2 Hawk. Ch. 10. s. 2. 12. 2 Inst. 99. 122. Fitz. A r . B. 160 (a). Besides, a custom to compel persons not resiants to attend is unreasonable, because it either has the effect of obliging them to continual residence, or it subjects them to great inconvenience and expense in com- inor from a distance. And this attendance would be without in- O termission after it once commenced; for at each court the same persons would be sworn to attend at the ensuing court. The unreasonableness of such a custom is still more apparent if, as is said in 1 Rol. Abr. 542. the steward may, in case of a de- ficiency of resiants, compel a sojourner, or even a stranger ac- cidentally passing by, to be sworn of the jury. 2. It is contrary to the rule and practice of all Courts in the Realm, that jurors should be sworn at one court to attend and make their pre- sentments at another; but they ought to inquire immediately after they are sworn. If it were otherwise, it would expose the jurors to be tampered with or influenced, and to engage in cor- rupt practices, detrimental to the general administration of justice. It is in direct contravention to the statute of West- minster %. (13 EcL 1.) c. 13. (6) which directs all indictments, &c. to be by twelve jurors at least: whereas, if the indictments were not to be found till the next court after the jury were sworn, there may not be twelve left to make them. The court is com- prised of the steward and jurors, the latter of whom being a fluctuating body, as soon as the court ends the jurors are ne- cessarily functi officio. This then being laid as a custom, not merely to adjourn the same court from day to day, but to ad- journ from one court to another, tends to perpetuate the jury, and render them a permanent body at the will of the steward. In the Duke of Bedford v. Alcock (c), a custom stated for ale- conners sworn at one court to examine the weight of baker's bread, and present offenders at the next, was objected to; but the case went off on another point. The same point was doubted (n) 4to Edit. 373. (6) This statute extends only to sncli offences for which the party may be imprisoned. Colbrnok v. Elliott,^ Bun: 1801. (c) l Wilt. 248. in IN THE FORTY-SECOND YEAR OF GEORGE III. 01 ift Moore v. Wicker (a), and Probyn and Chappie Js. thought that the jurisdiction of a leet jury, like that of a grand jury, was confined to things happening before their swearing, or during their sitting. 3. The steward having no power by general law to impose a fine for any offence committed out of court, a custom to enable him to do that which the law denies him on account of the grievance to the subject, is void. The lord of the leet can only claim by grant or prescription, which supposes a grant ; and the king can only grant such powers as are permitted by the law in that respect. As the king could not grant such a power of imposing fines to the sheriff for the public use, a fortiori, he could not make such a grant to any for his private use. This is not a custom arising out of the tenure of lands to which arbitrary conditions may be annexed at the will of the grantor, but is claimed in respect of mere resiancy. Wood contra, as to the first cognizance, admitted that the case of Hall v. Turbett (b), if law, .was decisive against it: but observed that the distinction taken there did not apply to the case ; for when the juror is called in court and does not appear, that is a fact which passes in the steward's presence in court, and therefore seems rather to fall within that class of cases where he may impose a fine, inasmuch as he does not require to be in- formed of any fact by the jury. Here the party is stated to have been a resiant during the whole time, and therefore the arguments which have been urged against the reasonableness of the custom with regard to non-resiants do not apply. The reasonableness of the fine is not cognizable by the jury, but by the court, according to the authority of Godfrey's case, before referred to. If it be unreasonable, the steward is subject to a criminal prosecution; but that question cannot be tried col- laterally in a civil action. At any rate, however, there is no objection on that score to the second cognizance, where the fine is averred to be reasonable. The general objection does indeed apply also to the second cognizance. There is no case in point which determines that a custom to swear jurors atone court to make presentments at the next is bad in la\v : the practice is not unfrequent to do so: and it is reasonable, inasmuch as it gives the jury more time for deliberation. Lord KENYON, C. J. I never heard of such a practice pre- vailing. The case of the Duke of Hertford \. Alcock, where 1801. DAVIDSON against MoscROP. (a) A ndr. 47. Cio. Eli:. 2-11. sonic- 63 CASES IN MICHAELMAS TERM 1801. DAVIDSON against MOSCROP. something of the kind was stated, went off on the count for the mutuatus, which got rid of the question. The convenience of the thing is much the other way. It would open a door to great abuses. Besides, as far as these courts are of any use at the present day, it is to return small offences, such as require immediate attention and redress. And if grand juries inquiring for a whole county, are presumed to be, and prove themselves competent to make their presentments at the same courts at which they are sworn, there seems no reason why a jurisdiction of so much less moment should require longer time for delibe- ration. Upon the whole I see no colour for supporting such a custom. Per Ciiriam, Judgment for the Plaintiff. Wednesday , Nov. lath. An ex-parte examination in writing of a pauper touching his settlement cannot be received in evidence of sticli settle- ment, tho" he be drad. *[ 64 ] The KING against The Inhabitants of AB ERG WILLY. r I^WO justices by an order removed Ann, the widow of .Ben- -*- jamin Jones, deceased, and her children by name, from the borough of Newport, in the county of Monmouth, to the parish of Abergwilly, in the county of Carmarthen. The Sessions, on appeal, confirmed the order, subject to the opinion of this Court on a case ; setting forth in the first place the examination of Ann Jones, taken before two magistrates, upon which the order of removal was founded; in which examination it was stated " that her husband informed * her after their marriage O "that his last legal settlement was then in the parish of Aber- "gwilly, by hiring and service by the year to one J . II. there," (which was the only matter touching the settlement in Aber- gwilly.) The case then stated, that upon the trial of the ap- peal, the pauper, Ann Jones, upon her examination in Court, denied having ever heard her husband say where he was a pa- rishioner; upon which the Court resorted to a written exami- nation of the husband's, taken before two magistrates, soon after his marriage, but which, in the opinion of the Court, was never acted upon in any manner until the hearing of the ap- peal. In that examination (which was set forth verbatim in the case) the husband swore to a settlement in Abergwilly, by hiring for a year, and service there for a much longer period, with J. //.; and that he had done no other act to gain a settle- IN THE FORTY-SECOND YEAR OF GEORGE III. 64 settlement elsewhere. It was contended on the part of the ap- 1801. pellants, that the Court ought not to have resorted to the ex- T , ^7~ animation either of the husband, who was dead, or of the pauper against herself. The Inhabi- Abbott, who was to have argued in support of the order of tants f Sessions, admitted that it could not be supported after the re- BER- G \V I L TJ Y cent determination of the Court (a) against the admissibility of that species of evidence upon which the Court had formerly been divided in opinion in the case of The King v. Eriswell ( b} : and against the reception of which evidence the present judges of the Court had intimated a strong opinion in R. v. Nuneham Courtney (c). The Court assenting, the rule was made absolute for quashing both orders. Gibbs and Milles in support of the rule. (a) In R. v. Ferry Frystone, ante, 5.4. (b) 3 Term. Rep. 707. (c) Ante, 1 vol. 373. [ 65 ] The KING against The Inhabitants of WANTAGE. Wednesday, Nor. 18th. O justices, by an order, removed Robert Puzey, clerk, A curate from the township of Wantage to the parish of East Lock- "^ ^parfsfi inge, both in the county of Berks. f r above ,1 On appeal to the Sessions, a case was reserved stating, that in the year 1784 R. Puzeu, clerk, was nominated by the then licence to /> i -i 1-1 71 T i ' -i- perform the rector or the parish and parish church or Last JLockinge to be O ffi ce O f curate of the same, and was licensed to perform the office () curate, at a 1111111- certain annual oi curate in the said parish and parish church by the then bi- stipend, is shop of the diocese, who assigned to him the yearly stipend of ^^ J, a s " 45/. (b). That the pauper entered on the said curacy in the officer as is same year, and performed the duties thereof for six years, 5"^^,^ if y during which time he resided in the parsonage-house within the virtue of the said parish, and that he gained no subsequent settlement. * > a 1 j > s> $ t ' (a) The bishop's licence, which accompanied the case, authorises the party during pleasure "to perform the office of curate in the parish, &c. in reading " the Common Prayer and performing other ecclesiastical duties belonging "to the said office according to the form prescribed in the book of Common "Prayer,"&c. (/;) Tliis is by virtue of the stat. la Ann. st. 2. c. 12. The CASES IN MICHAELMAS TERM 1801. The KING against The Inhabi- tants of WANTAGE. [ 66] The Sessions were of opinion that this was no service of an annual public office or charge under the Act, and quashed the order of removal subject to the opinion of this Court on the above case. When the case was called on, Lord Kenyan, C. J. said, that it was impossible to argue against the conclusion which the Sessions had drawn. There was no pretence to say that this was an office within the meaning of the Act of King William, (a), the executing of which for a year would give a settlement. That statute was evidently intended to be confined to inferior annual officers, such as constables and the like, known to the parish ; and though in some instances the construction had been carried further, yet he was not inclined to extend it to cases still further from the contemplation of the Legislature. Ciibbs and Sarton in support of the order of Sessions. Const, contra, referred to Helsington v. Over (b\ where, though the settlement was denied, yet the Court did not appear to proceed so much on the ground that the curate himself would not have been considered as an annual officer within the parish, as that the sequestrator, whose settlement was in ques- tion, was merely a deputy, whose function might be determined at any time. Per Curiam, Order of Sessions confirmed. () 3 IV. 3. c. 11. s. 6. Burr. S. C. 746. The KiN(; againstUhe Inhabitants of Moon CRITCIIELL. kVO justices, by an order, removed 7). Spearing, his wife and children, from the parish of J)(iJiead St. Man/, in the county of ll'ilts, to the parish of Moor Critrhc/l, in the county of Dorset. The Sessions, on appeal, confirmed the order. But both orders *beinir removed by certiorari into this Court, a rule was obtained, calling on the parish officers of Donhead Si. Man/ to shew cause why they should not be quashed, for a default of jurisdiction in the magistrates making the original order apparent upon the face of it, in not stating them to be '!:e proper county ; and it is not enough to describe themselves justices of the peace in and for the said inly although fhe proper county were named iu the margin, and were also named last before snob description of the justices. justices A'op. 18th. Where two counties hace been mentioned in the ante- cedent part of n ordrr of removal, the justices leaking the order must tate them- 'fives to be 'Alices of IN THE FORTY-SECOND YEAR OF GEORGE III. 67 justices of the peace of the county of Wilts. The order was in 1801. this form : r 77~ " Wilts, to wit. To the churchwardens and overseers of the against "poor of the parish of Donhead St. Man/, in the county of The Inhabi- " Wilts aforesaid, to remove and convey, and to the church- tants of "wardens and overseers of the poor of the parish of Moor ' "Critchellin the county of Dorset, to receive; these. Where- "as complaint hath been made by you, the churchwardens, " &c. of Donhead St. Mart/, in the county of Wilts aforesaid, un- " to us whose hands and seals are hereunto subscribed and set, " being two of his Majesty's justices of the peace in and for the "said county, (one whereof is of the quorum,) that JD. Spearing, "&c. are come to inhabit, &c. (pursuing the usual form of such "orders)." But-rough and Casherd now shewed cause, and contended, 1st, that the words "justices of the peace in and for the said county," must have reference to the county in the margin, which is Wills: 2dly, That it has reference in grammatical construc- tion to the last antecedent county mentioned, which is also Wilts. And further, That from the whole scope of the order, it appears that it could only have been made by magistrates of Wilts, and not of Dorset. Cut, The Court were clearly of opinion, that the objection was fa- [ 68 ] tal (a). It ought expressly to appear that the justices had ju- risdiction to make the order, and therefore there having been two counties mentioned before, they ought to have stated of which county they were justices. But Lord Kenyan, C. J. added his regret that the objection had been taken, as the decision would conclude nothing ; for the Court would direct a special entry to be made, in order to denote that the orders were quashed for want of form. And that it was to be lamented that the stat. 5 (ieo. 2. c. 19. which was intended to give the jus- tices in sessions a power of amending orders of removal which were defective in point of form, had, by the construction which had been put upon it, been rendered a dead letter, as all defects of this sort had been considered to be matters of substance and not of form. Gibbs and Dampier were to have argued in support of the rule. Rule absolute. () Vide R. v. Stcpnry, Burr. S. C. -23. and R. v. Chiherscoton, 8 Term Tiep. 178. Vor. II. E The 68 CASES IN MICHAELMAS TERM 1801. Saturday, Aor. 21st. An exciseman who was rated for his salary, which was in fact paid by the collector without any deduction from the salary, does not thereby give a settle- ment. *[ 69 ] The KING against The INHABITANTS of WEOBLY. np\VO justices by an order removed //. Williams, Elizabeth his - wife, and their two children, by name, from the parish of Weobly, in the county of Hereford, to the parish of New Rad- nor, in the county of Radnor. The Sessions on appeal quashed the order, subject to the opinion of this Court on a case stating, That the pauper //. Williams was born in the parish of Atw Radnor, and *being formerly an officer of excise, was in the year 1790 resident in that capacity in the borough and parish of Weobly ; and during such residence was rated to the land tax in that parish for his salary ; which was proved by the production of the land tax assessment; but it appeared by the evidence of the pauper, that he never paid such rate himself, or any rate ; the same being; paid by the collector of excise, and not deducted out of the pauper's salary. The Sessions were of opinion that the pauper gained a settlement in Weobly by the rating and pay- ment as before stated. (iibbs in support of the original order said, that, it was clear that a person must pay as well as be rated in order to fain a * .settlement; and here the pauper, though rated, had not paid either in fact by his own hand, or constructively by the hand of another; fur the payment made by the collector was not de- ducted out of the pauper's salary. (/arrow in support, of the order of Sessions contended, that this was in effect a payment by the pauper, being made by ano- ther for him, ;ind as his aiient. That the amount not having been deducted from the pauper's salary made no difference; for whether the money were given him to pay for himself, or were voluntarily paid by another on his account was the same thing. Lord KKNYON, C. .!. We cannot do better than abide by the Act of Parliament (a), which requires both that the pauper should be rated and should pay in order to <^ain a settlement. If the rate had been paid by him through the medium or bv the hands of another, that would have been a payment by himself; but here he neither paid it mediately or immediately. He was not affected by the payment at all. It was not deducted out of his salary, nor was his income diminished by it. I know that the statute in question has been extended by construction much () J IV, 3. c. 11 . s. 6. beyond IN THE FORTY-SECOND YEAR OF GEORGE III. 70 beyond what was apparently intended by the Legislature. It has 1801. been decided, that being; rated and paying to the land tax will rp, 7T~ ? .. l . The Kixo gam a settlement, though, it it were res Integra, 1 should rather ao-ainxt think that the Act was intended to be confined to parish rates. The Inhabi- However, that having been decided otherwise, I shall not now ^ nls disturb it. But this being anew case, where the pauper neither in fact paid the rate himself, nor constructively by the hands of his agent, it is better to abide by the letter and true spirit of the statute, and to hold that he did not thereby gain a settlement. Per Curiam, Order of Sessions quashed. The KING against HOLLAND. Saturday, Nor. 2ist. A N information in nature of quo warranto was exhibited Where a pow- ** against tlie defendant for claiming and exercising the office frcemen^ts" 1 *" of freeman [ 71 1 of the borough of Okelunnplon, in the county of sllewn '<> have Devon, without any legal warrant. The defendant pleaded, vested in the that Okehampton is an ancient borough, consisting of an indefi- f) d y at lar s e ii ~n i ' a P rcs<> rip- nite number of freemen, and that the burgesses, till the accept- tive corpora- ance of the charter of James the First, were a corporation by tu " > ".' e exer - P , [. " c ise ot it can- prescription under various names, viz. " the burgesses or the tree not be sns- borouo-h of O. ", " the portreeve and commonalty of the bo- ta | nfl(l in a ^ select part ot rough,'' &c.and "the mayor and burgesses of the town and bo- the same cor- rough," &c.; and from the granting of the said charter till the j^ f 00 ' surrender thereof by the name of "the mayor and burgesses of the charters under town and borough," Sec. and from such surrender until the charter incorporation of Charles 2., by the name of " the mayor and burgesses of the thtl 'e being borough, "&c.: and since then by the same name last-mentioned: grant of such and during all the time there have been an indefinite number of * P" ut '"' to freemen. The plea then setforth the charterof the21st,7awe.s 1., by any such wherebv he o-mnted that Okehampton should be a free town cliarlers i nor * even any by- and free borough, and a corporation, by the name of the mayor Liw to fiiac and buro-csses of the town and borough of (). ; that there should ( '" f ''' t ' even supposing sucii a power could be transferred by a by-law from the whole to a part of the same corporation ; although it be staled in the pk-a and admitted by the demurrer that the same power which was immemorially exercised by 'h n \\hole body down to the period of the granting and acceptance of the charters of Jnmrs 1. and Charles 2. had been since those charters, >Src. continually exercised by the select body in question, and although such charters contained a confirmation of all former privileges, ivc. under whatever iiaiues of incorporation theretofore enjoyed. E be 71 CASES IN MICHAELMAS TERM 1801. be one of the burgesses to be called mayor, eight inhabitants of the town and borough called principal burgesses, eight other in- rinst* habitants of the town and borough or precincts called assistants j HOLLAND, that the seven principal burgesses (exclusive of the mayor) and the assistants should be the common council. The charter then proceeded to appoint the first mayor, and seven others as princi- pal burgesses, and eight assistants, and appointed the election of mayor to be on the Monday after Michaelmas, by the former mayor nominating two of the principal burgesses, one of whom should be chosen by the other principal burgesses not named and [ 72 ] the assistants, or the major part of them, and should hold his office for a year and until another mayor was chosen. And the same charter contained a ratification of all ancient rights, prescriptions, customs, privileges, &c. to the same corporation, under the several names of incorporation before mentioned. The plea then stated the acceptance of the charter. And that afterwards in the 34th Car. 2. the same was surrendered, and .such surrender enrolled; and that Charles 2cl by his charter in the 3G Car. 2. granted them to be a corporation by the same name as in the former charter; and that one of the burgesses should be mayor, and that there should be eight principal bur- gesses and eight assistants (as before) who should altogether (exclusive of the one principal burgess who should be mayor) be a common council to assist the mayor, and that the common council, or the major part, assembled on public summons, toge- ther with the mayor, should hav e power to make by-laws for the good discipline and government of the town and borough, and of the officers, ministers, artificers, inhabitants, and residents, and for declaration in what manner and order the mayor, prin- cipal burgesses and assistants, and all and singular officers, min- isters, Sec. should conduct themselves in their offices, functions, trades and affairs, for the further public w;is dnlv elected before such first intoi million and judgment of ouster, and that he was attei wards sworn in bj' virtue of a (>( it ni|>toi y mandamus from this Court. But semble if the election to the office were good, and only the first swearing in ii regular, the first judgment should not have been an absolute judgment of ou.-.ter; but either a judgment of capiatur pro tiiic ouly, for the temporary usurpa- tion, or a judgment quousrjue, &c. chief for i nati war a^ai for l.iiming the -ffire ( t alderman, t he disdain and judt-'in of ouster I IN THE FORTY-SECOND YEAR OF GEORGE III. 75 chief magistrates, a senior and a junior bailiff, and twelve bur- 1801. gesses to be called aldermen. That the two first nominated bail- Tlie~KrN iffs, and the burgess.es at large should meet and choose the twelve ayainst first aldermen, who should be sworn, and execute their offices CLARKE. for life, unless before removed for reasonable cause, and that the aldermen should be the common council to assist the bailiffs. That r -p -i on the first Monday in August of every year, the bailiffs and burgesses, or the major part, should clmse one of the aldermen to be senior bailiff, who should be sworn, and should execute the office for a year, and till another was chosen. And that on the same day the bailiffs and aldermen, or the major part, should nominate two burgesses, of whom the bailiffs, aldermen, and burgesses, or major part, should chuse one to be junior bailiff, who should be sworn and execute his office for the same period. It also made provision for another election in case of the death of either of the burgesses within the year. That on the death or amotion of an alderman, the bailiffs and residue of the alder- men, or major part, should nominate two burgesses, of whom the bailiffs, aldermen, and burgesses should chuse one to be alder- man of common council, and that he so as aforesaid to the office of alderman, Sec. elected and appointed, and sworn before the bailiffs of the town on his oath, the office of alderman, Sec. well and faithfully to execute, should be of the number of twelve al- dermen of common council, Sec. It then stated the acceptance of the charter; and that on the 25th March 1793, H . A/, an al- derman died. That on the 31st J/tly 1795 the bailiffs and resi- due of the aldermen met, and nominated the defendant, Clarke., and one Barker, who were burgesses, as candidates for the va- cancy, and that the bailiffs, aldermen, and burgesses, did choose, name, and appoint the defendant to be an alderman : and that on the 23d \ovembcr 1796 the defendant was in due manner sworn before the two bailiffs; by reason wherof he claimed, &c. The replication, after taking issue on the o-rant and accept- Replication. ance of the charter of James 1st, and on the choice, nomina- r ~j -, tion and appointment of the defendant to be alderman, further pleaded, that after the supposed choice, nomination and ap- pointment of the defendant to be alderman, and before his swear- ing in, and before the exhibiting of this information, i. e. in Hilary Term 1796, an information was filed against the defend- . I'nor intorma*. ant for us/i/g and exercising the office of one of the aldermen tion M-rninst of East Retford, for a certain time in the said information men- l,'/,,,'^"! tioned, office, 77 The KING against CL.4RKF.. Taliter pro- cesMim. Disclaimer. Judgment of ouster. No appoint- ment, &c. since. CASES iv MICHAELMAS TERM 1801. tioned, without legal warrant, and prayed that due process of law might be awarded against him in that behalf, to make him answer and shew by what authority he claimed, &c. That such proceedings were thereupon had, that in Easter Term 1796, the defendant did disclaim the said office, liberties, privileges, and franchises in the said information specified, and did not deny but that he had usurped the said office, &c. during all the time alleged : &c. whereupon by the said Court, 8cc. it was adjudged that the defendant should not intermeddle with, &c. the said office, liberties, &.C.; but be absolutely forejudged and excluded from ever exercising or using the same or any of them for the fu- ture. It then set forth the capiatur and award of costs to the relator, &c. It then averred that the defendant was never chosen, nominated or appointed to the office of an alderman, since the rendition of the said judgment. There was a second re- plication, the same as the former, only stating that after the no- mination, and before the exhibiting of this information, the former information was exhibited, &c. omitting the mention of the swearing in. Rejoinder, that after the defendant was so chosen, nominated and appointed to be alderman, and after the rendition of the judgment in the plea mentioned, and before the defendant was sworn in, to wit, in Michaelmas Term 1796, a peremptory man- damus issued out of this Court, at the prayer of the defendant, to [ 78 ] the bailiff's of East Retford, (reciting his nomination, 8cc.) to swear him into the office of alderman, in obedience to which writ he was accordingly duly sworn in before the bailiffs. The like rejoinder to the second replication. To both which there was a general demurrer on the part of the crown. J)an/picr in support of the demurrer. The question is, Whe- ther an absolute judgment of ouster between the election to an office and the swearing in is not a total exclusion of the party from the office; so that no right can be acquired therein without u new election. Nothing can be stronger than the terms of the disclaimer and judgment, by which latter the defendant is ab- solutely forejudged and excluded from ever exercising or usitiv the O O ojjicc for ihc future. After such a judgment no latent rio-ht can remain upon which the swearing in can operate. Unless the issuing the mandamus to swear him in can make any difference, the point has been expressly decided in R. v. Pendcr (o) where ('/) Cited iu R. v. Rocks, 2 Ld, Kay. 111?. to IN THE FORTY-SECOND YEAR OF GEORGE III. 78 to an information for exercising the office of mayor of Penryn, the defendant pleaded his election and swearing in: and on the trial the jury having found hjs election, but not the swearing in, judgment of ouster was given against him, which was affirmed upon error brought in Dom. Proc. In the reasons (er) there given for reversing the judgment, it is insisted that that part of the judgment which excluded him from the office was erroneous, because his right to it was established by the finding that he was duly elected: and yet that whilst the judgment of ouster stood, the plaintiff (in error) could not have the effect of a mandamus from B. R. to be sworn into the office, though the legality of his election was not disputed. On the other hand, the legality of the judgment was defended upon the stat. 9 Ann. c. 20. And that it being expressly required by the charter, that the oath of office should be taken before the party were admitted to execute the office, the justification being entire was destroyed by the finding that he was not duly sworn, and consequently the judg- ment of ouster was the only legal judgment adapted to the case. The result of this reasoning goes to shew, that if the whole mat- ter had been brought in discussion before the Court, they would not have granted the peremptory mandamus in this case. And as the then bailiffs mio-ht have acted in collusion with the de- O fendant in not resisting the mandamus, that ought not to influ- ence the present decision; for it is no more in effect than if the bailiffs had sworn him in without a mandamus. This very point was decided in the case of R. v. Hearle (b), upon an application by Pe/ider himself for a mandamus to swear him into the office to which he had been elected; which was refused by the Court in consequence of the judgment of ouster, which, as the Chief Justice said, did away the election : though, as llet/nohh, J. said, there ought properly to have been a judgment of ouster quousqne only, upon the finding of the jury on the former information. Then, if the mandamus issued improperly in this case, it cannot vary the question, being supersedeable like all other writs issued by the Court. If, notwithstanding the absolute judgment of ouster against the defendant, there were any latent right to the office remaining in him, the Court did wrong in refusing the: mandamus in Hcarle'* case; for the only effect of the writ is so far to put the party in possession of the office in fact, as to ena- ble him to try his right to it; but a maiidumus confers no title (<:) 3 Bro. P. C. 173. 7. (>>) 1 Stia. 625. ill 1801. The KING against CLARKE. 79 CASES IN MICHAELMAS TERM 1801. The KING against CLARKE. *[80 J [ 81 J in itself. Basset v. the Mayor of Barmtable (a); R. v. Dean and Chapter of Dublin* (/>), and -R. v. Ward (c). Then how can the award of a writ of mandamus, on which no error lies, do away the effect of a judgment unreversed? The case of The King v. Fender was much stronger than the present, because there the election was found to be good, and the judgment of ouster proceeded wholly upon the insufficiency of the swearing in ; but it does not appear here on what the disclaimer or the judgment was founded; it might have been as well upon a surrender or amotion or forfeiture, as upon the insufficiency of the swearing in. When questioned by the king as to his claim and user of the office, he admitted that he had no claim or right to exercise it: then he is estopped from afterwards insisting that he had any title at that time. Great inconvenience would ensue from such a temporary secession, and subsequent resumption of an office. The vacancy may be filled up in the mean time. With- in what interval may the office be resumed ? Will the title refer back to the election? If so, a secession by disclaimer on an in^ formation in nature of quo warranto, and a subsequent swear- ing in, will make a bad title indefeasible. It is, therefore, more consonant to principle as well as to authority to say, that the title being entire, the judgment of ouster, though grounded on a defect in part, vitiated and did away the whole; and therefore that the defendant can only protect his title by shewing a new and legal election and swearing in subsequent to that judgment. } a/r.s, contra. It is not contended that the mandamus to swear in the defendant could of itself confer any right to the office; but his title arises on the prior nomination and election, which were regular and le^al : but without a due swearing in the defendant was not authorized to exercise the office, and there- fore he disclaimed, not the legality of the election; for that was the franchise of the electors, and not his own; but the right to use the office, not having been properly sworn in. It was not competent to the defendant to disclaim the right which the electors had of appointing him to the office of alderman; if that were so, any man might contrive to evade the holdin^ of a burthen some office in a corporation by getting a friendly infor- mation to be filed against him, and thereupon disclaiming. Ad- mitting that the title is entire, if any part of it be different from () 1 Sid. 28o". (fc) 1 Stra. 513. (c) 2 Stra. S96. that IN THE FORTY-SECOND YEAR OF GEORGE III. 81 that before set up, and upon which the judgment of ouster was 1801. given, that judgment is not conclusive. A judgment is only T t~7T~ conclusive on that which was in controversy before (a). Now against here the title set up is different in part, and being entire, is there- CLARKE. fore different in toto, from that before judged: for it appears to be founded on a swearing in after the prior judgment. In R. v. Hearle (b), the Chief Justice gave no reason for the conclu- siveness of the judgment, but the mere form of it : 'and the only decision of the House of Lords (c) on that case was, that no writ of error lay upon the award of a peremptory mandamus. That case therefore concludes nothing as to the principal ques- tion. The case of The King v. Fender, referred to in the book cited (d) is reported in Strange (e) by the name of the mayor of Penryn's case. And there the Court say, that the acting without being sworn was certainly an usurpation, for which they were bound to pronounce judgment against him upon that record. [ k~ J But so far from considering that the judgment of ouster con- cluded him from insisting upon the prior good election, they said that if it were not too late he might have a mandamus to swear him in; though they must punish him for his usurpation hitherto. In the mayor, &c. of Colchester v. Seaber (f) , after judgment of ouster against all the corporators, yet it was holden that the prescriptive rights of the old corporation might be re- vived by a new charter to the same body. [Lord Kent/on, C. J. That case did not pass without much doubt at the time. The justice of the case helped to get over difficulties in it. Laicrence, J. It was much questioned in JR. v. Pasmore(g), and R. v. J3e/l- riitger (//).] At any rate, the Court in the case of R. v. Middle (i), which was subsequent to the mayor of Penryn's case, disap- proved of that judgment ; for an usurpation being confessed as to part of the time charged in the information, for which time the prosecutor had entered judgment of ouster, the Court, upon motion, ordered it to be expunged, except as to the capiatur pro fine; as they said it would be hard that a good election should be thus done away : and they distinguished it from Pen- rftv's case, where he was guilty of an ursurpation during all the time charged in the information. So here this was a mere tem- (u) Ssihlon v. Tittup, 6 Term Rep. C"7. (/>) 1 Stnt. 627. Urn. P. (..'. 178. (d) 2 Ld. Kay. 1447. (<;) 1 Stra. 58'J. S. C. 8 ,1/orf. 234. (f) 3 /). 1866. (g) 3 Term Rep. 1'Jt'J. (A) 4 Term Re^. 810. CASES IN MICHAELMAS TERM 1801. The KING against CLARKE. [83] porary usurpation. Though a mandamus to swear in an office] would not of itself confer a title upon him to the office, yet it is not altogether nugatory. At least it imports an acknowledg ment by the judgment of the Court of an antecedent title in the party : and it having been granted in this case immediately sub- sequent to the disclaimer and judgment of ouster upon an affi- davit of the prior election, shews that such judgment was no considered as absolutely conclusive against the validity of the election. If a mandamus operated nothing as to the title, i would be nugatory to make a return, or to traverse such return : for the title might as well be tried at any subsequent time. Bu it is considered of so much consequence, that in an action for y false return, the Court will not suffer the propriety of issuing the writ to be questioned (). The defendant's title ought tc have been disputed, if at all, upon the application for the man- damus. And in R. v. Turner (/;) the Court refused, even at the prayer of the attorney-general, to grant a mandamus to swear one in as mayor, after a peremptory mandamus before grantee to swear another into the same office. Lord KEN YON, C. J. The question is abundantly clear of al doubt. The King v. Ilearle has confirmed my first impressions on reading this case. It is the lano-uao;e of all the cases that a CJ ~ O mandamus to swear in confers no title. It is the consummatior of the party's title, if he have one, but it gives him none. It is frequently granted merely to enable a party to try his title What is this case? Upon an information exhibited against the defendant for usurping the office of alderman of East Retford. he was so conscious of not having any defence, that he dis- claimed, not on any particular ground, but generally; thereby admitting his usurpation; upon which there was judgment ol ouster against him, whereby he was absolutely forejudged and excluded from ever using the office in future. If this were not to conclude him from insisting upon the same election ao-ain, I know not what would. Suppose after this an application had been made to the Court for a mandamus to compel the cor- poration to proceed to a new election to fill up the vacancy, what resistance could have been made to it .' and vet if the prior election could be resorted to again, it could "be of no () Green v. I'nj/r, 1 Ld. L'mj. 120. (b) T. Junes, 215. sed vide li. v. Harris, 3 Burr. 1 122. IN THE FORTY-SECOND YEAR OF GEORGE III. 84 avail; or there might be two persons filling one office at the same time. If the defendant could insist on the former elec- tion, he would also be entitled to a mandamus to swear him in : and thus the proceedings of the Court would become utterly inconsistent. It was for that reason the Court refused the ap- plication for a mandamus in Turner's case. I do not meddle with the question whether the judgment here on the former in- formation might have been entered in a different way.. I do not say what the effect would have been if the judgment had been prayed to be entered up only for the capiatur pro fine for the time during which the defendant usurped by acting in the office before he was duly sworn in. The Court, no doubt, on such an application, would have done what justice required. Perhaps it might have been thought that a judgment quousque only would have answered the purpose until the title were consummated by a proper swearing in. The case of The King v. Biddle turned on this very distinction. But if this attempt would serve, there is a good receipt, as was properly observed, for making a bad title good, by a swearing in at the end of six years after a judgment of ouster. There ought to be an end of controversy after a judgment upon the matter. Is it not the same in real actions; if the party fail in his action he is bound for ever. Here is an absolute judgment of ouster, and without any attempt to reverse it for error, or by shewing fraud, it is endeavoured in this manner to render it of no avail. That can- not be permitted. Therefore both on authorities, reason, and analogy, I think the demurrer is well founded. GROSE, J. declared himself of the same opinion. LAWRENCE, J. As to the mandamus giving any title, it has long been considered otherwise. And not long ago, in the case of The King v. the Burgesses of Trnro, 35 Geo. 3. an ap- plication for a mandamus to swear one in as mayor, was re- sisted on an objection to the legality of the election; but tiie answer o-iven was, that the defendants might return the special o . matter, so as to enable the party to try the validity of his elec- tion. But no idea was entertained that the mandamus con- ferred any title upon him. LE BLANC, J. of the same opinion. Judgment of ouster. 1801. The KINO against CLARKE. [ 8-3 ] I- x 85 CASES IN MICHAELMAS TERM 1801. Saturday, Ex parte MAXWELL. JVoc. 21st. An annuity A R u i e was g ran ted, calling on the executors of John Broom- 1790, e the" -^*- head, deceased, to shew cause why the bond warrant of irrantee of attorney and indenture given to secure an annuity should not winch died in , ., , i 1794, and be delivered up to be cancelled, and why the annuity thereby Mhich^re^ granted should not be set aside. This was founded upon an puiariy paid affidavit of William Maxwell, setting forth the memorial of the out objection", annuity of 207. during the life of Maxwell, secured on the said shall not be instruments out of certain trust money, for which the consi- deration was stated to be 140/. paid in hand by Broomhead defect of con- to Maxwell, in manner mentioned in the indenture for se- might curing the same: which indenture, dated 21st * August 1790, have been ex- and the rece ipt of the money, was witnessed by R. M. servant plained by the * if to Broomhead. The affidavit also set forth the manner in tha" d an wnicn the consideration money was paid, viz. 50/. in bank- annuity paid notes, 69/. 105. by a banker's draft, dated the same 21st of Au- onTrmi C re" 8 sf and P aid that <% ' and that the remaining 20/. 10*. was at than six years the same time retained by Broomhead for the costs and charges iliall be pro- ~ tected by ana- * preparing the securities. logy to the Dampier shewed cause upon an affidavit made by .7. Broom- statute of liini- , . l 7 -,-, ." , , . tation against 'lead, the son of the deceased J . hroomhead, stating that his any Midi ob- father (Ji ec l j n January 1794, and that the annuity was regu- jection dcliors ,..;.,.,,. . 1-11 tiic memorial, larly paid to him in his lifetime, and since his death to the without strong t l e p 0nen t as his acting executor until June 1800, without ob- rea>-oiis to the contrary. jection on the part of the grantor. That at the time of the L 6 J sale of the annuity and for three years afterwards, the deponent was living apart from his father, as clerk to another person, and was not present at or privy to the transaction. That the other executors of his father never acted, and were also unac- quainted with what passed at the time of the purchase of the annuity. He relied on these circumstances to shew that the Court would not interfere to set aside the ; nnuity after the grantor had lain by so IOIIQ;, and till after the 'death of th grantee, who alone could give any account of the transaction to those concerned on his behalf; for the witness to the deeds. though still living, was merely a servant, and knew nothing of the transaction. And he cited Poofe v. Cabanes (a), where the () 8 Term Rep. 328. Court IN THE! FORTY-SECOND YEAR OF GEO11GE III. 86 Court objected to granting a similar application, because the grantor had paid the annuity till after the death of the person by whom it had been negotiated on the part of the grantee, and who alone could have answered the objections raised on the part of the grantor. Garrow and Wighy in support of the rule (being desired to confine themselves to answer this objection) said, that this was distinguishable from what was thrown out by the Court in the former case, inasmuch as the witness was still alive, who might have explained what passed at the time the instruments were executed ; and ultimately the annuity there was set aside for a defect appearing on the face of the memorial. That if the pay- ment of an annuity for a few years were holden to conclude the grantor from shewing a defect of consideration, it would tend greatly to impede the beneficial operation of the Annuity Act (a), as distressed persons were not often in a condition to right themselves soon after they had made improvident bargains, in which undue advantage had been taken of them. Lord KENYON, C. J. I feel no difficulty in disposing of this case. During the life of the grantee no objection was taken to the annuity, and the interest was regularly paid ; and this has been continued to be done for near seven years since his death, down to the middle of the year 1800. And now for the first time it is attempted to rip up the whole transaction for a sup- posed defalcation in the payment of the consideration money. I know not where such a mischief is to stop if this could be per- mitted. This may be the only provision made for the younger branches of a family. The legislature, for the safeguard of the subject in their personal dealings with each other, have thought it wise to pass a statute of limitation (b) to personal actions. I [ 88 ] know not why that should be disregarded in this more than in other instances. It is a circumstance deserving of weight, that more than the period fixed by that statute, which affects per- sonal property, has run out, without any attempt to impeach this transaction ; and I think we should be doing great mischief if we were to give way to this application. Per Curiam, Rule discharged. () 17 Gro. 3. c. 26. (?>) 21 Jac. 1. c. 16. s, 3. Pi: CASES IN MICHAELMAS TERM 1801. Monday, Nov. 23d. To trespass &c. and Encf tfk?ng Wn away certain n d dndut as to the breaking and euterini; suf. and pk-aded Held that S h aine e d a by" shewing that the building taken away, which was of wood, was erected by him on a tbiinda- for" the pur- pose of carry- in;; on his trade, and that he still continued in possession of the premises at the tune when, \i: though the term was then expired. ' J PEN TON against RoBART. rpRESPASS for breaking and entering a certain yard and divers buildings, &c. of the plaintiff at Battlebridge in the county of Middlesex, and there without the leave and licence of the plaintiff breaking down and pulling to pieces the said build- i n g Sj & c . an d the materials of a certain fence belonging to the said yard, and for taking away certain timbers, bricks, lead, &c. and disposin"- thereof to the defendant's use. As to the break- ~ j . j , ing and entering the yard, the defendant suffered judgment by default and as to the rest of the trespasses, pleaded the general issue. At the trial before Lord Kenyan, C. J. at Westminster, it appeared that certain land, including the spot in question, had been let for a term by the plaintiff to one Gray, whose execu- tors had let off part to one Cotlerell, under whom the defendant was j n possession as an under-tenant; having had permission .... r .1 r from Cotterell to erect a building thereon for the purpose of ma kj no . varnish. This building had a brick foundation let . . 1-1 into the ground, with a chimney belonging to it, upon which a superstructure of wood, brought from another place where the defendant had carried on his business, was raised, in which lne * defendant carried on his trade. The original term ex- pired at ]\Iic/iat'l/nas 1800, in consequence of a proper notice to -, 1,1 \ ,-rr , r s < / i -^ quit given by the plaintiff to the executors of (jray: (and it W as admitted that, the plaintiff had recovered judgment in eject- * ,, nient against tins defendant tor these very premises ; though that f,, ( . t was not prove( i a t the trial). But the defendant re- . / p mauled in ])ossession for some time afterwards, and was in fact j n tj ]e possession of the premises at the time when he pulled down the wooden superstructure, and carried away the mate- rials, which was the subject of the present action. A verdict was taken for the plaintiff, subject to the question, whether the defendant were warranted in pulling down the building, and taking away the materials, after the expiration of the term. And a rule nisi having bec-n obtained on a former day for entering a verdict for the defendant as to all but the trespass confessed of breaking and entering the yard. Mingay and Header shewed cause against the rule. Admit- ting that by the latitude which modem determinations had efiven IN THE FORTY-SECOND YEAR OF GEORGE III. 89 given to tenants to remove certain fixtures annexed to the free- hold, for the purpose of carrying on trade, the defendant might, during the continuance of the term, have removed the building in question, still he had no right to do so after the term was expired ; for in that case he is a trespasser by the very act of coming or continuing upon the property, which is indeed admitted by the defendant on the record ; and the law cannot involve such a contradiction as to give a man a right, and yet make him a trespasser in the only act by which he can exercise it. (Lord Kenyan asked, whether if he had left any personal chattel on the premises, as a hogshead of wine, he would not have been entitled to it after the term?) There is a difference between mere personal chattels, the property of which remains in the owner till divested by some lawful act of his, and things which are annexed to the freehold, which, generally speaking, vest in the landlord, by act of law. If a tenant were to leave marble chimney pieces, which he had erected during the term, he could not come at any time afterwards and take them away. Lord Hardwicke's opinion is express to that point in Ex parte Quincey (a). So in Fitzherbert v. Shaw (b), though it was admitted that the defendant might have removed the erections of this kind he had made during his tenancy, yet it was ruled that he had no right so to do after the expiration of the term. G arrow, contra was stopped by the Court. Lord KEN YON, C. J. The old cases upon this subject leant to consider as realty whatever was annexed to the freehold by the occupier: but in modern times the leaning has always been the other way in favour of the tenant, in support of the in- terests of trade which is become the pillar of the state. What tenant will lay out his money in costly improvements of the land, if he must leave every thing behind him which can be said to be annexed to it. Shall it be said that the great gar- deners and nurserymen in the neighbourhood of this metropolis, who expend thousands of pounds in the erection of green-houses and hot-houses, Sec. are obliged to leave all these things upon the premises, when it is notorious that they are even permitted to remove trees, or such as are likely to become such, by the thousand, in the necessary course of their trade. If it were otherwise, the very object of their holding would be defeated. 1801. PENTON against ROBART. [90] () 1 Atk. i?7. (/) 1 //. VOL. II. This CASES IN MICHAELMAS TERM 1801. PENTON against ROBART. This is a description of property divided from the realty. And some of the cases have even gone further in favour of the exe- cutor of tenant for life against the remainder-man, between whom the rule has been holden stricter ; for it has been deter- mined that the executor of tenant for life was entitled to take away the fire engine of a colliery. The case of Fitzherbert v. Shaw turned upon the construction of an agreement that such things should be left on the premises, and decided nothing against the general principle. Here the defendant did no more than he had a right to do ; he was in fact still in possession of the premises at the time the things were taken away, and therefore there is no pretence to say that he had abandoned his right to them. LAWRENCE, J. It is admitted now that the defendant had a right to take these things away during the term : and all that he admits upon this record against himself, by suffering judgment to go by default as to the breaking and entering, is that he was a trespasser in coming upon the land, but not a trespasser de bonis asportatis ; as to so much, therefore, he is entitled to judgment. Per Curtain, Let a verdict be entered for the plaintiff as to the trespass in breaking and entering, damages Is.; and for the defendant as to the rest of the trespass. HAYCRAI-T against CREASY. JlJnndny, A'ou. ^jd. To an inquiry I ^ an act ' on on lne case f r making a false representation of concerning -*- another's credit, the declaration stated that the plaintiff, at the credit of .- r > i , ,- , ,. , , another, who tne time ' making the several fake, fraudulent, and deceitful was recom- representations after-mentioned, was an ironmonger carrvino- on mended to , . . ,. , deal with the his trade, and that the defendant betore the said time, &c. had plamtirt, a re- recommended one E. F. Robertson, to deal with the plaintiff in presentation by the de- fendant that the party might safely be credited, and that he spoke this from hi* own know- irdge, and not from hearsay, will not snst.iin an action on the ca>e for damages on account of a lo.ss sustained by the default of the parly, who turned out to be a person of no credit; if it appear that such representation were made by the defendant bona fide, and with a belief of the truth of it; for the foundation of the action is fraud and deceit in the defendant and damage to the plaintitf by means thereof. And taking the assertion of knowledge sccnndnm subjcctam materiam, vi/.. (he credit of another, it meant no other than a strong belief founded on what appeared to the defendant to be reasonable ;iutl certain grounds. the IN THE FORTY-SECOND YEAR OF GEORGE III. 92 the way of his trade : and thereupon just before the making of 1801. the false representations, &c. J. H. the younger, the son of the plaintiff, had on his behalf applied to the defendant to inquire auainst of him as to the safety of giving credit to the said Robertson: CREASY. yet the defendant, well knowing the premises, but contriving and intending to injure the plaintiff, and to induce him to give credit to Robertson, falsely represented to the said ./. //. the younger, " that the plaintiff would be perfectly safe in givino- " credit to the said Robertson, as he (the defendant) knew, that "she (Robertson) was then in possession of considerable pro- "perty by the death of her mother, and was in expectation of "a much greater by the death of her grandfather, who had "been bed-ridden a considerable time." It also averred, that the defendant falsely represented to one Joseph Haycraft, who had applied to him on behalf of the plaintiff, in order to inquire whether the plaintiff might trust said Robertson; "That she "(Robertson) was a lady of great fortune, and much greater " expectations, and that he (the defendant) knew that the plain- " tiff might credit her (Robertson) to any amount with perfect "safety." It also laid other expressions to the same effect, and particularly concerning Robertson's relationship to certain per- r 93 ~i sons of note. And then averred, that by means of the said several false representations of the defendant, the plaintiff con- fiding therein, gave credit to Robertson, for divers goods, &.c. sold and delivered to her to the amount of 485/.: and then concluded, that in fact, at the time of the said several false representations it was not safe to give credit to Robertson, and that she was not in possession of considerable property, &c. nor in expectation of greater, Sec. and so negativing all the other representations of the defendant ; (but not alleging that the defendant knew them to be false at the time,) on the contrary, that Robertson was then wholly unworthy of credit, and unfit to be trusted, &c. and that the said sum of 48,3/. was still due to the plaintiff, who, by means of the several premises, was likely to lose the same. There were other counts laying the representations in different, ways. At the trial before Lord Kein/on, 0. J. at the Sittings at Guild- liall, the transaction which led to the representations in ques- tion appeared in substance to be this. A Miss Robertson, (the person named in the declaration,) who had formerly been a, teacher ata school, in which capacity the defendant had first !)<- F '2 come 93 CASES IN MICHAELMAS TERM 1801. come acquainted with her, having had children at that school, on a sudden, some little time before the transaction happened, against & ave herself out to the world as a person of considerable for- CREASY, tune, which had devolved upon her by her mother's death, and with still greater expectations from her grandfather and other relatives. Upon the strength cf these assurances she contrived to obtain credit to a considerable amount from a number of persons, and settled herself in a large house at Blnckheath, fitted [ 94 J up in an expensive manner, kept a carriage, exhibited a great shew of plate, and other marks of affluence, talked of her rela- tionship to persons of note; by means of all which she imposed on great numbers of persons, who believed her to be the cha- racter she had assumed, and visited her as such. Amongst other things she pretended to be the owner of a considerable estate in Scotland, from the rents of which she had been kept out for about 40 years, but had then lately got into possession; and in support of these pretensions she exhibited supposed plans of the estate, with admeasurements of the woods, &c. and actually appointed a respectable man of business as her agent or steward, to receive the rents, &c. from whom she took bond to a large amount, as security for the faithful discharge of his functions. All these and other like appearances were proved to have been continually exhibited to the eyes of the defendant ; who was a currier at Greenwich, near which Miss Robertson lived. And though some attempt was made by evidence to im- plicate him in the fraud that was going on, yet upon the result nothing of that sort was established against him ; but it ap- peared that he himself had been duped by these appearances, and had actually lent her his acceptances to the amount of above 2000A upon the strength of them; for which he had not taken any security at the time the representations were made; though some months after, and before the final exposure of the imposition, and the absconding of Miss Robertson, he had ob- tained of her a bond and warrant of attorney to secure his ad- vances. The particular circumstances which led to the present action were these; about Mai/ or June, while Miss Robertson was fitting up her house at .Blackheath, application was made on her behalf by the defendant to the plaintiff's son (who con- ducted the ironmongery business in his father's absence); the I 05 ] defendant stating that he had recommended Miss Robertson to come to the plaintiff for such articles as she might want in the way IN THE FORTY-SECOND YEAR OF GEORGE III. 95 way of his business. The plaintiff's son inquired as to her re- 1801. sponsibility, she being an entire stranger to him and his father ; to which the defendant answered, "Your father may credit her aqainst "with perfect safety; for 1 know of my own knowledge that she CREASY. " has been left a considerable fortune lately by her mother, and "that she is in daily expectation of a much greater at the death " of her grandfather, who has been bed-ridden a considerable "time." The defendant afterwards came with Miss Robertson and her companion, (also known to the defendant for many years before as the keeper of the same school,) and they looked out and ordered articles to a large amount. The plaintiff's on swore at the trial that he dealt with them entirely on the defendant's information. Finding the order, however, to be so large, the son again asked the defendant, if he were certain as to the representation he had made ; who again answered with the same certainty, and never expressed any doubt. The son there- upon wrote to the plaintiff, and in consequence of the answer he received applied to his uncle to see the defendant on the business. Upon this latter's application to the defendant for the same purpose, the defendant repeated his assertion that Miss Robertson was a person of great fortune and greater expectations, and was related to certain persons of rank whom he named ; and added, " 1 can positively assure you of my own knowledge, " that you may credit Miss Robertson to any amount with perfect "safety." Various other assertions to the like effect were proved ; but particularly on one occasion, after representations of this sort had been made to the plaintiff's brother, the latter said to the defendant, " I hope you do not inform me this upon, "bare hearsay; but do you know the fact yo,uraelf?" The de- [ 96 ] fendant answered, " Friend llay craft, I know that your brother " may trust Miss Robertson with perfect safety, to any amount," The jury found a verdict for the plaintiff for 4857. A rule was obtained, calling on the plaintiff to shew cause why the verdict should not be set aside, and a new trial had, on the ground that there was no fraud or deceit in the defendant making the representation in question, though he had incauti- ously averred that to be within his own knowledge, which in strict- ness he could not be said to know , but only had reasonable and probable cause to believe, and did in fact believe to be true at the time : and that without fraud, the action was not maintain-- able though the representation turned out to be false. 96 CASES IN MICHAELMAS TERM 1801. HAYCRAFT against CUEASY. [97 ] Erskine, Garroiv, Gibbs, and Lawes, shewed cause against the rule. This action is bottomed upon the same principles which governed the cases of Pasfey v. Freeman (a), and Eyre v. Dumford (b) ; here is the damnum and injuria concurring; the deceit in the defendant, and the injury and loss to the plaintiff. The sciens is considered as equivalent to the fraudulenter (c). It was well said in those cases, that if one be applied to for information as to the credit of another, it is optional in him whether or not he will answer the inquiry ; but that if he do, he is bound to answer truly. This is a case where the de- fendant not loosely or inadvertently, but after grave warning, deliberately asserted a fact of his own knowledge, which is averred and proved to have been false. It matters not to the plaintiff whether the defendant knew it to be false at the time ; the injurious consequenceis the same to him; nor is itless cul- pable in the defendant, whether he knew it to be false, or which is the same thing- did not know it to be true. If he asserted ~ that of his knowledge which he did not know to be true, and that at least is proved by the event, the imposition upon the plaintiff is the same, and the law holds him responsible for the consequences. It is difficult, and sometimes impossible to trace the motives which induce such declarations; though there is no doubt that for the most part they proceed from some sinister motive or expectation of advantage to the party. And here it appeared that Miss Robertson was considerably indebted to the defendant himself at the time, as well as some other casual cir- cumstances, which might induce a jury to account in this man- ner for the earnest anxiety which he shewed to establish the opinion of her credit in the world. But at any rate it was fully established in the cases referred to, that it was not necessary to the maintenance of the action, that the defendant should have any interest at the time in making the false representation; it is enough if it be false, and be made deliberately, and that the consequences are injurious to the plaintiff, who gave credit to it. Suppose a man imposed upon by a servant, out of pity to his apparent distress, were to give a character of him to another, and assert facts in his favour as of his own knowledge, which he no otherwise kiuw than by tin; declaration of the servant him- (u) 3 Term Rep. r.l. (/,) j East, 318. (c) Lealdns v. Clissel, 1 Sid. 146. 1 Keb. 522. self; IN THE FORTY-SECOND YEAR OF GEORGE III. 97 self; in consequence of which the other took him into his ser- 1801, vice, and was immediately robbed by him ; and it turned out TT that the whole representation was false ; but that the maker was against actuated solely by mistaken motives of compassion to state that CEEASY. which he did not know to be true; upon what principle of jus- tice could he excuse himself on account of such motives, for [ 98 ] hazarding an assertion so injurious to another in its conse- quences ? If one assert absolute knowledge of a fact, which he does not know, but has only reason to believe, he cannot but know that his assertion is false, whether the fact asserted turn out to be true or not. The case is much stronger against such an one when, as in this case, his attention is drawn at the time to the distinction between knowledge and mere hearsay : for however propitious appearances may be, a man may refuse to credit them without the actual knowledge of the party to whom he applies for information. It can be no defence, therefore, that the defendant was himself duped, or that he believed that the vendee w r as a person of the credit he represented her to be, or even that he had reasonable grounds for such belief; for his representation went further than this, and unless it had, it is probable the credit would not have been given. There is no foundation for the objection that this is an attempt to evade the statute of frauds ; for that was only meant to indemnify persons from collateral undertakings for the debts of others, where no fraud had been practised to induce the credit: and at any rate, that objection would equally have applied to the cases of Pasley v. Freeman, and Eyre \, D-umford, where it was made and over-ruled. The Attorney-General, Dallas, Marry at t, and Comyn, contra. It was not attempted to go to the jury on the question of fraud ; but it was insisted that the defendant had too credulously be- lieved the appearance of credit assumed by Miss Robertson, and that he had exceeded his duty in stating his knowledge of that which he only believed, without knowing it to be true : and on this ground the case was left to the jury to find for the plaintiff. The question then is, Whether the averment of knowledge [ 09 j concerning a matter like credit, of which perfect mathematical knowledge cannot be predicated, and which at most can never amount to more than a high state of belief, makes the party liable for the consequences to another trusting to such a repre- sentation ? All the cases upon this subject were fully investigated in 99 CASES IN MICHAELMAS TERM 1801. in Pasley v. Freeman: and Grose, J., there said (a), that he had ' met with no case of an action upon a false affirmation, except HA YC II A FT , . r 1 r j against against a party to a contract; and it may rainy be assumed, CKEASY. that previous to that determination there was no such case to be found; for Duller, J., who entered largely into the authorities in support of the contrary opinion, did not produce any direct authority in support of it. All the cases mentioned by him were cases of fraudulent assertions by one of the contracting parties. What is said in Risney v. Selby (b], as to the tenant's falsely affirming to a purchaser that the rent was higher than it really was, amounts to no more than this, that the rent being a matter lying within the knowledge of the landlord and tenant, if they (i. e. the landlord and tenant) were parties to the contract of sale, the action would lie against them. But it is not said that the action would lie against the tenant alone, falsely affirming as to the value of the landlord's estate, if he were no party to the contract between the landlord and the purchaser. But with- out impeaching directly the judgment delivered in Pasley v. Freeman, concerning which, however, much doubt has been entertained, it is sufficient to observe, that all the cases hitherto have proceeded on the ground of an intended deception by making the false representation, and many of them with a view to the person's own benefit who made it. In Pasley v. Free- man, though there was no benefit to the defendant, yet the judgment went expressly on the ground of fraud. Bu//er,3. said throughout, that the foundation of the action is fraud and deceit : and relied mainly on the fact, that the defendant knew the representation to be false. And he cited Mr. Justice Twisden's opinion in Leakins \. C/issel (c), with approbation, that fraud must be proved to maintain the action. The new trial in Eyre v. Dtinsjord (d) was refused on the ground that then- was sufficient evidence for the jury to find fraud, inasmuch as the defendant could not but know that the representation made by him was false. But there is no case which holds a defendant liable for incorrectly, perhaps, asserting a positive knowledge of that which he believed to be so, and had a moral probability for so believing: and here he vouched the o-enuine- iie.ss of his belief, by having credited Miss Robertson himself to () 3 Term Rep. 53. (/-) Salk. 211. (c) I Sid. 1 16. (,!) i Last ,313, a con- IN THE FORTY-SECOND YEAR OF GEORGE III. 100 u considerable amount at the time; for which he took no secu- 1801. ritv till several months afterwards. Then consider what the TT ri\YCRAFT word knowledge, as applied to the subject-matter, meant: it aqainsl could only mean, that the defendant had such strong grounds CB.LASY. for believing the fact, as that he himself would for every pur- pose act upon it as true. If a man could not predicate know- ledge of another's wealth, upon such circumstances of reason- able presumption as offered themselves to the defendant's mind, he could upon none : no degree of general credit or visible property would warrant it: the credit might be delusive; the party might owe much more ; and the visible property might be mortgaged beyond the value. The principle of this action goes to an indefinite extent, if a person were bound, at the peril of answering in damages, to answer truly every question put to [ 101 ] him, and that no belief even would excuse the falsehood. Sup- pose from error in a man's watch he tells another, who is sub- prenaea as a witness in a cause, that he knows it is eight when it is nine o'clock, in consequence of which, the witness, neglect- ing to appear in time, is called upon his subpoena, and has the costs of the cause to pay upon an attachment; would he have this remedy to recover damages? Where is the line to be drawn? Besides, this case trenches strongly upon the statute of frauds. If a particular phrase will have the operation and effect of making a man liable for the debt or miscarriage of another, it militates as strongly against the meaning and spirit of that Act, as if he had used words of direct guarantee or colla- teral undertaking. The statute was intended to guard against perjuries. If a mere shift of expression will take the case out of the statute, then persons will be made liable for the debts of others by proving that the defendant used the words " I know him to be wo.rthy of credit," instead of " 1 will warrant or engage for his credit," or, " I will pay if he do not." And thus all the mischief will be let in which the statute was meant. to prevent; namely, the making men liable to collateral respon- sibility for others by mere words without writing. The form of words cannot be material; the substance and thing is prohi- bited. At any rate, however, there was no fraud or deceit here, am 1 therefore the defendant is entitled to a new trial. Loid KENVON, C. .1. If there be any doubt in this case, I should wish to have it put in such a shape as to be carried to the dernier resort. But not knowing how that can be done, I shall 8 deliver 101 CASES IN MICHAELMAS TERM 1801. deliver the opinion which at present I entertain upon the case. Here is a ^tradesman who has suffered a loss to a large amount against m consequence of his having been induced to give credit to a CREASY, third person: and by this action he calls on the defendant *[ 102 ] through whose misrepresentation the loss was incurred to make it good. The plaintiff's son knowing nothing at the time of Miss Robertson, who had been recommended to the plaintiff by the defendant to buy goods of him in the way of his trade, makes the most particular inquiries concerning her credit, to all which the defendant answers on several occasions in the most positive terms, that she was a trust-worthy person to his own knowledge. The plaintiff's brother, not satisfied with this, puts the question expressly to the defendant, whether he stated this upon hearsay or of his own knowledge, drawing his atten- tion therefore to the subject in the most particular manner; to which the defendant again replies, " / can positively assure you " of my own knowledge that you may credit Miss Robertson to " any amount with perfect safety." The question then is, Whether that representation were true or false ? No doubt it was a gross falsity. She was not a person to be credited with safety, nor had he any knowledge that she was so : and it is a juggle to say that the words in common parlance do not import knowledge in the strict sense of it. They were so understood between the parties at the time, and the plaintiff has suffered a loss in consequence of it. Soon after I came into this Comrt the case of Paslei/ v. Freeman occurred. I had the assistance of three very able Judges to help me to form my judgment; two of whom had long sat on the bench, and were peculiarly conversant with the forms of actions, and they were decidedly of opinion that the action lay; though we had the misfortune to differ from the other Judge, with whom I have now the honour to sit on the bench. 1 indeed was not then so well versed in [ 103 ] the critical form of actions ; but 1 had endeavoured to store my mind with established principles; and I had learned that laws were never so well directed as when they were made to enforce religious, moral, and social duties between man and man ; and I knew that it- was repugnant to all such duties for one man to make f;ilse representations to another to induce him to take measures which were injurious to him. That case has been acted upon ever since, and has recently been recognized by an- other decision of this Court ; in which the two Judges who have since IN THE FORTY-SECOND YEAR OF GEORGE III. 103. since taken their seats on the bench concurred. I am not able 1801. to distinguish this case from those upon principle. The ques- tion has nothing to do with the statute of frauds. That was meant to guard against certain legal presumptions of fraud CREASY. arising out of contracts, but not to indemnify persons against tortious acts and misrepresentations whereby others are deceived and injured. For a series of years since Pasley v. Freeman, cases of this sort have occurred which have passed without dis- pute. And I have been led to depend on that decision acqui- esced in so long, and as I conceived no longer disputed by the learned Judge who differed at first from the rest of the Court. It is said, that I imputed no fraud to this defendant at the trial. It is true that I used no hard words, because the case did not call for them. It was enough to state that the case rested on this, that the defendant affirmed that to be true within his own knowledge which he did not know to be true. This is fraudu- lent ; not perhaps in that sense which affixes the stain of moral turpitude on the mind of the party, but falling within the no- tion of legal fraud, such as is presumed in all the cases within the statute of frauds. The fraud consists not in the defendant's saying that he believed the matter to be true, or that he had reason so to believe it, but in asserting positively his knowledge [ 104 ] of that which he did not know. There are it is true some duties of imperfect obligation as they are called, the breach or neglect of which will not subject a party to an action. If I know that one in whose welfare I am interested is about to many a person of infamous character, or to enter into com- mercial dealings with an insolvent, it is my duty to warn him; but no action lies if I omit it: but if any one become an actor in deceiving another; if he lead him by any misrepresentations to do acts which are injurious to him; I learn from all religious, moral, and social duties that such an action will lie against him to answer in damages for his acts. And when I am called to point out lec,'al authorities for this opinion, 1 say that this case stands on the same grounds of law and justice as the others which have been decided in this Court on the same subject. His Lordship afterwards added, that as to the want of criminal intention in the party making the false representation, he had learned from Lord ./Wrw's maxims that there was a distinction in that respect between answering civiliter et criminaliter for acts injurious. to others: in the latter case the maxim applied, actus noil 104 CASES IN MICHAELMAS TERM 1801. non facit reum nisi mens sit rea: but it was otherwise in civil r actions, where the intent was immaterial if the act done were HAYCRAFT ... against injurious to another. CREASY. GROSE, J. I do not understand the question to be, whether this kind of action be maintainable : on that subject, although I still profess myself unable to comprehend the ground on which the case of Pasleij v. Freeman was decided, yet I hold myself bound by the authority of it, so long as it remains unimpeached by any contrary decision. But I take the question here to be, [ 105 J Whether the evidence prove that which is necessary to sustain the action ? which, so far as I understood the arguments and opinion of the Court in Pasley v. Freeman, was said to be founded in fraud. It was there expressly declared in so many words, that fraud or deceit was the foundation of the action. The only question then is, Whether there were such evidence of fraud in this case as will sustain the action? Now I know not where to find any fraud in the transaction between these parties, . I consider what was said by the defendant upon the several oc- casions, as no more than asserting his opinion of the credit of Miss Robertson; an opinion which he seems to have fairly enter-, tained. It is true, that he asserted his own knowledge upon the subject: but consider what the subject-matter was of which that knowledge was predicated: it was concerning the credit of another, which is a matter of opinion. When he used those words, therefore, it is plain that he only meant to convey his strong belief of her credit, founded upon the means he had had of forming such an opinion and belief. There is no reason for us to suppose that at the time of making those declarations he meant to tell a lie and mislead the plaintiff. He himself had trusted her before to a considerable amount. He had no reason to know otherwise than what he expressed : and had on the con- trary reasonable grounds for asserting knowledge in the sense I understand him to have used it. He had for some time before seen many other persons treat Miss Robertson as a person of fortune. He himself saw her living in affluence. He had seen plans of her supposed estate in Scotland: and had observed other circumstances, altogether well calculated to delude him. I can- not say that I should not also have been duped by the same ap- [ 106 ] pearances. Then it is also a circumstance in the case, that he does not appear to have had any interest in misrepresenting the mutter to the plaintiff otherwise than as it really appeared ta him, IN THE FoRTY-StfCOND YEAR OF GEORGE III. 106 him. And taking the whole together, I think the evidence goes 1801. no further than his asserting, that to his firm belief and con- "" viction she was deserving of credit; and that the defendant aqainst was himself a dupe to appearances. But until some case shall CREASY. be decided which goes further than that of Pasley v. Freeman, there must be evidence of fraud to support such an action : and evidence of being a dupe is not sufficient. Therefore, with- out meddling with the law as laid down in that case, but taking it at present to be right until it is overturned, I cannot concur in this verdict, there being no evidence of fraud as required by that determination. LAWRENCE, J. Considering the great extent of this question, I wish that it may be put upon the record, in order that it may be submitted to the judgment of a higher Court. I have always understood the doctrine laid down in Pasley v. Freeman to be, that without fraud there was no cause of action. I collect that from the opinion delivered by each of the Judges who concurred in that judgment. If this case had gone to the jury on the ground of fraud, I cannot say there would hare been no evidence to support the verdict: but the case went to them on the ground, that though the defendant were himself a dupe, yet if the re- presentation made by him were false, he was answerable. Then the question is, \Vhether if a person assert that he knows such an one to be a person of fortune, and the fact be otherwise, al- though the party making the assertion believed it to be true, an action will lie to recover damages for an injury sustained in con- sequence of such misrepresentation? It does not appear that any [ 107 ] of the Judges went this length in Pasleu v. Freeman. Stress has ^ o / been laid on the defendant's assertion of his own knowledge of the matter: but persons in general are in the habit of speaking in this manner without understanding knowledge in the strict sense of the word in which a law r yer would use it. This observa- tion will not only apply to ordinary men in common conversa- tion, but also to persons of the best information. If any man should say that he knows there is no city larger than London, it must be understood that he is speaking only from information and belief upon such a subject, and not from actual mensura- tion. The same must be understood when one is speaking of his knowledge of the credit of another. In order to support the action, the representation must be made male ammo. It is not necessary that the party should gain, or intend to gain any 107 CASES IN MICHAELMAS TERM 1801. any thing for himself by it; but if he make it with a malicious intention that another should be injured by it, he shall make AYCRAFT compensat j on - m damages. But there must be something more against j / CREASY, than misapprehension or mistake. However, m deference to the opinion from which I differ, I cannot but state this with doubt and distrust of my own opinion. LE BLANC, I concur with my brothers in wishing to have this question put on the record : but shall give the opinion which I now entertain. The question is, Whether the action be main- tainable on a mere representation by the defendant that he knew that of his own knowledge, which in fact he could only be said to / know according to the best of his information and belief? Now the law as laid down in Pas/ey v. Freeman went no further than this, that where a party with a design to injure another makes a [ 108 ] false representation of a matter inquired of him, inconsequence of which the other is damnified, he shall answer in damages. The case of Eyre v. Dutisford followed on the same ground. The former case came on upon a motion in arrest of judgment on the third count. That count stated, that the defendant in-? tending to deceive and defraud the plaintiffs, did wrongfully and deceitfully encourage and persuade them to sell and deliver cer- tain goods to one Falch upon credit; and for that purpose did falsely, deceitfully, and fraudulently assert that Falch was a per- son safely to be trusted, Sec. whereas in truth Fnlch was not then and there a person safely to be trusted, and the defendant well knew the same, Sec. The question there was, Whether, ad- mitting all those facts to be true, the action were maintainable? All the Judges who were of opinion in the affirmative, thought that there should be damage to the plaintiff, and fraud in the de- fendant. 1&y fraud, I understand an intention to deceive; whe- ther it be from any expectation of advantage to the party him- self, or from ill-will towards the other is immaterial. Then the question here is, Whether the defendant's saying that which cri- tically and accurately speaking was not true, but not having said it with any intention to deceive, brings this ease within the doc- trine of I'tis/e// \. i'rccnidti ! I think not. Then considering that case to have governed the determination in Eyre v. DIIHS- ford, I understand the judgment in the latter to have turned on the fact that the party making the representation, which was not true, was himself to gain something by it; and that the jury were satisfied that the representation was false; and there was sufficient IN THE FORTY-SECOND YEAR OF GEORGE III. 108 sufficient evidence to warrant them in drawing the conclusion that 1 801 . the representation was also fraudulently made. But this is a case where the defendant giving credit to the arts which had been practised upon him and others, and believing the appearances to CREASY. be real; and not discriminating with a lawyer's mind, conceived [ 109 ] that his view of her manner of living, of the plan of the estate, and so forth, amounted to knowledge of what he asserted ; and that he did not make the representation upon mere hearsay, and asserted this without any intention to deceive the plaintiff. This therefore differs the case essentially from Pasley v. Freeman, admitting the law there to have been correctly stated ; and I therefore wish it to be again submitted to the jury, and that if any doubt be entertained, the question may be put on the record. Rule absolute. T SHAWE against FELTON. Tuesday, Nov. 2lth. HIS was an action on a policy of insurance on the ship/// dian, On an in- and goods, valued at 6600/. on a voyage at and from Liver- shi^and " pool to the coast of Africa, during her stay and trade there, and P 0(ls v a'" e J from thence to her port or ports of discharge, sale, and final des- on a voyage tination in the West Indies and America, and until she was moor- 1 P ^{'' lca anti the If mt In- ed twenty-four hours in safety. At the trial before Lord Kenyan, dies, the as- C. J. at the last Sittings at Guildhall, it was proved that the ship J"^J J S Q c r "; was sea-worthy when she sailed from Liverpool; and it was not cover the disputed that the insurers were interested in the ship and outfit, a | ot ai lo^s (including provisions and sea-stores laid in for the slaves which which hap- ptiiod in the were to be taken in on the coast of Africa, and also wages ad- latest period vanced to the [ n ] crew,) to the extent of the value insured. ot tlie v y- age ; although The ship arrived on the coast of Africa, took in a cargo of slaves a considerable there, and proceeded to Demerara. In the course of her voy- gg^^gj age thither, and in calm weather, she met with a violent concus- value cou- sion, described to resemble an earthquake, from which she re- j.'^^ j n "'j~j 1 orcs ceived so much damage, that it was with the greatest difficulty am' pro- visions for the purchase and sustenance of slaves during the voyae, and the slaves were brought to a profitable market at the first place of the ship's destination, where she arrived a mere wreck, and soon after foundered. Where a ship injured arrived in port a mere wreck, and was obliged to be lashed to a hulk to avoid sinkini;, and in attempting to remove her to the shore a few days afterwards she sunk; held that the assured might recover as for a total loss, though bet cargo was saved aud brought to a profitable market. she. 110 CASES IN MICHAELMAS TERM 1801. SHAWE tigainst TY.LTOX. she was kept afloat by pumping until she reached Demerara, al- most a wreck, where she was obliged to be lashed alongside of a hulk, to keep her from sinking; and in attempting to remove her from thence to the shore, a few days afterwards, she sunk, al- though the distance was only about fifty yards. At the time of her arrival at Demerara her stores were considerably expended. The ship was originally destined there, in the first instance, with directions to the captain to proceed to other ports and places in case he could not dispose of the slaves there at a certain average price. And his letter of instructions from his owners contained the following direction, "As your vessel is not according to the "late Act of Parliament (/?),we would have you sell her in the " West Indies, provided you can procure 1200/. s but expect you "will get from 1500/. to 1200/. Should you not dispose of "her, you will procure what freight you can for Liverpool." In fact, the vessel having been surveyed at Demerara, and con- demned as unserviceable, was sold only for 388/. In conse- quence of this the captain was obliged to dispose of all the slaves there, not indeed so advantageously as he might otherwise have done, had he been enabled to proceed to other places : but still so as to cover the average price to which he was limited by his instructions. The plaintiff gave notice of abandonment to the underwriters, and recovered as for a total loss on the ship; and the verdict was taken for the full amount of the sum insured, it being a valued policy. A rule was obtained, calling on the plaintiff to shew cause why the verdict should not be set asjde and a new trial had, on the grounds that the subject-matter of the insurance was so much reduced from the original value at the time of the loss, (if it were to be considered as a total loss), that the sum valued in the po- licy ought not to conclude the underwriter. That a policy, though valued, was still no more than a contract of indemnity, and was only meant to bind the parties when the subject-matter continued nearly in the same state as at first, allowing for usual wear and tear. That in particular it ought not to conclude in this case; because not only the actual worth of the ship was by the owner's own confession of so much less than the stipulated (a) This was one of tlie several Arts which passed for the regulation of the African slave trade, limiting the number of slaves to the tonnage and re- quiring the vessels to be of a certain built. The Act alluded to was to take place after the voyage in question commenced. value. IN THE FORTY-SECOND YEAR OF GEORGE III. Ill value, but also the stores which were included in the insurance were profitably expended by him in the purchase and sustenance of the slaves, all of whom had been brought to an advantageous market; and therefore, so far from the plaintiff having incur- red any loss in this respect for which he was entitled to an in- demnity, he was in fact a considerable gainer by the adventure. The Attorney-General, Erskine, Park and Wood, shewed cause against the rule. It was first attempted at the trial, to shew that the ship was not sea-worthy when she sailed ; but that fail- ing, it was next insisted that there was not a total loss, inasmuch as the ship was moored above 24 hours at Demerara before she sunk ; but that also failed : for taking Demerara to be in the event her ultimate port of discharge, which only became so be- cause the vessel was not in a condition to proceed further and take the chance of a better market; still it appeared that she was not moored in safety for a moment, but came into the port a wreck, with her death's wound which she received at sea. Now, it is insisted that the policy, though valued, must be opened under the circumstances. But this is contrary to the whole course of proceeding with respect to valued policies. It is not pretended that the property insured was over-valued in the first instance, but that by wear and tear and the consump- tion of provisions and ship's stores, which were covered by the policy, the value had been reduced. If this were admitted, it would take away all certainty, not only from valued, but from open policies; for every day's continuance of the voyage must reduce the value in these respects. It happens, indeed, in the present instance, that the object of the voyage was not defeated, because the slaves were preserved: but this is an insurance on the ship and stores, and the same objection would have applied if the ship had sunk at sea, near to the same port, and all on board had perished. It might still have been said, that at the time the loss actually happened, there was the same diminution in the actual value of the property insured. Besides, the lowest sum for which the ship was directed to lie sold is no criterion of the value; for the owner could no longer make use of her for the purpose for which she was originally built, and therefore it was more advantageous to him to dispose of her at once, even at a loss. At any rate, this bein'j; a valued policy, for which the underwriter receives an adequate premium, he is concluded from an examination into the value at any subsequent period of the VOL. II. G vovaire, 1801. S H A W E against FELTOX. [ 113 ] Ill CASES IN MICHAELMAS TERM SlIAWE against FELTOX 1801. voyage, no fraud being imputed to the plaintiff in the first in- stance. The custom of making valued policies arose soon after the stat. 19 Geo. 2. c. 37 (). Magens (b~) on Insurance, which was first published here in 1755, nine years after the statute, treats it as a settled custom. In Le Cms v. Hughes (r) Lord Mans- Jield said, "The constant usage since the stat. 19 Geo. 2. in case of a total loss, has been to let the valuation stand, and the parties are estopped from altering it : but an average loss opens the policy. I will give you the origin of this custom: it was in a case of Erasmus v. Banks, Mich. 21 Geo. 2. where Lord C. J. Lee said, Valuation at the sum insured is an estoppel in case of a total loss, but not so in case of an average loss only. On the 13th December 1747, the same point came again before the Court in Smith v. Flexney, and was so determined." Lord Mansfield then proceeded to observe, that it was a reasonable usage, and ought to be the rule. Gibbs and Casscls, in support of the rule, admitted that a valued policy was not to be opened unless there were fraud where the thing valued was the thing lost: but they contended that here the subject-matter of the valuation was not the subject of the loss. Admitting that the vessel with her outfit was worth 6600/. when the insurance was made; yet as a great proportion of that value, to the amount of above 3000/. consisted in those stores and provisions, out of which the profit of the voyage was to arise by the expenditure of them, and as in fact the slaves [ 114 ] who were purchased and sustained out of that expenditure all arrived safe and produced the profit of the voyage, the subject- matter of the insurance, us to so much, was not lost to the plaintiff, but arrived at the place of its destination, and has been received by him in tile shape, of profit upon the voyage. The same observation would apply to another sum of about 400/. paid in advance of the seamen's wages at 'lAverpool, At any rate, there is no instance in the books of a total loss, where the object of the voyage was accomplished, and the subject-mat- ter of the insurance arrived in specie at the place of destina- tion. It is, therefore, an attempt to call upon the underwriters for an indemnity to the amount of (iGOO/., when upon the plain- () Tliis was to prohibit wagciii)!* policies, "interest or no interest, or with- out further proof of interest than the policy." (b) Mug. \ vol. 33. (c) E. 22 Gco. S. vide S. C. Parke on Insur. tiff's IN THfi FORTY-SECOND YEAR OF GEORGE III. 114 tiff's own shewing;, he has not been damnified to a 6th of the O amount; and is nothing less than a wagering- policy, within the prohibition of the statute. Lord KEN YON, C. J. The jury had no doubt but that the ship was sea-worthy when she sailed, and that there was a total loss ; for though she arrived at Demerara, she was never moored twenty-four hours, nor a moment in safety. She came there a perfect wreck, having received her death's wound at sea, and was with the utmost difficulty kept afloat till all the people on board were landed. It is not pretended now that there was any fraud in the case: but it is contended that the underwriter is not bound by the valuation in the policy. It is of little con- sequence to inquire what my opinion would have been upon the subject of valued policies in the year 1746, immediately after the stat. of the 19 Gco, 2. passed: for very soon after they were decided to be legal by as cautious, and upright, and pains- taking, a judge as ever presided in this Court (LordC. J. Lee.} He was succeeded by Sir Dudley Ryder, and this latter by Lord Mamjield; and during all this period such policies have been sanctioned by one uniform course of decisions. All this is now supposed to be wrong; and the rules by which this and other commercial nations have so long regulated their dealings are now wished to be disturbed; but I will not lend my aid to open such a new and wide door of litigation, much exceeding every thing that has gone before. If we were to enter into the calculations which have been contended for, every valued policy would be to be opened. Every man's meal on board a ship would take from the value of the original outfit. Is this to be endured? Will good faith admit of it? Where is the line to be drawn between a greater or less diminution of the value? Therefore as the rule and practice of valued policies have been acted upon and sanctioned since the passing of the statute, 1 am not one who wish quieta movero. GROSE, J. We are desired by this motion to open a valued policy, contrary to the practice, and in a case, where no fraud is imputed; for doing which no authority has been cited. If we were to admit it in this instance, it, would be required in every other; and thus a door would be opened to endless litiga- tion. Therefore to avoid great injustice to individuals, and great public inconvenience, 1 think we are bound to refuse the ap- plication. G '2 LAWRENCE, 1801. SHAWE against FELTON. 115 CASES IN MICHAELMAS TERM SHAWE against FELTON 1801. LAWRENCE, J. As the practice of binding parties as to tlie amount of their interest by valued policies has obtained ever since the stat. of Ceo. 2. it would require very strong reasons to shew that it is wrong. That statute was passed in order to prohibit mere wagering policies by persons insuring who had 116 ] no interest in the thins; insured, and therefore it avoids policies . -J L made, interest or no interest, or without further proof of in- terest than the policy itself. The effect therefore of a valued policy is not to conclude the underwriter from shewing that the assured had no interest, and that in fact it was a mere wager- ing policy within the statute ; but in order to avoid disputes as to the quantum of the assured's interest, the parties agree that it shall be estimated at a certain value. Here it is not pre- tended that the subject-matter of the insurance was not at first of the value estimated in the policy. Then how does this differ from the case of an open policy in this respect? Would it not be sufficient for the assured in an open policy, to prove that at the time the ship sailed the subject-matter of the insurance A\as of such a value? Is not that the period to look to, and not the state of the thing at the time of the total loss happening? If on account of the peculiar nature of an African A'oyao-e there ought to be a difference in this respect between these and other trading- adventurers, theundenvriters may if they please introduce a spe- cial clause in the policy to provide for the diminution in value by the expenditure of stores and provisions in the purchase and sus- taining of the slaves, As it stands at present, there appears no ground for making any such distinction. LK Bi. \N( , .1. The present is an extreme case, because the loss happened at the last period of the voyage at which it could happen. But the same thing mil: t occur more or less in every policy upon ship and outfit. The \alue of the property must be continually diminishing, and if the loss happen at. the latter end of a Ions; voyage, no doubt the property must be consider- ably deteriorated at the time by the usual wear and tear; and [ 117 ] yet it is never objected that the undenviiter is not liable for the original value. As to the owner himself having estimated the value of the property at so much less than the sum at which it. was insured, many things may happen to render a vessel of less value when the voyage is conclude:!, although the subject-matter exists; the amount of the repairs required. &.c. The rule having been so Ions; laid down, as to valued policies, it is too late to open it again. Rule discharged. 8 NEATE IN THE FORTY-SECOND YEAR OF GEORGE III. 117 1801, NEATE and others, Assignees of SANDWELL a Bankrupt, against BALL and others. Tuesday, Nov. 24th. TINT trover for certain bags of wool, it appeared that the de- A trader or- -* fendants were Spanish wool merchants in Bristol, with ders ba 8 s of whom Sal/dwell had before his bankruptcy been in the habit of fendants (mer- dealing for that commodity. The course of dealing between c ' iants ) in . -, 7 7. T December, them was, that sometimes kandwell ordered the w y ools, some- which are times they were sent by the defendants to him without any spe- ti^Yguf of" cific order; but they always gave him the option of returning l-'ubruury fol- the goods if he had no call for them; though previous to the bVthf' course transaction in question none had ever been in fact returned. In of dealing the the present instance an order for 13 bags of wool had been option of^e.' 6 given in December 1800, which were directed by [us] Sand- turning the well to be sent from Southampton (where they were deposited which he with the defendant's agent) to Devizes, where Sandicell lived, llas "? cal1 ' about the middle of February, The defendants sent him the vionsiy or- invoice some time in January: and on the 14th of Februan/ the ? er ? d< , 1 . lie " '. trader being bags were sent. Sandwell was not at home when they arrived from home and were deposited in his warehouse ; but on his return home the same day he gave orders not to have the bags opened, and ed, on his they were not in fact opened; but he o-ave the invoice to his same^ay 6 foreman, and directed him to weigh off and examine the wools K' vcs dhec- therewith : and they were in fact deposited along with other navp t |, em goods of the bankrupt. On the 4th of March, Sandwe/l wrote opened or -. , r , , entered in the letter after-mentioned to the defendant, and on the same his books, but day delivered four of the bao-s to a common carrier to take back "!> wel s licd * oil to see to the defendants, (who received them on the 6th ;) and on the that they 5th Sandwell delivered the remaining nine bags at the same tjfe^oice- carrier's warehouse with the same direction, and wrote another he being then letter to the defendants as after-mentioned. The first letter and intend- in not to lake them into the account of his stock if in the event he found himself unable to pursue liis business. Afterwards on the -Itli and ">th of March, being then avowedly insol- vent, lie return-; the baijs with a letter to the merchants declaring his situation, and hoping that they will have no objection to take back the wool, and requesting the favour of a line of approbation thereof; which letter is received, and the approbation given ut'tcr an act of bankruptcy committed on the same day the letter w:is senf. Held that by the trader keeping possession of the goods so long, his option (which ought to have been exercised on the receipt of them) was gone; and that being in a state of n^olvency and on the eve of bankruptcy, he could not exercise the power of restoring the goods to the vendors, though without any fraudulent conceit with them; but that the trader's assignees arc entitled to tho- property, from 118 CASES IN MICHAELMAS TERM 1801. from Sandwell to the defendants,, dated "Devizes, 4th March 1801," was as follows: "I arn sorry to be under the ne- 'against " cessit Y of returning the wool I lately received from you, I BALL. " cannot take it to account. The bearer will deliver you four "bao-s, and to-morrow the remainder shall go. I will write "you per post," &c. In the second letter, dated "Devizes, 5th March 1801," Sandwell wrote to the defendants: "Trade " being so bad at this time as to make it doubtful whether I o "can pursue it with any advantage, and having met with some "losses, which quite dispirit me, 1 have taken the liberty of " returning you by a cart this morning four bags of the thir- " teen you lately sent me, and have deposited the remaining [ 119 ] "nine bags in the houe of /'. the carrier for your use. I have " never taken these wools into my stock, and therefore hope "you will have no objection to receive them ; and enclosed I "send you the invoice. Be so good as to favour me with a line "of approbation hereof, &c. P. S. I happened to be from "home when the wools were brought, otherwise I should not "have taken them into my house." In reply to these letters the defendants on the 7th of March wrote Sandwell a letter, signifying the receipt of his letter and the four bags of wool, which they had credited to his account, as they w r ould the re- maining nine bags when received. The bankrupt himself de- posed, that at the time of his returning the wools he had not a bankruptcy in contemplation; but that his affairs were in an embarrassed state, and he was sensible that he was insolvent, but was undecided whether he should call his creditors together or not. That if he had been at home when the wools arrived he should not have received them, being then embarrassed, and having had orders countermanded, which he had expected to execute when they were ordered from the defendants; and that he thought it hard and unjust To the defendants to take the goods; and that, he had a right to return them at his option: and that he did not take them into the account of his stock. That alter returning the wools IK; made one or two payments, hut found himself unable to pay any other demands. He \\as denied to a creditor on the evening of the 5th of March after the remainder of the goods had been sent to the carriers; and on the O'th he left his house. The action was brought by the plaintiffs, as assignees under the commission of bankrupt issued against him, to recover the four IN THE FORTY-SECOND YEAR OF GEORGE III. 119 four bags which the defendants had received ; it being agreed 1801. that the other nine ba^s, which were delivered to the carrier r r " K RATE and never forwarded * to the defendants, should abide the event aquinst of this cause. A verdict was found for the plaintiffs at the trial BALL. before Lord Kein/on, C. J. at the Sittings after last Trinity *[ 120 ] Term at Guildhall; and a rule was obtained, principally on the authority of Alkin v. Bancick (a), calling on the plaintiffs to shew cause why there should not be a new trial. Against which The Attorney-General and Hovell now shewed cause. What- ever the bankrupt's intentions might have been from the time the goods first came to his possession until he returned them, or however he might have refused them if he had been at home when they arrived; yet the goods having been in fact deposited in his warehouse, and he having acquiesced in that from the 19th of February till the 4th of March, and the goods having been weighed off, and mixed with his other property during all that time, the delivery to him was complete, and the property became absolutely vested in him; so that it was not competent to him, in a state of insolvency, and at the very eve of bank- ruptcy, to rescind the contract and restore the goods to the de^ fendants. During all the time the goods formed part of his visible stock in trade, upon which he gained credit; and the circumstance of his having given orders not to have them opened cannot vary the question ; because that could not be known to the world at large; and such an exception would be repugnant to the principle of the bankrupt laws. The case of Atkin v. Bancick, if it be law, is at any rate distinguishable from the present; for a much longer period intervened between the return of the goods, which was on the 18th of May, and the bankruptcy, which was not till the 9th of June. But what is more material is the explanation of that case given by Lord Mansfield in Harmanv. Fishar (Li), and Alder son v. Temple (c), [ 121 j and since adopted by Lord Kcni/on in Harm's v. Free/and (d), (hat the trader refused to accept the goods, and returned them; and that though the judgment might be sustained, the reasons were wrong. Perhaps the better way would be to deny the case to be law altogether; for it seems difficult to say that the goods (a) 1 Slra, 165. The same case is reported in roitcsc. 35,'i. 10 Mod. 131, and 1 1 Mod. 295. (?>) Coirp. l'J5. (c) 4 flurr. 2'JS?, (d) (> Term Rq>. 85. had 121 CASES IN MICHAELMAS TERM 1801. had not been accepted; and if so, the authority of it is much trenched upon by all the later decisions. With respect to the aarinst case * a/te v - field (a), where the return of the goods was su- BALL. tained, the principal actually disaffirmed by letter the contract made by his agent before the delivery of the goods, although the letter was not received till after the delivery to the vendee's packer, in whose hands the goods were attached by the credi- tors. And though the other party was at liberty to have re- fused the renunciation of the contract entered into by an au- thorized agent; yet having accepted it, the countermand related back antecedent to the delivery itself. But where, as in Smith \. Field (/>), the vendor under the same circumstances elected not to rescind the contract, by attaching the goods in the packer's hands as the property of the vendee, it was ruled that the assignees of the latter who became a bankrupt were en- titled to retain the goods. Erskine, dibbx, and Scarlett, contra. The honesty of the case on the part of the bankrupt, as well as of the defendants, cannot be impeached; and unless Atkin v. Barioick be denied to be law, this case is also supported by positive authority. In none of the cases is the authority of that judgment disputed, but only the reasons which were given for it. On the contrary, in [ 122 ] Harmon v. Fis/ior (r), Lord Mansfield expressly says, that the judgment in Atkiti v. Harwich was ri^ht; and it was also sup- ported in Suite v. Held (d), and Smith v. Field (c). But the account given of the same case in Jiornes v. Free/and ( /'), is not accurately stated ; for it could not be said, (as is supposed in the report) that the goods there had not been accepted by the ven- dee. l : or they were sent on the 7th of April, and not returned till the IHth of May, and it cannot be taken that they were upon the road during all that interval (). Here there never was a complete sale and delivery of the goods. By the usual course of dealing between these parties Sandwell was at liberty (.4'J'->. (c) Cnwp. 125. ((/; b Term //c;. t'll. (c) .'> Tn-tn HCJI. 4_"J. (/) C Term Rc)>. 85. (j) This fact, which seems an important one, is not clearly stated in the report in Stmnyc: Hut it U not very improbable that the goods might have lingered so lon; on the road between London and Pcnnjn as to have been re- turned within the period mentioned on the first convenient opportunity after they were received; so as to justify the explanation of the case as it has been frequently given from the Bench. to IN THE FORTY-SECOND YEAR OF GEORGE III. 122 NEATE against BALL. to return any goods even after delivery in fact, which he found 1801. he had no occasion for. And though the goods were in fact de- posited in his warehouse, yet that being without his consent could not take away his election. He was from home at the time of the deposit ; but as soon as he returned he did as much as in him lay to repudiate the delivery, by declaring his dissent to it, and giving directions not to open the bags nor enter them in his stock. The weighing them off was to guard against any mistake in the invoice, for which he might become responsible though the goods were returned. It is true, he did not imme- diately inform the defendants that he had elected not to take the goods ; but supposing they had remained with the carrier, the option would have continued open to him till the defendants themselves chose to recall the goods: then the fact of their [ 123 ] having been deposited in his own warehouse, without his know- ledge, nnd against his will, cannot vary the case. If he still retained the option of returning them without the particular leave of the defendants, the legal consequence must be the same, and cannot be altered 'by the insolvency of the party. In all the other cases relied on e contra there was an absolute ac- ceptance of the goods; the vendee had not the power of rescind- ing the. contract without the assent of the vendor, even sup- posing the former had continued solvent; then by the operation of the bankrupt laws he ceased to have the power of doing so in a state of insolvency, or in contemplation of bankruptcy. It is not necessary to decide here whether Sandwell could have ex- ercised the option reserved to him after the act of bankruptcy ; because it might be said that by the operation of the bankrupt laws all property was devested out of him by relation back to that time; but it is enough that the election was exercised be- fore the bankruptcy, while the legal as well as equitable pro- perty continued in him; there being no fraudulent intent here to prefer one creditor to the rest in contemplation of bank- ruptcy. If his permitting the bags to remain in his warehouse were evidence of an acceptance on his part, at least it is ex- plained to be a qualified acceptance, and such as reserved to him the original option which lie had of returning the goods, if he found he had no occasion for them. Lord KENYON, C. J. If in these cases where goods continue in bulk, and discernible from the general mass of the trader's property at the time of a bankruptcy, they could be returned to the 123 CASES IN MICHAELMAS TERM 1801. NEATE against BALL. *[ 124 J [ 125 ] the original owners who have received no compensation for them, without injury to the claims of others, it would be much to be wished; but that* cannot be done without breaking in upon the whole system of the bankrupt laws. This case was tried upon the evidence of the bankrupt and his servants ; and it was very evident that they wished to favour the defendant in the transaction. The jury were told by me, that if the goods were not delivered to and accepted by the bankrupt there was an end of the question, and the property remained in the con- signors ; but if otherwise, the bankrupt had no power to rescind the contract when he returned them ; upon this they found for the plaintiffs. The verdict is now moved to be set aside on the authority of Atkin v. Bar wick, which is contended to be in point for the defendants. Certainly the cases do approach each other a little : but of that case I must observe, that I never heard it quoted without some comment upon the law of it. Each gen- tleman at the bar finds fault with it in his turn. In my opinion Lord Mamjield has extracted the true ground on which that judgment, if it did not proceed, ought to have proceeded; namely, that the trader, finding himself in a failing condition, very honestly did not accept the goods, but returned them. And if the goods were not accepted, the judgment was right. Cases are to be resorted to for the sake of the principle on which they were decided, and our opinions ought not to be governed by every little matter of difference which may be pointed out. Then see what this case is, as applicable to the principle which governs in such cases. Did the bankrupt accept the goods ? In considering that question never let it be forgotten, that the bankrupt lived at Devizes and the defendants at Bristol, between which places there is not only daily but it may almost be said hourly intercourse. That on the 19th of February the goods camo into the custody of the bankrupt, on which day he, doubting his own situation, and meaning, in case he could not avoid the insolvency which threatened him, to do what was right by the defendants, wished to keep matters in such a state that he might have it in his own power to dispose of the goods in what manner he pleased according to the event. That might be well meant in him : but it is what the law cannot permit. He was to decide immediately whether he would accept or return the goods. But see what he did. He received them on the 19th of February into his warehouse, and there he kept them 6 as IN THE FORTY-SECOND YEAR OF GEORGE III. 125 as his goods till the 4th and 5th of March. If he had continued solvent, and the defendants had refused to receive them back after such an interval, it would have been asked by them whe- ther he was at liberty to keep them for fourteen days, without giving any notice that he did not chuse to accept them, in order to take advantage of the rise or fall of the market. However he makes the discovery on the 4th of March, that he has no occa- sion for the goods ; and on the 5th he writes the letter which has been read : knowing at the very time that he was insolvent, and ordering himself to be denied to a creditor in the evening of the 5th. Morally speaking, I do not blame him for what he wished to do : but by law he could not do it. The power of conferring favours, however well merited, was out of his hands at the time. It might as well be contended that he had an option to return the goods even after the act of bankruptcy. Then see again when the defendants agreed to this; not till the 7th*of March, which was after the act of bankruptcy, when the bankrupt was incompetent to make any bargain concerning the goods. Till the re-delivery on the 7th the goods must be con- sidered as continuing in the hands of the bankrupt, because they were in the custody of the carrier who was his agent for the purpose. I will not say that the case of Alkin v. Bancick was wrongly decided : I leave it to others to consider that point : but Lord Hansjield has given a ground on which the Judges there went, or ought to have gone, in deciding it. I think we disturb no case by our present opinions, but we pre- serve the system of the bankrupt laws unimpaired in deciding with the plaintiffs. GROSE,. I. The only ground to support the judgment in Atkiu v. Harwich was what Lord Man^ic/d stated it to be in the subsequent case of ILannan v. J'ixhar, namely, that there had been no acceptance of the goods by the trader. The principle question then here is, Whether the o-oods were accepted by the bankrupt or not? for if they were, he was insolvent on the 4th and 5th of March when they were returned, and there tore was not then in a capacity to rescind the contract. Now all the evi- dence shews an acceptance, and it is so found by the verdict. LAWRENCE, J. The great argument, for the defendants has rested on the ground that the bankrupt had an election to re- turn the goods continuing down to the time of his bankruptcy, and that the property did not vest in him until he hud made hi>. election. 1801. NEATK agaitut BALL. [ 126] 126 1801. NEATE against BALL. [ 127 ] CASES IN MICHAELMAS TERM election. But the letter alluded to contradicts that idea ; for it is a solicitation to the defendants to receive back the goods, for the reasons which he assigns touching his own situation. It is true, the bankrupt was not at home when the goods were first brought to his house in February; but that cannot make any difference in this case ; for if he did not chuse to accept them after his return home, he had nothing more to do than to write to the defendants to that effect. He might have said that he was not bound to accept them, and therefore he returned them. Instead of which he kept them till the 4th and 5th of March, and then wrote to the defendants, not as if insisting- that he was not O bound to accept them, but hoping that they would have no objections to receive them, and requesting the favour of a line of approbation thereof. This is inconsistent with the ground of defence now set up. LE BLANC, J. The question is, Whether the property of the goods were vested in the bankrupt? The facts decide the case. For supposing by the course of dealing, that he had an option to return the goods, which had been sent by his order, yet he has not done so. When he knew the goods were in his house, instead of returning them to the defendants, he kept them in his warehouse, where they had been deposited. And it would be opening a door to great fraud on the bankrupt laws, if we were to hold that the vesting or not vesting of the property of goods sent to a trader, depended upon whether or not he entered them in his books as part of his stock. How long shall he be allowed to keep them in his possession without making such entry? Certainly when the bankrupt wrote the letter which has been referred to, he considered that he had before accepted the goods. Therefore my opinion is formed on this, that the bankrupt had taken the goods into his posses- sion 5 and that when he returned them he was not at liberty so to do. Rule discharged,. YATE IN THE FORTY-SECOND YEAR OF GEORGE TIT. 128 1801. YATE against WILL AN. Wednesday, Nov. 25th. E plaintiff declared against the defendant as the owner The payment and proprietor of a certain coach called the London and ? f m " ne y 1 . . into Court b/trewsbury mail-coach for the carriage of passengers and goods upon a count for hire, between London and Shrewsbury, and intermediate statl "g a special con- places. That the plaintiff for a certain hire had taken and tract is an ad- hired a place in the coach as an inside passenger, to go from "VchTontract the Green. Man and Still in Oxford-street to Oxford, being an and narrows intermediate place, 8cc. and, as such passenger, was entitled to^the^quan- and was about to carry with him, in and by the said coach, a tlim of certain travelling trunk, containing divers articles, &c. of the by the breach value of 30/. And thereupon, in consideration that the plain- there f- '1 nerefore it tiff, at the instance and request of the defendant, would forbear the plaintiff to carry with him the said trunk as such passenger, as afore- declare as J l upon a iieneral said, the defendant undertook and promised the plaintiff that undertaking lie would take care of the trunk, and safely send and forward ! J - V , tlie . d . e " ' J tendant to the same by the next night's mail-coach to Oxford, and there carry ^oods deliver the same to the plaintiff. That the plaintiff confiding which'the in the said promise did forbear to carry the trunk with him as defendant such passenger, &c. whereof the defendant had notice. But Court the that though the defendant, as such owner, &c. had and re- latter cannot . , /> i pi- PIP ^' vc ' n ev '~ ceived the said trunk for the purpose or taking care of and tor 1 - t ie nce that the wardino- the same, as aforesaid, &c. and causing the same to contra ct was , , ,. that he should be safely delivered to the plaintm at Oxford: yet not regarding not be answer- Ins said promise and undertaking, Sec. the defendant so care- *We for goods . lost to a lesslv and negligently conducted himself about the conveyance greater value of the said trunk, that the same was lost, &c. There were two " " s other special counts, (one charging * the defendant as a com- paid for ac- \ *i i P ii p cordinlv: mon carrier,) in substance the same, and a fourth count tor thont ,j, ,,- no money had and received. The defendant pleaded the general "onev had issue, and paid .")/. into Court //)>/. paid into Court. At tin: trial the defendant changes his ground and says, that the plaintiff has no right to recover be- yond the ')/. because the contract entered into was not what in- stated by him in his declaration, but a different contract. To which the plain answer is ; that he should not then have admitted that the plaintiff had any such demand as he states, but should have disputed the contract altogether. And then if he had shewn that it was not a general agreement to be answerable for the [ 133 J IN THE FORTY-SECOND YEAR OF GEORGE III. 133 the value of the goods lost or damaged, but a special limited 1801. agreement to be answerable for no more than 51. value, unless it y ~ were entered and paid for accordingly, the plaintiff must have against been nonsuited ; for such a defence would have negatived the WILLAN. contracts stated in the declaration. GROSE, J. It is too late now to say, that the payment of mo- ney into Court is not an admission of the contract as stated in the count on which it is so paid'. In this case it admits the general agreement declared on to be answerable for the safe carriage of the goods ; whereas the real defence is, that the defendant did not make a general but a particular and limited agreement to be answerable : and therefore if the defendant had denied it alto- gether, the plaintiff must upon this evidence have been non- suited. LAWRENCE, J. The plaintiff states a certain agreement, and by the payment of money upon the contract stated the defendant admits that he did so contract, but contends that he is not liable for more than 51. damages under that contract. The ad- mission can refer to nothing else. He admits, (as Mr. Justice Ashhurst says in giving the judgment of the Court in Cox v. [ 134 ] Parry (a), that the plaintiff has a right to maintain the action, and reduces the question simply to the quantum of damages he is entitled to recover. The residue of that case is no more than this, that if the contract declared upon be illegal, the defendant shall not give it effect by his admission ; because no admission of the parties can conclude the Court to make them give effect to an illegal contract. It is said, that if the 51. had not been paid into Court, the plaintiff must have recovered to that amount. But that is not so; for upon this evidence it would have ap- peared that the defendant had not contracted in the general manner in which the plaintiff has declared, but had only made a limited contract; and therefore the plaintiff must have been nonsuited. If this wanted authority, it is supported by Clayv. Wiltan (/*); for there the Court held, that the plaintiff was not entitled to recover even the 5/., the contract bein^' special, and not general. So in Pigoll v. Dunn (c), which was an action against a carrier, where no money was paid into court; the goods lost were above 51. value, but had not been entered and paid for as such. The plaintiff contended, that she was at all () 1 Term Rep. .16 1. (6) i //. Blue. 298, (c) E. 3(3 Geo. 3. B. 7?, VOL, II. H events 134 CASES IN MICHAELMAS TERM 1801. events entitled to recover the 51., but the Court ruled other- 7^ wise> against LE BLANC, J. In the case of Hutton v. Bolton, the Court "WiLLA.v. did not look to the consequences of paying the money into court. The defendant there had applied for leave to do so, which the plaintiff objected to. But the Court admitted it to be done, without deciding what effect it might have. Here the plaintiff declares specially on a general contract to carry the goods for hire. The defendant denies that he made such an un- dertaking, and contends it was only a limited contract under certain restrictions. Therefore upon the general issue the evi- [ 135 ] dence would have negatived the contract declared on, and the plaintiff must have been nonsuited : but by the payment of money into court on the special counts, he has admitted the contract to be as there laid. Rule discharged^ Saturday, Koc. 2bth. WHITE ORN against EVANS. I5y s. i. of 6tat. M> & 40 ri^HIS was an action for goods sold and delivered, and on the the jurisdic- L money counts. At the trial before Lord Kenyan, C. J; at Court of'Re- f ' ie last Sittings at Guildhall the plaintiff recovered a verdict for quests in Lon- 4/. 15s., and the question was, whether he were entitled to costs laTsed from U P 0n the stat - 39 & 40 Geo - 3 c - 104 ' ()> the cause of action debts of 40s. arising within the jurisdiction of the Court of Requests in Lon- to .")/. from the ; ~T> i -> / -i TC A.- , ? 2 ?M\\ Sei,umi>. "" - *v * 12. ot that statute, It any action or suit shall be 18-jO. and by commenced in anv other court than the said Court of Requests s. 12. if any ,, r i i n - - , . action ahull for an >' debt not exceeding o/. and recoverable by virtue of be commenced " the said recited Acts, (i.e. 3 Jnc. 1 . f . 15. and 14 Geo. 2'. c 10 in anv other . ... Court to re- which limited the jurisdiction to debts not exceeding 40s J nTwceedii 1 '' 81 " 1 oftllis Act r ;U1V f tht - m in the said Court of Re- M. within the "quests, then the plaintiff in such action shall not by reason of tu'e'plaintiff " a verdict ^ or nim or otherwise, be entitled to any costs what- *haii not re- 'soever," ike. By s. 1 . of the Act, so much of the recited Acts costs' c! held as rts >trains the jurisdiction of the Court of Requests to debts " h *A /'"/ W0rds n0t c ' XCCfj(lin - 40s - Khnll/ro/n September 30th 1800 be repealed. menced," mn*t ^ c ' r tne ^tion was commenced before the 30th, (viz. on the by necessary construction be retrained to the date of the 30th September, and not to the passing of the Act, which was on the IHli of July preceding. (a) c. U).j. in the arrangement of Private and Local Acs. 24th IN THE FORTY-SECOND YEAR OF GEORGE III. 13o 24th of September 1800,) but after the 9th of July, when the 1801. Act received the royal assent. , 1T W H 1 T B O itil^ Garrow sjiewed cause against a rule for taxing the plaintiff against his full costs, on the ground that the words of the 12th clause, EVANS. that if any action "shall be commenced," 8cc. must refer to the r iog -i passing of the Act, which was on the 9th of July prior to the commencement of this action; and therefore the plaintiff having recovered less than 51. was not entitled to costs. But Lord KENYON, C. J. was clearly of a different opinion. The whole Act must be construed together, otherwise the greatest injustice would ensue; for there would be an interval between the 9th of July and the 30th of September, within which the subject would be without any adequate remedy. Till the latter period he could not have recovered in the Court of Requests, the demand being above 40s., therefore he had no other remedy than to sue in the superior courts. Mingay in support of the rule. Per Curiam, Rule absolute. REGULA GENERALIS, M. 42 Ceo. 3. TT is ORDERED; that from and after the first day of Hilary -*- Term next, no judgment be signed upon any warrant autho- rizing any attorney to confess judgment, without such warrant being delivered to, and filed by the clerk of the dockets ; who is hereby ordered to file the same in the order in which they shall be received. And it is further ordered ; that every attorney of this Court, who shall prepare any warrant of attorney to confess any judg- ment, which is to be subject to any defeasance, do cause such defeasance to be written on the same paper or parchment, on which the warrant of attorney shall be written; or cause a me- morandum in writing to be made on such warrant of attorney, containing: the substance and effect of such defeasance. OF MICHAELMAS TERM- CASES ARGUED AND DETERMINED IN THE COURT OF KING'S BENCH, IN Hilary Term, In the Forty-second Year of the Reign of GEORGE IIT. 1802. Ex parte MICH ELL, Clerk. Tdy, Jan. 20 lit. A Rule was obtained on the part of the grantor of an an- An annuity unity, calling on James Michel/, clerk, to shew cause why j er " rp f > the warrant of attorney and other securities given to secure the of equal an- annuity should not be delivered up to be cancelled, and pro- ""^ V n a { ie be ceedingrs staved in the mean time. It appeared by the affidavits registered I *1 of Ann Needham and others, that previous to the year 1"9^ statf'ir G <' > , . , , , , r. i , . . , though the (the latter subject to her mother s right or dower,) and in April annuity were of that year granted an annuity of 601. to James Michcll upon alsn s three lives for the consideration of GOO/, which was secured on i, i,i property. all the said premises. That 100/. part of the consideration A '" emoria ! 1 . ^ ot an annuity, money was paid by MicheM by a banker's check delivered * to statins the one ,/. //. S., Mrs. \eed/iam's agent, by her desire, upon which Deration "to payment was received by him for her a month before the exe- have lu'cn cution of the deeds for securing the annuity, for which a dis- J ^ count was taken at the time of such execution. It was also thmish part alleged in these affidavits, that at the time of such grant the pa j ( i by means of a banker's check, the value of which had been actually received by the grantor some time before the execution of the deeds. %r ];j$ ~j VOL. II. I value 138 CASES IN HILARY TERM 1802. value of the freehold premises was not equal to the payment of the annuity. The memorial registered under the stat. 17 Geo. MICHELL 3. c - 26 - was of a k n d of the g rantor for securing the annuity, Clerk. ' and also of an indenture dated 28th April 1 796, whereby Ann Needham, "in consideration of the sum of 600/. of lawful money, "&c. paid to her by J. Michell in manner following, viz. 100/. "thereinafter paid by J. M. to J. //. S. or bearer by the direc- tion of the said Ami Needham, and the further sum of 500/. " paid at the time of the execution of the said indenture, did "grant, " &c. to J. M. the annuity in question, payable out of certain freehold premises, and also out of certain leasehold premises therein mentioned. On the part of Michell it was sworn, that the freehold pre- mises, which consisted of certain houses in London, had been represented by the grantor to be of the value of the annuity at the time, and so appeared to be on the inspection of his agent as well as from other circumstances which were stated: and that the 100/. had been advanced to the grantor a month before the deeds were prepared for her accommodation in the manner described. There were other matters in the affidavits not ma- terial to be stated. The objection to the annuity principally relied on was, 1. as- suming the value of the freehold premises not to be equal to the payment of the annuity, that the memorial was defective in [ 139 ] stating that the 100/. part of the consideration for the annuity was paid to the grantor in money, whereas in truth the pay- ment was made by a banker's check payable to J. II. 8. or bearer, and delivered to him as the agent of the grantor by her desire. 2. That the same objection was fatal, though the free- hold premises were of the requisite value, the annuity beino; also secured upon leasehold premises which were not excepted out of the operation of the statute. Oibbs and Marn/al, in shewing cause against the rule, in- sisted that as the money had been received by the grantor be- fore the execution of the deeds for securing the annuity, the whole consideration was properly stated to have been paid in money; and it was immaterial to describe by what means the money had come to her hands. That the cases requiring the particular securities to be stated only applied where those se- curities had not been converted into cash at the time, and therefore it was uncertain whether they would afterwards be available IN THE FORTY-SECOND YEAR OF GEORGE III. 139 available or not. That at any rate, as the annuity was secured 1802. on freehold premises of adequate value, the case was excented T>~ liiX Dtirtc by the 8th section of the Act out of the general operation of it; MICUELL and therefore there was no necessity for any memorial to be Clerk, registered. Garrow and Header contra contended, that the case came within the statute unless the annuity were secured upon freehold alone of equal or greater annual value than the annuity. That here the freehold was stated to be of less value at the time, which was confirmed by its present state, and also by the very circumstance of the grantee requiring the additional security of the leasehold premises. Then the objection to the statement of the consideration in the memorial was fatal, according to the [ 140 ] cases of Berry v. Bentley (a), and Pool v. Cabaiies (b) ; where it was determined that if any part of the consideration of an an- nuity were paid by a banker's check, it ought to be so stated in the memorial. GROSE, J. (c) It appears to me upon the whole, that the annual value of the freehold premises was more than equal to the annuity, and therefore there was no occasion to register any memorial; which gets rid of the objection as to the pay- ment of the 100/. being therein stated to be in money instead of by a banker's check. I will however say a word or two on that point. All the prior cases in which it has been deemed neces- sary to set out in the memorial the payment of any part of the consideration money by bankers' checks (where such has been the fact) have been where the check was delivered as payment at the time, of executing the deeds, when non constat it would ever be paid. But here the money hud been actually received upon the check a month before by the grantor; there-fore at the time of such execution the consideration mi^ht well be stated to be so much money paid to her. LAWRENCE, J. It has never yet been determined that when the annuity is secured both upon leasehold and freehold pro- perty, thouo-h the annual value of the latter be equal to the an- nuity, yet a memorial of the annuity must be registered under the statute ; and the reason of the Act seems to be against such a () 6 Term Rep. 690. (//) 8 Term Rep. 3CS. (c) Lord Kenynn, C. J. was absent on this day from indisposition, and rrm- timied so during the vest of the Term, with the exception of one day, v.lau nothing particular occurred. 1 ~2 construction. 140 CASES tt HILARY TERM 1802. p ' MICHELL. [ 141 ] [ 14-2 1 Tuesday, Jan. 26th. construction. The object of the Legislature was to guard necessitous persons against imposition; and therefore they re- q u i re d that the grant of annuities in general should be memo- rialized, in order that it might appear what the true considera- tion was : but they excepted out of the general rule (among others) annuities secured on land of equal or greater annual value whereof the grantors were seised in fee or in tail in pos- session at the time ; conceiving such persons to be in a condition to bargain fairly for themselves. The exception therefore can- not the less apply to one who in addition to a freehold of adequate value is in possession of leasehold property also upon which he can give security. Now according to the weight of the evidence in this case, it appears to me that the freehold was at least of equal value to the annuity. Then as to the objection taken to the memorial, if the money payable on the banker's check were actually received by the grantor before the grant of the annuity, it may, I conceive, be stated as money paid to her by the grantee, without particularizing the means by whicli the receipt of the money was before obtained by her. LE BLANC, J. I think the balance of the evidence is, that the freehold premises were of adequate value to the annuity : : they were so represented and considered to be at the time; and if they were not, it would have been easy for the grantor tr have shewn distinctly when and how the value was lessened. As to the 100/. stated in the memorial to be paid in money, it, hav- ing been actually received by the grantor before the deeds were executed was money had and received by her, by whatever means it was so received; therefore the consideration was truly stated in the memorial. Rule discharged w-ith costs. One who exe- cutcs a deed for another WiLKS and Another against BACK. fT^HE defendant beino- indebted upon an account to the plain- irr-j/ /> " tiffs Wilks and brorcnc, who were formerly in partnership. millfcrs il was agreed to refer the matter to arbitration; mut execute and accordingly bonds of submission were entered into by the name of his parties as after-mentioned; and the arbitrators by their award principal ; but if that be done it matters not in what form of words such execution is denoted by the signature of the names: as if opposite the seal be written " for ,/. B." (the principal) " M H' " (the attorney). (L. S.) dated IN THE FORTY-SECOND YEAR OF CEOftGE III. J42 dated 14th August 1801, reciting that by two several bonds 1802. dated loth June 1801, wider the respective hands and seals of -^ M. Wilks and J. Browne, millers, and late partners, and of an( j Another W . Back, the parties became mutually bound to abide the award, against &c. proceeded to award the sum of 4071. 9s. Id. to be due on BACK. the balance of accounts from the defendant to the plaintiffs, &c. Upon a motion to set aside the award, the question was at last resolved into this, Whether TF///cshad competent authority tp bind Browne his late partner by executing the bond of sub- mission for him. As to which it appeared that by an indenture dated 28th August 1799, between lillks and Browne, the latter for the considerations therein mentioned did constitute and appoint fl'ilks to be his attorney irrevocable to ask, demand, sue for, compound, and receive all the debts and effects of the said partnership; with full power for Wilks to sign, seal, and deliver in the name of Browne any deed, &c. whatsoever neces- sary for the purposes therein mentioned, &c. By virtue of this authority Wilks executed the bond of submission in question in. this form: "Matthias Wilks," (L. S.). "For James Browne, "Matthias Wilks," (L. &.), and it was sealed and delivered by [ 143 ] Wilks for himself, and also for his late partner Browne; but the latter was not present at the time. Garrow and Parnther, in shewing cause against the rule, did not dispute that according to Combes case (a}, where any has authority, as attorney, to do an act, he cannot do it in his own name, but in the name of him who gave the authority. But they contended that here the sealing and delivery was done by Wilks in the name of Browne as well as of himself, which he had authority to do by virtue of the power of attorney of August 1799; and that the signing of his own name twice was not material, as he also signed the name of Browne, and declared that it was done for him. The form of words used cannot in- validate the act where the authority is sufficient to warrant the act done. If there had been only one seal, yet if the instrument "were sealed and delivered for himself and his partner, he having authority so to do, it would have been sufficient, according to the case of Ball v. Dunsterville (/>). It is true that was done in the presence of the other partner; but that was only material in () 9 Rep,. 76. h. (fc) 4 Term Rep. 313, thut 143 CASES IN HILARY TERM 1802. that case, as shewing that it was done by his particular authority: ~ and here was a special authority by deed, to do the act. aud Another Erskine and Corny n, contra. It is clear from Harrison v. against Jackson (a) that one partner cannot as such bind another by BACK. deed. Then if the authority be derived from the power of at- torney, Wilks ought to have executed it in the name of Browne the principal, and not in his own, according to what was said in Combe & case, and confirmed by Lord C. B. Gilbert in 4 Bac. [ 144 ] Abr. 140. and by Lord Kenyon in White v. Cuyler (b}. So in front in v. Small (c) a lease made by an attorney in her own name, though stated to be made "for and in the name of" the principal, was holden void, and that no action of covenant lay thereon. Now here it was signed by IHiks "for Browne;" whereas the signature ought to have been in the name of Broicne, though made by fVilks. Therefore as Browne would not be bound by the award, it is void for want of mutuality. GROSE, J. No doubt the award must be mutual; and for this purpose the bond must be executed by Browne as well as by Wilks; but this is a sufficient execution by both. I accede to the doctrine in all the cases cited, that an attorney must excute his power in the name of his principal and not in his own name; but here it was so done: for where is the difference between signing J. B. by M. IV. his attorney (which must be ad- mitted to be good) and M. W. for ./. l>. ; in either case the act of sealing and delivering is done in the name of the principal and by his authority. Whether the attorney put his name first or last cannot air'ect the validity of the act done. LA w i! i, N ( i;, .1. No doubt in point of law, the act done must be the act of the principal, and not of the. attorney who is au- thorized to do it. The whole argument has turned upon an assumption of fact that this was the act of the attorney, which is not well founded. This is not like the case in Lord Raymond's Reports where the attorney had demised to the defendant in her o\\n naiiif , which she could not do; for no estate could pass from her, but only from her principal. But here the bond was executed by /////,-\ for and in the name of his principal : and this isdistmctly shewn by the manner of making the signature. JNot that even this was necessary to be shewn; for if Wilkshad (a) 7 Term /?. 207. (//) 6 Term Kcp. 177. (c) 2 Ld. Jiuy. 1118. S. C. 1 Stra. 70 j. sealed IN THE FORTY-SECOND YEAR OF GEORGE III. 14o sealed and delivered it in the name of Browne, that would have 1802. been enough without stating that he had so done. However he ^ first signs his own name alone opposite to one seal to denote ant j Another the sealing and delivery on his own account, and then opposite against the other seal he denotes that the sealing and delivery was for BACK. James Browne. There is no particular form of words required to be used, provided the act be done in the name of the prin- cipal. . LE* BLANC, J. Wilks first signed it in his own name, as for himself, and then to denote that the act was also done in the name of Browne, he signed it again for James Browne, I can- not see what difference it can make as to the order in which the names stand. Rule discharged. HULLE against HE IG HTM AN. Wednesday, Jan. '27th. INDEBITATUS Assumpsit for wages due to the plaintiff as 1 . . , having con- a seaman on board a Danish ship, whereof the defendant tracted to go was captain, from Altona to London. Plea non assumpsit. At f V y !L e to the trial before 'Le Blanc,' J. at the Sittings after last Term at l>. and back Guildhall, the plaintiff proved a service in fact as a seaman on ' board the ship at and from Altona until her arrival at the port that lie should of London. And it appeared that after the ship had delivered titled to hi* her caro-o here, the captain would not give the seamen victuals, wa ? os lil1 , . *? r , - i tlle CI1(1 of out bid them go 011 shore, L 146 J saying he could get plenty the voyage, of their countrymen to go back for their victuals onlv, since the ca ." not mai11 - F r ' tain a general peace. That the plaintiff and others went on shore : and when indebitatus the captain required them a few days afterwards to go on board * 8sum P S| t * again, they refused, saying, it was too late, for they had the wages pro law of him. (They had then brought actions against him.) /j 1 * thoug That previous to his departure for Denmark he again required Iie vv ere there them to come on board, which they again refused. The de- dismissed *by fence rested on certain written articles of agreement signed by tlie defendant i i rr i i " (the captain): the plaintiff and the rest or the crew, whereby it appeared that but his rc- they were hired for the voyage from Altona to London and me(i - v ; is cltl)0 ' J ' fir the bu-at-h of the special contract, or for such torlious act of the captain's, whereby he was prevented from carnicg bis wages, hick 146 CASES IN HILARY TERM. 1802. HULLE against HEIGHT- MAN. back again. And there was an express stipulation, that the seamen should assist in bringing the ship back again, and making her fast in a proper place, before they could make any demand upon the captain for the wages due, under a certain penalty: and another stipulation that no person should in foreign parts demand any money of the captain, but be contented with the wages received in advance, until the voyage was com- pleted to the satisfaction of the captain and owners, and the ship and goods again safely arrived at Altona. And also that it should at all times be at the captain's own option whether he would give them any money in foreign parts or not. That in like manner no person should demand his discharge in foreign parts, but be obliged to perform the voyage. It concluded with a general clause of obedience to the captain, and for the performance of the duty of the crew : and that if any one should shew himself averse therein, he should not only accord- ing to law forfeit'the whole of his wages, but also suffer punish- ment, &c. On proof of this agreement it was insisted by the defendant's counsel at the trial, that the plaintiff' had mistaken his remedy, and that an action of indebitatus assumpsit would not lie, but that he ought to have declared specially. On the other hand it was contended, that the plaintiff might recover in this form of action for the rate of his wages up to the time when he was wrongfully turned out of the ship. But T.e B/anc, J. being of opinion that the wrongful act of the captain did not rescind the special contract by which the plaintiff was precluded from demanding his wages till the end of the voyage; though it gave a cause of action against the captain for the tort where- by the plaintiff was prevented from earning his wao-es under the contract, directed a nonsuit; with leave to move to set il aside and enter a verdict for the plaintiff' for 6/. 17,. the amount of the wages due to him at the time he left the ship, if he were entitled to recover. , (j //>!>$ now moved accordingly; contending, that the special contract was put an end to by the wrongful act of the defend- ant, which prevented the plaintiff' from performing the whole of what lie had undertaken on his part. And therefore lie had a right to recover in this form of action so much of his wages as he had actually earned by his labour, and for which he was entitled to a reasonable compensation. And this he said had been IN THE FORTY-SECOND YEAR OF GEORGE III. 147 been so decided some years ago (a), and had been generally adopted in practice. But The Court, referring to the case of JVcston v. Dowues (//), as establishing the principle that while the special contract re- mained open and not rescinded by the defendant, the plaintiff could not recover on the general counts in assumpsit, held that the nonsuit was proper; the contract still operating; and Refused the Rule (c). (a) Th name of the case was not mentioned at the bar. Qu. Whether it were Mr. Keck'* case at Oxford, 1774, Bull. N. P. 139.? or Harris v. Oke at Winchester Sum. Ass. 1759, cor. Lord Mansfield, ib.'i which bear upon this point. (It) Dnugl. 23. ( c) Vide Weaver v. Boroughs, 1 Stra. 648. and Towers v. Barrett, 1 Term Rep. 133. 1802, against HEIGI-V- M A N . [ H* ] BlLLETT agaillSt M'CARTHY. HUE last Insolvent Debtors' Act of the 41 Geo. L - tains a clause (s. 4.) in the usual form; whereby Monday, Feb. lit. C. 70. C011- One who was i and arrested at the suit of ihf "every person and persons, who on the first day of March plaintiff, ami ,. 10A1 IT- i / A i liberated on loOl were charged in any prison or gaol for the non-payment ^i , )r j or lo "of any debt or debts, sum or sums of money, which did not tlie 1&t of March 1801, " in the whole amount to a greater sum then loOO/., and whose and was after- "name or names shall be inserted in any such list to be deli- wai(ls com- " nutted in e\< - "vered in as aforesaid; taking the oaths, 6:c. ana shall per- cntion at the "form on their part what is required to be done bv the Act; slllt of , tlc ..A - ' same plamtin " shall as to his person and effects respectively be for ever re- before the "leased, discharged, and exonerated to such extent, and in [^eTn^ohen: "such manner as is therein-after provided, and no othewise.'' Act of the 4i By s. o. (a new clause) "Any person who on the said 1st of -(maio \. The first count of the declaration stated, that the plaintiffwas possessed of a certain messuage and land, &.c. in the parish of Bambrough in the county of York, by reason wherof he was en- titled to have common of pasture on a certain waste called Bambrough Common, for all his commonable cattle levant and couchant, at all times of the year; and that the defendant knowing the premises, but * contriving to injure him and de- prive him of the advantage of his said common, &c. wrongfully carried from off the said common and converted to his own use so many loads of manure and dung, which before, &c. had been dropped and made on the said common by the cattle from time to time feeding thereon, and which ought to have remained there for the purpose of nourishing and increasing the herbage there; whereby the said common and the herbage thereof were then and there greatly impoverished for want of the said manure and dung which would otherwise have remained on the said common and increased the herbage and orass thereof; and thereby the plaintiff during the time aforesaid could not use the said common of pasture upon the said common in so beneficial a manner as he ousjht to have done, and would otherwise have done, &c. and his said rio-ht of common by means of the pre- mises has been greatly lessened in value, &e. The second count was for injuriously causing to be placed and made so many heaps of dung and manure upon the said common, and wrongfully continuing the same for a long time, is.c. whereby the plaintiff during that time was obstructed in the said common of pasture. and could not enjoy the same in so ample and beneficial a man- ner as he otherwise might have done, &.c. The third count was for a common trespass. At the trial at 1 o/7;, before Lord Alvanley, it appeared that the plaintiff had a right of common upon the waste in question, 3 and IN THE FORTY-SECOND YEAR or GEORGE III. 155 and turned his cattle thereon. That the defendant, who farmed 1802. two acres of land of the plaintiff adjoining the common, had p ~ made a practice for a long time before the action brought of ga- against thering up the dung from the common and carrying it off' in WADSWORTH baskets and wheelbarrows for sale. That he and others had [ 156 ] been frequently warned against this practice, but without effect, though the defendant had often promised not to repeat it. The common was between two and three hundred acres in ex- tent, and the lordship of the manor was disputed by several claimants. For the defendant it was insisted, that as each of the commoners (of whom it was said there were 42) had an equal right to bring an action, and as the injury, if any, was so trifling, the action would not lie ; and the plaintiff ought to be nonsuited. In support of which were cited Robert Man/s, case (a), Bull. IV. P. 120. and a case of Rigg v. Parsons before Chambre, J. at the last Lent assizes for the county of Lancaster; where in an action on the case in the nature of waste the learned Judge was stated to have said that in anology to the ac- tion of waste, in lieu of which the present form of action was substituted, unless the damages found amounted to 3s. 4d. the plaintiff could not have judgment. Lord Ahanley however re- fused to nonsuit the plaintiff, but left it to the jury to say whe- ther the plaintiff had sustained any and what damages : and they found a verdict for him on the first count with one farthing damages. In Michaelmas Term last a rule nisi was obtained for entering a nonsuit. On that occasion Lord Kenyoii, C. J. (who was not present in court on this day) said, that this had been vexata questio for two centuries past. That Lord Coke was of opinion that a commoner could not maintain such an action without shewing that he had sustained an actual injury. And in a case which he remembered to have occurred, when ho was at the bar, where the lord of the manor had given leave to Mrs. Lestingham to build a cottage on the waste at Hampstead,for which an action - i -~ -i I -u 4 J was brought, by a commoner, Lord C. J. De Grey was of the same opinion. That he himself could not then understand why the smallness of the damage could make any difference in poini of law: but when he found that the learned Jud^e had o-roundrd his opinion on the authority of Lord Coke, he submitted his judgment to theirs. (<0 '.> f<>. us. J.fWl/iC 157 CASES IN HILARY TERM 1802. Lambe now shewed cause. No question can arise in this - form of action on the amount of the damage, but only whether PINDAR Damage were sustained by the plaintiff: that was properly WAD^WORTH ^^ to tne consideration of the jury, and they have found the fact for him. It also appears that the defendant was a wilful wrong- doer, having persisted in doing the injury complained of for a long time, and after notice to desist; and is therefore not enti- tled to favour. If he had a right to do the act, all the world have the same right. It was left to the jury to say whether this were a substantial deterioration of the common ; and the deci- sion of that fact with the plaintiff decides the case; for if the common were deteriorated, all the commoners who used the common must sustain an injury. It cannot be denied that acts of this nature must impoverish the common. It can make no difference whether the manure dropped from the cattle on the common, or was put there purposely by the commoners : and then it must follow, that if this action will not lie, no action would lie for taking away the manure in the other instance. Mrs. Lessinghani's case before Lord C. J. De Grey did not pass without disapprobation at the time : but there the cottage was built on the common by leave of the lord, which might vary the consideration. At any rate that case was ruled prior to the determination in Wells v. Wat/ing (a), where it was settled that un action on the case lay for a surcharge of the common, al- J . O | / though the plaintiff had not turned on any cattle of his own at the time of the surcharge. And De Grey, C. J. said, it is suffi- cient if the plaintiff's right be injured, whether it be exercised or not. Gould, J. said, that he had always thought the doctrine of Lord Coke in Man/'x case (/;), that there must be a loss of the common in order to maintain this action, a singular doctrine of his own, and no part of the judgment of the Court. And that it appeared from 2 Brownlow, 140. that an action lay for this da- mage be it ever so minute. Blachstone, J. observed that any act which would ground a per (juod, and lessen the profit of the common, would support an action against the commoner. Now the profit may be lessened as well by taking away that which contributes to produce the grass, as by eating it when produced. \nre.% J. referred to the case of the Tunbridge We//.s dippers (c), to shew that a probable damage was a sufficient injury to ground (a) -2 Bluck. Rep, 1233. (A) 'J Co. 113. (t) 2 mis. 422. an IN THE FORTY-SECOND YEAR OF GEORGE III. 158 an action. In the last-mentioned case it was impossible to 1802. prove any specific damage suffered by any individual dipper by p the interloping of a stranger: but the Court said it was an in- against jury to all who were interested. Then if so, it must necessarily WADSWORTII be an injury to each. Then came the case of Hobson \ . Todd (), in which all the former cases were considered : and there it was determined that one commoner could maintain an action on the case against another for a surcharge, although he himself had also surcharged the common, and consequently had had more en- joyment of it than he was entitled to. There Bul/er, J, expressly disclaimed any consideration of the smallness of the damages; and said, the only question was, Whether am/ injury had been done by the defendant to the plaintiff? The defendant, he said, was a wrong-doer, and the plaintiff was entitled to the action without proving any specific damage. He also observed, that there was another ground on which the action might be sup- r 159 ] ported, namely, that the right was injured. And that if a com- moner could not maintain such an action because his own cat- tle had grass enough, he must permit a wrong-doer, like the de- fendant, to gain a right by the length of possession. It was said at the trial, that the lord might bring the action, but not a com- moner, in order to prevent a multiplicity of actions; but that is no objection where the injury is done to many, as in this case. The same might be urged against an action by one commoner against another for surcharging the common, which lies without dispute. So, if any commoner build on or inclose the com- mon (//). Besides, the lord may collude with another, and re- fuse to bring the action; or, as in the present case, the property of the manor may be disputed. Barr'ow contra endeavoured to support the rule on three grounds; 1. because of the exility of the damage, of which the law would not take notice in order to support an action; 2. to avoid multiplicity of actions; 3. to avoid circmty of action. ]. 7l/- ... perly called townships or divisions of Woodland, Heathwaite, Sec. within the a slate-mine) parish of Kirby IreJeth. The Court confirmed the rate as to ihe^oor' 6 l the several sums assessed upon the appellant for his lands and woods (a) and as to the several sums assessed upon him for his slate-works, the Court (being of opinion that the appellant ought not to be rated for his slate-works) amended the rate by expung- ing the same; subject to the opinion of this Court on the follow* ing case : The appellant is the occupier of certain slate quarries in the said township. The working of such quarries is attended with great expence and risk, and is considered always as a matter of uncertainty and speculation. The outward surface of the coun- try when the soil is taken off is generally a sort of rock com- posed of slate mixed with coarse stone, which is very hard, and not at all proper for splitting slates. Some idea may be formed by skilful persons whether the proper kind of slate may be found belo\v. The process adopted for procuring slates is first to re- move the soil, and then to blast the coarse outward rock by means of gunpowder. Sometimes a good vein of pure slate is discovered. But it has often happened that works have been carried to the depth of thirty yards at the expence of some hun- dred pounds without meeting with any. The best slate is at. the bottom of the quarries, many of which arc upwards of fifty (a) The relative sums assessed were as follows ; for the lands Si. 9s. frf. for the woods Is. Vd. and for the Mate- works the several sums of C/. 1's. f*'l. and 17. .V. vards. 165 CASES IN HILARY TERM The KING against The Inha- bitants of WOODLAND 1802. yards deep. A good vein when found may last for some years: at other times the veins are soon worked out. A shaft is never sunk, as in coal-pits, the quarries being commonly worked by day-light; though a level has been known to be driven one hundred yards under ground. When the pure slate is found, large blocks are detached by means of gunpowder, which are afterwards split by iron tools or gunpowder into thin pieces of merchantable slate. These ought not to be thicker than half an inch, and are more valuable according to their lightness. It is so difficult to procure pieces of sufficient size and of the proper thinness, that for one cart-load of merchant- able slates it is usual to be encumbered with forty cart-loads of refuse slate of no value, though of the pure sort of slate, being too small for use. When quarries are opened in the waste, a rent is sometimes paid to the lord for a certain district: some- times he receives a sum of money for every ton of slate procured. In the inclosures a rent is generally paid for the land. The slate mines have never before been rated. The Attorney-General and Raincock in support of the order [ 166 ] of Sessions. It is agreed that mines in general are not rate- able to the poor within the stat. 43 Elh. c. 2. and that the men- tion therein of coal-mines is not by way of example, but in ex- clusion of all other mines, according to the maxim that exceptio unius est exclusio alterius. Upon this principle lead-mines were holden not to be rateable (//). The only cases in which this species of property has been determined to be rateable, have been where there was no risk or uncertainty; as in Rowh v. Getl (l>), where the lessee of lead-mines received certain profits called lot and cope from the adventurers who worked the mine, without any risk or expence on his part. Or as in 7?. v. .S7. j47/rv (r), where the owners of fee farm of tin and toll tin were deemed rateable for such profits. Hut here the case states, that the mines are worked at great expence and risk. The only authority which bears hard against the appellant is that of lt<-\ \. Alberbnry (d), where lime works were adjudged to be rateable. But the working a slate mine is more a matter of science and adventure than conducting a lime-work. The lime- stone is found near the surface, and is applied to use as it is duo- up, and no skill is required to prepare it for market; in all () The Governor and Comjmn'j for smelling duwn Lead, $K. v. Richardson and others, 3 tiurr. 1511. (b) Cou'p. 461. (c) 3 Term Rep. 480. (d) Ante, 1 vol. 531. which IN THE FORTY-SECOND YEAR OF GEORGE III. 16G which particulars it differs from the present subject-matter, 1802. which may more properly be considered in the nature of a mi- rr, 7T~ , l . , . r . Ine. KING neral, and comes within the general exception as to mines. aqainst Wood and Hornby contra were stopped by the Court. The Inha- GROSE, J. The only ground on which it is contended that bitants of the subject-matter is not rateable is, because it is denominated a mine: but though that word has slipped in at the end of the [ 1G7 ] case, yet it cannot alter the nature of the thing, which is no- thing more than a slate-work, and no mine in the proper sense of the word. Then how is it possible to distinguish a slate- work in this respect from a lime-work, which has been deter- mined to be rateable ? The express mention of coal-mines in the statute has been holden to be an exception of other mines ; but there cannot be a doubt but that a slate-work, not being a mine, and producing profit, ought to be rated. And the case expressly distinguishes between the annual value of the slate- works, and of the lands which were separately assessed for their respective values. LAWRENCE, J. I consider the case of Re.r v. Alberbtiry as having decided this point: but if this be a mine, the subject- matter in that case was improperly described. In truth how- ever neither lime nor slate-works can be deemed to be mines, in the sense in which they were construed in the case of Rer v. Jtic/uirdsoii to be virtually excepted out of the stat. 43 /J//:, For Lord Man f field, speaking of such mint's, confines the ex- ception to such as are governed by particular laws of their own; like those in Devonshire, Cornwall, and other counties, the ownership whereof is exercised in a different manner from that of the soil. And this he considers might be a reason why they were not named in the statute. Xo\v that part of his ar^umeif is totally inapplicable to the present case. l>nt if every sub- stance which is raised from under the surface of the soil is to be considered as the produce of a mine. ;ind therefore that the profits of it are not rateable, the. exception \\ill eqir.dly extend to gravel, sand, marie, stone, and the like; none of which were ever considered as the produce of mines. LE BLANC, J. This case is within the principle of the deci- [ 1G8 J nion in Hex v. A I her bury, and is not within the virtual exception of the stat. 43 Elk, Order of Sessions quashed. The 168 CASES IN HILARY TERM 1802. Wednesday, The KING against The Inhabitants of CLIFTON. Feb. 3d. An appoint- npWO justices by an order removed .7. Hollis, his wife and jnent of one , J , . , . r/->t-,-. .-, overseer alone " children by name, irom the township ot Llyton to the town- for a township sh j p o f Yielderslei/, both in the county of Derbi/. The Sessions is ban in law ; . ^ . . the stat is & on appeal quashed the order, subject to the opinion ot this M < ,n\ 2. Court, on the following case : c. IV. requiring at least two: R. Ifollis, the father of the pauper .7. Hollis, in the year 1780 cate "'rT'td wen ^ with his family to reside at Yielderslei/, under a certificate by such over- dated the 18th November 1780, under the hand and seal of J. ami gives' no Harrington, only overseer of the poor of the township of Sturston security to the in the parish of Ashborne in the said county, and duly allowed parish against ^J two justices, acknowledging the said R. II., Hannah his wife, the gaining anc } Joseph their child (the pauper) to be inhabitants leo-allv ot a settle- ment there by settled in Sturston- The said R. H. with his family resided at the party Yielderslei/ under the said certificate about a year, when he re- named there- . in; such rer- turned to Sturston with his family, except the pauper Josepl:, tificate not wno was t nen on ly two years old, who was left with his grand- bem;: made . pursuant to father in 1 ieldersley, with whom he resided till he was sixteen D'M'^'C^O years old, when he was hired and served a year in Yiehlerslcif. which re- The parish of Ashborne consists of five townships, viz. Yielderslei/, made "by >e Sturston, Clifton, Off cote, and Ash dome. The townships seve- |the church- rally maintain their own poor, and have separate and distinct ' overseers overseers. The parish of A shborne has two churchwardens, who or the major are appointed for the parish at large. At the * time of grantin<" ' part, or by . ... 'the overseers the above certificate, ./. Warrmglon was the only overseer ap- wliere there pointed f or tlie township of Sturston during that year. There are no , churchwar- has been generally only one overseer appointed for the township of Sturston; though in some few instances there have been two. There has always been a sullicient number of inhabitants t<> have appointed two overseers. Balvuy and Clarke in support of the order of Sessions. The question is, Whether, there having been but one overseer ap- pointed for the township of Stnrston at the time, a certificate made by that one be not binding on the township? or in other words, Whether the township be not estopped from disputing the legality of it in this mode of proceeding ? It was contended below, first, that the churchwardens of the parish of Ashbnrnc in which this township is situated, ought to have joined in grant- ing IN THE FORTY-SECOND YEAR OF GEORGE III. 169 ing the certificate. That might have been necessary under the stat. 43 Etiz. c. 2. s. 1. compared with the Certificate Act 8 .9 W. 3. c. 30. if this had been a certificate granted by the parish at large; because by the former statute " the churchwardens of "every parish, together with 4, 3, or 2, substantial householders "there," are appointed overseers of the poor; and by the latter statute, the certificate is to be " under the hands and seals of "the churchwardens and overseers of the parish, township, or "place, or the major part of them," Sec. But this is not the case of an overseer appointed under the statute of Elizabeth, but under the stat. 13 & 14 Car. 2. c. 12. which directs the appoint- ment of overseers only for every township in a parish which is too large to reap the benefit of the stat. 43 Eliz.; and the stat. 8 & y /r. 3. c. 30. goes on to provide that the certificate shall be under the hands and seals " of the overseers, where there are no "churchwardens (//)." Now here there were no churchwardens of the township of .S'., as there can be none appointed for such a district; though there were churchwardens for the parish at large, which contained this and other townships within its limits. But the churchwardens for the parish at large cannot, as such, be within the meaning of the Certificate Act 8 &. 9 W. 3. as o applied to a township, though included within the limits of their appointment; for they have nothing to do with the government or maintenance of the poor in such township, and consequently cannot be supposed to have cognizance of the fact which they would be required to certify. Besides, it might so happen that a churchwarden appointed for the whole parish in which the townships of A. and H. were situated, and living in .1., miirht be interested in certifying that a pauper was settled in />. in order to exonerate his own particular township. Whereas the weight, due to the truth oi a certificate is founded on the presumption that the officers executing it will not. certify a f;u , in their own wroiiii". Secondly, admitting that an original appointment of one overseer only would be bad, and thai in a direct proceeding for that purpose the appointment mi^ht be quashed; yet no objection can be taken in this collateral manner to any act done by such siuo-lf overseer. If two had been originally appointed, () Also by the stat. 1? Ceo. '2.. c. 33. * 1.',. "In every tnicnship or place "where there are no churchwardens, the i>virm. S. C. and 1 Burr. 446. in marg. (I/) Vide Itc.r. v. Monis, 4 Term A'qi. 5,V>. to the same purpose, (c) 1 Burr. 445. 3 Burn's Just. tit. 1'o'tr Overseas (3'2l). S. C. (rf) 6 Term fiq/. W. IN THE FORTY-SECOND YEAH OF GEORGE III. 172 by the churchwardens and overseers, or the major part of them ; 1802. or where there are no churchwardens, then by the overseers. It , J7~ matters not therefore whether the overseers be appointed under against the statute of Elizabeth or under that of Car. 2. ; because the The Inha- Certificate Act does not require tlie concurrence of all these offi- bitants of cers as overseers merely, in which character the management of the poor is committed to them by the statute of Elizabeth; but it requires their concurrence qua churchwardens, as well as over- seers : under the Certificate Act therefore it is not necessary that the churchwardens should be overseers. Then there being churchwardens for the whole parish, their jurisdiction must ne- cessarily extend throughout the townships into which it is divid- ed, and they must consequently be churchwardens for every part of it : in which case the certificate appears to be void on the face of it. 2dly, It is clear from the cases referred to, that an ap- pointment of one overseer alone for a township (which is the fact here found), is bad, even under the stat. 13 Sc 14 Car. 2., and consequently that the certificate in this case not having- been made according to the directions of the statute of William, which requires it to be executed by the overseers where there are no churchwardens, (or at least by the major part of them) is absolutely void. But it is contended that no advantage can [ 173 ] be taken of the illegality of such appointment in this collateral way: but it would be most strange and incongruous to say that a person, however illegal and void his appointment to an office, should yet have the power of binding the township by his acts, against perhaps the consent of the major part by whom his ap- pointment may be resisted. The certificated township were not bound to receive the persons named in the certificate unless it, were legally executed; and they were bound to look to that at their peril. It cannot be pretended that, a certificate <_iiven by one who merely acted as overseer \\ it iiout any appointment at all would be of any effect; or if not executed bv a majority of the proper officers. Then if the parties interested must inquire of those- facts, v.hy not of the leu'ahty of the appointment of one: especially where the presumption of law is, that there are more overseers than one. GROSK, .1. The question is. Whether the certificate granted by one overseer can be good ? First, considering it as acertifi- cate _:iven by an overseer appointed under the. statute 43 E/i:>i- betlt, it cannot avail ; because the statute of King \YiHnnn, to which 173 CASES IN HILARY TERM 1802. The KING against The Inha- bitants of CLIFTON. [ 174] [ 175 ] which it must conform, directs, that it shall be made by the churchwardens and overseers, or the major part of them; or where there are no churchwardens, by the overseers : and by the statute of Elizabeth, the churchwardens and not less than two substantial householders are required to be nominated over- seers. Now this certificate was not granted by either one or the other of those descriptions of persons. Then see if it can be supported as a certificate given by a township under an ap- pointment by virtue of the stat. 13 & 14 Car. 2.; for it is of great importance to take care that a certificate which is to be binding on the inhabitants of the township is properly given in the manner prescribed by law. That statute expressly requires that in every township of any parish which cannot reap the be- nefit of the stat. 43 EUz. " there shall yearly be appointed two or more overseers," &c. Then if the township claim the be- nefit of the Act to appoint its o\vn overseers, it must adhere to the direction of the Act, and appoint not less than two over- seers. And there is a good reason for requiring the concurrence of the proper officers in these instances : because it is a discre- tionary act which is to bind the inhabitants :. and if the proper number of overseers had been appointed, the inhabitants would have had the benefit of their consideration (which the statute intended to give them), whether this were a proper certificate to be granted. Therefore the stat. of Car. 2. having required that not less than two overseers should be appointed for a town- ship, and the statute of King William having required the cer- tificate to be executed by the overseers where there are no churchwardens, and there having been but one overseer ap-: pointed for the township, by whom this certificate was granted, I am of opinion that it was void. LAWRENCE,J. Two questions have been made, 1st, Whether the churchwardens of the parish at large should have joined in granting the certificate? 2. Whether a certificate made by one overseer of a township, where there is only one appointed, be good? As to the first, there is no necessity for entering into it on this occasion. If there had been, I should have thought that what had been urged by the counsel in support of the order of Sessions was very material. And I believe it has not been usual for the churchwardens of the parish at large to join in granting certificates with the overseers of particular townships within it maintaining their own poor. However it will be suf- ficient THE FORTY-SECOND YEAR OF GEORGE III. 175 ficient to determine that question when it necessarily arises, which is not the case here; because I think that this certificate was at any rate bad, having been granted by only one overseer, who was alone appointed for the township of Sturston; whereas the stat. 13 & 14 Car. 2. expressly requires two to be appointed for every township ; and unless the certificate pursue the sta- tute it is void. For an authority cannot be executed by one, which is given by the statute to more than one. But it is said to have been decided in Rex v. Wymondham(a)\ho.t it is sufficient if the certificate be granted by a majority of the churchwardens and overseers de facto, though not de jure. The case however does not go that length. It appeared there that the certificate had been granted by two churchwardens and four overseers, where it had been usual to have four of the first and eight of the latter prior to a certain period when the parish was incorporated with others. It was contended there at the bar, that if there had been an appointment of any other than those four overseers, it must have been void, as not warranted by the stat. 43 Eliz. and there- fore the certificate must be taken to have been granted by a ma- jority of the legal officers. In answer to which Lord Kem/on observed, that if the legality of their appointment were under consideration, it would be impossible to distinguish between the first and the last, and to say that the four first only were le- gally appointed. But then he went on to state that it did not appear that in fact there were twelve parish officers at the time the certificate was granted : but that it would be nugatory to send the case down again to the Sessions to find that fact, as at any rate he thought that the certificate was discharged by the subsequent act of the pauper. Therefore the conclusion to be drawn from the whole rather is, that in his opinion, if it had been necessary to have had the fact found by the Sessions, and they had returned that there were twelve parish officers at the time, the certificate would have been bad, and advantage might have been taken of the defect in that collateral procedure. LE BLANC, J. We are called upon to consider the validity of an act done by one J. }V ., being the only overseer at tin; time of the township of Stiirstou ; and the question is, \\ hether the act done by him will bind the township ? Now the certifi- cate not being executed by any churchwardens can only be good, if at all, under the stat. of Car. 2. which enables overseers to 1802. The KING against The Inha- bitants of CLIFTON. [ 176 ] (a) 6 Term Rey. 176 The KING against The Inha- bitants of CLIFTOX. 1802. be appointed for townships ; the statute of King William en~ abling a certificate to be granted by the overseers where there are no churchwardens : but as it is not executed by churchwar- dens and overseers, it cannot be supported with reference to the stat. 43 of Elizabeth appointing such officers to act for the e-overn- ment of the poor. And I also think the appointment was void, taking it to be made under the stat. 13 & 14 Car. 2.; because that requires at least two overseers to be appointed ; and it is not stated that J. W. was orio-irially appointed with another over- seer, and that such other overseer had died before that time; but that J. W. was the only overseer appointed for the township dur- ing that year. Therefore without considering whether it were necessary for the churchwardens of the parish at large to join in the act, at all events this certificate was bad, being only made [ 177 ] by one overseer of a township, who had no authority by the Act of Parliament. It will be sufficient to decide the other question when it becomes necessary to do so. But for the present I think there is considerable weight in the arguments used against the necessity of the churchwardens of the parish at large joining in the certificate with the overseers of the township. If it were deemed necessary, they would in many instances have clashing interests. Therefore at present I do not consider that they were such churchwardens whose concurrence in the certificate was required by the stat. 8 Sc 9 Jl . 3. LAWKF.NCE, J. added, that he did not mean to have it under- stood that he had given it as his opinion that it was necessan for the two overseers to be appointed by the same instrument. The case negatived the appointment of more than one. Order of Sessions quashed (o). (a) Vide Hex. v. Jtkins, 4 Term I\fj>. 12. Thursday, I'eb. 4th. The KING against HARWOOD, Clerk. nnilE defendant was called upon by a rule to shew cause why -*- an information in nature of a quo warranto should not be exhibited against him to shew by what authority he claimed to "Where suf- ficient ap- pears by the affidavits to draw the merits of an election to a corporate office into question, the Court will jrrant an information in nature of a quo warranto, though the fact of the defendant's usurpation no otherwise appear (linn by the deponents' swearing to their information nnd belief that the defendant was admitted a freeman, and sworn and inrolled accordingly; the defendant not denying the fact when called on by the rule to shew cause. 8 be IN THE FORTY-SECOND YEAR OF GEORGE III. 177 be one of the freemen of the city of Litchjield. As the sole 1802. question agitated at the bar was, Whether there were sufficient T , K evidence of an user or usurpation of the office by the defend- against dant, so much only of the affidavits as bore upon that point are HARWOOD. here stated ; it having been admitted on his part that if he had used the office in fact, the merits of the election must be submit- ted to a jury. By a charter of inspeximus and confirmation of the 16th [ 178 ] Car. 2. the bailiffs and citizens of Litchjield were incorporated by the name of the bailiffs and citizens of Litchjield. The charter ordained that there should be twoTjailiffs elected an- nually from among the citizens, and one-and-twenty citizens elected, to be named the brethren of the bailiffs of the said city, which two bailiff's and 21 brethren for the time being should be of the common council. It then gave them a power to make bye-laws for the good government of the city, and of all the citizens, officers, &c. brotherhoods, and the several companies of trades, &c. of the inhabitants and resiants. The charter also contained a clause, that all who should be admitted freemen of the said city should be sworn in before the bailiffs cr one of them to obey all the constitutions and ordinances, See. and that none should be admitted or continue a freeman before he had taken the oaths of supremacy and allegiance, &c. and sub- scribed the declaration, &c. before the bailiffs or one of them. It was also deposed by one who had been an alderman and one of the brethren for 12 years, and who had served the offices of senior and junior bailiff, that there are incorporated within the city eight companies of traders. That he always understood that before a man could be made a freeman of the said city, it was necessary that he should tirst be incorporated or admit- ted into one of the said companies; and that being so admitted into a company, he had a riu'htand could demand, if duly ad- mitted, to be sworn in a freeman <>/' the cn/nnain/ wherein he had been admitted before, the bailiff*, or one of them, and to be inrolkd by the town-clerk of the said city; front ic/iic/i time lie became a freeman of (lie tanl /, and entitled to the immuni- ties of a freeman, and also to the peculiar privilege's of his own j- \~D J company, as the deponent understood and behewd. It was also deposed by one of the company of smiths. &c. that at a meeting of the company at which he was present, certain persons (amongst whom was the defendant) were proposed to be admit- ted 179 CASES IN HILARY TERM 1802. ted to the freedom of the company. Then after mentioning se- veral circumstances attendin such nomination which went to mi against impeach the regularity of the proceeding, the affidavit conti- HAHWOOD. nued thus : " That the deponent understands and believes that " at such meeting on the 1st of April last the defendant Harwood "and others to the number of seventy and upwards, as he hath "heard and believes, were admitted freemen of the said company, "and that they have been since sworn and inrolled accordingly., "as he hath been informed and believes." The affidavit then set forth the qualifications required for persons to be admitted free- men, none of which the deponent believed were possessed by the defendant and the rest of the persons so admitted. The same facts were sworn to by others of the freemen in the same manner. Gibbs, Adam, Clarke, Daitncci/, and Jervis, shewed cause against the rule, and contended that the prosecutors had not laid before the Court sufficient evidence of the defendant's having usurped the office of a freeman of the city of Lilchjield to warrant the granting of the information. No act or claim is stated to have been done or made by the defendant as such free- man: and though it would have been sufficient if the fact of his having been sworn in before the bailiffs had been positively sworn to, yet even that, which was capable of being ascertained w r ith certainty by reference to the corporation books, was only affirmed according to the deponent's information and belief. The person from whom such information was obtained ought to have r | go 1 been brought forward; but even his name is not mentioned: and at least the prosecutors should have shewn that they had made ap- plication for an inspection of the corporation books, and had been denied. This manner of swearing, admitting it to be true and uncontradicted at the trial, would not be sufficient evidence to be left to the jury of the fact of the defendant's usurpation of the office, and therefore it is not enough to put him upon his defence to the issuing of the information now. The prosecutors have been guilty of laches in not having ob- tained the best evidence which the nature of the thing admitted of; and no inconvenience can ensue from lapse of time in deny- ing the rule for an information till they can come better pre- pared, the transaction being recent. The Attorney 'General, Erskine, Milks, and Wrottesley, contra, were stopped by IN THE FORTY-SECOND YEAR OF GEORGE III. 180 The Court; who said, that though the affidavits were drawn 1802. rather loosely, and the fact of the swearing; in mioht have been m ^~~ J -ii/> Th e KINO brought more precisely before them; yet as no answer had against been given to it by the defendant, who had had an opportunity HAKWOOD. of denying it if the information were untrue; and as it was ad- mitted that the merits of the election, if any, were sufficiently brought in question by the affidavits, they thought that at least enough appeared to put the matter in a course of inquiry. Rule absolute. A -*"* [ 181 ] The KING against The Sheriff of SURRY. Fe4v4ttu' Rule nisi was obtained for setting aside an attachment If { ^ c defend- against the sheriff' (in a cause of Clarke v. Piersoii) for not O r im clerk bringing in the body: and whether the attachment were regular e P"* m . a ' J . bail, the plain- or not depended upon the question. Whether the putting in of tirt' must ex- the defendant's attorney as bail were or were not a nullity ? The j^l', 1 ^ d l c e an _ plaintiff in the cause having considered it as a nullity, and pro- not proceed ceeded accordingly to attach the sheriff. ter were T Mingay and Mam/at shewed cause against the rule, and nullity. contended for the regularity of the attachment. They said, that an attorney had been permitted to be put in as bail only lor the purpose of surrendering the principal (}. Espinasse, in support of the rule, relied on Thomson v. Ron- bell, East. 22 Geo. 3. in this Court (<), to shew that though it were a good cause of exception to the bail that one of them [ 182 ] was the defendant's attorney, yet that the bail-piece was not a nullity on that account. And The Court, upon reference to the Master, confirmed the (a] Jackson v. Trinder, 2 Rlack. Rep. 1180. (6) Fenton v. Rug-fles, l Bos. $ Pull. SJ6. Wallace v. 4 iron-smith, '2 Z?".v. If Pull. 49. (c) Cited in Dovgl. 46G. n. VOL. II. L practice 182 CASES IN HILARY TERM 1802. practice to be so in this Court ; and were about to make the rule The KING a ^ so ^ ute f r setting aside the attachment against the sheriff for against irregularity : but it appearing that the affidavit on which the The Sheriff rule was obtained was improperly entitled in a cause of such an of SURRY. one arl( i ano ther (o); the Rule was discharged. In another cause of Fora/1 v. Boiberman on the same day, a rule was made absolute on the authority of the opinion above expressed, for setting aside proceedings on a bail-bond of irre- gularity ; the irregularity being, that the attorney's clerk having been put in as one of the bail, the plaintiff considering it as a nullity, without excepting; to him, took an assignment of the bail-bond, and proceeded accordingly. Park and Header were engaged on opposite sides : but The Court said, the practice was too well settled to admit of dispute : the plaintiff must except to the bail, and cannot consider the matter as a nullitv. (a) Vide Fores v. Diemer, 7 Term Rep. 661. The Christian and surnames of the parties must be inserted in the title of an affidavit. [ 183 ] Thursday, l-'eb. 4th. CUNLIFFE, and MALBY his Wife, and Others, (which said MAI.BY, &c. are Administratrixes of J. HOUGHTON, de- ceased,) against SEFTON and Others. TTPOX a rule nisi for setting aside a nonsuit in this cause, which stood over from last Michaelmas Term, Chumbre, J.. before whom it was tried at the last Summer assizes at Lan- ing witnesses at the places Where in an action on a bond, evi- dence was offered that diligent in- quiry had after one *of ca! >ter, reported that it was an action on a bond given by the the snbscrib- defendants to the intestate, dated 31st of February 179-5, for 600/., to which non est factuvn was pleaded. That the bond of residence when produced appeared to be witnessed bv Richard Bate, and of the obligors , . 7 . Tr , r ,1 i .-/r 1 " i * and obiiee, by Alice IJoi/gfilon, one ot the plaintiffs: and to prove the exe- and that no cution of it the following evidence was offered, viz. That the account could ,..,,,,, /?)/;/ be obtained plaintiffs had taken out a subpoena tor Kichara Jbate, one ot of such a per- t j ie su k scr jki no - witnesses; and that for the purpose of serving son, who he .' L [ was, where him with it diligent inquiry was made af tin' place where the ob- mnV'cTrcnm- Hgors and the obligee tired, without having been able to obtain stance relating any intelligence of such a person ; who he was, or where he snfficient h to d lived, or any other circumstance relating to him. That the de- let in proof of the hand-writing of the other subscribing witness, who had since become interested a.- administratrix to the obligee, and wat. a plaintiff on the record. fendant.% IN THE FORTY-SECOND YEAR OF GEORGE III. 183 fendants had acknowledged the debt, and made a calculation 1802. of what was due for principal and interest, which the plaintiffs I I T fj L I V i"p offered to prove by letters of correspondence: and as Alice aqainst Houghton, the other subscribing witness, by reason of her in- SKFTON. terest as administratrix and plaintiff, could not be produced as a witness, it was offered to perfect the proof by eviderrce of her hand-writing. The learned Judge, upon the authority of Abbot v. Plnnibe (a}, thought himself precluded from receiving the evi- [ 184 ] dence of acknowledgment as proof of the execution of the bond. He also thought that the inquiry after Richard /w/ewas too slight a foundation for directing the jury to find for the plaintiff upon the rest of the evidence, without producing Hate as a witness, or proving his hand-writing. Not having how- ever any doubt of the justice of the demand, he wished to have reserved the point for the determination of this Court upon a case: but there being no person to consent on the part of the defendants, the learned Judge directed a nonsuit, with liberty to the plaintiffs to apply to this Court to set it aside. Yates now shewed cause against the rule. The case of Abbot V. P/umbe (b) is an express authority that an acknowledgment of the bond by the obligors will not supply the want of proof of the execution of it by one of the subscribing witnesses; and the only cases in which evidence of the hand-writing of such witnesses has been holden sufficient were when they were dead (r), or lived beyond sea (//), or had become infamous (e), or were parties interested in the suit ( /'). This latter exception is indeed applicable to one of the subscribing witnesses; but that will not take away the necessity of calling the other, or, incase of his death, or absence beyond sea, &.c. (which the plaintiffs were bound to make out) proving his hand-writing. Now here the evidence of inquiry after Richard Bale was not satisfactory to the learned Judge; and therefore it does not fall within the dictum of Lord Kein/on in l> v. Trompowsky. It. is not [ 185 ] sufficient merely to inquire for the subscribing witness at the places of residence of the parties, it not even appearing that the bond had been executed there. But whether or not reason- able diligence had been used to find the witness was a question for the opinion of the Judge, and he determined in the negative. () Doi/-/. 210. (h) Ibid. (f) nu,-nes v. Trompowsky, 7 Term AV/>. 2o(J. ( 185 CASES IN HILARY TERM 1802* The Attorney -General and Carr contra. The witness not C E having been heard of for nearly seven years, and there being no against trace to be discovered of such a person, the inquiry made for SJEFTON. him at the places of abode of the respective parties was using the best diligence which the nature of the case would admit of; and the search could scarcely have been extended with an^ prospect of success without some clue to go by, unless perhaps by advertisements in the public papers ; which have never been holden to be necessary. The period of seven years' absence unheard of is a sufficient defence to a prosecution for bigamy (o) : and was therefore considered by the Legislature as affording a reasonable presumption of the death of the party. The same presumption is made in other cases (&). This case rangesitself within the principle of the exceptions laid down by Lord Ker/yon in Barnes v. Trompowsky; where reasonable inquiry has been made after a witness without success, there his hand-vvritinof, if o * known, shall be proved : but even that is impossible, if no ac- count can be obtained who the witness was. In that case, no inquiry whatever had been made after the witness. Then, if the non-production of Richard Bate were sufficiently accounted for, and the evidence sufficient to dispense with the proof of 1m hand-writing, the rest of the evidence was as full and satisfac- [ 186 ] tory as the case would admit of, namely, proof of the hand- writing of the other subscribing witness, who had become in- terested in the bond after her attestation, and of the acknow- ledgment of the bond by the obligors the defendants. This latter alone was holden sufficient in Swire v. Bell (c), where from the circumstance of the subscribing witness beino- in- " O terested at the time of the attestation, no other medium of proof was attainable by the obligee. The case of Abbot v. Phinibc (d) does not go the length of excluding such testimony in all cases, but only where the subscribing witnesses themselves or evidence of their hand-writing may be procured; and that case too only- goes to reject the admission of the bankrupt, who was not a party to the record. But exceptions have been admitted to the general rule; as in Bowles v. Langwortky (e), where a bill of sale was produced by the defendant himself, and relied on by him on an (a) Vide stat. \ Joe. 1. c. 11. (b) 1 Ander. 20. pi. 42. Thome v. Rotff, DIJ. la*, pi. 65. S. C. Bcndl. 86. yl. 131. (c) 5 Term Itep.tfl. (d) Doi^l. 210. ( e ) Term Rep. 366. 7 examination IN THE FORTY-SECOND YEAR OF GEORGE III. 186 examination before commissioners of bankrupt; which was given 1802. in evidence in an action of trover by the assigness of the bank- rupt against the defendant for the goods conveyed by such bill of sale. Soin Laing v. Raine (a), judgment was entered up on SEFTON. an old warrant of attorney without an affidavit of the subscrib- ing witness, who could not be procured ; upon proof of the de- fendant's agreement that it should be so done. GROSE, J. The general principle of evidence is clear, that the best evidence which the nature of the case will admit of must be given. Then apply that to the present case : here is a bond executed, nobody knows where, and attested by a witness, of whom nothing appears to lead to a discovery who he was or [ 187 ] where he lived. But it was known where the parties to the bond lived ; and-there it is stated that diligent inquiry was made after the subscribing witness, and no account could be obtained of him. The bond itself is dated in Febrnary 1795, and the obli- gee is since dead. I do not see what the plaintiffs could have done more than they have. Then if they have used due dili- gence without effect, that will let them in to secondary evidence. It is plain from the report that the learned Judge was not satis- fied with the first impression of his mind, that the evidence offered ought not to have been received ; because he reserved the point, and referred it to our opinion: and upon more ma-i- 1 11 ture consideration we think that the evidence offered was suffi- cient to entitle the plaintiffs to recover. I form this opinion with reference to what is daily passing in the world. The fre- quency of written instruments in modern times lias made per-< sons less careful than they used to be in the selection of wit- nesses to their attestation. It has occurred to me to know that persons unknown to the parties, such as waiters at a tavern, have been called in to attest instruments of the most important kind, even wills; where the parties had no previous knowledge of them, nor even were apprized that they bore the names by which they attested the execution. The difficulty therefore which has occurred in this case can be no matter of surprise, On the whole I think the nonsuit ought to be set aside ; and possibly the plaintiffs may, in the mean time, be able to procure some intelligence of the subscribing witness. LAWRENCE, J. It is now admitted as a general rule, that proof of the acknowledgment of a defendant is not sufficient in- [ 188 ] () 2 Bos. if Pull. 85. 188 CASES IN HILARY TERM 1802. CuNLIFFE against SEFTON. [ 189 ] Saturday, l-el>. Gth. an action on a bond without calling the subscribing witness. The only question now is on that part of the report of the learned Judge, which states that he was not satisfied that suffi- cient inquiry had been made after Richard Bate, one of the subscribing witnesses, in order to let in the proof of the hand- writing of the other subscribing witness, who has since become one of the parties interested. Now no doubt that a subscribing witness's hand-writing may be proved, if diligent inquiry have been made after him, and he cannot be found. Then the ques- tion is, Whether it be not sufficient to inquire after a witness whom nobody knows at the place where the obligors and obligee lived? It is stated, that diligent inquiry was made after the witness there, but without success : then where else were the parties to inquire? It does seem that they have done every thing that could be expected of them ; and if so, I think they ought to have been let into the secondary evidence offered. LE BLANC, J. Inquiry was made for the subscribing witness at the only place where it was probable to find or hear of him. The only other step the parties could have taken was to advertise for him in the public papers : and unless the Court should hold that necessary to be done in all these cases, I think the plain- tiffs have made all the inquiry which could reasonably be re- quired of them. Rule absolute. The KINC. against the Inhabitants of Mi; i. LOR. ^THVO justices by an order removed John Turner, his wife and children by name, from the township of Bramhall, in the A contract for a stand- ing-place in ftr'tTc'arding county of Chester, to the township of Me/for, in the county of machine (the ])crbi/. The Sessions on appeal confirmed the order, subject party's own , ' . < ,\ /-< A i, c 11 property) to the opinion of this Court on the following case: \vhieii was jj^ pailp er, beino- legally settled in Mel/or, took a house in fastened to V ,,, f ,, ,, r , tli- floor and Stockport, in the county of t /tester, of the value of o/. a-year, the .oof, for w j,i c ] 1 ] ie occupied for more than forty days : and also took from the purpose . lit of bein- the owner of a mill in Stockport, worked by a steam engine, a worked by tfiiiidin^-place in a room for a carding machine of his own, ermine of the which was worked by the machinery of the steam engine, and ' 1 1 f ' ' which the fastened to the Hoor and the roof of the room. He was to pay party was to give 20/. a-year, with liberty to quit on three months' notice; is not a takin? of a tene- ment; but a mere licence to use the machinery of Uie mill; and therefore uo settlement can be derived under it. his IN THE FORTY-SECOND YEAR OF GEORGE III. 189 his landlord 207. a-year; and agreed with him that each should 1802. give the other three months' notice to quit. He occupied this T , K at the same time with the house for more than forty days. There against were other tenants who had carding machines in the same room The Inha- upon similar terms ; and they, as well as the owner of the mill, bitants of were respectively furnished with keys to it. The owner's key was a master-key to all the rooms in the mill. The Attorney-General and Littledale, in support of the order of Sessions, maintained, that "a standing-place in a room for "a carding machine" could not be considered as a tenement the occupation of which can give a settlement; being no part of the room itself, though fastened by temporary fastenings to the floor; and being nothing more than a mere personal liberty to [ 190 ] use a portable piece of machinery in a particular place (as the very name imported) in order for the party to avail himself of the fixed machinery of the mill to facilitate his work. There was no letting of any thing fixed to the freehold; but a mere temporary licence to attach something of the party's own to what was so fixed. Xo ejectment could have been brought for such standing-place, any more than for a seat at a theatre which the party obtains a licence to use during the season; but a tene- ment must be something of the realty, for which an ejectment will lie ; and of which the sheriff may deliver possession upon a writ of habere facias possessionem. This case falls directly within the principle of the decisions in liei \. Dodderhilt (a), and Rex v. Tanlebigg (/>). In the former, the renting by a needle-maker of two out of six pointing-places in another's mill was holden not to be the taking of a tenement within the sta- tute; though the machinery there used was the mill owner's, and part of the thing let; which made that case, if any thing, stronger than the present in favour of the settlement. It is probable that the pointing-places (which were described as frames of wood supporting spindles on which grinding-stones turned with great velocity by means of leathern straps commu- nicating with the great wheel of the mill) were fastened in some manner to the floor, from the way in which they were worked: but in jR. v. Tardebigg, the runner (rented also by a needle- maker) was expressly stated to be a piece of machinery screwed down to the floor: and yet it was holden not to be a tenement, () 8 Term Rep. 119. (ft) Ante. 1 vol. j:o. o the 190 CASES IN HILARY TERM 1802. The KING against The Inha- bitants of MELLOR. *[ 191 ] [ 192] the renting of which, though in conjunction with the exclusive * use of a room in another's mill, would give a settlement. Lord Kenyan said, that the contract was in effect no more than a li- cence to use a particular part of the machinery of a mill, and was no more a taking of a tenement than if a man contracted to pound in a certain mortar, or use a particular grinding-stone in a mill. This is not like the case of Rex v. W/iitechapel (); for that was the taking of the room itself, though to be used for a particular purpose and at certain times. Erskine, Ba/gn//, and Hill, contra, endeavoured to distin- guish this from the cases of R. v. Dodderhill (b), and R. v. Tardehigg (c), on the ground, that in those cases the takings were of the particular pieces of machinery called the runners, and the pointing-places, which were mere chattels, and no part of the mill itself: whereas here the taking is a standing-place in the room of the mill, which is necessarily a taking of part of the mill itself, though for a particular purpose, namely, for the purpose of putting up in such room a machine to Ve worked by means of the mill-wheel. The carding machine could not have been the subject-matter of the letting;, because that was the pau- per's own ; the only thing therefore which could be let was the place in the room where it was to be fixed : the taking therefore was of that part of the tenement itself, and not of the machinery, as in the former cases. Then the particular use which was to be made of the part of the room so taken cannot vary the effect of the contract of letting. The use of a tenement is more or less limited in most cases: that was no objection in Hex v. White- chapel (a) to the gaining of the settlement: and in R. v. Tarde- tfigg, Lawrence, J. distinguished that from the Whitechapel case, because it was not stated that the runner was in the packetino-- rporn which was appropriated to the pauper's use, [Lawrence, J. That observation was made by me in answer to an argument urged at the bar, that as the value of the sitting-room was en- hanced in the one case by the use of the furniture and the fire which was to be provided by the owner, so in the other the value of the packeting-room might be enhanced by that of the use of the runner. But I did not mean to give any opinion, that sup- posing the runner had been found to be placed in the packeting- (n) Hil. 2G[Geo.C>. Q Const. 151. ;>/. 194. (f) Ante, 1 vol. OL'S. 8 Term Rep. 449. room, IN THE FORTY-SECOND YEAR OF GEORGE III. 192 The KINO againtt The Inha- bitants of MEL LOU. room, the respective values of each, which were distinctly 1802. found, could be added together, and applied to the packeting- room alone.] Here the value of the thing let, which was part of the room itself, is sufficient to confer the settlement. The terms of the contract also shew that the thing let was the room and not the machinery ; for there w r as to be three months to quit respectively; which could not apply to the machine, that being the pauper's own property; and shews that the parties in- tended to contract for the use of the freehold itself. Suppose one having furniture of his own took an apartment for the ex- press purpose of placing it there; that could not be considered as any other than a contract for the room itself, and not merely a personal licence to place the furniture there. This case comes directly within the principle of Rex v. Tolpnddle (a), and that class of cases. The taking of so many cows cannot be any other than a mere contract for personal chattels ; but if the taking be of cows to be fed in certain pastures,, that has been holden to be the taking of a tenement; being in effect a renting of the growing produce of the pasture, to be taken, as Lord Kenyan said, by the mouths of the cows. So here, though the [ 193 J taking of a moveable machine will not give a settlement, yet if the contract be for a certain part of the freehold for the puipose of placing and using the machine there, the legal possession of the freehold passes to such special occupier, as much as if it had been a general taking. In R. v. Piddletrenthide (/>) the taking of a rabbit-warren was deemed to confer a settlement, although it was expressly found in the case that the pauper had no right in the soil, except that of entering upon and killing the rabbits there; the landlord constantly depasturing the same, and ploughing some part thereof. Buller, .). there said, that the true question was, Whether the contract were to receive profits out of the use of the land. Xow here the profit was derived out of the use of the freehold as much as in that case. GROSE, J. The question is, Whether what the pauper con- tracted for were a tenement? The magistrates state it to be a standing-place in a room in a mill, for the purpose of placing there a carding machine of his own, which was to be worked by the means of the general machinery of the mill. Now what is that more or less than contracting for a liberty to go and stand (-) -I Tom Rep. C71. ') 5 Term Rtp. 772. there CASES IN HILARY TERM The KING The Inha- bitants of MLLLOK. 1802. there for the purpose of working- at his trade? It has been attempted to distinguish this case from those of Dodderhill v. Tardebigg, which are admitted to have been properly decided : but I have listened in vain for any solid distinction to be shewn be- tween them ; and we must take care not to give way to refined and subtle distinctions on these subjects,, which at last leave the magistrates below no clear rule to go by. Therefore, without entering into any further reasoning 6n the subject, which will only furnish fresh arguments for doubts on future occasions, I think this was a contract for nothing more than a liberty for the pauper to stand and work his machine in a room of the mill ; and that it conferred no settlement upon him. LAWRENCE, J. This case is governed by those of R, v. Dod- derhill and R. v. Tardebigg, from which it has been endea- voured to distinguish it by saying that those were only licences to use certain machines belonging to the owners of the mills; whereas this is a hiring of part of the mill itself; be- cause it cannot be supposed that the pauper contracted for a licence to use his own machine. But it is to be observed, that the contract here is not pretended to be for the use of the pauper's own machine, but for a licence to make use of the steam engine of the mill, by applying to it his own machine, Now what difference can there be between a licence to use another's machine, and a licence to apply the party's own ma- chine to the machinery of another's mill? But it is said, that the pauper contracted for the standing-place in the room where the machine was to be put. To be sure he must have a place to stand and work the machine, otherwise the contract was absurd and nugatory: but how does that differ from a general licence for him to use the machinery there? Therefore on this plum ground, that the contract was for a mere licence for the pauper to use the machinery of the mill, and not a letting of any part of the mill itself, I am of opinion that no settlement was gained in Stockport. LK BLANC, .1, The substance of the contract was for the use of the, machinery, and not a hiring of any port of the room [ 195 ] HI tfio mill. It was a hiring of the use of the mill-owner's ma- chinery, as in the other cases referred to; with this difference, that instead of using the owner's machine, he was to apply his own machine to the moving power of the mill, in order to en- able him to work it with facility. But whether he contracted for IN THE FORTY-SECOND YEAR OF GEORGE III. \() for the use of the mill-owner's machinery directly: or by the 1802. intervention of some other machine of his own applied to the T ,~~J7~ other, is exactly the same thing. a^at'im' Order of Sessions confirmed (a). The Inha- bitants of (a) Vide Rex v. The Inhabitants of Londonthorpe, 6 Term Rep. 377, where the Court held, that the value of a post wind-mill erected by a tenant on land rented by him, (which land in itself was under the value of 10/. per annum, 1 could not be taken into the account so as to raise the annual value above that sum ; it being a mere personal chattel, not fixed to the freehold, which the tenant was at liberty to remove at the end of his term, aud there- fore no tenement. The KING against PICTON. Wednesday, . Feb. 3d. A Conviction on the game laws, removed into this Court by If the con- **" certiorari, was as follows : cistrafe "cive (Suny.) Be it remembered, that on the 16th of September proper date in the 41 Ceo. 3. Sec. at, Sec. W. J). of, Sec. came before me J. O f t ! ,^ j. 1 "^ B. one of the justices, Sec. and then and there gave me the viction upon said justice to be informed that one Cfi'sar Pictuii of, Sec. with- it, and after- in three months last past, to wit, on the 16th of this same } vanls add au month of September, in the said 41st year, Sec. the said Cfcxar date to the Picton not having then lands or tenements, Sec. (negativing the ^"Libf." qualifications in the statute 22 Se 23 * Car. 2. c. 25.) did at, Sec. hand and keep and use a certain gun to kill and destroy the game, against conviction the form of the statute, Sec.; whereupon the said C. P. after- (bdn^befoi-fi i / t. / ji A -i A the otifncc wards, to wit, on the same loth day of September in the 41*t committed), year, Sec. at, Sec. had notice of the said information and of the til1 ' laltcr 1liav ,.. . . ., , be rejected offence therein charged upon him as aforesaid, and was then as 'surplusage. and there by me the said justice in due manner summoned to II 1S <''iogh J ' c con " appear before me the said justice, at, See. to make his defence viction sets to the said charge contained in the information aforesaid. And IvjVne^'wal" thereupon afterwards, viz. on the 26th of September, m the examined on A i ^ 011 i /-i a i i ] i oath, without list year, Sec. at, Sec. he the said ( . / . being daily summoned statin , T ,| ial as aforesaid in this behalf before me the said justice appeareth the ma^is- . . . . , trate had and is present, in order to make his defence against the said authority to clnroe, See., and having heard the same, he the said C'. P. is Jjj[ n | ini5tcr thc asked by me the said justice if he can say any thing why lie ^ r i f) p T should not be convicted of the premises above charged upon him 196 CASES IN HILARY TERM 1802. The KING against PlCTOX. [ 197] him in form aforesaid ; who pleadeth that he is not guilty of the said offence. Whereupon I the said justice, at the same time and place, viz. on the said 26th of September in the year aforesaid, at, &c. do proceed to examine into the truth of the said complaint contained in the said information in the presence and hearing of the said C. P. And thereupon one credible witness, to wit, J. C. of, &c. cometh before me the said jus- tice, and before me the said justice upon his oath, &.c. by me the said justice administered, in the presence and hearing of the said C. P. deposeth, &c. that the said C. P. on the said 16th day of September in the year aforesaid, at, &c. did keep and use a certain gun to kill and destroy the game. (And then proceeded to negative severally the defendant's qualifications according to knowledge or belief.) And the said C. P., al- though called upon for that purpose, doth not prove that he was qualified to keep and use the said gun for the purpose aforesaid by any of the means herein before-mentioned ; nor shew any reason to me the said justice why he should not be convicted of the said offence : nor does he offer any evidenee whatsoever before me, or require time for the production there- of: and thereupon I the said justice do adjudge that the said C. P. was and is unqualified, and guilty of the offence afore- said. And therefore the said C. P. on the said 26th of Septem- ber in the year aforesaid, at, 8cc. before me the same justice, by the oath of the witness aforesaid, according to the form of the statute, &cc. is convicted thereof: and for his offence afore- said hath forfeited 51. to be distributed as the statute, &c. directs. In witness whereof, I the said justice to this present record of the conviction aforesaid have set my hand and seal at, &c. the 4th day of November, in the year aforesaid. J. 73. (L. S.) Mauley took several objections to the conviction, the prin- cipal of which were, 1st, that the conviction was dated on the 4th of November, in the i/enr aforesaid, which by reference must be taken to mean the 41 Geo. 3. and therefore before the offence committed, which was not till the 16th of September following, R. v. Kent, 2 Ld. Rai/m. 1546. And this cannot be rejected as surplusage, because the time of the conviction, as well as of the offence, ought to appear. Rex v. Pullen, Salk. 369. 2dly, It is not stated that the magistrate had jurisdiction to administer- the oath. The IN THE FORTY-SECOND YEAR OF GEORGE III. 197 The Court said, that as to the first objection, it was expressly stated that the offence was committed on the 16th of September, 41 Geo. 3. and that the magistrate, after summoning the de- fendant and examining the evidence, &.c. on the 26th of the same September convicted the defendant of the offence. What follows therefore as to the date of setting his hand and seal is insensible, and may be rejected as surplusage. That it was im- material when he put his hand and seal in point of form to the conviction. That as to the other objection, the conviction was in the common form in which many others were drawn. The Act of Parliament gives the magistrate authority to administer the oath in that respect. Marryat was to have argued in support of the conviction. Conviction affirmed* 1802. The KINO PlCTON. [ 198 ] The KING against The Inhabitants of MIN WORTH. WO justices by an order removed. James Field, his wife and children by name, from the township of Minworth in the county of Warwick to the township of Worley Wigorne in the county of Worcester. The Sessions on appeal quashed the order, subject to the opinion of this Court on the following case : The pauper, being settled in Worley Wigorne, afterwards rented, under a verbal agreement from Lady-day 1800 till six weeks after Michaelmas 1800, two cows, at the rate of five shillings a cow per week, of./. Griffiths, who was the tenant and occupier of certain lands in Minworth, It was also agreed between the parties, that the owner of the cows should feed and support them: and for that purpose such cows should feed and depasture in the lands of Griffiths called the Tiro Pixalls and Top Ropes, and also in certain other lands called the Lower Ropes and Mimuorth Field, after the said last-mentioned lands should be mown: all of which lands were in Mimcorth; but the lands on which the said cows were so depastured were not of the annual value of 10/. Griffiths was not to feed any other cattle in any of the above-mentioned lands whilst the same were depastured with the cows so rented by the pauper. The contract continued in force for the space above-mentioned, durinir Saturday, Feb. 6 Hi. Renting a dairy (includ- ing the cows and their pasture at above io/. a year in value, will not con- fer a settle- ment if the annual value of the lands on which the cows were to he depastured were under 10J. [ 109 J 199 CASES IN HILARY TERM The KIXG against The Inha- bitants of Ml N WORTH 1802. during the whole of which time the pauper resided in M'tn- worth, Erskine and Reader, in support of the order of Sessions, contended that the renting the dairy in Mhiworth gave the pauper a settlement there, although the valup of the lands on which the cows were depastured did not amount to 10/. per annum. The cases of Hex v, Piddletrenthide (a) and Hex v. Tofpuddte (b) must govern the present. In the latter, which was the case of renting a dairy, the annual value of the land did not appear (Y). [Grose, J. It was taken for granted there that the value of the land was 10/. a year; and the attention of the Court was not called to any other view of the case.] At any rate, in the former case of the rabbit-warren, the value of the land was well known to be little or nothing, and that the .sole profit was derived from the rabbits. Besides, it has been always holden sufficient to confer a settlement, that the annual value of 10/. has arisen from something connected with the 200 1 realty, though no part thereof; as in the Whitechapel case ( Term Hep. 772. (b} 4 Term Jiep. 671. (c) That fact was not slated in the case; but it appears by a note in p. 672, f the report, that to a question put by the Court to the bar, it was admitted that the annual value of the laud in that case was more than 10/. This note was referred to by Clarke, \vlio was to have argued against the order of Sessions upon the present occasion. (d) Hil. 20 G'co. 5. 2 Const. 151. pi. 1IM. (e) E. 24 Gco. 3. 2 Const. 155. a set- IN THE FORTY-SECOND YEAR or GEORGE III. 200 a settlement is, that in truth and effect it is a contract for a 1802. certain interest in the land to be enjoyed in a particular man- ,, T, . J . ' . The KINO ner: that alone constitutes it the taking of a tenement: and in against each of the cases which have been decided on that ground it The Inlia- was understood that the land itself was of the requisite value, bitants of T>u i 11 it, -A u i MlNWOKTH. Ihen in analogy to all the cases in pan materia we are bound to say, that the pauper did not gain a settlement by the renting and occupation in question. LAWRENCE, J. In the case of The King v. Tolpuddh, the ground on which the Court went was, that the contract there stated gave the pauper a right to take the produce of the land [ 201 ] by the mouths of the cattle ; and that it was the same as if he had rented so much pasture for his cows to the value of 10/. a year. The value of the cows hired was never iaken into consi- deration as forming part of the value of the tenement. No- thing can be concluded against this from the case of The King v. North Bedburn. For it seemed to be the object of one of the parties at the Sessions to distinguish between the value of the land and of the things leased with the land; and the Sessions let them into that evidence (being parol evidence of the lease which the lessor had refused to shew, and which was not then produced); and this Court held that the Sessions had done rio-ht. That rather shews that the distinction was considered ~ to be material; but it was not established in point of fact. The case of the warren falls under a different consideration : the produce of a warren is the rabbits us much as the produce of a fishery is the fish. But that is not like a contract for the hire of cows. LE BLANC, J. In the former cases the Court held that the rentinf of a dairy with land which was of the annual value of .' 10/. was the same as renting land of that value, the produce whereof was to be taken by the cows. But that is not like a contract for the hire of cows with the use of land under the value of 10A a year. With respect to other cases, where the value of land has been raised to that amount by things erected upon it, the Court has resisted the attempt to separate the value cf the land from that of the erections attached to it. Such seems to have been the case in R v. \orlh llcdlmni. But that differs greatly from the present case, where the renting is of cows wh'ch are not annexed to the land. Order of Sessions quashed. The 202 CASES IN HILARY TERM, 1802. Saturday, J-'tb. Cth. The KING against MACLEOD. A defendant in a crown prosecution cannot carry down the nisi prius record to trial by proviso. THE defendant was in custody in execution of several sen* tences for misdemeanors, of which he had been convicted ; and had pleaded not guilty to an information filed against him by the Attorney-General for a libel, in which notice of trial had been given on the part of the Crown to the defendant several Terms ago, which had been renewed at several inter- mediate sittings. Whereupon on a former day of this Term, Scott moved for a rule (in substance) calling on Mr. Attorney- General to shew cause why a day should not be peremptorily fixed for the trjal of this information. This motion was grounded on a long affidavit of the defendant, stating the several stages of the proceedings which had hitherto been had, and the different notices of trial given ; and complaining of the hardship, expence, and vexation which he had thereby sustain- ed. And the rule was framed upon what is stated to have been said by the Court in the report in 6 Mod. 247, in the case of The Queen v. Sir Jacob Banks; "that in all indictments or in- " formations here, See. the defendant has no other way to hasten "on his trial but by application to the Court; who upon hear- "ing the reasons of Mr. Attorney-Creneral, will, as they see "occasion, either give him further time, or fix him a day per- "emptorily for the trial, or give the defendant leave to bring it "on himself." And at the same time Scott said, there might be great doubt as to the authority of the decision in Rex v, [ 203 ] Dyde (a), that a defendant could not carry down the nisi prius record to trial by proviso in a case where the King w r as party, which he said was- not warranted by the authorities referred to in the report of the case. The Court (after consulting the officers of the crown-office, ) said, that there was no instance of such a rule as that now prayed for having ever been granted. That what was said in the re- port of Rex v. Sir Jacob JSanks in 6 Mod. must be understood as referring to trials at bar. That it did not occur to them how this Court could exercise a jurisdiction over the Judge presiding in the Court at nisi prius before whom the nisi prius 7 Term AVji. 661. record IN THE FORTY-SECOND YEAR OF GEORGE III. 203 record would be, so as to govern his discretion as to the parti- 1802. cular day when the information in question should be tried. _,, 7r~ That if the defendant first shewed any ground to the Court for ao - u i,,st directing a trial at bar, it would be afterwards competent to MACLEOD. him to move the Court to fix a particular day for it, as they might regulate the method of their own proceedings. But that if the defendant were not inclined to adopt this, which occurred to them as the only mode by which he could obtain the object which he pressed for; and his counsel really meant to contend that the point ruled in the case of The King v. Dyde was not law, (which was however recommended to his re-consideration) they would grant a rule to shew cause why the defendant should not be at liberty to proceed to trial by proviso at the Sittings at nisi prius after this Term. The defendant's counsel assenting to accept the rule in this form, it was accordingly granted. The Attorney-General and G arrow now shewed cause against the rule; and after going at length into the reasons which had [ 204 ] induced the postponement of the trial from time to time, some f which had originated with the defendant himself, and all of them accounting satisfactorily for the delay which had arisen, so as to do away any imputation of wilfulness, or intention to ha- rass the defendant; they were proceeding to support the au- thority of the decision in Hex v. Di/de, which was in point against the present application; when the Court said, that it lay upon the defendant's counsel to disprove that authority. They therefore concluded by observing shortly, that the very report referred to in 6 Mod. '247. of Sir Jacob 7>V////;.s's case (//), stated that there could not be a trial by proviso in the King's case, because there could be no laches imputed to him: and that the rest of what was there stated had already receiv- ed an answer from the Court. That the authority of R. \ . Dyde was also supported by '2 I lair/;, c. 41. >. 10. as well as by 2 'fust. 424. Scott in support of the rule (beino- desired by the Court to confine himself to the question, \V hether they had authority to permit the defendant, to carry down the record to trial by proviso in a case where the Crown was prosecutor), contended that an information by the Attorney -General ex otficio, was, (a) Reported also in i> Ld. Jtuyw. 103'J. 1 Sulk. 6.V2. and II Mod. ;>.>. VOL. II. M >\hen 204 1802. when filed, subjected to the general jurisdiction of the Court in ,, H every respect, the same as any other proceeding : and that it was against P art f tne essential constitution of the Court that they should MACLEOD, have power to direct the form and manner of proceeding to trial in such way as would best promote the ends of justice, and pre- vent oppression on the defendant. In 3 Com. Dig. Information, f 205 ] D. 4. it appears that an information filed by the Attorney-Ge- neral may be quashed by the Court upon cause shewn ; for which is cited Fountain's case, 1 Sid. 152. It follows then, that if the Court may quash the information altogether, they may direct when it shall be tried in the same manner as in other informations at the suit of private prosecutors. The case of R. v. Dyde(a) was the first direct judgment on the point: it passed without argument, and is not warranted by any precedent. The only authorities referred to are those of Sir Jacob l>anks*s case, 6 Mod. 247. and 2 Inst. 424. In the first, the only question before the Court was, Whether there should be a new trial, the first having been had by surprise on the prosecutor : which was accordingly granted. The indictment there which was originally found at the Sessions had been removed hither by certiorari at the instance of the prosecutor, who was a private person, and who had made no default before trial. Now in no case can a defendant carry down a record to trial by proviso, till the pro- secutor or plaintiff has made default at one trial. Whatever therefore was said as to the inability of a defendant to do this in a prosecution at the suit of the Crown was an obiter dictum. But if that were entitled to consideration, the same consideration is also due to what was also said, that the Court upon applica- tion of the defendant would, if they saw occasion, fix him a day peremptorily for the trial, or g/rc him leave to bring it on him- self. Then as to the other authority relied on in 2 Inst. 424. it has no relation whatever to trials by proviso; but merely states that a writ of nisi prius shall not be granted where the Kinjr is party, without a special warrant from him, or the assent of his Attorney-Genera 1 . [ 206 ] GROSE, J. The trial by proviso (//) it is well known was given in order to prevent defendants from being oppressed by the () 7 Term. Ktp. 661. (ft) The trial by proviso tukes its name from a clause in tlic distringas which provides, that if two writs come to tlin sheriff, lie shall only execute and return one of them. Vide 2 Tidd's 1'rac. tiG. cites u Lit. 1\ R. Q\<2. 17. that is, if IN THE FORTY-SECOND YEAR OF GEORGE III. 206 the laches of plaintiffs; and if the defendant could have shewn 1802. himself entitled to it, we should not withhold from him his The n ght; aganat MACLEOD. if two writs come to the sheriff in the same cause, (the one being supposed to be delivered on the part of the plaintiff, the other on the part of the defend- ant,) he shall summon but one jury for the trial of the issue. Trial per Pais, 71. But the trial shall in all cases be by the plaintiff's record, if he enter it in time. Tidd's Prac. ib. In no cases is the trial by proviso grantable to the defendant unless there has been laches in the plaintiff, Dy. %l$. i>. Sluitndf. P. C. 155. except in cases where the defendant is an actor, as in replevin, prohibition and quare iinpedit. ibid, and 2 Hawk. ch. 41. s. 10. I do not find it any where stated how soon after the stat. of West. 2. c. 30. (13 lid. l.) which gave the writ of nisi prins, as it has been long called, (2 Inst. 424.) the practice of trial by proviso prevailed. By the stat. 2 Ed. S. c. 16. it was enacted, that inquests in plea of land should be taken as well at the request of the tenant as of the demandant. In the 8 //. 6. it was resolved by the Court, on complaint of the defendant, that the plaintiff had kept back the writ so that the sheriff could not serve the jury with process, that both of them should have writs, with a proviso that the sheriff should only execute one of them. 8 Hen. G. 6. Bro. Process, pi. 56. The practice is also recognized in several cases in the year books. Temp. Hen. 7. cited in Stmindford's P. C. 155. and by the stat. 7. 8f 8 IV. 3. c. 32. which enacts, " That if any dc/end- " tint or tenant in any action depending in any of the said Courts (i. e. of " Westminster,) shall be minded to bring to trial any issue joined against him, " when bij the course in any of the said Courts he may lawfully ts and charges to cmisc and procure the isiue joined therein In le tried at the ne.rt assizes after such certiorari returnable, Sfc. or at the Sittings, &c. if the Court of B. R. shall not appoint any other tiitif for the trial thereof, fyc. But these statutes will not solve the difficulty; for they relate only to indictments removed ut the in- stance oj defendants, where the record is made up by then (not by proviso, but pursuant to the recognizance,) without any laches having occurred in the prosecutor. And the statutes have no relation to informations or indictments removed by the prosecutor, where after one default by him the defendant makes up the record by proviso. At any rate, however, it seems that in a'l cases the Attorney-General's warrant is necessary tor the trial at nisi prius; (Salk. 6.')2.) which as it is said implies the consent of the Crown to try tli? cause in the country. (n) 2 Ld. Ra'jm. 108J. has IN THE FORTY-SECOND YEAR OF GEORGE III. 208 has taken down the record to trial by proviso as against the 1802. Crown, In saying so I do not mean to be understood to in- ,p, T7^ elude the case of prosecutions at the suit of private persons : against those may admit of a different consideration: but I believe no MACLEOD. such case ever existed where the Crown was the real prosecutor. It is unnecessary to enter into the particular merits of this case, or the complaint of oppression on the part of the defendant. What has been said by Mr. Attorney-Generalis perfectly satis- factory on that head. It is sufficient to observe, that we cannot grant the remedy prayed for. There is however a remedy (a) [ 209 } which the law and the books point out to the defendant, if he can shew a case of grievance to the Court to entitle himself to. it. But whatever personal inconvenience he may have suffered by the delay, we have no authority to give him redress by this mode. LAWRENCE J. This is a dry question of law as to the- practice in these cases : we cannot alter the law ; we can only pronounce what we find it to be. For this purpose we cannot do better than look to the opinions of our predecessors, and particularly to what was said by Lord Holt in Sir Jacob Banks' a case, which is very clearly reported in Salk. 652. "That in civil actions the defendant cannot carry down a cause by proviso till there be a laches in the plaintiff, except in causes where the defendant acts as a plaintiff, as in replevin, &c. That there can be no trial by proviso in a cause of the Crown, because there can be no default nor laches : nor can the Crown be compelled to try any cause by nisi prius ; and therefore every cause of the Crown in this Court must be tried at bar, unless the Attorney- General allows a warrant of nisi prius, which implies his con- sent to try the cause in the county, " So it is said all through the book, that there can be no trial by proviso against the Crown; because the only foundation for such a trial is laches in the other party, which cannot be imputed to the Crown. When this matter was first moved in Court, we referred the defend- ant's counsel to the case of The King v. Di/dc, to shew that he could not have the relief he prayed in this form. In conse- quence of which another motion was substituted in lieu of it, [ 210 j so strange and unprecedented, that the Court would not even grant him a rule to shew cause : then he reverted back to the () This \vus probubly iu allusion to a trial at ba,r. present 210 1802. The KING against MACLEOD. CASES IN HILARY TERM present motion, upon a suggestion that the case of The King v. Dijde was decided without consideration. But it is an odd ar- gument for lessening the authority of a case, that one of the most able advocates at the bar thought the point too clear for argument. LE BLANC, J. This is an application for a trial by proviso. Now a trial by proviso is not a matter in the discretion of the Court to grant or refuse according to the particular circum- stances of the case. Therefore it is not an application to our discretion. But where a party is entitled to it, he has it of course without an application to the Court. The first motion which was made in this case for the fixing a particular day for the trial of this information could not be granted; because this Court cannot order what shall be done before the judge of nisi prius. For it would be nugatory to make an order for the trial of the information on a particular day, when perhaps the prose- cutor might not think proper to carry down the record. Then as to the present motion, there can be no trial by proviso in a case like the present, because there can be no laches imputed to the Crown. If no instance can be produced of a trial by pro- viso in a Crown prosecution, that of itself is a strong argument that none can be had. But it does not rest on that negative ar- gument ; for in the case of Sir Jacob Banks it was expressly said, that it could not be granted : and when the question was again brought forward in Hex v, Dude,\t was considered to be so clear and well settled by a counsel of great eminence at the bar, that it was given up without dispute. Then where no instance can [ 211 ] be produced of such a trial, and it was holden in The King v. Sir Jacob hanks, that it could not be granted, and the point was abandoned as untenable in The King v. Dyde, it would be too much for us to grunt it against all the weight of authority, Rule discharged. SHEPHERD, IN THE FORTY-SECOND YEAR OF GEORGE III. 211 1802. SHEPHERD, Executor, ik,c. against JOHNSON. Saturday, TTTTd r- , Feb. 6th. llo was a writ ot inquiry to assess damages on a bond In e8tim , given by the defendant, conditioned that his co-obligor the measure should replace a certain quantity of stock which the testator had an actionfe!- 11 lent him, and which was to be replaced on the 1st of August breach of an 1799. At the trial before ' Le Blanc, J. at the sittings in term SEjK? 1 ' at Westminster, the only question was, Whether the damages 8tock on a . iivcn flciv it i% should be calculated at 11 337. 18s. Qd. the price of the stock not enough on the 1st of August when it was to be replaced ; or at 1224/. Is. to , take * h i . , s . 1 value of the the price of the stock on the day of trial ; the value of the stock stock on that having risen so much in the mean time? The learned Judge fisenVn tiuT being of opinion, that as the agreement had been broken, and meantime; the stock never replaced, the plaintiff was entitled to recover value as it * the larger sum, being that which could alone indemnify him at s . tood at tlj e the present time. And the verdict was taken accordingly for trial; there 1224/. Is., with leave for the defendant to move the Court to re- b ^ in s no offer duce the damages to 1 133/. 18s. 6d. if they were of opinion that ant to replace the plaintiff was not entitled to recover more. ll '" the intcr ' l _ mediate time Litt/edale now moved for a rule to that effect; and referred to while the Dutch v. Warren (a) and Sunders v. HawMey (b), * where the J* twa8 damages had been estimated by the price of the stock at the time #[ 212 ] when it ought to have been replaced ; though he admitted that in the latter case the stock had fallen in value before the trial. He also mentioned a case of Ishenoood v. Seddon, Sittings after Mich. Term 1800, before Lord Kein/on; where in an action on a bond conditioned to replace stock on a certain day, the price of the day was taken a.s the criterion of the damages ; because it was the plaintiff's own fault if he delayed bringing his action upon the default of the defendant, so as to lose the benefit of the subsequent rise of the stock. And he urged the last-men- tioned reason as an argument against taking the price of the stock at the clay of the trial in case it had risen in the mean time; for then after a default once made, it would be in the plaintiff's power either by hastening or delaying his suit to take advantage of the rise in the market without any risk in case the market fell. GROSE, J. The true measure of damages in all these cases is (a) 2 Burr. lOlO. 1 Stra. 406. S. C. but not so well reported. (b) 8 Term Rep. 162. 212 CASES IN HILARY TERM 1802. SHEPHERD ayainst JOHNSON. that which will completely indemnify the plaintiff for the breach of the engagement. If the defendant neglect to replace the stock at the day appointed, and the stock afterwards rise in value, the plaintiff can only be indemnified by giving him the price of it at the time of the trial. And it is no answer to say that the defendant may be prejudiced by the plaintiff's delaying to bring his action; for it is his own fault that he does not per- form his engagement at the time; or he may replace it at any time afterwards so as to avail himself of a rising market. LAWRENCE, J. Suppose a bill were filed in equity for a specific performance of an agreement to replace stock on a given day, which had not been done at the time ; would not a Court of Equity compel the party to replace it at the then price of the stock, if the market had risen in the mean time ? LE BLANC, J. of the same opinion. Rule refused (). (a) The same measure of damages was adopted in a case of Payne v. Burke, Sittings after Mich. Term 1799, at H'cslm. C. B. cor. Ld. Eldon. Tuesday, Feb. 9th. By s 19. of The KING against The Justices of PEMBROKESHIRE. star, is G. 3. A T the general Quarter Sessions of the peace holden for the c. ?8. where -T\. countv o f Pembroke on the 7th of October 1801, Lady an order of justices lias Lady Owen moved to lodo'e an appeal against an order of two justices, been made for dated the 2d of April 1801, whereby they ordered that the road, an a//peu< highway in the parish of St. Michae/, Pembroke, leading from "the'Talt'v the hil - hwu y from the tovvn of Pembroke to the village of Hodg- prievod by ston, to the new highway in the said order mentioned, should d'eVoi'Vro-^ " )e st() Pl )(>( ' "1'i ou a11 allegation that the road so ordered to be cerdinn, &c. stopped up was the only way she had from her house to a cer- Quiiru-r s t $- ^ ain ^ u ' ni belonging to her, and that she had had no notice of *i,i.r ]>m. nig to the Court below that the said order was made by the two c"heIdrh < M > ''-' UHtices on tll( ' ~ (l of '-' 1 / >/v/ 1(S()I ' ancl returned to the Sessions at all events and recorded on the 15th of the same month, and that it was theSfons not a lM )( ' ill( ' (l fn)m ti!1 the tlle11 Michaelmas Sessions, they re- ne\t after fused to receive the appeal. Thereupon in Michaelmas Term SSo?tiie last a nilc was obtained, calling on the defendants to shew road w:j loo ]a\e ; the |>:irty having had snfTn lent notice of the order in time to have appealed to a preceding s, before wlncli time the surveyors of the highways had beguu to stop up the road. cause IN THE FORTY-SECOND YEAR OF GEORGE III. 013 cause why a writ of mandamus should not issue, commanding 1802. them at the next general Quarter* Sessions of the peace holden m , 7T~ .. , The KING ror the said county to receive, proceed upon, hear, and deter- a>m\ntt mine the said appeal. The Justices The affidavit of Mr. Stokes in support of the rule stated, that ^ on the 17th of July last he as solicitor for the estates of Lady Owen was informed, that certain orders had been made for di- #[ - o ,, -, verting one road, and also for stopping the road in question, which tended much to her injury. That on the 20th of July he examined the respective roads mentioned in the orders : that he passed and repassed on horseback over the whole of the road in question directed to be stopped up; and that the same was not in any way stopped up, obstructed, or impeded on that day; nor did it appear that any stopping up or obstruction had been made upon the same. That the Quarter Sessions were holclen on the 15th of July, and that the deponent was informed and believed that Lady Owen had not by herself or agents any notice or information of such orders until the 17th of that month. That in Aiivnxt he was informed, that on the 31st of July last the surveyors of the highways for the parish of St. Michael, Pembroke, had caused a bank to be raised and a ditch (o be sunk across the road m question; and thereupon the de- ponent prepared, and served a notice of appeal for the Michael- mas Sessions against the order for stopping up the same : which npp'.:;'l was afterwards rejected by the said Court. One of the orders referred to by the affidavits was an order by two magis- trates, dated 2d of April 1801, for diverting a certain highway between l.arnaslon ami Pembroke, and turning it in another direction more commodious for the public; followed by a cer- tificate of t\\( same magistrates, that the new road was fit for use, and dirertino- the old way to be stopped up. Another order was of the same date made by the same, for stopping up a cross I -2\o } road (the road in que.-uon) leading from the old to the new highway. Another ulii.lavit was made by OIK: Mur*c, stating his being employed by one of the surveyors of the highways to J-top up the road in question, which he did on the 31st of ,////'/ aforesaid, by sinking a ditch and erecting a bank across it : and that previous thereto the road was open and free for travelling ; nndlM , till then there was no stopping up or obstruction of the s.i -it, to llu: best of his knowledge and belief. In answer to the rule, it was sworn by the magistrates making the 215 CASES IN HILARY TERM 1802. the orders, that by a mistake the order made by them for the , use of the surveyors of the highways was filed at the Quarter against Sessions on the 15th of April 1801, instead of the order in- The Justices tended to be so filed (though in substance the same): but that * the mistake was rectified a few days after those Sessions, and the T? w M R R.O TC E* proper order substituted in lieu of the other. That the orders SH I U 1. . * L referred to were for more than ten days previous to the said last Easter Sessions publicly known in the parish of St, Michael, Pembroke, and directions given by them (the magis-> trates) to the surveyors of the highways in the said parish, to carry the same into immediate execution, preparatory steps having been before taken for that purpose. That they did not believe (for reasons stated by them), that Lady Owen sustained any injury or impediment from stopping up the road in question. That one J. M. for several years past had been the reputed managing agent or bailiff of Lady Owen, and resident on the spot, and that Mr. Stokes resided at the distance of twelve miles off: that Mr. Stokes was present at the Easter Quarter Sessions, when the order in question was so filed as aforesaid, and that the rolls or records of the said court were kept in his office. [ 216 ] One of the surveyors of the highways also swore to the publicity of the said orders in the parish, and that he received them ten days previous to the Easier Sessions on the loth of April. And several labourers who were employed upon the roads by the surveyors deposed, that on and before the 2d of April 1801, they were so employed to turn the old and make the new high- way mentioned in one of the orders, and also to stop up the old highway and the crossway in question. That while they were turning the old highway ten days before the loth of April, J. M< the domestic, servant and managing agent of Lady Owen, in company with a certain tenant of hers, came up to them and inquired what they were doing, to which they answered, that they were employed by the surveyors of the highways of the parish to turn the old ariJ make the new road (before-men- tioned), and were also directed to stop up the highway in ques- tion. On which ./. M. then informed him, that if they stopped up the said highway, he had orders from Lady Owen to send men to pull down the obstruction as soon as it was made. That some short time before July last, the surveyors again ordered them (the labourers) to stop up the road in question, which they accordingly did by making a fence or frith across the same IN THE FORTY-SECOND YEAH OF GEORGE III. 21G same several days before the 15th of July, when the Sessions 1802. were holden ; which frith or fence continued to remain across Th~K~ and obstruct the said way for several days, but was afterwards against torn down by persons unknown ; and afterwards again made up The Justices by Morse before-mentioned : that the fact of such employment * of labourers for that purpose by the surveyors, was publicly well known in the parish of St. Michael, as they worked there for six days. The stat. 13 Geo. 3. c-. 78. s. 19. enacts, " That where (in the [ 217 ] " cases therein mentioned,) any highway, &c. shall be so or- " dered to be stopped up or inclosed, it shall and may be law- " ful for any person injured or aggrieved by any sucli order or *' proceeding-, or by the inclosure of any road or highway, by ' virtue of any inquisition upon a writ of ad quod darnnum, to " make his complaint thereof by appeal to the justices of the " peace, at t/ie next Quarter Sessions, 8cc. after stick order made " or proceeding had, as aforesaid, upon giving ten days' notice " in writing of such appeal to the surveyor and party interested " in such inclosure, if there shall be sufficient time for such " purpose : if not, such appeal may be made upon the like no* " tice to the next subsequent Quarter Sessions, Sec. which Courts " of Quarter Sessions are authorized to hear and finally deter- *' mine s.uch appeal. And if no such appeal be made, or being '* made, such order and proceedings shall lie confirmed by the. " said Court, the said inclosures may be made, and the ways " stopped, and the proceedings thereupon shall be binding and " conclusive to all persons whomsoever," &c. Erskine and II ig/ci/ shewed cause against the rule ; and relied on the words of the Act as conclusive, that the appeal must be lodged at the nc.it Quarter Sessions after t/ie order made, pro- vided there be time to give notice, otherwise at the ensuing- Quarter Sessions; and therefore no subsequent Quarter Ses- sions can take cognizance of it. Then waving' the question whether the appeal might not have been preferred at the Easier Sessions, at any rate it could not be deterred beyond the Jit/i/ Sessions; the order having been formally recorded immediately r .-na i after the .Easter Sessions, though in substance made and lodged before; and there having been as much publicity in it as the subject-matter would admit of, so that the party aggrieved coulJ not complain of beino- surprised. That several days before tii,: loth of July, when the Sessions were holden, the road had bee-.i 218 CASES IN HILARY TERM. 1802. actually obstructed, though the obstruction was afterwards wrongfully removed by persons unknown. against Gibbs, Daiincey, and Lord, contra. The appeal is given to the The Justices party injury or aggrieved; but until the old road be actually ob- structed the mere order works no grievance or injury to any one : IFM BROKE* & *t *> SHI HE therefore the true construction of the Act must be to give the ap- peal to the next Quarter Sessions after the grievance or injury sus- tained. For otherwise an order may be obtained behind the back of the party interested, of which he may have no notice till after the next Sessions in fact have passed, when according to the con- struction contended for, he would be concluded, without any opportunity of having his complaint heard : but it cannot be intended that the Legislature meant any thing so illusory and unjust. The words of the Act are, " after such order made or "proceeding had." The word proceeding then must mean proceed- ing wider the order; for it has no reference to any other antece- dent matter. Now the road was not effectually obstructed till the 31st of Jul i/; and the appeal was made to the Michaelmas Sessions, which were the next in point of time : at most, there was only an ineffectual obstruction a few days before the July Sessions, which in no event would be sufficient to conclude the party aggrieved, as it does not appear to have been ten days previous, so as to enable her to give the notice required by the Act ; in which case the appeal must be made at the next following [ 219 ] Sessions. In Rcxv. The Justices of Staffordshire (a), the Court seemed to think that the question as to the time of appeal turned upon the time of receiving notice of the order. But it was not necessary to decide the point in that case, as at any rate the party applying for the mandamus to the Sessions to receive his appeal was not entitled to it, for want of ten days' previous notice of appeal. In other cases, the construction of similar words in Acts of Parliament has been holden to be the next possible Ses- sion after notice, as in case of orders of removal (/>). And there too, the time of appeal is reckoned from the execution, and not from the making of the order; though the words of the Act 13 & 14 Car. 2. c. 12. are general (c). So the time for ap- (. M. and R. v. Stanley, Caid. I?!. LAV, i;r,N< t:, 220 CASES IN HILARY TERM 1802. LA WHENCE, J. I think the mandamus ought not to go. ,, T,. Two different constructions of the statute have been contended The KING against * or : the one tnat tne a PP ea * must be to the Quarter sessions next The Justices after the order made, &c. : the other that it is given to the next Sessions after the parti/ is aggrieved: and it has been argued that the party is not aggrieved by the making of the order, but *f 221 ] by the execution of it. Now it cannot be said that the Act gives the appeal to the next Sessions after the party is aggrieved; for by the express words of it, " it shall be lawful for the party ag- " grieved by any such order or proceeding, or by the inclosure of " any highway, by virtue of any inquisition on any writ of ad " quod damnum, to appeal to the next Quarter Sessions after " such order made or proceeding had as aforesaid,'" &c. It is clear that this appeal was not made to the Sessions next after the or- der. Then the only question is, Whether it were made to the Sessions next after the proceeding: and what is meant by the term proceeding there used? It does not mean acts done under the order; but is used as descriptive of some legal procedure similar to order; "such order made or proceeding had as aforesaid," refers to the proceeding before the magistrates, stated in the pre- vious part of the Act. Then it is said that the party ought to have notice, otherwise the power of appeal given will be nugatory. But here there does appear to have been notice ; for the labour- ers employed by the surveyors expressly told Lady Owen's ma- nager what they were going to do. Whether Lady Owen, by virtue of such an order, will be precluded from the use of the road is another question, upon which it is unnecessary to say any thing at present. But upon the construction of the Act as to the time of appealing, I see t no other line to go by: for otherwise it is difficult to say to what period an appeal might be deferred; it might be long after the order was executed; for the party might not have notice for months or years afterwards. [ 222 ] LF. BLANC, J. Upon either of the constructions of the sta- tute contended for, the appellant came too late. For she nei- ther appealed to the Sessions next after the order made, nor to that next after notice had of it. For taking the notice to Lady Owen' 1 *, managing servant to be notice to her, it was an express notice of the order for stopping up the road in question. By the words of the statute, " the appeal is given to the Sessions " next after such order made or proceeding had." There could be no doubt as to the first part : but it is said that the word pro- ceeding IN THE FORTY-SECOND YEAR OF GEORGE III. 222 ceedi/ig means the stopping up of the road : but by attending to 1802. the place where that word is used, it will appear that it cannot mi 'v have that meaning ; for in the former clause it is used as syn- agaimt onymous to order; and in the very same clause it is used in the The Justice* same sense with order, and as distinct from the act of stopping: -n , , . -, r , n PEMBROKE- up the road: the words being " that it shall be lawful for any 9HIRE . person aggrieved by any such order or proceeding, or by the in- closure of any road," &c. No inference can be drawn from the construction put on other Acts of Parliament, giving the appeal in different words from the present. Rule discharged. I mi T- mi T r T\/T Wednesday, Ine KING against Ihe Inhabitants of MOOR CRITCHELL. p e i>. loth. N consequence of the opinion of the Court, expressed in this Jf r a e n m l v (1 a 'i r case in the last Term (a), the following special order was be confirmed mo <],>. at the Ses- sions, and [223] "Upon hearing counsel on both sides, it is ordered, both orders " that an original order of two justices for the removal of D. W ards\e- " Spearing, 8tc. from the parish of Donhead St. Mary, in the moved into " county of Wilts, to the parish of Moor Critchell, in the county certioiari on " of Dorset, and also an order of Sessions made in confirmation a case re- " thereof, be severally quashed for the insufficiency thereof: it this Court " not appearing on the face of the said orio-inal order, that the d a Pt'" ove * r the orders " said justices, at the time of making the same, were justices of tor want of " the peace for the said county of Wilts." inhere- " Gibbs now moved (/) " that the above rule might be al- moving ma- " tered, by omitting such part thereof as relates to quashing the pearTa-Tor/' " original order of the two justices, and that the same may only tlie tace ot iii /.<-. i - n / i ' the original " order that the order of Cessions made in confirmation ot the on- order; 'this " ginal order of the two justices be quashed; and that the justices tom . 1 ] vil l " below may be ordered to enter a continuance to the next Ses- the orders, " sions." The object of this rule was, he said, to enable the ap- ^j j^ 1 the pellant parish to apply to the Sessions for theexpence of main- matter back tenance, which by the stat. 9 Ceo. 1. c. 7. s. 9. could only be al- [0^^"' lowed by the Sessions on appeal, and an adjudication by them original or- der, tor the purpose of enabling them to give maintenance according to stat. 9 Gen. 1. c. 7. . 9. and at any rate they will not admit an application for amending their judgment for quashing both orders made in the Term subsequent to the judgment so pronounced. (n} Ante, C>6. (!>) Notice of the intended motion \vis previously given to the attorney for the parish of Donhead. 8 that 223 CASES IN HILARY TERM 1802. that the pauper was unduly removed : which judgment would ,, ^7~" now be obtained, as their former erroneous opinion had been cor- againft rected by the decision of this Court. And he referred to Rex The Inhabi- v. Yarpole (a), where an order of removal having been confirmed tants of j^ ^ ne S ess i or]S on appeal; and this Court having; afterwards MooftCaix- /. j / * i f ^ -i determined (on a question reserved tor their opinion) that so many of the justices below as concurred in that judgment were [ 224 ] disabled to vote on the particular question by reason of having an interest in one of the parishes concerned, so as to reduce the number to a minority in respect to those who voted for quashing the order ; yet this Court would not quash the original order, but referred the case back to the Sessions ; directing them to en- ter a continuance to the next Sessions in order that they might make the order for quashing, &c. which ought to have been made at first. Burrough and CasJierd shewed cause in the first instance ; and said, that the direction given in the case cited was not warranted by the general practice of the Crown-office, and had not been followed up by the directions of the Court in subsequent cases. That it was contrary to what was done in Road v. North Bradley (b) ; where this Court exercised a jurisdiction not only over the judgment of the Sessions, but also by quashing an antecedent order of justices, being properly quashable on appeal. They also referred to various subsequent cases (c) where the form of the judgment was at variance with Hex: v. Yarpole. And con- tended further, that the common practice was right on principle ; for when all the orders were brought before the Court by certio- rari, its jurisdiction attached upon them so as to deal with them as justice required. That at any rate this case was distinguish- able from H. v. Yarpole; for here the objection made went to the merits of the original order itself, to which the attention of the Court was called, as well as to the order of Sessions ; whereas there the objection went only to the order of Sessions. But [ 225 ] however incorrect the judgment of this Court had been, it was now too late to revise it upon motion; being a judgment of a term passed, and not now impeached on the ground of any clerical mistake, but for error in judgment. () 4 Term Prp. 71. (6) 1 Stra. 1168. (c) Rex. v. Birdbrooke, 4 Term Rip. 245. Rex. v. Hinckley, ib. 571. Rex v. Darlington, ib. 797. Ilex v. Bilton, be. 1 East, 13. and ib. 2S1>. 217. 373. 507. aud 2 East, 25 & 03. J GROSE. IN THE FORTY-SECOND YEAR OF GEORGE III. 225 GROSE, J. Both orders were regularly before the Court in 1802: the last Term. We then did what we thought right with them, ,j,, ~ and pronounced our judgment; and it is too much to apply agaitut now to rescind it. The Inhabi- Per Cur. Rule refused. tan( * of MOOR CUIT- CHELL. HARRISON aoaimt FRANCO. Thursday, Feb. nth. T TPOX a rule to shew cause why the proceedings should not All double *-^ be set aside for irregularity, the question was, whether the I?' 6 * 8 rn " st b f J * . . filed, and not pleas should have been filed, or whether it were sufficient to merely deli- have delivered them, as had been done. The pleas were the general issue, and plene administravit; neither of which sepa- attorney; rately need be filed (a), as was admitted ; but being pleaded to- |J s ! bo tw< gether, it was contended they ought to be filed like all other pleaded, w ich double pleas, which must be pleaded by leave of the Court, S }1 ^ only hav And of this opinion was The Court, after consulting the Master; been deliver- , ed. and made The Rule absolute; Laices in support of the rule. Marryat contra. (n) Vide 1 Tidd, 599. [ 226 ] The KING amnst Dr. W Y x x . Thursday, Feb. lltb. \ N indictment was foundattheSessionsagainstthedefendant The Court -**" for an aggravated misdemeanor, to which he had pleaded, will not quash a detective And now the record having been removed hither by certiorari, a indictment -on rule was obtained on the part of the prosecutor for quashing the \^ "prosecutor indictment for error apparent on the face of it; another more after plea perfect indictment being as was said prepared and intended to fore a^no'ther be preferred. g l1 mdjct- I i a i i IP f -i i c i i meat be fouBd. Jekijll on behalf or the defendant shewed cause against the rule; contending that after plea pleaded the Court would not quash an indictment; according to Rex v. /'///// (ti) : at least not unless another indictment were found, which mi^ht be substi- tuted in lieu of the other; R. v. IVebb (//): and tliis too passed by consent; which he said he was not authorized to give in this () 1 Leach, 1?. (b) .". Oiirr. 1468. and vide 2 Iluu-k. c. 2." ( . s. 140, &c. and 3 Hac. Abr. 57?, where all the cases are collected ; and Rex v. Stiullon, Dovgl. 2:59. VOL. II. IV case. 226 CASES IN HILARY TERM 1802. case, unless upon certain terms : (which were not acceded to by m . ~ the prosecutor). The KING *^ . ' . ., . , , . aaainst Dampier for the prosecution said, it would be nugatory to Dr. WYNN. proceed to trial on an indictment palpably defective, and when another was prepared and was intended to be preferred as soon as possible. That there was no occasion for the defendant's consent, if the Court saw sufficient reason for quashing it on the motion of the prosecutor: and no injury could ensue to the de- fendant, as the prosecutor could not be forced on to trial before the summer assizes. [ 227 ] The Court having consulted with the officers of the Crown- office, GROSE, J. said, that he was not aware that the consent of the defendant was necessary for quashing an indictment even after plea pleaded; but that the Court had laid down a rule to govern their discretion in such cases in general, in order to avoid col- lusion : and therefore they thought it more advisable to let this rule be enlarged, so as to give time to the prosecutor, if s.o advised, to prefer another indictment before they disposed of the present rule. Rule enlarged. HAMMONDS and Another, Executors of BLIGHT, against BAR- I-'eb. ijtli. CLAY and Others, Assignees of FENTHAM a Bankrupt. tfra notice r P HIi> > was an action of assmnpsit for money had and received to his factor ~ by the defendants for the use of the plaintiffs; to which the general issue was pleaded. At the trial at (luildhall before Lord Reinjon, C. J. a verdict was found for the plaintiffs with 255G/. 19*. (id. damages, subject to the opinion of this Court on the following case : In April 1799, the testator./. />//>/>/, who was then resident in Jamaica, and the owner of the ship ,/ti/iux (W/r, havino* on board a general cargo on freight for London, addressed the said ship to Pent ham his correspondent in London; and wrote him a letter dated [ 2'2S ] t he I7th of that month to this effect: "I am dfrTcMhe cap- " 11OW 1( ^ (lil ^ the ship./,,////* Cffjuir tor London, addressed to you, tain of the ship to follow his former orders; who thereupon deliver (he ship into the possession of the factor, who sells the same: held that the factor has a lien upon the proceeds as well for the amonnt of money disbursed by him for the necessary use of the ship on its arrival, and for the acceptances by him actually paid, as for the amount of his outstanding acceptances not theij due. " and of a ship to him for the purpose of sale, and in consequence draw* bills accepts ; and then the principal dies ; and his IN THE FORTY-SECOND YEAR or GEORGE III. 228 "and I requested you to effect insurance on freight of the 1802. " ship 4000/. sterling; say 4000/. sterling- on ship Julius Casar, u ~^~~ " James Adams, master, from Black River; warranted to sail with ayaimt " convoy. I have also to request you to effect a further insurance BARCLAY. "on 50 tons of logwood." This letter was received on the 30th of Jul i/ following. On the 9th of Mai/ in the same year Blight wrote a second letter to Fcniham, which arrived in August following; in which he says: "I hope my letters " arrived in time for you to effect the insurance on the freight " of the ship Julius Ctesar, as I mean to draw on you for 20UO/. " sterling in part. You have my instructions to sell this vessel " as soon after her arrival as possible. I think she will on in- " spection command 5500/. sterling, ships being much in de- "mand: but at all events sell her." On the 1st of Men/ the ship sailed from her port of loading for her place of rendezvous at Jamaica to join convoy- And on the second of June Blight died; intelligence of which event having reached Captain Adams before the ship's departure from the place of rendezvous, he applied to the plaintiffs as executors, both of whom then re- sided in Jamaica, for instructions how to proceed ; who there- upon directed Captain Adams to follow the instructions he had before received from the testator. In consequence of the above two letters from Blight, i'cntliam effected an insurance on the O freight of the Julius Ctesar, the premiums of which amounted to 982/. lO.s.: but a return of premium was afterwards made to the amount of- 5701. And he also accepted three bills of exchange drawn upon him by Blight, two of which bills he duly paid be- fore his bankruptcy to the amount of O'oO/. ; and the remaining [ 229 ] bill for 1000/. is now outstanding against him. The said in- surance was effected, and the acceptances were given, by I'en- tiiam before the ship's arrival in Ting/and, and before he had re- ceived any intimation of the death of Blight. On the .'3()th of September the Julius Ctesar arrived at London, and (he captain, in consequence of the instructions lie had previously received, immediately put her under the charge of Faitliam, and delivered over the ship's register to him : after \\hich the latter disbursed a further sum for seamen's wages and the. necessary use of the ship to the amount of-490/. 3s. (v/. On the ] 4th and '21st of July in that year the plaintiffs wrot^ to I'entliam from Jamaica, which letters were respectively received by him on the 3d and 16th of Sepfemher following: in the lir-4 of which, after c~ tr , ecutors, they say, "The Julius C&sar, after incurring a very against "extraordinary expence in her outfit, Sec. sailed with the last BARCLAY, "fleet:" and in the second letter they say, "We observe you "have effected insurance to the amount of 4000/. sterling on "freight, and 2000/. on logwood, per ship Julius Ctesar. As "the wood has not been shipped, you will of course have the "policy cancelled, and the necessary returns for short interest "made. Captain Adams's account is likewise unsettled; but "as Mr. Hammonds, who has copies of his several accounts, "will be in London about the time you receive this, you will be "able to settle with him." Soon after the arrival of the ship, Fentham gave directions to Messrs. Hopkins and Gray, ship- brokers in London, to sell the ship and collect the freight. Shortly after which Fentham became bankrupt, and a commis- sion issued against him, under which the defendants were chosen o [ 230 ] assignees. Since which time Messrs. Hopkins and Gray have sold the ship and collected the freight due upon the said voyage, and have accounted with the defendants, and paid over to them the sum of 25561. 19s. 6d., part of the net proceeds thereof. The question for the consideration of the Court was, whether the defendants as assignees of Fentham have any, and what lien upon the ship, or freight, or the proceeds thereof; so as to be entitled to set off in this action the whole or any part of the dis- bursements or acceptances. Dickens for the plaintiffs admitted that the defendants were entitled to set off 490/. 3s. 6d. disbursed by the bankrupt for the seamen's wages, and the necessary use of the ship after her ar- rival at London, But as to the remaining sums, he contended that the defendants had no lien on the proceeds of the ship -. 1st, because no property in the ship was vested in Fenlham by the testator, but only an authority which was countermanded by his death. 2ndly, Because in no case where an action is brought by executors in their own name, can a defendant set off a debt due to him from the testator. [This last argument however was afterwards abandoned; the Court thinkino- the o question of set-off strictly did not arise in this case; but only whether in this form of action founded in equity and conscience the plaintiffs were entitled to recover: and which was in truth the question agreed to be tried between the parties.] As to the principal question, though if a factor have advanced money for his IN THE FORTY-SECOND YEAH OF GEORGE III. 23Q ins principal on the faith of an intended deposit, he may set off 1802, his demand or have a lien for it, if the deposit he made; yet he u can have neither, unless the goods come into his hands by the against delivery or on account of the principal. And in no case can BARCLAY. there be a lien where the property has changed hands in the mean time before it came into the possession of such factor, [ 231 ] Suppose, after the factor had advanced money on the faith of such intended consignment, the owner had sold the ship to a bonajide purchaser, (e. g. the present plaintiffs,) by whom it was afterwards put into the possession of the same factor, he could have no lien in respect of his former advance to the original owner. His only remedy in such case would be by action; as was said by Lord C. B. Eyre in delivering the opinion of the Judges upon the case of Kinloch v. Craig (a) in the House of Lords. In that case, as in the present, the factors had accepted bills drawn upon them by their principals, on the faith of in-r tended consignments to be made to them; but before those consignments arrived they had stopped payment, and afterwards became bankrupts : and it was determined, that as there was no actual delivery of the goods to them before, there could be no hen. A lien can only attach while the property remains in (he original debtor. Here Bfight did no act in his lifetime to vest the property in Fentham: on Blight's death there- fore it vested by operation of law in the plaintiffs his ex-? ecutors; and this before it got into the possession of Fentham, who had nothing but a bare authority. If notwithstanding i Blight's death Fentham had put up the ship to sale, or the cap-: tain had delivered it to him without the authority of the plain- tiffs, it would in either case have been a wrongful act. On the contrary, the captain having received the instructions of the plaintiff's, and Fentham having accepted the ship in consequence, he thereby became the agent of those who were the leo-al owners, and accountable to them. [He also su chested another fact, which was not stated in the case, but was not now disputed, namely, that after the ship got into T'enlham'* hands the plain- [ 23'2 } tiffs countermanded the sale.] At any rate there is no colour for any lienfor the amount of the acceptance outstanding; which is never considered as payment, and probably in the event may (a) o Tii'in Kfp. 783 I. 232 CASES IN HILARY TERM 1802. never be paid. In Kinloch v. Craig (a), Mr. Justice Ashhurst, in delivering; the opinion of the Court observed, that there was a HAMMONDS \ . against great difference in this respect between pay merit and a liability to BARCLAY, pay. In Lickbarrow v. Mason (b) acceptances were given by the consignee; and yet it was holden that the consignor might stop the goods in transitu on the insolvency of the former. Warren contra said, that the whole of the plaintiffs argu- ment turned upon a fallacy, in assuming that they claimed in a different right from the testator; whereas they took it subject to every charge equitable and legal with which the testator him- self held it. Therefore if he had given any charge irrevocable upon it, they took it accordingly; if revocable, they might have revoked it; but not having done so, the same lien attached upon it when it got into Fentham's possession as would have been the case had Blight lived. He might have revoked the consignment us well as his executors, and then Fen t ham could only have had his remedy by action against him : the executors could have done the same, subject to the like consequence; but they did not revoke it, but confirmed the act and authority of their tes- tator, as they were bound in conscience to do. Therefore the ship came into Fentham's hands with all the consequences of the original consignment, and not as from a new purchaser. Fcn- tliam had something more than a bare authority from Blight; [ 233 ] he had an authority coupled with a contract. He accepted the bills upon an engagement that he should have the ship to sell, out of which he was to be repaid. A bare authority is such as may be revoked without any consequence.: but Blight could not have revoked the consignment without subjecting himself to an action for a breach of contract; he was under an obligation to fulfil his contract, and that obligation attached upon his exe- cutors. In Kinloch v. Craig the a, 60. sup- IN THE FORTY-SECOND YEAR OF GEORGE III. 233 supposed, that the plaintiffs stand in the same situation as if 1802. they were common purchasers of the vessel; for the titles of vendor and vendee are opposite and adverse; but that of an executor is continuing and affirmative of the title of his testator. BARCLAY. If a vendee of the ship had rescinded such a contract made by the vendor to the factor.no action would have lain against him; O f but it is otherwise in the case of an executor. But though the relation between Fcntham and Blight were at an end, yet the former would retain his lien as agent of the executors, who au- thorized the captain to execute the orders he had before received from the testator; which implies an authority to Fentham to sell and retain for his original lien. Then as to the acceptance for 1000/. still unpaid, for which the lien is particularly objected to; what was said by Ashhurst, J. was beside the principal point in judgment: and besides it was said with reference to the pri- r 034 i niary question of stopping in transitu; as not precluding that right in the consignor: but it does not follow from thence, that when the transitus is ended and the consignee has gotpossession of the goods, the lien does not attach : and indeed it was ex- pressly so considered in the same case. And that opinion is founded' in justice. The factor is induced to give his accept- ance, and make himself liable for the debt of the principal, upon the faith of the consignment, by which the condition of the factor is materially altered; and it is contrary to justice and equity to withdraw the consignment without putting the factor in the same situation as before. It is sufficient in all cases to establish a lien that the goods should have come into the pos- session of the consignee, and that lie should have made himself liable to answer by his acceptance for the benefit of the con- signor. Drinkwaler v, (ioodich/, Coicp. '251. Dickens in reply said, that nothing could be collected from the facts of the case to shew that the plaintiffs intended so to ra- tify the testator's acts as that the bankrupt should have a lien for his original demand; for they did not even know what had been done till sometime after the orders to the captain were given; and they cannot be taken to have ratified the original contract by implication; as they might thereby be guilty of a devustavit. in preferring a simple contract debt to one of a higher nature; which would not be presumed against them. That in l\inlock v. Craig a constructive possession, as by paying part of the freight, was deemed not sufficient to give a lien; but that at all events 235 CASES IN HILARY TERM 1 802. events no possession could so operate unless it came to the party by the authority of the principal. That in Drinkwater v. Good- auainst w ' n > tne DOn< ^ m which the factor had joined as a security for BARCLAY, his principal, and for which he claimed to have a lien, was paid by him before the action brought: but here the acceptance for the bill of 10007. is still unsatisfied. Curia advisare vult. GROSE, J. now delivered the opinion of the Court. In this case the plaintiffs claim, not in form but in substance, as ex- ecutors of James Blight, a sum of money 25567. 19s. 6d., the produce from the sale of the ship Julius Casar received by the defendants as assignees of Pent ham a bankrupt: and the ques- tion is, Whether, as such assignees, they have any, and what lien upon the ship, or freight, or proceeds thereof; so as to be able to set off what has been paid by Feulham in the disburse- ments and acceptances stated in the case? A lien is a right in one man to retain that which is in his possession belonging to another, till certain demands of him the person in possession are satisfied. That the defendants have a right to retain 490/. part of the sum insisted upon as due to the defendant, is admit- ted. That they have no right to retain 312/. 10s., the balance of premiums paid upon the insurance account, nor the 650/. upon the bankrupt's acceptances, nor that which the defendants are liable to pay on the acceptance of the bill for 10007. , is insisted : because whatever authority the testator gave was countermand- ed by his death. The evident consideration upon which the pre- miums for insurance and the amount of the two bills were paid, and the third accepted, was the consignment of the ship and cargo: and it does not seem very consistent with justice to sav, that after the consignee had advanced the premiums, and paid bills on the credit of the consignment, the death of the consio-n- [ 236 ] or should operate as a revocation, so as to prevent the bankrupt and liis assignees having the fruits of that which was the foun- dation and consideration upon which he disbursed his money. But as between the plaintiffs, his executors, and the bankrupt, (and his assignees stand in his shoes,) there is another clear de- cisive answer; which is, that they affirmed the orders of theic testator, and directed the captain to follow the instructions be- fore received from him, which were to effect insurance on freight O of the ship 4000/. sterling, as lie meant to draw on him for 20007. in part; to sell the vessel as soon after her arrival as possible. IN THE FORTY-SECOND YEAR OF GEORGE III. 236 possible ; at all events to sell her. Then the plaintiffs write to 1802. the bankrupt affirming his acts ; ordering him to get a return of T HAMMOND* premium on account or logwood not shipped ; and to settle Cap- aqatnst tain Adams's, account. By their authority then he was in pos- BARCLAY. session of the ship, and is entitled to retain out of the proceeds whatever he has expended by the testator's or their order ; they standing in the shoes of the testator, and representing him, as the defendants represent the bankrupt. Upon these grounds we are of opinion that there is no foundation for the above ob- jection; but that the bankrupt having been in possession of the ship, and having sold it, and received the proceeds both by the authority of the testator and the plaintiffs his executors ; and that the money being paid and the bills accepted upon the credit of the ship and cargo consigned to him; his assignees, the de- fendants, have a hen upon such proceeds for the several sums of 312/. 10s. for premiums advanced ; 650/. money paid on two bills accepted; and 490/. sailors' wages; and for such sum as they shall be compelled to pay upon the third acceptance for 1000/. ; and that the case of Kinloch v. Craig, the authority of which was relied on to prove that the bankrupt had no lien for r the acceptance which he has not paid, does not rule this case. I For there Sandiman and Co. had never possession of the pro- perty on which they claimed a lien, as fentham had in this case : and that case only determined that a person making him- self liable by his acceptances did not thereby prevent the con- ?io-nor's riiiht of stopping in transitu, in case of his insolvency : O II / and it did not decide, that when a man had in his possession the effects, on the credit of which he had made acceptances, that he might not retain those effects until In: was indemnified against the liability to which lie had subjected himself. Postea to the Defendants (a}. () Vide Coiilund v. Stein, 8 Term Jtep. 199, where the principal was a bankrupt at the time of the consignment, the f'iirtor who lia'l accepted, and, puid bills drawn o:> him by the principal on the faith of such consignment, p ? as holden accountable to the assignees of the principal for the value of it. Dot, 237 CASES IN HILARY TERM 1802. Friday, Feb. 12th. A landlord gave a notice to quit differ- ent parts of a farm at different times, which the tenant neg- lected to do in part, in consequence of which the landlord commenced an ejectment; and before the last period mentioned in the notice was expired, the landlord, fearing that tlie witness by whom lie was to prove the no- tice, would die, gave another notice to quit at the respective times in the following year, but con- tinued to pro- ceed with his ejectment ; liekl the se- cond notice was no waver of the first. *[ 238 J DOE, on the Demise of WILLIAMS, against HUMPHREYS. was an ejectment, tried at the last Summer assizes for Shrewsbury before Lawrence, J. to recover possession of a farm in the parish of Natmerch in the county of Flint, which the defendant held as tenant from year to year to the lessor of the plaintiff. The farm consisted of lands of different descrip^ tions to be quitted at different times ; the arable on the 29th of September 1800; the pasture and meadow on the 30th of No- vernier; the dwelling-house, &c. on the 1st of May 1801. The lessor, in order to determine the * defendant's interest in the premises in question, served him on the 21st of March 1800 with a notice to quit the farm at the several times above stated ; and the defendant not having quitted the arable on the 29th of September, nor the meadow and pasture on the 30th of November, the lessor brought his ejectment in the Court of Great Sessions for the county of Flint against the defendant; pending which ejectment, he delivered to the defendant another notice (a), dated the 20th of March 1801, to quit the mes- suage and dwelling-house called, Sec. which he then held under him, together with the lands, See. thereunto belonging, to wit, the arable on the 29th of September 1801, the meadow and pas- ture on the 30th of November, the dwelling-house, &c. on the 1st of Mai/ 1802. It was objected at the trial that the second notice was a waver of the first, being- a recognition of the * o O tenancy still subsisting. But the objection was over-ruled, and a verdict taken for the lessor of the plaintiff, with leave to the defendant to move to enter a nonsuit; or if the lessor were only entitled to recover part, to enter a verdict for such part. A rule nisi for that purpose was accordingly obtained in Michaelmas. Term last ; against which, in the same Term, (fibbs, Mauley, and Wynn, shewed cause, contending that the second notice was no waver of the first; for it was given after the ejectment commenced, and pending the prosecution of it, which was not abandoned; which rebutted the presumption of () The second notice \vas copied verbatim from the first, with the alter- ation only of the dates; and the reason suggested at the bar why it was given was, because the person who was to prove the service of the first notice was dangerously ill, and it was apprehended that the lessor would not be able to. prove the notice. any IN THE FORTY-SECOND YEAR OF GEORGE III. 238 any intention in the lessor to wave the first notice. The only 1802. reason for * giving it was in case the lessor should not be able ^ , from circumstances to avail himself of the first notice. That WILLIAMS every contract for letting must be mutual; but if the defendant 'against had an option to consider the second notice as a waver, or not, HUMPHREYS *r OQQ "1 without the concurrence of the lessor, there would be no mutu- ality. That at the time it was given the defendant had become a trespasser, at least as to part of the lands ; and therefore it could not reinstate him as tenant,, without a new agreement between the parties. And they relied on Messenger v. Armstrong (a), where after a notice at the expiration of the lease, a second notice, delivered to the tenant after the expiration of the first notice, to quit on a subsequent day, or to pay double rent, was holden to be no waver of the first. Leicester and dead contra insisted that the second notice was waved by the first, inasmuch as it was absurd and nuga- tory to give such second notice if the landlord meant to abide by the first; and also because he therein expressly recognized the defendant to be his tenant; for he o*ave him notice on the f O 20th of March 1801 to quit the premises which he THEN held under him. That there was mutuality in this case; for the tenant assented that the first notice should be waved by continu- ing to hold on. That if the landlord did not mean it as a waver, he should have said so, as was said in effect in Messen- ger v. Armstrong, by claiming double rent of the tenant if he did not quit ; and there too the double rent was already incurred. That at any rate it was a question for the jury to say whether it w T ere intended as a waver or not, according to Doc d. Cheney v. Batten (It). Curia advisare vulL GROSE, J. now delivered the opinion of the Court. (After [ 240 } stating the facts as before set forth.) The defendant insists that the second notice is a waver of the first ; and that lie \vas not bound to quit at the times mentioned in it. In the course of the argument it, was admitted that if the plaint ilf had not intended that the second notice should operate as a waver of the first, he mi^ht have so explained his intention, by adding that the purpose of the second notice was to enable him to re- cover the premises at a subsequent assizes, if by any accident he () 1 Term Rep. 53. ('->) Cowy. iMJ. should 240 CASES IN HILARY TERM 1802. ^ " DoEd. WILLIAMS against [241 ] Feb. 1 2th. A rule to Tested on the day of the sheriff of cepi corpus, afterwards in the vacation, I* irregular. should fail at those then ensuing. And under the circumstances of this case we are of opinion that the defendant must have ,,-/- so understood this notice ; tor it was necessary to give a notice previous to the then next assizes, to enable the plaintiff to deter- mme the defendant's interest on the 29th of September follow^ ins:, if he had not succeeded at the next assizes ; which circum- O ' stance furnished an obvious reason for giving the second notice. differing from an intent to wave the first : and it was not possi- ble for the defendant to suppose the plaintiff intended to wave the first notice, when he knew the plaintiff was, on the founda- tion of that very notice, proceeding by ejectment to turn him out of the farm. Lord Kent/on (a) agrees with us in opinion that the plaintiff is entitled to recover; and the rule must be discharged. (a) His Lordship was in Court when the case was argued. The KING against The Sheriff of LONDON. ^I^HIS came on upon a rule for setting aside an attachment against the sheriff for not bringing in the body, in a cause of Duffy v. Brooke and others. On the 24th of November 1801, a s P ec i & l capias issued, returnable in 15 days of St. Martin; to which the defendants gave a bail bond ; the writ was returnable tne 25th. On the 26th the rule was served to return the writ; on the 27th the sheriff returned cepi corpus. On the 2d of 7 i / JJeccmbcr bail above was put in, which was excepted to, and no- tice thereof served on the 7th; and on the 9th a notice of justi- fication was served for the first day of Hilary Term. On the 7th of January 1802, the rule was served to bring in the body ; which rule bore teste on the 27th of November preceding, being the day on which the sheriff returned cepi corpus. On the 23d January the bail were rejected ; and notice of adding and justi- f'vino- was served for the 26th. On the 25th an attachment was * O granted against the sheriff; and the rule for the attachment served on the defendant's attornies on the 26th ; and the at- tachment afterwards issued ; and on the same day bail were add- ed, but did not attend to justify. On the 27th bail justified, but no proceedings were had to set aside the attachment till the 1st of l''('bri(ii)->/. Yatcs shewed cause against the rule ; and as to the principal objection, that the rule to brine; in the body bore teste on the 27th iN THE FORTY-SECOND YEAR or GEOTIGE III. OU f?7th of November, the same day the return of cepi corpus was 1802. made ; he observed that the rule, though tested on that day, did ^ ^~ not in fact * issue till the 7th of January following, and in fact af- against ter the return of cepi corpus ; and that it was competent to the TheSheriflfof party to shew the true time of its issuing, as in other cases, in order ^* ^ N i to forward the justice of the case ; and for the same purpose the fraction of a day may be allowed. And he cited Steward v. Smith (a), where it was holden that a scire facias might be sued out against the bail on the day on which the Ca. Sa. was return- able, as the Court would intend that it issued after the sheriffs return to the writ against the principal ^ and also Shivers v. I>rooke (b), where the same principle was recognized. Lawes, contra, contended, that the rule to bring in the body was irregular, being tested not only before the day given for the return of the writ, the rule to return the writ being served on the 26th of November, which would not expire (Sunday inter- vening) before the 2d of December, of which the sheriff might avail himself, though he in fact returned the writ before ; but the rule to bring in the body was also irregular, because it bore ieste on the 27th November, the day on which the return of cepi corpus was in fact made. Now according to Hutching v. llird (c), the sheriff ought not to be ruled to bring in the body, till the day after the expiration of the rule to return the writ. And in R. v. The Sheriff of Cornwall (ch, it was holden that a rule calling on the sheriff to return a writ, being tested in the Term subsequent, though issued in the vacation, was irregu- lar; and an attachment grounded thereon set aside. Cur. adv. vult. GROSE, J. delivered the opinion of the Court. The question is, Whether the rule to bring in the body, be- ing served in vacation, but appearing on the face of it to be made before the return, by the sheriff, of cepi corpus, be regular? And we are of opinion that, for the sake of congruity upon the face of the proceedings, the rule to bring in the body, which from its nature ought not to be made till after the return of ce- pi corpus, is irregular, if it appear upon the face of it to have been made before such return. Therefore the rule must be made absolute. (.r) 2 Stra. 866. and 2 Ld. Rnym. 1567. (<'-) 8 Term Rep, . -17?. (d) 1 Term 7?r;>. 552. BLACKS i r: 1 243 CASES IN HILARY TERM 1802. Friday, Feb. I2tli. A defendant cannot be taken in exe- cution twice on the same judgment, though he vere dis- charged the first time by the plaintiff's consent upon an express undertaking that he should l>e liable to be taken in execution again, if he failed to com. ply with the terms agreed on. [ 244 ] BLACKBURN against STUPART. f I^HE defendant was taken in execution at the suit of the '- plaintiff, on the 31st of March 1798, and remained in cus- tody of the sheriff's officer till the 4th of April, when he was discharged on an express undertaking that he should pay half the debt and costs then, and the other half at a future day, and that the judgment should stand as a security for the payment in three months ; and if the money w r ere not paid in that time, the de- fendant agreed that the judgment should be enforced by execu- tion against his person or goods for the amount, and for the costs incident thereto. The defendant having made default, the plaintiff, long after the three months were expired, arrested the defendant for the remainder of the debt and the additional costs, which the defendant paid in order to procure his discharge : and then moved on a former day to set aside the execution, and that the money in the sheriff's hands should be refunded : and, a rule nisi having been granted; Park now shewed cause against the rule, and observed, that though it were true in general that a person could not be taken in execution twice on the same judgment; yet a defendant might wave that principle by an express agreement; and that this distinguished the present case from that of Tanner v. Hague (or), where there was no such express agreement. Erskine and Espinasxe, contra, relied on Tanner v. and Thompson v. ttristoiu (b), as in point. And of that opinion were the Court : and GROSE, J. said, that it would be very dangerous to permit the law to be unsettled in this respect ; which is, that a person can- not be taken in execution twice on the same judgment, whether he had so agreed or not : and therefore though the defendant's conduct had been very scandalous, yet the rule must be made absolute. Hagi () 7 Term Rep. 420. (I>) Qlo. Barnes, 205. The KING IN THE FORTY-SECOND YEAH OF GEORGE III. 244 1802. The KING against The Inhabitants of GREAT MARLOW. Friday, Feb. mil. A Rule was granted in the lastTerm, calling upon the prosecu- po *ntnient o"f * tor to shew cause why a certain warrant of appointment of * overseers for James Field to be one of the overseers of the poor of the parish of the^'a'^ Great Marlow, in the county of Backs, should not be quashed, tratesatone ,. r T , -. . meeting, they upon notice of [245] the rule to be given to the said J. Field, arefunctiof- This was obtained on reading the said warrant of appointment ficio; an(l " ~ oilier magis- returned by certioran into this court, and also upon the affida- tratescan af- vits of 1L Goldsmith and others ; which stated that Sir W. C. !"* n a [|]j' and the Rev. T. P. two Justices of the Peace for the said claim of one county, met at Great Marlow on the 18th of April last, and did g^pSmed" then and there, by warrant under their hands and seals, appoint to be exr.mpt- J. Webb, J. Jo/uisoi/, J. Gosling, and R. J. O.ilade, to be over- another in bis seers of the poor of the said parish. That on the 2d of Mai/ last P Iace ; but the , . ... party must ap- anotner instrument, purporting to be a warrant appointing ./. peal to the Field overseer of the said parish, was signed bv T. W. Esq. ano- Sc ^i' is to E et * Ins discharge. ther magistrate ot the county, and on the 2oth ot the same Ami this oh- month, was si;ned by the said T. P. (one of the magistrates J ocll " to the .~ second ap- first mentioned), who was not present when the said T. W. pointment signed the same ; nor was the said T. i\. present when the said "J^.j^,', 1 '^,, T. P. signed it. Court on atfi- In answer to the rule it was sworn that the two last -mentioned t j*e removal nf magistrates met at Great Marlow on the 2d of Mai/, when J. tiie appoint- ,, , ,, . , , ' ,. ,1 ment hither hv Gosling, one ot the overseers tirst appointed, came before them, ccrt i,,rari, who claimino- to be exempted from serving parish offices bv virtue of "'" 'liereupon " . . '' ,, quash the a certain certificate of an appointment (annexed to the affidavit), s .imr. dated 6th March 1795, whereby it appeared that he had been JJ'^J, f 'JJJ. sworn one of the yeomen in ordinary of his Majesty's body gistrates mak- guard. That the two magistrates, conceiving it ri^htto exempt ''^p^JDt" him, did accordingly do so; and in his stead did proceed to ap- must be toge- point the said J. Field, a substantial householder of tl>e parish, tjme tlle actij who was agreed by the other overseers and several other pa- done. rishioners present at the meeting to be a proper person. That the appointment was accordingly directed to be made out, and the said T. W. signed the same at the time, conceiving that it was also signed at the same time by the other magistrate: and [ i24' before at the Sittings before I.e 'Blanc, J. when a be abroa.l, verdict was taken for the plaintiff, with leave for the defendant out of ilie -tii juris. iiction of to move io set it aside and enter a nonsuit. And such motion the Conn, beiiv now made accordingly the learned Jud2,"e reported the an 1 nut . 3 amenable to evidence to be this : 1 here were two witnesses io the bond, one is process (- w j )om %vas dead ; the oilier was 'Richard Prince, son of the at the time ... , . of the tna!, plaintiff, who left this country for America in October last, before hil" baud * * ne a( - t ' on was brought. Two letters had been received from wninii; is him since, one dated at ~\eu'-\ ork, the other at Baltimore, in tbdn'-b it do -A/wrica. It further appeared, that previous to his departure he not appeal \\as ;i single man living with his father as part of his family, on \vheilitr be i , A . be domiciled w ose 'account he went to America to transact some business. or settled ]} u i ;1 1(: \\ itn(;ss who proved this at the trial, who was a servant abroad. . . . . _., .. ,. , in theplaintin s family, did not know whether the son were ex- pected to return to this country or not: he was not acquainted with the son's intentions. Under these circumstances the evi- dence of the hand-writing of both the witnesses was admitted, on the IN THE FORTY-SECOND YEAR OF GEORGE III. 250 the ground that the subscribing witness, who was still living, was 1802. out of the reach of the process of the Court. ^ f R I N C I Scarlett, in support of the rule prayed for, contended that against such evidence was not admissible without proof that the sub- BLACKBURH scribing witness was domiciled, or settled abroad. The admis- sion of such evidence in any case where the subscribing witness is alive is a modern practice, and a relaxation of the old rule, which required the production of the witness himself to whom [ 251 ] the parties had mutually agreed to refer for such proof. And there is good reason for such strictness, as material circum- stances may arise out of his examination viva voce, which cannot otherwise be shewn. In all the cases in which evidence of the hand-writing has hitherto been received, the witness was either proved to be dead, or to have become incompetent, or to be actually domiciled, or settled abroad, and therefore not likely to return within reach of the process of the Court; but in no case has such secondary evidence been admitted where the ab- sence was only temporary, which is the fair presumption arising from the evidence given in this case. [Le Jl/auc, J. That fact was left quite indifferent upon the evidence.] The onus pro- bandi, that the subscribing witness was domiciled abroad, lay upon the plaintiff before the secondary evidence could be re- ceived. By the stat. 26 Geo. 3. c. 57. ,s. 38. for facilitating the proof of deeds executed in India in the courts of Great- Bri- tain, and vice versa, the 'Legislature have expressly required that the party offering the deed in evidence shall prove that the sub- scribing witness, whose hand-writing is to be proved, is resident in the other country, before such proof is admitted. In Barnc* v. Trompowsky (a}, Lord Keiti/on confined the admission of this secondary evidence to cases where the subscribing witness ;<- sides abroad, &c. and said there was neither necessity nor con- venience in relaxing the rule further than had been already done. In ir); and in another case (c) before Lord Ke/ii/on, the witness, whose hand-writing was al- [ ~-J- lowed to be: proved, was domiciled in France. And there is good reason for not relaxing further the strict rule ; as otherwise advantage may be taken of the temporary absence of a sub- scribing witness to sue upon instruments winch would be shewn to be void and illegal if the witness were examined in person. (a) 7 Term Rep. Ciio. (6) 1 #<>,s. ff Pull. 300. (c) Pcitke'.i -V. /'. 90. 252 CASES IN HILARY TERM. 1802. Mingay and Lawes shewed cause against the rule in the first ~ instance; and relied on the rule laid down by I>u//er, J. in Adam aqainst v - K err > that where the subscribing witness was beyond the reach BLACKBURN of the process of the Court at the time of the trial, the evidence of his hand-writing should be admitted. The fact of his in- tending to return to this country or not (which can only be known to himself), cannot furnish any rule to go by, and must often be matter impossible for the plaintiff to give evidence of. But the presumption in the present case is, that he will not return. The Court refused the rule; considering that as the witness was out of the jurisdiction of the Court, so as not to be amen- able to its process, the secondary evidence was properly admitted. END OF HILARY TEKM. CASES 253 ARGUED AND DETERMINED IN THE COURT OF KING'S BENCH, IN Easter Term, In the Forty-second Year of the Reign of GEORCE III. TN the course of the last vacation the Right Honourable ^ Lloyd Lord Kent/on, Lord Chief Justice of this Court, died at Bath, having presided in the Court since June, 1788. He was succeeded by Sir Edward Laic, Knight, His Majesty's Attorney-General, who was created a Peer of the United Kingdom of (treat Bri- tain and Ireland, by the title of Lord Ellenborough, Baron of Ellenborough, in the County of Cumberland, and was after- wards sworn of His Majesty's Most Honourable Privy Coun- cil. His Lordship having been before called to the degree of Serjeant at Law (a), and sworn into his office before the Lord High Chancellor on the 12th of April, took his seat on the Bench on the first day of this Term. The motto on his rings 0.54 ] was, " Posilis mitescunt seen la bellis." The Honourable Spencer Perceval, Solicitor-General to his Majesty, succeeded to the office of Attorney-General. And Thomas Manners Sutt'on, Esq. Chief Justice of the \<>rth Wales Circuit, and Solicitor-General to his Royal Highness () Thestat. :>9 Gco. 3. c. 113. enables his Majo.sty to issue a writ for this pur- pose in vacation. Vol., II. P the 254 CASES IN EASTER TERM 1802. the Prince of Wales, was appointed Solicitor-General to his Majesty. The Honourable Thomas Erskine was appointed Chancellor to his Roval Highness the Prince of Hales; beino; the first ap- / pointment to that office which had been made by his present Royal Highness. William Adam, Esq. one of his Majesty's Counsel, learned in the Law, succeeded Thomas Manners Stitton, Esq. as Soli- citor-General to his Royal Highness. SAUNDERS against SAUNDERS and Another. May 7th. ^ trover for certain goods, tried before Le Blanc, J. at the last assizes at Launceston, it appeared that the goods, con- "Where the commander Kin"*sanjied sisting principally of spirituous liquors in ankers, were on vessels seized board a vessel which was met with at sea (14 leagues off shore) cargo at sea, anc ^ detained by the defendants, the commander and master of and brought one o f hi s Majesty's hired armed vessels, and afterwards them into the . ,, . . . . next port, on brought into the port ot roicet/, on suspicion or being intended suspicion of j. Q bg smilo -o-led. The original seizure was on the 28th of sin i * i? "liner * and after pro- March, 1800, and a claim was afterwards entered in the Court of Exchequer for the vessel and cargo ; in which, after some proceedings had, a writ of delivery was granted at the prayer of the owner (the present* plaintiff) which was executed on the 5th of December, 1800. The present action was brought, in order to recover the value of certain part of the goods alleged to be wanting of the whole quantity seized by the defendants : and the declaration being entitled of ILilan/ Term 1801, it was objected at the trial on the part of the defendants, that the J l action commenced too late, as by the st. 28 (ieo. 3. <. 37. .. 23. ou "" nt to nave been brought within three months from the And b stat. 26 (ieo. 3. c. 40, CCSR in the Exchequer, the owner obtained an order for re- delivery, under which lie obtained only part of the goods from the de- fendant, the owner cannot maintain trover lor the remainder, if the action were brought after time months from the original seizure, though within three months from the order for the re-delivery. *[ 255 ] (a) That sect, enacts, " That if any action or suit shall be brought or commenced against any " person or persons for tiny thln-j; by him or them done in pursuance of this or any other Act or *' Acts of Parliament now in force, or hereafter to be made, relating to his Majesty's revenues of " Customs and Excise, or either of them, such action or suit shall be commenced within three " months next after the matter or thing done," \~c. c 97. time of the original seizure (a). IN THE FORTY-SECOND YEAR or GEORGE III. 256 s. 27, the commanders of any of his Majesty's ships of war, or 1802. any commissioned, warrant, or petty officer specially authorized ,-, , J . . , it SAUXDERS by them, may seize any goods or vessels whatever, subject to against forfeiture by that or any other Act, for any offence against the SAUNDERS revenue, 8cc. without having any deputation or commission an( * from the commissioners of the customs or excise for that pur- pose, provided they bring the seizure to the nearest custom- house, Sec. And the case of Godin v. Ferris (a} was relied on, to shew that the action must be commenced within three months after the actual seizure, notwithstanding the pendency of pro- cess in the Exchequer. The plaintiff was accordingly nonsuited. And now, .Lens, Serjt. moved to set aside the nonsuit, on two grounds : 1. That although the words of the 23d section of the st. 28 [ 256 ] Geo. 3. c. 37, were general, as extending to " a/it/ person," &c. yet they must be confined to persons having some colour of authority from some court or officers of revenue to do the act complained of; which did not plainly appear here. 2. That this was distinguishable from the case of Godin v. Ferris, which was an action of trespass, complaining of the original wrongful act; whereas this was an action of trover, in which only the value of those goods was sought to be recovered, which had not been restored to the plaintiff pursuant to the order of the Court of Exchequer, admitting the original seizure to have been justifiable. T/ie Court, however, overruled both the objections to the nonsuit. For, as to the first, the stat. 2l> Geo. 3. r. 40. .. 27, gave the defendants a colour of authority for the seizure, sup- posing that were necessary under the general provision of the stat. 28 Geo. 3. And, secondly, There was no distinguishing an action of trover from an action of trespass in this view ; as r 0.^7 1 in each the legality of the original seizure- 1 mi-^ht be brought into question; and therefore the cast; of Godin v. Ferri* was in point that the action must be commenced within three months from that period. Rule refused. () 2 //. niac. 11. DOR. GASES IN EASTER TERM 1802. Sidurtlay, May 8th. A convey- ance to a creditor of an insolvent debtor's estate by the clerk of' the peace (in whom it is vested upon the order for the insolvent's discharge by the stat. 41 Geo. 3. c. 70. s. 15. until the subsequent conveyance to the cre- ditor) dots not rest the estate in such creditor by re- lation, either to the date of the order or of the convey- ance, but only from the actual execu- tion of such conveyance by the rlei k of the pence. Therefore such creditor cannot re- cover in eject- ment upon a demise laid before the execution, though after the estate was cut of the insolvent debtor, and the order was made to con- vey the same to the lessor. *[ 258 J DOE, on the Demise of WHATLEY, against TELLING. HT^IIE defendant was an insolvent debtor, who was disr* -*- charged under the last Insolvent Debtors' Act (41 Geo. 3, c. 70.) on the 4th of August, 1801 : having previously, as re^ quired by that Act, delivered in a schedule of his estate and effects, containing a small freehold estate in the county of Wilts. The 15th section of the Act enacts, "That all the estate. " right, title, interest, and trust of such debtor in and unto "all the real estate, See. shall immediately after such adjudica- " tion (/. e. that the debtor is entitled to the benefit of the Act, " See.) be, and the same is hereby vested in the clerk of the "peace of the county, &c. ; and every such clerk of the peace, " &c. is hereby directed and required to make an assignment " and conveyance of every such debtor's estate and effects, vested " in suck clerk of the peace, c' interrogatories of his own witnesses, tlie costs ot cxannni ncr and the office copies of the depositions of the plaintiff's wit- witnesses or nesses taken before commissioners abroad. The action was tories, or brought to recover damages on account of the defendant's ship taking office having run down the plaintiff's : and after notice of trial given positions -but and countermanded, it was agreed that as several of the wit- each party ap-. nesses on either side were going abroad, they should respec- f^sown^ex- tively be examined upon interrogatories, and that the deposi- pence, unless r> ,1 r , i 4.-jV> i i it be otherwise: tions ot others of the plaintm s witnesses, who were then CX p ressc j ; u abroad, should be taken before the commissioners there. The the rule, plaintiff at the trial read many of the depositions made by his own witnesses ; but made so weak a case, that it became unneces- sary for the defendant to read his depositions in answer (but which were now sworn to be material to the merits of the case) ; and a verdict passed for the defendant. It was now insisted that the defendant was entitled to be allowed the costs in ques- tion as much as in the case where a party subpoenas material fitnesses who attend at the trial, but are not examined on uc~. cotuv* 259 CASES IN EASTER TERM [ 260 ] 1802. count of the failure of the plaintiff's case, or to save the time of the Court. Nfc rrt -p T> T-T T "V CJ against r ^ e Court, however, on consulting the Master, said that the CRICIITON. practice had been against the allowance of costs to the party succeeding in such cases. They referred to an anonymous case in E. 24 Geo. 3. (Hullock on Costs, 437.) where the rule' was laid down that the costs of examining witnesses upon in- terrogatories were always borne by the party obtaining the rule for such examination, and did not abide the event of the cause unless so ordered by the Court. Lord Ellenborough ob- served, that however desirable it was that the taxed costs should really indemnify the party who was ultimately found to be in the right, yet it was necessary to keep a check upon the very great expence to which this might lead, and to incur which the interest of unconscientious agents might afford a tempta- tion. That there was the less reason to break in upon the rule in this case, as the examination of witnesses on interrogatories in any case, was a matter of indulgence and consent. Rule refused. analogy to similar justifi- cations under May l "ilih. COLLETT and Another against Lord KEITH. alrespass" 8 r PO un act i n f trespass vi ct annis, for seizing and taking under the pro- ^ t ] le sa jp an( j g OO( ] s o f the plaintiffs at the Cape of Good foreignCourt, HP e > to wit. & c - anc l converting the same to the defendant's it seems rhat. use; the defendant, amongst other pleas, pleaded bv wav of the plea should . r _,, ,. , , ;, , . , . J J he foimed in justification, that a little before the said time when, &c. the said settlement of the Cape of Good Hope being: a foreign , to wit a Dutch settlement, was conquered and taken by the King in ! )en and lawful war trom ce ^ain enemies of the King, and by virtue of that conquest from thenceforth until and at the said *'">* when, &c. remained and was in the lawful possession of the King; and that the same settlement, not having: received i r i A? /- & laws froru llls Majesty or from any other lawful authority since governed by foreign law>, that 1h<>. proporty seized was within ils jurisdiction, that certain leal proceedings were had, according to such foreign laws, aainst the property in question in such Court havin* competent jurisdiction in that behalf, ft laliUr proc<'*Kiim, * what law or custom, or by what proceedings, or Lord KEITH, how, or in what manner the defendant was empowered, author- ized, or ordered by the said Court to seize and take the said ship and goods, Sac. : and also, for that it is not thereby alleged that any or what order, authority, process, decree, judgment, or sentence was made, issued, or pronounced by the said Court re- specting the said ship or goods, &c. or respecting the detention thereof : and also for that no certain or material issue can be taken upon the said plea, &c. This case was argued in Michaelmas Term last by Giles in sup- port of the demurrer, and Jervis contra ; and in this Term by Gibbs for the demurrer, and Park contra. [ 263 ] In support of the demurrer, it was urged that there was no precedent in the books of a justification so general as this, nor any direct authority to warrant such a justification under the order of a foreign Court ; but that by analogy to justifications for similar acts done by virtue of process out of the Courts in England, the plea was clearly bad. It is a general rule of plead- ing, that where a party justifies a trespass under an authority given, he must shew that authority. Co. Lift. 283. a. There is a difference however in this respect between the party to the cause, and the officer who executes the process of the Court : the former must shew the judgment as well as the writ; but the latter need only shew the writ under which he acts ; because he is bound at any rate to obey it within the jurisdiction of the Court by which it is issued. Yet where the officer justifies to- gether with the party, he is holclen to the same strictness in pleading. These rules govern even where the justification is founded on process out of the superior Courts at Westminster. Cotes v. Michael (a), Tar/Ion v. Fisher (b), Philips v. Biron (c), MfftJiews v. Carey (d], and Lamb v. Mills, (e), are in point, But in justifying process out of inferior Courts here, the party is holden to still greater strictness. Formerly indeed, it was necessary for him to set forth all the proceedings ; but though that rule lias been relaxed, still he must shew that the inferior Court had jurisdiction of the subject-matter; that the cause of (n) 3 Lev. 20. 137. (b)Dougl. 671. (c) 1 Mod. U7y (c) 1 Stra. 509. action IN THE FORTY-SECOND YEAR OF GEORGE III. 263 action arose within the jurisdiction : that a plaint was regularly 180 2. levied, and (in case of judicial process) that judgment was r thereupon obtained, and that the writ or process issued to the aaainst proper officer, who thereupon executed the same. The officer Lord KEITH. indeed need not shew that the cause of action arose within the [ 264 ] jurisdiction of the Court', though he must set forth such juris- diction; because that in the case of inferior Courts is a fact of which the Judges are not bound to take cognizance: he must also shew that such a plaint was levied of which the inferior Court had jurisdiction, and that such proceedings were had \c.; that certain process issued directed to him as an offi- cer of the Court, which was delivered to him to execute, and that he did accordingly execute the same, (iwt/nnv. Poole (a], Morftfia y. tiloper (/)), Morse v. James (c), and Ron-land v. leale (//). In no case is it sufficient either for the officer or the party to plead generally that he committed the trespass com- plained of by order of such a Court: for he might as well jus- tify it by saying that he did it according to the law of the laud. The proceedings of the King's Courts in the Colonies (to which this case bears the greatest analogy), cannot in reason be con- sidered as entitled to higher credit, than the proceedings of the Courts here. They can at most only be put on the same foot- ing with our inferior Courts; and those who claim or justify under them, must at least be holdeu to as strict rules in plead- ing as apply to justifications under the process of such Courts. This is evident from considering the principle on which all the authorities on this subject proceed. The reason why a defend- ant may justify more generally under the process of a superior than of an inferior Court is, because the Judges are in the first instance presumed to know the extent of the jurisdiction; and therefore it is not necessary to allege that the superior Court had jurisdiction of the subject-matter, or that the cause of ac- tion arose within such jurisdiction: both which are necessary to [ 265 j be alleged in the case of inferior Courts; because the Court are not presumed to be cognizant of the facts till brought be- fore tht-in by proper averments. This necessity therefore can- not be less in regard to justifications under the process of fo- reign Courts, of which the Judges here must be taken to be wholly ignorant till disclosed to them by pleading. Suppose () l.atw. 93J. 1560. CM ll'illcf, 50. (c) luid, I;.".'. (<:') Co;r/- 18, the 265 CASES IN EASTER TERM the ship had been taken in execution by the Sheriff, under a writ of fieri facias, and this action of trespass brought against him; though he would only state in his justification that the Lord KEITH, plaintiff in the former action sued out a writ of fieri facias un- der a judgment before that time recovered in a certain action against a former defendant, which writ was directed to him as O Sheriff, whereby he was commanded, &c. and that it was de- livered to him to be executed, and that he did execute it ac- cordingly by taking the goods. &.c. yet, in addition to those facts, their previous knowledge of the law, which the law it- self presumes them to have, enables the Judges to know that the writ issued in a civil proceeding; such whereof the Court had cognizance; that the writ of fieri facias was the proper process in such a suit; and that the sheriff was the proper of- ficer to whom it ought to be directed, and by whom it should be executed: upon the whole, therefore, they would have suf- ficient assurance that the proceeding itself, so far as regarded the Sheriff, was regular, and that the process itself was pro- perly executed. But wherever the jurisdiction is unknown to the Court, all those matters which they are in the other case presumed to know, and which are necessary to constitute the entire justification of the party, must be supplied by adequate averments: there is therefore an additional necessity imposed on the party, namely, to state the law by which such proceedr ings are justified, as well as the proceedings themselves; for the law of a foreign country is no more than a fact here, which must be averred and cannot be presumed. Then, as it must be admitted that a justification so general as the present would not suffice to protect a Sheriff acting under the process of one of the superior Courts, a fortiori, it cannot protect the de- fendant, acting under a jurisdiction wholly unknown to the law, Here the description of the Court itself is uncertain, as to its nature and general jurisdiction. The plea states, "that cer- "tain legal proceedings had been instituted/' cc. but it does not state what, those proceedings were, whether criminal or civil, or by whom instituted, or on what account. It states no previous complaint or charge; but that such proceedings were thereupon had : so that it does not appear upon what such proceedings were had. It is said that all this was done accord- ing to the foreign laws and customs; but it does not shew what those laws and customs were. It states that the defendant was empowered^ [ 266 ] IN THE FORTY-SECOND YEAR or GEORGE III. 266 empowered, authorized, and ordered to seize the ship, &c. ; 1802. but it does not set forth the order by which he was so authorized. COLLETT It is not even averred that he was the person to whom such against order was directed, or that he was bound to obey it. It can- Lord KEITH. not be collected whether this were mesne or judicial process; nor for how long he was to seize or detain the ship ; nor for what purpose. All these matters would have been necessary to be shewn in analogy to cases of inferior jurisdiction here, even if it had distinctly appeared that the defendant was an officer of the foreign Court, and bound to execute its process : but no- thing of that sort appears ; and therefore he stands in the same situation as a party at whose instigation the proceedings were r 267 1 had : in which case it is not only necessary to state the writ au- thorizing the seizure, but also the j udgment on which it is founded. For the defendant it was insisted, that there was no analogy between Courts of inferior jurisdiction here and foreign Courts; and that the reasons on which the cases had proceeded in respect of the former, did not apply to the latter. The de- fendant justifies under the orders of a Court in a foreign settlement averred to be governed by Dutch laws, though at that time in the possession of the King as a conquest; which according to Calvin's case (a}, and 13/ankfii'd v. Galdy (/>), is consonant to the law of England in the case of a new conquest till our own laws are there promulgated by the King. The plea further states, that the property seized was within the jurisdiction of the Supreme Court of judicature there; and that the defendant was by the order of that Court, which is averred to have had competent jurisdiction in that behalf, em- powered and ordered to seize and detain it. This is the sub- stance and sense of all justifications of this kind under our mu- nicipal Courts: and it would have been useless and nugatory to have <_one further and to have set out what those foreign laws were, and what the process of (lie Court was: because, be they what they might, this Court could not tell whether the proceed- ings had been regular or not, having no previous knowledge of the foreign law wherewith to compare them: nor could it sit as a Court of review upon the justice or legality of the decision of a foreign independent judicature. It has been always holden, that the judgment of a foreign Court of competent jurisdiction, is conclusive upon the subject-matter of the adjudication, and that [ 2G8 J () 7 Co. 17, 6. (//) Sulk . ill. it 268 CASES IN EASTER TERM 1802. it cannot be questioned in any collateral proceeding. Fo? P ~ which they cited Hughes v. Cornelius (a), Burroughs v. Jamineau against (^) Boucher v. Lawson (c), Qalbraith \. Neville (d), Phillips v. Lord KEITH. Hunter (e), Geyer v. Agiiilar (/'), and particularly Ifer v. Gor- dell(g),; where to an indictment for an assault by the defendant, which was committed in turning the prosecutor out of Queen's College, Oxford, the defendant gave in evidence an order of ex- pulsion of the prosecutor by the college, and his (the defendant's) acting as their officer in enforcing it. The prosecutor in answer offered to prove the invalidity of the order by reference to the constitution of the college : but the Judge at Nisi Prius rejected the evidence, and held the order of expulsion conclusive ; and this Court afterwards approved of his decision. The same doc- trine was strongly enforced by Eyre, C. J. in Phillips v. Hunter. There is an additional reason for not requiring the same strict- ness in pleading such a justification under the process of a fo- reign Court as is usual with respect to our own Courts ; because the defendant is as much a stranger to the course of their proceedings as the plaintiff; and he has no more the means of informing himself of them or getting copies of them than the plaintiff. It may be otherwise in the case of a plaintiff coming here as a volunteer to derive some benefit to himself grounded on the proceedings of a foreign Court; of which in that case he [ 2G9 1 would be bound to inform himself. But it does not even appear that the defendant instituted the proceedings in the foreign court; for it is only stated that certain proceedings had been and wcrq depending against the ship and cargo ; which refers to an ante-: cedent time. On the contrary, it is plain that the defendant must have acted as the officer of the court, because it is alleged, that he was ordered by the same Court to seize the property ; which necessarily implies that the order was directed to him, and that he was under an obligation to obey it, the Court having, as is expressly stated, competent authority in that behalf. For the reason before urged, it cannot be necessary to state the pre- cise terms of the order, because the Court could not, as in the case of our own process, know whether it were regular or not in, the frame of it. Perhaps too it was a mere verbal order, as in () 2 Show. 232. (b) HI. 13 G. 1. cited in Rep. temp. Huidw. 87. 12 Fin, Air. 87. pi. 9- and 2 Stru. 7.K>. S. C. (/:) Rep. temp. Hardw. 87. (d) B. It. E. 20 Ceo. 3. Dougl. '.',. b. n. -J. (e) 2 11. lilac. 410. per Eyre, C. J. (/) 7 Term Urp. tOl. (g) Cited in the Duchess of King- ston's case. 1 l St. 7V. i.'OH. 2 Rolf. IN THE FORTY-SECOND YEAR OF GEOTIGE lit. 2C9 2 Roll. Abr. 558. C. pL 2.; and every thing is to be presumed in 1802. favour of the regularity of the proceeding of a foreign Court, un- ~' " _,, t . COLLETT less the contrary appear. Ihe same presumption is made even against in the case of inferior Courts at home, provided the jurisdiction Lord KEITH. sufficiently appear. Sellers v. Lawrence (a), and Moravia v. Slope?- (6). So in Ladbroke v. James (<:), it was holden sufficient, after stating facts which gave a limited Court jurisdiction, to al- lege generally that the Court gave such a judgment. Willes, C. J. there said, that if it had appeared that the Sessions had jurisdic- tion to discharge the insolvent debtor, it would have been sufficient to have said generally that the Sessions had discharged him; and that the Court above could not inquire into any facts neces- sary to be done by him in order to obtain his discharge; of which the Sessions were the only and the proper judges. In Otto v. Sehvin (d), the Admiralty Court warrant, under which the de- i 970 1 fendant justified the trespass, merely recited that a case was de- pending therein de re maritima, and commanded the defendant their officer to take the plaintiff; which was holden sufficient, without shewing the particular matter. In all cases the officer is more favoured in pleading than the party, and need only shew the writ or warrant without shewing the judgment (e); because the officer, who acts only ministerially, is at all events bound to obey the process; and the Court, from their knowledge of such process, are enabled to see whether it were such as by the law he was bound to obey; whereas in this instance the view of the process can afford no information to the Court as to its legality; and therefore it would have been nugatory to have set it out. Upon this principle, where a party had seized and condemned goods in Iceland under the dominion of the King of Denmark, by a grant from that prince, and under their law, and afterwards coming into England was sued for such acts by the former owner of the goods, Lord \ollingham, in Badtolph v. Bamfield (f), granted a perpetual injunction, saying,- that what was clone there was according to their law : and that it was not properly triable here whether the King of Denmark had power to make such a grant. So here it is not properly triable whether the Su- "preme Court of judicature at the Cape had power to make such un order to the defendant; but the only material question is, (n) n'illes, 412. (l>) Ibid. 54. (r) Ibid. 199 ''01. (,7) 2 La-. 131. (e) Coirs v. niickill, T. I,?r. u>. lirillon v. C!f, 1 .Si.'/;. 1J'. 1 . and :> Ct>m. Dig. 3,'i,'. tit. l'lft;), Johnson v. Warner (c), Titley v. Foxatt (d), and Adams v. Freeman (e). Here it an- swers every reasonable purpose to aver generally that the fo- reign Court had jurisdiction to do the act which they ordered to be done : and no hardship is hereby cast on the plaintiff; because it is a matter in pah, and the affirmative of the proof lies on the defendant pleading it. The reason why such matters must be pleaded specially when arising here, is from a technical distinction between matters of record and matters not of record, the former of which must always be pleaded with a prout patet , fyc.; but no such distinction prevailing in respect to judicial pro- ceedings abroad, the same necessity does not exist ; and non con- stat but that all the proceedings in this case were ore terms. In reply it was said, that the whole of the defendant's argu- ment turned on the assumption that he was an officer of the Court; which did notappear : and it was admitted that the party who put the proceedings of any Court in motion (which, for aught appeared to the contrary, was done by the defendant him- self), was bound to shew that they were regular. That the ques- tion was not, how far the sentences of a foreign Court were con- clusive, but how they were to be shewn in pleading. That the plaintiff could not dispute the judgment of the foreign Court, because the defendant had not shewn what it was. That the rule, requiring this to be set out by the party, was not merely for the information of the Court, but also to enable the other party to meet the charge. That admitting the proceedings might be pleaded generally, the objection held that they were not set out at all: so that the plaintiff could not even tell the nature of the charge. That this applied as well, whether the proceedings were ore, lenns or in writing ; and in the case in 2 Rol. Al>r. 558, the order, though made ore tenus, was set out. That all the cases proved, that where it was necessary to shew a jurisdiction in the Court, as in the case of inferior Courts, it was not enough to aver such jurisdiction generally, but such [272] (a) 2 Lutw. 9.37. (d) Ibid. 688. (b) 1 Ld. Raym. 230. (c) 2 mis. 5. (c) Willis, 523. fact. IN THE FORTY-SECOND YEAR OF GEORGE III. 272 facts must be stated as shewed that the case was within it. That 1802. the defendant could not be prepared to prove the legality of the p seizure unless he were cognizant of the facts; and therefore against there was no more hardship in requiring him to plead them in Lord KEITH. this than in other cases. GROSE, J. () The defendant justifies the trespass com- plained of as having been done under the authority and by the order of the Supreme Court of Judicature at the Cape of Good Hope. In pleading such justifications, the law makes a differ- ence between the party claiming the aid of such Court, and the officer of the Court who is bound to obey its orders, in favour of the latter. In the present case therefore, it would be most for the ad vantage of the defendant to consider him as such officer; for as party, there is not the smallest pretence to say, that the plea will justify him. But considering him to have acted as officer, it was incumbent on him to have shewn that by his plea ; and that he acted under a Court of competent jurisdiction ; that such an order issued to him; and that he has not transgressed it in doing what he has done. Then trying the validity of this plea by those rules, it cannot be supported; for though in one r 073 ] part the defendant affects to consider himself as an officer of the Court abroad, by stating that he was ordered by that Court to do the act complained of, yet that does not shew that he was the offi- cer of the Court; but he should have averred that he was so, and have shewn that the order applied to him as such. For this purpose he should have stated what the order was ; that the Court might see that he was bound to obey it, and that he had not transgressed his authority in what he did. But nothing of that sort appears; and if the parties were to go to issue on this plea, I do not see what the plaintiff is to be prepared to an- swer. The plea is abundantly too general, and answers none of the piirposes for which such a pica was intended. I am aware of the inconvenience to a defendant in surh a case, in holding him to greater strictness in pleading; but that cannot alter the law, though perhaps the difficulty which has occurred may suggest the propriety of *ome legislative provision on simi- lar occasions. It is our province only to decide, whether this be a good justification in point of law according to the rules which have governed in similar cases; am! if it be not, we must () Lord Elh'ni>wMih, having been concerned as counsel in the cause, 1-11 -i UOLLKTT rules laid down with respect to such justifications under foreign against j urisdictions, we can only reason from analogy to the precedents Lord KEITH. of our own Courts. How far it may be necessary to pursue that analogy it is not now r necessary to state, because this plea at all events falls very short of those precedents. It is not sufficient barely to state that the ship and cargo were within the jurisdic- tion of the foreign Court, where it is not stated what the cause of complaint was, or whether it were a criminal or civil pro- ceeding which was instituted, or by whom the charge was pre- ferred. It is only stated, that certain legal proceedings had been and were instituted; of what nature does not appear; nor is any judgment or decision of the Court stated thereupon. The plain- tiff cannot tell whether these proceedings were instituted against the ship for any offence committed by any of the persons on board, which subjected her to forfeiture; or whether it were a civil complaint to recover damages, to which the ship was liable. Even supposing Lord Keith to have been an officer of the Court, which is not stated in the plea, at least he should have stated what the order was, by virtue of which he made the seizure ; whether it were an order to compel appearance, or to satisfy the party complaining in execution; whether it were for an absolute seizure, or merely yuoitsque, until such an act done : for then thepluintiffmight have replied that he had appeared, or had done the thing required, or had satisfied the damages to the party; r 9 ~p -, and then have new assigned a subsequent trespass. All this was necessary to be stated, because the merits of the case might ul- timately turn upon it; but nothing of the sort is shewn; and therefore I am clear that there ought to be Judgment for the Plaintiff. The KING against the Inhabitants of Sou i: i; v . SlTiMh "\\ O justices by an order removed J\. Munltickxnd hischil- A person dren bv name from the parish of .SY. Man/, in the town and can "" t " a ' n r . . .a settlement liberties of Bcvcrlei/ in the East Riding, to the township of Sow- by lining and erbif in the Xortli Riding of the county of York. The Sessions Jj^ ^ certificated man continuing to reside in the certificated parish with his mother after the father's death, nt part of her family, though the son were of DJ:P, and carrying on busint?^ for himself; siu'h circumstances uot amounting to an emancipation. VOL. II. Q on 276 CASES IN EASTER TERM 1802. on appeal confirmed the order, subject to the opinion of this m, jP~l Tft Court, on the following case : against Richard Stokell in 1745 went with a certificate, in which he The Inhabi- only was named, from Darlington to Sowerby; and during his tants o residence there under that certificate, his son Ralph Stokell was born. Richard Stokell died; after whose death Ralph his son, being arrived at manhood, followed the business of a twine- spinner at Sowerby for many years; and about 1780, which was ten years after the death of his father, he engaged the pauper R. Murdoch as his servant in the above business ; and the pauper continued in such service at Sowerby for eleven years, during which period he was whilst unmarried hired to and served him for a year. Ralph Stokell also during these years hired a boy to turn the wheel necessary in twine-spinning. When the pau- per was hired for and served a year as above-mentioned, Ralph Stokell w 7 as a bachelor, and lived in a house at Sowerby with his [ 277 ] mother, w r hich she w r ent to and rented after her husband's death, at about fifty shillings a-year; and he never left this house or his mother, except for a few weeks in harvest-time, in one year. The mother had no concern in the twine-spinning business ; and the pauper and the boy were the servants of Ralph Stokell, and not of his mother. This case was first argued in the last Term, when the Court, after hearing the counsel in support of the orders, directed them to be quashed, being clearly of opinion that Ralph Stokell, the son of the certificated man, continued to reside with his mother in Sowcrby under the certificate granted to the father and his fa- mily, and therefore that the pauper could not gain a settlement by a hiring and service with Ralph Stokell. But a doubt being afterwards suggested from the Bar, whether some cases which had not been adverted to before might not vary the considera- tion of the question, the matter was directed to stand over for further argument. Holroijd now contended, in support of the orders, that Ralph Stokell, the pauper's master, was emancipated at the time of the hiring and service of the pauper; and that if so, the pauper might gain a settlement by hiring and service with him in Sower- by, although the certificate remained in force with respect to the widow of the certificated man. The circumstances which eman- cipated Ralph Sfokcll from his surviving parent were, the being of age and setting up in business for himself, and hiring servants of IN THE FOKTY-SECOND YEAR OF GEORGE III. 277 'of his own, whereby he became the head of a new family. In R. 1802. * v. Walpole, St. Peter's in Norfolk (a), one who had enlisted as a T ' " soldier, and was of age, was holden to be emancipated, though he aff i. (J) 4 Term Rep. 797 800. (jf) r> Term. Rep. 5^3, Q 2 parish. 279 CASES IN EASTER TERM 1802. The KING against The Inha- bitants of SOWERBY. [ 280 ] parish. It is true there was a separation in fact there from the father's house ; but that cannot make any difference, provided the son were emancipated by the means here stated ; for without such emancipation he would still have continued under the cer- tificate, though he had resided in a separate house from his pa- rent (a). The general rule is, that wherever a person ceases to reside under the protection of the Certificate Act, 8 &. 9 W. 3. c. 30, the stat. of Anne no longer applies to him, Wood contra. This case turns on the construction of the stat. 12 Ann. st. 1. c. 18. s. 2, which enacts, that no person bound as an apprentice or hired as a servant to any person "who shall "come into or reside in any parish by means or licence ofacerti- "ficate," shall thereby gain a settlement. The question then is, whether Ralph Stokett, the son of the certificated person and the master of the pauper, was not residing in Soicerbi/ at the time of the hiring and service, "bv means or licence of the certifi- " cate" granted to his father? It has beenholden, that a child born after a man comes into the certificated parish, is within the cer- tificate (b) ; and that he so continues after his father's death (r). Also in R. v. Hampton (//) the certificate was determined to ex- tend to a second wife married after the granting of it; and what is immediately in point, that an apprentice bound to such wife after the husband's death could not gain a settlement thereby in the certificated parish, though the second wife were not named in the certificate, as she continued to reside under the certifi- cate. It is clear then from these authorities, that both the mo- ther and the son continued to reside under the certificate after the father's death : and these were not broken in upon by R- v. Darlington (c); for that only decided that the certificate did not include grandchildren. Then the only case which at all bears upon the present, is Rc.r v. Heath (./)>' but that went on this plain distinction, that during the father's lifetime, who alone was named in the certificate, the son married, and was separated in fact from the father's family, and became the head of a dis- tinct family and house of his own. He therefore ceased to come (a) Vide K. v. Ruth Edstan, 8 Term flep. 446. (b) Sherbornr. v. Tlwrnfiinl, Burr. S. C. 181'. (c) R. v. sllfrcton, 7 Term Rrp. 471. (d) ;> Term Rep. 266. (c) 4 Term Rep. 797. (f) j Term Rep. 583, under IN THE FORTY-SECOND YEAR OF GEORGE III. 280 under the description of the father's family; and might gain a 1802. settlement for himself. Whereas here there was no actual sepa- ration of the son from the mother's family; and as she cer- a -ainst tainly continued to reside under the certificate, it must also ex- The Inhahi- tend to all those who continued members of her family. The tants of certificated parish could have no notice that he ceased to he part of her family, either from the circumstance of his coining of age, or his carrying on business for himself, which he might do before he was of age, or from his hiring the pauper. Lord ELLENBOROUGII, C. J. The opinion which I have formed does not appear to me to clash with the case of The King L 281 J v. Hea//t. There, there was every thing which could well be predicated of emancipation: the marriage of the son; his living in a separate house from his father, as the head of a distinct fa- mily; and being rated by the parish as such in his own name. Here there is nothing of the kind; while the father was living, the son resided under his roof: and after the father's death he continued to reside with his mother, who was the representative of the father, and equally protected by the certificate. This comes then directly within the principle of The, King v. Hamp- ton; where it was holden, that an apprentice to the widow of a certificated man, could not gain a settlement in the certifi- cated parish after the husband's death. If this question had come now to be decided for the first time, I should have been prepared to decide it on the plain words of the stat. of Anne, referring to the stat. 8 & 9 II. 3. c. 30. and 9 Sc 10 IF. 3. c. 11, which have been broken in upon by many cases, laying down rules of construction much less plain than the words of the statute itself. The stat. 9 and K) II'. 3. c. 11, speaks of two methods only by which any person coming into a parish with a certificate shall by any Act whatsoever be adjudged to have procured a legal settlement there: those are, by taking a tene- ment of the yearly value of 10/. or by executing some annual office within the parish. Then the stat. 12 Ann. >/. 1. c. 18. ." ts of SOWEKBY. Lord RODNEY and the Honourable JOHN RODNEY against CHAMBERS. Tuesday,' May 18 til. covenant, the plaintiff declared, for that whereas by in- A covenant denture of the 18th August 1798, made between George by a Iiusba n d ~ to pay to Chambers (the defendant) of the first part, the Honourable trustees a cer Jane Chambers his wife of the second part, George Lord Rod- **'," i," n ^ l v net/ and J . Rodney of the third part, and J. Milbanke, since of separate deceased, of the fourth part. After reciting that Sir W. Cham- EJtKXJ hers, Knight, made and duly executed his will, dated the 19th '" c se of of June 1795, and that he thereby bequeathed to said Jane separation, Chambers his son's wife * an annuity of 200/., so long as she Wltl1 tlie coners, then and in either of the said cases, and so often as it should happen, that the plaintiffs and survivor of them, &c. did and should from time to time pay the whole of the said an- nuity of 200/. as the same should be received by them in such and the same manner for the benefit of the said Jane Chambers as therein was directed touching the said pension of 100/. And the defendant did thereby for himself, his heirs, &c. covenant to and with the plaintiffs, their executors, &.c. that in case future differences should arise between the defendant aud Jane his wife, and she the said Jane should on that account at any time thereafter find it necessary to live separate and apart from him, he the defendant should permit and suffer her to leave him, and from time to time and at all times thereafter to live, inhabit, and reside separate and apart from him in such L ~^ J place or in such family as she should think proper; and should not prosecute, disturb, or molest the said Jane or any person in IN THE FORTY-SECOND YEAR OF GEORGE III. 286 in whose house or family she should reside on account of her .1802. living separate and apart from the said G. Chambers, subject ~j 7 nevertheless to the condition or proviso in that behalf therein- RODNEY- after contained. And moreover, that in case the annuity of against 200/. thereby assigned, should at any time during the life of the CHAMBERS. said Jane Chambers cease to be payable, he the defendant, his heirs, &c. should from thence pay unto the plaintiffs, their executors. &c. d urine; the natural life of the said Jane, one * o annuity of 200/. by equal quarterly payments from the time the said annuity of 200/. under the said will of Sir W. C. should cease to be payable ; upon trust that the plaintiffs, and the survivor of them, and his executors, Sec. did and should pay the same to and for such and the same intents and pur- poses, and in such and the same manner as therein before was declared touching the said annuity of 200/. thereby assigned ; the first payment of the said annuity of 2007. to begin at the end of three calendar months next after the said annuity of 2007. under the said will should cease : as by the said inden- ture, &c. appears. The plaintiffs then averred, that afterwards, to wit, on the 1st Januan/ 1799, at, &.c. the said John Mil- banke died: and that after his death, to wit, on the 10th Au- gust 1799, at, 8cc. a separation did take place between the de- fendant and Jane his wife, with the approbation of the plain- tiffs : and the said Jane Chambers, from the time of the said separation to the commencement of this suit, hath lived separate and apart from, and hath failed to live in wedlock with her said husband ; by reason whereof the said annuity of 200/. so given by the said will of the said Sir IV. C. did cease and be- come void from the time of such failure of the said Jane Cham- [ 287 ] hers to live in wedlock with her said husband. The declara- tion then stated, that three quarters of the annuity of 200/. became due after such separation, which were unpaid ; and that the defendant, though requested, had refused to pay the same, Sec. Pleas. 1. That at the time of the said supposed separation between the defendant and his wife, to wit, on 10th August. 1799, the said ./. Mi I banke was alive; and traversing his death at the time, ike. as stated in the declaration; on which issue was joined. 2. Protesting that the supposed separation, ix.c. did not take place with the approbation of the said J . Mil- 6 banke. 287 CASES IN EASTER TERM 1802, banke, avers that J. M. on the said 10th of August mentioned "I T was alive, &c. To which there was a demurrer, shewing for RODNEY s P ec i a ^ cause that the defendant had therein tendered an im- mgainst material issue, and had attempted to put in issue a fact not CHAMBERS, alleged in the declaration; and for that the said 10th of August is not in the declaration materially alleged : but the substance of the allegation there is, that the separation between the de-, fendant and his wife took place after the death of J. Mil- banke, &c. Williams, Serjt., in support of the demurrer (after observ- ing that it was not attempted to support the plea (a), but that it was meant to be insisted that the declaration was bad, on account of the illegality of the covenant providing for the future separation of husband and wife) contended that such a [ 288 ] covenant was neither illegal nor immoral, but was warranted by analogies in the law, and by direct authority, 1 . It cannot be objected that a covenant to provide for the future separation of husband and wife is void as militating against the policy of the law, when it must be admitted that such covenants have long been established by repeated decisions in cases* where separation has actually taken place. They must both stand or fall together; and all the arguments which can be urged against the one have been urged against the other, and over^. O O o * ruled above a century ago. If it be illegal to provide for the possibility of a future separation, as tending to facilitate such an event, it cannot be less so to abet and support an actual separation, and thereby impede a reunion of the parties, Besides, the principal object of this deed was to make an end of the differences which are recited to have existed between the parties before that time. Where a husband and wife had agreed to live separate (b}, and she was allowed a separate maintenance ; and the husband pretending, as it is said, a de- sire to be reconciled to her, which she refused, forcibly took ('<) Upon this occasion the Court found fault with the paper books sent to them, in omitting to notice in the margin (lie points intended to be arc;ued, as re- quired by a late rule ot" Court of //. 38 Gco. 3. which they observed was not then a now regulation, but rather a revival of an old rule made in E. 2. Jac. '2. (Vide 2 Tidd's Pract. 669, 670.) They observed, that upon the present occasion their attention had been entirely diverted from the real point intended to be litigated, by looking to the cause of demurrer assigned. (b) Lister's case, a Mod. 22. her IN THE FORTY-SECOND YEAR OF GEORGE III. 288 her into his custody, the Court so far recognized this species 1802. of contract that they set her at liberty, saying that the agree- "J T ment should bind them both till both agreed to cohabit together RODNEY again. This was again recognized in Mary Mead's case (a), agahut where the Court held such an agreement to be a formal renun- CHAMBERS. ciation by the husband of his marital right to force his wife to live with him. So in Seeling v. Crawley (b), an agreement for separation upon certain terms to be performed by the husband and the father of the wife was decreed by the .Court of Chan- cery to be executed, on a bill filed by the father against the husband. The like was done in Atigier v. Angler (c), and [ 289 ] Guth v. Giitlt (d), upon bills respectively filed against the husband by the wife for a performance of articles of separation. One of the objections in the former case was, that it was in fact to decree a separation and alimony, which was usurping upon the jurisdiction of the Ecclesiastical Court- but this was denied by the Lord Chancellor, who observed, that the intent of the articles was to save the expence of a sentence in that Court, to supersede the necessity of an application there for alimony. It is therefore in furtherance of what the law would compel in case of the ill-treatment of the wife by the husband. Other cases have occurred, which, like the present, provide for future separation. Such was the case of NichoUs and i^ anvers v. Danvers (c), where the defendant, having before ill-treated his wife, gave her a note, that if he should again use her ill, she should have her share of her mother's estate (which was 3000/.) to her own use. And upon this happening, she and her brother filed a bill against her husband for this purpose; and the Lord Keeper decreed the interest of it to her for life for her maintenance, and afterwards to the husband for life, and the principal to the issue, if any: it none, to the survivor of the husband and wife. But he prin- cipally relied on the case of (irncden v. Draper (/), where the plaintiff declared in covenant ui> an indenture, whereby the defendant covenanted that his wue Sara/i should live separately from him until they both gave notice by writing, attested by two \\itnesses, to cohabit asiain ; and that during such separa- tion he would pay to the plaintiff 300/. per aim. by quarterly () 1 Burr. r4^. (b) - aiii and again. The case of \icliollx v. Daiivers almost <2;oes the whole length of the present. The note was there uiven by the husband to let his wife have the 3000/. in case he should a^ain use her ill: that must have meant, in ease she should be obliged to live separately from him, by way of separate maintenance; because to oblige himself to provide for her while she continued VOL. II. R to 298 CASES IN EASTER TERM 1802. Lord RODNEY against CHAMBERS. to live with him would have been useless ; and that agreement was enforced by the Court of Chancery. Judgment for the Plaintiffs. Wednesday, May 19th. "Where the pauper agreed with a weaver to serve him for a year and a half, and the master was to teach him to weave, and the pauper was to have half lii.s earn- ings and find himself in every thing; under which contract the pauper served his master for above a year ; held that he thereby gained a settlement as by hiring and service; it being the apparent in- tention of the parties to create the relation of master and servant, and not that of master and apprentice. *[ 299 ] The KING against The Inhabitants of ECCLESTON. TWO justices by an order removed Adam Davenport, his wife and family, by name, from the township of little Bolton to the township of Eccleston, both in the county palatine of Lan- caster. The Sessions, on appeal, confirmed the order, subject to the opinion of this Court on the following case : The respondents proved a settlement gained by the pauper in Eccleston: after which the pauper, when about 15 years of age, went into the township of Tonge with Haulgh, and made a ver- bal agreement with one Samuel Clongh there, who was a weaver of counterpanes, to serve him a year and a half. Clough was to teach him to weave counterpanes ; and the pauper was to have one half of* what he earned; and the pauper was to find him- self in every thing. Nothing else passed between them on mak- ing the agreement. The pauper worked under this agreement with Cloitgh for the year and a half, except for a fortnight; during which he remained absent; but Clough however brought him back into his service, and obliged him to stay a fortnight over the year and a half, in order to make up the time he had been absent from his service. During the time of this service he slept constantly at his mother's house at Little Bo/ton. Holroi/d, in support of the orders, admitted that if the case of Rex v. Little Bolton (a) were law, the present could not, be dis- tinguished from it in principle ; but contended that that case had since been over-ruled. There it was considered, against Lord Mansfield's first opinion, that an agreement of this sort, and ser- vice under it, might enure as a hiring and service in the relation of master and servant, though the latter were to be taught a trade, because lie was not retained eo nomine as an apprentice. But this was holden otherwise in Rex v. Jli^lmani (/>). where the true nature of such contracts was considered to be that of an apprenticeship, and therefore that they could not, without de- (a) Cultl. j(57. (A) Ibid. 491. frauding IN THE FORTY-SECOND YEAR OF GEORGE III. 299 frauding the revenue, be made to enure as a hiring. And in 1802. Rex v. Laindon (a), Lord Kent/on delivered an express opinion r^, ^ against the authority of the first-mentioned case ; which opinion against was afterwards followed up in It. v. Ron/ham (b). The only The fnhabi- difference between this case and R. v. Laindon was, that there the tants of pauper gave his master a premium upon his entering into his service; but in R. v. Rainham, that was holden not to be essen- [ 300 ] tial to the constitution of an apprenticeship; for which nothing more is required than that the one should contract to teach, and the other to learn a trade. No technical words are necessary to constitute an apprenticeship. This is different from that class of cases, such as Rex v. Martham (c), where the party contracts to serve his master generally in other respects, asw r ell as in the particular business which he was to be taught. For though it is first stated generally that the pauper in this case was to serve his master for a year and a half, yet the nature of the service is afterwards explained, and is shewn to have been confined to the learning to weave. And if the intention of the contracting o r> parties be to govern the decision of these cases, then the Ses- sions, by disaffirming the settlement in Little Bolton, have in effect found that the parties meant to contract the relation of master and apprentice, though they have failed in their object for want of a proper instrument duly stamped. Topping and Scarlett, contra, relied on the case of Rc.v v. Little Ballon (d) as in point; which, they said, was not in- tended to be over-ruled by the Court in the cases of R. v. Lain- don (f), and R. v. Rainham (_/'); both which turned on the inten- tion of the contracting parties to create an apprenticeship. This w r as expressly adverted to by Lord Kent/on, in R. v. Laindon, as the ground of his opinion: though he also threw out some objections to the case of R. v. Link notion, so far as it seemed to establish the necessity of an apprentice being retained co no- mine; and Le Blanc, J., whose opinion proceeded on the same ground, expressly distinguished the case then in judgment from [301 ] that of R. v. Little Bolton. In the other case of R. \. Rnhi/ifim, it was immaterial to consider, whether the contract \vere to serve as an apprentice or as a hired servant: since in either case the pauper, having served above a yeur, gained a settlement. If indeed the parties intend to contract the relation of master and (<^ 8 Term thy. 379. (1) Ante, 1 vol. .V.I. (f) Ante, 1 vol. 1. > 301 CASES IN EASTER TERM 1802. Apprentice, and do it defectively, as in those cases, it caraiot _, TT~ enure as a hirino- and service : nor if it be done fraudulently, in The KING i r r> \ -, against order to avoid the stamp duty, as in R. v. Htghnam (); which The Inhabi- was the real ground of that determination, and sufficiently dis- tants of tinguishes it from R. v. Little Bolton. The last-mentioned case FcCT T'S'TOl^" ' is supported by many others; as R. v. Hitcham (6), R. v. Buck- land Denham (c), R. v. Birmingham (d), R. v. Alton (e); all which shew that contracts to work at a particular trade only may yet constitute the relation of master and servant between the parties; though, as in R. v. Hitcham, and 12. v. Mart- ham (/'), the servant were to be taught by his master. And in R. v. Cottishatt (g), where the contract was to serve the master for the purpose of being taught a trade, but the servant also agreed to do any other Work ; Lord Kent/on, after saying that the latter circumstance was decisive, observed, as to the teach- ing the trade, that it was deemed no more than equivalent to part of the servant's wages. Lord ELLENBOKOUGH, C. J. I give a reluctant assent to the case of the King v. 'Little Bolton; but as the case now before L dvZ J us is in terms the same as was there decided, I think it is bettex* to abide by that determination than to introduce uncertainty into this branch of the law; it being often of more importance to have the rule settled than to determine what it shall be. I m not, however, convinced by the reasoning of that case ; and if the point were new, I should think otherwise. I should con- sider, as Lord Kenyan said in R. v. Laindon, that if the rela- tion of master and apprentice be created by the contract of the parties; though they do not use the very words master and ap- prentice, yet if they use words tantamount, it is sufficient, The word Apprentice, he observed, was taken from apprendre, to learn; and what was that but an apprenticeship, where the purpose of the contract was for one man to teach, and the other to learn a trade? Then what was this intended to be ? I should have said, upon general reasoning, that where the contract was, that the master should teach the other a trade, and the latter was to do nothing ulterior the employment in that trade, it was a con- tract apprendre in the true sense of the word : and being defec- tive in this case, for want of proper legal formalities, it could () CflW. 491. (b) Burr. S. C. -189. (c) Ibid. 694, (rf) Doufrl. 333. (iect to the opinion of this Court, on a the end ot the year, on case stating, ill n'^e, but That the pauper's husband, Charles I sane, was born at Bo.i, received '? 1 , . i-i w ' HI 'e years in the county of II /7/.s; and about fourteen years since was hired wages, and for a year, and served the same in the parish of Co/erne: that he ^ me . tll j l | "f ( | was afterwards hired by Mr. Da/tner, of Cui'sham , at four gui- that he therc- neas pa- annum; with whom he continued to serve till within a g^Jement he fortnight or three sveeks of the expiration of the year: when, havnm refused upon a dispute between him and his master, he, in consequence t | ie r w |, ea of his master's kicking him, would ncjt stav; but \\rr.t T. his rnpured by ,, , , ... / lii? master. rathers house in kington o/. Michael. In the course oi the fol- lowing week, and before the end of the year, he returned with his father to Mr. Dalnicr^ house, and received the whole of his [ 304 ] wages, 304 CASES IN EASTER TERM 1802. wages, and half a crown over for himself: his master asked him T , J7~" NT to stay; but he refused, and went back to his father's house. agnimt Jekt/ll and Williams, in support of the order of Sessions, said, The Inhabi- that, according to the case of the King v. St. Peter, of Mancrofi, tants j n Norwich (a), it was the province of the Sessions to draw the conclusion, whether the contract of hiring were dissolved, or whether the master only dispensed with the service ; and by confirming the order of removal to Corsham, they had virtually found that there was a dispensation only of the service. This too was the proper legal conclusion; for it has been long settled, that a master shall not, by injuriously turning away his servant, defeat his settlement ; and here the master compelled the servant to depart by his maltreatment in the first instance ; and, what is material, the master paid him his wages up to the end of the year; and something over, as a compensation. Then if the re- mainder of the service Avere once dispensed with, the master could not compel the completion of it against the servant's will, though the contract still subsisted in law. Casberd, contra, was stopped by the Court. Lord ELLENBOROUGII, C. J. The cases of Hex v. Grantham (b~), and Hex v. Vpwell (c), have decided the present question. In both of them there was a payment by the master of the whole year's wages, and a departure from the service before the end of the year against the will of the master; and in both, the Court [ 305 ] held that no settlement was gained. There is nothing material to distinguish this case from those ; and therefore it is better to abide by them. Whether there were a dissolution of the con- tract, or a dispensation of the service, is indeed a question of fact, but of fact mixed with law : and the Sessions, having stated all the circumstances, have sent us the case, that we may draw the proper legal conclusion". GROSE, J. This is not like the cases where the master has turned away the servant, to prevent his gaining a settlement; for the master wished him to stay, and the pauper refused: then the payment of the whole year's wages by the latter was merely to prevent an action, and argues no consent on his part to dis- pense with the service. The other Judges concurred. Orders quashed. (a) 8 Term Rep. 477. (b) 3 Term Rep. 7 j-1. (c) 7 Term Rep. 438. DAVISO.N IN THE FORTY-SECOND YEAR OF GEORGE III. 30-3 1802. DAMSON against FROST. ifc^y, May l9th. A RULE was obtained, calling on the plaintiff to shew cause An omission ** why common bail should not be entered, instead of special jUSfoTthf" 1 " bail, #r.; which was grounded on an objection to the writ of writ of thc latitat, whereon the defendant had been arrested, and holden to whlcluhe de- bail for 111 I. for that the sum for which he was arrested was fcndant is ar - ... . rested on not inserted in the ac etifim part or it. bailable pro- Marryatt shewed cause, and contended, that even if it were P css> 1S | rre s u - lar, ana he necessary before the stat, 12 Geo, 1. c. 29, to state the sum in cannot be the ac etiam, it was no longer so since that statute. Before the '(I^f^aiV SpC " stat. 13 Car. 2. st. '2. c. 2, a defendant was liable to be arrested thereon, and holden to bail on a common bill of Middlesex or lalitat for [ 306 ] any sum, though the particular cause of action were not ex- pressed in the writ, to prevent which, that statute provided that no person arrested upon any bailable process, wherein the true cause of action was not particularly expressed, should be com- pelled to give security for his appearance in any sum exceeding 40/. In consequence of this, and in order to preserve the ju- risdiction of civil causes to B. R. to the same extent as before, the ac etiam clause was invented, in which the true cause of ac~ tion is expressed, in addition to the general complaint of tres- pass, which gives the Court jurisdiction. Still, however, the evil continued; for a plaintiff might insert what sum he pleased in the ac etiam; and therefore the stat. 12 (h'o. 1. c. 29, enacts, that no person shall be holden to bail upon process put of the superior Courts for less than 10/. ; and that an affidavit ofthedebt shall be made, and that the sum sworn to therein, shall be in- dorsed upon the back of the process; and that the sheriff shall not take bail for more, The insertion therefore of the sum in the ac etiam is wholly nugatory; because neither the sheriff nor the party is bound by it, but only by the sum sworn to and in- dorsed on the back of the writ. He referred to Turing v. Jones* 5 Term Rep. 402. Lawes, in support of the rule, relied on the uniform practice, which had been needlessly departed from in this instance, in omitting to state the sum in the ac etiam. .Much of the practice of the Court depends on positive rules and known precedents, rather than on general reasoning; and it would be vtry incon- venient to break in upon it, though its utility may not be appa- rent ; 307 CASES IN EASTER TERM 1802. DAVISON against FROST. [ 308 ] rent : by the same mode of argument, the whole of the ac ctiam clause might be omitted in the writ, since the use of it was su- perseded by the affidavit to hold to bail and the indorsement on the writ. It ought, however, to appear on the face of the writ itself, whether or not it be bailable process. The indorse- ment is only to ascertain the amount, and has reference to the contents of the writ. The Court took time to inquire into the practice ; and the next day, Lord Ellenborough, C. J. said, that the writ was irregular in the frame of it, as not being in conformity to an old rule of Court of 1729 (a), which gave the form of the ac etiam clause, in which is stated the amount of the debt, and by which the practice had ever since been regulated. GROSE, J. added, that the settled forms of proceedings ought to be adhered to ; and all novel attempts to vary from them, without the authority of the Court, ought to be discouraged, Rule absolute. H. 2 G. 2. () Regula Gcneralis, H. 2 G. 2. 1729. It is ordered, That where any 1729. defendant shall be arrested by virtue of any process issuing out of this Court, in which the cause of action shall be specially specified and expressed ; or a copy of such process shall be delivered to any defendant, according to the form of the statute in such case made and provided; and the plaintiff there- upon shall declare, the defendant in such case shall not have liberty of im- parting, without leave of the Court in that behalf first to be granted ; but shall plead thereunto within the time allowed by the course of the Court to de- fendants sued by original writ ; and for want thereof, judgment may be entered against such defendants by default (6), Notice fixed in the K. D. O. Ac etiams. All clerks and attornies that intend to proceed according to the above rale, are to take notice, that in suing out such writ they do not insert in the ac ctiam the whole declaration at length ; but only describe the cause of action shortly, according to the specimen hereunder set forth, varying the same as the nature of the action shall require: Of a plea of trespass; and also of a bill of the said Q. against the aforesaid D. for fifty pounds, for divers goods, wares, and mer- chandizes sold and delivered to the said D. by the aforesaid Q. according to the custom, &c. (f) This rule is DOW enlarged to process in common form: 7Y/n. 5 A: 6 G. 2, M. 10 G. 2. and stat. 5 G. 2. c. "27, by which it is enacted, That no special writ nor process specially expressing the cause of action shall issue, unless the cause of action amount to 10/. The A IN THE FORTY-SECOND YEAR OF GEORGE III. 308 1802. The KING against BINGHAM, Clerk. Thursday Mny 20th'. RULE was obtained, calling on the defendant to shew Information in cause why an information, in nature of quo wairanto, should not be exhibited against him, to shew by what authority *or the office he claimed to be bailiff of the manor and borough of Gosport, C0l -, rt j eet be- in the county of Southampton. This rule was obtained on ing a prescrip- tivc officer affidavits, stating- that the bishop of Winchester was lord of the having power manor and borough; and that, from time immemorial, a court to * nmnion and select the leet and court baron had been holden every year about October, jury. by the bishop or his steward, within and for the same ; and that a jury and homage assembled at such courts have immemorially, from time to time, exercised the privilege of choosing the bailiff of the said manor and borough, and also the constables, overseers of the ferry, ale-conners, coal-meters, and cryer, by the custom of the manor, &c. to act for the then ensuing year ; and that the steward or his deputy has always attended the Court, and sworn in the said bailiff and other persons so chosen to their respective offices : that entries of such proceedings were invariably made in the records from 1683 to 1800; and that, prior to 1683, no usage to the contrary could be traced. [ 309 ] It was also deposed to be part of the duty of the bailiff to sum- mon the jury and homage who were required to attend the Courts, which he had immemorially performed ; he selecting from amongst the inhabitants of the manor and borough sixteen proper persons for that purpose. It was then stated, that at a court leet holden in October 1800, the jury and homage so sum- moned by the then bailiff, and sworn by the steward, R. Forhe.* was by them nominated to be bailiff for the then ensuing year; which nomination was signified to the steward, who refused to swear in Forbes, declaring to them, that the bishop had chosen Mr. Binjiti.-n (the defendant): and that the latter had since then acted as bailiff. In answer to which it was sworn by the defendant and others, that the bishop, by writing under his hand and seal, appointed the defendant his bailiff, to collect, receive, and recover from the tenants of the numor, for the bishop's use, all rents, heriots, reliefs, perquisites and profits, pavable to the lord, Cxc.; by virtue of which the defendant had since executed the said office of bailiil, the duties of which were to collect the lord's rents and revenues, 509 CASES IN EASTER TERM 1802. The KING against BlNGHAM. [310] revenues, to summon the jury and homage to attend the said Courts, to attend there himself, and to execute the precepts of the lord and his steward. The affidavits then stated matter in contradiction of the right of the jury and homage to elect the bailiff; and endeavoured to explain the practice which had pre- vailed, by shewing that, from the year 1687, the book of entries of the manor courts contained no presentments of bailiffs by the jury and homage, until 1719, when the custom first originated in consequence of the then bishop having leased all the tolls, dues, and profits of the manor, to twelve inhabitants of Gosport, most of whom had been in the habit of serving on the jury, and one of which number had usually been presented to serve this office : That the lease granted for 21 years had been renewed from time to time till very lately; and during its continuance, the lords of the manor had not intermeddled with the appoint- ment of the bailiff, Gibbs and Sturges shewed cause against the rule. The bailiff is no more than the servant of the lord ; and it is not dis- closed that he has any other public function to perform than that of summoning the jury, which may be done by any other whom the lord may direct to act in that respect : it is not there- fore such an office for exercising which the Court will grant this information : neither can it be conceived that the tenants of the manor from whom the bailiff is to collect the lord's rents and dues should be appointed by themselves, or any other than the lord himself. Properly, it is the business of the lord or his steward to summon the jury; but though they may have al- ways done this by their servant the bailiff, that will not alter the nature of his employment, or convert that which is a private into a public office. The Court must be satisfied before they grant the rule, that the defendant has been*guilty of an usur- pation on the franchise of the Crown. This is a mere minis- terial officer; and not a judicial officer like the steward. In Rex v. 'Boytes (a) an information was granted against the de- fendant, to shew by what authority he claimed to be bailiff of a ville ; but that went on the ground that it was an office of great trust and pre-eminence in the town, affecting the govern- ment of it, and the administration of public justice. In Rex v. Mein (/;) it was said by Lord Kent/on, that the office must be of (a) 2 Sira. 836. 2 Ld. Raym. 1559. S. C. (6) 3 Term Rep. 598. magnitude IN THE FORTY-SECOND YEAR OF GEORGE III. 311 magnitude sufficient for the Court to notice it by way of infor- 1802. mation, in nature of quo warranto. There the defendant was C~ ^ portreeve and returning officer : a churchwarden has much more againtt important public duties to perform than this defendant can be BINGHAM. pretended to have; and yet the Court, in /?. v. Shepherd (a), re- fused to grant even a rule to shew cause. They also argued upon the merits of the case. Burrough, in support of the rule. The bailiff is stated to be a prescriptive officer, and therefore a member of the court leet, whom the lord cannot drop at his pleasure, but must exercise the entire franchise granted to him, in the manner prescribed by the Crown ; and part of the franchise so granted is to be exercised by this officer. The importance of his function is not the question. The steward is, in many respects, the servant of the lord ; yet such an information lies without doubt against him (/;). Then how is that distinguishable on principle from the case of a bailiff? Both claim by the appointment of the Crown; which is the true criterion on which these cases turn. It appears that the bailiffis always sworn in : that shews that he is a public officer. But besides that, he not only summons the jury, but selects such of the tenants as he pleases for this pur- pose ; which is a very important function in the administration of justice. He is as much a branch of the Court as the steward. There is no other convenient method of trying the right but this ; for there are no fees annexed to the office (<) : but even if there were, that is no answer to an information for usurping r 3^0 -i any franchise of the Crown; otherwise it might be given in al- most every case. Lord ELLENBOROUGH, C. J. There appears to be sufficient doubt raised upon the fact by the affidavits, to induce us to put the matter into a course of inquiry before a jury, provided this be such an oillce for which it is fit to grant an information in nature of (/no 'irarrrtuto. I do not doubt that the office, as ap- pendant to a court leet, is such for which the information will lie. My doubt has been whether, according to what was thrown out by Lord Kan/on in Rex v. j\lein, it is of sufficient consequence () 4 Term Re/;. 381. (b) Rc.rv. llukton, 1 Stra. 621. Vide Rex v. Cum, and Amir. 14, and Hex v. Bridge, 1 HI. -10. (c) Tlii< was said in answer loan observation thrown out in the course of tl:e argument by Lord Ellcnborough ; that the question might a? well be tried in an action for money had aud received. and 312 CASES IN EASTER TERM 1802. The KIXG against BINGHAM. Thursday, May 20 til. "Where the issue is on the life or death of a person once existing, the proof lies ou the party asserting the death. *[ 313 ] and magnitude to warrant our interposition in this form. But an observation urged at the Bar has had weight with me, which is, that the bailiff' is an officer having a discretionary power as to the persons whom he should select for the j ury, which is a mate- rial function to exercise. Then having no fees annexed to his office, there is no other convenient civil mode of trying the right to it. The other Judges concurring, Rule absolute, WILSON and Others against HODGES and Another. T N debt on recognizance of bail, the breach assigned was, that ""- Michel/, the principal, had not paid the damages, nor ren- dered himself, &c. according to the form and effect of the said recognizance. Plea, That after the judgment, &c. and before the suing out the writs of scire facias, and before the return of the writ of capias ad satisfaciendum against * Michell upon the judo-ment, he, Michell, died : concluding with a verification. ^ o O Replication, That after the giving the judgment, and before the suing out of the said writs of scire facias or either of them, the plaintiffs sued out a writ of capias ad satisfaciendum against Michell, returnable, &c. to which the sheriff returned wow est in- vent us: and the plaintiffs further say that MicheU, at the said return of the said writ of capias ad satisfaciendum, and after- wards, was living, &c. which they are ready to verify. Rejoinder, That Michell was not at the said return of the said writ of ca. sa. living, as the plaintiffs had replied ; concluding to the country : on which issue was joined. At the trial before Le li/aiic, J. at the Sittings at Guildhall, the only question was, Whether the issue lay on the defendants to prove the death of Michell, or on the plaintiffs to prove that he was alive at the time mentioned I The learned Jud^e O thought that the proof of the issue lay on the defendants, who averred the death of the party; and they not being prepared with any proof of the fact, the verdict passed for the plaintiffs on that ground. To set aside which, 1'lrskine obtained a rule nisi in the last Term, on the ground of a misdirection, as well as on affidavit. Ciihbs was now to have shewn cause ; but Lord ELLENBOROUGII, C, J. said, there was no doubt but that the direction of the learned Judge was proper in point of law IN THE FottTY-SECOND YEAR OF GEORGE III. 313 WILSON ayainst HODGES. law. And he referred to the case of Throgmorton v. Walton 1802. (a), where it was decided, That where the issue is upon the life or death of a person once shewn to be living, the proof of the fact lies on the party who asserts the death ; for that the presumption is, that the party continues alive until the contrary be shewn. However, as the defendants swore that they had been misled f 314 ] by an opinion taken, which stated that the issue on these pleadings lay on the plaintiffs ; and as circumstances were deposed to, which went to prove the death of the principal as stated, The Court let the defendants into a new trial on payment of costs. Rule absolute, (a) 2 Roll. Rep. 492. PARKINSON against LEE, TNassumpsit, the first count of the declaration stated, that in ^ consideration that the plaintiff would buy of the defendant five pockets of hops at a certain price, the defendant promised to deliver to him the same, and that the hops should all lie of like goodness and quality, icilh a certain sample of the //ops contained in each of the five pockets, and then produced and shetcn In/ the defendant to the plaintiff. It then stated that the plaintiff, confiding in the defendant's promise, afterwards bought the hops, &c. and that afterwards the defendant delivered to the plaintiff five pockets of hops as and for hops of like goodness and quality with the respective samples so as aforesaid produced and shewn to the plaintiff: yet that the defendant did not re- gard his said promise, but thereby deceived and defrauded the plaintiff in this respect, that the hops contained in each of the five pockets so delivered to the plaintiff, at the time of the de- livery thereof, to him were not Imps of like 'goodness and quali- ty with the respective samples, but were much interior, JN.C. and were bad, damaged, and unsaleable hops ; whereby the plaintiff lost the benefit of selling the same, cko. and o-.unin'j large * profits, vc. The second count stated the contract to be, that in consideration that the plaintiff would buy of the de- purchaser]) such seller is not answerable, though chan table. the goods turned out to fuucUuit Upon a sale of hops by the sample, with a war- ranty that the bulk of the com- modity an- swered the sample, the law does not raise an im- plied warranty that the com- modity should be merchant- able ; though a lair merchant- able price were, given ; and therefore it' there be a Lit* ut defect then existing in it, unknown to the seller, :uid without fraud on his part ( but ari>- inff from the fiaud ot the grower from whom he be unnier- *[ 3J-5 j 315 CASES IN EASTER TERM 1802. fendant five other pockets of hops at a certain price, the'de- . fendant promised the plaintiff to deliver to him the same, PARKINSON . . aqainst " anc * that tne same should be good, sound, and merchantable LEE. " hops ;" and then alleged the purchase and delivery, as before, of so many pockets of hops as and for good, sound, and mer- chantable hops; yet that the defendant did not regard his pro- mise, but thereby deceived and defrauded the plaintiff in this respect, that the said hops at the time of the delivery thereof to the plaintiff, were not good, sound, and merchantable hops ; but on the contrary, were bad, damaged, and unmerchant- able; whereby, See. There were other common money counts, concluding to the plaintiff's damage of 200/. Plea, non- assumpsit. At the trial before Le Blanc, J. at the Sittings after last ftl't- c/taelmas Term at (Jnilclliall, it appeared that the plaintiff and defendant were both dealers in hops. In January 1800, the five pockets were purchased by the plaintiff of the defendant, . warranted to answer the samples by which they were sold. They were not, however, removed till the 8th of July from the defendant's to the plaintiff's warehouse. The price paid was 16/. 5s. per cwt. which was the fair market price at the time for good merchantable hops. Previous to, and at the time of the sale, the samples answered fairly to the commodity in bulk ; and no defect was perceptible at that time to the buyer: but owing to the grower of the hops having fraudulently watered them after they were dried, before they were originally pur- chased by the defendant (a fraud to which the defendant was not privy, and of which he was wholly ignorant at the time- of [ 316 ] the sale), it was discovered a few days after the removal of them to the plaintiff's warehouse, that one of the pockets was so much heated as to be in an unsaleable condition ; which pocket was thereupon immediately returned to the defendant, who received it back, and allowed for it in settling the account for the other hops, which was done on the 18th of October following. In the intermediate time, however, it was found that iiie other four pockets were in the same unsaleable condition from the same cause; but, owing to the plaintiff havino- fi rs t attempted to maintain an action against Clarke, the "Tower, under the mistaken supposition that the defendant was only actiivr as his agent (which action was afterwards discontinued on finding that the defendant was not agent but vendee), the present action was not IN THE FORTY-SECOND YEAR OF GEORGE III. 31G hot commenced till upwards of a twelvemonth after the transac- 1802. tion, and after a refusal by the defendant to allow for the rest of p " the pockets. It appeared further, that the object of watering agauil't* hops after they are dried, is to give them weight; but the ef- LEE. feet of it is, after some months, to cause them to heat and cor- rupt in the pockets or bags into which they are packed, till at last they become quite unfit for sale. This effect is not pro- duced on the sample, which is usually taken from the middle of the bag, by means of its exposure to the air. It is impossible even for the best judges of the commodity always to detect this fraudulent practice for some time afterwards, by any in- spection of the sample or of the commodity itself in bulk, till it is disclosed by the gradual process of heating. However, by the latter end of July 1800, the effects of it were apparent in all the pockets ; and at the time of the trial, although the samples still continued as at first, the commodity in bulk was become perfectly unmerchantable. Upon this evidence the learned Judge left it to the jury to find for the defendant on [ 317 ] the first count, if they were satisfied that the commodity agreed at the time with the sample by which it was sold, and there was no fraud on his part ; notwithstanding any latent de- fect in the commodity in bulk unknown to the parties, by which it became afterwards deteriorated. But lie instructed them, that if they were satisfied that the commodity, at the time of the sale, had such a latent defect, as no prudence or skill of the buyer could, on inspection, detect or guard against, the plaintiff was entitled to recover on the implied warranty in the second count, although the seller had no knowledge of such latent defect ; it being the understanding of both parties to such a contract, though not expressed in the special warranty, that the one was to sell and the other to purchase a merchant- able commodity. He also left it to the Jury to consider whether the plaintiff, by delaying so lonir to proceed against the de- fendant, had thereby waved his remedy against linn .' which the Jury answered in the negative; and found for the defendant on the first count, as the commodity answered in fact to the sample at the time of the sale, without fraud, and he had then no knowledge of the latent defect of the commodity. And they gave a verdict for the plaintiff on the second count, con- sidering; that there wa.> an implied warranty in the seller thai 317 CASES IN EASTER TERM 1802. that the commodity was in a merchantable state at the time of PA^SO* the sale " against A rule mst was obtained in the last 1 erm for setting aside LEE. the verdict and having a new trial on the ground of a misdirec- tiion of the Judge in point of law, and of a defect of evidence to support the finding of the jury en the second count. [ 318 ] Lambe now shewed cause, and contended, that notwithstand- ing the proof of an express warranty by the defendant, the seller, that the commodity should answer the sample, the per- formance of which was found by the Jury for the defendant, there was also an implied warranty in every contract of this nature, where a fair price was to be given, that the commodity should be in a merchantable condition at the time of the sale ; otherwise the buyer might receive a different thing from that which he stipulated for, and which it was the understanding of both parties that he should have. In -Stuart v. Wilkhis (a), it was contended by the defendant's counsel, and not denied, that there were two sorts of warranty; 1. expressed; 2. implied. That was the case of a warranty of ahorse ; where the plaintiff declared in assnmpsit; and held well, because such a form was adapted to let in both proofs, if necessary. A person, by stipu- lating expressly for a particular quality or the like in a commo- dity, cannot be understood as thereby relinquishing all claim to the general soundness and marketable state of such commodity ; if so, the greatest inconvenience would ensue in trade, and no man would venture to make a specific contract, for fear of omitting any thing which would otherwise be implied in com- mon good faith and the usage of trade, which is bottomed in confidence. In a policy of insurance there is no express stipu- lation that the ship shall be sea-worthy ; but that is holden to be implied; and therefore the want of knowledge in the assured that the ship has a latent defect which renders her not sea- worthy, is no answer to the breach of such implied warranty. [ 319 ] If one agree to purchase iron at the market price, which the seller warrants to be Russian, that does not exclude the implied undertaking that it shall be marketable iron. So if one stipu- lated to purchase wine of such a vintage for a fair price, it would be no answer to an action for delivering sour wine, that m it was of that vintage. So a custom in a country that tenants (a) Dougl. 20. shall TN THE FORTY-SECOND YEAR OF GEORGE III. 319 shall have the way-going crop after the expiration of their term, 1802. is good, though they held by deed, without such stipulation (a). p ' It is true that a sound price does not in itself necessarily import A ^!? X /* 1 1 * * CZfyCtc/ioC a warranty ot soundness; but it is a circumstance from whence LEE. the Jury may collect what was the real contract between the parties. It may be different where a defect is apparent on the face of a commodity; there it may fairly be presumed that the buyer exercised his own judgment upon it; at'least it was his own fault if he did not : but this was a latent defect, which no prudence or sagacity of the buyer could detect ; against such he gives credit to the seller. Whatever natural defects or infir- mities are incidental to the subject-matter, the buyer must take the risk of; such as those with which horses are afflicted ; such as the perishable nature of all sorts of goods : to such defects the maxim caveat employ applies; but the latent defect of the hops in this cause arose from the fraud of man, which the buyer at a fair price has no reason to contemplate. Here the sub- stance of the issue was, Whether or not the buyer contracted for the purchase of the commodity with all latent defects : which the verdict of the Jury has negatived, and it was a question for their consideration. Urskine and Espinasse, in support of the rule, relied on the maxim caveat emptor; their beino- neither warranty nor fraud [ 3'JO j on the part of the defendant. This was a latent defect origi- nating in the fraud of the grower, but wholly unknown to the seller at the time; for which, therefore, nothing but an express stipulation can render him liable to the buyer : all that he en- gaged for was, that the commodity was answerable to the sample by which it was sold : and that is found by the Jury. Where a sale is by sample, provided the sample be truly taken, it is the same as if the buyer had examined the commodity in bulk ; therefore both parties must be taken to have the same oppor- tunity of knowledge. No implied warranty can be raised from a fair price in the sale of hops any more than in the sale of a horse, where it is admitted that it not does exist. Neither is there any ground for distinguishing between the latent defects or infirmities of the one and the other : both may originate from the act of man operating by natural means. Every person en- tering into a contract iu the course of trade, is presumed to 00 ll'i.wh'mt'ortli v. Dallii:>n, D.wJ. 201. VOL. II. S 320 CASES IN EASTER TERM 1802. have a competent skill to enable him to judge of the commodity : he bargains for. He knows the defects to which it is liable, as 1 against ' we ^ from fraud as from natural causes, and he speculates ac- LEE. cordingly. In the instance put, of purchasing- wine, if the sample as well as the pipe contained in it the principle of future acidity, though not then perceptible to the palate of the indi- vidual purchaser, and the only warranty was, that the pipe answered the sample, it is clear that the seller would not be bound to stand to the loss. Where else can the line be drawn? and what degree of future deterioration from pre-existing causes will be sufficient to set aside the contract? Implied warranties may arise out of known usages of trade, because both parties are presumed to have engaged on such known terms : but here [ 321 ] no usage was proved for the seller to stand to frhe loss ; on the contrary,, witnesses engaged in the hop-trade were called by the defendant to shew, that in the understanding of the trade the buyer was to stand to the risk of latent defects : but the learned Judo-e refused the evidence, as amounting to no more than opinion. If then an implied warranty be to be raised in this, it must in all other carses of sale ; and then the maxim of caveat emptor will become an exception instead of a general rule. GROSE, J. This is a case of considerable consequence; be- cause the rule laid down in this case must extend to all other cases of sales, not governed by particular usages of trade in this respect. The question is, "U 'hether in the case of a sale, made under the present circumstances, there be any implied under- taking in law, that the commodity be merchantable ? Xo ex- press undertaking is proved to that effect; and there is no fraud imputed to the defendant. The mode of dealing is, that the plaintiff buys hops from the defendant, whom he knows is not the grower, by samples taken from the pockets in which the commodity is close packed. He has an opportunity of judging by the samples such as he finds them at the time. If he doubt the goodness, or do not choose to incur any risk of a latent defect, he may refuse to purchase without a warranty. If an express warranty be Driven, the seller will be liable for any la- tent defect, according to the old l:i\v concerninu' warranties. But if there be no such warranty, and the seller sell the thino- such as he believes it to be, without fraud, I do not know that the law will imply that he sold it on any other terms than what passed in fact. It is the fault of the buyer that he did not insist on IN THE FORTY-SECOND YEAR OF GEORGE III. 321 on a warranty ; and if we * were to say that there was, notwith- 1802. standing, an implied warranty arising from the conditions of p the sale, we should again be opening the controversy, which aaainst ' existed before the case in Douglas. Before that time it was a LEE. current opinion, that a sound price given for ahorse was tanta- * [ ^22 ] mount to a Avarranty of soundness; but when that came to be sifted, it was found to be so loose and unsatisfactory a ground of decision, that Lord Mansfield rejected it, and said there must either be an express warranty of soundness, or fraud in the seller, in order to maintain the action. Here neither has been shewn; the defendant merely sold what he had before bought upon the same mode of examination. Therefore I think there ought to be a new trial. LAWRENCE, J. I agree with my brother Grose, that there is no ground for the plaintiff to recover. It is not pretended that the defendant has been guilty of any fraud or imposition in the sale ; and I must suppose that each party was equally well acquainted with the commodity bargained for. There was no representation made by the defendant to the plaintiff as to the goodness of the hops, to induce him to make the purchase. But here was a commodity offered to sale, which might, or might not have a latent defect : this was well known in 1 lie trade : and the plaintiff might, if he pleased, have provided against the risk, by requiring a special warranty. Instead of which, a sample was fairly taken from the bulk, and he exercised his own judg- ment upon it ; and knowing, as he must have known, as a dealer in the commodity, that it was subject to the latent defect which afterwards appeared, he bought it at his own risk. I know of no authority which makes the seller liable for a latent defect where there is no fraud; and no representation was made by him on the subject, to induce the buyer to take the thur_r. In [ 3:23 ] 1 Roll. Abr. 90. P. it is said, that if a merchant sell cloth to ano- ther, knowing it to be badly fulled, an action on the case in nature of deceit lies against him, because it is a warranty in law. But there is no authority stated to shew that the same rule holds if the commodity sold have a latent defect, not known to the seller. So again, the case is there put : If a man sell me a horse with a secret malady, without warranting it to be sound, he is not liable : that is, if there be no fraud. The in- stances are familiar in the case of horses. If- is known that they have secret maladies, which cannot be discovered by the S :.' 323 CASES IN EASTER TERM 1802. trials and inspection of the horse ; therefore the seller requires p ~~ __ T a warranty of soundness, in order to grant against such latent aqainst defects. Then how is this case different from the sale of a LEE. horse, where it is admitted that the buyer must stand to all such latent defects. To pursue the analogy still further : on the sale of real estates, the seller subnvts his title to the inspection of the purchaser, who exercises his own or such other judgment as he confides in on the goodness' of the title : but though it should turn out to be defective, the purchaser has no remedy, unless he take a special covenant or warranty; provided there be no fraud practised on him to induce him to purchase. If there be, as is said, many frauds practised in the trade of hops, that may require more caution on the part of the buyers to pro- tect themselves by taking warranties ; even that will not affect the present contract, which was no more than that the bulk should agree with the sample ; which it was proved to do at the time of the sale : and as the seller undertook for nothing more, he cannot be answerable in this case. [ &24 ] LF. BLANC, J. The inclination of my mind at the trial was, that the jury should find for the plaintiff; because the drawing of fresh samples, or the inspection of the commodity itself in bulk, would have afforded no information to the buyer, as to the latent defect which afterwards appeared : and therefore it occurred to me, that as there was no want of prudence on the part of the buyer, and the defect was of such a nature that no inspection of the thing could have led to a discovery of it, the law would on that account raise an implied undertaking on the part of the seller, that it was a merchantable commodity, such as it appeared then to be. But, upon further consideration, as the same rule which applies to other cases must o-overn this ; and as in the only instances in wlwch the same question has come directly in judgment, namely in sales of horses, it has been con- sidered that, without a warranty of soundness by the seller, or fraud on his part, the buyer must stand to all losses arising from latent defects : and as I see no ground for distinguishing between this case and those: and no instance lias been produced in which a contrary rule has been laid down in respect of any other commodity, I therefore concur with my brothers, that there should be a new trial. Lord ELLENBOKOUGH, C. J. then observed, that as he had been concerned in the cause, he had forborne taking any part in IN THE FORTY-SECOND YEAR OF GEORGE III. 324 in the deliberation with the rest of the Court; but liavino- now 1802. ' o heard their opinions, he must declare his entire concurrence p "" with them in the judgment they had delivered. against Rule absolute. LEE, r *^o " i CASTLING against ALBERT. O T* 1 ! natty, May 2 1st. was an action on the case, to recover damages for a The plaintiff, breach of an agreement, which was tried at the Sittings a broker, hav- fj 1 , rn m ' 1 1- . n in , , . '!,' a hell Oil alter last 1 nnity \ erm ; when a verdict was found for the plain- certain poii- tiff for '231. subject to the opinion of the Court, on the following Clts of J, nsur ", ance, ertecteu Case. for his prin- The plaintiff was employed by one E. P. Grai/wn, as his c ', pal ',, , general agent; and, as an insurance-broker, had effected for given Ins ac- his use certain policies of assurance mentioned in the declara- delfenUant' * ' tion, of the value of 3000/. That the plaintiff was under ac- promised that ceptances for Grai/son, for bills drawn by G rat/son for his own vide for'the accommodation ; and that the plaintiff had a lien on the said P a >' meilt ot ' . . . those accept- policies to indemnify himself against his said acceptances. I hat am-es as they a loss havino- happened on" the policies of insurance which the I)CC ' llll( ; dilc > ^ L L upon tlie under-writers had agreed to pay, but which Grat/snti could not plaintiff" s uiv- receive without having the policies to produce, the plaintiff was "^h''^.'^ applied to, to give them up for that purpose to the defendant, murder that he into whose hands Grai/sou had at that time transferred the forViiVpriti- 1 management of his insurance concerns. That some of the plain- oi P al tlie tifFs said acceptances for the use of Gra i/wn being then outstand- tiicrcou from ino- and unpaid, and particularly the bill for 1S1/. lx. mentioned tll? luulei '- . . , V.IIK is ; in the declaration, then in the hands of one Cator, upon v. liich whicii was writs had been sued out (though not then executed) iiLrainst accor(iin S I y x . . , done, and the Grayson, as the drawer, and the plaintiff as acceptor, flu- plain- n^m > was tiff refused to deliver up the policies of assurance, they being the *ej7 P \V'bv\lie" only securities he had against his said acceptances, without an d( umlaut: indemnity ; and that thereupon a meet in ^ was held between plain- was ', lnt ;i j,,- . tiff and * defendant and Grai/aoii, at which it was verbally agreed lllis( ' ''"' '''' between the parties, that the defendant should pay into the t-mit t un- hands of a banker 7127. 13.s. Qd. to answer in part certain olln-r OIilt ' 1 ' Wlthi 1 the statute ot acceptances of the plaintiff's, exclusive of the bill for 1S1/. 1>. : tiam!>: and and that the plaintiff should provide -241/, 14s. Gd. towards pa } - ^g^""* recover against the defendant as well for the breach of agreement in not providing for the payment of the acceptances, as also upon a count for money had and received, * -*. r ) "* C" " mci- I 326 326 CASES IN EASTER TERM 1802. CASTLIXG against AUBEBT. [327 ] ing one of his acceptances for 350A ; and that the defendant should pay the bill of 181/. Is. and the costs of the action which had been brought thereon against Gray son, amounting together to 2027. ; and that thereupon the said policies should be de- livered up to the defendant. That, in pursuance of this agree- ment, the defendant paid into the banker's hands 7121. 13s. 6d., and the plaintiff delivered up the policies to the defendant. That the defendant received from the under-writers the amount of other subscriptions (a) on the policies so delivered up to him by the plaintiff. That the defendant was afterwards called upon by the attorney of Cator, to pay the said 202/. for the debt and costs on the bill in Gator's hands, but refused to do so : nor had he paid it at the time this action was commenced; and that, in consequence of such refusal, the plaintiff was arrested at the suit of Calor, as acceptor of the said bill of exchange, and sustained damages thereby to the amount found by the Jury. The ques- tion for the opinion of the Court was, Whether the promise of the defendant to pay the said 202/. due from Gray son, for the said debt and costs, on having the policies of assurance de- livered to him, was void under the statute of frauds ? or, Whether he were liable by reason of the plaintiff's parting with the pos- session of those policies, upon which the plaintiff had a lien, and which were so deposited .with the defendant. Espinase for the plaintiff contended, that the statute of frauds (29 Car. 2. c. 3. s. 4.) was no bar to the plaintiff's recovery in this case, as it only applied to cases where there was no con- sideration for the promise ; where there was neither benefit to the defendant, nor damage to the plaintiff, but only a mere parol undertaking by the one to the other to answer for the debt or miscarriage of a third person. Whereas here, the plain- tiff having made himself responsible by his acceptances for Gray- son to a large amount, and having security in his hands to that extent, was induced to part with such security to the defendant, iu consideration of his undertaking to provide for those ac- ceptances. There was therefore a loss to the plaintiff, and a beneficial consideration to the defendant. The construction of the statute was much canvassed in PUlans v. Fan Mierop (b}. inimol, J. said, " If it be a departure from any ripht, it will (a) To an amount, as was Mated at the ]Jar, much beyond the sum in dispute. (b) 3 Burr. 16C3. 1672, 1673. "be IN THE FORTY-SECOND YEAR OF GEORGE IIF. " be sufficient to graft a verbal promise upon." Now here was a departure from the plaintiff's lien on the policies. Yatcs, J. in the same case said, " Any damage to another, or suspen- " sion, or forbearance of his right, is a foundation for an un- " dertaking, and will make it binding, although no actual bene- " fit accrue to the party undertaking." Here the damage to the plaintiff is the loss of his security, the value of which has been received by the defendant, if that were necessary to sustain the plaintiff's right of action. And according to 'Butler, J. (a), it is sufficient to sustain a promise that there be either a damage to the plaintiff, or an advantage to the defendant. The statute of frauds has always been confined in its application to collateral undertakings for a third person, and where at the time there was a subsisting debt or duty due by such third person to the party to whom the collateral undertaking was made. The un- dertaking must be for the debt of another already contracted.. Head v. Nash (//). But there was no debt due at the time from Gra i/son to Castling; the latter had only given the former his. acceptances ; but they were still outstanding and unpaid. The case of Williams v. Leper (c), is directly in point; where a broker, being employed to sell the goods of an insolvent for the benefit of creditors, in order to prevent the landlord of the in- solvent from distraining, gave him a pavol promise to pay the rent in arrear if he would desist: and this was liolden not to be within the statute of frauds, inasmuch as the landlord had a lien on the goods, a legal pledge, the parting with which was a good consideration for the promise. So in Meredith v. Short ( would restore the goods of the debtor taken in execution, wa.s holden irood. Gibb*, contra, contended that the promise was void by the statute of frauds ; which did not merely avoid parol promises by a third person to pay the debt of another, but also to answer for his default or miscarriage. This then, if not a promise to pay an existing debt, was at least a promise by the defendant to. answer for the default or miscarriage of Graysvn, in case he did not indemnify the plaintiff for his acceptances when they IK- () Cookc v. Oxloj, 3 Term Rep. 651. (&') 1 "'<'*' 305. ((,) 3 Burr. 1836. (d) Salic. '2^ (e) Ibid, ^.'o. 1802. CASTLING against A U BERT, [328 ] CASES IN EASTER TERM 1802. CASTLING against AUBERT. [329 ] [ 330 ] came due, and were paid by him on Gray son's account. The plaintiff was bound to pay his acceptances when due: when paid, the amount would constitute a debt from Grayson to him : and this is a promise by the defendant to pay that which Gray- son would be bound to pay : that is, provided Grayson himself did not discharge the obligation. It is no answer to say, that if there be a direct consideration passing between the plaintiff and the defendant, though with reference to the debt or default of a third person, it takes the case out of the statute : for then the statute was unnecessary and nugatory; for, even before the statute, there must have been some consideration passing be- tween the parties to support the promise, otherwise it was nu- dum pactum : the statute therefore must have been intended to attach on cases where there was such a consideration : but the construction contended for, operates as a repeal of it. The only case which presses against the defendant, is that of Williams v. Leper (a) ; which, however, is distinguishable from the present : for there, if the landlord had actually distrained the goods and *s O sold them, it would have been a satisfaction and extinguishment O of the debt as between him and the tenant. While the landlord held a competent distress, he had, as it were, a special property in the goods, and could have no other remedy for his original demand. The promise then by the broker was a new debt, and not a collateral undertaking for the debt or default of another. At the time when the new consideration attached between those par- ties, the old debt of the tenant was extinguished ; whereas here, after the promise by the defendant, the plaintiff' still had his remedy against Gray son. Lawrence, J. You argue as if the landlord there had made an actual distress ; but he had only given notice of his intention so to do. Lord Ellenborough. The mere agreement with the broker there not to distrain, would not estop the landlord from after- wards distraining upon the tenant. Then if that case were not decided on the ground that the landlord had relinquished his principal remedy against the tenant, it cannot be supported at all, being in direct contravention of the positive words of the statute. Grayson'* debt js still due, and he is still answerable for it to the plaintiff; and the defendant can only be liable upon (a) 3 Burr. 1886. IN THE FORTY-SECOND YEAR OF GEORGE III. 330 CASTLING against his undertaking, because it is the debt of Grayson. In the case 1802. relied on, Aston, J. considered that the goods were the debtor, and that the broker was not bound to pay the landlord more than they sold for; and on that ground alone he agreed with the AUBERT. rest of the Court. He also referred to Chater v. Beckett (a), to shew that where the old debt remains, no new or additional obli- gation will take the case out of the statute in respect of the original demand. Lord ELLENBOROUGII, C. J. at the close of the argument, observing that there was a count for money had and received, said, that the plaintiff was entitled to recover upon that count, even upon the ground suggested by Mr. Justice Aston in the case of Williams v. Leper; for the defendant had received money to a much larger amount from the under-writers upon the poli- cies. His Lordship afterwards continued : I am clearly of opinion, that this is neither an undertaking for the debt, default, or miscarriage of another within the stat- o tute. It could not be for the debt, but rather for the credit of [ 331 ] another; for when the promise was made, no debt was incurred from Grayson to the plaintiff, therefore, if at all within the sta- tute, it must be for the default or rniscarriao-e of another. But O see what the case is: The plaintiff, who was Grmjson's broker, had policies of insurance in his hands belonging to his principal, which were securities on which he had a lien for the balance of his account; and on the faith of these he agreed to accept bills for the accommodation of his principal. One of these bills became due, and actions Avere brought against the plaintiff as acceptor, and against Grayson as drawer: and it was desirable that the policies should be given up by the plaintiff to the defendant, in order to enable the money for the losses incurred to be received from the under-writers ; the defendant under- taking, upon condition the policies were made over to him, to settle the acceptances due, and lod^e money in a banker's hands for the satisfaction of the remainder as tiiey became due. The defendant then procured from the plaintiff the securities upon the faith of this engagement; in entering into which he had not th->, discharge of G rat/son principally in his contemplation, but the discharge of himself. That, was his moving considera- tion, though the discharge of Grayson would eventually follow. (a) 7 Term Rep. L'Ol, 11 331 CASES IN EASTER TERM [ 332 ] 1802. It is rather therefore a purchase of the securities which the plaintiff held in his hands. This is quite beside the mischief pro- against vided against by the statute ; which was that persons should not AUBEKT. by their own unvouched undertaking, without writing, charge themselves for the debt, default, or miscarriage of another. In the case of a bill of exchange for which several persons are liable, if it be agreed to be taken up and paid by one, eventually others may be discharged; and the same objection might be made there: but the moving consideration is the discharge of the party himself, and not of the rest, though that also ensues, Upon the whole therefore, I agree with the decision in Williams v. Leper to the full extent of it: I agree with those of the Judges who thought the case not within the statute of frauds at all : and I also agree with the ground on which Mr. Justice Aston proceeded, that the evidence sustains the count for money had and received. GROSE, J. I agree with the case referred to on both grounds, and think it would be improper to over-rule it. LAWRENCE, J. This is to be considered as a purchase by the defendant of the plaintiff's interest in the policies. It is not a bare promise to the creditor to pay the debt of another due to him, but a promise by the defendant to pay what the plaintiff would be liable to pay, if the plaintiff would furnish him with the means of doing so. LE BLANC, J. This is a case where one man having a fund in his hands which was adequate to the discharge of certain incuni- brances ; another party undertook that, if that fund were de- livered up to him, he would take it with the incumbrances : this, therefore, has no relation to the statute of frauds. Posted to the plaintiff. [ 333 ] Friday, LEE against CLARKE, in Error from C. B. fTiuuy, May 21 st. TN debt for a penalty on the game laws, the declaration stated, In an action "-that Daniel Lee, within the space of six calendar months on a penal statute, the next declaration must allege the fact to be clone contra formam statnti, or statutorum, as the. case may be : statin},' that by farce of the statute an action accrued, &c. is not sufficient, where the penalty is given by one statute, and the right of action to the informer is given by another. Scmble where the record was entitled generally of IJH. 41 Q. ,s. an , the fact was laid under a viz. on 21st of January, 1801, whereas the return of the capias must have been at latest on 20ih January, and so the suit appeared to be commenced before the cause of action, contrary to the averment in the declaration ; such repugnancy is no ground of error. Semite IN THE FORTY-SECOND YEAR or GEORGE III. 333 next before the commencement of this suit, to wit, on the 21st 1802. of January 1801, at &c. unlawfully used a certain engine called a Snare, to kill and destroy the game of this kingdom, he the said Daniel, not being then and there qualified by the laws of this realm, nor having any lawful authority so to do ; whereby, and by force of the statute in that case made and provided, an action hath accrued to John Clarke, to demand and have of and from the said Daniel five pounds. Plea, nil debet. After ver- dict and judgment for the plaintiff below in C. B. a writ of error was brought in this 'Court, and the following errors assigned : 1. That the supposed offence is not alleged to have been com- mitted against the form of any statute or statutes, not being an offence at common law. 2. That the supposed cause of action is alleged to have accrued to the plaintiff below, by force of the statute in that case made and provided : whereas the same ac- crued, if at all, by force of several and different statutes, made in different sessions of parliament, and not by any one statute. 3. That the plaintiff below commenced this suit against the de- fendant before the cause of action mentioned accrued; 4. That the cause of action is therein stated to have accrued within six r 001 -t calendar months next before the commencement of the suit; whereas by law an action upon such cause of action, ought to be brought within six lunar mor.ths next after, &c. 5. It is not averred in the declaration that the plaintiff below commenced his suit before the end of the second Term after the supposed offence committed. Nor, 6. That he was the first person who sued the defendant for the said penalty. Danipier for the plaintiff in error. 1. No offence is stated at common law, nor averred to be done against any statute: it is only said that the statute gives the action. Now the statute which gives the action is not the same which constitutes the of- fence. The penalty is 2,iven on summary conviction by the statutes 5 Ann, c. 14. and 9 Ann, c. 25. Then thestut. S (ia>. 1. c. 19, gives an action to a common informer to recover half the penalty. And lastly, the stat. 2 Gco, 3. c. 19. s. 5, gives the Semlle if a statute give an action within six months after the fact committed (by \vtiich niu.it be understood lunar months) and the declaration aver such fact within six cnhmlar months before, it is no error; as it will be presumed after verdict that the fact was proved within due time, notwithstanding such irrelevant allegation. Semitic that a declaration for a penalty on killing game in an action brought for the \vholc penalty on the stat. e G. S. <. r. 1 . .<..>. and prior statutes need not allege the fact to have been committed within t\vo Teims before the action commenced, according to btat. 6 G. ','. c- i.'. the stat. 2 G. 3. having allowed six months. o whole 334 CASES IN EASTER TERM 1802. whole penalty to the informer, which is now sought to be reco- ~ vered. Therefore, the present action is founded in part upon against a ^ the statutes. A statute may, for a thing actionable at com- CLARKE, mon law, give an action to another than the party who could v in ,rror. have sued at common law ; as in the case of the assignee of a 7 D bail bond, and in the case of a replevin bond : but here the of- fence, which is not actionable at common law, is not averred to be so by the statute. It ought to have been alleged, that the thing done for which the penalty was aiven, was against the form of the statute. Formerly it was holderi necessary to recite a statute where it created a new offence: Com. Die:, action on 7 O stat. G.; though now it is deemed sufficient for the declaration to shew a case within the statute ; but still it must conclude con- tra formam statuti, 1 Ventr. 103 ; otherwise the question could [ 335 ] never have arisen in many cases, whether the conclusion should have been contra formam statuti, or statntorum; for in either case it would have been surplusage. A penal action requires nearly the same strictness as an indictment (). 2. The two statutes of Ann give the penalty in this case, and two other sta- tutes give the action as now framed, viz. the stat. 2 Geo. 1. c. 19, gives the action to the informer for half the penalty, and the stat. 2 Geo. 3. c. 19. s. 5, assuming that the action is given by the prior statute, enables the informer to sue for the whole pe- nalty : but the provisions are not incorporated, as they are dif- ferent with respect to costs; therefore penalty and the form of action being given by different statutes, the conclusion ought to have been against the form of the statutes, and not of any single statute : according to Dinghy v. Moore (b), and Brougkton v. Moore (c), and Ta/bot's case there cited. 3. The suit appears to have commenced before the cause of action accrued. The record is generally of Uil. 41 Geo. 3. and the day laid is the 21st January 1801, whereas the return of the capias must have been at latest on the first return of the Term, namely the 20th January, the day before the cause of action is alleged. This action being commenced in C. B. the reasoning in Pinfk v. Ro- binson (d), does not apply; for the cause of action must in this case precede the return of the writ. 4. The offence is alleged to have been committed within six calendar months before the () Vide 2 Hawk. P, C. c. 25. s. 116, 1 17. (/,) Cro. FAh. 750. (c)Cro.Jac.U2. (d) I Term Kep. 116. com- IN THE FORTY-SECOND YEAR OF GEORGE III. 335 commencement of the suit; whereas the stat. 2 Geu. 3. c. 19. s. 5, 1802. mentioning- months generally, must be taken to mean lunar TEJE" months; and therefore, consistent with this averment, which against alone the plaintiff was bound to prove at nisi prius, he may have CLARKE, sued too late. And the averment cannot be rejected as surplus- r*qq/j -j age ; because the action being founded on a statute, the plaintiff must aver every matter requisite to entitle him to the action. Com. Dig. action on stat. A. 3. College of Physicians v. Bus/i, 4 Mod. 47. [Lord Ellenborough. Notwithstanding the alle^a- *- O o ~ tion, that the offence was committed within six calendar months, &c. yet if it were not committed within the time prescribed by the statute before the commencement of the suit, the plaintiff must have been nonsuited. Laivreme, J. The time having lapsed would have been evidence for the defendant on the plea of nil debet. The argument goes the length of assuming, that if no time whatever had been alleged, it would have been suffi- cient for the plaintiff, at nisi prim, to have proved the offence committed at any time before the action commenced ; which cannot be pretended.] It might, perhaps, have been requisite, if no time had been alleged, to have proved the offence com- mitted within six lunar months before; but there beino- a direct averment of another period, it would have been a sufficient an- swer to the objection, if the proof had referred to a period be- yond the six lunar months, but within the six calendar months, to have said that the plaintiff was only bound to prove what was expressly alleged ; and that the objection, if any, was open upon the record. 5. It ought also to have been averred, that the ac- tion was commenced before the end of the second Term after the offence committed; to which period it is limited by the stat. 26 Geo. 2. c. 3. ; and though the stat. 2 Geo. 3. r. 19, says within six- months, yet that would not in all cases extend the time given by the former statute : so that the latter only operates as a repeal pro tanto; and both statutes are still in force, and must be taken [ 337 j to have limited the action to be commenced within six months, provided it do not extend beyond two Terms. The words in the last statute are negative words, and not words of extension. The 6th error is not material to be insisted on. Wood, contra. 1. In an action on a penal statute, it is not ue- cessarv to aver that it is contra formam tlttltdi ; it is sufficient i! so much be stated as brings, the case within some, public statute. A- 337 CASES IN EASTER TERM As was said in Coundell v. John (a), that "where a statute in- " troduces a new law, by giving; an action where there was none against " before, or by giving a new action in an old case, the plaintiff CLARKE, need not conclude contra formam statuti:" but if a statute give or * the same action, with a difference of some circumstances, as double damages, &c. the plaintiff must either conclude contra formam statuti, " or make his case so particularly within the "statute, that it may appear to be so." In another report (b) of the same case, Lord Holt is made to say, " If no action lies at' "the common law, and you may have an action by a general "statute, then if you bring yourself within the description of "such statute, you need not conclude contra formam statuti: so "it was agreed in the year 1656, when Roll and Newdigate sat "here." The cases cited contra are indictments or informations, which differ from the present. But if it be necessary to shew that the action is framed on a statute, the conclusion here, "whereby and by force of tJie statute in that case made an action "hath accrued," &c. is sufficient for that purpose. 2. The ac- tion given to this plaintiff to sue, is only. by one statute: and [ 338 ] therefore the conclusion in the singular number is proper. The penalty indeed was created by the stat. 5 Ann. ; but the plaintiff sues only upon the stat 2 Geo. 3. c. 19. s. 5. Le B/anc, J. Would you have been satisfied to have added that statute after the averment in the count? 3. There is a positive allegation that the fact was committed before the commencement of the suit: therefore, at most, there is only a repugnancy of date, which is no error, but may be rejected as surplusage. Adams v. Goose, Cro. Jac. 96. 4. This error assigned is repugnant to the last; for as that stated that the suit was commenced before the cause of action accrued, that it was not commenced soon enough after the cause of action accrued; for that it is only alleged within six calendar months, whereas it should be broughtwithin six lunar months. But the answer already given by the Court is sufficient; the allegation itself was unnecessary, and may be rejected; and after verdict the Court will presume that the fact was proved within due time. 5. It was not necessary to allege the action commenced within two Terms, as well as six months, which is the period allowed by the last statute: but at any rate the answer last () Sulk. 505. (b) Holt's Rep. 631. given IN THE F6RTY-SECOND YEAR OF GEORGE III. 338 given will equally apply to this objection. 6. If this plaintiff 1802. were not the first who sued for the penalty, that should have been pleaded in bar. Lord ELLENBOROUGII, C. J. To some of the errors assigned, CLARKE, an answer has already been given by the Court : such as those in Error, with respect to the allegation of the time within which the action was commenced, being stated to be within six calendar instead of lunar months, and not stated to be within two Terms. The allegations were not material; and we cannot now presume that the fact was not proved to have happened within the time prescribed by law for the commencement of the suit. It also strikes me that there is no weight in the third error assigned. [ 339 ] A repugnancy of date on the record is no error : the Court will suppose that the cause of action existed, as it is averred, before the action was commenced. But I cannot so well dispose of the first error, that the offence for which the penalty is given is not alleged to be against the form of the statute ; it being clear that this was no offence at common law, and only made so by the statute. Such an averment has. always been considered ne- cessary; otherwise the cases alluded to, which turned on the distinction between such averments in the singular or plural number, according as the offence arose out of one or more sta- tutes, could never have arisen; for the answer would have been, that either was unnecessary. The only authority which seems to bear the other way, is that referred to in Salkeld: but that was not a penal action. Tt does not distinctly appear but that the subject-matter might have been a ground for an action at com- mon law. But at most, it is an anomalous case, against the current of authorities. Also as to the second error, it might admit of considerable question whether it should not have been laid against the form of the statutes, where the right of action is given by more than one statute. What was by Warlnirtoii, J. in Owen 13-5, is an express authority in point to this purpose : "If a statute doth prohibit a thing, and another statute inve "a penalty, there, upon an information upon the penalty, both "statutes ought to be recited, and to conclude amtru. formam " ' stdtiitorum : but where the statute is only revived, it is other- "wise." However, I do not proceed on ihis objection. 1 rest on the first, that in an action for a statute penalty by a common informer, as well as in proceedings by indictment or information, it has been invariably holden that the fact must be alleged to be (.lone 340 CASES IN EASTER TERM 1802. done against the form of the statute. Some or all of the statutes "7 referred to are essential to the maintaining this action : and *gain#t I do not see such circumstances stated as brings the case within CLARKE, any of them, without alleging it to be against the form of the inError - statute. GROSE, J. I have always understood, that it was necessary to allege the fact to be against the form of the statute in the case of penal actions as well as indictments. LAWRENCE, J. As to the first error assigned, that the count does not conclude against the form of the statute, I have always understood that to be necessary in these cases. In the case of indictments, to which this bears a close analogy, there is no question but it is so (a). The reason of which is, that every offence for which a party is indicted is supposed to be prosecut- ed as an offence at common law, unless the prosecutor by refer- ence to a statute shews that he means to proceed upon it : and without such express reference, if it be no offence at common law, the Court will not look to see if it be an offence by statute. This rule is laid down in Doctrina Placitandi, 332. (a book which has always been admitted to be of g'reat authority in pleading, and was often quoted by Lord C. J. Wittes) "that if "an action be brought on a statute, the plaintiff ought to re- " hearse the special matter, and say that the action is brought "contra formam statuii. " For which is cited the year-book 9 Ed. 4. 26. But it is contended, that the conclusion here, "whereby and by force of the statute an action hath accrued," 8cc. will supply the want of the other allegation. If it had said [ 341 ] statutes in the plural number, perhaps that might have done : but it certainly is not sufficient with reference only to the stat. 2 Geo. 3. c. 19.; because that alone would not support the action. As to the other objection, upon the repugnancy of the declaration being intitled generally, See. that might, I think, be gotten rid of as surplusage. It is no error. LE BLANC, J. I do not see how the first objection can be gotten over. The practice has always been to have such an averment; and a contrary determination in this case niio-ht let ^ in a laxity of pleading not only in civil actions, but also in cri- minal proceedings. Judgment reversed. (n) Vide 2 Hnwk. /'. C, c. 25. s. 1 1C. The IN THE FORTY-SECOND YEAR OF GEORGE III. 341 The next day Lord Ellenborough said, that the Court had 1802, looked more particularly into the case of Couiuktl or Kendall v. John, which is reported in Sa/k. 505. Holt Hep. 6325. and ariahst Fortes. 125.; and upon comparing them, there did not appear CLARKE, to be that incongruity between that case and other authorities, ' n Error, which they had at first apprehended. In Holt's Rep. 035, the Chief Justice on finally giving the judgment of the Court said, "I do agree that you need not in an action on the statute con- " elude contra formam stat. : but you must not szy,de placito trans- "gressionis super casum; yet you must say, de placito tran.^res- " slants et conlemptus contra formam stat., and bring yourself "within the description of the statute." And in Fortescue's Rep. Lord C. J. Holt is made to say, "You need not recite the "statute itself if it be a public law, if you bring yourself within "the law: and if yon do not conclude contra formam siatuti, "you must shew it at least by concluding de placito lrftii.wre.i- [ 342 ] "sionis et contemptus." It appears therefore to have been the ultimate opinion of the Court, that in all cases where the action is founded on a statute, it is necessary in some manner to shew that the offence on which you proceed is an offence against the statute. The KING against The Inhabitants of the West Riding of YORKSHIRE. naturaatjj May i'i'il. \ N indictment against the defendants for the non-repair of a The rnnnty *"*- public bridge (which was removed into this Court bv cerlio- or TI M" is . , j rf,, . i r i i ii i liable to tlic fan) charged, lhat a certain common public bridge, called re p a ir of a Pace Gate Bridge, otherwise Kcx/i-ljeck Bridge, situate upon a hri(| i- re '""'It _ ... f\v trustees certain rivulet, called Keshbeck, at the parishes of Skiplnn and under a Turn- Fewston, in the West Riding of the county of W/i, in the I'ikcArt, there ^ boniij no spc- King's highway there, leading from the town of Skipton, ^cc. rial provision in, through, and over the several townships of ttearntlcif, &c. to Ihe^f"^ 11 " 8 the town of Knaresborough, in the same riding, used for all his the common Majesty's liegesubjects onfoot, and on horseback, and with their the trustees were enabled to raise tolls for the support of the roads. If or transferring it t< otlur* ; ri'l^c be of i:di\ idual : though public utility, and used by tbe public, the public must repair if, though built hy an ulitcr if built by him for his own benefit, and M> continued, Nvith-mt public util used by the public. A bridge built in a public v.,iv, uithont public ntiiil\. i- indi 'table a* it nuisance; and so it is if built eolourably, in an impcrfi-ct or inconvenieiit manner, \\ith a view to throw the onus of rebuilding cr repairing it immediately on the eonnfy. VOL. II. r l' carriages, 342 CASES IN EASTER TERM 1802. carriages, &c. on the 22d of November, &c. was and yet is very " ruinous for want of repairs, &c. against the form of the statutes, aa-ainst &- c - anc ^ a g am t the peace, &c. And that the Inhabitants of the The Inhabi- West Riding of the county of York aforesaid, of right, ought tants of O re p a i r a nd amend the said ruinous bridge u hen and so often as To this the defendants pleaded, tnat after the making of a cer- tain Act of Parliament, in the 17 Ceo. 3. (c. 102.) intitled, an Act for repairing and widening the road from the town of Skip- ton, to the turnpike road leading from Leeds to Rippon, near [ 343 ] Okbeck, in the township of Bi/fon, with ffarrowgate, and from thence to communicate with the road leading from Knaresbro' to Wetherby, in the West Riding of the county of York; to wit, on the 1st December 1779, the said bridge, in the said indictment mentioned, the same beino- and consisting of one arch made of stone and timber, was first directed and made by the order and direction of certain trustees, in the said Act of Parliament named, in pursuance of and according to the direction in the said Act in that behalf contained, and for the purposes in the said Act in that behalf mentioned, in and upon the said road, in the said Act mentioned; and that no bridge had ever been there erected or made, before the time of the making of the said bridge, in the said indictment mentioned, &c. To this there was a demurrer. Ilohvyd in support of the demurrer. The county at laro-e is primd facie liable to the repair of all public bridges within its limits, in the same manner as parishes are bound to repair all public ways within their district, unless they can shew a leo-al obligation on some other persons or public bodies to bear the burthen. This is most explicitly stated by Lord Coke (a) in his comment on the stat. of bridges, 22 If. 8. c. 5. which ^ as made in affirmance of the common law. The matter stated in the plea is no answer to the indictment; because, thoup'h the bridge in question were built by the trustees, yet the law not havino- im- posed on them the burthen of repair, it necessarily devolves on the county: for the demurrer admits that it is a common public bridge, used for all the King's subjects. If indeed a miller make [ 344 ] a new bridge over a new cut of water for Ins own projit, the county shall not be bound to repair it, though it be used by the public; according to 1 Roll, Abr. 368. But there it does not 00 2 lust. 7001. appear IN THE FORTY-SECOND YEAR OF GEORGE III. 344 appear to have been made for the common benefit; and the 1802. same book recognizes the general law. By 13 Ren. 33, it appears T\~~^~ i ^ i * lie IHO that others than the inhabitants of the county can only be against charged ratione tenures, or by prescription in the case of bodies The Inhabi- corporate, or as it is said on account of taking toll or other profit : ta " ts ^ but this latter must be understood of toll claimed by prescription y or grant, upon condition of bearing the burthen of repair, and where the party takes such toll for his own profit; which does not apply to these trustees, against whom no indictment will lie for non-repair. Ts'or could they by any mode be made personally liable, or be made to lay out any thing beyond the amount of the tolls received; wherefore, if the expence of the repair wanted exceeded that sum, the public would be without remedy unless the county were liable. To an indictment a gainst the county of Middlesex, for not repairing Langforth bridge (a), alleged to be an ancient bridge, the defendants protesting it was not an ancient bridge, pleaded that it was lately erected by the King for the benefit of his mills: and judgment was given for the King; though it do not expressly appear whether upon the form or merits of the plea. In R. v. the County of Wilts (/>), ^orthei/, Attorney-General, cited a case where it was adjudged, that if a private person build a bridge which afterwards becomes a public convenience, the county is bound to repair it. So R. \. Buck- nal (c). The authorities on this subject were all considered in Rex. v. the W. R. of Yorkshire (U. T -2 unless 343 CASES IN EASTER TERM 1802. unless they can shew some other who is so bound. He also re* ,, K ferred to several clauses in the particular Act in question. against Lambe, contra admitted that the stat. 22 //. 8. c. 5, was in The Inhabi- affirmance of the common law : but said it was to be collected tants of from thence that the liability of the county to repair was con- theW. R. of ,. . *u fiii YORKSIIII nned to ancient bridges, the origin whereof, and by whom built and repairable, could not easily be traced, and therefore afforded a presumption that they were originally public works. It would be preposterous to suppose a law by which every in- dividual might, by erecting a bridge over which others passed occasionally, thereby bring a great burthen on the public, not merely for the reparation, but in many instances for the entire rebuilding of it. If it had been supposed, that at any rate if the bridge were of public utility the county were bound to repair, it was nugatory to direct the magistrates, as the statute does, to inquire who were bound to the repair. Again, who [ 346 ] is to decide, or by what rule, whether a bridge be of public utility or not? If a new bridge be so built as to occupy the whole highway, the public have no choice whether they will- use it or not if they pass that way; although perhaps it were not desired, and the passengers might have passed as well without it: or the public- would rather have suffered even a trifling inconvenience than have incurred the burthen of repair. The general rule contended for will have the effect of substi- tuting the will or caprice of any private individual in the place of the public discretion. The passage in 1 'Roll. Ahr, 368. is against the principle contended for c contra; and so is 13 Rcj>. 33. which says, that he who has the toll ought to stand to the repair; which comes nearer to the present ca.se than any other authority: for by the Act in question, the tolls which are collected on this road are vested in the trustees, by whom the bridge was built, for the very purpose of keeping it in re- pair. The Glusburne tir/dge case (a) is distinguishable from this; for that was found to be of public utili/i/, as well as con- stantly used by the public; and what is still more important, the justices of peace in Quarter Sessions, who are the trustees for the county in this respect, signified the public assent to its- erection, by contributing to the expence of it out of the pub- lic stock: it may therefore be said to have been erected by and () 5 Burr. 2594. foi IN THE FORTY-SECOND YEAR OF GEOIIGE III. 346 for the benefit of the county ; in which case they could not discharge themselves by any protest from the burthen of future The KING repair attaching on them by law. In another report of the against r Pl TV I " .same case () great stress is laid on the fact of its beino- of ... . . . tants of public utility: it is said to be the grand criterion. There was the W. II. of no necessity to traverse that this was a common public bridge, YORKSHIRE. because the plea shews that before 1779 there was no bridge [ 347 ] there; and therefore unless the county are bound to repair all new bridges erected by any persons, which the public may happen to use, they cannot be liable in this instance. The Laagfort/t Bridge case (/>) did not establish so general a posi- tion ; for that turned on the form of the plea. And it was admitted by the Court in the Glmbume 1$ ridge case (c), that if a man erected abridge principally for his own benefit, though collaterally of benefit to others, the public had nothing to do with it. He also argued upon some of the particular clauses of the Act in question; particularly that the clause providing against the discharge of any riding, &c. or private person chargeable with the repair of any road or bridge by reason of tenure, or hij anif law, ancient usage, or custom, must necessarily refer to bridges antecedently built; such ancient bridges as were intended by the stat. 22 //. 8. Holroi/d, in reply, observed, that a bridge built by the trusr tees of a public road, under an Act of Parliament, must be taken to be of public utility in point of fact. That if a bridge built in a public road by an individual were not of public- utili- ty, but detrimental to the public, it would be indictable as a nuisance; and that would be matter of defence on the trial : but the demurrer, by admitting that it is a common public bridge used by all the King's subjects, lias admitted its adoption by the public and its utility, Lord ELLBN HOKOI <,n, C, J. This is a case of great con- sequence indeed to the public; but after the decisions which j- 34$ j have taken place, it does not appear to be of much dilh'culty. By the common law, counties are chargeable with tin 1 repair of public bridges; unless it be shewn as the stat. 22 H. 8. c. 5. says, " what persons, lands, tenements, and bodies politic, " ought to make and repair such bridges.'' In the absence of ^uch proof, that burden is, by the operation of the common (a) 2Blacksl. 687. (b) Cro. Car. 365. (c) '<2 Elackst. eur, 348 CASES IN EASTER TERM 1802. law, thrown on the inhabitants of the county in which the mj rr \ , bridge lies. But in order to effect this, it is not enough that against a ng w bridge shall be built in a highway used by the public ; The Inhabi- it must also be useful to the public; but enough is stated to ^ p f shew that; the bridge being alleged to be in a public highway, YORKSHIRE an< ^ use d for all the King's subjects: it is at least sufficient to throw the onus upon the inhabitants of the county of, shewing who else is bound to the repair, if they be not. I do not lay stress on the idea of the public having adopted the bridge, by passengers going over it; because if it occupy the highway, they cannot help using it : I only rely on the using of it so far as to shew that it does not appear to have been treated as a nuisance, but to have been acquiesed in by the public. If however, it be built in a slight or incommodious manner, no person can, at his choice, impose such a burden on the coun- ty; and it may be treated altogether as a nuisance, and indict- ed as such. But if the public lie by without objection, and make use of it for some time, it is evidence that they adopt the act; and the bridge becoming of public benefit, the burden of repair ought properly to fall upon the public. Lord Coke, in his comment (a) on thestat. 22 //. 8. of bridges, after stat- ing that particular persons are only bound rationc tenures, or by prescription; that is, ratione tenure in the case of private [ 349 ] individuals; or by prescription, as against corporate bodies, puts this case: "But admit none at -all were bounden to the "reparation of the bridge, by whom should it be repaired, "by the common law? The answer is, By the whole county, "8cc. wherein the bridge is, See. because it is for the common "good and ease of the whole county." Again he says, "if % "man make a bridge for the common good of all the subjects, "he is not bound to repair it; for no particular man is "bound to reparation of bridges by the common law, but ra- " liot/e lenura or prescriptionis." Now that this bridge is for the common good, is proved by the use of it by all the Kino-'s subjects passing that way, by its not having been treated as a nuisance, but acquiesced in. Then after having enjoyed the benefit of it, shall the public object to it when they beo-in to feel the burden of repair? The doctrine laid down by Lord Coke has been since recognized in the cases referred to, and in (a) 2 InsL 7001. other IN THE FORTY-SECOND YEAR OF GEORGE III. 349 other books; particularly, it was much considered in the case 1802. of GUisburne Bridge (a) ; upon the authority of which other T) cases have been since ruled, one of which was alluded to at agri the Bar, before Mr. Justice 'Bitlkr. The rule laid down by The Inhabi- Mr. Justice Aston, in the Glnslmrne .llridge case, seems to be tants of the true one ; " that if a man build a bridge, and it become y & W ' R ' f "useful to the county in general,, the county shall repair it." He says nothing about the adoption of it by the public ; and there is good sense in not relying on that, except as evidence of its being a public bridge, and of utility to the public. Where it is stated to be used by the public, it cannot be presumed to [ 350 ] be useless to them: but if intended to be objected to on the ground of inutility, it must be so stated in the plea. As to the objection, that it ought to be repaired by the commissioners of the turnpike by whom it was erected, and who have authority 1b raise tolls for the purposes of the Act, I cannot find any authority for them to erect bridges under this Act. Where it is necessary to cut drains in the adjoining lands, a power is given them to raise archs over such drains; but this is a bridge built in the highway. However, not to proceed upon any such narrow view of the case, I will suppose they were authorized to erect the bridge ; yet no fund having been specially provided by the Legislature for the repair of it, the burden must necessarily fall where the common law has placed it, namely on the riding. I am aware of the extent of this opinion: and if the trustees under similar Acts throw this burden generally on the counties, it may be necessary to make special legislative provision in fu- ture ; but this cannot vary the common law rule : and I see no reason to arraign the doctrine in the case in 5 fitirr. to which I have referred. If, indeed, as it is said in I Roll. Abr. 368., a man make a new cut for the benefit of his mill, and build a bridge over it, he shall be bound to the repair of it. But that is a case where the party is guilty of a nuisance in the first in- stance in making a new cut across the highway, which the public might have prevented, and all along he continues it for his own benefit: the case goes no further than that, and docs not apply to the present. GROSE, J. In the present state of the country, when great improvements are carrying on, and convenient bridges are be- (a) 5 Burr. 'Jj'Jl. 6 como 350 CASES IN EASTER TERM 1802. come very necessary, this is a most material question to be set- Th KING ^ ec *' ^ * s no new P onit : f r " we ^ remember the Ghisbttrne against Bridge case,* which was most ably argued by the counsel for the The Inhabi- riding, who was a profound lawyer, and had exerted great in- tants of dustry in looking into all the authorities on the subject: and the the ^ . R. of . , YORKSHIRE case was Decided on great consideration. Since then, the same *[ 351 ] question has come before many of the Judges at nisi prius, and the same doctrine has been repeatedly considered and acted on. Those who then doubted on the subject did not sufficiently at- tend to this, that the stat. 22 Hen. 8. was founded on the com- mon law : and the passages referred to in 2 List . are very strong to that purpose. Indeed, Lord Coke may be said to state this very case when he says, that if a man build a bridge for the common good of all the subjects, he is not bound to repair it. Then where no particular person is bound to the repair, how and by whom shall it be done ? He had before answered that question, that it shall be repaired by the whole county. Mr. Justice Aston, commenting on tins doctrine in the Glusburne Bridge case, says that it does not relate to new bridges which are not of public utility, and used by the public. But the bridge in question appears to be of this description ; and like that case, except in this particular, which is stated by the de- fendants themselves in their plea, that this bridge was erected by trustees of a turnpike road, under a public Act of Parlia- ment : and there I cannot suppose that it was not a public bridge, built for the benefit of the public, and of public utility, and not merely for ornament or for private benefit. This case therefore comes within the rule laid down in 5 Burr. ; which having been acted on ever since, it would be dangerous to draw into doubt. There may be attempts to make a colourable use of this doctrine, as by building bridges at first in a slight and im- perfect manner, for the purpose of throwing the expence im- [ 352 ] mediately on the county ; but if that were shewn, I should think that it was a public nuisance, and indictable. The general doc- trine, however, is too firmly established since the case in Burrow to be overturned. L\ w K E N r i:, J . The principle to be collected from the case of Glusburne Bridge is, that if the bridge be of public utility, the county, who derive advantage, must support it. It so appears, both from the report in Burrow and in Blackatone. But it is said that we cannot collect that the bridge in question is of such a de- IN THE FORTY-SECOND YEAR OF GEORGE III. 352 a description. But when we observe that it was erected by 1802. trustees of a turnpike road, appointed by an Act of Parliament, , ~~- we cannot suppose that it was erected for other purposes than %raintt for the public utility. Then this was assimilated to the case in The"lnhubi- 1 Rol. Abr., because it said that the trustees are empowered to tants ^ take tolls. But that is supposing that the trustees are to derive J 6 , - IOKKSIIIRE. some private advantage from the tolls, which is not the case : whatever tolls are raised, must be laid out on the maintenance of the roads. It might as well be contended, that if a parish were to build a new bridge on a road within their limits, they would be bound to keep it in repair afterwards, and that the county would not be liable, as that the trustess are in this case, because the bridge is built in the turnpike road. In truth, the trustees are merely substituted in lieu of the parish. The case of Glusburne Bridge has been affirmed by subsequent decisions. One of these was The King against I lie Inhabitants of the Connti/ of Lancaster, where a special verdict was found; which was argued before my brother I A- .l>/anc and myself, sitting in bank at Lancaster. I mention this, because it was in a shape in which it might have been carried to another tribunal, if the parties had been dissatisfied with our opinion. He then read another case of The King v. The Inhabitants of the West Riding [ 353 ] of Yorkshire, If. 28 Ceo. 3. (infra (). On the authority of these () The KING against the West Riding of YORKSHIRE. Mich. 28 G. 3. * B. R. ^- Iicrc to an The inhabitants of the riding were indicted for not repairing a public carriage- indictment bridge, which they were bound to repair, to a carriage-bridge, at their t-xpence. the plea al- That the ruling had never repaired if. There was another bridge which served leged that certain town- for the same road. ships had The counsel tor the prosecution insisted at the tiial that the evidence did not ininieii.oi ially prove the issue ; which was, that the townships had ininieiiiorially repaired a been used to carriage-bridge : as it appeared clearlv that the carriage-bridge had been first |' e P :in tlie >aul bnd "e . c v i- erectcd within time of memory. And ll'ilson, J., who tried the cause, was of that tlpiu ^, ,'| 1;U t [ lc opinion: but the Jury found for the defendants. ton>hiji5 had enlarscd the bridge to a carriage-bridge, which they had before been bound to repair as a foot-bridge, will noi support the plea. Where townships have so enlarged a bridge which they were b< tort- bound to repair as a foot-bridge, they shall still be liable pro rutn. Where an individual builds a bridge which he dedicates to the public, by whom it is iiaed, the county are bound to re- pair it. * This note was taken by the author, A new 353 CASES IN EASTER TERM 1802. these and the other cases mentioned, I agree that there ought to ., 77~~ be iudo-ment for the Kino;. The KING aqainst * ^ E BLANC, J. If the Court felt any doubt upon the ques- The Inhabi- tion, the magnitude of it would have induced them to have heard tants of another argument. But the principle on which the case in 5 ,i ~\\T TJ I* Burr, was determined, and which equally governs the present. IOTl.TCSTTTR~F *" *T 354 1 ' was no ^ new even a ^ that time : for it is laid down in 2 Inst, that if a man build a bridge which is for the public benefit, the A new trial was moved for, and H'ood, Heywuod, and Lumbc for the defendants, shewed cause, by contending that though the evidence might not strictly sup- port the prescription as laid ; yet, if by another form of pleading the defendants would have been entitled to a verdict on the merits, the Court would not be in- clined to set aside the verdict. That in order to charge the riding with the re- pairs of a bridge, it must at least appear that it was of public utility, which this was not ; for the turnpike road run within a few yards, and it was stated there was another bridge. That the townships would thereby get rid of their obligation to support a foot-bridge. Tliis was not like the case of Glusburne Rridge, 5 Burr. go94, which was an entire new bridge, 60 yards distant from the old foot-bridge. This was the old foot-bridge widened. The counsel on the other side were stopped by the Court. ASHHURST, J. There must be a new trial ; for by the general law it is esta- blished, that where a township or any private individuals build a new bridge and dedicate it to the public benefit, and it is used by them, the onus of repairing it will fall upon the county at large; for the county at large are hound to repair all public bridges, unless they can throw the burthen on some particular persons. Now here the riding have pleaded that these townships had been immemorially bound to repair this carriage-bridge; which cannot be true, as it appeared from the evidence that it was not made a carriage-bridge till a few years ago. There- fore there must be a new trial. BULLER, J. The indictment states it to be a carriage-bridge, and the de- fendants in their plea admit it to be a carriage-bridge. But they allege that other persons are bound by prescription to repair it. Now there is no evidence whatever which tends to support that: on the contrary, it is shewn that this never was a carriage-bridge till within these few years, but was a foot- bridge, which was kept in repair by the townships. Where a party is bound to repair a foot-bridge, he shall not discharge himself by turning it into a horse or carriage-bridge ; but still he shall only be bound to repair it as a foot-bridge ; that is, pro rata: but otherwise the county are bound to repair all bridges of public utility. GROSE, J. declared himself of the same opinion. The Court offered the defendants liberty to amend on payment of costs, which not being accepted at that time (a), Rule absolute. (al Qu. If the defendants did not afterwards amend their plea, before the second trial, and obtain a verdict ? public IN THE FORTY-SECOND YEAR OF GEORGE III. 354 public must repair it. That has been acted upon down to the 1802. period when the Glnsbume Bridge case was decided ; and that TvTrP i ine KING nas again been recognized in subsequent cases, and particularly against m one instance, where the parties had an opportunity, if they The Inha ~ had been so advised, of carrying it to the dernier resort. The ^T^i '* question then is, Whether there be any distinction between this YORKSHIRE. and the other cases ? As to this not being expressly stated to be [ 355 ] for the public benefit, it is sufficient, when the indictment states that the bridge was used for all the King's subjects. Then it is said that this was not built, as in other cases mentioned, by a private individual, but by trustees under an Act passed for making a public road. If, however, the cases are to be distin- guished on this ground, this rather appears to be a stronger case than the others ; because the bridge was built by trustees under an Act of Parliament, to which the defendants must be consi- dered as parties and assenting, and by those to whom the Legis- lature have delegated the trust of determining whether it were proper to build the bridge : it is therefore a stronger case against the defendants than where an individual has in the first instance exercised his own discretion. If any inconvenience be to ensue from this decision, it must be provided for by the Legislature in future Acts of this description. The clause referred to in the Act which enables the trustees to cut drains and throw arches over them, is confined to grounds lying contiguous to the roads, and was merely for the purpose of excusing them from being considered as trespassers, and not by way of throwing on them an additional burthen of repairing such bridges. And the sub- sequent clause, which provides t; that nothing in this Act con- " tained shall be construed to be a discharge of any riding, See. " or person, for making, repairing, Sec. any road, bridge, cause- " way, arch, drain, or sewer, which they have been accustomed, " or of right ought to make, repair, Sec. by reason of any tenure, '' or by any law, ancient usage, or custom," affords an argument that this Act was not intended to make any alteration as to the general legal liability under the stat. 02 //. 8. or by the com- mon law, either as to the repair of roads or bridges. If this be the true construction, then it stands thus : certain persons are enabled by law to make a public bridge, and by the general law before public bridges were repairable by the public ; and by the clause referred to, the Legislature in the particular Act have in effect provided, that notwithstanding that Act, the same persons should 356 CASES IN EASTER TERM 1802. should continue liable, as were before liable, to the repair of rp, rr bridges, &c. Then the defendants must be liable in this case, against there being nothing shewn to exempt them, and throw the bur- The Inha- den on others, thfwVof Judgment for the Crown (a), YORKSHIRE. C) The KING against the Inhabitants of the County of Glamorgan. An In- dictment having been removed in Hilary Term 1788, by writ of certiorari into the Court of King's Bench, agaimt the defendants, for not repairing a cer- tain public bridge called Ynispenltfch bridge, erected in the King's highway, across the river Tave: the defendants pleaded, that in the year 174.5, Herbert Muckicorth, Esq. being seised of certain tin works, for his private benefit and utility, and for making a commodious way to his tin works, erected the bridge; and that he and Sir Herbert Muclcu-orth, his sou, and their tenants of the tin works, enjoyed a way over the bridge for their private benefit and advantage; and therefore that Sir H. Miickicarth ought to repair, absqtic hoc, that the inhabitants of the county ought to repair. The prosecutor replied, that the inhabitants of the county ought to repair. And upon the trial at the Summer assizes for the county of Hereford, before Lord Kenyan, the facts alleged in the plea were proved; and also, that the business of the tin works could not be carried on without the use of the bridge. But it also appear- ing that the public had constantly used the bridge from the time of its being built, his Lordship directed the Jury to find a verdict for the crown, viz. that the inhabitants of the county were bound to repair; which they did accordingly, and no motion was ever made for a new trial. Vide 1 Buc. Air. 555. S, C. last edit, by Mr. Gwillim. [ 357 ] Monday, May 2'J-tli. Where a de- fendant is brought up to receive The KING al. 5. & Re c v. Jjliffi; * Tern: /?<';' 286. & Rex v. Wilson, ib.438. 358 1802. Lord ELLENBOROUGH, C. J. Without entering into the me- m 7T~ rits of the determination in The King v. Archer* which I am not The KING against prepared to say that I should have concurred in at the time, it PINKKRTON. is enough to observe, that this is clearly distinguishable from that *[ 359 ] case . because it is not here sworn that Taylor was under the control or influence of the defendant. GROSE, J. The precedent of The King v. Archer ought not to be carried further than that case. All the Court concurred in rejecting the affidavit. Friday, May 28th. Kail in error are not re- quired by stat. SJuc. i, on error brought on a judgment by default in debt on a count for a promissory note, any more than on counts for goods sold and delivered, and on an ac- count stated; though if there were one count, on which judg- ment was en- tered up, for which bail in error were not required, it seems suf- ficient to ex- cuse the plain- tiff in error. *-[ 360 ] TRIER against BRIDGMAN. ttEFAN obtained a rule nisi for staying proceedings pending a writ of error, upon a judgment by default, in an action of debt on a promissory note, and for goods sold and de- livered, and upon a quantum valebant, and upon an insimul com- putassent, Espinasse shewed for cause, that no bail in error had been put in, as required by stat. 3 Jac. 1. c. 8. in actions of debt upon any contract; the promissory note being, he said, a con- tract for a sum certain and payable at a certain time ; and therefore distinguishable from the case of Ablet t v. Ellis (a), where the counts were only for work and labour, goods sold and delivered, money had and received, and on an account stated. Lord ELLENBOROUGH, C. J. At the time of passing the stat. 3 Jac. no such action of debt could be maintained* on a promissory note : it might have been evidence of a debt, but it did not constitute a debt per *e. The stat. 3 & 4 Ann. c. 9, first gave an action upon such an instrument ; before which, neither the payee nor indorsee could have sued the maker upon the note. And if there be one count in the declaration on which judgment is entered up, on a cause of action for which debt would not lie at the time of the stat. of James, no bail in error is required. Sevan, in support of the rule, referred to Alexander v. Biss (b), and Girlin v. Baker (c), to shew that bail in error could not be demanded upon the other common counts. () I Bos. If Pull. 249. (c) Yelv. 227. 2 Bulstr. 53. S. C. 7 Term Rep. 449. Lord IN THE FORTY-SECOND YEAR OF GEORGE III. 3CO Lord ELLENBOROUGII, C. J. then observed, that as it ap- 1802. peared upon the authority of those cases, that bail in error was not necessary, either on the counts for goods sold and against delivered, or upon the insimul computassent, there was no one BKIDGMAV. count in the declaration on which it could be required. Per Cmiam, Rule absolute (). (a) Vide Bidleson v. JVhytel, 3 Burr. 1545. [ 361 ] The KING against CATOR. Monday, May 30th. f ITHE defendant having been convicted of writing and publish- After jud"- ing a libel in certain letters to Mr. Jackson, was brought up ment on the this day in custody, to receive the judgment of the Court : who a libel, ^e " thereupon sentenced him to pay a fine of 200/. to the King. Co " rt refused A A. I-- i to 'ake an After which order on tbe Adam moved, on behalf of the defendant, that the Court Jj would direct that the original letters, which had been proved original li- at the trial, might be delivered up by the prosecutor, and de- ^ i ' t 1 |" n a f posited with the officer of the Court. ficerofthe G arrow for the prosecution, after noticing the singularity of urtt the attempt, said that the prosecutor, having received previous intimation of such a motion being intended to be made, had fur- nished him with the original letters, which he then had in Court, ready to obey whatever order the Court might think proper to make. But GROSE, J. (in the absence of Lord EttenborougJi), after con- sulting with the other Judges present, said that the motion was unprecedented, and not. fit to be entertained ; and therefore they should not make any order upon the subject ; and he even doubt- ed whether they had now any authority to make such an order on the prosecutor, who was out of Court. The 362 CASES IN EASTER TERM 1802. Monday, The KING against STEVENTON and Others. May 3 1st. i. The stat. A N information was filed by the Attorney-General against the 26 G. 3. c. 7?. /-\ *. is! which defendant, stating, That on the 2d of December 1800, at enacts that the cnief office of Excise in London, (to wit) at, 8cc. W. PiMntr* no person shall prosecute ton gentleman, as well for the King as for himself, exhibited bill plaint"' before the commissioners of the Excise a complaint and informa- pr information, tion, and thereby informed the said commissioners that within 1 tIie"'Kin%s three months then last past, (and within the limits and jurisdic- Courts," for tion of the said office of commissioners) to wit, on the 25th of tlic recovery of any Excise October then last past, at the parish of St. Martin in the Fields, penalty, & c . j n t ] ie CO unty of Middlesex, one William Fore did knowingly unless prose- . J . . ' cuted by the receive, and then and there had in Ins custody and posses- Attorney- a large quantity, to wit, 1494 Ib. of candles, to wit, wax can- General, or " . some revenue dies of a large value, to wit, of the value of 250/. ; after the said confined' \o wax can dles had been removed from the * place where the same the superior were manufactured, and- where the same ought to have been charged with the duties payable in respect thereof, before the said duties to which the same were liable had been charged, or Courts of record ; and therefore, an for a penalty before the said wax candles had been lawfully condemned as for removing forfeited, contrary to the form of the statute, 8cc. whereby and wax candles from the place of manufactory before the duty paid (by s. 10. of the same statute), may be prosecuted before the commissioners of Excise, by one not averred to be such officer. f. And the. information stating in effect that the candles were home-made candles st-em to be snfficienr, without expressly naming them Jiritlsh candles; the words of the Act being " liritisli spirits, s-iap, aud candles:" though supposing this would have been a ground for error or appeal in the original information, it is no objection to an information in a collateral proceeding for conspiring to prevent the examination of a witness before the commissioners of Excise on such prior information, which is only stated by way of recital in the information for the conspiracy. 3. The same answer applies to an uncertainty (if any) in the charge of the first information recited; ia negativing the excuse of a prior condemnation as well as prior payment of the duty before removal; though that seems proper esough. 4. So the issuing of process arainst the original defendant, or the joining issue on the information recited, is immaterial as to the charging the offence of the subsequent conspiracy. .5. Neither is it necessary, at least in such collateral proceeding, to recite that the original information was preset-lit) d before the commissioners by name, though it be not averred to have been tiefoie three or more, of them, according to stat". 1 Geo. 2. ,<. 2. c. 16. 6. Neither is it necessary in reciting such prior information averred to Lave been made within three months after the oft t- nee committed, according to stat. 1 IV. fy HI. c. 54. *. 13. also to aver notice thereof to the original defendant within a week, as is directed to be given by the same statute. 7. Where the stat. 7 ) In answer to an inquiry directed by the Court to be made daring one of the intervals of discussion of this case, it appeared to be the practice of the commissioners of Excise not to receive informations of this sort from any other than their officers; and Pilkint. 210, 370 CASES IN EASTER TERM 1802. sioners. Sect. 4. of that statute recites the inconvenience and ,, ~"~" delay of requiring so many commissioners to attend, and enacts The KING , , . * , . ~ aaainst "^ a ^ suc h complaints and informations may be heard and de- STETENTON termined by any three or more of them; "and that it shall be and Others. " sufficient in the written account or record of such proceedings, " to mention that such complaint or information was made and " exhibited to and before three ot such commissioners, without "particularly mentioning their names, See. and that every such "adjudication and determination of such three or more com- "missioners, Sec. shall be as good and valid in law, and of the "same force and effect, Sec. as, if made by all or the majority," Sec. Here then if the information had been averred to have been made before three of the commissioners, it would not have been necessary to have set forth their names : but being only alleged to Jo have been made before the commissioners generally (which words would be satisfied if ^oonly were present) their names ought to have been mentioned by the very admission of the Legislature. 3. The information alleged to have been made by Pilkineton. J ft which is the foundation of the subsequent proceeding, exhibits no legal cause of complaint, of which the commissioners had ju- risdiction to inquire: for it is founded on stat. Geo.3. c. 77. s. 10. which enacts, "That if any person shall knowingly receive, " buy or have in possession any British spirits, soap, or candles, " after the same shall be removed from the respective places where "the same were made or manufactured, and v:here the same [ 371 ] "ought to have been charged with the duties payable in respect "thereof, before the said duties, Sec. have been charged or be- "fove such British spirits, soap, or candles, have been lawfully "condemned as forfeited, the offender, Sec. shall forfeit the "same, Sec. and treble the value." Hereby two distinct of- fences are constituted; the one, the knowingly having in pos- session, Sec. such candles, Sec. after the removal from the place of manufactory before the duties paid ; the other, the like having in possession in any place after such removal, before condemna- tion, without payment of the duties. Upon the face of this in- formation it is left uncertain which of these offences was meant to be charged by the first information recited. tj Lawrence, J. The effect of the recital of the former informa- tion is to aver, that neither the duty was paid, nor the candles condemned, before the removal from the oitice where the duty was payable. 4. The IN THE FORTY-SECOND YEAR or GEORGE III. 371 4, The word British applies as well to candles as to spirits; 1802. and therefore the candles charged to be in Forge's possession, T ,~~J7~ &c. should have been averred to be British. This is the more Jlaintt^ material, because foreign candles may be imported on payment STEVENTOK of a certain duty, to which the regulation of the statute on ant ^ Ot hers. which the original information was founded could not apply. Lawrence, J. observed, that the charge in the information following the words of the statute was, that Forge knowingly had such candles in his possession after they had been removed from the place of manufactory, and where the same ought to have been charged with the duties payable in respect thereof, before the said duties, to which the same were liable, had been charged; which shewed that the charge could only apply to the removal of home-made candles. 5, The stat. 1 IV. & M. c. 54. s. 13. (a), which limits the in- [ 372 ] formation before the commissioners to three months after the offence, also requires notice to be given to the defendant within a week after the information laid ; which notice was as necessary to be averred here, as that the original information was within three months, which is stated. 6, It is not stated that issue was joined between the Crown and the defendant in the first information recited (A). The Attorney-General, Mingau, G arrow, and Wood, contra, insisted as to the 1st objection, that the stat. 26 Gco. 3. c. 11. s. 13. which mentioned any of the King's Courts, was confined to the superior Courts ; for which they went at large into an exa- mination of the body of statutes passed in pari matcria; which it is not necessary to state, as this, which was the principal ob- jection, afterwards received a full answer from the Court. And they referred to Gregory'* case, 6 Co. 19 b. Moor, 421. Di/. 236, a, and W. Jones, 193. that where a statute gives a remedy in any Court of record (and "any of his Majesty's Court*" must be so intended) it must be understood of the superior Courts of Westminster', and particularly in the present case, with reference to the stat. 12 Gco. ]. c. 28. s. 28, passed hi pari materia. 2. The stat. 1 Gco. 2. st. 2. c. 16, s. 4, only relates to adjudi- () The particular statute is applicable to another subject of Excise, bat general reference is made to it by s. 19. of 26 6Yo. 3. c. 77. (b) The two last, and some other trifling objections, were urged by one ot ;he defendants, cations 373 CASES IN EASTER TERM 1802. cations, where the commissioners have proceeded to hear and ~" ^ determine; but here the matter was not heard and determined, against but only a summons had issued to a witness to put the matter in STEVENTON train. At any rate, it is no more than a question concerning and Others. ^ e regularity of process, which cannot be entered into in this collateral proceeding. Whether or not the commissioners have proceeded erroneously in a matter in which it must be admitted they had general jurisdiction, it was still an offence at common law in the defendants to conspire to interrupt their proceedings, and to suppress the truth, by keeping back a necessary witness. It would be no less an offence to conspire to present an errone- ous indictment for any offence against an innocent person ; and an action for a malicious prosecution would lie notwithstanding such error. But the commissioners having jurisdiction to in- quire of the original offence, the Court would presume that they proceeded regularly, unless the contrary appeal;. * 3. The fact of removal before the payment of the duties is averred, and the only excuse the party could have, which was that the candles had been before condemned, is negatived; therefore there is no uncertainty in the charge. 4. The word British is confined to spirits, as contra-distin- guished from foreign spirits, mentioned in the antecedentclause, and extends not to candles or soap; though the Act also sup- poses these latter to be home-made, because it speaks of their removal from the place of manufacture before the duties paid ; and so the charge in the information supposes the candles to be home-made; but even if that Avere matter of error or appeal upon the original information, it is no objection to the present information for a conspiracy. f 374 ] -5. The service of process on such offender is never required to be stated in an information for a collateral offence arising out of it. The Act is merely directory to the commissioners how to proceed. Neither could it be stated here; because the time was not arrived for stating such notice when the present offence was committed. 6. No issue is joined in summary proceedings, as in the common law Courts; but the party is summoned to appear, and after hearing the charge, is asked, ore tenus, what defence he has to make. Cur/a adi'isare vult. GROSE, IN THE FORTY-SECOND YEAR OF GEORGE III. 374 4k GROSE, J. (a) now delivered the judgment of the Court. 1802. This was a motion in arrest of judgment upon an information, , K not necessary to be re-stated ; and the principal question aqainst agitated was, Whether the stat. 26 Geo. 3. c. 77. s. 13. extends STEVENTOK to proceedings before the commissioners of Excise and justices ant ^ Others, of the peace? not whether they fall within the legal definition of a Court? but whether the Legislature in this clause meant to comprehend them ? To shew that they were not meant to be comprehended, it is a circumstance of some weight, that in no Act of Parliament which has been produced by the defendant are they so described : and upon looking through the several Acts, it is clear that they were intended not to be compre- hended. By the stat. 12 Cha. 2. c. 23. s. 31, all forfeitures and offences against that Act, within the limits of the chief office in London, were to be heard by the commissioners of Excise ; and all forfeitures and offences elsewhere were to be heard and determined by two or more justices of the peace, with an ap- peal to the quarter sessions. By the stat. 15 Cha. 2. c. 11, [ 375 ] certain penalties are to be recovered before two justices; and (by s. 25.) all fines, penalties, and forfeitures, for which no re- medy was ordained by that Act, shall be recovered by action of debt, bill, plaint, or information, in any Court of record. From this time there were different offences : some of which were to be punished by proceedings before justices ; others by action of debt, bill, plaint, or information in any of his Ma- jesty's Courts of record ; and some by subsequent statutes by either mode. The stat. 12 Geo. 1. is confined to information* , and did not extend to actions; and the defect in that Act was in this respect, and not in its being confined to the Courts of Westminster and Edinburgh. To remedy this, the stat. 2(> Geo. 3. c. 77, extended the provisions of the stat. 12 Geo. 1. io all the ways by which fines, penalties, and forfeitures imposed by the Excise laws could be recovered in the superior Courts ; and the words " action, bill, and plaint" are not inoperative, as was argued : nor are the proceedings against offenders against the Excise laws merely in rein, as was supposed. For many statutes authorize proceedings by action to recover penalties under the Excise laws. The stat. 15 Cha. 2. authorizes the re- covery by action of debt, bill, plaint, or information, in any () Lord Ellcnborovgh was Attorney-General when the case ^vas argued. Court 375 CASES IN EASTER TERM 1802. Court of record of fines, penalties, and forfeitures, for the re- _,. ~ covering which no other remedy is given. The stat. 1 Will. against an( ^ Mart/, c. 24. s. 17, gives penalties against brewers of 100/., STJEVENTON to be recovered by action of debt, bill, plaint, or information, Wd Others. in any of his Majesty's Courts of record. The stat. 10 & 11 W. & M . c. 24. s. 20, gives the like. So the stat. 18 Geo. 2. c. 26. s.4. and 24 Geo. 2. c. 40. s. 29. : all these statutes using the same words as the stat. 26 Geo. 2. " action, bill, plaint, and [rj -i " information," speak of Courts of record. Therefore the clause in the stat. 26 Geo. 3. which must be meant to restrain the power given by former statutes, must be understood to refer to the Courts mentioned in those statutes. The statutes are all in pari materia. The true import of the word " information" noscitur a sociis. The above was the only objection which seemed to be relied upon : As to the rest, they were very satis- factorily answered at the Bar. For these reasons we are of opinion that the judgment ought to stand. Rule discharged. S : ridny, It I ay 1 4 111. DOE dem. GEOKGE ALLAN , JOHN PEASE, and THO M A s PEAS E, against JOHN CALVERT. TN ejectment for certain lands in Yorkshire, a verdict was -*- taken by consent for the plaintiff, subject to, the -opinion of the Court on the following case Under a power in a \vill to lease in possession and not in re- version, a lease for years by her will dated the 28th January, 1783, duly executed and i."jth of March ^tested, devised the same to the use of James Allan the Elder to the then f or ljf e> remainder to George Allan the Elder for life, re- tenant III pO!- . .... session, ivii>rn- niainder to trustees to preserve contingent remainders, re- dum as to I he arable from the l.jth of t'cbruitry pre- ceding, and a? to the pa.s- Mrs. Anne Allan, being seised in fee of the lands in question, mainder to George Allan the Younger (the lessor of the plain- tiff), and his assigns for life, remainder to trustees, &c. re- mainder to the first and other sons of George Allan the Younger in tail male, with remainders over. In the said Anne Allan's 5tl7ofrz/ e W '^ * s <-' on tained the following proviso : " Provided always, then nc*t, & c . and my will is, that it shall and may be lawful to and for the under a yearly i / in i r-i i /o rent payable S!ll(l Jam ^s Allan the Elder, George Allan the Elder, and quarterly on the 10th of July, 10th of October, 10th of Jaminry, and !0th of April, is void for the whole; though such lease were according to the custom of the country, and lh,e same had been before granted by the pt3ou creating the power. Georse IN THE FORTY-SECOND YF.AR OF GEORGE III. 376 George Allan the Younger, respectively, as and when they 1802. shall respectively come into and be in the actual possession* of ~ r~ j i , c , , . ' DOK dern. rny said hereinbefore devised estates and premises, or any part ALLAN- thereof, or be actually entitled to the rents and profits thereof, and Others or of any part thereof, by indentures under their respective against hands and seals to demise or lease the same, or such part or parts thereof, whereof they shall respectively be in the actual possession, or to the rents and profits whereof they shall be re- spectively entitled, unto any person or persons for any term or number of years not exceeding twelve years in possession, and not in remainder, reversion, or expectancy; so as upon every such lease there be reserved and made payable during the con- tinuance thereof respectively the best improved yearly rent that can be reasonably had or gotten for the same, without taking any sum or sums of money or other thins: by wav of fine or in- V / J *> come for or in respect of such lease or leases; and so as none of the said leases be made dispunishable of waste by any ex- press words to be therein contained : and that in every such iease there be contained a clause of re-entry for non-payment of the rent or rents to be thereby respectively reserved : and that such lessee or lessees, to whom such lease or leases shall be made, seal and execute counterparts of such lease or leases." Anne Allan died in October 1785. Upon her death, James Allan the Elder entered, and died seised in January 1790: and the late George Allan the Elder, beino; then tenant for life in O O possession of the lands in question, under the devise in Anne Allans will, did, by indenture of lease, bearing date and exe- cuted the 29th of March 1798, demise the lauds in question to the defendant, to hold the same unto the said J-.mn Calrcrt, in manner following, viz. the tillage ground frora the loth of /v- bniartj last past : the pasture ground from the -jth of .1 />;// tlu-u next, and the residue of all the premises from the 12th of Jl/ffy also then next, for the term of twelve years from tlu> vaid re- spective days, under the neat and clear yearly rent of 8-3/. by quarterly payments, viz. upon the 10th of July, the 10th of October, the 10th of January, and the 10th of April, in every vear; and the first payment to be made on the 10th of Jnli/ then next ensuing. George Allan the Elder died on the 17th of May, 1800; and George Allan the Younger (lessor of thtr plaintiff) survived him. The periods mentioned in the kalc.i- dnni 378 CASES IN EASTER TERM 1802. dum of the lease, viz. the 13th of February, the 5th of April, P. T~ and the 12th of May, are the usual periods of entry, by tenants ALLAN on ara ble pasture and meadow ground respectively, in the and Others country where the lands in question lie. The rent reserved on against the lease in question was the best improved yearly rent that Rr * could be reasonably gotten for the lands in question at the time the lease was granted. No fine or other thing was taken for granting it. The lessee is not made dispunishable of waste. The lease contains a clause of re-entry for non-payment of the reserved rent. And the lessee executed a counterpart of the lease. The defendant on the 29th of March 1798 (the day of the date of the lease in question) held the premises as tenant from year to year, to George Allan the Elder, as he had been to the testatrix, and to James Allan the Elder, in their respec-t tive lifetimes; and which tenancy, according to the custom of the country above stated, would determine on the 13th of Fe- bruary, the 5th of April, and the 12th of Mai/, in the year 1798 ; and the defendant was in possession of the premises at the time of bringing the ejectment. The questions for the opinion of the Court were, 1st, Whether the lease of the 29th of March, 1798, by the then tenant for life George Allan the Elder, were a good and sufficient lease in possession under the [ 379 ] power of leasing contained in Mrs. Anne A/tan's will, so as to bind those in remainder claiming under the same will ? 2<7, Whether, under the circumstances, the lessors of the plain- tiff, or any of them, were entitled to recover in this ejecN merit ? This case was first argued in Hilary Term last, by W. Wai--, ion for the plaintiff, and Larnbe for the defendant; and again in this Term by Erskinc for the plaintiff, and Park for the defen^ dant. For the plaintiff it was contended, that this was a lease in, reversion, and not in possession, and therefore void under the power. It was only a lease in possession as to the tillage ground, which was to be hohlen from the 13th of February preceding the 29th of March, when the lease was executed. As to all the rest, part of which was to be taken from the 5th of April, and the residue from the 12th of May then next ensuing, it was clearly prospective, and therefore a lease in re- version. Then the lease being entire, if void for part, must be IN THE FORTY-SECOND YEAR OF GEORGE III. 379 DOE dem. ALLAN and Others against CALVEHT. be void for the whole. It was said by Holt, C. J. in Winter v. 1802. Lovedore (a), that any lease to commence in futuro, was a lease in reversion, as opposed to a lease in possession ; and that a lease to commence after another lease, was properly a lease in reversion. The previous occupation of the farm by the same tenant cannot make any difference : the question is the same upon the construction of the subsisting lease as if it had been made to a stranger: and if so, it is certain that he could not have taken possession of two thirds of the farm at the time of the lease granted. A notice to quit cm the 29th of March, if given to a prior tenant under such a lease, would not have been binding. Then if the lease conveying in the terms of it a [ 380 ] reversionary interest be void under the power to lease in pos- session, it cannot be made good by any consideration of the custom of the country. All powers must be strictly exe- cuted according to the form prescribed ; and there is no equity allowed in construing the execution of them. Tai/Jor v. Horde (b}, Earl of Darlington v. Pulteney (c), and Dean v. Fearnside (d). This rule was not shaken in Pnglt v. Duke <>f Leeds (e), though the application of it in the last-mentioned case might be questioned. The reversioner has a right to insist that he shall not be injured; but if the tenant for life had died immediately after executing this lease on the 29th of March, the first quarter's rent would not have been payable till the 10th of July, ten days after the expiration of the quarter. A least- consistent with the power and with the custom of the country might have been granted if it had not been executed till the 12th of May. For the defendant, it was urged that, the true question was, What the testatrix, who created the power, intended ? which was to be collected from the whole of the instrument, and from all the circumstances to which it related : amongst others, it must be taken that she knew the custom of the country as to tin- course of husbandry and the manner of leasing; and she could not intend that the objects of her bounty should be restricted from leasing; in so beneficial a manner as others, and as she o herself had done. The expedient proposed of waiting till the 12th of 71/cry before the lease was granted u ould not have solved () 2 Salk. .,37. Com. /?<>/>. (6') 1 Hun: 120. d' Jl'ils. 17C. d. n. 711. the 381 CASES IN EASTER TERM 1802. the difficulty; for as great expences must be incurred by the 7~ incoming tenant in preparing the arable land for the crop, no ALLAN ' tenant would incur such expences before-hand at the risk of not and Others having the lease afterwards granted to him. In Doe d. Dogget agavut v . Snowdon (a), the custom of the country was holden to controul RT * the general rule of law, as to giving six months' notice to quit before the end of the tenant's year. There, as here, the arable part of the farm was holden from Old Candlemas-day: yet the rent being made payable at Old Lady-day, a notice to quit six months before the latter was holden sufficient; the whole being considered according to the custom of the country, as a Lady- day taking. So this may be taken to be a substantial execution of the power according to the custom of the country; the whole rent being reserved quarterly. These powers are now construed more liberally than formerly. In Pugh v. The Duke of Leeds (b), where the power was to lease in possession, it was ruled that a leasey/ww the day of the date should take effect either inclu- sively or exclusively of that clay, according as it would best effectuate the intention of the person creating the power. Upon the same principle, in Goodiitle v, Fiimtcan (c), a lease per verba de prtcsenti was holden to be within a like power : though at the time of the execution other lessees at will, or from year to year, were in possession of the demised premises ; they re- ceiving directions to pay the rents to the new lessee. So Pome- [ 382 ] roy v. Partington (d), and Doe, d. Duke of Devonshire v. Cavendish (e) turned entirely on the intention of the parties making the powers. At any rate the execution of a power may be good in part, so far as it is warranted by the power, though bad for the excess ; as in Alexander v. Alexander (/') and Commons v. Marshall (g), therefore the lease maybe valid for the arable land. In replyitwas answered, that thiswns no question of an excess in executing the power, for that the lease was entire, and the rent, which was also entire, could not be apportioned ; and there- fore the whole was a void execution of the power. That the () 2 Dlackst. Rep. 1-22-J. (b) Cowp. 714. (c) Doug: 56.5. ((/) 3 'Arm Rep. f,G5. (/-day or not so, as to bring it within the rule laid down in Doe v. Snowdon. But it does not appear to us necessary, in deciding the present case, to deter- mine between the cases of Doe v. Snowdon and that of Doe d. Lord Grey de Wilton; because, supposing half a year's notice to quit previous to the earliest time of entering on any of the lands to be requisite, in order to maintain an ejectment, it will not necessarily follow that a lease made previous to the last rent- day of the subsisting lease, and also previous to the time of pos- session being to be obtained of a great part of the farm, will not be a. lease in reversion. But be that as it may, at all events a con- current lease might have been granted according to the case of Goodtille v. Fumican, Dougl. 565, for twelve years immediately commencino;, habendnm from the 13th February, the 5th April, and the 12th of May in the preceding year: this would have } 385 ] fallen within the terms of the power, which is to demise or lease for any term or number of years not exceeding twelve years, in possession, and not in reversion ; for such lease would have been in possession, and not in reversion, remainder, or expectancy, and would have been for a term not exceeding twelve years ; which is the restriction mentioned in the power. And it is not () 2 Blue. Rep. 1224. to IN THE FORTY-SECOND YEAR OF GEORGE III. 385 to be taken that this would not be an execution of the power to 1802. the utmost extent Mrs. Allan intended; for if a lease may be n - made not contradictory to the terms of the power, and consistent ^' ' * I I f* i jtLAN with the custom of the country, such lease shall be intended to and Others be what was meant (if by a surrender a lease in possession, con- ugainst veying a future interest for twelve years, could not be granted) CALVERT - rather than a lease contrary to the words of the power. The cases cited, w^here the leases have been hold en void for excess only, do not apply ; for this is no question of excess : in those cases, by retrenching the excess, a lease may be brought within the terms of the power; but no limitation of the term will make a lease in reversion a lease in possession. Postea to the plaintiff. NANTES against THOMPSON. May ,-51re gena, warranted to depart with convoy for the voyage, &c. The words as "in- policy was in the usual form; and the declaration contained !' Urest r . " 1 J . . . interest in these, together with other usual averments : that the plaintiff* the policy. was the person who gave the order to the aame averments, only stating that the vessel in the course ol her voy- age was taken a.s prize by persons unknown. There were also the common money counts. To the tirst and second counts there was a demurrer, alleo-ins; for causes that it was not alleged, VOL. II. X nor 386 CASES IN EASTER TERM 1802. NANTES against THOMPSON, [ 387 ] nor did therein appear, for whose use or benefit, or on whose account the policy was made ; nor to whom the said ship apper- tained in part or in all ; " nor what person or persons were in- " terested or concerned in the said insurance, &c. ; HOT that the " plaintiff, or any other person or persons had any interest, " property, or concern in the ship : and also for that it is alleged, " that the said ship became wholly lost to the plaintiff and to " every other person to whom the same did or might appertain "in part or in all; but it was not alleged, nor did appear with " sufficient certainty to whom or to what other person or per- " sons besides the plaintiff the said ship became wholly lost, " Sec." Joinder in demurrer. This case was first argued in Easter Term last, by Giles in support of the demurrer, and PnUer contra; and again in this Term by Erskiiie for the demurrer, and Park contra. It is un- necessary to enter at length into the argument, or the authori- ties referred to, as they were so fully considered by the Court in giving judgment. In support of the causes of demurrer assigned ; though it was not denied that even if the plaintiff had had no interest in the subject-matter, it would have been competent to him, as agent for a foreigner, to have effected the policy, notwithstanding the general provision of the stat. 19 (ico. 2. c. 37. which is confined to insurances on ships, &c. belonging to the King or any of his subjects: and that it would also have been competent to him to have laid a wager on the event of the ship's safe arrival without any interest in the property: yet it was contended that a policy of insurance, in the very terms as well as principle of it, if not otherwise expressed, imported a contract of indemnity, and therefore necessarily supposed a 71 interest in the party for whose benefit it was made: for he could not be assured, unless lie had souK 1 interest at stake, and such upon which the perils insured against might operate. Then if that were the understanding of the parties to the contract, such interest ought to be averred. That, it was a deception upon the underwriter if the assured had no interest, because it varied the risk very materially: for if it were known beforehand to an underwriter that he was contract- ing a mere wager with the party, he would necessarily require a higher premium; because every loss in that event must be a total loss, as there could be no abandonment, and he could have no benefit of salvage, which in the case of a genuine marine in- surance IN THE FORTY-SECOND YEAK OF GEORGE III. 387 surance diminished the risk. Besides which, in the case of a 1802. * mere wager, the assured so far from havin<>- any interest in the I> ANTES preservation of the ship, in its efficiency to perform the voyage, against or in the ability or integrity of those employed in the navigation; THOMPSON. for ascertaining all which the underwriter gives him credit, that *L ^^ ] he is rather interested in insuring the most desperate risks; ~ i against which the underwriter ought to have due warning, that he may apportion the premium accordingly. On the other hand, it was denied that contracts of insurance were always to be considered as contracts of indemnity : for that a wager policy was recognized to be lawful before the stat. 19 Geo. 2. c. 37, and was admitted to be so still with regard to foreigners. And that if wagers in general were lawful, though the parties had no interest in the event, there was no reason why they should not be made in form of a policy as well as in any other form, unless restrained by some positive law. As to the risk being altered, it was competent to the underwriter in every case, and an essential part of his business, to make inquiry as to every circumstance which could operate on the extent of the risk. That if the policy had been made " interest or no interest," or with words to that effect (which it was admitted would have been sufficient) no more intelligence would have been conveyed to the underwriter on the face of the policy than here; and no injury could ensue to him from the omission of the averment of interest contended for; because if the policy imported an interest, the plaintiff would be bound to prove one at the trial, whether ex- pressly averred or not: and if it did not so import, then such averment was not necessary : neither did the stat. 19 (',cn. 2. impose any restraint in declaring on policies on foreign ships. They also referred to many precedents of declarations before the statute; and insisted that this very point, was determined in [ 389 ] dan-ford v. Jlunter (u), where the fourth count of the decla- ration was the same as the present; and no writ, of error was brought. In reply it was observed, that in Grairfurd \. Hunter an in- terest was averred in the first count; and the principal question being, Whether the plaintiff had an insurablc interest, it was not thought worth while to prosecute a writ of error in that par- ticular action merely for the defect of the fourth count : hut in Crawford v. Lit*/g)i(tn, on the same policy (where a writ, of error (a) Ttm Rt'p. 13. where all the r:isc? on the subject are collected. X '2 W> 389 CASES IN EASTER TERM 1802. was brought) the plaintiff only took his judgment on the ccnni NANTES against THOMPSON, averring an interest. Curia adv. vitlt. [ 390 ] GROSE, /. (a) now delivered the opinion of the Court. The question in this case is, Whether in a declaration on a policy, which on the face of it has no wotds to shew it not to be an in- terest policy, it be required that the plaintiff should aver an in- terest to be entitled to recover? In the course of the argument it was admitted that the vessel, being foreign, was the subject of insurance, whether the assured had an interest in it or not ; and it does not seem that an underwriter is likely to suffer any incon- venience from that not being expressed in the policy; inasmuch as at the time of the subscription he maybe informed whether the ship be or be not a foreign vessel : and whether the assured have an interest or not: and if he have such interest, the underwriter will be entitled to all the advantages arising therefrom, according to the case of Le Pi/per v. Farr, 2 Vcrn. 716, whatever may be the form of the policy. The argument for the defendant turns upon a criticism upon the word assured, and upon confining that word to its original and proper meaning, and not allowing it to be understood in a looser and less proper sense, which it has ac- quiredj That the word assured may be understood to import a contract to pay a certain sum on the happening of the events specified in a policy, without any regard to interest, seems to follow from what was not denied by the defendant's counsel, viz. That the plaintiff might have recovered, had the policy used the words " interest or no interest;" in which case, unless a sense be given to the word assured different from its proper meaning there would be a contradiction in terms ; for it would be a con- tract to indemnify a man against risks; by which, on the face of the instrument, it would appear he could not be damnified: and to make such contract intelligible, the words " interest or " no interest," must be understood as pointing out that the word assured was not to be understood in its original and proper sense. In making the stat< 19 G't'o* 2, the Legislature must have understood that the word assured had an improper as well as a proper meaning, by its prohibiting assurances, " interest or no "interest," which is a very different thing from an insurance, "without further proof of interest than the policy," which is also mentioned in the statute: for the latter is an admission of (a) LoidEllenborough, having been concerned in the cause, gave no opinion. interest IN THE FORTY-SECOND YEAR OF GEORGE III. 390 interest to the amount of the sum in the policy, and is con- 1802. sistent with the proper sense of the word assured; and not like ~ an assurance without interest, which in the strict sense would be agaHJt* a contradiction in terms. The stat. 14 (ieo, 3. c. 48, also treats THOMPSON. the word insurance as having this less proper sense. Its title is, "an Act for regulating insurances on lives, and for prohibiting [ 391 ] "such insurance, except in cases where persons insurino- shall "have an interest in the life or death of the persons insured :'' and its preamble recites, that the making insurances on fives, or other events, wherein the insured Khali have no interest, hath introduced a mischievous kind of gaming; and then the statute enacts, that no insurance shall be made on any event wherein the person on whose account such policies shall be made shall have no interest. Here the Legislature treats insurance as a thino- which may exist without an interest; but if, according to the defendant's argument, that could not be, the Act should have been against wagering under the form or pretence of insuring; and should have enacted, that no agreement of the parties to dispense with the. proof of interest, or admission of interest, if it could be shewn not to exist, should enable the person so con- tracting to recover. In Roebuck v. Hammerton, Cowper 737, a wager was laid on the sex of the Chevalier J)' Eon; and the form of the contract was this : In consideration of thirty-five guineas for 100/, received of Messrs. Roebuck and / aughaii, we, whose names are hereunto subscribed, do severally promise to pay the sums of money which we have hereunto subscribed, on the following condition, viz. In case the Chevalier D* Eon should hereafter prove to be a female. Valued at the sum insured, without farther proof of interest than this policy. In witness whereof, we the assurers have subscribed our names. And it was contended that the stat. 14 (ie<>. '3. c. 48, did not extend to that case : that it was no policy : that the subject-matter was not capable of insurance : that the nature of the Act, and not the form of the instrument, ought to decide : and that it was a mere wager reduced into writing. But the Court held it within the [ 39'J J Act as a policy of insurance. If then the insurance in the case before us, may be taken to be an insurance without interest, and to be understood as an agreement to pay the sum subscribed in the event of the ship being lost by any of the perils insured against, the non-averment of interest can at most lead onlv to a conclusion, that this is not an interest policy; supposing, it' it were an interest policy, an averment of interest to be necessary artel 392 CASES IN EASTER TERM against THOMPSON. f 393 ] and the plaintiff will be entitled to recover, as the assurer of a foreign ship having no interest in it. But if it be an interest policy, the precedents referred to are, we think, authorities for declaring without an averment of such interest. The case of Goring v. Siveeting, in Saioiders 200, was a policy valued at 300/., without further account of the same : the effect of which was to make it unnecessary to prove the amount of the interest at the trial. But that could not, according to any rule of pleading, dispense with the necessity of averring an interest, if without such averment there could be no breach of the defendant's un- dertaking: which is the objection in the present case. Nor could the allegation of an offer to abandon supply the want of the averment ; for that was an allegation perfectly immaterial ; it need not have been proved to have entitled the plaintiff to re- cover an average loss ; and a total loss might have been recovered without it. And though the plaintiff offered to abandon such interest as he had ; yet inasmuch as it would not follow from thence that he had any interest, it could not supply the want of an allegation : which, according to the argument i n l his / o o case, is most material and essential, to shew a breach of the de- fendant's contract ; the want of which a verdict would hardly have helped ; for such allegation would have been proved by proof of a paper delivered to the defendant, couched in the terms of that allegation, without any proof whatever of interest. It may be inferred from the offer to abandon in that case, that it was a policy on interest; notwithstanding which no objection was taken to the want of the averment, now insisted on by Sanndcr^, who, for acuteness and knowledge of pleading, was exceeded by no one, and who appears dissatisfied with the determination ao-ainst him. It is therefore, as a precedent, a veiv strong authority in favour of the plaintiff. Vidiau '26, is another de- claration on a similar policy on the some ship, at the suit of another plaintiff, in the same form. I idian 48, is an insurance on the ship and good*: and the averment is, that the plaintiff was possessed of part of the ship on a certain day, and that af- terwards divers goods were loaded on board her, with which she sailed, and that those goods were exchanged for others, and that the ship was taken with those last-mentioned goods ; but it contains no averment that those goods were the nlaintifPs, or that he loaded them, or that he had any interest in them : one or other of which allegations, according to the argument for the defendant, was necessary to shew that the plaintiff was damni- c fied IN THE FORTY-SECOND YEAR OF GEORGE III. 393 fied by the loss of the goods, and to entitle him to recover for 1802. them. Clift 77, was admitted to be a precedent in favour of the ^ plaintiff. As to Jeffrys v. Legciidra, that precedent does not support the plaintiff's case; for, upon examining the roll, it THOMPSON'. appears that an interest is averred in the declaration, and found by the special verdict. Subsequent to the stat. 19 Ceo. 2, we do not find any instance where, in cases within that statute, an interest has not been averred ; which, from its universality, com- pared with the instances before the statute where it has not been done, affords some inference, that without such averment, a policy made in the form this is, is not necessarily to be taken [ 394 ] to be an interest policy : and we are not apprized of any case since that time, except Craicforti v. Hunter, where the policy could be made without interest ; in which, by the terms of the policy, the assured mi^ht not aver an interest without subject- ing himself to a greater degree of proof than if he had omitted it. Such was the case of T/iet/ittou v. Fletcher, Doug/. 301, which was a policy on foreign ships; in that case there was an averment of interest : but as the policy was to be sufficient proof of interest, that averment would be proved without going a step further than would have been necessary, had there been no such averment ; and therefore such precedents have little weight in determining the question. In Ci- 3. c. 68, not having been complied with before the bank- ruptcy, the sale was not complete at that time. In answer to which it has been said by the defendant's counsel, That since the stat. 26 Geo. 3. c. 60, and 34 Ceo. 3. c. 68. s. 16, which provide for a notorious transfer of property in ships, the non-delivery of the grand bill of sale will not vitiate the transfer of a ship, as that can be no longer any badge of fraud. And as to the last objection, that as the requisites of the stat. 34 Geo. 3, were complied with within a reasonable time after the execution of the instrument of sale, that will by relation make the sale complete from the 15th of November, a time before the bankruptcy. As my brother Le Blanc and myself are of opinion with the plain- tiffs on the second objection, it is not necessary for us to say any thing on the first : but thus much may be observed, that if we look at the prevention of frauds, the necessity of the quickest [ 403 ] compliance with the requisites of the stat. 34 Geo. 3, is ob- vious ; for if they were delayed, and the grand bill of sale or other muniment might remain with the vendor, a door would be opened to the greatest frauds, from the reliance men would place on the possession of such bill of sale, when no evidence of anv trans- fer from the possessor could be found on searching the registry. As to the second objection ; one of the - reat objects of the stats. 26 & 34 Geo. 3, was to prevent foreigners beino- concern- ed in British ships, without being subject to the disadvantages belonging to that character; and [as the most effectual means of coming at an immediate knowledge of such transfer] has made the validity of the transfer of every ship or vessel, with a very few exceptions, depend upon the compliance with certain circumstances, which must convey to the public the fullest in- formation on that subject. The words of the stat. 34 Gen. 3 c. 68. s. 16, as they respect the case before us, are. "That it "any ship or vessel shall be absent from the port to which she ' belongs 403 CASES IN EASTER TERM 1802. Moss and Others against CHAR, NOCK [ 404 ] " belongs when any alteration in the property thereof shall be " made, so that an indorsement or certificate cannot be imme- " dialeli/ made, a copy of the bill of sale shall be delivered " [to the person authorized to make registry, who is to do cer- " tain things directed by the Act] ; and within ten days " after such ship or vessel shall return to the port to which she " belongs, an indorsement shall be made, and a copy of it de- " livered in manner before-mentioned ; otherwise such bill of " sale, or contract or agreement for sale, shall be utterly null " and void to all intents and purposes whatsoever." Such being the words of the Act, tiie public will be most effectually served by holding, that no interest shall pass from any owner in British ships to any other, until the public has that information which is so essential to its commercial welfare : and the objects of the parties to such contract will be best consulted by allowing the longest time to comply with the requisites of the Act, so as that which was meant to operate as a certain means of compelling men to give that information, be not destroyed or weakened. And this will be done by construing the statute as enacting, That no bill of sale or other such instrument shall have any operation or effect, until the requisites imposed on the parties to the sale are complied with: and by not allowing any relation to hold good, so as to make the conveyance effectual from any antecedent time. By such construction the parties to the con- tract will be most strongly called on to comply immediately with the requisites of the Act; which not only from its general scope, but from the words of it, it is evident were intended to be done without delay. And the purchaser will not lose the benefit of his contract, if at any time he comply with the re- quisites before the rights of others intervene. But if this Act were to be considered as giving an indefinite time for the com- pliance with its requisites, it would enable a transfer of proper- ty to be made to foreigners, who might remain concealed own- ers until the return of the vessel to her port, which might not be for a great length of time. Or if the Act is to be un- derstood as allowing a certain reasonable time for complying, with the requisites after the execution of the bill or other con- tract of sale, and by any inadvertence that time should be ex- ceeded [as to the extent of which there may be very different opinions] the consequence would be, that the sale would be for ever null and void, however great the damage might be to the purchaser. This IN THE FORTY-SECOND YEAR OF GEORGE III. 404 This case has been compared to the cases of enrolments of 1802. bargains * and sales under the statute 27 77. 8.; according to jyj ()SS the construction of which statute, if the deeds be enrolled within and Others the six months, the estate will pass. But the words of the two against statutes are very different; the statute of II. 8. enacts, That CIIARXGCK. no manors, lands, Sec. shall pass or change where any estate of freehold shall be made by any bargain and sale, except the same be by writing indented, sealed, and enrolled within six months next after the date of the indenture. But the statute of Ceo. 3, on the construction of which we are now deciding:, O * enacts certain things to be done, otherwise the bill of sale shall O be utterly null and void to all intents and purposes : which words are most materially different from those in the statute of enrol- ment. And we are not aware of any authority to shew, that if a statute direct certain things to be done to give effect to an in- strument, without limiting a time for doing it, that such statute is to be construed as if it had said, that it shall be sufficient if the thing be done within a reasonable time ; instead of un- derstanding the statute as enacting, that the instrument shall have no operation or effect until what the statute requires shall have been complied with. For these reasons, my brother Le Blanc and myself are of opinion, There should not in this case be anew trial. Rule discharged. [ 40G ] DIMSDALE against NIELS ox. Monthly, MtiySlst. T> ULE to shew cause why interlocutory judgment, signed by j,, a coimtr y -*-*' the plaintiff, should not be set aside with costs for irregula- cailsp . if ' tht defendant put rity, and proceedings stayed, ccc. in special hail The defendant was arrested at Liverpool on the loth of Mail m tmu '' n f . ' may plead in instant, on a testatiun special capias issued the llth, returnable abatement, in one month from Easter (being Sunday Kith May}; to which j^nig n'ot the defendant put in special bail before a commissioner at l.ircr- perfected till pool on the 17th May, who then justified by affidavit. On the *j' e s r jVlhrs-^ same day the plaintiff filed a declaration conditionally, and be ultimately served notice thereof on the defendant at Lin-rpnol, and ^avc- vVilim the him a rule to plead thereto at the same time. The bail-piece was i''" 1 ' ; allowed and filed with the filacer ; and notice thereof, with a t ;Ve <>t the copy of the affidavit of the bail, was o-iven 1o the plaintiff's at- ^ ulllt - torney on the 20th of May; and on the same day the defendant filed a plea in abatement. Notice of exception to the hail was given on the 21st ; in consequence of which, notice of justifica- tion 406 CASES IN EASTER TERM 1802. tion of the said bail by affidavit was given for the 25th, when the _.~ bail did accordingly justify in Court. Notwithstanding which against tne plaintiff's attorney demanded a plea on the 26th, and after- NIELSON. wards signed judgment for want of it, and gave notice of a writ of inquiry. Littledale, in support of the rule, observed, That by the prac- [ 407 ] tice (a) the plaintiff, in a country cause, has twenty days to ex- cept to the bail, before which the defendant cannot perfect them; and therefore if the defendant were not to be considered as suffi- ciently in Court before the perfecting his bail, so as to be en- titled to plead in abatement, defendants in the country must be . altogether excluded from pleading in abatement, if the plaintiff choose to accept the bail, although it may afterwards appear that proper bail had been put in in. time. Scarlett, contra, relied on Venn v. Calvert (b), where a plea filed before the bail were perfected was holden a nullity, although they afterwards justified ; and therefore the plaintiff was entitled to sign judgment as for want of a plea, the bail not having justi- fied till after the time for pleading was out. Lord ELLEN BOROUGH, C. J. The defendant appears to me to be in Court after he has put in bail, unless it turn out that the bail on exception taken are afterward set aside. But if the bail are ultimately accepted, the defendant has done every thing which it was in his power to do, and therefore ought not to be deprived of any benefit which the law gives him. LAWRENCE, J. observed, That in the case of Venn v. Calverl, the plea must have been a plea in bar, pleaded after the bail had been excepted to, and it would be impossible, if the plaintiff delivered his declaration conditionally, and delayed excepting for [ 408 ] four days, that a defendant could ever plead in abatement : a by the rules of the Court he must plead in abatement within that time. Per Curium, Rule absolute. () 1 Tidd, 134. (b) 4 Term Rep. 578. END OF EASTER TERM. 409 CASES ARGUED AND DETERMINED IN THE COURT OF KING'S BENCH, IN Trinity Term, In the Forty-second Year of the Reign of GEORGE III. 1802. WILDE v against THORNTON. Saturday, June I9tli. f'l^HE defendant was holden to bail on an affidavit, stating that An affidavit - he was "indebted to the plaintiff in 50/. upon and by virtue ^V^'pltain'' "of a certain agreement dated 30th November 1801, under the sum for the . ir " hands of (the parties) ; whereby each of them bound himself agreement*" 1 " unto the other in the said sum of 50/. for the true perform- !mlst sliew f. , . , 1*1 , tl'at the sum ance or the said agreement ; and which agreement the said ,, stipulated " defendant hath neglected and refused to perform on his (lai " : ^ rrs > : ""' not merely a "part, &C. penalty: Reader moved, That the defendant might be discharged out ', tati ' 1 -, tlia l t I (1C (1 *' I I'll (lit!! t of custody on filing common bail, on the insufficiency of the bound him- affidavit in not stating what the agreement was, or (he breach of ^ in "^ l t ' u l " it ; so that the Court could not know whether the .!()/. were sti- [ 410 ] Filated damages or a penalty: for the former ol' which only the l H ' llolm a cer - ~ ' . . tain asrci 1 - defendant could beholden to S]>eciul bail. He oiled Sntk. 10i. mcnt; and Anonym., Whitjield v. Whitfeld (a\ Archer v. Mlard (b\ and f^^lj 1 ^ Brookes v. Friend therein cited. Sthilon v. I In^/ics (c), and n-fn^'d to Hat/ieldv. Linguard (d), and observed, that since the stat. 8 &/ pl'/n's'noT MitHcieut. () Barnes 1 09. qto. (/;) Smjer 1 09. (c) 6 Term Rep. K5. (d) llij; in the nature of a civil remedy. So one in custody upon an attachment for non-payment of costs (} under statute ') & () W. & 717". c. 11, s. 0, was holden entitled to be dis- charged under the Lords' Act. And one convicted in a penalty under the Lottery Act (/>) was deemed privileged from arrest on a Sunday. It was there said by IJttt/er, .1. to have been settled (a) A', v. Stukcs, Cou'p. (b) /t, v. Myers, 1 Term !!<}>. '.'65. IN THE FORTY-SECOND YEAR OF GEORGE III. 412 of late years, that an attachment for non-performance of an 1802. award was only in the nature of a civil execution (a}. So Taylor ^, J7~ v. Scotl (6). In R. v. Jti/icrell (c) the sheriff' was holden en- ayaiiist titled to poundage on levying under an extent; and this is con- PALMER. firmed in 5 Com. D/o 1 . tit. fr iscount, F. 1. [Lord Ellenboroush. O i- o The stat. 29 Eliz. c. 4. has the words extent or execution.] Lord C. B. Comi/na also says, that the sheriff' shall have his poundage on levying a fine fora misdemeanour by process of B. R., for which he cites 2 Jon. 185. The stat. of Elizabeth merely re- strained the sheriff in certain cases from taking exorbitant fees; but the statute under which he claims his fees is the 23 //. 6. c. 9, which expressly extends to attachments as well as arrests. Gurnei/ observed, That the omission of the word attachment in the latter stat. 29 Eliz. c. 4, when the matter was again under the review of the Legislature, shewed that they intended to ex- clude the sheriff' from taking poundage in such cases; and that construction was confirmed by the universal practice since that time. Curia . 177. [ 4I3 ] The KING against The Inhabitants of I T IM>F:K I' A PWOKTII. .'/,,""' u'.'t. THE defendants, the inhabitants of a parish in ( 'fnnbr/ ( i t't) ) were convicted on an indictment preferred al the assr/.es lor ( . , ;1 _ v _ ;:!> the non-repair of a turnpike road which led through their t 111 " ( " l ' rl r i . . ni.iy ,i|,por- parish; which indictment having been removed by cerlioran at tinn tia- line the instance of the prosecutor info this I'ourf, a rule was ob- ' tained, calling on the defendants to shew cause why a fine <>f ,,,.,,1 i.ct^een 1200/. should not be imposed on them; and callini. is L or d Elleitborou]>!icnble to the sumc funds, though in than was rcijuiicd, was holden vulid. proportions to each instrument, IN THE FORTY-SF.COND YEAR OF GEORGE III. 414 instrument, and therefore applicable to the same purposes as the proper stamp. * Erxkine and Reader shewed cause against the rule; and re- ferred to Robinson v. Dri/boroitg/i, (a) and />//; v. Pi- ice (b), where it was settled that no other than the proper appropriate stamp was sufficient, although the revenue were not injured, as where a stamp of a greater value was used. It is true that in the former case there was a stamp of a different denomination ; but that does not vary the consideration, because the ground of the determination was that the several duties were appropriated to the payment of distinct funds. They then attempted to shew that a single 2s. stamp adopted to a promissory note of higher value than the present, was applicable to different funds from the Is. 6V/. stain]). The stat. 31 Geo. 3. c. 25. .. 1, repeals all former stamp-duties of this description; and .s. 2. re-enacts new duties : 1st, For promissory notes above 40.s. and not exceeding of. 5s. a duty of 3(/. 2dly, For the same above 5/. 5s. and not exceeding 30/. a duty of uY/. 3dly, For the same above 30/. and not exceeding 50/. duty of 9<7., and so on in proportion. The stat. 37 Geo. 3. c. 90. s. 1, adds Id. to notes of the 1st class; '2d. to notes of the 2d class; and 3d. to notes of the 3d class. Lastly, The stat. 41 Geo. 3. c. 10. s. 1, adds 2r/. to notes of the 1st class; 4d. to the 2d class; and Gd. to the 3d class. Then, as to the application of the duties, all under the stat. 31 Geo. 3. are by s. 34, (after satisfying certain charges) to go to the consolidated fund. Under the stat. 37 Geo. 3. c. 90. s. 22, the additional duties are applicable in the first instance to the increased charge of any loan made in that session, and a distinct account thereof to be kept for ten years. And under the stat. 41 Geo. 3. r. 10. s. 12, they are to be applied in like manner to any loan of (hat session, and kept apart for ten years, and afterwards to be carried to the consolidated fund. The several parts then of a I.*. 6V7. stamp appropriated to a note of this value arc 9d. under the first Act, applicable to the consolidated fund; 3d. under the second Act, applicable to a particular fund ; and \ (a) 6 Term Rep. 317, (6) Ante> 1 vol. 65. stamp 1802. TAYLOU, against HAG UK. *[ 415 J C 416 ] 416 CASES IN TRINITY TERM 1802. TAYLOR against HAGUE. [ 417 ] stamp on which the promissory note in question was written was constituted, whether composed of a single sum, or of dif- ferent sums amounting to 2s. : because it \vas observed that a 2s. stamp miofht be composed of Is. under the stat. 31 Geo. 3.; of 4d. under the stat. 37 Geo. 3.; and of 8d. under the 41 Geo. 3.: in which case the several component parts would be appli- cable, though in a larger proportion than was necessary, to the several funds to which the several component parts of the pro- per Is. 6d. stamp were directed to be applied. The matter stood over to ascertain the fact; and it appearing that the note in question was composed of a Is., a 4d., and an 8cJ. stamp, the Court observed that the foundation of the objec- tion was now removed ; for it appeared that more than sufficient of the stamp used was applicable to the respective funds to which the proper Is. 6d. stamp was appropriated. Rule absolute. Gibbs, who was to have supported the rule, referred to s. 19 of 31 Geo. 3 ; which provides that no promissory note, 8cc. shall be given in evidence in any Court, unless " stamped with a law- " ful stamp, to denote the duty as by that Act directed, or some "higher duty in that Act contained, " cc. : and the subsequent Acts refer to and incorporate the general provisions of the former. LA WHENCE, ,1. in the course of discussing the case on the former day, adverted to another statute in pari materid 37 Geo. 3. c. 136. s. 1 ; which enables the commissioners, where any note, &c. is written on a stamp of a different denomination but of an equal or greater value than the stamp required, to affix the pro- per stamp on payment of a penalty of 51. Wednesday, June 23cl. The KING against The Inhabitants of ST. HELEN, in the City of WORCESTER. An order Tor A x order was made by the justices at the Quarter Sessi taxing one J-\ , J }>;:rM> in aid holden for the county of the city of Worcester, groun of another, under the statute 1,S Eli:, c. '_'. a. on the stut. 43 EH~. c. 2. s. 3. Sessions grounded aHhou. 327. (b) Ibid. -147. (c) 5 Term Hep. 20.). (iihli. 427 CASES IN TRINITY TERM 1802. " Thomas Goldney of Chippenham, frc. and Harry Goldney, " of, &c. clothiers, severally make oath and say, and first the MAITLAND ^ H Goldneii for himself saith, That some time in the lat- against . GOLDNEY. " ter end of March 1800, he was present at the White Hart " Inn in Chippenham aforesaid, and then and there heard Henry " Guy of Chippenham aforesaid, clothier, publicly declare that " he had just received (the plaintiffs;') account, &.c. that the ac- " count was near 400/. less than he expected, and that their " (meaning the plaintiffs') conduct was worse than robbing on " the highway, or words to that effect; and that he would im- " mediately go to London and bring an action against them; " and this deponent, T. Goldney, for himself saith, That soon " after the said H. Guy had received his account from the " house of (the plaintiffs) as this deponent believes, the said " //. Gay came to this deponent's counting-house, at Chip- " penham aforesaid, and then and there asked this depo- [ 428 ] " nent, T. Goldney, whether he had received his account " from the plaintiffs; and this deponent replied, that he had re- " ceived his account; and the said //. Guy asked him, the said " T. Goldney, how his account was, and said that they (mean- " ing the plaintiffs) had robbed him of near 400/. : that it was " as bad as robbing on the highway, and that he would arrest " the house, and drop all kind of connection with them; or " words to that purport and effect." The second count only differed from the first in not stating that the words spoken by GUI/ were "hastily and rashly uttered ;" and in only stating that Gay was afterwards satisfied with the account, without statins' that the plaintiffs' conductwas justified to him. The third count charged the libel to relate to a certain account therein alleged to have been delivered by the plaintiffs to Gay; but did not state that an account had been delivered, or that Gay had ex- pressed himself to be dissatisfied with it, or that he was afterwards satisfied ; or that the defendants knew those facts before the pub- lication of the libel in question. Pleas. 1st, ?sot Guilty. 2d. As to the first and second counts, the defendants justified jointly, that before the respec- tive times of composing and publishing the said supposed libels respectively, Svc. to wit, on the 1st of A/-// 1800, the said //. Goldney was present at the said White 1 1 art Inn in Chip- pen/tam aforesaid, and then and there did hear the said //. Guy publicly IN THE FORTY-SECOND YEAR or GEORGE III. 428 publicly declare to the effect following, that is to say, that he 1802. had just received fllaitland's account (meaning his annual ac- ,, P /..!,.., MAITLAKD count from the house or the plaintiffs); that the account was against near 400A less than he expected ; and that their (meaning the GOLDNEY. plaintiffs') conduct was worse than robbing on the highway ; and that he would immediately go to London and bring an action against them. And the defendants further pleaded, That soon after the said //. GUI/ had received the said account, Sec. from [ 429 ] the plaintiffs, before the respective times of composing and pub- lishing the said supposed libels respectively, See. to wit, on, ike. the said II. Gin/ came to his, T. Goldiiey's, compting-house, at Chippenham aforesaid, and then and there asked the said T. Gold net/ whether he had received his account from (the plain- tiffs); and the said IJ. GUI/ then and thereupon asked him, the said T. Go/di/ei/, how his account was, and then and /there said to the effect following, that is to say, that they (meaning the plaintiffs) had robbed him of near 40(V. ; that it w r as as bad as robbing on the highway, and that he would ar- rest the house, and drop all kind of connection with theru, to wit, at, Sec. wherefore the defendants at the said respective times when, Sec. composed and published the said libels, Sec. The de- fendants also justified separately to the third count in the like manner. To these justifications there wc-re demurrers, assigning for special causes, that the defendants have not by their.second plea justified or answered the special matter in the inducements to the first and second counts respectively contained, nor have averred that the matters in that plea alleged to have been de- clared and said by ihe said 11. Gin/ are, or that any part thereof is true; nor that the said //. GI/I/, or any other person or per- sons than the defendants, ever irn>lc <>r printed, Sec. those mat- ters or any part thrreof: nor have they, the defendants, in or by that plea denied that before the composing or publishing the said libels in those counts respectively mentioned, or either of them, the conduct of the plaintiffs respecting the said accounts, Sec. was explained and justified to the said //. Gnu, and that he was satisfied therewith, and reposed his esteem and confidence in them, and continued to deal \\ith and employ them in their [ 400 j said trade, and that they, the defendants, had nol/rc thereof: and also for that, the matters contained in that plea do not amount to any traverse or denial of the said tirst and second count-. 430 CASES IN TRINITY TERM 1802. counts, but are consistent therewith : neither do those matters T contain any justification or excuse of the malice or misconduct against of the defendants, or of the causes of action, 8cc. Also, that GOLDNEY. the matter thereby attempted to be put in issue is immaterial and irrelevant, &c. Similar cases of demurrer were assigned to the third plea. Abbott, in support of the demurrers, contended, 1st, That no person could justify the publishing in print or writing, slanderous words spoken of another, although he named the speaker. But, 2dly, if he could, he must at any rate publish the exact words, and not take upon himself to judge of the im- port and effect of them. 3dly, (which applied only to the de- murrers to the pleas to the two first counts) That in no case could the publication of slanderous words spoken by another be. justified after the publisher knew that the person who ut- tered the slander was convinced of his mistake. 1. There is a great difference between the malignity and injurious conse- quences of slanderous words spoken and written; the one is sudden and fleeting, the other is permanent, more deliberate, and more widely disseminated. This distinction is recognized in the books ; for many words, which, if spoken, would not be actionable, are actionable if written ; as in Hell v. Stone (o), where many cases to that purpose are collected; Austin v. Cul- [ 431 J pepper (h), Harmon v. Delany (c), King v. Lake (d), Fillers v. Mousley (e\. and Janson v. Stewart (/"). But it will be said that it is the same whether the slander were all spoken, or all written; and that no action will lie in either case, if the original author of it were named at the time; and Lord Northampton's case (g), may be relied on for this purpose ; but that was not the point in judgment; for ultimately all the defendants there were punished. The case of Crawford v. Midd/eton (//), is to be sure in point; but Twisden, J. differed from the rest of the Court; and his opinion is the more entitled to weight; for cer- tainly it was not necessary, as the three other Judges supposed, to allege in the declaration, by way of negative, that the defend- ant had not met .any person on the road who hud told him the slanderous words imputed. The case of Davis v. Lewis (?) (a) 1 >-. $ Pull. 3.51. (,';) Skin. 124. ami 2 Show. 313. (c) 2 Slra. 899, and Fi/zir- 253. ((/) llnrdr. 470, 1 Sauud. 120. (c) 2 It'ils. 403. (f) 1 Term Rep. 748. () \<-Z Co. 13-1. (/() 1 Lev. 82. (/') 7 Term Rep. 17. only IN THE FORTY-SECOND YEAR OF GEORGE III. 431 only decides the converse of the proposition, that as the defend- ant did not, at the time of repeating the slander, name the party who uttered it to him, it was not sufficient to name him in his plea. Sound policy is against the admission, much more the extension of this kind of justification ; for every repetition of a slander is a new injury, and sometimes is an aggravation of the first; as, if the occasion be more public, or the slanderer a person of greater weight. By the rule of the civil law, every publisher of slander was punishable as the original author. Codex, fib. 9, tit. 36, 2. At any rate, however, the party justifying must take care to publish, if at all, the exact words of the original author of the slander, and not what lie is pleased to call the purport and effect of the slanderous words. In actions for slander, and indictments for libels, as well as in justificatory pleas of this sort, it is always usual to state the words themselves, and not the ef- fect of them; for otherwise the party pleading makes himself a judge for the purport and effect, Avhich the law does not admit. The very reason why the second speaker is excusable in any case^is, because he gives to the party injured a certain cause of action against the original speaker; but that is not the case here; for if the plaintiff were to charge the first speaker in an action of slander, and only allege in his declaration that he had spoken such and such words, or to ihat effect, that would not sustain the action: neither would it suffice if the words were stated without that addition, if the present defendants, when called as witnesses, could only prove what they have in their plea here alleged. For though it be not necessary to prove all the very words which are laid, yet some certain words must be proved, agreeing in substance with the words laid. Hut, 3dlv, no person is allowed to publish the hasty slander of another, after he knows that the person who first uttered it is convinced that he was mistaken. This is specially charged against the defendants in the first count, and is the irist of that count, and must be proved by the plaintiffs ; otherwise, under th<' -j.'' neral issue the defendants will be intitled to a verdict; the special plea to it therefore amounts to no more than the ir< neral issue. In Gerard v. Dickenson (>/), it was holden. That slander spoken by the defendant against his own knowledge made him liable at all events. 1802. MAITLAXD against GOLDXEY. [ 432 ] VOL. II. -1 Co. 18 b. z 432 CASES IN TRINITY TERM 1802. Holroyd, contra, said he should first consider the special plea to the 3d count; because if that were not good, of course the avcdnsi^ others could not be maintained. To maintain an action for GOLDNEV. slander, the words spoken or written must be fa he. as well as [ 433 ] malicious. This was so settled in Lord Northampton 's case (a), and all the subsequent cases. The fourth point there resolved was, that in a private action for slander, if J. S. publish that he hath heard J. IV. say that./. G. was a traitor or thief, in an ac- tion on the case, if the truth be such, he may justify. The same was considered in Davis v. Lack (6). But it is at- tempted to distinguish this from other cases, because the de- fendants published in writing that which before was only spoke?/. Admitting, however, that there may be a distinction in the re- spect stated, namely, where the words were not actionable before they were reduced into writing, that distinction does not apply here ; because the words in question having been spoken of the plaintiffs in their trade, were in themselves actionable, as much so as if they had been originally written. And as to the greater mischief of written than of parol slander, the law lias provided an additional remedy for it, namely, by indictment. Neither does the mere stating that another person said such and such things of the plaintiffs give any confirmation of or authenticity to the slander, as it must still stand upon the authority of the original propagator of it. Nor is any special damage charged to have ensued from it. Therefore, all that the defendants said being true, and no special damage beinu stated, no action lies, there being neither damnum nor injnrta. [Lord El/enboroiigh desired that he would endeavour to answer the objection, which pressed chiefly on the attention of the Court, that on the in- formation as disclosed by the pleas, the plaintiffs could not have maintained an action against GUI/ for the slander.] The usual way to be sure in declaring in these actions is to state that the defendant spoke such and such words; but it has never been [ 434 ] holden necessary to prove every identical word as laid : proving the substance of them is sufficient. It is so in the case of libels; though there, if the party affect to set out the very words, he must prove them. Here the words themselves are given, though the defendants have also added, or (o lliat effect. But it would be sufficient for the plaintiff's to declare on those words against GUI/, though they could only prove words to the same effect. () 12 Co. 133. (/>_) 7 Term Rep. 17. [ Lawrence, IN THE FORTY-SECOND YEAR OF GEORGE III. 434 [Lawrence, J. Though it be not necessary to prove all the very 1802. words alleged, yet it is necessary to prove some material part of , ' ' them; and it would not be sufficient to prove equivalent words ll-l^^ of slander.] The demurrer admits the words justified to be GOLDNEY. substantially the same as those spoken. With respect to the justification pleaded to the first and second counts, admitting that an action lies for publishing slander originally uttered by another after knowledge by the defendant that it was untrue, yet that is no cause of demurrer to the justification pleaded ; but such previous knowledge should have been specially replied, in order to shew that the plaintiffs meant to rely on it ; because, as it is stated in the declaration, it is mere matter of aggravation, and need not have been proved ; the gist of the action not be- ing the knowledge, but the falsely and maliciously publishing the libel. As where to an action for a voluntary escape, the defendant may plead a recaption as if in case of a negligent escape ; and if the plaintiff mean to rely on the voluntary escape, he must reply it specially ; because the actual escape is -the gist of the complaint, and the allegation in the declaration, of its being voluntary, is only to be taken as matter of aggravation, unless the plaintiff by his replication shew that he insists on it as a substantive cause of action (//). So in an action on a bond, [ 43.3 ] in which the condition is stated and breaches assigned in (lie declaration, yet if the defendant plead performance, it has never been holden that the plaintiff must not insist on the breaches in his replication. So in an action of trespass for im- pounding cattle and converting them to the defendant's use, the conversion is not the gist of the complaint, though it may be- come so by the replication ; and the conversion need not be an- swered by the plea (&). Here it would have been sufficient, on the plea of the general issue to the first count, for the plaintiffs to have proved the publication, without any of the previous circumstances in aggravation. And if a special pica select a fact not material to maintain the declaration, and put that in issue, it is clemurrable. Abbott, in reply, insisted that the plaintiffs could only sustain the two first counts, by proving the several matttrs alleged therein, prior to the publication, which, as there stated, grew out (a) Sir R. Bovy's case, 1 Ventr. 217. and vide Bonafous v. Jl'ulki-r, ;: Term Rep. 126. (b) Dye v. Leutherdale t 3 inis. 0. Z 2 of 435 CASES IN TRINITY TERM 1802. of such previous matter, and was inseparably connected the?e- ,, with. The libel is charged to have been published of and con- J\l A I T L \ N D against cerning the said account so made out and s;ent to the said Guy, GOLDNEY. and of and concerning the said Guy, and the aforesaid expres- sions so by him uttered, Sec. which expressions are before stated to have been uttered hastily and rashly, and the matter to have been explained to Guy's satisfaction, and this with the know- ledge of the defendants before the publication of the libel. The plea does not allege that the words spoken by Guy were true, [ 436 ] but only that in fact he had uttered such words, or to that effect : therefore, unless it would be sufficient for the plaintiffs to de- clare in that manner against Gnij, the defendants have not given them a certain cause of action over by their plea ; and it must be taken that the defendants, when called as witnesses in such action, could prove no otherwise than as they have pleaded, which would not be sufficient. But at any rate, there is a great difference between written and oral slander : and, for the rea- sons before given, the rule laid down in Lord Northampton's case does not apply to the present. Lord ELLEN BOROUGH, C. J. Without considering the ex- tent of the rule laid down in Lord Northampton's case, of which it is sufficient at present to observe that that was a case of oral, and this is one of written slander, the ground on which we are disposed to decide the present question steers clear of that and all other cases. In order to maintain this species of action, it is unnecessary that there should be malice in the defendant and an injury to the plaintiff, and that t he words should be untrue. By the hist count the charge in substance against the defendants is, that they revived and published an injurious report of the plaintiffs, which had been made by another person, who was afterwards convinced that he had uttered the words hastily and rashly; and that the defendants did this with full knowledge of all those circumstances. All the several allegations of the previous report, the subsequent explanation of the plaintiff's conduct to Guy, his satisfaction with it, and the defendant's knowledge of it, are so interwoven by the pleading with the pub- lication of the libel, that they could not be severed from it; so that the plaintiffs could sustain that count by proof of the pub- lication alone of the libel without such explanatory circum- [ 437 ] stances. The plaintiffs could not entitle themselves to recover on it unless all were proved. The count then contains a charge against IN THE FORTY-SECOND YEAR OF GEORGE III. 437 against the defendants that they published the slander with a 1802. knowledge that the person who had originally littered it was , ~~ satisfied that it was untrue. The fact therefore of such previous aaainst uttering was merely used by the defendants as a pretence for GOLD.NEY. publishing the same slander : that shews malice in the de- fendants, and an injury to the plaintiffs. But without going into that point, at all events, in order to justify the parties re- viving the slander by naming the original author of it, they must so disclose the matter as to give the plaintiffs a certain cause of action against the party named : now here they only state that the other uttered such words, or to that effect; and if the defendants when called as witnesses to support the action against GUI/, could only prove that he uttered words to the effect of those set forth, that would not be sufficient. On this ground, alone, without going into the other objection, it is enough for us to say that the justification cannot be supported. LAWRENCE, J. (a) 1 am of the same opinion on the ground stated by my Lord, without going into Lord \ort/ia/np(uti'?-, case as applied to written slander. And without considering whether or not it be necessary to prove all the previous allega- tions in the two first counts, it is sufficient to say, according to the rule in Lord ^\orthantpto)i& case, supported in the late case of ])ai'is v. Lewis, 7 Term Re/>. 17. thut in order to justify the repetition of slanderous words spoken by another, the defendant must o-ive a certain cause of action against that other, and that c? ~ must be done not only by naming the author of the slander, but also by giving the very words used : and it is not sufficient either [ 438 J to state words to the same effect, or to prove words to the effect of those alleged. For I take the rule in actions of this sort to be, that though the plaintiff need net prove and Miller v. Newbald (g) ; so that even a return of nun est inventiis by the sheriff (after a writ of error allowed) to a capias issued before is a nullity : for, as it is said, the sheriff cannot even look after the defendant to ground such a return upon. Though in Miller v. Newbald the Court said they sometimes refused on summary application to stay pro- ceedings pending a writ of error, leaving the party to his ordi- nary remedy. Whatever may have been formerly practised, it is no longer required, if it ever were, to sue out a writ of super- sedeas upon the allowance of the writ of error : and the only instances where it has been done in modern times have been where a defendant having- been taken in execution could not get O o his discharge without it. But here the writ not having been executed, there was nothing to supersede. These defendants too (the bail) were no parties to the original suit, and have no notice of the default of the principal till after the return to the capias. But the capias must be returnable before the issuing of the scire facias against the bail, though no issue can be taken on the time when it was in fact returned (h). And though it had been competent to them to have sued out a writ of super- sedeas, at least it was a matter of discretion which they were not bound to do. Ma try at, contra. This is an attempt to plead matter of prac- tice which is not allowable. In a case of Carmicliael v. Trout- leek and another, bail of Chandler, in Easter Term 1784, to an action by the assignee of the bail bond, it was pleaded that the cause was out of Court for want of a declaration before the as- signment; and on demurrer the Court held, that as a matter of practice it was not pleadable ; and thereupon the plaintiff had judgment. Now the return of the capias is mere matter of prac- tice, as appears from l>all \. Manncaptors of Russet (/). Even the issuing of the writ of capias ad satisfaciendum against the principal, is with respect to the bail only matter of practice not required by any law, and merely intended to give the bail 00 1 Snlk. 321. (b) o Stni. QG7. (e) llml. 1186. and 2 Ld. Ruijm. \M(J. (d) Blue. Uty. 1183. (e) ,3 Term lie } >. 590. (/) ibid. 643. (g) Ante, 1 vol. C(i2. and vide Mcriton v. Stevens. Willes, 271. (/O 3 Term Rep, 390. (j) Sulk. 602. notice IN THE FORTY-SECOND YEAR OF GEORGE III. 442 against BllOWN. [ 443 ] notice to render the principal. There is no instance of the al- 1802. lowance of a writ of error (by way of supersedeas) bein), the return may be filed even after the issu- ing of the scire facias. At any rate the allowance of the writ of error is not of itself a supersedeas, but only becomes so by a rule of Court or by a writ of supersedeas. He then referred to Hast. 300. pi. 4. and Clift. 003. X. 20. Precedents of writs of supersedeas to the sheriff'-on the ground of a writ of error allowed. Hyri-. Jud. 341. ///://. N(t~. />/. 230. /;. #,-. 120. and n:.my of lu r precedents referred to in 7o/r;/*rWs tables. So tiie olat. 3 .inc. 1. r. ha!' h - stayed upon or /;,/ nnij irrit i' error OK supersedeas " thereupon to be sued, is.c. unless," ^.c.; which shew that the Legislature recognized the stavin"' of proceedings as well bv , > i "- the allowance of the writ of error itself as by the writ of super- [ 444 ] sedeas.] The writ of error allowed may stay the issuing of (a) 1 Blue. 5'JJ. the 444 CASES IN TRINITY TERM 1802. SAMPSON against Buowx. [ 445] the writ of execution ; but after the latter has issued, the writ of supersedeas is necessary to stay the execution and prevent the sheriff doing any thing- under it. In the case cited from 2 Rol, Abr. 492, it appears that a writ of supersedeas issued after the writ of error to enforce the stay of proceedings. At any rate, as a writ of error does not of itself stay the proceed- ings in all cases, as in those included in the statute of James, unless bail in error be put in, it ought either to have been shewn that this was not a case in which bail in error were re- quired, or to have been averred that bail in error had been put in, in order to make it operate as a supersedeas. And as the party has four days by the practice of the Court to put in such bail, at least the proceedings during those four days until the bail were put in are good. In Lane v. Bacchus (a), where the writ of execution was executed after the allowance of a writ of error before the four days were expired, and no bail in error were put in, the Court refused to set aside the execution, Besides, there is a great difference between the award of a writ and the actual execution of a writ awarded. Bro. Abr. Error, pi. 66. Here the record has never been removed ; it is expressly so stated in the plea: and the writ of error being discontinued by lapse of time, there is nothing to prevent the Court from awarding execution. Lord ELLENBOROUGH, C. J. It seems from the passage cited from Bro. Abr. to have been anciently the practice to sue out a writ of supersedeas, after the allowance of a writ of error: but I find no instance of this practice referred to since the stat. 3 Jac. 1. c. 8.; and indeed from that period, at least, it must have been altogether unnecessary : for that statute says, " That no execution shall be stayed upon, or by any writ of "error or supersedeas thereupon to be sued, Sec. unless." &c. which shews that either a writ of error (allowed) or a writ of supersedeas would have the effect of staying execution. That tallies with the practice which has long prevailed, of not suino- out a writ of supersedeas after the allowance of a writ of error. And the case of Perry v. Campbell, 3 Term Rep. 390, shews that Lord Kent/on then expressly considered that the allowance and service of the writ of error was, in itself, a supersedeas. Shall we then overturn the whole practice of the Court, by 2 Term Rep. 41. saying IN THE FORTY-SECOND YEAR OF GEORGE III. 445 saying that it shall not have that operation, but that it is neces- sary to sue out a formal writ of supersedeas, which, it appears, is never done? Here the bail, by their plea in effect, allege that no capias ad satisfaciendum was returned against their principal; without which they cannot be made liable. Then it is said that the allowance of the writ of error is no supersedeas, unless it be shewn that bail in error were put in in time, or that none were required. But if bail in error were not put in when required, that should have been shewn by the plaintiff in his replication; for, as it appears, the writ of error allowed, is, in general, a supersedeas; and the statute only says, that it shall not be so in certain cases, unless, &c. : therefore the party wishing to avail himself of the neglect in the particular case ex- cepted, should shew that. LAWRENCE, J. (a) said he had always considered that the al- lowance of a writ of error was a supersedeas, and referred to Salk. 321. and Cotton v. Daintn/, 1 i'entr. 31.; which latter had not been mentioned in the argument: where it is said, that though the sheriff shall not be in contempt if he make execution after the writ of error, if no supersedeas be sued out, for that he had no notice; yet the writ of error, immediately upon the sealing, forecloses the Court, so that the execution made after it is to be undone. Li: BLANC, .1. declared himself of the same opinion. Judgment for the Defendant. (a) Grose, J. absent from indisposition. 1802. SAMPSOV against BROWN. [ 446 W i L L i A M SON a<^ah.>Kt ALLISON. Friday, June 25th. HP -*- HE declaration stated that the plaintiff, on the Uth of lngnict i on Mail 1800, at London, &,c. bargained with the defendant on th , e se in ' , tort ror a to buy of him twenty-four dozen bottles ot claret, for the pur- breach of a pose cf being forthwith exported by the plaintiff to the East M ^ "* u Vj,i r Indies; and the defendant then and there, well knowing the / need said claret to be in an unfit and improper state to be so exported, c \ tart(e ^ t nor as aforesaid, by then and there fa Inch/ and fraudulently warrant- if charged ing the said claret to be in a fit and proper state to be so ex- prov etl. ported, as aforesaid, then and there /akc/i/, fraudulent///, and deceitfully sold the claret at and for a. certain sum, viz. 78/. to bo 446 CASES IN TRINITY TERM 1802. WILLIAM- SON against ALLISOX. [447 ] [ 448 ] be therefore paid, and which was afterwards paid to the de^ fendant for the same ; and which claret was afterwards exported in bottles by the plaintiff to the East Indies aforesaid ; whereas, in truth and in fact, the said claret so as aforesaid fsold by the defendant to the plaintiff', and so exported as aforesaid, at the time of the said sale and warranty thereof, was not in a fit and proper state to be so exported, but on the contrary, was at that time new, and in an unfit and improper state to be so ex- ported ; whereby the said claret fermented, and great part thereof became wholly lost to the plaintiff, and the rest of little or no value; and by means of the premises, the plaintiff lost great gains and profits which lie would otherwise have made, &c. and was put to great charge and expence about the exporting and insurance thereof; to wit, at London, &c. and so the plaintiff in fact saith, that the defendant on the same day and year aforesaid, fa /sell/ and fraudulently deceived him, to wit, at London, &.c. There were other counts, all charging the scienter, and the deceit: to which the defendant pleaded not guilty. At the trial before Lawrence, ,T. at the Sittings after last Hilary Term at Guildhall, the warranty was proved, and also that the wine, when it got to Bengal, was sour and unmarket- able ; but the plaintiff did not prove, nor did it appear proba- ble, from the evidence, that the defendant knew that the wine was unsound at the time when it was delivered; but the mis- fortune was more likely owing to bad bottling or packing. It A\as therefore contended on the part of the defendant, that the plaintiff was not entitled to recover, inasmuch as there was no, proof of the scienter, as laid in the declaration : but the learned judge being of opinion that the ti'ist of the action was the warranty, and the xciciita- mere matter of aggravation, thought that the latter need not be proved, and directed the Jury accordingly, who found for the plaintiff. In the last, Term a rule was obtained, calling on the plaintiff to shew cause why the verdict should not be set aside, and a new trial hud, on the ground before suggested : and on report- ing the evidence on this day, Lawrence, .f. referred to a case of v. Purchase at Guildhall, (> Geo. '!., before Lord Ray- mond, C. J. which was an action on the case fr selling an un- sound horse which was warranted to be sound; in which the scienter was averred in the declaration. But Lord Raymond was IN THE FORTY-SECOND YEAR OF GEORGE III. 448 Was of opinion that the sc/eulcr need not be proved, inasmuch as there was a warranty ; and that the scicnter was only neces- ,,, sary to be proved where the action was in the nature of an action of deceit without any warranty (//). He observed, how- ever, that it did not appear from the note of that case, whe- ther the declaration were in assumpsit or in tort; though he thought it more probable that it was in tort; as the practice of declaring in assumpsit in such cases was not common at that time. Gib/K and Dampier, who were to have shewn cause against the rule, were stopped by the Court. Ertkhie andMarn/itt, in support of the rule, said, that un- less the declaration in the case alluded to were in tort, the au- thority of it did not press upon the defendant: and in Steiturt v. IVilkins (/>), where this subject was much discussed, the practice of declaring in assumpsit in such cases was not con- sidered as a novelty, it having been in use some time before, within the recollection of two of the judges (As/t/nirxt and Ritller, Js.) who were considerable pleaders. In assumpsit (a) Vide Springwell v. Allen, Alcyn, 91, of which the following is a fuller note taken from a MS. in the hand-uriting of Mr. Justice Kurnet, in the col- lection of Lord Hardwicke, C. and liis son the late Mr. Charles Vorke. " In an action on the case for selling a horse as the defendant's own, when in truth it was the, horse of A. H., upon not guilty pleaded, it appeared that the defendant bought the horse in Suiithfield, but did not take care to have him legally tolled. Vet as the plaintiff could not prove that the defendant knew it to be the horse of A . L*. the plaintiff was nonsuited ; for the scicnter or fraud is the gist of the action where there is no warranty; for there the party takes upon himself the knowledge of the title to the horse and of his qualities." See also Chandler v. Lojnm, in the Exchequer Chamber, Cro. .Inc. i. to the same purpose. The same MS. also refers to another ease; "So if a man sell six blank lottery tickets, and afterwards another as owner of these tickets recover them of the vendee; unless the vendor knew them to !>< the property of another, or warranted them, neither thi* action (under till'' Case of Torts in nature of Deceit and other Wrong*') nor a^sumpsit for uii;ii''\ had and received to the vendee's use \\ill lie. Per Holt, C. J. I'mut v. I! i I kin- son, Tr. 3 W. 3. Guildhall." And see D.'iiiioii v. /,',,// /,,;;, i \\ntr. M6, where an opinion is given on the very point in question ; .for, on the second count, which stated a warranty that the goods sold were good and merchantable, and averred that the defendant dr-livercd them had and not nu rchaiitahle, knowing them to be naught ; the Court observe that though the declaration be "knowing them to be naught,'' yet the knowledge need not be proved in evidence. (1) Doug I. Ui. 1802. ILLIAM- SON against ALLISON. [ 449 ] 449 CASES IN TRINITY TERM SON ayainst ALLISON. 1802. upon an express warranty, the scienter is immaterial and irre- ,TT levant, and therefore need not be proved though laid. But in WILLIAM- . declaring in case for the deceit, though it may not be neces- sary where a warranty is stated to aver the scienter, according to Chandler v. Lopus (a), yet not being irrelevant to the de- ceit, which is there the gist of the action, it must be proved if laid. Here th n the plaintiff having declared in tort, and having averred the scienter, which is the medium of establish- ing the fraud and tort, was bound to prove it. The issue of not guilty is joined on the deceit, and not on the assumpsit or warranty : the deceit, therefore, is not merely not irrelevant, but of the very essence of the declaration. They also referred to a late case of Doivding v. Mortimer, before Lord Kenyan, C. J. where he was of opinion that the scienter was necessary to be proved (b). Of this last-mentioned case it was observed by the plaintiff's counsel in answer, that it did not state any warranty, but was founded wholly on the deceit. Lord ELLENBOROUGH, C. J. The distinction between im- material and irrelevant averments was well taken in Bristow v. Wright (c). That was an action on the case against a sheriff O \ ' O for taking the tenant's goods in execution without satisfying the landlord for a year's rent ; and the plaintiff averred that the rent was reserved quarterly; whereas it turned out to be re- served yearly. There, if the whole averment as to the reserva- tion of the rent had been struck out, the plaintiff could not have maintained his action, because some rent must necessarily [450 J (a) Dull. N.I'. 31, riled from Cm. Juc. 1. (6) Dou-ding v. Mortimer. The declaration stated that the plaintiff, on Sfith Jan. 1798, at, Arc. bargained with the defendant to buy of him a certain musket as and for a sound and perfect musket, at and for a large price, viz. 2Z. 12s. 6d. and that the defendant then and there knowing the said musket to be unsound, broken, and imperfect, then and there sold the said musket to the plaintiff as and for a sound and perfect mu.-ket at and for a large pi ice, to wit, 2i. 12s. C>d. then and there paid by the plaintiff to the. defendant; which said musket so sold as aforesaid was then and there at the said time of the sale thereof unsound, broken, and imperfect; and by means and in consequence thereof the said musket became and was of little or no use or value to the plain- tiff, to wit, at, &c. and so the plaintiff in fact says that the defendant on the day and year aforesaid falsely and fraudulently deceived the plaintiff, to wit, at, &c. There were other counts to the like effect. Plea uot guilty. (c) Dougl. 665. have IN THE FORTY-SECOND YEAR OF GEOKGE III. 450 have been averred to be due ; and though it was unnecessary to 1802. have stated it to be reserved quarterly, yet the defendant was wITLTlM- entitled * to avail himself of the defect of proof in that par- SON ticular. But here if the whole averment respecting the de- against fendant's knowledge of the unfitness of the wine for exporta- aV^li*! tion were struck out, the declaration would still be sufficient to entitle the plaintiff" to recover upon the breach of the warranty proved. For if one man lull another into security as to the goodness of a commodity, by giving him a warranty of it, it is the same thing whether or not the seller knew it at the time to be unfit for sale: the warranty is the thing which deceives the buyer who relies on it, and is thereby put off his o- U ard. Then if the warranty be the material averment, it is sufficient to prove that broken to establish the deceit: and the form of the action cannot vary the proof in that respect. The ancient method of declaring was in tort on the warranty broken, and that was just going out of general practice when the case of Steuart v. Wilkius was discussed, because it was found more convenient to declare in assumpsit for the sake of adding the money counts. So general was the former method, that de- clarations in that form were familiar in every arrangement of' precedents in tort. And the more modern practice of declaring in assumpsit in these cases has not prevailed generally above forty years. J\ T O other proof was required to sustain the former mode of declaring than the warranty itself and the breach of it. Here then the plaintiffwill be equally entitled to recover in the tort upon the same proof, by striking out the whole aver- ment of the scienler.- LAWRENCE, J. I retain my former opinion that the scienter was not necessary to be proved. The form of declaring in as- sumpsit in these cases is not of very ancient date, though Mr. Justice Bulle.r, and before him Mr. Justice- A*/t/inr*l, have often drawn declarations in that way in the course of their practice of [ 4.32 ] pleaders. The case of Stciturf v. IVilkin* was the first wherein the question was regularly discussed, and that mode of declaring established; but even since that time 1 have myself drawn a hundred declarations on tin- many precedents of that sort stated. C/iJ'f. Kntr. ( J:34. 4, same book. Thoinp. 40. 20. ing the gravamen on the deceit, as same subject in tort. 1 here are in the books, whore a warranty is 5, (i, and several others in And tlie.- whereby it appeared that the contract in question was made ELLEFSEN. in France, for the transmission of the silver from thence, at a period when that was prohibited to be done by the laws of that [ 455 ] country; and also that the defendant had been holden to bail by the plaintiff for the same cause of action in Norway; which suit was still depending. In support of the first of these latter grounds of objection, he relied on Me/an \. The Duke of Fitz- j antes (a), where the Court of C. B. held that they were bound to take notice, when brought before them, of the law of the country where a contract was made, and by which its legality was to be judged. [But Lord Ellenborough signifying his dis- sent from that determination, which he observes was opposed by one (b) of the learned Judges of the Court at that time, Erskine abandoned that point.] He then relied on the pend- ency of the suit in Norway, on which the defendant had given bail; and observed, that though by the general rule of the Court no counter affidavit could be read against an affidavit to hold to bail; yet there were some necessary exceptions, of which this was one. For it could not be denied that the fact of the defend- ant's having been before holden to bail for the same cause of action in the courts of this country, might be brought before the Court by counter affidavit, and on the same ground of rea- son the fact now in question. The like was in daily practice in case of the arrest of married women, who, after having: been & holden to special bail, were discharged on counter affidavits. G arrow and IV. Walton shewed cause against the rule, and objected altogether to the reception of the counter affidavit of the defendant, as being contrary to the established practice of this Court, though admitted by C. B. : that it was in effect try- ing the merits of the cause on affidavit, and that too upon the deposition of the defendant himself. With regard to the ob- [ 456 ] jections arising on the face of the affidavit to hold to bail, they answered, that it was first positively stated that the defendant was indebted to the plaintiff in 3000/. and it was afterwards shewn how the demand arose. And they referred to Fniemon v. Hawkins (r) and Kirk v. Strickland (//), and observed that the defendant having been holden to b^il, by leave of a judtje, who (a) 1 Bos. cV Pull. 133. (//) Hctdh, J. (c) 1 H'ils. 535. (d) Dougl. 4-19. had IN THE FORTY-SECOND YEAR OF GEORGE III. 45G had exercised his discretion on all the circumstances of the case under the statute, the Court would be less inclined to in- terfere than in common cases, where a plaintiff by his own dis- cretionary acts sets in motion the bailable process. Lord ELLENBOROUGH, C. J. This is an application to the discretion of the Court : and to be sure it would have been com- petent to the defendant to have shewn that he had been before holden to bail in this country for the same cause of action ; be- cause no man ought to be twice vexed for the same cause. But the question here is, whether we have presented to us with suffi- cient distinctness that the defendant stands in the situation of having been holden to bail in Noncai/, so that the plaintiff has the same security for his demand, and might have all the bene- fit of prosecuting his suit there which he has here. And as we do not see that such is the case, we do not feel ourselves war- ranted in taking from him the benefit he is entitled to from the laws of this country. Xot knowing what the laws of \oncay are in this respect, I cannot say that the plaintiff would have the same benefit from what has taken place there as he will have by the present proceeding. Then the question is on the conclusiveness of the affidavit to hold to bail as to the merits : and if that had not been already expressly decided in this Court in the case of Emerson v. Hatckins(a),Q.n.d in SinitJi v. Fi'ftser(b), where the Court refused to hear a counter affidavit read, I think the rule of practice of this Court is of such preponderating con- venience that we ought to make such a rule in future; for other- wise we should have to try the merits of every case on affidavit, and it would be holding out great encouragement to defendants to commit perjury in relief of themselves from special bail. And this rule is as applicable and the mischief the same where a de- fendant has been holden to bail by a judge's order, as in ordi- nary cases under the statute where a debt, is positively sworn to. With respect to the objections taken to the affidavit itself, on which the defendant has been holden to bail, thedeponent might. indeed have used more proper terms to signify his damnification than by stating that the defendant was indebted to the plaintiff m so much; though the word indebted seems 1o have been use.) only to express the amount of the damnification, the manner.it which is afterwards stated. However, if the real fact be con- 1802. IMLAY against ELLEFSEN. [ 4.37 j (<) (/.) I Blue. /.V/.. 19':. 457 CASES IN TRINITY TERM 1802. IMLAY against ELLEFSEN, [ 458 ] veyed to the judge making- the order with such distinctness as for him in the exercise of his discretion to see that the plaintiff has been damnified to such an amount, and on which the depo- nent may be indicted for perjury if the facts be not truly stated, that is sufficient, though the affidavit mio-ht have been made in more formal terms. Besides, it does not appear to me to be so uncertain as is supposed ; for the deponent swears to the value of the silver, and that it was to be delivered by the defendant to i/\ B. for the use and on the account of bnlay, by whom it had been before delivered to the defendant, and that the defendant has not delivered it, kc. Therefore the affidavit to hold to bail is framed with sufficient distinctness, and cannot be opposed by a counter affidavit. Per Ctiriam, Rule discharged. Saturday, June 26th. An indorser of a note, who has received money from the drawer to take it up, is a competent witness for tlie drawer in an action against him by tlif in- dorsee, to prove that he had satisfied the note; l>einir cither liable to the plaintiff on the note if the action were defeated, or to the defendant for inojK-y had and received if the action succeeded. And his being also liable in the latter case to com- pensate the defendant for BIRT and Others, Assignees of GLOVER, a Bankrupt, ' O * against KKRSIIAW. r I ^HE defendant, Kerzltaw, being indebted to one Wilbi/ in 407. -* lO.s. drew a bill of exchange on one Wilkinson in favour of WUby or order, which the latter indorsed to Glover, whose assignees brought this action on the bill against 'Kenhaw the drawer; and at the trial before drone, J. at the Sittings, Wilby was called as a witness by the defendant to prove that whilst the bill was current, Cr /over having told him (l\ ilby} that the bill would not be paid by the drawer, Wilby paid the bill himself by settling it in account with (/lover, in whose hands it was however left, and herx/tan- paid Wilbtf the amount again. The competency of the witness (who had no release from Kershatv) was objected to on the ground of his interest as an indorser on the bill, and therefore coming to discharge himself from his liability; and Grose, J. inclined to admit the objection: but to save expence it was agreed to receive the evidence, on which the Jury found a verdict for the defendant; and leave was ) does not apply, because that turned on the greater difficulty which the witness was sup- posed to be under of getting the money from the one party whom he came to favour than the other; whereas here, if the defendant succeed, it will be more easy for the plaintiff's to sue Wilby on the bill, in which action nothingmore will be necessary to be proved than his hand-writing; then if the plaintiffs suc- ceed, it will be easy for the defendant to make out his case against Wilbij. For this record would be no evidence for the present defendant in such an action against }\ Hbij, being res inter olios acla (r). [Lord til/enboroug/i. 1 think that is stated too generally. This record, supposing the plaintiffs re- covered, would be evidence for Kers/tatr in an action against Wilbi/ to recover back the money paid to him for taking up this bill, so far as to shew the fact that the plaintiffs had recovered the amount of the bill against the defendant. And even fur- [ 460 ] ther, hershaw might allege as part of the damage arising from l\ ilby*$ neglect, to pay over the money which he received for taking up the bill, that he had been sued by (i /over's assignees, who had recovered the amount of the bill against him with costs.] G arrow and W. Wallon, in support of the rule, insisted, that Jniby's condition was bettered by the evidence he had ) ."> Term Rep. j7G. (c) 5 Term Rep. 589. Green u. Nc\v River Company. satisfied* 460 CASES IN TRINITY TERM 1802. satisfied. Whereas, if the plaintiffs succeed, Wilby will not ~ onlv be liable to refund the amount of the note, the value of JjIRT aeainst which he has twice received, once when he passed it to Glover, KERSHAW. and afterwards ag-ain from Kershaw; but he will also be liable O to make good to Kershaiv the costs of the present action, to which he would be subjected by Wilby's fraud or negligence: and this record would be evidence against Wilby of the fact of such recovery. Lord ELLENBOROUGH, C. J. It appears to me in a very simple and clear view of the case, that the witness stood in- different between these parties. He must either be liable to the plaintiffs as indorsees of the bill, or to Kershaw for the money received by him in order to discharge it. It is true, that in the latter case, if these plaintiff's recover, he may also be liable to Kers/iaw for the costs of this action : but that argu- ment was urged in Ilderton v. Atkinson (a), without effect. This record, though evidence of the fact of such recovery, would not L 461 J relieve Kershmv, in such an action against Wilby, from the proof of his having paid money to the latter, for the purpose of sa- tisfying the bill. I know of no other than the case of Auckland v. Tankard (1), which goes on the ground of more or less dif- ficulty in the witness in establishing his interest against one or other of the parties. But all the other cases go on the broad ground of interest m the witness: and as he seems to have stood indifferent as to the sum in dispute between these parties, I think his testimony was properly received. GROSE, J. It struck me at the trial, adverting to the opinion of Lord Kenijon in liuck/and v. Tankard, that the wit- ness had an interest in giving the testimony he did, and that his condition would be bettered by it. But if his berny; liable over to the plaintiffs take away his interest and leave him in- different, I apree that he ought to be heard. LAWRENCE, J. This case falls directly within the principle of that of Ilderton v. Atkinson. With respect to the amount of the bill in question, the witness stood indifferent between the parties; for if the plaintiffs recovered, Kershaiv would be en- titled to recover back the money which he had paid to Wilby, in order to satisfy this very bill, because he would then have paid the money twice. On the other hand, if Kert/idiv have a ver- dict, the plaintiffs may recover against Wilby on the bill, unless he can prove payment by legal evidence. (a) 7 Term Hep. 481. (b) 5 Term Rep. 578. LE BLANC, J. IN THE FORTY-SECOND YEAR OF GEORGE III. 4G1 LE BLANC, J. Consider the situation of the witness without 1802. * his being an indorser on the bill. He admits that he has re- ceived from one man a sum of money for a debt which he owed to another in order to pay it over to that other. It is clear then that he must be liable either to the one or the other. And * [ 462 ] if the original debtor obtain a verdict by means of his evidence, he will be liable to be sued by the creditor, for whose use the money was received; and the verdict in this case will be no evidence of the payment for him in the other. Then how does it alter his situation that he is upon the bill ? If the plaintiffs do not recover now, they may sue him on the bill ; and if they do recover, then by his own account he is answerable over to Kershaw, Rule discharged. A The KING against The BISHOP of EXETER. June sfib. RULE was obtained in the last Term, calling on the de- Where no ;,. P i , memorial ciis- tendant to shew cause why a mandamus should not issue, tom appeared commanding him to grant a licence to John Rowe, clerk, to be toa Pi )oill ta lecturer within the parish of I 'remington, in the county of Devon, parish church, The affidavit of Mr. Rowe stated, that John Dodderidge de- ^ r ^ ceased, by his will dated 20th of January, 16,38, devised a rent- appeal-id that charo-e of 5<>/. per annum, payable out of his rectory of Fremine the to that of the last lecturer. That after the deponent's appoint- yVth> bishop ment, application was made to the bishop for a licence, which "" "''or, /,,. r endow. ton had objected to the deponent's usin"- hi.> church, and that he 1 1 " (1|lt ' n i:ian - ' ilumii* tu the (the bishop) had determined not to gram, a licence without the iiisimp to li- vicar's consent, although he allowed that he had no objection ','1,",",' ^|',jj mit to the deponent as a clergyman, and that the testimonies he MM a-smi or' had received from him were complete. That in Hilary Term, deiiiH^tho' 3 it appeared tluxt the rectorship was originally endowed by 'he rector, with an amiiuil stipend, pay,tl)le out of tlie impropriate rectory, and that several lecturers had from time to time been, accepted by the bishop and vicar for the time being. () 4 Term Rep. i,(/;! And a rule nisi having been obtained in the last lerai for uiat/,, c ; e evidence purpose, ofhis being r siu'li as lie is Wood now shewed cause, and contended that the lease was UK- rein de- void : 1st, Bv the stat. 21 lien. 8. c. 13. s. 3. which avoids all scnbei ! to ' )e ' v SO ii> atSO IO leases of any manors, lands, tenements, or hereditaments to a avoid the spiritual person, which the defendant appears to be by the J* 4 *^" g, P /^ designation of himself in the lease itself, being' therein styled tf. c. 13. s. 3. Doctor in Dii-iiiili/. 2dly, .By the stat. 13 K/iz. c. 20. whereby all leases of any part of a benefice are absolutely avoided im- mediately upon the incumbent absenting himself therefrom for the space of fourscore days in a year. Here the rector had discontinued his residence for a much longer period after the granting the lease in question. And it cannot be objected that there is a covenant in the lease that the rector shall not do any act to avoid it; for a covenant is no bar, whatever remedy may be had on it afterwards. Erskine, in support of the rule, said, in answer to (lie ob- jection on the stat. of Hat. 8. that there was no evidence that the defendant was a spiritual person, though called so in the lease 468 CASES IN TRINITY TERM 1802. FROG- MOHTON against SCOTT. [ 469 ] lease granted by the lessor. And as to the stat. of Eliz. that after the cases of Doe v. Hears (a), and Doe v. Barber (6), it could not be contended that the lease in question might not be avoided on account of the non-residence of the rector ; but still it was not competent to the rector himself to set it aside by shewing his own breach of duty. Lord ELLENBOROUGII, C. J. The stat. \3Eliz. c. 20. ex- pressly enacts, " That no lease to be made of any benefice, &c. " shall endure any longer than while the lessor shall be ordinarily " resident and serving; the cure of such benefice, without absence " above fourscore days in any one year, but that every such lease " immediately upon such absence shall cease and be void." It is plain therefore that the Legislature meant that the lease should be wholly cut down and done away by the non-residence of the rector. It was so considered in. the case of Doe v. Barber, even as against a stranger and wrong-doer (c) : there- fore there is no ground for the distinction attempted to be taken between that case and the present. And I think the other ground of objection equally clear on the stat. 21 H. 8. The defendant is described in the lease itself, produced by him, as a spiritual person. Per Curiain, Rule discharged. (a) Cowj). 129. (b) '2 Term Rc]>. 749. (c) But such lessee may maintain trespass upon his mere possession against a wrong-doer. Graham v. Peat, ante, l vol. 244. Monday, June 28th. Money paid by one with full know- ledge (or the means of such know- ledge in his hands) of all the cir- cumstances, cannot be re- covered back [ 470] again on account of such payment having been BILBIE against LUMLEY and Others. S was an action for money had and received, and upon other common counts, which was brought by an under- writer upon a policy of insurance, in order to recover back 100/. which he had paid upon the policy as for a loss by cap- ture to the defendants the assured. The ground on which the action was endeavoured to be sustained was, that the money was paid under a mistake, the defendants not having; at the time of insurance effected, disclosed to the underwriter (the present plaintiff), a material letter which had been before re- ceived by them, relating to the time of sailing of the ship in- made under an ignorance of the law. sured. IN THE FORTY-SECOND YEAR OF GEORGE III. 470 1802. BlLBIE against sured. It was not now denied that the letter was material to be disclosed ; but the defence rested on now and at the trial was, that before the loss on the policy was adjusted, and the money paid by the present plaintiff, all the papers had been LUMLF.Y. laid before the underwriters, and amongst others the letter in question; and therefore it was contended at the trial before liooke, J. at York, that the money having been paid with full knowledge, or with full means of knowledge of all the circum- stances, could not now be recovered back again. On the other hand, it was insisted that it was sufficient to sustain the action that the money had been paid under a mistake of the law : the plaintiff" not being apprized at the time of the pay- ment that the concealment of the particular circumstance dis- closed in the letter kept back, was a defence to any action which might have been brought on the policy : and the learned judge being of that opinion, the plaintiff obtained a verdict. A rule nisi was granted in the last Term, for setting aside the verdict and having a new trial : which was to have been sup- ported now by Park for the defendants, and opposed by Wood for the plaintiff. But after the report was read, and the fact clearly ascertained, that the material letter in question had been submitted to the examination of the underwriters before the adjustment, Lord ELLENBOKOI GII, C. J. asked the plaintiff's counsel, whether he could state any case where 1 , if a party paid money to another voluntarily with a full knowledge of all the facts of the case, he could recover it back again on account of his ignorance of the law. [Xo answer being given, his Lordship continued.] The case ofC/tat/ieldv. Pnxton (a), is the only one I ever (a) That case came before this Court on a motion for ;i new trial in M. T. 59 Gco, 3. The circumstances were so special, and there was so inurli of doubt in it, that it was not thought to be of any use to report it. The out- line of it was this: A mercantile, house in India (of uhich the defendant was a surviving partner residing here, at the time) received a bill drawn by the plaintiff on another house in payment of a debt, which bill the defend- ant's hon^e made their own by lacho; but not appri/.ini; the plaintiff of this, they sent him back the bill protested for non-pas ment, and drew upon him for the same amount in favour of a mercantile house in London (>omc ot whom, amongst others the defVndant, \\ere also pnitners in the house in India.) The plaintiff, ignoiant of the laches of the hn ls va - J lid ; and such " Malaga in Spain. That the captor instituted proceedings condemnation "against the ship before, the Consul oj' the French Republic resid- onthe ground " ing at Malaga, who thereupon on the first of April 1799, at of the pro- " Malaga aforesaid, pronounced the following sentence: " We cnemv'sand " Nicholas Maurit. Champre, consul of the French republic in British, is cou- 4i i i f /-^ /*.' i- i; / 4.1 clusiveinan " the kingdom 01 (jrrenaaa in Spain, residing in Malaga, autho- action on a "rized bv the laws of 3d Hnttnahe (25th October] and 8th P Iic . v f- ainst the under- " Floreal (28th April), of the 4th year of the French republic, writer by the " to o;ive sentence, whether the i>ri/.es brought into anv port ; lss " le(t wll 1 iiau msu red " belonging to this consulship, by any vessel or privateer of the it as Danish, "French republic be lawful or not?" The sentence then reca- "^"J* pitulates tlie case, and proceeds as follows : " That so many mark being . . . ,, ,, /. ,- <.,i "] then neutral. motives united, leave no doubt or the connscation ot the said " vessel being lawful, as well as on account of her beino- ijiglish " property as on account of the ollences against the ordinances. "That the cargo is of llnvtith growth and manufacture, and [ 474 ] "being besides proved Fnglish property l>v the piece of loth " page already referred to, is also condemned, beinir on board a " vessel, 474 CASES IN TRINITY TERM ODDY against Bo V ILL. 1802. " vessel which is English property. We therefore declare the "vessel called Frow Anna, Captain A. B. taken by the French, " privateer Le Zenodore, Captain H. P. a good prize, with her "masts, See. to the profit of the proprietors of the Zenodore and " her crew, and others interested in her, together with the goods, " without any exception, that compose her cargo ; and order " all guardians and trustees to make the delivery of the same up " to them; by which delivery we declare the said guardians and " trustees duly and lawfully discharged of their trust. And we " permit to the said proprietors of and persons interested in the " Zenodore, or to those who have the power to procure the sales " of the ship and cargo in the chancery of the consulship of the " French republic in this port, charging them however to " deposit the value in the said chancery, or in any other public " treasury in which they may be authorized so to do, till the " allowed time of appeal be expired, or in case of appeal until "the definitive sentence, which, if it should be against them, "they are to pay all the rights and expences which might be " done in consequence of the said sale, the lot of livre to the " invalids, and other duties ; also the law expences, and the " expences of the present sentence of condemnation, which will "be executed notwithstanding the rights of appeal; and inti- " mated to all whom it may concern. Done in the Consulary " House, and sealed with the national seal of this consulship of " Malaga, the llth of Germinal, in the 5th year of the French "republic (1st April 1797) one and indivisible." (Signed) " Champre, consul." r l hat at the time of the capture and of [ 475 ] the pronouncing the aforesaid sentence, the French and Spaniards were allies, at war with this country, and Denmark was neutral. The question for the opinion of the Court was, Whether the said sentence (a) were conclusive evidence that the warranty in the policy was not complied with .' If it were not, the verdict to stand: if it were, a nonsuit to be entered. Giles, for the plaintiff, contended for the negative. The principal question in effect is, \\ hether, by the law of nations, a Prize Court can be established and exercise its functions in any other state than that to which it belongs, and from which it. derives its authority ? That the Prize Court of a bellic;erent can- not exercise jurisdiction in a neutral countrv, was clearlv (a) Either party were to have liberty to refer, if necessary, to the sentence at large. 7 decided IN THE FORTY-SECOND YEAR OF GEORGE III. 475 decided in the case of the Flad Oi/eu (a}. Neither can it do so 1802. in the state of a co-belligerent, for the same reason, because it is not warranted by the law and usage of nations. It is essentially necessary to have a known tribunal, for determining whether a BOVILL. capture at sea be piratical or lawful; and though a neutral nation would, on general reasoning, appear to exercise this jurisdiction the most impartially, yet constant usage, which is the foundation of the law of nations, has long settled that the inquiry is to be made in the state of the captors, who are individually and nationally responsible for the act. This is expressly asserted in the Duke of ^'ewcaxtle J s letter to Mons. Michell (drawn up by Sir Dnd/ei/ Ryder, and other eminent and well informed persons, 1 Mag. 482) in answer to the Prussian memorial; and in the case of the ilad Oi/en (/;), Sir Jf. Scott considers that sentence of condemnation is necessary [ 476 ] to the validity of the captor's title ; which sentence, he says, must be pronounced by a tribunal in the belligerent country. Now here the condemnation was by a Court in Sfxihi, acting under the authority of France. But if the circumstance of their being co-belligerents against England cannot identify their respective territories, even considering the prize as a ques- tion of property between English and French subjects, still less can it do so as against a Dane, whose property the prize in fact was; because, as to Denmark, Spain was a neutral coun- try, within which it is settled that no such condemnation can take place. JJavelock v. Rock-wood (c). The plaintiff's counsel was then proceeding to contend, that the sentence of condemnation, admitting it to have been pro- nounced by a competent tribunal, was i\ot conclusive as to the question of neutrality, which was collateral to the question of prize or no prize: but The Court said, that after the repeated determinations to the contrary, it would be nugatory to open that discussion again, especially upon a case reserved, on which there could be no appeal to the dernier re.Mnt. Carr, contra, contended that co-belligerents had a union of territory against their mutual enemy, as for all purpo>es of war, of which the capture of prize was one. The question turns purely on the law of nations, of which Prize Courts have peculiar jurisdiction; and therefore this Court is bound (it) 1 Rob. ISi). ('/) lb. 13, l-JO. (c) Term AV;/. i'fiS. VOL. II. B to 476 CASES IN TRINITY TERM 1802. to give credit to the decision of the Prize Court acting as such T at Malaga, with the * consent (as it assumes, and which is not as-ainst disputed) of the sovereign power of the country. There is no- BOVILL. thing inconsistent in this between two belligerent countries, as *[ 477 ] there is in such a compact between a belligerent and a neutral country; upon the ground of which inconsistency alone the judgment in the Flad Oyen case proceeded; because, as was properly there said, such a Court sitting in a neutral country was an infringement of its neutrality, with respect to the other belligerent whose property was captured and condemned there. But there is a union of interest, of defence and attack, between co-belligerents against their enemies; and as Spain could have ceded Malaga entirely to France at that time, without infring- ing any duty she owed to Great .Britain, there was no reason why she should not have made a partial cession of her sove- reignty for a particular purpose of war. Vattel, 2 book, c. 7. s. 89. confirms the power of one nation to grant privileges of sovereignty to other nations within its own dominions. It makes no difference in this case whether the question be considered as between France and Spain, and this country, or as between the two former and Denmark; their relative duties were the same; they were both inimical as to us, and both neutral as to Denmark. If this were the property of a neutral, it was equally tried by the law of nations; and he was equally secure of impartiality, whether the question were tried in. France or Spain. He re- ferred to Lord Manxfiehi's opinion in Linilo \. Lord Rodney (a). The sentence, however, has determined this to be Engli.-h pro- perty, which is conclusive. The novelty of the case cannot prevent the application of the law of nations to it, which, though in ordinary cases it may be illustrated by usao;e and example, must, as it has often before happened, be drawn from first principles, as new circumstances and combinations arise in L 478 J the world. That the law and practice of nations has in some respects varied very considerably, Ls acknowledged by Sir U , Scott in the case of the Santa Cruz (). But in the Flad Oi/en case, all the reasoning of the same learned Jud^e, in shewing that the condemnation in a neutral country was invalid, is found- ed on the distinction between a neutral and a belligerent country, and goes to prove, that a condemnation in the country of a co- (a) Dougl. C14. n. (6) 1 Rob. 59. belligerent IN THE FORTY-SECOND YEAR OF GEORGE III. 478 belligerent would be valid. Nowhere is ^..capturing contradis- tinguished from a belligerent power. In the case of the Chris- topher (a), the condemnation in France of a British ship taken by a French privateer into a Spanish port, and then lying there, was holden valid. That cannot be distinguished in principle from the present case, and the grounds of the judgment neces- sarily include it. It was contradistinguished only from the case of the FladOyen; because that was a condemnation in a neutral country, which had no common interest with the captors on the subject. And a case of the Betsy Kntger, 12th August, 1800 (b), is there referred to, where the legality of a condemnation like the present was expressly admitted by the Court, and was thought too clear to be contested by the advocates. The same principle has been since recognized in the case of The Kierlighett (c), and that of the Cosmopolite (d); and must have been acted upon long ago under the stat. 4 and 5 W. & M. c. 2-j. LAWRENCE, J. (e) The question is, Whether this sentence of condemnation be conclusive evidence that the property insured was British, and consequently that the warranty of its being neutral was not complied with ? The argument was attempted to be carried into a wider field than we think it fit now to enter into, since the case of Hughes \. Cornelius (f)^ and a lout: string of authorities which have followed that decision. \\ e must now therefore take it for granted, that if this sentence were oiven by a Court of competent jurisdiction, it is conclusive upon the point then in judgment, namely, against the neutrality of the property. The case of the Find Oi/en has been made the basis of the argument, to shew, that unless the Prize Court were con- stituted according to the law and practice of nations, it could have no jurisdiction. If there were no other case on the sub- ject determined by the same learned Judge, to explain how far he meant to go in that case, it mi-ht be doubtful, from some expressions there used, whether it did not extend to a ca-e ( ir- cumstanced like the present: but if we look at his other deci- sions on this subject, particularly in that of the Christopher, though 1 do not mean to say that it is directly in point, it suf- () 2 Rob. 209. (b) H>. eiO. n. (c) 3 Rob. 96 ( J. ('0 H>. 333. (e) Lord Ellenborough bavins; been concerned in the cause, gave no opinion; and Grose, J. was absent, from indisposition. (/") T. K<>, and 2 Slum: 'j.S^. B 2 tick'titlv 1802. ODDY against BOVILL. [479 ] CASES IN TRINITY TERM 1802. ODDY against BOVILL, [ 480 ] ficiently appears from the reasons assigned by him in giving judgment, to what extent he meant the doctrine laid down by him in the F/ad Oyen case should be understood ; and that he did not intend to deny the legality f such sentences of con- / */ demnation by the captors in the country of a co-belligerent or ally in the war; because, as he observes, there is a common in- terest between such on the subject, and both governments may be presumed to authorize any measures conducing to give ef-^ feet to their arms, and to consider each other's ports as mutually subservient. This very question appears to have arisen in several subsequent cases ; and in the case of the Betsi/ Knt- ger, in August 1800, seems to have been considered by the ad- vocates as so thoroughly understood and settled, that the ques- tion of law was waved, as one not to be discussed ; and the Court, proceeding on the ground that the condemnation was legal, directed further proof to be made of the fact of the trans- fer. We find then this question already determined by a Court having peculiar jurisdiction in cases of this sort, of which we have only incidental jurisdiction. That determination there- fore is as conclusive on us, as to the proper rule of decision, as a judgment of the Common Law Courts on a question of real pro- perty would be in the Civil Law Courts. LE BLANC, J. The subsequent cases referred to are expla- natory of the opinion delivered by Sir If . Scott in the case of the F/ad Oi/en, and shew that he considered that there was a material distinction between a sentence of condemnation, pro- nounced by the authority of the capturing country in the state of a co-belligerent, and one so pronounced in a neutral coun- try. JN T ow this is the case of a sentence of condemnation in the country of a belligerent power, an ally of the captors ; and is exactly like the cases of the Harmony (a), the Adelaide, and the Betxy Kruger. The first was a condemnation by the French commissary of marine at Rotterdam, of a British prize taken and carried into Helvoetsluys, which was in the country of a belligerent ally; which was so far considered as different from the case of such a Court sitting in a neutral country, that the neutral claimant was directed to go into proof of the merits as to the transfer, reserving the question of law. And in the last-mentioned case of the Bet.y Krugcr, the point was consi- () 2 Rob. 210. u. dered IN TUE FORTY-SECOND YEAR OF GEORGE III. 480 tiered to be so settled, that the advocates waved the discussion 1802. of it, and the Court considered the condemnation as legal. ODDY *That I consider as a case directly in point, to support the legality agnintt of a condemnation in the country of a belligerent ally. This BOVILL. Court therefore must decide the question consistently with the * [ 481 ] opinion of a Court of peculiar jurisdiction on the same point, until we are told by a superior tribunal that that determination was improper. Judgment of Nonsuit, DOE, on the several Demises of the DLKE of NORFOLK and JOHN IBBOTSON, against HAWKE and Another. Tuesday, June 29tli. ON the trial of an ejectment for a certain messuage and A. gave by i i T 7 " 7 / L AT ' i A V i j j. will Ins tenant- lands in Yorkshire, at the last lork assizes, a verdict was rJ! ,| lt w(licll found for the plaintiff on the demise of John Ibbotson, and for lie held by the defendants on the demise of the Duke of \orfolk, subject /,/. ,,'^ tndis- to the opinion of the Court on the following case ; pose of or sell i if i i- lt: tml ij he Joseph n niteleij was lessee ot the premises in question for the n/W it in his ber 1789, under a lease granted to him by the Duke of Nor* own tiosxcs- folk, dated 2oth January 1790. Wlntelei/" entered into poa- J"J Jj^J** session of the premises under this lease; and made his will, have bis te- dated 10th October 1790, whereby he disposed of the premises "he farm.' 1 J- / in question as follows: " I inve and bequeath to my nephew, having bor- . , . . TA i f \~ / ji rowed moncv. Abraham ibbotso//, with submission to the Duke ot Norfolk, left the title " the tenant-right of mv farm at the Ed^efield, which I hold (let ' ( ! s %vitil llis ^ . , creditor as a " by lease, under his Grace, he paying the rent, and conform- security, ami " ing to the covenants in the lease; /;/// not to it in hit own powstion, then my will is. J"," ',',', ;V ; ,|'so " that my nephew John Ibl/otson (one of the lessors of the plain- sivm a jnd-- " tiff) shall have the tenant-right of the farm at the Vdgejield" u^rcrcdTtor And the testator directed (amongst othur things) that the said who issued an farm should be delivered up, as before willed, a year and a day ai _, a j,, Nt |,i nij after his decease, by his executrix : and he appointed his niece, the sluritt sold the lcae to tin- ci editor .vitli whom tlie deeds were deposited, lie payins the debt of the plaintiff in the execution ; anil A. I. having left the premises, and ceased to dwell there on the day of the execution, before the sheriff entered, held that ./. /. the remainder-man was entitled to enter, the estate of ./^ /. having determined by sucli his acts. * 4^2 1 Sarah 482 CASES IN TRINITY TERM 1802. Sarah Ibbotsoji, sole executrix ; and gave the residue of his ef~ ~ fects to her. The testator IVhiteley died in January 1799, against having continued in possession of the premises till his death. HAWKE. The executrix married Roivland Hartley, and duly proved the will and administration was granted to her, and she and her husband entered into the possession of the premises on fVhite- ley's death. And in February 1800, possession of the premises was duly delivered by them, together with the lease, to A. Ib- lotson, in pursuance of Whiteley's will; and A. Ibbotson con- tinued in such possession till he quitted the same as after-men- tioned. When A. Ibbotson was in possession of the premises, J. Crookes lent him 25/. on his note of hand ; and thereupon A. Ibbotson deposited with Crookes the lease of the premises as a further security. At the time of lending the 25/. it was agreed between Crookes and A. Ibbotson, that Crookes should have the Jirst chance for the farm; but no actual valuation was made. Crookes made further advances to A. Ibbotson, amounting in all to 60/. ; but Crookes knew nothing of IVhiteley's will until the whole of the 60/. had been advanced. Afterwards, A. Ibbotson was arrested at the suit of H. Hartley, to whom he (A. Ibbot- son) had given a warrant of attorney ; and thereon Crookes paid for A. Ibbotson, at his request, 60/. more, to effect A. Ibbotson's liberation. After this, Crookes took from A. Ibbotson a warrant of attorney to confess a judgment, and a bill of sale of A. Ib- botson's goods ; but never entered up judgment on such warrant [ 483 ] of attorney. Then one William Greaves, at A. Ibbotson's re- quest, paid off the money advanced by Crookes, and took from A. Ibbotson a fresh warrant of attorney to confess a judgment; and at the same time the /ease, and a copy of White/ey's will (which lead been in Crookes' possession) were delivered by Crookes. Judgment was entered upon the warrant of attor- ney so given lo Greares, and execution thereon issued in Tri- nity Term 1801 ; but before the entry with Greaves' execu- tion, one Joseph Schofield, another creditor of A. Ibbotson, had levied an execution upon part of the goods of A. Ibbotson, which execution being satisfied by Greaves, was withdrawn, and possession teas taken under his execution; and the lease of the premises in question was, on the 18th June 1801, publicly sold and assigned by the sheriff under Greaves' execution to the defendants, who were immediately put into possession of the premises, and now continue solely possessed there- of. IN THE FORTY-SECOND YEAR OF GEORGE III. 483 of. A. Ibbotson quitted the premises in the morning before 1802. the sale, and has ever since ceased to dwell there, or hare any ~^ possession (hereof. John Ibbotson (the lessor of the plaintiff) a ^nu t attended at the time and place of sale (which was public) and HAWKS. before the actual sale, gave notice of his claim under W/iite/ey's will to the defendants. The question was, Whether the plain- tiff were entitled to recover on the demise of John Ibbotson? If he were, the verdict to stand ; if not, a nonsuit to be entered. Wood fiic the lessor of the plaintiff. The condition on which the farm was devised to A. Jbbotson was broken, and therefore J. Ibhotson was entitled to enter, to whom it was given over, in the event of A. Ibbotson ^ refusing to dwell there himself, or keep it in his own possession. Here it is stated as a fact, that A. Ibbotson quitted the premises on the day of the [ 484 ] sale previous thereto, and has ever since ceased to dwell there, or have any possession thereof; and it appears from the rest of the case, that he has parted with the power of dwelling there. The object therefore of the testator is entirely defeated, which was, to compel A. I. to keep the farm in his own hands, or otherwise that it should go over to J. J. If it be objected, that the words of the condition only imply a voluntary refusal to dwell there, and not an absence by compulsion of laic, as this will be contended to be, that is answered by the case of Dommett v. Bedford (a), where the condition was, that the an- nuity bequeathed should not be alienated by the devisee, other- wise it was immediately to cease and determine; yet upon his bankruptcy, and the assignment of the annuity by the commis- sioners, it was holden to be determined, though that was no more a voluntary act of the bankrupt's than this. It is true, that in Doe v. L'arter (b\ it was at first considered, that a taking of a lease in execution was not " a letting, setting, as- " sio-ninir, transferring, making over of it," &.c. within the true meaning of those words, beinii" done /'// invitwn, and not a voluntary act; but when that question afterwards came on aT ' capacity is to be incurred on his refusal to dwell on the farm, HAWKE. or keep it in his own possession, have not determined his in- terest? When he deposited the lease with Crookes, as a further security for the several loans of money advanced by him, was this not a voluntary act? and when the lease was afterwards delivered over to another creditor, who took up the first de- mand, and to whom a warrant of attorney was at the same time given, and considering that by so giving up the lease, he thereby disabled himself from mortgaging the premises ; and by giving the warrant of attorney, he enabled the creditor to dispossess him at his option, must he not be taken to have contemplated at the time the legal consequence of these acts which afterwards ensued ? That these were voluntary acts there can be no doubt. He put the creditor in possession of the document of the farm ; and by all the authorities he there- by gave a specific lien on the lease : for, according to Russel v. Russel, 1 Bro. C/ian. Cas. 269. and several other cases there mentioned, the making of such a deposit gives jurisdiction to a Court of Equity to compel a sale of the lease in discharge of the lien. As it then enables the other to turn the party out of [ 487 ] possession in default of payment, it shews a purpose in the latter to part with the possession; and therefore the subsequent proceeding and execution is not strictly /// iitvitiint, so as io brino' the case within that of Doe v. Carter: and there need o not be fraud in the transaction ; it is enough if there be a ma- nifest intention to depart with the estate, followed by acts to that end, which, if not produced immediately by the procurement of the party, may yet be said to be done with his assent. Upon the whole, therefore, it is enough to say that here was a volun- tary departing with the estate. LA WHENCE, J. (a). The lease was given by the testator to Abraham Ibbotson, so long as he lived on the farm. The material words of the bequest are, " That he should not dis- " pose of or sell the tenant-right to any other person ; but if " he refused to dwell there himself, or keep it in his own pos- " session," then it was to go over to the lessor of the plaintifY, (a) Grose, J. was absent from indisposition. Now, 487 CASES IN TRINITY TERM 1802. DOE against HAWKE. Now, the word refused is only a figurative expression ; meaning, if the first taker ceased to dwell there. There was certainly no occasion for any person previously to enquire of him, whether he would reside there or not; and that he should expressly refuse it. LK BLANC, J. This would be a strong case if it rested even on the first point; for here are strong circumstances to shew that this was a departing with the possession of the estate by the party's own act. Besides which, on the construction of the will, it clearly appears to have been the intention of the testator, that if A. Ibbotson ceased to live on the premises, or keep them in his own possession, they should go over to John Ibbotson. Postea to the plaintiff, [ 488 ] THOMAS on the several Demises of ANNE JONES and others Tuesday, against EVANS. June ay Hi. One devised T ]\ T ejectment, tried before Thomson, B. at the last Hereford assizes, a verdict was found for the plaintiff, subject to the opinion of the Court on the following case : Richard Philips being seised in fee of the premises in ques- tion, and also possessed of a considerable personal estate, by will, dated 20th February, 1801, duly executed and attested, devised the same as follows: "This is the last will and testa- ment of me, R. P." Sec. " I give and devise all and singular my real estate, wheresoever situated, in the county of Carmar- estate 'o A. and his real estate to li. and after ^/.'s death, and the devisor having acquired other real property, some by de- vise and some then, and the borough of Carmarthen, to my mother Jane he madVa. 86 ' Philips, and her assigns, for life, without impeachment of waste : and from and after her decease, I give and devise unto my sister Ann Jones, an annuity of 20/. to be yearly issuing out of my said real estate during her life, clear of all .deduc- second wi disposing by name ac ah-ed testament- ary e-tate to C. and then added, " As to the rest of my real and personal estate, I intend to dispose of it by a codicil thereafter to be made to this my will." This is no revocation of the first will, whether considerin-; that lie meant to include the same pro- perty therein devised; because, it is a mere declaration of an intent to dispose of it in future; and non comltit that such disposition would be iiicoMMsient with the first will: nor is it any revocation, considering that he meant only to include his after-purchased property not before devised, and his pci'soua) estate, the bequest of which had elapsed by the death of A. lions IN THE FORTY-SECOND YEAR OF GEORGE III. 488 THOMAS against EVANS. tions (with a power of distraining for it in case of default). I 1802. give and devise all my said real estate in possession or reversion to T. L. and G. P. and their heirs, in trust, to the use of my nephew John Jones, only son of my said sister, and his as- signs, for and during his life, remainder to my said trustees and their heirs, to preserve contingent remainders; remainder to the first and every other son and sons of the body of my said nephew John Jones, and the heirs of their bodies, &c. (succes- sive) ; and in default of such issue, to the use of all and every of the daughter and daughters of the body of the said John Jones, and the heirs of their bodies, &c. as tenants in common; and in default of such issue, I give and devise all my said estate [ 489 ] to my cousin T. Philips, second son of my uncle W. Philips, of Slebetch, &c. clerk, his heirs and assigns for ever. As to all and singular my personal estate, I give and bequeath the same to my mother Jane Philip, whom 1 do appoint sole executrix of this my will ; and I do hereby revoke all former and other will and wills." Jane Philips, the mother and devisee for life, and also exe- cutrix and residuary legatee named in the will, died in Fe- bruary 1784, in the lifetime of the testator. After the making of the will, one George Philips devised to the testator a certain estate, called The Coed\tain Estate, for life, with several re- mainders over, with the ultimate reversion to his the said George Philips' own right heirs; and died on the 20th April, 1784, after whose death the said reversion in fee expectant as afore- said, descended and came to the said Richanl Philips, as cousin and heir at law of the said George Philips. The said Richard Philips being so seised of the premises which he had when he made the will of 1781 ; and also of the said life estate in the Co"t'igai>i estate, of which he was likewise entitled to the rever- sion in fee as aforesaid, made another will in writing, dated 7th of ^larch 1785, duly executed and attested, in the words foliowiv;;. 1 : : "This is the last will and testament of me R. P. &,c. \\hereas my relation, George Philips, of Coedgain afore- said, deceased, did bv his last will and testament, duly exe- cuted, give and devise all Ins real estates in the several countie-s of Carmarthen -iiid Cardigan, and county of the borough of Carmarthen (subject to the annuities therein granted) to me the said Richard Philips for life, remainder to Richaid Mau.se/, second son of Sir William Mantel, of hcoed, in the county of [ 400 ] Carmarthen, 490 CASES IN TRINITY TERM 1802. Carmarthen, Baronet, in tail, with other remainders over, and the reversion thereof to his own right heirs forever: and whereas IIIOMAS I the said #/cAan/ P/7ms, am thereby entitled to the rever- against . J EVANS. sionary estate and interest expectant on the estates tail of and in the said real estates, as heir at law r to the said George Philips. Now 1 do, by this my will, give and devise all my re- versionary estate and interest of, in, and to the said premises so devised to me in manner aforesaid, by the said George Philips, deceased, to Dame Mary Mansel, the wife of the said Sir William Mansel, her heirs and assigns for ever. As to the rest of my real and personal estate, I intend to dispose the same by a codicil to this my ici/l hereafter to be made. In witness where- of," &c. Richard Philip* died 7th October, 1792, unmarried, leaving Anne Jones, widow, one of the lessors of the plaintiff, his sister and heir at law, and next of kin; John Jones, her son and de- visee, named in the will of 1781 ; and Thomas Philips, the ulti- mate remainder-man in such will, named him surviving. The icills of 20th February, 1781, and of 7th March, 1785, were botk found nncancelled, and have both l>ecn duly proved. John Jones, the devisee for life, under the will of 1781, on the decease of the said Richard Philips in 1792, entered into possession of the premises in question; and so continued till his death, on the 23d June 1796. The testator, subsequently to the making the will of 1781, and before he made that of 1785, bought an estate, the consideration paid for which was 150/. : and subse- quently to the will of 1785, he purchased an estate of the yearly value of 150/. ; which last estate descended to the said Anne Jones, as his heir at law. The question for the opinion of the Court was, Whether the will of 1781 were revoked by the will of 1785? i 491 ] P helps, for the lessor of the plaintiff, contended in the affir- mative. It is a question of intent, reference being had to the circumstances of the devisor at the several times. In making the second will he must either have intended to confirm or re-> vokc the first; but he could not have meant a confirmation of it, because taking them both to bear date in 17*5, there is a repug- nance ancV inconsistency in them in several particulars ; for his mother, to whom he had devised a life estate by the will of 1781, was dead at the time of making the will or' 1785 ; and to her who was then dead, he must be supposed to have bequeathed all IN THE FollTY-SECOND YEAR OF GEORGE III. 491 all his personal estate absolutely, and also to have intended to constitute her sole executrix : an intention too absurd to impute to him. But as a revocation of the first, the second will is a perfect and consistent instrument, for therein, after disposing of his recently acquired estate, he declares his intention to dis- pose of the rest of his real and personal estate by a future codi- cil to that his will. That he did not make such future disposi- tion is immaterial ; it is enough that he thereby shewed a present intention that the first will should be revoked. He must have known that, by the intervening- death of his mother, the whole of his personal estate was undisposed of; and he declares his in- tention, as well in regard to that as to the rest of his real estate in the same clause; and the future codicil of which he speaks, is to be annexed to that his iciil; disregarding altogether the first will, and calling the will of 1785 his last will. Williams, Serjt. contra. Revocations of wills are not to be favoured; and no intention to revoke can be presumed from making a subsequent will not inconsistent with the former, especially with respect to such parts as may well stand together. The occasion of making the second will is plainly expressed in it ; namely, to dispose of the devisor's after-acquired property, which he mentions by name : and according to Coward v. Marshall (a}, two wills, disposing even of the same land, may be construed together, unless they are inconsistent. That case was recognized by Lord liardwicke in Ilil/ef \. Sand ford (/>), and the Attorney General v. Heyteood, in .fitly 1741. Then the mere circumstance of declaring that lie meant to dispose of the rest of his real and personal estate by a future codicil, does not shew a present intention in the devisor, that the dis- position he had before made should be immediately annulled. Admitting that he intended, at some future time, to make a codicil, disposing of the property in question differently from what he had done in his first will, and thereby to annul it. it does not follow that he meant to do so by any other instrument than such codicil; and as he lived several years afterwards without making it, it shews that he was satisfied to abide by what he had already done. At most, it onlv amounts to an intention to revoke; but never carried into effect. The statute of frauds points out the several ways in which express revoca- 1802. THOMAS ayainst EVANS. [ 492 ] () Cro. Eliz. ~21. IS7. tions 492 CASES IN TRINITY TERM 1802. THOMAS against EVANS. [493 ] tions of wills can alone be made. But what would not have been revocation by parol before the statute, will not be so since, though reduced into writing, with all the formalities en- joined by the statute. Now a bare intention to revoke, though expressed by parol, was no revocation before the statute, un- less the testator declared that he did revoke his will. It was so resolved in Crauvel v. Sounders (a) : and this is no more than expressing an intention to revoke it by some future instru- ment : but until the codicil were made, how can the Court say whether it would be a revocation or confirmation of the will ? The making a codicil does not in itself shew a disposition to revoke a prior will. Supposing the testator had even made a codicil, the contents of which could not be known, but it was only found to have contained a different disposition of the property, yet the Court could not adjudge it to be a revocation of the will without seeing the contents. Hitchins v. Basset (b) and Harwoodv. Good right (c). In the latter case in C. B. three Judges went the other way; but their opinion was over-ruled on a writ of error in this Court; which judgment was after- wards affirmed in Parliament : but admitting that some effect must be given to the words, stating, that as to the rest of his O * ^ 7 real and personal estate the devisor meant to make a future disposition of them, they need not relate to the real property devised by the first will; for besides the property which had come to him by the death of his relation, and which he dis- tinctly disposed of by the second will, he had other real pro- perty undisposed of by the first will, which he had subse- quently acquired by purchase; which sufficiently explains the use of those words. Then, as to the expression of his last will, it was said by the Court, in the late case between Lord Walpole and Lord Cholmondeley (d), that no reliance could be placed on it; for that was a man's last will which was con- firmed by law to be such at the time of his death. Phe/ps, in reply, said, That the residuary clause was not () Oo. Jc. -197, and vi. Moor, 874. (b) 2 Salk. 59 2. 1 Show. 537. 3 Mod. 203. Show. l\ C. 146. (c) Cowp. 87. ami vide note (1) to Mr. To.r's idit. of I 1 . If'ms. 1 vol. 345. Vide S. C. in C. B, 3 H'ils. 497. and <> Blue. 037. and in Dom. Proc. 7 Bro. P. C. let(m> i>' , . ' . ill,, i i l)(> doubtful the obstruction hereinafter mentioned, hath flowed in its an- wh.-thur the cient and accustomed course, without any obstruction to the p ' a ? e wl '. ere Mich iinvi^a- said navigation of the said company; yet the defendants, well tion i* stated knowing the premises, but contriving and fraudulently in- [^ {; ^; U<1 tending to prejudice the plaintiffs, and to disturb them in union as a the enjoyment of the navigation of the said river called The [^afdescrip. Incell, and to damnify them in the same, to wit, on the clay ion,it will and year aforesaid, at Preston aforesaid, in the county afore- ^rrdy toV ( ;ie said wrono-fullv and injuriously erected, and caused and pro- luul " tl>li !U)t . ' , he proved to cured to be erected in, over, and across the said river, above be at surii the said navigation of the said company, a certain weir or d;im, I' 1 ; 1 '"' 1 .; 1>nt lt :s 1 -' . siitnnent it it Sec. and wrongfully and injuriously kept and continued the same bo ;it any other so there creeled, fora long space of time, &o. ; and thereby and f/," ',,^ 1 }'" 11 therewith wrongfully and injuriously penned up and obstructed the water of the said river, and prevented the same from flowing down to the said navigation of the said company, in as ample and beneficial a manner as the same otherwise would, &c. : in consequence whereof the plaintiffs were prevented from navi- [ -^8 ] gating their vessels, &c. and lost ^reat profits, SLC. and expended lar< y e sums in forwarding of goods by other means than m the said vessels, &c. to wit, at Preston, aforesaid, in the county aforesaid. There were other counts in substance the same. VOL. II. C c The 498 CASES IN TRINITY TERM against DOUGLAS. 1802. The last count stated, That whereas the plaintiffs heretofore, to "~ wit, on the said 1st of January 1796, and long before, were c Q f proprietors of and entitled to, and from thence hitherto have the MERSEY been and still are proprietors of and entitled to the free naviga- andltuvELL tion of a certain other river there, called The Irwell; the water "Navigation of which said river hath flowed, Sec. from time immemorial, until the obstruction after-mentioned, in its ancient and accustomed course, without any obstruction or impediment; yet the defend- ants well knowing the premises, but intending to prejudice the plaintiffs, and to disturb them in the enjoyment of the navigation of the said river called The Incell, 8cc. to wit, on the clay and year aforesaid, at Preston aforesaid, in the county afore- said, wrongfully and injuriously penned up and obstructed the water of the said last-mentioned river, and prevented the same from flowing in as ample and beneficial a manner as the same otherwise would, &c. concluding as before. The defendants pleaded the general issue. At the trial before Rookc, J. at Lancaster, the plaintiffs were nonsuited, for default of proving that the river Irwell was at Preston: and a rule nisi having been obtained for setting aside the nonsuit and granting a new trial, cause was now shewn O O against it by Park, Holroi/d, and Scarlett. Though the action be per- sonal, the injury is local, as well with respect to the injurious act done, as with respect to the property injured, which is real : and by Comyns (a} every action founded upon a local thing, shall be brought in the county where the cause of action arises. Where the injury is to land, it must be laid in the proper parish or vill, as well as county, as in trespass (juarc claii^inn fregit. Then, unless the word llieie be taken as descriptive of the place where the injury was committed, and refer, as it necessarily does, to Preston, the declaration would be bad; and if it do so refer, it ought to have been proved as laid, though alleged under a viz. being a material allegation. Lord Ellenboroiigh. If it be necessary that the nuisance should have a local description, and this be not locally described,, the remedy must be sought in another form, and not upon a motion for setting aside a nonsuit on a supposed defect of proof of the allegation of locality.] Upon a motion in arrest of judgment, it would be contended, that the word there did refer to Preston ; and amounted to an [ 499 ] () 1 Com. Dig. tit. Action, 131, N. 5. allegation IN THE FORTY-SECOND YEAR OF GEORGE III. 499 allegation that the Irwell, in which the nuisance is charged to 1802. have been committed, was at Preston. [Lawrence, J. Suppose T , the word there was struck out, and the declaration ran thus : r x vy &^~ f That the plaintiffs, at Preston, were possessed of a certain river the MRJISEY called The Irwell, &c. how would that be defective '?] If it did and hi WELL not appear where the river was, it would be sufficient for the Navigation plaintiff to sustain his declaration by proving that the river was DOUGLAS in another county; which would do away the admitted locality of the action : but in Goodright v. S trot her (a), on a motion in arrest of judgment in ejectment, for want of an allegation of the vill where the lands lay, it appearing to be alleged that the defendant at H. ejected the plaintiff from the said lands, that was holden to amount to a sufficient certainty that the lands lay [~ ,500 ] there. If it would not have been enough before the statute 4 and 5 Ann. c. 16. which enabled the Jury to come from the body of the county to have laid the action in the proper county, without naming the particular vill, nothing in that statute has superseded the necessity of the proof required here. They also mentioned a case of Shaw v. l'rigley and others, before Wilson, J. at York, summer assizes, 1790; which was an action on the case for a nuisance, in erecting a weir, and thereby injuring the plaintiff's mill ; which weir was described in the declaration to be at the llnlbrook; but was proved in fact to have been erected at a lower part of the same water, called The Tante Hater; on which the plaintiff' was nonsuited, and the Court of J3. A*. afterwards refused to set aside the nonsuit. .Erskine, Gibus, Wood, Luntlie, U . ll'alton, Ruii/e, and 1'ates, in support of the rule. Admitting that, if the declaration al- le'ed as matter of local description, that the river L-well was at Preston, it must be so proved : the question here is, Whether, if the word there, be taken to refer to Preston, it shall be taken to refer to venue, or to heal description? \o\\~ if venue only were necessary, the Court will not rear! it as local description for the purpose of nonsuiting the plaintiff'; but will rather intend that he stated enough, and not more than was necessary to sus- tain his action. The allegation is found in that part of the declaration where the venue is usually placed : and it is absurd to suppose that the plaintiffs would allege, as matter of descrip- tion, that the whole of an extensive line of navigation, vested in them by a public Act of Parliament, was situated at Preston, (K) ? Blue. 706. C c 2 otherwise 501 CASES IN TRINITY TERM 1802. otherwise than as mere matter of form. What constitutes this ~~ a local action is, the locality of the plaintiff's possession within PANT &c. of * ne body of the county ; and not the locality of the injury in this the MERSEY or that part of it. If, before the stat. of Anne, it would have and IIIWELL been necessary to have stated the particular vill, &c. it is no JMaviga ion longer so since the statute, unless where local description is against . ' DOUGLAS, necessary. Part of this navigation is in the county of Chester; and though the injurious act had been done there, yet if the injurious consequence of the plaintiffs' possession were felt in Lancashire, the action was properly brought there. There are three material facts alleged, to which it was proper to lay a venue: 1. That the plaintiffs were lawfully possessed of the navigation described to be injured : 2. That the defendants wrongfully set up a weir across that navigation; and 3. That the plaintiffs were thereby injured. No local description was necessary; but it was sufficient that the gravamen arose within the county. In cases where a specific judgment is to be given for an abatement of the nuisance, there certainty in the local description is necessary, as in an assize of nuisance, or a f/uod permittat, or an indictment for a nuisance. It need not ever* have been stated by what means the defendants diverted the water, and the injury was effected; a fortiori, therefore, it was unnecessary to give a local description to the injury. It would have been enough for the plaintiffs to have stated their possession of the navigation at any place (by way of venue) within the body cf the county ; and that the defendants a hove the navigation of the plaintiffs d/vcr/cd (a) the water, whereby their navigation was obstructed. If, indeed, a wrono; name had been 'ive.n to the river, it might have been a ground of objection, as hi the case before Wilson, .!. at York; but the place where the injury was committed is quite immaterial, as in Dretcryv. 7V/.s.s (/>), Frith v. (Iray there mentioned, and Ilarrixon v. Rock (c) ; in Avhich latter, in an action on the case, for stopping the plain- tiff's right of way, one of the objections was, That it was not stated in what lot en the way was; but it was over-ruled. They also referred to the last count as more general than the others. Lord EL i. KM HOHOV <; u , C. J . This action is in its nature con- fessedly local; but the question is, Whether the gravamen need be described vuth any local certainty I and 1 incline to think it (a) Vide Pricfimtat v. Tripp, Skin. o8(). (l>) 4 Term Rep. 558. (c) 3 Bulsir. S.'U. need IN THE FORTY-SECOND YEAR OF GEORGE III. 502 ^ avlatlou DOUGHS [ 503 need not; but that it is sufficient if it be laid at any place within 1802. the body of the county. A plaintiff in such an action may in- i j i -, . . , I he COM- cleeu make it necessary to prove the gravamen in a particular PANY & c O f place, by giving it a specific local description ; as by alleging the the MERSLY nuisance to be standing and being at a certain place particularly a "d ft WELL described; but in general, such particularity is not necessary: 1 for otherwise, how is a venue to be laid to the fact of the obstruc- tion , when that takes place in the higher part of a stream flowing in one county, and the injury is sustained in the lower part of the same stream in a different county in which the action is brought? It is sufficient to describe the substance of the injury, in order to give the other party notice of what he is to defend; and it is sufficient in the form of pleading, to allege the gravamen at any place within the body of the county. Therefore, the manner in which it is here stated, ought rather to be referred to venue than to local description. If indeed local description were necessary to be laid in this species of action, it might be doubtful whether this manner of laying it were to be referred to the one or the other; but that question would have been better brought before the Court on demurrer, and need not be now considered, though I do not think it necessary to be so laid. LAWREN CE, J. (a). The ground of the nonsuit at the assizes was on the want of proof of the first allegation in the declara- tion, That the plaintiffs at Preston were proprietors of and en- titled to the navigation of the river then 1 , called The Incefl; it appearing that there was no such river at Preston, to which it was supposed to be confined as matter of description. Xow there is no occasion for referring the word there to Presto// as matter of description that the river Irwell ran at Preston, for the purpose of a nonsuit, when it may be rendered intelligible by reading it in another sense, which will support the declara- tion; and I think it may well be referred to the calling of the river The Irwell at Preston. Then the question is, Whether in this form of action it be necessary to u'ive with certainty the local description of the nuisance complained of.' for if so, we mustconsider Preston as the local description of the place where the nuisance was committed : but I think it was not necessary so to describe it. It is sufficient if the declaration point out the (a) Grose, J. being indisposed, YVO.S absent. 503 CASES IN TRINITY TERM 1802. The COM- PANY, &c. of the MERSEY and IRWELL Navigation against DOUGLAS. *[ 504 J gravamen of the complaint with certainty, enough to enable the defendant to have notice of it, which I think has been done here ; and that the naming of the place is to be referred to venue. *LE BLANC, J. It is said there are two parts of the declara- tion where local description w r as necessary in stating the cause of action, first in stating the navigation, their local possession of which the plaintiffs complain that the defendants have invaded ; and this it is said is alleged to be situated at Preston by means of the relative word there. But if it be not necessary to allege the particular place where the injury was received, the Court will not read it as giving locality to the river Irwell at Preston, in order to support a nonsuit for a false description; and I think it would have been sufficient to have said that the plaintiffs were possessed of the navigation of a certain river called the Irwcfl, omitting the word Mere altogether. Secondly, It is urged that local description was necessary to be given to the obstruction complained of, namely, the erection of the weir. But the gist of the action is, that the defendants erected the weir above the plaintiffs' navigation; by means of which their navigation was obstructed. It is quite immaterial where it was erected above the navigation. It would have been sufficient to have stated that they diverted the w r ater above the navigation of the plain- tiffs, by means of which the injury complained of happened. Neither is it necessary in actions of this kind, to give a local de- scription either to the property injured, or to the thing which caused the injury; but it is sufficient to state what the property injured was, and that it was so injured by the defendants. In this case therefore it was not necessary to prove that the river Incell, or any part of it, was within the town of Preston; or that the weir, by which the obstruction was caused, was within the same place : but the whole may be referred to matter of venue. Rule absolute. ATKINS IN THE FORTY-SECOND YEAR OF GEORGE III. 50o 1802. ATKINS and Others against BAN WELL and Another. Friday, July *d. AN action of indebitatus assumpsit was brought by the plain- The law wil1 .re i , fCm , .. , not raise an tills, as the parish officers of Toddington, in the county of implied pro. Bedford, against the defendants as the parish officers of Milton "ar^iVhe Bryant, in the said county, to recover 14/. 12s. for money paid, a pauper is laid out, and expended by the plaintiffs for meat, drink, board, EJSjJi Ue" lodging, medicines, medical assistance, and other necessaries >ney laid found and provided by them for one John Mitchell, his wife and ther parifh'in family; to which the general issue was pleaded. And at the which he ha P* trial before Grose, ,1. at the last Bedford assizes, a verdict was in providing found for the plaintiffs, subiect to the opinion of the Court on nece * sar y ">e- , , . dical assist- the following case: anceforbim. The plaintiffs are the parish officers of Toddington; and the defendants are the parish officers of Milton Bryant. John Mitchell was a pauper legally settled at the time of his illness and death, hereafter mentioned, in Milton Bryant; but he re- sided with his wife and family at Toddington, and was there suddenly attacked with dangerous illness, which prevented his being removed from the place of his residence to that of his settlement, without endangering his life. The plaintiffs gave notice to the defendants of the illness of their pauper within two or three days after the pauper was so taken ill. The pau- per's illness continuing, he afterwards, and about three weeks from such notice, died of such illness in the parish of Todding- ton ; and the plaintiffs, as parish officers of that parish, from the time of such notice up to the pauper's death, laid out 14/. 12s, as well for necessaries for the pauper and his family, as for medi- cines and medical assistance for the pauper, and also on the [ 50G J funeral of the pauper after his death. The present action was brought to recover that sum. The Jury found that there was no express promise of the defendants to pay it to the plaintiffs. The question for the opinion of the Court was, Whether such action be maintainable in law? If the Court should be of that opinion, then the verdict for the plaintiffs was to stand; if not, a nonsuit to be entered. BEST, for the plaintiffs, said that there was a moral obliga- tion at least in the defendants to repay the money expended fop 506 CASES IN TRINITY TERM 1802. for one of their own parishioners, whom by law they were com- . ' pellable to maintain within their own parish: and therefore r\ T K" T "V S against this case fell within the principle of Watson v. Turner (a), where BANWELL. an apothecary recovered against the parish officers for the cure of a pauper of the parish who was taken ill in another parish : there, however, was a special promise to pay the plaintiffs bill after it was contracted. Lord ELLENBOROUGH, C. J. That last circumstance makes all the difference. A moral obligation is a good consideration for an express promise ; but it has never been carried further, so as to raise an implied promise in law. There is no precedent, principle, or colour for maintaining this action. LE BLANC, J. There was a moral as well as legal obligation to maintain the pauper in his illness in the parish where he was at the time. Per Curiam, Let a nonsuit be entered (6). Wilson was to have argued for the defendants, () Scacc. Trin. 7 Geo. 3. Bull. N. P. 129, 147, 281. (6) Vide Newby v. II iltshire, Cald. 527. and Stat. 55 Geo. 3. c. 101. WATERHOUSE against Sir RICHARD KING, Bart. [ 507 ] Friday, July 2d. An appoint- fTHHIS was an action for money had and received by the de- ment by the . Lords of the lendaiit to the use of the plaintiff; to which the defendant Admiralty, of pl eac [ed the general issue : and at the trial at the Sittings after a captain in . last Hilary Term at Westminster, before Lawrence, J. a verdict was taken for the plaintiff for 408/. 6s. Sd. subject to the opinion of the Court on the following case: In the general regulations and instructions relating to his the navy to cL S maTd d er on board a kind's ship, is valid by their general autho- rity to appoint what offifcrs they think proper for the service, although another was ap- pointed to the first command on board the same ship; and notice is only taken of one captain in the book of regnla'ions for the navy. And such second captain is entitled to a cap- tain's share of a prize under the. kind's proclamation. The book of regulations for the navy, submitted by the Lords Commissioners of the Admiialty to the Kins; in Council in 1750, and approved by his Majesty by an order of council, is only directory to the lords com- missioners. Majesty's IN THE FORTY-SECOND YEAR OF GEORGE III. o07 Majesty's service at sea, established by the annexed order () of* 1802. the Kino- in Council, are the following clauses, viz. under the \V AT ER~ title of "Rank and Command." Article 1. " The established HOUSE number against KIXG. *[ 508 ] (a) At the Court at St. James's, the 7th day of January 17.30, present the King's Most Excellent Majesty in Council. Whereas the commissioners for executing the office of Lord High Admiral of Great liritain, In-lnml, &c. did on the V3d of last month represent to his Majesty at this hoard, that the orders and instructions, which have from time to time hcen issued for the better government of the Navy, have been so imperfect, and through length of time become so perplexed, that the officers of his Majesty's navy have been liable to fall into mistakes and omissions in the execution of their duty : and thrtt for preventing any doubts or difficulties of this nature for the future, they have collected into a book the several " rules and orders now in force in the '' navy, and made, such additions and alterations thereto as they thought ne- " cessary for that purpose : and have reduced the whole into distinct chap- " ters, and digested the same under proper heads, so that all the officers of " his Majesty's ships may, at one view, be duly and sufficiently apprized of " the duty of their respective posts." And the said lords commissioners did, at the same time, humbly present the said book to his Majesty for his royal approbation. And whereas the lords of the committee of council (to whom his Majesty thought proper to refer the consideration of the said book) have this day reported to his Majesty that they have examined into the same, and do apprehend the said book of regulations and instructions may be pro- per for the service of the navy, and for the maintaining and improving the good order and discipline thereof; and arc therefore humbly of opinion, that his Majesty may be pleased to approve of the s.iid buok, except in sjme particulars, which they have thought necessary to he altered ; and except likewise all the articles contained therein which relate to the establishing three officers under the title of commodores; as also to the restoring the establishment of pay and servants settled hy his late Majesty King ll'illinm, in February 1693, on the commission officers of the fleet, in lieu of the pay and servants allowed by the establishment now m force; which last csta- blishment was approved by his said late Majesty King II illium in council, on the 18lh of April 170D; which two points the lords of the committee did apprehend to he of so great consequence a* to deserve a further deliberation, and have therefoie humbly proposed to his Majesty th it the consideration ot them may be postponed, and that the establishment of pay and seivants, settled as aforesaid, in the year 1700, and now in fc.ive, may for the pre- sent be observed. His Majesty was themipon pleased, with the advice of his privy council, to approve the said book of regulations and instructions, together with the several alterations proposed by tlje lords of the coiu- mittee to be made therein ; which alterations are accordingly made in the said book : and his Majesty -.loth hereby order that the further considera- tion of all the articles theiein contained relating to the establishing of three commodores, and also to the restoring the establishment of pay and servants as abovementioned, be postponed; and that the establishment of pay and ser- vants, 508 CASES IN TRINITY TERM 1802. WATER- IIOUSE ayainst KING. 509 ] number of flag officers of the navy shall be as follows, viz. one admiral and commander in chief of the fleet, one admiral of the white, and one admiral of the blue ; one vice-admiral of the red, one of the white, and one of the blue; one rear-admiral of the red, one of the white, and one of the blue ; and no brevet commission shall be allowed." And under the title, "An establishment of sea wages, and of the number of officers " allowed to his Majesty's ships," (Article 9.) the wages of other officers and of seamen, with the number of officers al- lowed to a ship of each rate, are as follows [after which there is a table with the figure 1 marked under each rate as the number of captains]. The number of flag officers of the navy has been considerably increased, without any authority of the Kino- in Council. Whenever any alteration is made in the J , number of officers allowed to a ship, according to the state- ment of the table, it is usual to present a .memorial from the lords of the admiralty to the King in Council, and an order is made thereon. On the 15th of December 1786, the following order in council was made, dated loth December 1786: "Whereas there was " at this day read at the board a memorial from the Lords " Commissioners of the Admiralty, dated the 14th of this in*- " stant, in the words following (viz.) Lord Sydney, one of your " Majesty's principal secretaries of state, having, in his letter of *' the Slstof August last, signified to us your Majesty's pleasure, " that one of your ships of war should proceed with the trans- " port vessels appointed to convey convicts to ttotany Btn/, on " the coast of Ae?# South Wales, with a view to form a settle- " ment at that place; and it appealing by the staff establish- " ment of the intended settlement which accompanied his lord- " ship's said letter, that it is your royal intention to appoint " the captain of your Majesty's ship employed upon this ser- " vice, to be governor or superintendant-general of the said " settlement, we beg leave to represent to your Majesty that, " as it will probably be found expedient for the ship to proceed rants, which received the approbation of his late Majesty King IVillinm in council on the liJth day of April 1700, and is now in force, he for the present observed. And the said Lords Commissioners of the Ad.niralty are to give the necessary directions th:it tiie several i emulations and instructions contained in the said book, which is hereunto annexed, be duly and punctually complied with. to. IN THE FORTY-SECOND YEAR OF GEORGE III. " to some other parts of the coast, or to some of the islands " in the Pacific Ocean, while the residence of the captain, in " quality of governor or superintendant, may be requisite on " shore, for the better forming and maintaining the settlement, " we are of opinion it will be for the advantage of your Ma- " jesty's service, that an officer of superior rank to a lieutenant " should, upon such occasions, and at all times in the absence " of the captain, have the charge and command of the said " ship ; and we do therefore humbly propose that your Ma- " jesty will be pleased, by your order in council, to authorize " us to appoint an additional officer to the said ship, under the " denomination of second captain, with the rank of post-cap- " tain, and with power to command her in the absence of the " principal captain ; subject nevertheless to his control, and to " such orders and directions as he may from time to time think " fit to give for the regulation of his proceedings. That the " pay of the second captain be equal to the pay of a captain " of a 6th rate, and that he be allowed four servants. His " Majesty, taking the said memorial into consideration, was " pleased, with the advice of his privy council, to approve of '' what is therein proposed, and to order, as it is hereby ordered, " that the Lords Commissioners of the Admiralty do appoint " an additional officer to the man of war that shall proceed with " the transport vessels appointed to convey the convicts to Bo- " tamj Bay, under the denomination of second captain, with the " rank of post-captain," See. (following the precise terms of the above-mentioned recommendation). The rank immediately superior to that of lieutenant is that of captain. Shortly after the making the above order in council, Captain Phillips of the navy was appointed governor of Kotanj/ Bay in New South l\ 'ales: and being about to depart for his p,^- vernment, he and Captain Hunter received from the Lords Com- missioners of the Admiralty their respective commissions of com- mander and second commander of his Majesty's ship the Siriu*, a sixth rate ship, with 160 men, similar to the two commissions, dated the 17th July 1794, hereinafter set forth. On that occa- sion Captain Phillips was allowed seven servants, and Captain Hunter four. In the year 1794, Captain Hunter was appointed to succeed Captain Phillips in the government of Botany Hay: and on his departure, the following commissions i^ued to him and the plaintiff (viz.) Bv 1802. HOUSE against KINO. [510] 511 CASES IN TRINITY TERM 1802. WATER- HOUSE against KING. [ 512 ] " By the commissioners for executing the office of lord high " admiral of Great Britain and Ireland, &c. and of all his Ma- jesty's plantations, Sec. To John Hunter, Esq. hereby ap- " pointed commander of his Majesty's armed vessel the Reliance. " By virtue of the power and authority to us given, we do here- " by constitute and appoint you commander of his Majesty's " armed vessel the Reliance, willing and requesting you forth- " with to go on board, and take upon you the charge and com- " mand of commanding in her accordingly; strictly charging " and commanding all the officers and company of the said " armed vessel to behave themselves jointly and severally, in their " respective employments, with all due respect and obedience " unto you their said commander; and you likewise to observe " and execute the general printed instructions, and such orders " and directions as you shall from time to time receive from us, " or any other your superior officers, for his Majesty's service. " Hereof nor you, nor any of you may fail, as you will answer " the contrary at your peril; and for so doing this shall be your " warrant. Given under our hands, and the seal of the office of "Admiralty, this 17th of July 1794, in the 34th year of his " Majesty's reign. (Signed) " A. GARDNER. f ' P. AFFLECK. " ClIAS. MlDDLETOX, " By command of their Lordships, PHILIP STEPHENS." " By the Commissioners for executing the office of Lord " High Admiral, &c. To Henri/ Water/iaitae, Esq. hereby ap- " pointed second commander of his Majesty's armed vessel the " Reliance, with the rank of commander, and with power to " command her in the absence of the principal commander ; sub- " ject, nevertheless, to the control, and to such orders and di- " rections as he may from time to time receive from the said " principal commander, for the regulation of his proceedings. " By virtue of the power and authority to us given, we do here- " by constitute and appoint you second commander of his Ma- "jesty's armed \essel the Reliance; willing and requiring you " forthwith to go on board, and take upon you the charge "and command of second commander in her accordingly; " .strictly charging and commanding all the officers and com- "pany IN THE FORTY-SECOND YEAR OF GEORGE III. 512 " pany of the said armed vessel, the Reliance, to behave them- 1802. " selves jointly and severally, in their respective employments,. u ~ " with all due respect and obedience unto you their second HOUSE " commander; and you likewise to observe and execute the ge- ayainst " neral printed instructions, and such orders and directions as KING. " you shall from time to time receive from us, or any other your " superior officers, for his Majesty's service. Hereof, nor you, " nor any of you may fail, as you will answer the contrary at " your peril : and for so doing- this shall be your warrant. Given " under our hands, and the seal of the office of Admiralty, the " 17th of July 1794," &c. (Signed as the last.) TSo memorial was presented from the Lords of the Admiralty on occasion of the above commissions ; nor was any order of the King in council made relative thereto. The said Joint Hunter was allowed four servants, and the plaintiff two. The Lords of the Admiralty have since, once on a similar occasion, where a [ 513 ] captain in the navy has been appointed governor of tint any llm/, is'sued to such governor and to another, and to a junior captain, concurrent commissions, of the like tenor with those above set forth. Sometime in the year 1795, previous to the breaking out of the Dutch war, the Reliance, a sloop with 84 men, whilst on the ttotani/ Bay service, with the said Joint IJnn/er and the plaintiff actually on board, and others his Majesty's ships of war, by orders from the Lords of the Admiralty, detained several Dutch vessels. These ships were afterwards sold, and the pro- duce thereof is now in the hands of the defendant, to be distri- buted as a donation, according to the Kind's proclamation of the 25th November 1795, for distribution of prizes taken from the subjects of the United Provinces during the late hostilities:, which direct as follows: "That the neat produce of all pri/es " which were or should be taken by any of his Majesty's ships " or vessels of war, should be for the entire benefit and en- " couranii'ie t does not exclude him from sharing under the general term of captain in the proclamation. It would have been implied, though not so expressed, and was only used in contradistinction to the Jirst commander or captain, who, it cannot be denied, would be entitled to share; and in whose absence the plaintiff acted in all respects as captain or commander, Without any other relative appellation. Gaselee, contra, denied, 1st, That the Lords Commissioners- had authority to appoint a second captain on board a ship; the regulations made under the order of council of 1730, restrain- ing them to appoint more than one captain or commander to each ship. It is true, the Admiralty commission gives them general powers, which in terms might warrant this appoint- ment; but that must be governed by usa^e; and it is not incon- sistent with a controllino- power lodged in the Crown, of o-ivino- O 1 O JT" 1 the Lords Commissioners certain rules for the government of their general discretion. Then the order of council of 1730 shews, that the Admiralty Act is in subordination to the Kino- in council; for thereby certain regulations, which were proposed by the Lords Commissioners for the approbation of the Kin<_r, are sanctioned by him; in which it appears, that only one cap- tain is allowed to each ship, though the number of lieutenants varies according to the rate of it ; and from thence it also ap- pears, that the plaintiff was not allowed so many servant-, in proportion to the number of men, as bv the regulations he was entitled to; namely, only two instead of four; which shews that his appointment was not under the first order of council. Nei- ther was it warranted by the second order of council; for that was made upon a special occasion, and was afterwards J audit* 0///V/0. Besides, there too the second captain was directed to be allowed four servants; and here the plaintiff had only two. [Lawrence, J. The second order does set-in to Iv confined '<> the particular instance.] -dly, Even if the appoint, unit were valid, under the general authority of the Admiralty, the plaintiff VOL. II. D'M had 1802. HOUSE nyainst KING. [ 518 J 519 CASES IN TRINITY TERM 1802. WATER- HOUSE against KING. [520 ] had no right to share prize; for in this instance, it could not be claimed under the Prize Acts, but purely from the King's bounty: the seizure having been made before any letters of re- prisals had issued. The distribution of prize, under the King's proclamation, is calculated according to the number and rank of the persons who are to share in it : one-eighth to the flag-officers, three-eighths to the captains, &c. The flag-officers, however, if several, do not share in equal proportions, but according to their rank: but the captains -all share alike, considering them equal in rank to each other, and consequently allowing but one to each ship. If, therefore, one who is only second in rank on board one ship, is to share in common with his own and all the other captains, that alters the proportion of the whole, and gives to that ship a larger share than the rest. By these means, the smallest ship in a squadron might .take the greatest share. It is not necessary to consider what the effect would have been if Captain Hunter had been on shore, and the plaintiff' com- manding on board at the time of the capture ; but at any rate, he was only appointed commander in f/ie absence of the proper captain : and, according to .Luiiilei/ v. Sutlon (a}, though the plaintiff in fact acted as captain on board, yet the proper and lawful captain and commander may still be entitled to the cap- tain's share. The plaintiff having been liable to be tried by a court martial as a captain, for any breach of duty, cannot vary the question of prize. Captain Ltnnley was so liable; and he also acted and was addressed as captain by letter, and paid as such; and yet he was hulden not entitled to share prize as captain. Bnrlon, in reply, observed, As to the number of servants al- lowed to the plaintiff being fewer than was directed by the order of 1786, the number allowed depended upon the proportion of men to the ship; which was fewer in this instance than in the other, and the relative proportion was the same. That it was sufficient to entitle the plaintiff' to prize, if he were dc facto ap- pointed to act as captain of the ship in his own right; and not as in Ltttnlei/ v. Million, in the place of the lawful commander. LAWKKNCK, J. (/>). Two questions have been made: 1st, Whether the plaintifi'were appointed by any competent autho- () 8 Term Hep. Wl. (/;) Lord Ellenborough, C. J. pave no opinion, having hern concerned as counsel in the cause ; and Grose, J. was absent, from indisposition. ritv IN THE FORTY-SECOND YEAR OF GEORGE III. 520 rity to be second captain of his Majesty's armed vessel the 1802. Reliance? and, 2dly, if so appointed, Whether he be entitled 7 to a captain's share of the prizes in question? As to the first, the Lord High Admiral had a general and very extensive an- ayaiiis't thority to commission what ships, and appoint what ofiic, rs he KING. pleased to act on board them. The same authority is now dele- gated to the Lords Commissioners in very general terms, who are empowered " to execute and perform all things which "belong or appertain to the office of High Admiral." Xo doubt, the commissioners are. liable to receive particular orders from the Crown, touching all matters which fall within their cognizance; but these are only directory : and if they issue any commission contrary to such orders, they may be guilty of mis- conduct in their office; but that does not avoid the commission [ .321 ] itself. It was competent therefore for the Lords of the Admi- ralty to appoint as many captains as they pleased on board this ship. Then it is said, that the plaintili' was only appointed second commander during (he absence of the first from the ship ; but that is not so: for he was appointed second commander generally, and was to assume the command of the ship in the absence of the first commander, whom he was to obey when present. But his appointment of second commander was ue- neral, without reference to the absence of Captain I flutter; and the commission requires the plaintiff generally to take on him- self the charge and command of second commander; and all the officers and company of the vessel are enjoined to pay due respect and obedience to him as such ; the Admiralty e\identl.y consi- dering that the duty of a second commander was before known to the person to whom the commission was directed, and tluxe who were required to obey him as such. He was no supernu- merary or occasional officer, as contended for : his pay accrued, and he was entitled to his allotted number i>i servants as well when Captain Hunter was on board as when he was absent. This therefore is not like the ca.se of /,////// r 75 j - l Ie con " L. Jrarkinsoji, drew bills of exchange on Messrs. Atherton and signer, after Astleu, of Liverpool, the merchants of /ft accept (not having funds in their hands of the drawer Heath}; JJjJj /Jli^ and the same were returned. The share of Parkinson in these subject to ilic bills was afterwards paid; and on the 18th Jit///, 1800, Heath r.^pondent shipped in Jamaica, on board the Hero, Captain 'Light foot, for * tllc con - . , . , .. * ' . signer for his .Liverpool, twenty-five tierces of sugar, to be delivered to the V r ener ai ba- orderofthe shipper, for which Captain f,i net proc c-ds of [f^ckliew at " the within-mentioned twentv-tive tierces of suo-ar lo L. Parkin- the time that , ,. , -i . the pohrv \vas. "son, or his order, you \\ill in that ease Deliver the said o crtV(Mcll t - or " the said Messrs. Athei Ion and Jtllry, otherwise you are to deli- another per "ver them to the order of the said /.. !'ai'k/ii.>n ; value receive'.! " of him mJfinuticn. (Dated) '2'MJn/i/ 1H!(>, (and >i^ned) ll'i/fi will; and relied on another circumstance, namely, the provision for payment of debts by charging the real estate, which would be defeated by setting aside the will, the personality not being sufficient for that purpose. The question will be, Whether na- tural love and affection for a wife and children, or the justice due to creditors, be the more weighty and worthy consideration .' o / fc/ (n) 29 Car. C. c. 3. s. 6. (//) Term 7 535 CASES IN TRINITY TERM 1802. KENEBEL against SciiAFTON. [ 536 ] This circumstance has not occurred to be considered in the prior cases of implied revocations of this sort ; and though natural love and affection be a sufficient consideration in law, yet at least it is vpluntary, and not to be preferred to creditors, who are purchasers for a valuable consideration. And here thjere is less reason for presuming an intention in the testator, either co- existent with or subsequent to the time of making his will, that the just provision for his creditors should be annulled by the subsequent marriage and birth of children, whom he had, by the same instrument, provided for. R. Smith, contra. It is admitted that n subsequent marriage and the birth of a child amount in lav," to a revocation of a prior will, whether such revocation be founded on a presumed altera- tion of intention in the testator, or on a tacit condition annexed to the will at the time of making it, as was said in Doev. Lan- cashire (a}. Two questions then arise: 1. Whether any cir- cumstances exist in this case to rebut the presumption of an in- tention to revoke ? 2. Whether such extrinsic circumstances as are mentioned, can be received in evidence at all? 1. The pro- vision in the will for the same person who was afterwards his wife, and the children whom he might afterwards, accidentally, have by her, cannot do away the effect of the tacit condition of revocation annexed by law to his subsequent marriage and the birth of a legitimate child ; because, at the time of making the will, he did not contemplate the objects in the legal relation in which they afterwards stood to him. Yovt Pandect, lib. 28. tit. 2. s. 2. Suppose one by will made immediate provision for several, at that tune most nearly connected with him, and by a remote limitation, also provided for a feme and such children as she mio-ht have, and he afterwards married her, the possibility of such provision would not satisfy the, presumption or tacit con- dition of law that his will should be revoked. Besides, it is clear that the children intended by him in his will, were natural chil- dren ; and the law will not take cognizance of those as of legi- timate children. Bastards are excluded from succession. The law will not raise an use in favour of them under a covenant to stand seised to uses (//). Courts of equity, proceeding on the same distinction, will supply the want of a surrender of a copy- () 5 Term fti;>. 58. (/>) ll'orselcy's case, Dy. 571. t Mr. Hargrave in a note to Co. Lilt. ll' r. 79. S. C. and other cases collected by hold,. IN THE FORTY-SECOND YEAH OF GEORGE III. 536 hold, to make good a defective will ov conveyance in favour of a 1802. legitimate, but not of a natural child (a). So a child born before marriage was holden (/;) not entitled to share with other chil- ' ' dren born after the marriage of the same parents, under a devise SCKAFTON. to children generally. Next, the charge on the real estate for payment of debts can make no difference; for the question is not, what the testator intended, or ouo-ht to have intended, or o what hardship or injustice may accidentally be worked in a par- ticular case; but the revocation is a consequence of law, operat- [ 537 ] ing upon the events which have happened ; upon the presumption that no man would leave his vvife.and children without provision. But considering the revocation on the ground of intention, the inclination to provide for creditors is not so strong as for chil- dren. Besides, it does not follow that though a man intended to revoke his will, he thereby determined not to pay his debts ; for he might intend to do that in his lifetime, or bv another will. O .' At any rate this would only apply to simple contract creditors, who may be considered as guilty of laches, in not recovering their debts, or getting security for them. lie also adverted to the evidence of intent, to be collected from the particular decla- rations, on which he commented; and observed, that it might be as w r ell contended to be sufficient if the testator had left a written paper unattested, expressing that he had originally made his will, without adverting to his subsequent marriage, &c. which would revoke it; but that having found that the provisions con- tained in it were equally convenient to his then altered state, lie thereby declared, that his will should be revived as applicable to such state. But that would directly militate against the letter of the statute of frauds and the received construction of it. 2dly, This beino; the case of a revocation, by presumption of law, can- not be rebutted by evidence of a particular intent that the will should stand. Many cases of implied revocations must happen, which cannot go upon the ground of a subsequent hiiuihoti in the testator to revoke; as where the pregnancy of the wife is unknown to the husband before his death : or if known, and the intention to revoke then attaching, and continuing to his deatii. the will could not be set up ao-ain by a miscarriage, subsequent to the husband's death. These implied revocations then can [ (n) rur/ttikir v. Robinson, 1 E ;. Cas. Abr. I'.'J, reco;,'iii/C(l in Tudor v. stu.<'i, 2 Ves. a'i'J. (b) Cartwrifht v. Vnwdnj, ."> fVs. Jim. 53' 1 . onlv 538 CASES IN TRINITY TERM 1802. only stand consistently with the statute of frauds, on the groUnct , stated in Doe v. Lancashire, namely, of a tacit condition an- against nexed to the Avill at the time of its execution, and not on the SCHAFTOX. presumption of a subsequent intention to revoke, which might with more reason be rebutted by evidence of a contrary inten- tion. Putting the doctrine of such implied revocations on the ground of such ; -cit condition presumed by law, gets rid of much of the difficulty arising upon the statute of frauds 5 because the facts of marriage and the birth of a child being notorious, cannot be fabricated by means of frauds and perjuries, which the statute meant to guard against : but all these mischiefs will be let in again, if recourse can be had to evidence of declarations, in order to rebut the legal presumption. The mere existence of the will does not aid the presumption arising from such conver- sations, otherwise it would be evidence of a republication, which it is not(f/); though that would be a less dangerous innovation on the principle of the statute of frauds. In several cases the opinions have fluctuated, whether parol evidence may be ad- mitted to rebut an implied revocation; Lord C. J. Eyre in Good- title v. Oticat/ (l>) thought they might; but Lord Alvanley, when Master of the Rolls, thought otherwise in Gibbons v. Caunt (c) ; and so did the Lord Chancellor in this very cause (d). It is true that in the report of Lugg v. Lit in Lord Raymond (e), such [ 539 ] evidence is said to be admissible ; but no notice is taken of that in the report of the .same case in SalkeH(f); and at any rate it was extrajudicial ; for the will was ultimately revoked, The only express authority, therefore, for the reception of such evidence, is that of Brady \ . Cubitt (), which has been since questioned in the instances beforementioned : and there was another deci- sive ground for that determination, independent of the admissi- bility of this sort of evidence, namely, that the will, if revoked, was set up again by the subsequent codicil properly executed, which referred to it. Barrow, in reply, uro-ed, that either the case was altogether within or beside the statute of frauds: if within it, the will (ft) He referred to ^chcrleii and I'crnon, and the cases there cited (fowl. Rep. 581, and other books) as establishing this against Hall v. Dunc/i, 1 Vcrn. 329, and other cases where paiol declarations were received as evidence of republication. (b) 2 //. Bine. 522. (c) 4 1'es. Jim. 84C>. (d) 5 Vex. Jun. 661. (.<) 1 Ld. Ray. -ill. (/; Sulk. 5 allowed to apply (and upon this sub- ject particularly, alter what was said by Lord Mfiiitfieid in Brady v. Cubitt, Dougl. 39.) only in cases where the wife and children, the new objects of duty, are wholly unprovided for, and where there is an entire disposition of the whole estate to their exclusion and prejudice. This, however, cannot be said to be the case where the same persons who after the making of the will stand in the legal relation of wife and children, were before specifically contemplated and provided for by the testator, though under a different character and denomination. There is not, therefore, in this case, that total change in the situation of the family, and that total destitution of provision for those who ought to be the objects of the testator's care and protection (although the provision be made for them under a different cha- racter), which can vacate the will on the ground of a supposed tacit condition, that it should be void upon a total change in the 8 situation IN THE FORTY-SECOND YEAR OF GEORGE III. 542 situation of the testator's family, and a total want nf provision 1802. for the family so newly circumstanced; or upon the "round of a presumed intention to revoke, according to any rides of law hitherto recognized on this subject. Indeed, it is not very easy to comprehend the legal effect of an intention to revoke, unless manifested and carried into execution by some act in pats, it is certainly true, that the law is not as favourable to bastards, not in esse, as it is to legitimate children. In a variety of cases it will not raise an use in their favour, in consideration of blood, upon a covenant to stand seised to uses; nor will the v.mt of a surrender of copyhold to the use of a will be supplied in favour of a natural child : nor can such child properly take by the de- scription of issue. And in other cases also, from uncertainty in the terms of description of and reference to its parents, a bastard is prevented from taking at all. As however in this case the children were, at the time when the will speaks, viz. at the death of the testator, born and legitimate, no question of defective de- scription arising out of the words, "in cane I shall hare any child "or children bi/ her" can be made; nor was the policy of the law, respecting marriage, eventually contravened in this case (upon which point, the case in Cro. Eli~. 510. proceeds); in- asmuch as the children who now claim under the will were not unborn bastards, but born and legitimate at the death of the testator. After what has been said already, and that the will in question is not under these circumstances vacated, on the ground of any tacit condition annexed to the will at the time r 543 ] of its making, nor on the ground of any intention to revoke, to be presumed in favour of a wife and child or children un- provided for (the fact upon which such presumption could bo formed not existing in the present case), it becomes unnecessary to consider whether the revocation t any E E 2 conw/uence; 543 CASES IN TRINITY TERM 1802. consequence; for that he had consulted a professional gentkman -rr ~~~~. w ^' h a d tM hi Mat the will as it then stood, was a good and aqainst sufficient will; and observed, that he hud thereby amply provided SCKAITON. for her and her children. Upon the whole therefore, if there be any question which at this time of day can be agitated with effect, whether implied revocations of wills of land can be allowed at all consistently with the statute of frauds, our deci- sion leaves even that question untouched; inasmuch as we sustain, the will as yet in force, and unrevoked by any implica- tion whatsoever. Neither does our decision clash with the doc- trine of a tacit condition annexed to the will, viz. that it should be void in the event of a marriage and children without [ 544 ] provision; inasmuch as that condition, viz. of marriage and of the birth of children unprovided for, has not taken effect in this instance. And the question, How far implied revocations are competent to be rebutted by the parol declarations of the testa- tor? is also left untouched, for the reason before given, There- fore, without impugning any one decision upon the subject, and in conformity with them all, upon whatever various grounds they may have proceeded, we feel ourselves warranted in considering this will, made in favour of those who at the time of the testator's death had become his wife and children, as in full force, and not revoked under the circumstances stated in this case. Postea to the Plaintiff. Saturday, B A K C I. A V against C <> I" M \ S . July ,c). The profits of rTlHIS W as an action on a policy of insurance, dated the 27th a carjjo em- ,, , , , . . v ,, ployed in i rail e " " August 1/99, and effected by the plaintiff, as agent for and on thp coast. on account of one Richard II V//.v, on the ship Jonah, at and from ot Africa, ;;re ,, ,-ue on the O'lh of September, together with the said thirty slave>, and the remain- der of her cargo, and a number of J'lngtts/i prisoners; hut was soon after deserted by the said George lien-ill and par! of her crew; and her original captain refusing to lake the charge of her, Captain (Irai/, the then acting governor of that .settlement, t>*ave the command thereof to one // filler Slotl, who accordingly O took possession thereof. That by the direction of the- >aid i 54f, ? II alter Sloll, the thirty slaves were unshipped and sent to liancc Is/and, where they were afterwards sold, and the remainder of the cargo was landed and sold at Sierra .Leone, and produced the: sum of 4GA Gs. Gd. Tliat tlie ^.aid brig afterwards departed for Jttarbadocs*. 546 CASES IN TRINITY TERM 1802. Barbadoes, with prisoners on board, where she arrived, and where the Court of Admiralty adjudged to the said Walter ao-ainst Scott and the then crew of the said brig, one full eighth part COUSINS, of the net proceeds thereof, and of the cargo on board her at the time she was taken possession of as aforesid. The question for the opinion of the Court is, Whether the plaintiff is entitled to recover? This case was very fully argued first in Easter Term, 41 Geo. 3. by J. B. Warren for the plaintiff, and Giles for the defendant; and again in last Easter Term, by Park for the plaintiff, and Adam for the defendant: but as the principal arguments and authorities were noticed by the Court in their judgement, which they took time to consider of till this Term, it is unnecessary to state them in another form. LAWRENCE, J. (in the absence of Grose, J. who was indis- posed) now delivered the opinions of Grose and Le Blanc, Jus- tices, and his own. The case states, that the insured shipped on board the ship Jonah a cargo of goods, to be carried on a trading voyage: so that it appears that he had an interest in the profits to arise from a cargo, which was liable to be affected by the perils insured against. And the question is, If, on an insurance made on the profits to arise from such cargo, the plaintiff' can recover? As insurance is a contract of indemnity, it cannot be said to be ex- [ 547 ] tended beyond what the design of such species of contract will embrace, if it be applied to protect men from those losses and disadvantages which, but for the perils insured against, the as- sured would not suli'er: and in every maritime adventure the adventurer is liable to be deprived not only of the thing imme- diately subjected to the perils insured ao-ainst, but also of the advantages to arise from the arrival of those things at their des- tined port. If they do not arrive, his loss in such case is not merely that of his goods or other things exposed to the perils of navigation, but of the benefits which, were his money employed in an undertaking not subject to the perils, he might obtain, without more risk than the capital itself would be liable to: and if, when the capital is subject to the risks of maritime commerce, it be allowable for the merchant to protect that by insuring it, why may he not protect those advantages he is in danger of losing by their being subjected to the same risks I It is surely not an improper encouragement of trade to provide that merchants, in case IN THE FORTY-SECOND YEAR OF GEORGE III. 'A7 BARCLAY against Cousixs. case of adverse fortune, should not only not lose the principal 1802. adventure, but that that principal should not, in consequence of such bad fortune, be totally unproductive; and that men of small fortunes should be encouraged to engage in commerce, by their having- the means of preserving their capitals entire, which would continually be lessened by the ordinary expences of living, if there were no means of replacing that expenditure, in case the returns of their adventures should fail. Where a capi- tal is employed subject to such risks, in case of loss, the party is a sufferer by not having used his money in a way which might, with a moral certainty, have made a return not only of his principal but of profit: and it is but playing with words to say that, in such case, there is no loss, because there is no posses- [ 548 ] sion; and that it is but a disappointment. Foreign writers upon insurance, whose doctrines form the greatest part of our law on this subject, certainly do not treat of insurance on profits as a matter inconsistent with the true nature and design of such a contract; and where it is spoken of by them as a species of in- surance which cannot be made, this latter doctrine will be found to be referable to the positive institutions of different nations, who have thought it wise to prohibit it. Roccns, an Italian ju- rist, inquiring how goods that are lost are to be valued, has in his Xotabilia t COUSINS. *[ 549 ] [ 550 1 And Strucca, another Italian lawyer, agrees with Santerna in his Gloss, No. 6. In * France such assurances were unlawful; but that depends, according to Val'm, on the ordinance of the marine, which also forbids insurance upon freight; and the rea- son given by J a/in for making these ordinances, with respect to the one and the other, is the same; so in Holland, it appears from Bt/nkershoek's Qusestiones Juris Privati, book 4, c. 5, that such insurances cannot be legally made there ; but that is by the positive laws of that country ; notwithstanding which, the prac- tice has so generally obtained to insure expected profits, as that in a case he there states, the majority of the Judges of the Court where the question arose, determined in favour of the assured; and those who opposed that decision, rested their opinions on the positive laws of the country, and not on such contracts being contrary to the nature of insurance. In this country, there is no law forbidding such insurance ; unless it could be shewn that the insurer had no interest in the profits, or that from its nature it must be a mere wager, so as to bring the case within the stat. 19 (ieo. 2.; and that they are not considered as contracts incon- sistent with the general nature of insurance is proved, by the instance put of an insurance on freight ; which, as was very truly argued at the bar, differs only from the case now before us in the same degree as a return of capital vested in shipping differs from a return of capital vested in merchandise : and by the cases of Grant v. Parkinson, in Marshall, 111, and Park. 2(J7, which was an insurance on the profits of a cargo of molasses ; and the case of llenrickson and Walker, and Uenrickson and Margetson, Mich. 1776 (//). The authority of (Irani and Parkinson, as applied () Mr. Justice Lawrence read Hie following note of that case at the time: Henrickson u. Margetson, and Hie same against Walker. These were two actions on the same policy, against two different underwriters. It was a po- licy of insurance at and from Bordeaux to Hamburgh, on imuginiiry profit. The declaration stated the policy 14th December, 17?.'), on the ship Thomas, of Bremen, on indigo valued at !),(;()()/.; under which policy was a memo- randum, viz. the following is on im^ and /.r /;/,/.-, .Fi ls . tices, and his own; Lord I'Jicnhoron^h, ('. .1. bavin" been engaged as counsel in the cause when it was armied tin- t\\o first times. After stating tlie pleadings as before SH forth, the question [ .WJ | is, Whether, under the circumstances, a general pn.l.ate oti-ht to be granted of the will of .Mrs. /Y^/rc/ and if not. NVh, - ther there ought to be a writ of prohibition diivctd lo thr Judge of the Prerogative Court in which the suit is pending ' In this case, property of three different descriptions may lie in question: 1st, That which was the property of the husband. llichard Pcarce, proprio jure ; -~dly. That which pass, ,1 hv the will of William Sfevcus; ])art of which may have b.-,-u re- duced into possession in the lifetime of Ricl/nrd /'IV//TC: odly. Property which Sarah Pearce the wife, may bv possibility have acquired subsequent to her husband's death. Over the first she could have no power of disposition, but what might be acquired by her husband's assent, (her tin- second she had a power, without her husband's assent, to tiansmtt by will what was not reduced into possession, to some oth.r. to whom it would pass by right of representation to In r hrotln the former owner ; ljut that which uas i-educed into po.s must pass as the first description of property: which \\.; husband's proprio fare. r fhis doctrni' 1 i- to be found m > burnc, S^; and in what Lord 'l'/ntr/<,:r says in linden, "2 Brown, 513. Over the third description of prop-i could have no j>ower of disposiiion P - power of transmission, the question, as to the third \ a feint c as to which Swinburne says, part 'J<1, c. !'. nuniero .->. 1 i i the wife do overlive t!ie husband, yet the t< - ino- the marriage is inM oooj : the reaso:i i 556 CASES IN TRINITY TERM 1802. because she was intestable at the time of the will making. " And according* to 4 Co. 61. b. " the law of England will not against allow of any custom that a feme covert may make any devise; WILKINSON for the presumption that the law has, that it will be made by *f 557 ] the constraint of the husband:" and if this reason be applied to testaments, she can make none, unless it be by the consent of the husband, and to his prejudice; in which case a restraint cannot be presumed : and according to the case referred to in Brown, the general rule is, that a feme covert cannot make a will without the consent of her husband, but of things in outre droit; and the argument of one of the learned Civilians, who assisted us by the information he gave, by which he would dis- tinguish the next of kin from the husband, scil. that they have no rights but in cases of intestacy, does not hold through- / C? out; for as to things in action, the husband can only claim as the next of kin does, scil. as the administrator of the wife. If then a feme covert cannot make a will without her husband's assent, except of things she has as executrix, and if the effect of a general probate would in this case operate on goods of the third description, /. e. on goods acquired after the husband's death, such general probate should not be granted ; and though, generally speaking, the Ecclesiastical Court has exclusive juris- diction over the wills of all persons dying in a testable state, yet where, on the pleadings, the object of the Ecclesiastical Court must be taken to be the establishment of the will of a person not in a testable state at the time of making it, the question is to be considered just as if she had continued in such state to her death; for the object of the Court is to give effect to -a will, which, by the general rules of law, can have no effect. Formerly, where the will was not only of per- sonalty, but also of lands, prohibition used to be granted quoad [ 558 ] the lands. 2 Roll. Abr. 315. b. 10. But that is not so done now, as the probate as to the lands is no evidence either way, being a proceeding corat/t non judice. Safk. 552. So that where the matter is partly within their jurisdiction and partly not, a prohibition may be granted as to that which is not, if it will answer any purpose. How thtn does this case stand? As to the will, quoad the husband's effects, and those of William Stevens, a limited probate or administration cum scripto atmexo may be granted; but not as to the effects acquired subsequent to the husband's death : and if the Ecclesiastical Court should grant IN THE FoRTY-SKCOM) YllAH OF GEORGE III. 558 grant it, it will not be in vain, as bein^ upon the face of it a ItfO'J. proceeding coram nonjudke, as in the case of kinds, and there- fore the prohibition not unnecessary. And as to the argument ' that the Prerogative Court will not grant probate further tlian WILKIXSOX they ought to do, that would apply against grantmi; prohibi- tions in all cases before sentence; but the rule is, if it appeal- by the libel that the matter be not, within the jurisdiction of the Spiritual Court, a prohibition lies after sentence, or be- fore : and where the matter for prohibition appears on the face of the libel, it need not be pleaded. Salh. 551. In this ca>e, on the face of the proceedings, it appears that the Prerogative Court is applied to, to grant a probate, which will uive to a will, made by a woman during her coverture, the etleet of u will made during her widowhood and discovertnre. And it is not impossible but that the Ecclesiastical Court may in tins case grant such probate: lor, by the civil law. a feme co\-< -rt mio'ht make a will, and so she mi^ht bv the canon law. l.nul- o ivood, 173. But as Airs. Pcnrrc, besides what -die cmiM di.-- pose of by the will of her husband, to which the limited pro- bate is confined, had a power to make a testament, and ap- point an executor of the goods she had as executrix, to which that probate does not extend, the probate to be granted in this case may be more extensive than what the p!aintili' insist it should be. But of that it will be to be jini^-d by the prop, r Court, when such further limited probate is applied for. O The KiN(r a^niiiit the Inhabitants of K i R m o i: n. |N an appeal against an order of t\\ o justices, for the n moval | MMI)C ratp . of Margaret, the wife of John Jt-a/e. and h-r thr. e did-. dren, from the parish of kirdj'ord, in the county of Su-f >"/ The respondents, in order to establish a settlement ot ., Jeale. in RipU-u, called one //. /./;/''. wlio \\as tin- rateable tenement in Kii-Jj'unl : (nit ir//<> iru* not rntn! in t last poor-book made for that parish. n..r in a the 19th of February 18Ul. It was admitt.-.l that /.// out of the several rates, for the express purpo - >f (| u '.i him to be a witness in any apjical \\lnch mi-'ht i specting the settlement oi'Jat/e or his family 559 CASES IN TRINITY TERM The KING against The Inhabi- tants of KlRDrOKD 1802. had then become an object of litigation ; the Sessions rejecting! the testimony of Lnjfa.s incompetent, and the respondents not being able to prove their case in any other manner than by his testimony, the order was quashed, subject to the opinion of this Court, Whether upon the facts above stated, -L/j^was or was not a competent witness ? Hose and Courthope, in support of the order of Sessions, con- tended, That the witness L//^"was incompetent, on the ground of having an interest in the question before the Court; and dis- tinguished this case from that of R. v. Prosser (a), which was [ 560 ] on a question of rating; where the appellants themselves ob- jected to the rate, because they were omitted ; and called a wit- ness, who had himself rateable property in the parish, but was not rated, in order to prove their own rateability. Buller, J. observed, That though the appellants succeeded, it would not follow that the witness ought to be rated : and there too, if the appellants thought proper to wave the objection to the witness's interest, no other party had any right to object to him. But here the decision of the question involves in it a burden on the parish as permanent as the witness's interest; and therefore he is eventually interested in the consequences, as he may be put on the next rate, while the same burthen subsists. It is an ad- ditional reason for rejecting the witness's testimony, that the parishioners, by whom he was called, have intentionally omitted him in the rate, in fraud of the statute 43 -LY/z.; and though in the case of the Sad/crS Company v. Jones (u), it is said, that three of the coin-pony wore disfranchised, in order to o-ive evi- dence, yet it is noted, that they declared upon the voir dire, that they had no assurance of being received again : and in Brown v. The Corporation of London (r). Lord Holt, under similar cir- cumstances, rejected the witness, because the judgment of dis- franchisement, being erroneous for want of a summons, might be avoided. Here then, no assurance by the parishioners could prevent the witness from being put on the rate, and the omission may be supplied on appeal; and here the interest is not de- stroyed, but merely suspended. In actions on the statute of Hue and Cry, the Legislature found it necessary to make the hundredors competent witnesses, on account of their liability to a future rate. () 4 Term Rep, 17. (6) G Mod. 166. 11 Mod. 22,5. Gar row IN THE FORTY-SECOND YEAR OK CiEORf;K III. 5;] Garrow, contra, was stopped by the Court. 18<>?. Lord ELLENBOROUGH.C. J. In order to disqualify a witness .,-, ~ on the score of interest, it must be an actual existing interest if the time, and not merely one that is expectant. The rule M u.-l! Tin- In'ubi- laid down in Rex v. Prossi'r, and in other ease*, particularly DIM- '-'"^ "f mentioned by Mr. Justice /JM // tcmjiorc, he is not interested: and the pound on \\hich Lord Unit re- jected the witness in the case alluded to wa>, because the judg- ment of disfranchisemeiit was void, for want of a pre\ iou- >um- mons to the corporator: and therefore he had not be,-n di-frai:- chised. Here the witness could not be rejected on th- ground of an expectant interest. LAWRENCE, .). This is attempted to lie di-tm_ the case of Rci \. r/o.-.^cr. because th'-jv. n in l\, i The same point, whii'h w;,s ruled in tl Mr. Baron l>nr/(ino ruled by case of Deacon \. Cook, 'l\t/t///"i> Sornrj. A>- the question \\~as upon the boundarit He held that, a parishioner. a< tua pctent witness to extend the I)'.;!]!' 1 he admitted such as were only h.d Li: Bi.ANc. .'. declared hims ( li'o referred to Lord kcni/on'^ opiuio:i in !!<> point; and thai there was no distinc bility of such a witness ou quest () j Tfrm R,p. ( ; or. VOL. II. l ; ' 562 CASES IN TRINITY TERM 1802. tiement. That by taking the witness off the rate, his immediate ,JM 77~, interest was taken away ; and that if there were any impropriety ao-ainst i n the conduct of the parish in that respect, however it might go The Inhabi- to the witness's credit, it could not make him incompetent. tantsot Case remanded to the Sessions to be reheard. KIRDJORD. Ex parte Sir ROBERT MACKRETH, Knt. Saturday, ' " ^T^HIS was an application by Sir Robert Slackreth, to set aside memorial of an annuity for a defect under the stat. 17 Geo. 3. c. 26. s. I. in not having distinctly stated in the memorial registered, the names of the several witness to the several instruments for se- curing the annuity. The rule in form called upon Mrs. Eliza- beth Davenport to shew cause why the bond, warrant of attor- ney, judgment, and indenture in the memorial mentioned, should not be set aside. The facts appeared to be these : In April 1783, Sir C. F. Ratclije, for a valuable consideration, granted an annuity of 300 /. to W. Sampson, for the life of Lady Ratcliffe, with her concurrence, which was in part secured upon a sum of 10,000/. three per cent, reduced stock ; in which she had a life interest. This annuity was assigned by Sampson se- veral years before his death, which was in 1796, to Eade, and by Eade to Mr. Davenport; whose widow, the present claimant, derived title to it from him. Between the time of granting the Ilr.SSPQ 1 and O O therefore if it annuity and the present application, the grantor and grantee. Mr. Davenport, Mr. Constable, the grantee's attorney who pre- pared the deeds, and Mr. Poirell, one of the witnesses to the deeds, were all dead. Sir C. F. Ratcliffe having a reversionary interest in part of the stock after his wife's death, in 1795 sold the same to Sir R. Mackreth; and soon after a suit was insti- tuted in the Court of Exchequer by Sir Robert against Sir Charles and Lady RalcJrffe and their trustees, and Mrs. Daven- port: in which it was decreed (in 1797) that the surviving trus- tee should transfer the principal stork to Sir Robert, and certain other persons, in trust for the several subsisting interests; and it was then agreed between all the parties, that the trustees should pay over the arrears of the annuity to Mrs. Davenport; and empower her banker to receive the growing dividends for her use: and the annuity was accordingly paid, without objec- be dead, will set aside the warrant of attorney, the merits of such objection not depending on testimony lost by the delay. tion, the statute 17 Gto. 3. c. 26, stated, that " the bond, war- rant of attor- ney, inden- ture, and deed poll (given to se- cure the an- nuity) were witnessed by four per- sons," that must be taken to mean that cuch of them were so wit- the answer on oatli of the assignee of the grantee, that three of the instru- ments were attested by two persons only, the Court on ap- plication, though at the [ 564 ] distance of near 20 years, and after the principal par- tics and wit- nesses to the transaction IN THE FORTY-SECOND YEAR OF GEORGE Iff. [fy{ tion, till the year 1800. In 1797, it was agreed between Sir Iftfr2. R< Mackreth and Mrs. Davenport, that she should release part - of Sir C. F. Ratctiffea estate which Sir Robert hud aUo pun-has- M A * , ed, and on which she had a prior charge in respect of the an- nuity, he in return confirming the annuity, and '.jiving hi* own bond in addition, as a further security for it ; which was uccurd- inglydone; and such further security was memoriali/.ed. In 1801 Sir Robert Mackreth filed a bill in Chancery against .Mrs. Davenport and others, to enforce a redemption of the annuity, according to the terms of the securities, as insisted on by bun to that effect; to which she put in her answer (alluded to in part in the affidavit of Sir Robert Mnckrel/t aftermentioned); pend- ing which suit Lady RalclifJ'e died ; and then the present ap- plication was made to this Court upon Sir Robert's atlid.mt. stating, that at the time of granting the annuity, the Lirantor executed a bond, and a warrant of allot net/ to confess judg- ment, and also a certain indenture, assigning the dividends of the said 10.000/. stock, and a deed poll or letter of attorn* v. em- powering the grantee, IV. Sampson, to receive such di\ idends, all dated the 29th of April 1783. That in the im mortal of the an- nuity it is stated, that "the said bond, warrant of attorney, m- " denture, and deed poll, are witnessed by ./. ./. /We//, and ./. " Bowles, R. Pitches and 7'. t '//>/,//;/<. of," &<. That Mr-. Da- venport, in her answer upon oath, put in to a bill tiled a^am-t her and others by the deponent, admitted that the said bond warrant of attorney, and indenture were in her cust.>d\ further states as follows: "That the names of the sub-crib " witnesses to the said bond, warrant of attorney, and uid- ntun " are J . Powell and ./. />W/(-', <>t, ' &c. The objection ultimately relied on (a^. was. that it mi taken on the face of the memorial in mentioned, as given for securi by the four persons whose naim whereas it appeared by the admission of Mrs. D,n ,-/// on oath, that three of the instruments w.-n- onh two persons. (jarroic and Rast shewed cause a-; to the Court's lending their aid to so () Other objections were started, which, with tlit- p.uu which they were founded, and the answers given to them, ;n opinion of the Court was confined to tins point. 1- K > 665 CASES IN TRINITY TERM 1802. distance of above nineteen years, and after all the principal par-* ties and witnesses were dead. These considerations have weighed MACKRETH. w ^h the Court in many cases, to refuse the inquiry prayed for within a less period ; as in Pool v. Cabanes (a), and Ex parte Maxwell (b) : and though no precise limitation of time has been laid down in this respect, yet Lord Keni/on, in the latter case, hinted a strong opinion that all objections dekors the memorial should be brought forward within six years, the usual period of limitation for personal actions, at least without strong reasons to the contrary. Now here the objection is not apparent upon the face of the memorial ; but is brought forward by affidavit. [ 566 ] Besides, according to several cases (c), as the party applying might have brought forward the same objection, if any, in the suit in the Exchequer, in 1795, and in the bill in Chancery, in 1801, in both which the validity of this annuity was in question, he is now concluded, the matter having passed in rem judicatam. There is also an additional reason for not hearing any objection to the annuity from the present applicant, because he has paid no consideration for the fund out of which the annuity is pay- able, having purchased the reversion subject to this charge: and therefore he is a mere volunteer without any merits ; and as the representatives of Sir C, ./'. Ratcliffe are not before the Court, and make no complaint, it is not competent for any other to do so. The Court said it was another question, Whether, if this party succeeded in setting -aside the annuity, he would not be holden to be a trustee for the representatives of the Ralclijj'e family, during the life of Lady R.\ which would hereafter be settled between him and them, though they reprobated the present application very strongly. 2dly, As to the legal objection to the memorial, there are four instruments stated therein to have been executed for securing the annuity, which are alleged generally to have been witnessed by four persons ; and it appears that three of these were attested by two of the witnesses named ; but non coits/dl that the other, which is not in the possession of Mrs. Davenport, was not at- tested by the other two ; and then the memorial, which must be taken reddendo siiiati/a xiiigit/is, will be accurate. The alle^a- () 8 Term Ucj>. ,'328. (b) Jnte, 85. (c) Withers v. Ifnullcij, 7 Term Rep. 510. Grcnlheud v. B/WH/M/, ib. 4.05; and Schumanv. Weatherhead, ante, i vol. 557. tion ]N THE FOTITY-SKCOND Yl.AU OF GEORCJK III. tion is not that each of the instruments was attested by tho four witnesses, or as in Hurt v. Lovrlm-e (n), that all were so at- tested. n i ^- / / Jbrskine, irwus, and Dampier, contra, relied on the last-men- tioned case as decisive of the objection taken; and >aid that tin- word cr// was as fully understood in the allegation, that the four instruments by name were witnessed by the four persons, as if it hud been expressed. They admitted that, at this distance of time, the Court would probably not have entered into any ob- jection to the merits of the annuitv, which required to be- made out by affidavits, and which those who are now dead nnVht have explained; but the fact on which the present objection rested, could not be explained away, and was admitted by .Mrs. Darcn- port on her oath ; therefore, there could not be ^reater certainty of the fact, if it had appeared on the lace of the memorial it-elf. Lord ELLF.XliOROl <;n, ('. .1. I feel as much reluctance as a Jud'j;e ou"ht to do, in >,*\\ \i\^ way to the objection which has been made ; but the Act of Parliament is imperative, and \\lnUt. it remains on the statute-book, \ve nm-t ui\c it elfect. I'nder the circumstances of tins case, I would look at nothing tilinnilr the memorial which v. as to be established by t lie evidence of the party applying; but the objection to not stutinu the \\ itne-- the several insiruments. liislribulirv is made out by tiiat -'>rf -.f evidence which we ou ( j;ht not to resist, t.'iou^h it b fact. But for Mrs. I) answer as conclusive a^'.insl that sup[)osition, since have so stated it if the fact wen 1 so. LAWRENCE, .1. The Act of Pnrliaim nt lia- anv limitation of time within which application- must be made; but ihe C.uirl have said, that ih. \ tertian such applications after the di at'i o transaction, who c-ould ascertain Ihe truth nf tin objection does not depend upon anv te>tm have been u'lven by persons who tire de itself states, That the instruments for >. witnessed by four persons; and Mrs. Dm-cn^. answer, that three of them at least were on (() 6 7Vr/,/.'.y. iri. 568 1 802. If she had fallen into any mistake in that respect, it might easily have been corrected by the production of the deeds themselves. MACKRETH. The reason, therefore, of the limitation which the Court have adopted in regulating their discretion, does not apply to this [ 569 ] case. LE BLANC, J. I concur in the grounds stated for making the rule absolute, while I also join in reprobating the applica- tion. I am not aware of any decision where the Court have bound the party by lapse of time, unless where an answer might have been given to it at a former period, the opportunity of doing which was lost by the delay. That could not have hap- pened in this case. With respect to the ground of objection, the same point was under consideration ; and the opinion of the Court expressed on it in Hart v. Lovelace, although that case w r as somewhat different from this. Rule absolute for setting aside the warrant of attorney. The Court expressed a wish that, in future, the grounds of application, in cases of this description, should be stated in the, rule ; and afterwards they made the following RULE OF COURT. Trinity Term, 42 Geo. III. 1802. IT is ORDERED, That in future, where a rule to shew cause is obtained in this Court, for the purpose of setting aside an annuity or annuities, the several objections there- to, intended to be insisted upon by the counsel at the time of making such rule absolute, shall be stated in the said rule niai. Monday , July 5th. BARNARD against GOSTLING and Another N debt for certain penalties, the third count charged that the defendants not regarding the statutes in such case made, &c. . at, &,c. did in their own names as proctors of the Prero- The stat. 37 G. 3. c. 90. s. 26. requiring a proctor to take out a cer- ' tificate for practisin?, under a certain penalty, gives no action to a common informer for the recovery of it ; the 6th sect, of that Act incorporating the power of suing, cS;c. given by former statutes only referring to penalties in respect of duties created by prior sections of that Act. It seems that two proctors may be sued together for not obtaining and entering their certificates, and that one may be acquitted and the other convicted, gative IN THE FouTY-sF.roNn YK.MI OF GEORfJE III. gative Court, &c. and for, and in expectation of o-ain fee and 1802 reward m the said Court, &c. extract the probate of a certain n Will and codicil of one ./. A. deceased, without havin-r nl.Unned ** and entered any such certificate or certificates, as in and by the Gorrux statutes in such case made is directed, contrary to the form of the statutes, &c. whereby, and by force of the statutes, & c . the defendants then and there forfeited for their .aid last-mention- fd offence 501., &c. and an action hath accrued for the plaintiff. &c. A verdict was taken for the plaintiff on this, and on the 12th and loth counts, which were in a similar form, for other acts done by the defendants as proctors. The cause was tried at Guildhall, before Lc Illnnc, J. at thr Sittings in Jli/ari/ Term last, when a verdict was ^iven for the [ ^~ (j plaintiff on the third, twelfth, and fifteenth counts. A motion was made on a former day in arrest of judgment, and a rule nisi granted on these objections: 1. That tin- ix.t having- obtained and entered a certificate are two distinct of- fences under the stat. 25 (ieo. 3. c. 80. and 37 (,eo. 3. c. 9n. s. 27. and not chargeable as one. 2. That the offence, if entire, is several in its nature, and the defendants cannot be sued joint.li/ for the penalty. 3. That the stat . 37 C/Vo. 3. r. 90. >-. 30. creating the penalty, gives no such action as the present to a common informer; but the penalty can only be recovered bv information on the part of the crown. Erskine, Gibhs, and Espinasse, sliewed cause against the rule. As to the first objection, it is answered by the words of the Act ; the offence charged is not for not htirinx, nor for not entering the certificate when obtained, but for afi/i,^ r/> /<-(<:<, ar.d tin r t". . r . . the act of one in that character, was the act of both (ui, unit ^- one objected, and then it would have been matter ot di t. r.c> to him, and he mio-ht have been acquitted by the verdict, though the other were found guilty. Ilrinh/innit v. II /tilukcr rt nl. and Mustard v. Hancock and others a ). So tno may be con- victed in one penalty, though not severally, for the same act o ',". \ using a greyhound to kill game ( I. () Partridge v. Xinjlor, Cm. Fliz. 4RO. (!,) /?i..'/. \i. 1'n. IS' 1 , lii. r.-m cited as Hardman v. ll'Mlncre If >tl, Vid, po?t, ri? .>, note. (fl C:>th. .; (;' ''1>'-'-- - 571 CASES IN TRINITY TERM 1802. ao-ainst GOSTLING. [ 572 ] Mansfield said, " Where the offence is in its nature several, and " every person concerned may be separately guilty, there each " offender is separately liable to the penalty." In that case, three persons were convicted under one information, for ob- structing a custom-house officer; and each was holden sepa- rately liable to the penalty. It is true the statutes creating offences with respect to killing of game, have the words person or peisuH* ; but the determinations have not gone on that ground. 3. All the statutes in pari materia are to be construed together; and the stats. 39 &, 40 Geo. 3. c. 72. and 42 Geo. 3. c. . re- cite the stats. 25 Geo. 3. c. 80. and 37 Geo. 3. c. 90. and suppose that the same remedies are given for the recovery of the penalties created by each; and certainly an action might be maintained by a common informer for penalties under the 25 Geo. 3. c. 80. G arrow and Dampier in support of the rule. 1. The same person may be- guilty of an offence, both for acting as a proctor, without having obtained a certificate, and also for so acting without having entered it. One of these defendants may not have taken out, and the other may not have entered his certifi- cate : but here the plaintiff has joined the two offences which are separate. If this action were brought against one only, the informer could not entitle himself to recover, merely on proof of the party having acted as a proctor, without having done only one or the other of those things. The allegation also is, that O O ' the defendants did the act without having obtained and entered any such certificate or certificates; which leaves it uncertain for what offence, or whether against one or both the defendants, the plaintiff intends to proceed. 2. The action is in its nature several, and cannot be maintained against the two defendants jointly. It is not like the cases on the game laws, where two may concur in the same act: for here the omission to obtain his certificate by one cannot be the omission of the other. The existence of a partnership could not alter the case; for each partner is individually bound to takeout his certificate, and the taking it out by one alone would not protect the other: neither then can the omission to do so be made a joint act. But under the game-laws, if one be qualified, that will protect the other's acting in aid of him. 3. The stat. 37 Geo. 3. c. 90. (upon which this action must be sustained) K. 1. &: 2, says nothing about the certificates, .. 6, which applies the power of suing, &c. for penal- ties contained in any prior Acts then in force to that Act, is con- fined IN THE FORTY-SKCOND Yp.AU OF GEORGE III. .073 fined to such duties as are therein before mentioned; -.md no \fyr2. mention is made of attornies' certificates till the '2. 2. Hill'. N. 1'. ]<>, S. C.) T,v the stat. 1'-'. Ann. c. \ !. a. !. it is enact 'd, that if any per; >n not ipi ihficd by the laws of the realm so to do, shad keep or IKI> any -reyh.oi <10i;s haves, lure.iiers, tiinneils, or a:iy other t n-ine to kill an I . ; pauie, and shall be thereof convicted by a j-i-tiec of the |t>:uv, r. the p. i-on or persons so convicted shall forfeit the .-nmol'.V.; one half t,. the inf-.-nwr, and tile otlier half to the poor of tlie pan>h, to bel.-vied by d And by the stat. of 8 (.'to. I.e. H>. U is enacUd, that wlien-u-r . for any ort'ence, to be hereafter comn.itted ac:i;n>t any lau r.,u in h. better preservation of the rune, be liable to pay any peeiiniaiy p.: conviction before any justice of peace, it shall I. lau nil tor anx whatsoever, cither to proceed to recover tiie -aid penally b\ i conviction before a justice of peace, or to -ne I'T tli" -aim' or on the ease, bill, plaint, 01 information, in ,my "f I. record, wherein the plaintiff, it he recover, -hall h.ivy that all suits and actions to be bion:hi hy force of tin- Vvt, before the end of the next Term ,!''er .he orlVnee, eon... to be doubly prosecuted fer the same otVence. By virtue of these, statutes, a joint action of del the defendants, ll'hiiaLrr and eiuht others, to recover . forfeited by the said stat. ., Ann. The memoranduni on tl 673 CASES IN TRINITY TERM 1802. Trinity Term; and the declaration charging that before the exhibiting the bill, viz. on 2?th January, the defendants keep a lurcher to kill and destroy the HAHDYMAN game. S ainst The defendants pleaded nil debet. The Jury found as to six of the de- .VlIITAKEIl. f en( j antSj t | mt t |, ey do owe to tne plaintiffs/.; and as to the other three, that they owed nothing. Upon this there was a motion in arrest of judgment, and three objections made. 1. That it appears by the memorandum of the record that this suit was com- menced in Trinity Term : and the declaration states the offence to have been 574 1 committed on the 27th of January preceding; so that the action appears upon the record itself to have been commenced after the time limited by the Act of Parliament. 2. That this being an action of debt, is a joint action against all the de- fendants; and the Jury having discharged three of them, their verdict has de- stroyed the plaintiff's action. 3. That a joint action as thjs is, cannot for this matter be maintained against several. 2 Roll. Al)T. f)l, pi. 6. Rruokt* case: If four persons are indicted that they, et eorum uterque, used the trade of a plumber contra stat. 5 Eliz., it is not good : for that the user of one cannot be the user of another. S. P. East. 11 Gt'fl. 1. The King v. (Vest an, indictment against two, charging them jointly for exercising a trade, is bad. But the Court, after argument and consideration, over-ruled all the objec- tions. As to the 1st objection : though it do not appear that the bill was filed before of Trinity Term, yet non conslut but there was a prior commencement of the action by suing out a hititat ; which is said to be the truth of the case; and the suing out a lutitat is a sufficient commencement of the suit to save the limitation of time, in an action for a penalty forfeited by the statute: as was resolved by three Judges in the case of Cn/liford v.'Blawlford, Carth. y5'J.; and therefore this is not to be compared to the cases where the exhibiting the bill appears to be the commencement of the action, and the cause of action arises subsequent to the memorandum. As to the second objection, this action is not to be considered as founded on a contract, but on a tort, which is joint and several : and for this the case of Bustard v. Hancock, Curth. 361, is in point: where in an action of debt on the statute against several defendants for not setting out tithes, the Jury found for the plaintiff against one defendant only ; and as to the others, nil debcnt: and this very objection taken in arrest of judgment, but over- ruled; for that the action being founded on a tort, and not on a contract, not culpabilis would have been a good plea ; and therefore one of the defend- ants may be found guilty and the others acquitted, as in other actions upon torts. As to the third objection, there is no doubt but that the law allows the charging several persons as joint offenders: and in this case the statute itself lias considered several as capable of being joint offenders; for it says that if any person or persons shall keep lurchers and be thereof convicted, the person or persons so convicted shall forfeit />/. So that it gives one penalty of 5/. to be paid by the person or persons who act against the statute. The sta- tute IN THE FORTY-SECOND YEAR OF GEORGE III. 575 tute has therefore made it a joint offence in all persons concerned, and has 1802. made them all subject but to one forfeiture, and they are consequently with- in the rule of the common law punishable jointly. And therefore the case H.VHDYMAK in Roll. Abr. and the case of The King v. IVestun, will not govern the piescnt ; against for the penalty in the statute 5 Eliz. is laid upon every person offending; and WniTAKEK. therefore in the case of The Queen \. Atkinson, 2 Ld. Kuym. J'>43, and Sulk. 382, upon an objection of this kind taken to an indictment against two per- sons for extorting money as receivers of the land tax colore <>Jficii, and sup- ported by the above case in Roll. Abr., it was resolved to be an offence \vlticli two might join in, or it might be several, as in trespass: but otherwise of exercising a trade; for per Hull, the forfeitures are distinct, ami that which makes the crime is several, viz. the not having been apprentice. Hut that is not the case at present where the statute itself has made the offence joint: and the distinction is where the offences are made j'>int and \\heie not; as in the case of Partridge v. Nnijlor, Moor, 45o, in an action of debt on the stat. 1 and y Phil, and Mar. for impounding a distress in divers pounds brought auainst three, who heing found guilty, damages of 40*. a-piece were assessed and trebled by the Court to 6/. a-piece, and ~>i. a-piece forfeiture by the statute: and though the words of that statute are, that every person offending shall forfeit to the party srrieved .'tl. and treble damages ; yet upon error, the Court, after several arguments, reversed the first judgment; for that the words, "every person offending," are not to be referred to the sc- veralty of the persons, but of the offences: and as they all three offended in one joint fact, there ought to have been but one ;>/. forfeited ; and in the case of The Queen v. Kin;;, Hulk. UJv, where two were, convicted of deer-stealing, and judgment that each should forfeit .SO/. : and because this penalty is not in nature of a satisfaction to the party grieved but a piinMimcnt on the offender, and crimes are several though debts be joint, and then tore dis- tinguished it from the case of Partridge v. Xuylor. For which reason the ourt gave Judgment for the Plaintiff. STEVENSON against L\MJ;AKI>. July (>iii. THE plaintiff declared in covenant against the de(\ :; assignee of one Charles Di.ion, upon an indenture made on ^j"/,",,^ a .. the 1st of May 1/98, whereby the plaintiff for ihe considera- tions therein mentioned, demised to D/.ion and hi> ;> " j^ 1 ' ^.^ messuages and a warehouse therein described, to hold from the i-*t-ietw 25th of March then last past, for the term of thirty-one ye; at the yearly rent of Iu5/. by equal quarterly payments The declaration then set forth the covenant by J)ii/ou, &.c. because one John ~\\alker, before and at the time of making the said indenture, Sec. and from thence until, upon, and after the said 29th September 1801, was seised in fee of one undivided moiety of the said de- mised premises, and brought an ejectment in K. 7>. in JLH. 41 Geo. 3. against the present plaintiff for the recovery of the same; in which ejectment the demise was laid before any of the said 52 /. 10s. parcel of the rent aforesaid became due, Sec. and such proceedings were afterwards had, See.; that Walker ii\ Easier Term, 41 (>eo. 3, recovered judgment against the pre- sent plaintiff in the said ejectment, forthe said undivided moiety of the demised premises, and afterwards, viz. on 21st of April 1801, sued out a writ of habere facias possessionem upon the said judgment, under which the sheriff, before any part of the said 52/. 10s. parcel, Sec. became due, delivered possession, ike. to Walker, who thereupon entered into the said undivided moiety, See. and ejected the defendant, Sec. There was a similar plea, stating generally the paramount title of Walker, and his ejection of the defendant from one moiety of the demised pre- mises. To these there was a general demurrer and joinder. Marryat, in support of the demurrer, said, that as it was clear that an action of debt would lie in this case, and as the au- thorities established general (though lie admitted without dis- tinguishing between debt and coi'oiant) that in case of an evic- tion IN THE FORTY-SECOND YEAR OF GKORCE Ilf. . lion of the tenant from part of the lands leased, the rout lSU2. was apportionable, it lay on the defendant to point out the dis- tinction between debt and covenant in this case. And he cited Bro. Abr. tit. Apportionment, pi. 24. and 1 Rol. Abr. -J:i.>. ///. LAM BAUD. 16. Gilb. on Rents, 147. Corn's case (a), and U/V/^/c// v. Lon- lace (6); and contended that a breach nii-ht be assigned in covenant merely on the reddcndum. That supposing a con- tract not to be apportionable, yet there was no inconsistency in the plaintiff in this case; for he did not declare in cove- nant as for a moiety of the rent reserved, but for the \\hole; and it was not competent for the defendant to set up as a [ o7$ ] bar to the whole demand that which was only an answer to part of it. Lawes, contra, relied on the want of -any precedent of a reco- very in covenant under similar circumstances, as a strong argu- ment for shewing that the action was not maintainable. There is a material distinction between debt and covenant in this respect : for in the former the law raises a debt in aspect of the privity of estate, and therefore the amount is necessarily apportionable in respect of the quant urn of estate. But the latter is a personal contract, and cannot be apportioned. He referred to '.} I m. Abr. 5, as collecting all the cases. At any rate the plea i^ an answer to the breach a>signed. which is for the non-paymi nt of the whole Tent, now admitted not to be due. In Rn-lntnl* \. Come ford (c) where the defendant avowed fur two years and a half rent in arrear on a lease, reserving the rent yearly, the Couit of JB. .R. on error brought, held, that though before jud-mi nt. the avowant mio-ht have abated his avowry n*< to that part to which he had no right, yet on the whole record as it th< n >tood. judgment must be reverses! . because tiieavo\\ ry\\as fortheu hoi rent, and he could not supporl his title to tli whole. can be no apportionment on the demurrer ( ////. -1 1 I.'/ ' 17 Fin. tit. Appaiii'.ninii'i:!. !v) for apportiomn.'iit i- ihc a Jury and tlierefore as the ( 'onrl inu^t pronounce jud^im the plaintiff, if at all. to tlie extent of the biv.it h a-- it appears that so much is not due, there un:-t be jnl- the defendant. Marn/at, in reply, observed, that no ca^e h;x ; shew the distinction contended for. That inthecaseol l\/<; () 10 Co. it>8. a. (') Cwih. '.';'.'. >79 CASES IN TRINITY TERM 1802; against LAMBAKD. v. Comeford there was no eviction of the tenant from any part STEVEXSOX f tne ' an( ^' ^ 3ut an attempt to apportion the rent as to part of the time, before it was due, which all the books agree (a) cannot be done. That as to the breach being assigned for the non- O O payment of the whole rent, instead of a proportion of it; if the plaintiff might have recovered on this declaration for what was due, provided the defendant had pleaded his defence pro tanto, according to the truth, it could not vary the plaintiffs right, that the defendant had pleaded the same defence in bar to the whole right of action, which he ought not to have done. Curia advisare vult. Lord ELLENBOROUGH, C. J. now delivered the judgment of the Court : This is an action of covenant by the lessor against the assignee of the lessee for non-payment of a year's rent. Plea as to rent for half a year claimed, eviction during that time of a moiety of the premises by title paramount. To this there is a demurrer: and the question is, Whether the rent be apportionable in this action of covenant by the lessor against the assignee of the lessee? It clearly is so upon an action of debt, or upon an avowry in replevin, by all the authorities : and the only question is, Whether it be so in covenant ? In covenant, as between lessor and lessee, where the action is personal, and upon a mere privity of contract, and on that account transitory as any other personal contract is, the rent is not apportionabie. Bra. Con- tract, pi. 16. Afoor, 116, /-Vw/Vs Law, ///;. 2. c. 18. But an ac- tion of covenant against an assignee differs essentially from a j mere covenant personal : it is in such case properly a real con- tract in respect of the land; it is local in its nature and not transitory. In Barker v. Darner, Carlh. 183, it is said to be " ad- judged in several of our books (/;) that an action of debt for rent "againstan assignee of a term is local, and will lie nowhere but " in that county where the lands are. And the same reason holds " in covenant against the asignee; for this action as well as that " of debt is maintainable only upon the privity of estate, and the " defendant is merely charged thereby, because it is a covenant "which runs with the land; for if it had been a collateral cove- " nant, the assignee would not have been bound by it; and that ) Vi 10. Co. H'SS a. (J) Vide all the cases collected by Serjt. Williams, in a note to the case of Thursby v. Plant, 1 Suitnd. 241, b. s proves [ 580 ] IN THE FORTY-SECOND YEAR OF GEORGE III. "proves that the action is local only with respect to the land." 1802. The objection as to the locality of this species of action of cove- r STIVJNSOV nant, as against an assignee, was only gotten over in the case of ariamit the Mayor of London against Cute, 7 Term Rep.ij$7,by the help LAMB.VRD. of the stat. 16 and 17 Car. 2. c. 8. as being a mistrial cured by verdict. So covenant will lie against the assignee of part of an estate for not repairing his part; "for it is dividable, and fol- lows the land," with which the defendant, as assignee, is chargeable by the common law, or by the stat. 32 //. S. c. 37. Cong/iam v. King, Cro. Car. 222. Upon the whole, therefore, we think that the condition of this assignee is in point of law dif- ferent from that of a lessee chargeable on the privity of contract; and being chargeable on the privity of estate, and in respt ct of the land, his rent is upon principle apportion tbh; a.-; the rt-nt of a lessee is, or as his rent would be in an action of debt >r re- plevin. Judgment for the plaintiff; with leave to the defendant to amend his plea, and to plead it only to one moiety of the rent. [ 'c a partial II .1 )' U \ -'llV i- ii : tlir JOHNSON ag(iin4 S THIS case was very fully argued in /.V/s,Vr Term, 41 (,<<. i. i,'^, 1 *^,,. by Garrow, Parkc, and Lain'*, against the rule for a n< u i ,- a nari.al trial, and by The Attorney General and Gi(>/>*, in support of it. _ It is unnecessary to detail the arguments, as the substance ol r them was so distinctly stated in the judgment of the ( 'oiirt. | ,,',!'.' ,';,' ; . which was delayed till now, in consequence of a difference opinion on the Bench while Lord kcni/mi presided i:i the. ( o t. ,,,,-,.,,, u^t'ii.r LAWHENCK, J. (in the absence of Grow, J.) now delivered tin judgment of the Court : This is a motion for a ne\v trial of an action brought a the defendant, an underwriter, on ^oods on board a s!ii|> ra! the Carolina, from Sicfh/ to llamlmi^l,. to ivcov, r a pal sustained by the plaint iif, by reason of the s.-a water havm-j; ma^ed a cargo of brimstone and shunuck; and up"n aealeu tion by Mr. Olip!mnl, to whom it was referred by the pal ascertain the loss sustained, it has been settle 76l.7s.4fL percent. And the sp-iml o;i uh:.-!i tl.L- n- nt r i* i -n ' t . '-.u ,:n I .* Ir ;M ll I'll i- ! " t op . f ii .ir^' ', , ,T p >rt il".'.( 581 CASES IN TRINITY TERM against SlIEDDON *[ 582 ] has been moved for is, that Mr. Oliphant has proceeded in his calculation upon a mistake, inasmuch as in estimating the loss * he has taken for his foundation the difference between the net produce of what the goods have produced, and what they would have produced if sound; instead of the difference between their respective gross produces. Upon the fullest consideration that we have been able to give this question (which has been depend- ing a great while, and which was argued before Lord Elleubo- rough came upon the bench, and who, if the case were to be ar- gued again, would give no opinion, having been concerned in the cause when at the bar) my brothers Grose and Le Blanc agree with me in thinking there should be a new trial, and that the calculation is wrong. Some points are agreed on both sides; viz. that the loss is to be estimated by the rule laid down in Leu-is v. Rucker, 2 Jlurr. 1170, that the underwriter is not to be subjected to the fluctuation of the market; that the loss for which the underwriter is responsible, is that which arises from the deterioration of the commodity by sea damage ; and that he is not liable for any loss which may be the consequence of the duties or charges to be paid after the arrival of the commodity at the place of its destination, in Lewis v. Itucker, Lord Mans- jield says, "Where an entire individual, as one hogshead, hap- pens to be spoiled, no measure can be taken from the prime "cost to ascertain the quantum of the damage: but if you can "fix whether it be a third, a fourth, or a fifth worse, the da- " mage is fixed to a mathematical certainty;" and this he says is to be done "by the price at the port of delivery." From hence it follows, that whatever price at the port of delivery ascertains whether a commodity be a third, fourth, or a fifth the worse, is a price to which he alludes. And this deterioration will be universally ascertained by the price given by the con- sumer or the purchaser, after all charges have been paid by the person of whom he purchases; or, in other words, by the dif- [ 583 ] ference of the gross produce, and not by the difference of the net produce. When a commodity is offered to sale by one who has nothing further to pay than (lie sum the seller is to receive, it is the quality of the goods, winch in forming a fair and ra- tional iud'nnent can alone influence him in determining him t mean the whole sum, which is to be paid for the thing, For the n-t proceeds are not the price, but so much of the price as remains after the deduction of certain charges. Lord Man*fn'louml and damao-cd commodity, that the underwriter will be aih < t. the fluctuation of tlie market, which he on-lit not to be. '1 h is obvious from considering, that if you take equal qumtiu, s from two unequal quantities, the smaller such unequal qir.u are, the greater will be the difference between the remain e. g. Suppose sound goods, including all charges, to sellfor damaged for 300/; let the charges on each be l"i VOL. II. (; '' 584 CASES IN TRINITY TERM 1802. ference, after they are deducted, will be 300/. or three-fifths. T But let the goods come to a fallen market witL-the same degree J O H N S O "N" against f deterioration, and let the sound sell for 300/. and the da- SHEDDON. maged for 1507. and deduct from each the charges, the netpro- SSllSSl 2 ceeds of the sound will be 2007. and of the damaged 507. ; and the difference will be three-fourths. But as the deterioration is the same in both cases, the underwriter should pay the same, whatever be the state of the market ; which he will do if the gross produce be taken, scil. half the valued or invoice price. [ 585 ] Another consequence of taking the net produce will be, that you will make the underwriter responsible for a loss not arising from the deterioration of the commodity by sea damage ; but for that loss which the assured suffers from being liable to pay the same charges on the sound and damaged commodity. This will be illustrated by the case put of two ships arriving with the same commodity equally damaged: one being subject to duties and charges, and the other to none: the degree of deterioration be- ing supposed the same, the underwriters should pay alike in both cases. Suppose then the cargoes to be deteriorated half; that the demand for the commodity and the state of the market is the same; and that the goods, if sound, would sell for 10007. but being damaged, for 5007. and the charges to be 20007. On those goods where no charges are to be paid the insurer will have to pay fifty per cent. The goods on which charges are to be paid, being equally good with the other, will sell in the market for the same sum, and when the charges are deducted, if sound, 1000--200--BOO will produce 8007. ; but being damaged, after the same deduc- 500-200-^300 tion ^ w jjj p ro( ] uce on iy 30()/. and according to that calculation, difference 500 if the underwriter were to pay, he would pay five-eighths instead of four-eighths, or one half: not because the one cargo has suffered more than the other by the sea, for the supposition is, that the sea damage is the same in both ; but from commodities of unequal value being subjected to equal duties and charges. Suppose the same goods sold before the mast; a purchaser for those not liable to the duties, would give exactly what he would [ 586 ] g' ve if there had been duties which the seller had paid; for as he has nothing further to pay to him, it is just the same whether the seller had no charges to pay, or whether there were charges which he has paid ; the commodity in the one case and in the other comes to the buyer's hands in the same state, But on these IN THE FORTY-SECOND YEAH or GEORGE III. .080 these goods, if liable to the further charges, he could sjive, if 1802. sound, but 800A as the duties he would have to pay would make the whole cost 1000/.; and if damaged, and liable to the same charges, he could give but 300/. : for as he would be liable to pay 200/. in charges, if he were to give above 300/. the whole amount of what he would ultimately pay for the damaged goods would exceed their value, which by the supposition is but 5<)0/. : he would, therefore in this case, give for the damaged less than in proportion to its degree of deterioration ; for in giving 300/. he would only give three-eighths instead of four-eighths, or a half; not because the damaged commodity is not half so ^ood as the sound, but because on such damaged commodity he must pay as large charges as on the sound ; and as this loss to the assured arises from a purchaser not being able to pay in propor- tion to the intrinsic quality of the commodity, it shews that a sale before the mast, when equal duties are, to be paid, does not, correspond with the deterioration of the commodity, nor ascer- tain whether it be a third, fourth, fifth, or in what degree worst; than the sound ; consequently, that the difference of the net pro- duce cannot be the rule to calculate by, where the charges are not proportioned to the respective values of the sound and da- maged commodity. Another objection is, that if the net pro- duce be taken, it may happen that you can have no s produce of the sound commodity should only pay the charges, and h ave no n< t proceeds; for then there can be no dili'erence between the n t proceeds of the sound and damaged; in proportion to \\luch it is contended that the underwriter is to pay. I'pon the \\hde .,f this case, it is our opinion that the rule >hould be a!>M>lute tor a new trial. Rule ab>olute. T11L END 01 TUIMT\ 1T.RM. Ci AN INDEX OF TlIK PRINCIPAL MATTERS. Abatement. See Practice, No. 14. Action of i the Cave. See Assumpsii, No. 1. Pleadings, No. 1,2, 13, 14, 15. 1. To an inquiry concerning the credit of another, who was recommended to deal with the plaintiff, a representation by the defendant that the party might safely be credited, and that he spoke this from /tz.s oion knowledge, and not from hearsay, will not sustain an action on the case, for da- mages on account of a loss sustained bv the default of the party, who turned out to be a person of no credit; if it appear that it was made by the defendant bona fide, and with a belief of the truth of it; for the foundation of the action is fraud and deceit in the defendant, and damage to the plaintiff by means thereof. And taking the assertion of knowledge secun- dum subjectam, materiam, viz. the credit of another, it meant no other than a strong- belief, founded on what appeared to the defendant to be reasonable and cer- tain grounds. Hay craft v. Creasy, M. 42 G. 3. '2. A commoner may maintain an action 0:1 the case for an injury done to the common by taking away from thence the manure which was dropped on it by the cattle; though his proportion of the damage be found only to amount to a farthing: at least the smallness of the damage found is no ground for a nonsuit. 1'mdur v. Wwl&worth, H. 42 G. J. !">! 3. In estimating the, measure of damans in an action for breach of an engagement to replace stock on a given day, it is not enough to take the value of the stock on that day if it have risen in the mean time, but the highest value as it stood at the time of the trial ; there being- no otR-r of the defendant to replace it in the interme- diate time while the market was rising. S/teplurd v. Johnson, H. 42 (i. .'). 211 4. In an action on the case in tort for ;i breach of awarranty of goods, the tcirntcr need not be charged, nor, if chared, need it be proved, Williamson v. Altitun, 7\ 42_G.3. M-i 5. 1 1 is not necessary to give a local descrip- tion to the nuisance in an action on the case for diverting the water nf u n.i\i_ri- tum; and therefore if it he doubtful whe- ther the place where such n.ivi_ r it; _>n is stated to li'- be laid in the dcrhir.iti'Mi .n a venue or as local d< scnpti"i). it ill In- referred merelv - o> \ .-mie. an-1 n< ' it ir>l Im- proved to In- at s::c!i place; l>ut it is sutli- cieiit if it b- 1 at any oilier pl.ice witlun the county. Th' M> >> -/ n>. >{ th-'- A'i- miraltv of .1 captain in the navv to \<<- - coiul (. ommainler on boar'l a K:;:_ > >!;,p is valid bv their general .mtli-ntv '' ap- jioint, \\hilotHcvis tiiey iiifik pr-j-vr lor the service, although another wa^ a pp'.mt- i-d to the lirst command "ii bard tin -.\:w. ship, and notice is 'inly t.iken , stated that " the bond, warrant of attorney, in- denture and deed poll, given to secure the annuity, were witnessed by four per- sons," that must be taken to mean that each of them were so witnessed ; and therefore if it appear by the answer on oath of the assignee of the grantee, that three of the instruments were attested by tiuo persons only, the Court on applica- tion, though at the distance of near twen- ty years, and after the principal parties and witnesses to the transaction are dead, will set aside the warrant of attorney; the merits of such objection not depend- ing on testimony lost by the delay. Ex parte Mackreth, T. 42 G. 3. /JG.'J , Where a rule nisi is obtained in B. R. for setting aside an annuity, the several ob- either for the breach of the special con- tract, or for such tortious act of the cap- tain's, whereby he was prevented from earning his wages. Hullc v. Htiyhtman, If. 42 G. 3. 14 5 . Upon a sale of hops by the sample, with a warranty that the bulk of the commo- dity answered the sample, the law does not raise an implied warranty that the commodity should be merchantable, though a fair merchantable price w.-re given; and therefore, if there be a latent defect then existing in it, unknown to the seller, and without fraud on his part (but arising from the fraud of the grower from whom he purchased) such seller is not answerable, though tlie goods turned out to be unmerchantable. Parkinson v. Lee, E. 42 G. 3. 314 jections thereto intended to be insisted on 3. The plaintiff, a broker, having a lien on by counsel at the time of making such rule absolute, must be stated in the said rule nisi. Reyula gencralis, T. 42 G. 3. .569 Appeal, See Overseers of the Poor, No. 2. 1. By s. 19 of stat. 13 G. 3, c. 78, where an order of justices has been made for stop- ping up a road, an appeal is given to the party grieved by any " such order or pro- ceedings, &c. at the next quarter session * after such order made or proceeding /tad," &c. held that at all events an appeal to the Sessions next after the actual obstruc- tion of the road was too late; the party having had sufficient notice of the order in time to have appealed to a preceding- Sessions, before which time the surveyors of the highways had begun to stop up the road. R. v. The Justices of Pembroke- shire, H. 42 G, 3. ^1'3 4 Assumpsit. ] . A seaman having contracted to go a voyage from A. to B. and back again, with a stipulation that he should not. be entitled to his wages till the end of the voyage, cannot maintain a general indc- 5 Hiatus assumpsif. to recover his wages pro rata as far as B.; though he weie there wrongfully dismissed by the defend- (>, ant, the captain; but his remedy is certain policies of insurance' effected lor his principal., fur whom he had ^ivi-a his acceptances, the defendant promised that he would provide for the payment of those acceptances as they be rum e due, upon the. plaintiff's giving up to him such policies, in order that he miirht collect for the principal the money due thereon from the underwriters; which was accordingly dune, and the money was afterwards received by the defendant ; held, that this was nut a promise for the debt or default of another within the sta- tu'.o of frauds; and that the plaintiff might recover against the defendant as well for the breach of agreement in nut providing for the payment of the at cep- tances, as also i;j..'U a count fur mom-s- had and received. Caituny v. An?, E. 42 G. 3. Money paid by one with full kiiowU uch ]) lymcnl having been made under a;i ig- norance of the law. Jiilfnf v. Litmlty, I- 42 (,. 3. QK. were such payment mad-..- imdvr an uncertainty of thefacts ' lVjc an i;i;p!:< miso in the parish where a pauper is > tluL INDEX. tied, to reimburse the money laid out by another parish, in which he happened to be, in providing necessary medical assis- tance for him. Atkins v. Banwell, T. 42 G. 3. 505 Attorney. One who executes a deed for another, under a power of attorney, must execute it in the name of his principal; but if that be done, it matters not in what form of words such execution is denoted by the signa- ture of the names ; as if opposite the seal be written " for /. B." (the principal) " M. W." (the attorney) " L. S." Willies and another v. Back, H. 42 G. 3. 142 Attorney, Warrant of, to confess judg- ment. See Practice, No. 1,2. Bail. 1. If the defendant's attorney or his clerk be put in as bail, the plaintiff must ex- cept to the bail, and cannot proceed as if the matter were a nullity. 7?. v. the Sheriff of Surrey, H. 42 G. 3. ; and Fox- all v. Bowerman, ib. 181 2. An omission in the ac etiam part of the writ of the sum for which the defendant is arrested on bailable process is irre- gular, and he cannot be holdeu to special bail thereon. Daiison v. Frost, E. 42 G. 3. 305 3. Bail in error are not required by stat. 3 J. I, c. 8, on error brought on a judgment by default in debt on account for a pro- missory note, any more than on counts for goods sold and delivered, and on an account stated: though it' there were one count, on which judgment was entered up, for which bail in error were not re- quired, it seems sufficient to excuse the plaintiff in error. Tritr v. Bridyman, E. 42 G. 3. 359 4. A writ of error, though not returned, is of itself a supersedeas; and may be pleaded by the bail to have been issued and al- lowed after the issuing and before the re- turn of the ca. sa. against the principal, so as to avoid proceedings against them in scire facias upon the recognizance of bail prosecuted after a return by the she- riff of non ust imenlus made pending such writ of error. Sampson v. Brown, T. 42 G. 3. 439 Bankrupt. 1. A trader orders bags of wool of defend- ants (merchants) in December, which are delivered on the 19th of February fol- lowing ; and by the course of dealing the trader has the option of returning the wool for which he has no call, though previously ordered. The trader being from home when the bags were deliver- ed, on his return the same day gives di- rections not to have them opened or en- tered in his books, but only weighed off to see that they agreed with the invoice; he being then in embarrassed circum- stances, and intending not to take them into the account of his stock if in the event he found himself unable to pur- sue his business. Afterwards, on the fourth and tifth of March, oeing then avowedly insolvent, he returns the bags with a letter to the merchants, declaring his situation, and hoping they will have no objection to take back the wool, and requesting the favour of a line of appro- bation thereof; which letter is received and the approbation given after an act of bankruptcy committed on the same day the letter was sent. Held, that by the trader keeping possession of the goods so long, his option, (which ought to have been exercised on the receipt of them) was gone; and that being in a state of insolvency and on the eve of bankruptcy, he could not exercise the power of restoring the goods to the ven- dors, though without any fraudulent con- cert with them, but that the trader's as- signees are entitled to the property. Neate v. Ball, M. 42 G. 3. 1 f 7 2. If a trader become a bankrupt between the time of executing a bill of sale of a ship at sea to the defendant, and the time of the defendant's complying with the re- quisites of the Registry Acts of the 26 G. 3, c. 60, and 34 G. 3, c. 68, s. 16, though such requisites were completed after the act of bankruptcy, and before the action brought, the property does not pass; but i N I) K : but the assignees of the bankrupt may recover the possession of such ship in trover. Moss v. Char nock, E. 42 G. 3. f>, 399 Baron and Feme. See Will, No. 1, 2. A covenant by a husband to pay to trustees a certain annual sum by way of separate maintenance for his wife in case of their future separation, with the consent of such trustees or their executors, &c. is valid in law. Rodney v. Chambers, E. 42 G. 3. 2 S3 Bill of Exchange, $c. Sec Witness, No, 1 . Bridge. 1 . The county or riding is liable to the re- pair of a bridge built by trustees under a Turnpike Act; there being no special provision for exonerating them from the common law liability, or transferring it to others ; though the trustees were en- abled to raise tolls for the support of the voads. R. v. The Inhabitants of the West Riding of Yorkshire, E. 42 G. 3. 342 2. If a bridge be of public utility, and used by the public, the public must repair it, Though built by an individual : aliter if built by him for his own benefit, and so continued without public utility, though ; ;sed by the public, ib. 342 ->. A bridge built in a public way without public utility, is indictable as a nuisance; cind so it is if built colourably in an im- perfect or inconvenient manner, with a view to throw the onus of rebuilding or rep-airing it immediately on the county. ib. 342 4. Whereto an indictment against a Riding for not repairing a public carriage bridge, the plea alleged that certain townships iidd inimemorial/i/ used to repair the said bridge; evidence that the townships had enlarged the bridge to a carriage bridge, which they had before been bound to re- pair as a foot bridge, will not support the plea. Mich. 28 6'. 3. ib. 3.33 5. Where townships have so enlarged a bridge which they were before bound to repair as a foot bridge, they shall still be liable, pro rata, tb. 353 Where an individual builds a bridge, which he dedicates to the public, by whom it is used, the county are bound tb repair it. ib. 353 . The county is liable to repair a bridge, built in the highway and used by the pub- lic above forty years, though originally erected for the convenience of an indivi- dual. R. \. The Inhabitants of the county of Glamorgan, cor. Lord Kenyan, C. J. at Herejord, in 1788. 3.56 Broker. Sec Lien, No. 2. Candles. Srr Excise. Certiorari. . If an order of removal be confirmed at the Sessions, and both orders be removed into n. 11. by certiorari on a case re- served, and this Court disapprove of the orders, for want of jurisdiction of the re- moving magistrates appearing on the face of the original order, this Court will quash botli orders, without remitting back to the Sessions to quash the original order, for the purpose of enabling them to give maintenance according to stat. 9 (,. 1, c\ 7, .v. 9; and at any rate they will not admit an application for amend- ing their judgment for quashing both orders made in the term subsequent to the judgment so pronounced. A', v. The Inliabii'unla j Mr Cntchcll.U. 420'. 3. .l.'O Calldtcrdl Pronisc. Sit As.-i'mi^i 1 , No. 3. A commoner may maintain an acfmn i>;i the ease for an injury dun.' to the com- mon, by taking away from tin :,<< the m.t- n u re whieh was dropped on it by thr eat :!.: though his proportion ot the da:n,i_-r ' found only to the amount of a f'trtk>n_ ut Last the smalhiess of the da:na_--. found INDEX. found is no ground for a nonsuit. Pindar v. Wadsuorth, H. 42 G. 3. 154 Consignor and Consignee. See Lien. Contract. Sec Pleading, No. 1, 2. Conveyance. See Insolvent Debtor, No. 2. Conviction. 1. If the convicting; magistrate give a proper date to the time of the conviction upon the face of it, and afterwards add an impos- sible date to the time when he set his hand and seal to the conviction (being be- fore the offence committed) the latter may be rejected as surplusage. R. v. Picton, H. 42 G. 3. 195 2. It is enough that the conviction sets forth that the witness was examined on oath, without stating that the magistrate had authority to administer the oath. ih. Corporation. See Quo Warranto, Information in na- ture of. 1. Where a power of creating freemen is shewn to have been once vested in the bo- dy at large of a prescriptive corporation, the exercise of it cannot be sustained in a select part of the same corporation con- tinued by charters under other names of incorporation; there being no express grant of such a power to the select body by any such charters, noreven any by-law to tha"t effect; even supposing such apow- er could be transferred by a by-law from the whole to a part of the same corpo- tation; although it be stated in the plea and admitted by the demurrer, that the same power which was immemorially ex- ercised by the whole body down to the period of the granting and acceptance of the charters of James I. and Charles II. had been since those charters, &c. con- tinually exercised by the select body in question : and although such charters con- tained a confirmation of all former privi- leges, &c. under whatever names of in- corporation theretofore enjoyed. Rex v. Holland, M. 42 G. 3. 70 Costs. 1. The party succeeding is not entitled to the costs of examining witnesses on in- terrogatories, or taking office copies of depositions: but each party applying pays his own expence, unless it be other- wise expressed in the rule. Stephens v. Crichton, E. 42 G. 3. 259 2. Where the plaintiffs sued as executors in covenant against the lessor of their tes- tator, for not providing timber for the re- pair of the demised premises, upon a de- mand made by the plaintiffs after the death of their testator; held, that they were not liable to pay the costs of a judg- ment as in case of a nonsuit; inamsuch as though the breach happened in their own time, they could only declare as executors upon the contract made with their testa- tor. Couke v. Lucas, E. 42 G. 3. 395 Court Leet. See Custom or Jurors, No. 1. Quo Warranto, No. 3. Covenant. 1. A covenant by a husband to pay to trustees a certain annual sum, by way of separate maintenance, for his wife, in case of their future separation with the consent of such trustees or their exe- cutors, &c. is valid in law. Rodney v. Chambers, E. 42 G. 3. 283 2. An action of covenant lies against the as- signee of a lessee of an estate for a part of the rent: as in such case the action is brought on a real contract in respect of the land, and not on a personal contract : and in case of eviction the rent may be apportioned, as in debt or replevin. Ali- ter in covenant against the lessee himself, who is liable on his personal contract. Stevenson v. Lambard, T. 42 G. 3. 575 Ci ws Re w a'u idei *s . See Devise, No. 1, 2. Custom. A custom to swear the jurors at one court leet, to inquire and to return their pre- sentments INDEX. sentments at the next court, is bad in law. Davidson v. Moscrop, M. 42 (,'. 3. /3b' Deed. See Insolvent Debtor, No. 2. 1. One who executes a deed for another un- der a power of attorney, must execute it in the name of his principal ; but if that be done, it matters not in what form of words such execution is denoted by the signa- ture of the names : as if opposite the seal be written " for /. li." (the principal) "M. W." (the attorney) "Z. S" Wilks and Another v. Back, H. 42 G. 3. 142 2. Where in an action on a bond, evidence was offered that diligent inquiry had been made after one of the subscribing wit- nesses at the places of residence of the obligors and obligee, and that no account could be obtained of such a person, who he was, where he lived, or any circum- stance relating to him; held sufficient to let in proof of the hand of the other sub- scribing witness, who had since become interested as administratrix to the obligee, and was a plaintiff' on the record. Cun- liffe v. Seflon, H. 42 G. 3. 183 3. If a subscribing witness to a deed be abroad, out of the jurisdiction of the Court, and not amenable to the process at the time of the trial, evidence of his hand-writing is admissible; though it do not appear' whether he be domiciled or settled abroad. Prince v. Black- burn, H. 42 a. 3. 2,50 Devise. Sec Will. 1. Under a limitation (afr.c-r estates for life to A. and 13.) of " all and every the said premises to all and every the younger children of 11. begottca or to be begot- ten ; if more than one, equally to be di- vided amongst them, and to the heirs ot their respective body and bodies as tenants in common, &c.; and if only one child, then to such only child, and to the heirs of his or her body issuing; and for want of such issue,'' (a dc ,'ise of) the said premises to C. N., &c. (with several limit- ations over): and for want of such issue," then the testator divided ih c said premises between several branches of his family. Held, that cross remainders were to be implied between the younger children of li. from the apparent intention of the testator from the whole of the will, not- withstanding the use of the word respec- tive in such devise. Watson v. Foxon, M. 42 G. 3. 3fi 2. A devise by A. (having three sons and seven daughters) to his sons in succession for life, remainder to the heirs male of their bodies, remainder to the heirs female of their bodies, remainder to all and every his daughter and daughters (if two or more) as tenants in common, and to the heirs of her and their bodies, remain- der to the heirs of the devisor's brother; gives cross remainders to the daughters. Between more than two the presumption is against cross remainders ; but this may be controlled by a plain intention to the contrary. Doe v. Burville, E. 13 G. 3, cited. ' 47 3. A. gave by will his tenant-right which he held by lease to A.I. hut not to dispose of or .sell it : and if he refused to din II there, or keep it in his own possession, then that J. /. should have his tenant-right of the farm. A. I. having borrowed money, left the title-deeds with his creditor as a secu- rity, and confessed a judgment to secure the money : and having also u'ivtn a judgment to another creditor who issued an execution against him, the slu-ritl' sold the lease to the creditor v. ith \vhom the deeds were deposited. he pasinj; the debt of the plaiii'iill' in the t \niition: and A. I. havinu' left t'ae pivuiisLS and ceased to d\u.-ll there on iiir i!a_v "t the execution, before the siieul'r tutored; held, that./. /. the remai;:dei-mu!i, was entitled to eater, the estate of .1. /. having determ;;:t d by -i:eh h'< acts. Do- d. fiutlson v. //I'M-,;.', T. 42 G. 3. 4M I. A landlord a fercnt. parts of a farm >;t n r< i.t tun which the tenant m commeneeu an eectment ; ami In_hTe the last period mentioned in the notice INDEX. expired, the landlord, fearing that the witness by whom he was to prove the notice would die, gave another notice to quit at the respective times in the fol- lowing year, but continued to proceed with his ejectment: held, the second notice was no waver of the first. Doe v. Williams, H. 42 6. 3. 237 2. Where a defendant in ejectment held as to the arable lands from Candlemas, and as to the rest of the farm from May-day, the rent being payable at Michaelmas and Lady-day, and notice to quit was given six months before May-day, but not six months before Candlemas; Lord Kenyan, at Stafford sum. as. 1788, non- suited the plaintiff. Qiuere. Whether the notice to quit were given half a year be- fore Lady -day? Doe d. Ld. Grey dc Wil- ton, v. , cited in Doe v. Culvert. 384 3. A rector may recover in ejectment against his lessee on the ground of the lease of the rectory being avoided on account of his own non-residence, by force of the stat. 13 Eliz. c. 20, and the lease to the defendant, describing him as doctor in divinity, produced by him at the trial in support of his title, is priina facie evi- dence of his being such as he is therein described to be, so as also to avoid the lease under the stat. 21 //. 8. c. 13, s. 3. Throymorlon d. Flcmiiiy v. Scott, T. 42 0. 3. 4U7 Evidence. Sec Rector, No. 1. 1. A settlement, by being rated and paying rates, cannot be proved by evidence of paying only, without the production of the rate, or accounting reasonably for the non-production of it; although the payer was both owner and occupier of the es- tate for which he paid the rate. R. v. The Inhabitants of Coppidl, 1\I. 42 G. 3. 25 2. Neither the hearsay of a pauper who is dead, nor his ex parte examination in writing taken on oath before t\vo magis- trates, touching his settlement, are ad- missible evidence of such settlement. A', v. the Inhabitants of Ferry Fnjt>tonc, M. 42 G. 3. 54 And R. v. the Inhabitants of Chadder- ton, M. 42 G. 3. 27 3. So an ex parte examination of a pauper, touching his settlement, cannot be re- ceived in evidence of such settlement, though he be dead. R. v. the Inhabi- tants ofAbergu-illy, M. 42 G. 3. 63 4. The payment of money into Court upon a count stating a special contract, is an ad- mission of such contract, and narrows the inquiry to the quantum of damages sus- tained by the breach thereof. Therefore, if the plaintiff declare as upon a general undertaking by the defendant to carry goods for hire, on which the defendant pays 51. into court, the latter cannot give in evidence that the contract was that he should not be answerable for goods lost to a greater value than 51. unless entered and paid for accordingly: though if no money had been paid into court, the plaintiff must have been nonsuited on such evidence. Yate v. Willan, M. 42 G. 3. and Piyolt v. Dunn, E. 36 G. 3. cited ib. 128 5. Where, in an action on a bond, evidence was offered that diligent inquiry had been made after one of the subscribing witnesses, at the places of residence of the obligors and obligee, and that no account could be obtained of such a person, who he was, where he lived, or any circumstance relating to him, held sufficient 10 let in proof of the hand- writing of the other subscribing witness, who had since become interested as ad- ministratrix to the obligee, and was a plaintiff on the record. Cunliffe v. Sefton, H. 42 G. 3. 183 6. If a subscribing witness to a deed be abroad, out of the jurisdiction of the court, and not amenable to its process at the time of the trial, evidence of his hand-writing is admissible; though it do not appear whether he be domiciled or settled abroad. Prince v. Blackburn, //. 42 G. 3. 250 7. Where the issue is on the life or death of a person once existing, the proof lies on the party asserting the death. Wilson v. Ilodyes, E. 42 6'. 3. 312 8. Where a defendant is brought up to re- ceive INDEX. Cfiive judgment after conviction, an affi- davit by the prosecutor in aggravation, stating that a third person, who refused to join in the affidavit, had informed him, that the defendant after the tri.d had repeated in his hearing the libellous matter for which he was indicted, is not admissible; at least, not without swear- ing that such third person was under the controul or influence of the defendant. -R. v. Pinker ton, E, 42 G.. 3. 357 9. Where the stat. 7 & 8 W. ?,. c. 30. s. 24, enables the commissioners of excise to summon witnesses before them, upon a the candles were home-made randies, seems to be sufficient, without expressly naming them llritish randies; the word's of the Act being " British spirits, soup, and candles:" though supposing this would have been a ground for error or appeal in the original information, it is no objection to an information in a col- lateral proceeding, for conspiring to pre- vent the examination of a witness before the commissioners of excise on such prior information, which is only stated by way of recital in the information fur the conspiracy. charge exhibited against another for an 3. The same answer applies to an uncer- offence against the excise laws, and an information in a collateral proceeding recited such summons to have been duly made, proof of a printed summons dis- tributed and issued in blank, by order of the commissioners to their agents, and afterwards filled up by one of them, without any special directions from the board, is sufficient, although not signed by any of the commissioners, nor issued in their individual name; such having been the constant usa^e in that respect since the introduction of the excise. R. v. Sleventon, E. 42 G. 3. 3G2 10. In an action on the. case in tort for a breach of a warranty of goods, the scicn- ter need not be charged, nor if charged, need it be proved. Williamso)/ v. Allison, T. 42 G. 3. 44G Excise. l.The stat. 2G G. 3, c. 77, s. 13, which enacts that no person shall prosecute " any action, bill, plaint, or information, " in any of the King's courts," for the re- covery of any excise, penalty, &c. unless prosecuted by the Attorney-General or some revenue officer, is confined to the superior courts of record; and therefore an information for a penalty for removing wax candles from the place of manu- factory before the duty paid (by s. U>. of the same statute) may be prosecuted before the commissioners of excise by one not averred to be such officer. A', v. Steventon, E. 42 G. 3. 3'i2 2. And the information, stating in effect that tainty (if any) in the charge of the first information recited; in negativing the excuse of a prior condemnation as well as prior payment of the duty before removal; though that seems proper enot;_di. ih. 4. So the issuing of process a-u'nst the. original defendant, or the joining issue on the information recited, is immaterial as to the charging the. otleiie- of thf subsequent conspiracy. ii,. ~). Neither is it necessary, at least in such collateral proceedintr, to nvite that the original information was pros cuted be- fore the commissioners byname, though it be not avtnvd to ha 1 . L- In n in fore three or more of them, .n.-coidin^ to stat. 1, G. 2, star. 2. c. I'i. tb. G. Neither is it necessary, in r prior information, averred t made within three months fence committed, accoidin^ \ .-t.it. H'. .V M. c. 54, s. 1 i. ;lsu to .HIT i'"' thereof to the origin d d< fend. in' \vitl.i week, as is directed lo be _u> :i bv same statute. ~. Where the stat. 7 v"v N H". .!, r. :,-'. . enables the ( omnn--ionei - nt \ .- summon witnesses Uelore tin 1.1. u; . charge exhibited a^-am-t anoflie. ! : ollence against the e\ci-e li\\>. ,r:d inform.it ion ma collateral ]':< . < .-t dm.; cited such summons to h n. ! made, proof a printed smr.i'.RM-. tributed and is-uul in ; >! ii.k. by < ide; the commissioners to tiuir ,i, ;it.-. .i afterwards tilled up by <> Ul of t'n.-m v.\ out anv special directiuiis lifin the- 1 ting such have hem T the <>!- INDEX. is sufficient, although not signed by any of the commissioners, nor issued in their individual names; such having been the constant usage in that respect since the introduction of the excise. ib. Execution. 1. A defendant cannot be taken in execu- tion twice on the same judgment, though he were discharged the first time by the plaintiff's consent, upon an express un- dertaking that he should be liable to be taken in execution again, if he failed to comply with the terms agreed on. which he did. Blackburn v. Stupart, H. 42 G. 3. 243 Executors. See Costs, No. 2. False Representation of Credit. See Action on the Case. No. ] . Feme Covert. Sec Will, No. 1, 2. Foreign Courts. See Prize, No. 1 . In justifying a trespass under the process of a foreign Court, it seems that the plea should be formed in analogy to similar justifications under the process of our inferior Courts: but at any rate, a plea which only states that the Court abroad was governed by foreign laws, that the property seized was within its jurisdic- tion, that certain legal proceedings were had, according to such foreign laws, against the property in question in such Court, having competent jurisdiction in that behalf, et taliter processum, tyc. that the defendant was ordered by the said Court, having competent authority in that behalf, to seize the property, is bud, being too general; and not giving the plaintiff notice whether the defendant justified as an officer of the Court, or party to the cause; or of what nature the charge was, or by whom instituted; or what the order of seizure was, whether absolute or quousrjue, &c. Collett v. Lord Keith, E. 42 G. 3. 260 Forfeiture. A. gave by will his tenant-right, which he held by lease, to A. I. but not to dispose of or sell it; and if he refused to dwell there, or keep it in his own possession, then that J. I. should have his tenant-right of the farm. A. I. having borrowed money, left the title-deeds with his creditor as a security, and confessed a judgment to secure the money ; and having also given a judgment to another creditor who is- sued an execution against him, the sheriffsold the lease to the creditor with whom the deeds were deposited, he pay- ing the debt of the plaintiff in the exe- cution: and A. I. having left the pre- mises and ceased to dwell there on the day of the execution, before the sheriff entered, held that J. I. the remainder- man, was entitled to enter, the estate of A. I. having determined by such his acts. Doc d. Ibbetson, v. Hawke, T, 42 G. 3. 481 Frauds Statute of. Sec Assumpsit, No. 3. The plaintiff, a broker, having a lien on certain policies of insurance effected for his principal, for whom he had given his acceptances, the defendant promised that he would provide for the payment of those acceptances as they became due, upon the plaintiff's giving up to him such policies, in order that he might col- lect for the principal the money due thereon from the underwriters; which was accordingly done, and the money- was afterwards received by the defend- ant: held, that this was not a promise for the debt or default of another within the statute of frauds; and that the plain- tiff might recover against the defendant as well for the breach of agreement, in nut providing for the payment of the ac- ceptances, as also upon account for money had and received, &c. Castling v. Aubcrt,E. 42 G. 3. 325 High wai/. 1. By s. 19 of stat. 13 G. 3, c. 78, where an order of justices has been made for stop- ping INDEX. ping up a road, an appeal is given to " the party grieved by any such order or " proceeding, &c. at the next quarter " sessions after such order made or pro- ceeding had" &c. > held, that at all events an appeal to the Sessions next after the actual obstruction of the road was too late; the party having had sufficient no- tice of the order in time to have appealed to a preceding Sessions, before which time the surveyors of the highway had begim to stop up the road. R. v. The Justices of Pembrokeshire, II. 42 G. 3. 213 2. Under the stat. 13 G. 3, c. 84, s. 33, B. R. may apportion the fine for non-re- pair of a road between the parish and the trustees of a turnpike, though the in- dictment were originally preferred at the assizes, and afterwards removed thither by certiorari. R. v. The Inhabitants of Upper Papworth, T. 42 G. 3. 413 Husband and Wife. Sec Baron and Feme. Indictment. 1. To solicit a servant to steal his master's e;oods is a misdemeanour, though it be not charged in the indictment that the servant stole the goods, nor that any other act was done except the soliciting and inciting: and such offence is in- dictable at the sessions, having a ten- dency to a breach of the peace. Rex v. Higgins,M.42G.3. ^ 2. In an indictment on the stat. 30 (r. 2, r. 24, for obtaining money on false pre- tences, it is sufficient to allege that the defendant unlawfully, knowingly, and designedly pretended so and so; by means of which said false pretences he obtained the money; afterwards nega- tiving such pretences to be true: though it be not in terms alleged, that lie falsely pretended, &c.: and it seems it would have been sufficient to allege, that he ob- tained the money by such and such pre- tences, averring such pretences to be false. Rex v. Aireij, M. 42 G. 3. 3. The Court will not quash a defective in- dictment on the motion of the prosecutor after plea, pleaded before another good indictment be found. R. v. Dr. Wynn, II. 42 G. 3. -22G Insolvent Debtor. 1. One who was arrested at the suit of the plaintiff, and liberated on bail prior to 1st March, 1K01, and was afterwards committed in execution, at the suit of the same plaintiff, before the passing of the Insolvent Act of the 41 G. 3, c. 70, is entitled to be discharged by the 6th section of that Act, on the conditions thereby imposed. And this, where he v/as so taken in execution upon a judg- ment, confessed fur the amount of the costs us well as fur the original debt, for which he had been arrested by writ out of an inferior court before the 1st of March; the 34th section providing that no person entitled to the benefit of the Act should be imprisoned bv reason of any judgment fur any debt, costs, A:c. owing or growing due before the said 1st of March. ISillett \. McCarthy, 11. 42 G. 3. 14 S 2. A conveyance to a creditor of an insol- vent debtor's estate, by the clerk of the peace (in whom it is vested upon the order for the insolvent's discharge by the stat. 41 G. 3, c. 70, s. !.">, until the sub- sequent conveyance to the creditor; does not vest the estate in such creditor, by relation cither to the date of the order or of the conveyance, but only from the ac- tual execution of such conveyance by the clerk of the peace. Tlinvfore Mich cre- ditor cannot recover in ijectun-nt upon a demise laid before 1 the execution, though after the estate was out of the ins"lv< nt debtor, and the order was made to e L >n- vey the same to the lessor. Doc >l. \\ h :t b>j v. 7';:m "ii a total loss which happened in the period of the vu\a_e : ullliuuijli a cui del able INDEX. derable part of the estimated value con- sisted originally in stores and provisions for the purchase and sustenance of slaves during the voyage, and the slaves were brought to a profitable market at the first place of the ship's destination, where she arrived a mere wreck, and soon after foundered. Shaw v. Fclton, M. 42 G. 3. 109 2. Where a ship insured arrived in port a mere wreck, and was obliged to be lash- ed to a hulk to avoid sinking, and in at- tempting to remove her to the shore a few days afterwards she sunk; held, that the assured might recover as for a total loss, though her cargo was saved, and brought to a profitable market. ib. 3. A declaration on a policy of insurance on a foreign ship need not aver any in- terest in the assured : though there be no such words as " interest or no in- terest" in the policy. Nantes v. Thomp- son, E. 42 G. 3. 385 4. A sentence of condemnation by a French Court sitting in Spain, of a prize taken by a French privateer, and carried in there (Spain being then a belligerent ally of France in the war against Great Britain} is valid; and such condemna- tion, proceeding on the ground of the property being enemy's and British, is conclusive in an action on a policy against the underwriter by the assured, who had insured it as Danish, which in fact it was, Denmark being then neutral. Oddi/ v. Bovill, T. 42 G. 3. 473 5. The profits of a cargo employed in trade on the cqast of Africa are an insurable interest. Barclay v. Cousins, T. 42 G. 3, 544 C. So an insurance on imaginary profit from Bourdeaux to Hamburgh (which was explained to mean the profit which a cargo of indigo, belonging to tiic as- sured, would produce on the sale thereof at Hamburg/i, if it arrived safe) was holden good. Hcnricksen v. Margetson, B. R. Mich. 1776, cited ib. 549 7. The rule, by which to calculate a partial loss on a policy on goods by reason of sea damage, is the difference between the respective gross proceeds of the same goods when sound and when damaged, and not the net proceeds ; it being set- tled that the underwriter is not to bear any loss from fluctuation of market or port duties, or charges after the arrival of the goods at their port of destination. Johnson v. Sheddon, T. 42 G. 3. 58 1 Issue Proof of. Where the issue is on the life or death of a person once existing, the proof lies on the party asserting the death. Wilson v. Hodyes, E. 42 G. 3. 312 Jurisdiction. See Excise. 1. Where two counties have been mention- ed in the antecedent part of an order of removal, the justices making the order must state themselves to be justices of the proper county; and it is not enough to describe themselves justices of the peace in and for the said county, although the proper county were named in the margin, and were also named last before such description of the justices. R. v. The Inhabitants of Moor Critchell, M. 42 G. 3. 60 2. By s . 1 of the stat. 39 and 40 G. 3, c. 1 04, the jurisdiction of the Court of Requests in London is enlarged from debts of 4()s. to 51. from the 30th September, 1800: and by s. 12, if any action shall be com- menced in any other court to recover any debt not exceeding 51. within the juris- diction, the plaintiff shall not recover any costs, &c. ; held, that the words " shall be commenced" must, by neces- sary construction, be restrained to the date of the 30th September, and not to the passing of the Act, which was on the 9th of July preceding. Whitborn v. Ecans, M. 42 G. 3. 135 3. After an appointment of four overseers for a parish by the magistrates at one meeting, they are functi officio; and no other magistrates can discharge one oi the persons so appointed, though by his desire, and appoint another; but the party must appeal to the Sessions to get his discharge. A', v. The Inhabitants of Great Marloiv, /'/, 42 G. 3. 244 4. ScmblC; i N u i: x . 4. Semble, the magistrates making the appointment must be together at the time. ib. Jurors. A custom to swear the jurors at one court \ leet to inquire, and return their pre- sentments at the next court, is bad in law. Davidson v. Moscrop, M. 42 G. 3. 56 Landlord and Tenant. See Covenant, No. 1, 2: or Rent. To trespass for breaking and entering, &c. and pulling down and taking away certain buildings, &c. the defendant, as to the breaking and entering, suffered judgment by default, and pleaded not guilty as to the rest: held that such plea was sustain- ed, by shewing that the building taken away, which was of wood, was erected by him as tenant of the premises, on a foundation of brick, for the purpose of carrying on his trade, and that he still '- continued in possession of the premises at the time when, &c. though the term was then expired. Penton \.Rob art, M. 42 G. 3. 88 Lease. See Forfeiture, No. 1. Under a power in a will to lease in pos- session, and not in reversion, a lease for years, executed the 29th March to the then tenant in possession, habendum as to the arable from the 13th February preceding, and as to the pasture, from the 5th April then next, &c. under a yearly rent, payable quarterly on 10th July, 10th October, 10th January, and 10 th April, is void for the whole: though such lease were according to the custom of the country, and the same had been ^ before granted by the person creating the power. Doe d. Allen v. Culccri, E. 42 G. 3. - 7fi Lecturer. See Mandamus, No. 3. Libel. See Slander. After judgment on the defendant for a libel. the Court refused to make an order on VOL. II. the prosecutor to deposit the original libellous papers with the officer of the court. R. v. Ca'.or, T. 42 G. '',. 3;j Lien. . A principal gives notice to his factor of an intended consignment of a ship to him, for the purpose of sale; and in con- sequence draws bills on him, which the factor accepts; and then the principal dies, and his executors direct the cap- tain of the ship to follow his former or- ders; who thereupon delivers the ship into the possession of the factor. wh< sells the same; held, that the factor has a lien upon the proceeds, as well for the amount of money disbursed by him for the necessary use of the ship on its ar- rival, and for the acceptances by Imu actually paid, as for the amount of lus outstanding acceptances not then du. . Hammond v. Barclay, //. 42 G. '). 'J27 . The assignee of a policy of insurance i.:i goods, who became such bv the indorse rnent to him of the bill of lading of the goods by the consignor, after he had di- rected his correspondent to make the insurance, takes it, subject t-> the hen nf the correspondent of the consignor, r-r his general balance; and can only claim, subject to that hen, the money recent d on such polii-y by the broker, m wh'., hands it was deposited for that |>urj..- bv the correspondent. But the broker has no sub-lien on the policy fr the -ji ner balance of his own account with MI. h correspondent, if he knew .1: that the policy was , -licet" peison. M(tn\'.Xhitfntr,'I. \-d. ' hill uf Actt"H. 'here the commander "t oi.e "t armed vessels s. i/ul a \< > at sea, and brought t'ne.i, in port, on >iispicion o! < after process in the F.xch .'.- ". obtained an order tor iv which he obtained o;i!\ [ .: from the defendant: maintain 'i' 1 ' ' : '' '' ' '' : action u\ re ;v -,,.? INDEX. three months from the order for the re- delivery. Saundcrs v. Saunders, E. 42 G. 3. * 254 Mandamus. 1. Upon an information, in nature of quo u-arranto, against one for claiming- the office of alderman, if he disclaim, and judgment of ouster be given against him, he is concluded from shewing to a second information for exercising the same of- fice, that he was duly elected before such first information and judgment of ouster, and that he was afterwards sworn in, by virtue of a peremptory mandamus from this Court. R. v. Clarke, M. 42 G. 3. 75 2. A mandamus to swear one into an office, confers no title in itself to such office, ib. and R. v. The Burgesses of Truro, 35 G. 3. cited ib. 85 3. Where no immemorial custom appeared to appoint a lecturer in a parish church, and, on the contrary, it appeared that the lectureship was founded in 1658. when the episcopal constitution was sus- pended, and consequently there could not be the joint assent of the bishop, the rector, and the vicar, to the endowment, a mandamus to the bishop to license a lecturer, without the assent of the vicar, v/as denied; though it appeared that the lectureship was originally endowed by the rector with an annual stipend, pay- able out of the impropriate rectory, and that several lecturers had from time to time been accepted by the bishops and vicars for the time being, R. v. The Bishop of Exeter, T. 42 G. 3. 462 Misdemeanor. See Indictment, No. 1,2. Navy. Sec Admiralty. j\ on-residence, Sec Rector. Notice to quit. See Ejectment, No. 1. Nuisance. See Action on the Case, No. 5. A bridge built in a public way without public utility, is indictable as a nuisance; and so it is if built colourably in an im- perfect or inconvenient manner, with a view to throw the onus of rebuilding or repairing it immediately on the county. R. v. The Inhabitants of the West Riding of Yorkshire, E. 42 G/3. 342 Ouster Judgment of. o ./ See Quo Warranto, No. 1. Overseer of the Poor. 1. An appointment of one overseer alone for a township is bad in law; the stat. 13 and 14 Car. 2, c. 12, requiring at least two; and a certificate granted by such overseer is void, and gives no se- curity to the certificated parish against the gaining of a settlement there by the party named therein; such certificate not being made pursuant to the stat. 8 and 9 W. 3, c. 30, which requires it to be made '* by the churchwardens and over- seers, or the major part, or by the over- seers, where there are no churchward- ens." R. v. The Inhabitants of Clifton, H. 426'. 3. 168 2. After an appointment of four overseers for a parish by the magistrates at one meeting, they are functi officio; and no other magistrates can afterwards, upon the claim of one of the persons so -ap- pointed to be exempted, appoint another in his place; but the party must appeal to the Sessions to get his discharge. R. v. The Inhabitants of Great Marlon-, H. 42 G. 3. 244 3. -And this objection to the second ap- pointment may be disclosed to this Court on affidavit, upon the removal of the ap- pointment hither by ccrliorari; who will thereupon quash the same. ib. 4. Semble also, that the magistrates making: the appointment must be together at the time the act is done. ib. Payment of Money into Court. The payment of money into Court upon a count 1 N I) I' X . Count stating a special contract, is an ad- mission of such contract, and narrows the inquiry to the quantum of damages sus- tained by the breach thereof. Therefore, if the plaintiff declare as upon a general' undertaking by the defendant to carry goods for hire, on which the defendant pays 51. into court, the latter cannot give in evidence that the contract was that he should not be answerable for goods lost to a greater value than 51. unless entered and paid for accordingly: though if no money had been paid into court, the terms before tlu> action romm<>ncH. ac- cording to stat. '; G. '2, the slat. -J G. .1. having allowed six mouths. //,. .13 j The stat. 37 G. 3, <. lu, s. 2G. requiring a proctor to take out u certificate fur practising under a certain penally. -i\i-s no action to a common informer* for the recovery of it; the sixth section of lh.it Act incorporating the power of suinj*, Ac. given by former statutes, only refining to penalties in respect of duties created by prior sections of that Act. li'irnnrtl v. Gostliny, T. 42 G. :>,. plaintiff must have been nonsuited on 6. It seems that two proctors mav he litc't such evidence. Yale v. Willan, M. 42 together for not obtair.ir,- and tntcrm- their certificates; and that oru- may acquitted and the other coiuicUd." G. 3. and Piyott v. Dunn, . 36 G. 3. cited ib. 128 Penal Actions. 1, In an action on a penal statute, the de- claration must allege the fact to be done contra formam statuti or statntontm, as the case may be: stating that by force of the statute an action accrued, &c. is nut sufficient where the penalty is given by one statute, and the right of action to the informer is given by another. L 11 irJ i.*; T. 42 G. 3. 7. A joint action may be maintain. -d ii^jK^t several, to recover a penalty upon the Tame laws. HnrdymciH v. \\'in(".kT. ~\! 22 G. 3, cited ,l>. * .-,7.3 Pleading. S< c Excise. 1. Upon breach of a contract :'>r f!.e pur- chase of JIM I hairs of u heat. tortv "r til'tv of uhlch were to be dclneud t.n n? market day, and the icii-.i:ui!--r <-:i the next market day, the pLintni'c inii' uii - dare as upon an ab-;i/bite < .i,tr.i- t t-r the delivery of the forty b,i^-> on the :i.-t day, ite. thr,u--h forty ba-^> \\^i> fact delivered ; but the c. i,l. !, ; stated in the alternative, .. ni::._- '. the original ti-rn.s <.( it. i' ter, M. 42 G. '>. ?. The sam. liver u'ooi ct rtam ve-<-el -u :i <-/( />. r.. i7v;. cit< . In an indictment ' 2 1, fur obtaining teiires. it defendant designedly |.u ,hic 'i [':>!< 1. INDEX. have been sufficient to allege, that he ob- tained the money by such and such pre- tences, averring such pretences to be false. Rex v. Airey, M. 42 G. 3. 30 4. In justifying a trespass under the process of a foreign Court, it seems that the plea should be formed in analogy to similar justifications under the process of our inferior Courts : but at any rate, a plea which only states that the Court abroad was governed by foreign laws, that the property seized was within its jurisdic- tion, that certain legal proceedings were had, according to such foreign laws, against the property in question in such Court, having competent jurisdiction in that behalf, et ialitcr proccssum, fyc. that the defendant was ordered by the said Couit, having competent authority in that behalf, to seize the property, is bad, being too general; and not giving the plaintiff notice whether the defendant justified as an officer of the Court, or party to the cause; or of what nature the charge was, or by whom instituted; or what, the order of seizure was, whether absolute or (juousrjne, &c. Collclt v. Lord Keith, E. 42 G. 3. 200 5. In an action on a penal statute the de- claration must allege the fact to be-done contra formam staluti, or stntutorum, as the case may be : stating that by force of the statute an action accrued, &c. is not sufficient, where the penalty is given by one statute, and the right of action to the informer is given by another. Lee v. Clarke, E. 42 G. 3. 333 6. Semble, where the record was entitled generally of Jlil. 41 G. 3. and the fact was laid under a viz. on 21st January 1801, whereas the return of the capias must have been at latest on 20th Janu- ary, arid so the suit appeared to be com- menced before the cause of action, con- trary to the averment in the declara- tion; such repugnancy is no ground of error. Ib. 333 7. Semble, if a statute give an action with- in six months after the fact committed, (by which must be understood lunar months) and the declaration aver such fact within six calendar months before, it is no error; as it will be presumed that the fact was proved within due time, notwithstanding such irrelevant al- legation. Ib. 333 8. Semble, that a declaration for a penalty on killing gaine brought for the whole penalty on the stat. 2 G. 3, c. 19, s. 5, and prior statutes, need not allege the fact to have been committed within two terms before the action commenced, ac- cording to stat. 26 G. 2, c. 2, the stat. 2 G. 3, having allowed six months, Ib. 333 9. l.VThe stat. 26 G. 3, c. 77, s. 13, which enacts that no person shall prosecute " any action, bill, plaint, or information, " in any of the king's courts," for the re- covery of any excise penalty, &c. tmless prosecuted by the Attorney-General or some revenue officer, is confined to the superior courts of record: and therefore an information for a penalty for removing wax candles from the place of manu- factory before the duty paid (by s. 10. of the same statute) may be prosecuted before the commissioners of excise by one not averred to be such officer. 2. And the information, stating in effect that the candles were home-made candles, seems to be sufficient, without expressly naming them British candjes; the words of the Act being "British spirits, soap, and candles:" though supposing this would have been a ground for error or appeal in the original information, it is no objection to an information in a col- lateral proceeding for conspiring to pre- vent the examination of a witness before the commissioners of excise on such prior information, which is only stated by way of recital in the information for the conspiracy. 3. The same answer applies to an uncertainty (if any) in the charge of the first information recited; in negativing the excuse of a prior con- demnation as well as the prior payment of the duty before removal ; though that seems proper enough. 4. So the issuing of process against the original defend- ant, or the joining issue on the informa- tion recited, is immaterial as to the charging the offence of the subsequent conspiracy. INDEX. conspiracy. 5, Neither is it necessary, at least in such collateral proceeding, to recite that the original information was prosecuted before the commissioners by name, though it be not averred to have been before three or more of them, ac- cording to stat. 1 G. 2, sfat. 2, c. If!.-- 6. Neither is it necessary in reciting such prior information, averred to have been made within three months after the of- fence committed, according to stat. 1 W. Sf M. c. 54, s. 13, also to aver notice thereof to the original defend- ant within a week, as is directed to be given by the same statute. 7. Where the stat. 7 and 8 W. 3, c. 30, s. 24, enables the commissioners of* excise to summon witnesses before them, upon a charge exhibited against another for an offence against the excise laws, and an information in a collateral proceeding re- cited such summons to have been duly made, proof of a printed summons dis- tributed and issued in blank, by order of the commissioners to their agents, and afterwards filled up by one of them with- out any special directions from the board, is sufficient, although not signed by any of the commissioners, nor issued in their individual names: such having been the constant usage in that respect since the introduction of the excise. R. v. Steven- ton, E. 42 G. 3. 10. A declaration on a policy of insurance on a foreign ship need not aver any in- terest in the assured; though there be no such words as " interest or no in- terest" in the policy. Nantes v. Thomp- son, E. 42 G. 3. 11. In a country cause, if the defendant put in special bail in time, he may plead in abatement, though the bail be not perfected till after the four days, if they be ultimately perfected within the^ time allowed by "the practice of the Court. Dimsdale v. Ntekon, E. 42 G. 3, 12. In a justification of slander, that the defendant named the original author ot it at the time, it is not sufficient to al- leo-e that the original slanderer use such and such words, or to that effect; although in the libel declared on the de- fendant stated tint another had poken the same slanderous words of the plain- lit}', or words to that rffcct; hut the de- fendant must give the very words used, though it lie only wressary to prove some material part of them. Maitlumi v. (ioldnnj, T. 42 C,. :j. 42ii 13. Qn. Whether the defendant ran by naming the original author justify the publishing in writing slanderous words spoken by such other, (.specially aftf T knowing that thev were unfounded? ib. .o J .14. In an action on the rase in tort for a breach of warranty of goods, the scien- ter need not be charged, nor if charged, need it be proved. Williamson \ . Allt-on, T. 42 G. 3. 15. It is not necessary to give a local de- scription to the nuisance in an action for diverting the water of a naviga- tion; and therefore if it be doubtful whe- ther the place where such navigation is stated to lie be laid in the declaration an a venue or as local description, it w,ll referred merely to venue, and need not b< proved to be at such place ; but it is sulti- cient if it be at any oilier place within the county. Compaini of Prujiri>.tr< of ti Mersey and Incdl Xui-i> 17. The stat. 17 (,. 3, i-. !".< a proctor to take out a - practising under a certain |K-I no action to a common into: recovery of it; the sixih ~vti..n "i art incorporating the pow-r or s. ..jvenbv former statutes. penalties in respect of ilutii: "filial A ; - H " j- - - <' ' ems that two pm- t .rether f..r n"l obtaiu-uj their ccrt.ticates; an-1 thar.-m HuittceUiul the other INDEX. 1 9. A joint action may be maintained against several to recover a penalty upon the game laws. Hardyman v. Whitaker, M. 1 22 G. 3. cited ib. ' cro Practice. 573 Poor. See Assumpsit, No. 6. Overseers of the Poor, ^ Removal, Order of. Poor Rate. A Slate-work (or, as improperly called, a slate mine) is rateable to the poor. R. \. The Inhabitants of Woodland, H. 42 3. G. 3. 164 Poor Rate in Aid. An orde'r for taxing one parish in aid of another, under the stat. <13Eliz. c. 2, s. 3, ^' held well; although the two parishes, to- gether with others, were incorporated for the maintenance of their poor, with fixed quotas of contribution between each other, ' under special officers, who were em- powered to purchase land for the erection of poor-houses and for a burial-ground; there being a proviso in the Act in general terms, that nothing therein contained should extend to repeal or lessen the power of justices of the peace "to tax parishes in aid of others by virtue of the statute 43 Eliz. as fully as if this Act had not been made." R. \.*The Inhabitants of St. Helen, Worcester, T. 42 G. 3. 417 Power. Under a power in a will to lease in possession and not in reversion, a lease for years executed the 29th of March to the" then tenant in possession habendum as to the 6 arable from the 13th of Fch. preceding; and as to the pasture, from the 5th of April then next, &c. und'.r a veurlv rent payable quarterly, on the iOtli J/'///, 10th of October, 10th of January, and 1 Dili of 7 April, is void for the who!.,:; though such lease were according to the custom of the country, and the same had been before granted by the person creating the power. Doe d. Allan v. Caiccrt, E. 8 42 G. 3. 376 No judgment shall be entered up under a warrant of attorney to confess judgment, without such warrant being delivered to and filed by the clerk of the dockets. Reg. Gen. M. 42 G. 3. 136 Every attorney of B. R. who shall pre- pare any such warrant of attorney, which is to be subject to any defeazance, shall cause such defeazance, or a memorandum in writing of the substance and effect thereof, to be written on the same. ib. If the defendant's attorney or his clerk be put in as bail, the plaintiff must except to the bail, and cannot proceed as if the matter were a nullity. R. v. The Sheriff of Surrey, H. 42 G.3. 181 A defendant in a crown prosecution can- not carry down the nisi prius record to trial by proviso. R. v. Macleod, //. 4 G. 3." 202 If an order of removal be confirmed at the Sessions, and both orders be after- wards removed into B. R. by certiorari on a case reserved, and B. R. disap- prove of the orders, for want of juris- diction of the removing magistrates ap- pearing on the face of the original order ; B. R. will quash both the orders, with- out remitting the matter back to the Ses- sions to quash the original order, for the purpose of enabling them to give main- tenance according to stat. 9 G-'. 1, c. 7, s. 9. And at any rate they will not ad- mit an application for amending their judgment for quashing both orders made in the term subsequent to (he judgment so pronounced. A*, v. The Inhabitants of Moor Cntc/tcll, 11. 42 G. 3. 222 All double pleas must be tiled, and not merely delivered to the plaintiff's attor- ney; though two pleas be pleaded, which separately need only have been delivered. Harrt:*o)i v. Franco. //. 42 G. 3. 225 The Court will not quash a defective in- dictment, en the motion of the prosecutor after plea pleaded, before another good indictment be found. R. v. Dr. Wynn, II. 42 G. 3. 226 A rule to bring in the body, tested on the day of the return by the sheriff of cepi corpus, INDF.X. corpus, though issued afterwards in the vacation, is irregular. Hex v. The Sheriff of London, H. 42 G. 3. -24 1 9. A defendant cannot be taken in execu- tion twice on the same judgment, though he were discharged the first time by the plaintiff's consent, upon an express un- dertaking 1 that he should be liable 1o be taken in execution again, if he failed to comply with the terms agreed on. Ulack- burn v. Stupart, H. 42 G. 3. 243 10. An omission in the ac ctiam part of the writ of the sum for which the defendant is arrested on bailable process is irre- gular, and he cannot be holden to special bail thereon. Davison v. Frost, E. 42 G. 3. 305 11. An objection to a second appointment of overseers of the poor for want of ju- risdiction in the magistrates, may be dis- closed to B. R. on affidavit, upon the re- moval of the appointment thither b v ccr- tiorari. R.v. The Inhabitants of Great Marlow, H. 42 G. 3. 244 12. Where a defendant is brought up to re- ceive judgment after conviction, an affi- davit by the prosecutor in aggravation, stating that a third person, who refused to join in the affidavit, had informed him that the defendant after the trial had re- peated in his hearing the libellous matter for which he was indicted, is not admis- sible; at least not without swearing that such third person was under the controul or influence of the defendant. /?. v. P>/i- kcrton, E. 42 G. 3. 3.37 13. After judgment on the defendant for a libel, the Court refused to make an order on the prosecutor to deposit the original libellous papers with the officer of the Court. R. v. Cator, E. 42 G. 3. 3<>1 14. In a county cause, if the defendant put iu special bail in time, he may pL-aii in abatement, though the bail bo not per- fected till after the four days, if they hi; ultimately perfected within the time al- lowed by the practice of the Court. Dirtts- dale v. Niclson, E. 42 G. 3. !<>'.> 1.3. The Court directed the sheriil'to refund his poundage which he had retained out of money levied upon an attachment tor non-payment of money; there being no practice to warrant it; and referred hint t:> his action if In: were M)j,[H>cd t-> have a right i > it under Uu- stat. _' 5 //. (), < '.. It. v. J',ilm'-r, T. -1J <,. !. ill Ki. A writ of error allowed, though no', r- - turned, is in itself a s;jerscrfr.j. ami mav he pleaded by the bail to hav.- !>.-, i, i - sued and allowed ;i ft or th- is.siiini; ai.-l before the return of the m. s>i. a.raiu-a the principal, * as lo avoid procc.diii^* against them in scir? fwm* upon t> recognizance of bail prosecuted after ^ return by i!n- slienti'of non t,t i/ i the time of making such rule al^olu'--. shall be stated in the said rule nit'. 7>< - yula Gencralis, '/'. 42 G. '}. Principal and Factor. A principal crave notice to his factor of an i- - tended consignment of a ship to him : the purpose of sale, and in conseij';< drew bills on him, which the f.i- {>; a - cepted; and then the principil du-d: i:.'l his exei'U'ors directid the cap;. tin ! ship to i'.illow his toi-ui'-r i.r.K-i>; ' thereiipoii (K-!i\e:'ed the ^!.:|> Hit- possession of ti: fvt'T. wijo - saiiu:: held, th.it the f.n-tor 1. Se'iti :iro "t ci.ii'l "!..:: tak'.a liv a l-'r, 'h \>'.'>\ i' into >;--. by a /" there ',>',.">; l-ci allv of /-'V.tHi- ui i':e ii.-n^i.i' is v.iii-1 lion, pro,-i. !::!. 1-1. '>_ conclusive in an action on a policy against the underwriter by the assured, who had insured it as Danish, which in fact it was, Denmark being then neutral. Oddy v. Bovill, T. 42 G. 3. 473 !. An appointment by the Lords of the Ad- miralty of a captain in the navy to be se- cond commander on board a King's ship is valid, by their general authority to ap- point what officers they think proper for the service, although another was appoint- ed to the first command on board the same * ship, and notice is only taken of one cap- tain in the book of regulations for the navy. And such second captain is entitled to a captain's share of prize under the King's proclamation. Waterhousc v. Kiwi, T. 42 G. 3. 507 Proctors. See Penal Action, No. 5, 6. Prohibition. See Will, No. 1,2. Promotions, c. See Page, 253, 4. Quo Warranto. Information in Nature of. See Corporation. 1. Upon an information in nature of quo warranto against one for claiming the office of alderman, if he disclaim, and judgment of ouster be given against him, he is concluded from shewing to a se- cond information for exercising the same oiiice, that he was duly elected before such first information and judgment of ouster, and that he was afterwards sworn in by virtue of a peremptory marldamus from this Court. But, semble, if the election to the office were good, and only the first swearing in irregular, the first judgment should not have been an absolute judgment of ouster; but either a judgment of capiatur pro Jinc only, for the temporary usurpation, or a judg- ment of ouster quousqiie, &c. It. v. Clarke, M. 42 G. 3. 75 2. Where sufficient appears by the affida- vits to draw the merits of an election to a corporate office into question, the Court will grant an information in nature of a quo warranto; though the fact of the defendant's usurpation no otherwise appeared than by the deponents' swear- ing to their information and belief that the defendant was admitted a freeman, and sworn and inrolled accordingly; the defendant not denying the fact when called upon by a rule to shew cause. R. v. Harwood, H. 42 G. 3. 177 3. Information in nature of quo warranto lies for the 'office of bailiff of a court- leet, being a prescriptive officer, having power to summon and select the jury. A', v. Bingham, E. 42 G. 3. 308 Rate Poor. Sec Poor Rate. Generates. See P. 136, 307. Rector. A rector may recover in ejectment against his lessee on the ground of the lease of the rectory being avoided on account of his own non-residence, by the force of the stat. ] 3 Eliz. c. 20. And the lease to the defendant, describing him as doctor in divinity, produced by him at the trial in support of his title, is prima facie evi- dence of his being such as lie is therein described to be, so as also to avoid the lease under ihe stat. 21 //. 8. c. 13, s. 3. Froymorton d. Floniti'j v. Scott, T. 4-2 G. 3. 467 Registry. Sec Ship. Removal Order of. 1. M here two counties have been mention- ed in the antecedent part of an order of removal, the justices making the order must state themselves to be justices of the proper county; and it is not enough to describe themselves justices of the peace in and for the said county, although the INDEX. the proper county were named in the plevin. Aliter in covenant against the lessee himself, who is liable on his per- xnargin, and were also named last before such description of the justices. R. v. The Inhabitants of Moor Critchell, HI. 42 G. 3. 66 2. If an order of removal be confirmed at the Sessions, and both orders be after- wards removed into B. R. by certiorari on a case reserved, and this Court dis- approve of the orders, for want of juris- diction of the removing magistrates ap- pearing on the face of the original order, this Court will quash both the orders, without remitting the matter back to the Sessions to quash the original order for sonal contract. T. 42 G. 3. Stevenson v. Lamhnrd, 57.1 Sessions. See Overseers of the Poor, No. 2. solicit a servant to steal his master's goods is a misdemeanour, though it be not charged in the indictment that the servant stole the goods, nor that any other act was done except the solid tin'rj and inciting. And such ofTence is in- dictable at the Sessions, having a ten- the purpose of enabling them to give dency to a breach of the peace. R.\. maintenance according to stat. 9. G. 1, Higgins, M. 42 G. 3. Sessions Order*. c. 7, s. 9, and at any rate they will not admit an application for amending their judgment for quashing both orders made See Practice, No. .0, or Removal, Order* in the term subsequent to the judgment so pronounced. R. v. The Inhabitants of Moor Critchell, H. 42 G. "3. 222 est* Court of. See Jurisdiction, No. 2. Revenue Officers. of, No. 2. Settlement. Sec Evidence. No. '!. by Apprenticeship. See Settlement l/ Hiring and Scrnu', No. 1. Scftlemcnt under Certificate. Where the commander of one of the king's armed vessels seized a vessel and cargo at sea, and brought them into the next 1. An appointment of one overst er port on suspicion of smuggling; and after process in the Exchequer, the owner obtained an order for re-delivery, under which he obtained only part of the goods from the defendant; the owner cannot maintain trover for the remainder, if the action were brought after three months from the original seizure, though within three months from the order for the re-delivery. Saundcrs v. Saioidcrs, K. 42 G. 3. * 2,31 Rent. An action of covenant lies against, the as- signee of a lessee of an estate for a part of the rent; as in such case the action is brought on a real contract in respect of the land, and not on a personal con- tract. And in case of eviction the rent may be apportioned, as in debt or rc- tat. for a township is bad in law; th 13 cl- 14 Cm: 2. e. 12, requirim: at le.i-t two: and a certificate granted by .erur;ty (> the certificated pari-h against the _am- ing of a settlement there by the named therein; such certificate ti iii-j; made pursuant to the i-Utute 9 IV. 3. c. .'!0, which n ijiiiro i: made " bv the churchwardens an seers, or the m;ij"r part, ur by th> .s ( rr,s-, u here tlx ie are no < ! wardens." R. v. The ///-; r/;/iW, // 426'. 3. .A person cannot gam a > hiring and service with the > tilicutcd man coii'mnm.: t r< certificated j>-irMi v. it'll his :; the father'^ death, as part rt though the sun were ot >'_ . . INDEX. on business for himself; such circum- stances not amounting to an emancipa- tion. R. v. The Inhabitants of Sowerby , E. 42 G. 3. 276 Evidence. 1. Where a case from the sessions only stated the bare fact of a pauper's having received relief from the respondent's parish, it was holden that this was not even prima Jade evidence of a settle- ment there; since he might have been relieved as casual poor, which the over- seers were bound to do if wanted, whether the pauper were settled there or not. R. v. The Inhabitants ofChad- derton, M. 42 G. 3. 27 2. Hearsay evidence of a fact is not to be received upon a question of settlement, though the party who gave the informa- tion respecting her own settlement were dead. ib. 3. Neither the hearsay of a pauper who is dead, nor his ex parte examination in writing taken on oath before two magis- trates, touching his settlement, are ad- missible evidence of such settlement. R. v. The Inhabitants of Ferry Frystone, M. 42 G. 3. 54 4. An ex parte examination in writing of a pauper, touching his settlement, can- not be received in evidence of such settlement, though he be dead. R. v. The Inhabitants of Abergwilly, M. 42 G. 3. 63 by Hiring and Service. 1. Where a pauper agreed with a weaver to serve him for a year and a half, and the master was to teach him to weave, and the pauper was to have half his earnings, and find himself in every thing; under which contract the pauper served his master for above a year; held, that he thereby gained a settlement as by hiring and service; it being the apparent inten- tion of the parties to create the relation of master and servant, and nut that of master and apprentice. R. v. The Inha- bitants ofEcdeston, E. 42 G. 2. 298 2. A servant hired for a year departed from his master some short time before the end of the year, on ill usage, but received his whole year's wages, and something over: held, that he thereby gained no settlement, he having refused to serve out the year when required by his master. R. v. The Inhabitants of Cor- sham, E. 42 G. 3. 303 3. A hiring at so much a week, meat, drink, washing, and lodging, and to part on a week's notice by either party, will not warrant a conclusion of a general hiring; tho' the servant continued six years with the master, and the wages were raised during the period : and therefore no set- tlement can be gained under such hiring and service. R. v. The Inhabitants of Hanbury, T. 42 G. 3. 423 by Office. A curate officiating in a parish for above a year, under the bishop's licence to per- form the office of curate, at a certain annual stipend, is yet not such an annual officer as is entitled to gain a settlement by virtue of the stat. 3 W. 3, c. 11, s. 6. R. v. The Inltabitants of Wantage, M. 42 G. 3. 65. -from the parents. A person cannot gain a settlement by hiring and service with the son of a certificated man, continuing to reside in the certifi- cated parish with the mother after his father's death, as part of her family, though the son were of age and carrying on business for himself; such circum- stances not amounting to an emancipa- tion. R. v. The Inhabitants of Sowerby, E. 42 G. 3. 276 by Rating. 1 . A settlement, by being rated and paying rates cannot be proved by evidence of paying only, without the production of the rate, or accounting reasonably for the non-production of it; although the payer was both owner and occupier of the es- tate for which he paid the rate. R. v. The Inhabitants of Cop pull, M. 42 G. 3. 25 2. An exciseman who was rated for his salary, which was in fact paid by the collector, INDEX. collector, without any deduction from ' the salary, does not thereby gain a set- tlement. JR. v. The Inhabitants of Weobly, M. 42 G. 3. 68 Settlement by taking a Tenement. . A contract for a standing place in ano- thers mill for a carding machine (the party's own property) which was fas- tened to the floor and the roof, for the purpose of being worked by the steam- engine of the mill; for which the party was to give 20/. a year, with liberty to quit on giving three months' notice, is not a taking of a tenement, but a mere license to use the machinery of the mill; ship iu trover. Moss v. Cluirnock, K. 42 G. 3. S'////A ( r 1. In a justification of slander, that the dc- fendant named the original author of it ' at the timer it is not suth'cient to allt-^c t))at t ] ie 01 jgj ua l slanderer usrd such and such words* or to that fjftct; although j n t ] ie ];i le i ' t \ cc l are d on, the defendant stated that another had spoken tin- same slanderous words of the plaintiff, or wor ds to that effect; but the defendant must g ive t ) ic ver y wort l s used, though j t ^ c on iy necessar y to prove some ma- terial part of them. Moitfandv. Gvldnry, y 40 (,< f 3. , f . and therefore no settlement can be de- 2. QM. Whether a defendant can, by naming rived under it. R. v. The Inhabitants of Mellor, H. 42 G. 3. 189 2. Renting a dairy (including the cows and their pasture) at above \Ql. a year in value, will not confer a settlement, if the annual value of the lands on which the cows were to be depastured were under 1 01. It. v. The Inhabitants ofMinworth, The proper stamp for a proimss jr ,or ? J98 45/. is Is. ()(/. composed of three dil fcn-nt sums, applicable to lir bhenjf s roumlage. The Court directed the sheriff to refund his pounclac-e, which he had retained out of money levied upon an attachment for non-payment of money: there being no practice to warrant it; and referred him to his action, if he were supposed to have a ri^ht to it under the stat. '23 //. 6 c. 9~ ./^. v. Palmer, T. 42 G. 3. . tne or j inmii> is enlar^d fr<=m :>/. from tlu ami by s. 1-- if y ar!i " n 7 in anv otlu-r c< url t INDEX. Statutes. Edward 3. ] . st. 2, c. 16. (Justices of peace) 10 4. c. 2. (Justices of peace) 10 18. st. 2, c. 2. (Justices of peace) 10 Hen. 6. 23. c. 9. (Sheriff's poundage) 411 Hen. 8. 21. c. 13. (Lease to Spiritual Person) 467 22. c. 5. (Bridges) 348 23. c. 15. (Costs) 398 Elizabeth. 13. c. 20. (Rector's lease residence) 467 29. c. 4. (Sheriff's poundage) 41 1 43. c. 2. (Overseers of poor) 169 s. 3. (Rate in aid) 317 James 1. 3-. c. 8. (Bail in error) 359, 445 21. c. 16. (Limitation) 87 Charles 2. 12. c. 23. (Excise jurisdiction) 374 13. st. 2. c. 2. (Bailable process) 305 J3 & 14. c. 4. s. 19. (Lecturer's Li- cense) 40-5 13 & 14 c. 12. (Overseers of poor) 168 15. c. 11. (Excise jurisdiction) 375 22&23. c. 9. s. 136. (Damages, &c.) 160,2 William and Mary, and William. 1. c. 54, s. 13. (Excise jurisdiction) 362 3. c. 11. (Settlement by office) 65,9 7 & 8. c. 30, s. 24. (Excise jurisdiction) 362 8 & 9. c. 30. (Certificate, settlement) 168 279, 281 9 & 10. c. 11. (Certificate, settlement) 281 A nnc. 12. c. 14, s. 4. (Game penalty) 573 12. st. 1, c. 18. (Certificate, settle- ment) 279,281 12. st. 2, c. 12. (Curate's stipend) 65 George 1. 9. c. 7, s. 9. (Poor, maintenance) 222 12. c. 29. (Bailable process) 305 J2. c. 28, s. 28. (Excise jurisdiction) 375 George 2. 1. st. 2, c. 16. (Excise jurisdiction) 362 5. c. 19. (Poor, removal) 68 17. c. 38, s. 15. (Poor, overseers) 170 19. c. 37. (Insurance) 114,387 26. c. 2. s. 13. (Game penalty) 333 30. c. 24. (False pretences) 30 George 3. 2. c. 19. (Game penalty) 333 13. c. 78. (Stopping highway, appeal) 213 c. 84. (Highway, apportioning fine) 413 14. c. 48. (Insurance) 391 17. c . 26. (Annuity Act) 87, 137 26. c. 40. (Revenue officers, action) 255 c. 60. (Registry of ships) 399 c. 77, s. 13. (Excise jurisdiction) 362, 375 28. c. 37. (Revenue officers, action) 255 31. c. 25. (Stamps) 415 32. c. 99. (Worcester poor Bill) 418 33. c. 66. (Prize) 517 34. c. 68. (Registry of ships) 399 37. c. 45- (Bank-notes) 1 c. 90. (Stamps, proctor's certificate) 4 1 5, 569 - c. 106. (Stamps) 417 39 & 40, c. 104. (Court of Requests) 135 41, c. 10. (Stamps) 415 41. c. 70. (Insolvent debtor) 148 Stock. In estimating the measure of damages in an action for breach of an engagement to replace stock on a given day, it is not enough to take the value of the stock on that day if it have risen in the mean time, but the highest value as it stood at the time of the trial ; there being no offer of the defendant to replace it in the interme- diate time, while the market was rising. Shepherd v. Johnson, H. 42 G. 3. 2ll Super sedeas. A writ of error allowed, though not re- turned, is in itself a supersedeas; and may be pleaded by the bail to have been issued and allowed after the issuing and before the return of the ca. sa. against the principal, so as to avoid proceedings against, INDEX. against them in scire facias upon the re- cognizance of bail prosecuted after a re- turn by the sheriff of nan est invent us, made pending such writ of error. Samp- son v. Brown, T. 42 G. 3. 439 Tenant. Sec Landlord. Trespass. See Landlord and Tenant, No. 1. Pleading, No. 4. To trespass for breaking and entering, &o. and pulling down and taking away certain buildings, &c. The defendant, as to the breaking and entering, suffered judgment by default, and pleaded not guilty as to the rest. Held, that such plea was sus- tained by shewing that the building taken away, which was of wood, was erected by him as tenant of the premises on a foun- dation of brick, for the purpose of carry- ing on his trade; and that he still con- tinued in possession of the premises at the time when, &c. though the term was then expired. Penton v. Robart, 71 /. 42 G. 3. 8S Trial by Proviso. 1. A defendant in a crown prosecution can- not carry down the nisi pi-ins record to trial by proviso. R. v. Madeod, H. 42 G. 3. 202 2. General note on the trial by proviso, and cjuere as to prosecutions by private per- sons. Ib. 206 Trover. Where the commander of one of tho Kiiu s armed vessels seized a vessel and cargo at sea, and brought them into the next port, on suspicion of smuggling; and after process in the Exchequer, the owner obtained an order for re-delivery. under which he obtained only part of the goods from the defendant, the owner cannot maintain trover for the remainder, if the action were brought after three months from the original seizure, though within three months from the order for the re-delivery. Stiundcrs v. Sounder* E. 42 (;. 3. -254 Variance. See Evidence, No. 4. Pleading, Nu. 1, 2, 9, 15. Warranty. 1. Upon a sale of hops by the sample, with a warranty that the bulk of the commo- dity answered the sample, the law does not raise an implied warranty that the commodity should be merchantable, though a fair merchantable price were given. And therefore, if there be a latent defect then existing in it, unknown to the seller, and without fraud on his part (but arising from the fraud of the grower from whom ho purchased) surh seller is not answerable, though the goods turned out to be unmerchantable. I'ar- hinson v. Lee, ]'. 42 G. 3. 314 2. Tnan action on the case in tort for a breach of a warranty of goods sold, the sricntcr need not be charged, nor, if charged, need it be proved, Williamson v. Alli*n, T. 42 G. 3. -H<; Warrant of Attorney to c"))1c*i Judgment. Sec Practice, No. 1,2. Will. Sec Derne. 1. Prohibition lies to the spiritual ('. suit be instituted to obtain a [i probate ot'the will uf a woman, nude d rir.ii her coverture, though u-ith li. T hus- band's consent, ami though she - him; for he could not, l>y .KIV his, enable her to dispo>. made (luring the covcrUre of j>ro| - : which she might acquire raVr li> d< . but onlv of property o\ t i u self had a disposm- pow\ r. > n'ittiiison, T. 42 G. 2. But a ft me covert may disposing of property whi in atitre droit, ;is executrix bur-band's conduit. N DEX. Revocation. 1. One devised his personal estate to ^4., and his real estate to B. ; and after A.'s death, the devisor having acquired other real property, some by devise and some by purchase, he made a second will, disposing by name of his after-acquired testamentary estate to C. and then added, " As to the rest of my re'.d and "personal estate, I intend to dispose of it "by a codicil, hereafter to be made by " this my will." This is no revocation of of the first will, v/hether considering- that he meant to include the same property therein devised; because it is a mere de- claration of an intent to dispose of it in future, and non constat that such dispo- sition would be inconsistent with the first will; nor is it any revocation, considering that he meant only to include his after- purchased property not before devised, and his personal estate, the bequest of which had lapsed by the death of A . Tho- mas d. Jones, and others, \. Evans, T. 42 G. 3. 488 2. A. by will provided an annuity for B. with whom he cohabited ; and directed his trustee and executor out of his real estate, in case he should have any child or children by B. to raise 3000Z. to be paid to and amongst his said children, and devised the remainder of his estate over to several of his relatives. After- wards he married B., and had several children by her. Held, that such sub- sequent marriage and births did not revoke his will ; the objects having been therein contemplated and provided for. Kencbel v. Scraftoa, T. 42 G. 3. 530 3. Qu. Whether such implied revocations may be rebutted by evidence of parol declarations of the testator, made after the events, that he meant his will to stand. ib. Witness. 1. An indorser on a note, who has received money from the drawer to take it up, is a competent witness for the drawer, in an action against him by the indorser, to prove that he had satisfied the note ; being either liable to the plaintiff on the note if the action were defeated, or to the defendant for money had and re- ceived if the action succeeded. And his being also liable in the latter case to compensate the defendant for the costs incurred in the action by such non-pay- ment, makes no difference. B/rt v. Ker- shaw, T. 42 G. 3. 458 2. A parishioner having made rateable pro- perty in the parish, but omitted to be rated for the purpose of making him a witness upon a question of settlement between two parishes, is a competent witness for the parish in which he is so liable to be rated. /?. v. The Inhabi- tants ofKirdford, T. 42 G. 3. 5,59 3. So such an one is a good witness to ex- tend the boundaries of his parish on a question of boundary between two ad- joining parishes. Deacon v. Cook, Taun- 'ton Sp. Ass. 1789, cited ib. 562 4. Aliter if he were actually rated at the time. ib. FAD OF THK SITCOM) VOLUMK. M. C. Morris, Printer, Wycomhe. 000 011 890